Proceedings of the Standing Senate Committee on
National Finance
Issue 28 - Evidence - October 18, 2005
OTTAWA, Tuesday, October 18, 2005
The Standing Senate Committee on National Finance met this day at 9:35 a.m. to examine the Main Estimates laid before Parliament for the fiscal year ending March 31, 2006.
Senator Joseph A. Day (Deputy Chairman) in the chair.
[English]
The Deputy Chairman: Honourable senators, I call this forty-second meeting of the Standing Senate Committee on National Finance to order. The committee's field of interest is government spending, either directly through the estimates or indirectly through bills.
[Translation]
On Monday, March 7, 2005, our committee was given the mandate to review, for the purpose of tabling a report, projected spending for the main estimates for the fiscal year ending on March 31, 2006.
[English]
This is our tenth meeting since March 9, 2005 on this particular mandate to study the Main Estimates. We have been examining government spending in the context of greater accountability and transparency. At the core of Canada's parliamentary system is the constitutional convention and practice of ministerial accountability. Ministers of the Crown are responsible and accountable to Parliament collectively as part of cabinet and individually as ministers in charge of a department. This convention arises out of the principle that only elected officials, and not the public servants who assist them, should be held accountable for the functioning of government.
To discuss these and other issues, we welcome today Professor Peter Aucoin, who is one of Canada's most respected political scientists. He received his university education in Halifax at Saint Mary's, followed by a master's degree at Dalhousie University. He then moved on to Queen's University in Kingston, Ontario, to earn his Ph.D. A native of Halifax, Professor Aucoin has taught in the Department of Political Science at Dalhousie University since 1970. He was Chair of the department from 1992-95 and served as Director of the School of Public Administration from 1985-90. Currently he is the Eric Dennis Memorial Professor of Government and Political Science and Professor of Public Administration at Dalhousie University in Halifax.
Professor Aucoin is also a senior fellow of the Canada School of Public Service and a member of the academic advisory council of the Secretary of the Treasury Board. He has served in an advisory and research capacity to three levels of government in Canada. Most recently, he was a member of the Clerk of the Privy Council's External Advisory Group on the modernization of human resource management.
Professor Aucoin has authored or co-author of more than one dozen books and monographs, 60 articles and book chapters, and 30 conference papers. His most recent works include Modernizing Government Accountability: A Framework for Reform, published by the Canada School of Public Service, and co-authored by Mark Jarvis.
Before turning to Professor Aucoin, I welcome senators present today: Senator Ringuette, from New Brunswick; Senator Ferretti Barth, from Quebec; Senator Mitchell, from Alberta.
[Translation]
From Nova Scotia, Senator Comeau.
[English]
Senator Murray, from Ontario; and Senator Harb, from Ontario. I am Senator Joseph Day, from New Brunswick, and I am Deputy Chairman of the committee. Although not here today, Senator Oliver, from Nova Scotia, is the Chairman of the committee.
Professor Aucoin, please proceed.
Peter Aucoin, Professor, Department of Political Science and School of Public Administration, Dalhousie University, as an individual: Good morning. I have prepared a brief outline of my comments to present today.
Thank you for this invitation to appear before the committee on such an important topic. I will speak to five subjects: the basic principles of ministerial responsibility within our system of public accountability; why the system is complex rather than simple; the confusions and conundrums about the notion of ministerial responsibility; the issue of deputy minister accountability; and why deputy ministerial accountability is an important subject.
The constitutional convention of ministerial responsibility is one that aught not to be confused with our system of responsible government, even though it is tied in with it.
The convention is that ministers head departments for the purposes of administering public business. That means ministers have the authority and responsibility, which seems straightforward.
The use of the ministerial department goes back to the first part of the 19th century Britain, when boards of ministers headed up the great departments of state. In fact, the only remnant of that system that comes to mind in the Westminster system is the Treasury Board of Canada, which is a board of ministers with statutory authority and the power to act. None of the other Westminster systems retains anything like a board in that capacity. Everywhere else an individual minister is responsible. For example, in Britain the powers invested in the Treasury Board are largely vested in the minister of the treasury. In Australia they are vested in the minister of the treasury and in the minister of the department of finance and administration.
The issue of individual ministerial responsibility as a minister is actually the executive and, therefore, must account to Parliament. In the Canadian context, this means that ministerial authority and responsibility derive from parliamentary statutes, including appropriation.
It is important to note that in the Canadian context, we have placed many things into parliamentary statutes that are done under the Royal Prerogative, as they are in Britain. For example, Canadian departments are established by statute but in Britain everything is done by Royal Prerogative. That has important implications for the concept of an accounting officer that I will speak to later. Ministers are responsible, accountable, to both the House of Commons and the Senate for the exercise of their authority in the discharge of their responsibilities. The authority comes from Parliament and the account is back to Parliament. The authority is not from the Crown alone.
Ministers must account to Parliament, meaning they must explain and answer but, as required, they must justify and defend what they have done in terms of their actions and decisions. I make that point because many people will come before you and say that giving an account is simply reporting. However, that is only one half of the equation and simply explaining or answering is also only one half of the first part of the equation because there is the requirement to justify and defend what has been done.
The second half of accountability is that ministers are held to account by Parliament. They are subject to scrutiny and questions, and then Parliament passes judgment. It can issue sanctions but it cannot discipline, as I will point out later. Parliament can comment on what people have done and, as we have seen most recently, it can have a huge impact on reputation.
Parliament can name, blame and shame a minister but it cannot dismiss a minister or instruct a minister. Some of you might hear that accountability is not about blaming, and that can be put in terms of one aught not to think of the accountability process as a negative thing but blaming exists. When someone has done something that they should not have done and cannot defend the action, then he or she needs to be named and blamed. Naming, blaming and shaming may be a pejorative way of putting it but it is an essential part of the accountability process; and several people have tried to suggest that it is not.
Parliament cannot dismiss a minister, force a minister to resign or instruct a minister. A prime minister decides when a minister is to be dismissed or resigned. Parliament can put great pressure on a prime minister and a prime minister can suggest that a minister resign rather than be dismissed.
The question of resignation does not rest with Parliament, and it never has rested with Parliament. The only time it rested with Parliament was when Parliament used the impeachment process. With the development of responsible government in the British constitutional system of Westminster government the impeachment process went. It still exists but is defunct. Of course, the Americans picked it up. We do not use it because we use the system of responsible government, whereby the whole government has to be defeated.
It follows naturally that when something has to be done, the minister or the government fixes it or decides to take action, if any. Parliament does not issue the instruction. Those are the basic principles, although there are some exceptions that I will speak to later.
The system, which has two components, is not simple. The convention of responsible government might be simple but the system of authority is complex. There is individual ministerial responsibility and collective ministerial responsibility, as the Deputy Chair of the Committee noted this morning.
Collective ministerial responsibility is linked to the Constitutional convention of responsible government. The government requires the confidence of the House. If it loses that confidence, it either resigns or calls an election. That great principle of responsible government is meant to ensure that the executive is controlled by the legislature, which comprises the elected representatives of the people.
As I mentioned, the system is complex and involves a distribution, or dispersal, of authority and responsibility, and there is a diffusion of accountability. We mentioned that ministers are the executive heads of departments and portfolios. There is also the cabinet as the Governor General in Council, which is the cabinet wearing its legal hat.
In Canada, as compared to other Westminster systems, we do many more things through Governor in Council because of our regional representation imperative. Cabinet makes many decisions that would be made by a minister in other systems.
In addition to ministers and cabinet, we also have the Treasury Board. The Treasury Board is a statutory committee with statutory authority to make final decisions. The powers are essentially vested in the Financial Administration Act and so its decisions do not have to be referred to cabinet.
In addition to the Treasury Board, we have the Public Service Commission, which is an independent, executive agency — executive because it has an executive authority to staff the Public Service of Canada. The PSC reports to Parliament through a minister, although likely it should report directly to Parliament.
In any event, the powers vested in the PSC are not powers vested in ministers. Ministers have no authority to staff the Public Service of Canada. As we have seen of late there have been problems in that respect.
Deputy ministers have statutory authority. In the statute books, you will find that the Financial Administration Act vests considerable authority in deputy ministers over certain administrative and management matters, as do other acts, such as the Public Service Modernization Act. There are formally delegated powers by the Public Service Commission and by Treasury Board, not the TB Secretariat. In all of those instances, the powers vested in the deputy minister are not vested in the deputy's minister. The powers are vested directly in the deputy and bypass the minister. That makes the system complex.
In respect of ministerial responsibility, there are several confusions and conundrums. I am certain that senators have been exposed to many of them and have tried to think through some of them yourselves. The first one is the assertion that no one accepts responsibility.
The point is that Parliament holds ministers or deputy ministers to account, and that is what truly matters. The issue is that someone is deemed responsible if Parliament can hold them to account; and that is what matters in terms of the successful application of the principle. The fact that ministers or others may at times deny responsibility is, in a certain sense, beside the point. People such as senators are meant to hold those people to account — to assert they are responsible. Ministers will often deny responsibility.
Our system has never assumed that as soon as one makes an allegation to a minister the minister will commit political hari-kari and resign; rather the system presupposes a tug-of-war between the legislature and the executive. To expect people to come right out and say they are responsible and culpable has never been a part of the system. It has never been part of the British system either.
Former ministers are not responsible. This is where we encounter difficulty with the term "responsible." If it means only that ministers are in charge and have an authority then, of course, it is correct. However, a former minister is not responsible because a former minister is no longer a minister. That is a truism. However, that does not mean a former minister is not responsible in the sense that he or she is culpable for what happened in the past. They can still be called to account and blamed and sanctioned. Former ministers do not get off the hook. If they are no longer the minister, if they have resigned from office, if they have resigned from the legislature, they are still accountable. If they are dead, they are still responsible. Obviously, in that case, they cannot be held accountable in the sense of being questioned, but their name and their reputation can be affected.
In that sense, there are no gaps in the system. The confusion is around the term "responsible," because we use it to mean both a duty and a power or an authority, and in English, we confuse the two. We use them interchangeably, and there is no way to get around that, but it is important not to allow the English language to get in the way of understanding the constitutional principle.
There is then the assertion that nothing happens when things go wrong. The point is that it is up to Parliament, especially the House of Commons, to pressure the prime minister and the government to respond, to act. Ministerial responsibility is a form of political accountability. If the politics are not played out, nothing will happen when things go wrong. It is not a court of law. It is a court of public opinion, if you like, so it is both the responsibility of Parliament to do it and, very importantly, the capacity of Parliament to do it — the intellectual capacity to get to the point, to do the research, to ask the right questions, to make certain that someone does not escape responsibility.
There are a number of hard questions that need to be asked. The first I want to mention is that ministers do not have full executive authority over the departmental administration of public business. There are exceptions to the basic principle. It is terribly important that this be understood, because the general principle that they have authority is not entirely correct. There are qualifications that have to be made to that point. The Treasury Board, for example, sets all kinds of regulations over the administration of departments that individual ministers must follow. This is the law of the land. The Public Service Commission staffs up to and including the level of the assistant deputy minister. Ministers do not staff their departments. The Prime Minister appoints the deputy ministers that individual ministers have to work with, and the Treasury Board has its own statutory authority and delegated powers from the Treasury Board and the Public Service Commission. Again, these are not powers vested in the minister; they are vested in the deputy.
Ministers cannot be expected to accept responsibility as personal culpability for actions of their departmental officials if they did not know or should not have known, because departmental officials are not appointed by ministers. This is why we allow it to be said that ministers answer when they first hear of a problem in their department and then decide either to take some action or not to take some action, but they are not personally culpable if they did not know or should not have known, or if they were not personally involved. That is so because they have not staffed their departments. These are officials who have been staffed by someone else. That is an important point.
The next point is that ministers should be fully responsible for anything done by their political staff whether they knew it or not. If a minister appoints a political staffer, a ministerial aide, and that ministerial aide does things in any way that should not have been done, the minister has to accept that as 100 per cent personal culpability. Otherwise, there is a gap in the system. They are not public servants. If they were, the minister could say, "I did not do it, but I will find out what has happened and I will take action if necessary."
There was a recent case in the department of immigration under a former minister in which two sets of officials were involved, one, political aides and the other, public servants. In the case of the public servants, it was a matter of whether or not the minister knew. In the case of the political officials, it was decided that it revolved around whether the minister knew or did not know, and that should not have been the case. It should not have mattered whether the minister knew; otherwise, there is a big gap in the system.
The Australians are worried about this because, under their system, they do not even allow political staff to appear before parliamentary committees. I can speak to that later, if you wish.
We have a major problem with political staff if we do not accept the principle I have just enunciated.
Finally, public servants appearing before parliamentary committees should tell the truth, but they should not discuss matters that engage them in political discussion.
Public servants should not defend or criticize ministerial policy, decisions, or actions. We do not usually get them criticizing, but we have recently had problems where they are a little too keen to defend or promote. Except for deputy ministers, public servants do not possess authority or responsibility in their own right. Everything they do is delegated. That, of course, is true for deputy ministers for everything other than the statutory powers they have.
Public service accountability, except for some aspects of deputy minister accountability, is up the line to the deputy minister. I want to emphasize that it is to the deputy minister. Public servants below the level of deputy ministers are not accountable to the ministers. They are accountable up the hierarchy to the deputy minister. The deputy is accountable to the minister, but not the public servants below them. They speak of having a sense of being accountable to their minister, but it is important to recognize that the responsibility is up the line. That is why we have hierarchies.
In terms of deputy minister accountability, deputy ministers have statutory authority. There is no doubt about that. Other witnesses have made that clear, and you can look that up in the law books yourselves. They have statutory authority in certain matters of the management of their departments, and these powers bypass their individual ministers.
It is my view that deputy ministers should account directly to Parliament for the exercise of these powers, at least for those that come from Parliament. I also think it would strengthen the accountability system if they accounted to Parliament for those powers that are delegated to them by the Treasury Board and the Public Service Commission even though they would account to those two organizations as well.
Deputy ministers cannot account to their individual ministers or to the prime minister for these authorities, because the minister and the Prime Minister are not the source of them. These authorities come from others. The minister and the prime minister cannot instruct deputies on these things in any formal sense. It cannot order them. They can tell them what to do, just like you or I could tell the deputy what to do, but they do not have the authority to order them to do things. This comes up clearly in the sponsorship scandal.
It is in that sense that deputy ministers cannot be overruled or overwritten by their individual ministers on these matters, because the ministers do not have the authority the deputy minister does. This comes clearly to the accounting officer scheme because that presupposes the minister has the ultimate authority, and I will get to that.
In my view, the current government view creates a terrible hole in our accountability system. The view of the Privy Council Office on this matter is that deputies can be overridden by their ministers and are accountable to their ministers for all of these powers, but since the ministers cannot instruct them on these matters, therefore, they cannot fully hold them to account. In my view, that creates a big hole in the system.
It is important to stress, for those of you who worry about the question of ministerial and deputy ministerial relations that I am not talking about any new powers. These are powers already in the system, powers they already have. The system is already as I have just described it.
It is also important to emphasize that this issue is not one of creating a distinction between policy and administration. That is a theoretical academic issue that has no relevance here. The law already gives authority over certain matters to deputy ministers, and that is the point. It does not matter whether you call that policy or administration; the authority is there to act.
It is also the case, in my view, that deputy ministers are already held to account by parliamentary committees, at least in some instances, regardless of what has happened. Look at the Public Accounts Committee. To give one example, the Public Accounts Committee is holding the deputy minister of Public Works and Government Services to account. If that is not holding to account, I do not know what is. Therefore, it is fully in place already, and it is fully in place with respect to questioning, scrutinizing, passing judgment, and making comment in the sense of imposing sanctions.
In one sense, some of this is a red herring. It is already there; we just do not admit that it is.
It is also the case that parliamentary committees cannot instruct or discipline a deputy minister; only others can do that. The point is that they cannot do that to ministers either. The argument that parliamentary committees cannot instruct or discipline a deputy, the implication being they can do that to ministers, is dead wrong. They cannot instruct a minister; they cannot discipline a minister.
Parliamentary committees are also political. Much is made about the differences between Canada and the United Kingdom in this regard. There are relative differences between the two.
Parliamentary committees are political but so is the government; it is not as though deputy ministers, by being in parliamentary committees, are exposed to politics for the first time. They are in a governmental system and fully exposed to partisan politics.
My view is that there is no need to institute the UK accounting officer scheme. We simply need to acknowledge that deputy ministers have statutory authority, should be accountable to parliamentary committees and not allowed to hide behind ministerial responsibility in respect to those matters over which they have authority. It is their authority, not the minister's; they should give the account.
I think there is an important difference here with the UK. In the UK, because everything is done under the prerogative, ultimately the authority rests with the minister. When the minister wants to override an accounting officer, which is a permanent secretary or an executive agency, they can do so because they have the authority.
The authority that the permanent secretary has comes from the rules of the treasury. They are rules set by the treasury, the government department that establishes the system. That is why Ned Franks points out that our deputy ministers have a lot more power than British permanent secretaries have. They have statutory authority.
Therefore, I would think it is almost inappropriate, perhaps even illegal in some instances, for a minister to override a deputy. Can you imagine a minister overriding a deputy on a staffing issue? That would be illegal. The same should apply to a minister overriding an official on a question of financial administration or the organization of financial controls in a department. There is an important distinction between the law and the practice in Britain and the law and the practice in Canada.
I mentioned earlier these are conundrums and there are difficulties in dealing with them. The New Zealanders and Australians have gone full speed ahead with what we would call deputy minister accountability to Parliament but without saying that they have changed their system of ministerial responsibility. The equivalent of their deputy ministers — in Australia, they are called departmental secretaries and in New Zealand, they call them chief executives — have more formal authority than deputy ministers have in Canada. They have more financial authority to manage affairs and more staffing authority.
In both cases, and most recently in Australia, the deputy ministers of Australian departments employ their own staff. They are like separate employers. The closest things in Canada would be the deputy minister of the National Revenue Agency, which has that authority as well.
In those two places, it is clear that deputy ministers account to Parliament and they give full accounts for their department's performance. They are subject, in both of those countries, to serious grilling from parliamentary committees. They just allow those two accountability systems to exist side by side. They have not tried to square the circle, in other words.
All of these issues are important because there have been significant political pressures on the public service over the past quarter of a century and more. I would like to emphasize that this is not a uniquely Canadian phenomenon; this is an international phenomenon. In every political system, these things are occurring and they have been building incrementally for the most part, particularly in the Westminster systems over the past quarter of a century. They wax and wane a bit but they are becoming more intense.
The pressures come from an increased concentration of power at the centre under the Prime Minister, not the Privy Council Office, which is the Prime Minister's department. There is an increased number and influence of political aides and ministerial staff. There is an increased effort to try to politicize staffing in the public service, more so in some jurisdictions than others. There is an increased effort to impose political spin on government communications, the worst case in Britain; and there is an increased demand that public servants be enthusiastic advocates of government policy initiatives — not loyal to the government of day, enthusiastic advocates of government policy positions. All of those things are coming together. You can find elements of this in the past, but it is becoming much more intense.
It is my view that the sponsorship scandal and several of the other recent debacles we have had are the consequences of those pressures. Some are obviously more extreme and serious than others, such as the sponsorship scandal, but we aught not to think of this as some sort of passing incident that we can get over.
Among the things we need to address is the independence of our professional public service as a non-partisan and merit-based public service that serves the government of the day, while at the same time staffed and governed separately from ministers. In order to take that seriously in the current context, we have to think about how we encompass the deputy ministers within the fold of the professional merit-based public service. They should be part of it — they are now prime ministerial appointments — and we should think seriously about how to do that. I think there are ways of doing that and I can speak of those later.
The fact that deputies are the link between ministers and the rest of the public service does not require that they be appointed and subject to removal or reassignment by the prime minister. To me, that seems to be a red herring in this case. The independence of the public service is intimately tied to improving the accountability of the public service, which is intimately tied to improving our system of ministerial responsibility and accountability.
The Deputy Chairman: Thank you very much, Professor Aucoin. You have used the word "responsibility," and the phrase "hold to account." What do you mean when you say, "hold to account?"
Mr. Aucoin: To hold to account is the second half of the accountability equation. The people who do the holding to account are the people who are the ultimate authority in the system. For example, a superior holds a subordinate to account, or Parliament holds ministers to account. When officials come before your committee, it is your responsibility not to just accept their report and say thank you very much, minister, have a nice day, but to ask them questions. It is your responsibility to scrutinize them, to have prepared yourself to ask the right questions and then pass judgment about whether or not the account they have rendered to you is adequate. Have they adequately defended what they have done? Have they told you the full truth?
You are not a court of law, but you do pass judgment over whether or not you think they have fulfilled their responsibilities and exercised their authority, as they should have. In the case of the superior-subordinate relationship, that can lead to disciplinary action or sanctions or, on the positive side, to rewards, performance pay and things of that nature.
We tend to focus on the negative side because we use the accountability regime to ensure that power is not abused, but there is a positive side as well. The holding to account is the other side of rendering an account. Someone who has the delegated authority has the obligation to render the account.
The Deputy Chairman: Is "answerable to a superior" synonymous?
Mr. Aucoin: "Answerable" is a term that we use that is in many ways misleading. To some extent, it is simply another word for "account." You provide information, an explanation, but "to answer" can also mean that you defend or justify what you have done.
We have developed in the Canadian context the use of the word "answerability," to describe a situation in which a minister did or did not know about an action taken by his or her departmental official or officials. In that case, they are expected to answer questions about what happened and then decide whether what happened actually did happen and whether or not action is required.
Once they have been alerted to the fact it exists, then they have to start to give a full account, defend it or justify it or take action if they cannot defend or justify it. We tend to use the same term with respect to ministers talking about Crown corporations or regulatory boards in their portfolio where they answer to Parliament but do not attempt to defend or justify what a Crown corporation has done, for example. That is a separate set of issues and we can talk about that later.
It is also the case that we sometimes use the term to refer to what public servants do when they appear before committees. They give an answer. We say they do not give a full account because they should not be defending or promoting what has happened, except perhaps in the case of deputies who have to defend themselves. We have allowed that term, however, to become one of confusion in the context of the system because it creates a situation where we suggest that ministers are not fully accountable in exercising their authority.
There was a long debate at the Gomery commission with the Clerk of the Privy Council around the question of accountability and answerability. It is clear that at times, the distinction stands and at other times, it just collapses. It is part of the problem of a common language sometimes dividing us. If "answerability" means giving a full account, then in terms of English it would mean that. In terms of practice, it sometimes does not.
Senator Harb: "Legitimacy" intrigued me a bit. With regard not only to lines of authorities but also to reporting, to whom are ministers and deputy ministers accountable?
The difference between a deputy minister and a minister is that ministers have way too many bosses. For example, ministers are accountable to the prime minister, who appoints them. They are responsible or accountable to Parliament because, whether we like it or not, through the mechanism of confidence and non-confidence, Parliament can do much damage to the reputation of a minister should they choose to and therefore affect his or her position. They are ultimately accountable to constituents. We often have situations where constituents have a stake when a minister takes a position on an issue.
Deputy ministers have only two bosses, and ultimately only one, the prime minister. If there were a clash between a deputy minister and a minister, depending on the issues, I would bet 10 to one that if the deputy minister were right, he would prevail.
As the government is evolving as a democracy, if the prime minister were to appoint ministers who are not parliamentarians but have expertise and knowledge in a particular field, they would not have to worry about all of these other things that may from time to time conflict with their position as ministers. This would allow the minister to focus fully on the job. Would such ministers have any legitimacy? Would that serve democracy, as we know it?
Mr. Aucoin: As you say, ministers have a number of bosses: the prime minister, Parliament and constituents. However, deputy ministers have more than two bosses. They certainly have the prime minister and, to some extent, their individual minister, although I agree with your characterization. They also have to give an account to the Public Service Commission, if the Public Service Commission delegates staffing authority to them, which it now does, and it will much more aggressively hold them to account. They also have to give an account to Treasury Board, which gives them their authority. They are scrutinized by various agencies of Parliament, including the Auditor General.
There are variations in the Westminster system. If you are travelling to other countries, be aware that things can look alike when they are not. The Canadian prime minister is the strongest prime minister of all the Westminster systems. In Britain and Australia, ministers have a greater say over the appointment and removal of deputies. You could not characterize the situation in other places as you have the Canadian situation.
New Zealand has an independent process for appointing deputy ministers. Theirs is the model that inspires me to argue that we should have a more independent process of appointing deputy ministers. I would not recommend exactly the same process, but a process along that line.
In some jurisdictions, there are ministers who are not parliamentarians. There are northern European parliamentary systems where ministers are not parliamentarians. They are legitimate in the sense that they are appointed to hold that office and the government still operates under what we call the "confidence convention." It is a question of whether it is an effective way in which to proceed. We do have some ministers, from time to time, who, while they are parliamentarians, are not members of the House of Commons and therefore, do not have constituents. Members around this table have been ministers, and that is the fully legitimate in the context of our system of constitutional government. It can at times raise difficulties in terms of accountability to Parliament, but we have ways of dealing with that. In Australia, for example, there are powerful ministers from the Australian Senate, and they have ways of dealing with reporting to the two Houses.
In the context of the Canadian political culture at this time, however, I think that it would not be considered democratically legitimate to have the majority of ministers come from outside the House of Commons; neither members of the House of Commons nor the Senate. It is still possible that prime ministers can be senators, but that tradition is long gone as a real possibility in the context of our system.
I am not certain that your suggestion would necessarily remove some of the tensions that we have in the system. We already have senior administrative managers and deputy ministers.
Senator Murray: It could add new ones.
Mr. Aucoin: It might well add new ones.
The real difficulty with appointing experts in particular areas at the top of organizations is that, while there are always exceptions, they tend to turn out to be dangerous. They are dangerous because they think they know everything about their organization, and all specialists know that they have limited knowledge over the full range of issues in the area of their specialization.
It is much better to have a generalist at the top of an organization, and that is what the majority of our deputy ministers have become. They are generalist administrators. They are not specialists, per se, in the subject matter of their departments. That does raise an issue at times because it means you have to go down the hierarchy to find the substantive expertise in the department.
Many organizations have problems and it is exacerbated to some extent in Canada because of the degree to which, at least in the past, we have too often moved deputy ministers with considerable frequency. They are barely finding the executive washroom in a department before they are moved to another department. There have been some attempts to deal with that recently, but I have not seen the recent figures on whether the government has been successful in that regard.
The long answer to your question is there is a constitutional legitimacy to doing that, but it would be suspect in terms of a democratic political culture.
Senator Harb: Tell me a bit about the American system where there are non-elected secretaries. How does that affect the legitimacy of their democratic system?
With respect to your point that if the government appointed non-elected people, you mentioned accountabilities, but those people can still appear before parliamentary committees and before the House on a motion by the House should the House so choose. They can do all of that, and we do this from time to time on subject matter. In the other House, sometimes we used to bring in people from the public service to answer questions concerning legislation.
Leadership is to take people where they do not want to go, not where they want to go. Resistance is not a reason for the government not to explore it, and that is not to short-circuit Parliament. Parliament will continue to be a legislative entity that deals purely and simply with legislation. To a large extent, the executive and legislative are intermixed, where the executive is also in Parliament, in a sense. Some people would say that it is overpowering Parliament and diminishing the role of legislators as a result. There are those, perhaps in the minority, who say there should be a complete division between the executive and the legislative bodies of government, and, therefore create more substantive debates.
I know many people who want to abolish the Senate and have an elected democratic Senate that responds to the needs of the people, but in the absence of division between the executive and the legislative bodies, I will submit that the only legitimate body that does debate substantive issues is a Senate, such as the one we have now.
I would like your comment on that.
Mr. Aucoin: The first point is that the American system is not a different kind of parliamentary system, it is a different kind of system altogether. Parliament is not a weak Congress, and Congress is not a Parliament.
In the Canadian context, we elect our ministers so they can participate fully in the accountability process that occurs within the House.
It is quite clear, if you look at the American system, the degree to which secretaries do not have to participate in that accountability process in either of the Houses of Congress. It is so clear, if you compare, for example, Tony Blair's experience in the British Parliament over the Iraqi war and President Bush's experience in the United States. President Bush does not have to appear at all. In the American tradition, he does not even have to hold press conferences.
The accountability dynamic is greatly lacking in the American system because they try to use other devices to get at the same thing, and those other devices are that they share executive and legislative powers.
The Americans have a separation of powers, and that is confusing; they share powers rather than separate them. When the President appoints a secretary the Senate can veto the appointment. The same is true if the President appoints a member to the Supreme Court. The President can veto legislation passed by Congress. They share in each other's powers in a quite different way and this design limits the powers of government. The American constitutional system approaches the issue from that perspective rather than the accountability perspective.
It is incorrect to say that the executive overpowers the legislature in the parliamentary system. There is a certain sense in which the political dynamics of party government have produced great variations among the Westminster systems in this regard, but the government of the day is fully responsible to the House of Commons in all of the Westminster systems.
I do not think the system of responsible government is in any way broken in that regard. We create a mythic past that never existed when we talk about Parliament having greater control in the past. We have had majority governments since 1867, and if you think majority governments are the problem, then we have had them from the outset.
There was a short period in Britain between the 1830s and the 1860s when governments were defeated continuously without there being elections, so Parliament formed new governments. However, that passed with the solidification of the party system in the 1860s and particularly with the extension of the franchise, which made parties even more important.
There are important variations, and Canada has been seen to suffer to some extent in this regard. Australia, for example, has had a powerful Senate, which has greatly controlled the Australian government. The Australian House of Representatives is a weak institution, if you want to think of it in terms of being controlled by government. The Australian Senate, however, is now, for the first time in almost three decades, under the control of the government. People in Australia are now worrying about a government that can control both Houses, so some of the advantages of the Australian elected Senate system disappeared with the elections in July that produced a majority under the control of the government.
New Zealand was always considered to have a very weak legislature, but then it changed its electoral system to a system of mixed proportional representation, and now they have governments that have to scramble. A new majority coalition government was formed the other day, for example. They have had several coalition minority governments over the last little while, and, of course, that produces huge restraints on the government and brings the Parliament alive. In New Zealand, where it is only a single House, Parliament has become an important House. The legislative committees have become important because the government does not control them.
In Britain, there has been more of a tradition of parliamentary committees and government backbenchers exercising greater independence largely because it was assumed backbenchers could exercise greater independence without bringing down the government. Margaret Thatcher suffered many legislative defeats with little attention to those defeats, certainly in the Canadian press, because that was considered the norm in Britain. However, Tony Blair's government has imposed party discipline, and I do not know whether the Blair government has had any parliamentary defeats; certainly, it is only a handful compared to the Thatcher government.
The British system is changing in terms of the understanding. It is also, of course, partly a function of a large House of Commons. If you have a good parliamentary majority, you can tolerate 30 or 40 MPs who are "backbench deviants," if you like. In Canada, it has not been that close.
It is also the case in Britain that more MPs have safe seats. Prime ministers cannot exercise the same degree of discipline over them because they will be re-elected come hell or high water.
It is also the case, particularly under Margaret Thatcher and it is true in Australia, that party caucuses in those countries are able to exercise control. One of the forgotten things in the Canadian context is our prime ministers are powerful because their caucuses cannot get rid of them. They once could, but they no longer can. When the Liberal government turned to a national leadership convention to select Mackenzie King, he told his caucus right up front, "You did not elect me; you cannot dispose of me."
Margaret Thatcher could not do that. Within 24 hours, her caucus threw her out of office. Bob Hawke in Australia, who was as powerful in Australia as Thatcher was in England, was thrown out in the 1980s. He stayed with the party.
In New Zealand, David Lange's caucus deposed him.
Tony Blair survives in Britain, with all of his troubles over the last two years, because the British Labour Party has a process more or less like the Canadian parties. It would take the party eight months to get rid of him, and there would be blood all over the floor by the time he was gone. Notwithstanding the fact there has been strong opposition to Blair within the Labour Party, they do not have the useful device of getting rid of him within 24 hours, as the Tories were able to get rid of Margaret Thatcher.
In all of those respects, in the Parliament and the executive, the dynamic is different here in Canada. It seems to me the key thing in the Canadian context is the extent to which we have had the right kinds of processes for getting at holding government to account and competent people to be able to do that account.
Let me mention two things. I know that when Jim Mitchell was here, he talked about the capacity to enhance parliamentary committees. One of those things is the capacity to be able to really zero in on and use the questioning process to get at something. Those of us who have appeared before House committees find it frustrating; everyone gets their two minutes, and nothing can happen in that context. In the British system, the chair often asks most of the questions.
Canada has traditionally suffered from the fact that in parliamentary committees, particularly on the opposition side, there often are not a sufficient number of former ministers. The tradition in Canada is that when ministers lose, they leave. For example, on the present Standing Committee on Public Accounts, I think I am correct in stating that there is no one who has government experience. No one has been on the other side of the House, at least not in the federal system. Nobody knows where the bodies are buried. The British Public Accounts Committee, for example, is chaired by a former minister of the treasury, who is fully aware of what goes on inside government.
If you looked at the Standing Committee on Public Accounts first round of questioning on the sponsorship scandal, you could see they did not really know how the other side of government operates. Their questioning of Jean Pelletier, it seems to me, indicated that they had little ministerial experience. That speaks to the capacity of the House. You do not have in your parliamentary committees, particularly on the opposition side, people who have been ministers. They simply do not have the experience to ask the right questions.
Senator Mitchell: Dr. Aucoin, I thank you for your extremely interesting and balanced presentation. I have known of you for years. I studied political science at Queen's after you were there, and I have studied a good deal of what have you written.
I think I agree with you, and I think I want to agree with you, but I have a concern with the erosion of power in the political sphere, understanding the concentration of power within that sphere and differentiating the erosion of power. If we take power from politicians and give it to people who are not accountable to the electorate, then we run the risk of eroding democracy.
We tend to diminish the power of certain forms of accountability in our system. We diminish the power of the electorates' ability to hold government accountable. For example, the federal Liberals just lost a majority in the last election. That is not insignificant. Mulroney's government was reduced to two members. That is not insignificant. Cabinet ministers are defeated all the time. Members of Parliament are defeated all the time. In a sense, the risk we run is that we diminish that because we think that committees and Parliament are not properly holding ministers accountable. We actually want to give committees and Parliament more power over yet another person, a deputy minister, if that is what you are saying.
I do agree with you that we do not need the model used in the United Kingdom, but what you are really saying is that we need to look, in a large part, at the role of the deputy minister and at the deputy minister's independence.
How would you hire the deputy minister in a way that would enhance his or her independence from being partisan or political? How could you do that without taking away the minister's or prime minister's ability to manage the deputy minister?
Mr. Aucoin: I fully share your concern about the importance of democratic control, especially through the electorate. I underline the important point you make about the electorate holding government to account in the several ways in which you have mentioned it. Electorates have done that and clearly do it, which is one of the reasons I think our system actually works and is not fundamentally broken in that sense.
I do not want to give the impression that it is fundamentally broken in any of those ways. I am not making any recommendations to change our system of ministerial responsibility or responsible government.
I think it important that we not take authority away from politicians unless there are very good reasons to do so, and we do that in some respects. We take power away from politicians when we establish quasi-judicial administrative agencies, and we think it is in the public interest that they do not do that. Politicians usually establish them because they think it is also useful that they involve themselves in those things.
We have established independent staffing of the public service because we think it is in the public interest to have a national institution. I think it is clear that the evidence everywhere shows that is the case.
The political systems that have politically appointed staff run a grave risk. One has to go no further than looking at the effects of the hurricane in New Orleans to see what happens when political appointees who are not professional public servants are appointed to head agencies such as FEMA.
One takes power away from the democratic process with great caution and when it can be fully justified. I would like to emphasize that I do not think that what I have been referring to in any way is a case of taking power away from politicians, because the powers that I think deputy ministers should account to Parliament for are powers they already have. The decision has been made that it is important that deputies have these powers over financial controls.
Senator Mitchell: Why are you saying it is different now?
Mr. Aucoin: The important thing is to fill the gap. To say that deputies are accountable to ministers for the exercise of those authorities is, to my mind, to establish a gap. The minister cannot account for the deputy's exercise of those authorities in the House. They are not the minister's powers; they are the deputy's powers.
We have created a black hole of deputy minister accountability if we think the minister is accountable for a deputy's exercise of powers. I am not talking about the deputy's exercise of powers delegated by the minister. In those circumstances, the old system still stands.
We have to fill the gap. It is not a big gap, but it is an important gap. If you look at the issue of the sponsorship scandal, contrary to what some people have said not to you but in other places dealing with that issue, the deputy minister accountability would not have dealt with the sponsorship scandal. The deputy should not have allowed the organization of the department under Charles Guité to operate in that way. That broke all the rules of public administration 101. That was not the minister's authority, but the deputy's authority.
The deputy should not have allowed a political aide to be appointed in the system. Today's Globe and Mail referred to that interference. The deputy should have said, "No, it is my authority, and I will do it differently." Did the deputy have the authority to do that? Yes he did. If the minister insisted, the minister could not override the deputy on those matters. These are authorities under them.
In the Canadian political system, the great advantage we have had is that we have at the federal level a professional public service that has tried to be responsive to ministerial direction and control. We can compare our system to Britain, Australia and New Zealand, where the tradition, particularly in the post-war period became one of the public service seeing itself as almost independent of public servants.
If you are familiar at all of the British television comedy called Yes Minister, you will know that to some extent that is actually a documentary of the British public service or the Australian public service or the New Zealand public service. It was not a documentary of the Canadian public service.
There are politicians who have had problems with the Canadian public service, but it has never tried to be independent in the way the others have been independent. The advantage in our system is that it makes them responsive to direction. The disadvantage is that they can cross the line. I think, in this case, the line was crossed. They went from being responsive to doing things improperly and it is now all coming out. That is why I say the pressures of the new public management are getting at that.
We have established a good system; however, we have allowed a little gap in the system, and I think we should fill it.
How do we hire deputy ministers to be more independent of the political process and, therefore, to send all the right signals down into the public service?
I think we should transform the clerk and the committee of senior officials, with perhaps a couple of outsiders, into a committee or a commission to appoint deputy ministers, preferably from within the system but even from outside the system as needed. That system now operates in terms of giving recommendations to the prime minister, which are usually followed. I think the way in which it should operate is that the clerk and the committee, which is a committee of senior deputies, with some outsiders to ensure against bureaucratic favouritism and cronyism, should actually make the appointment, but there should be a democratic veto. That is, the prime minister and the cabinet should be able to turn down an appointment. If they turn down an appointment they should have to state that publicly, but they should be able to do it.
That is the New Zealand model, except that in New Zealand, instead of a committee there is a single person. None of the systems is perfect, but it has worked well in New Zealand. Ironically, New Zealand has the most independent public service. Everywhere, and for good reason, there are concerns that the public service is becoming too enthusiastic and too drawn into the political vortex of the day. It is all of those pressures that I have talked about. It is occurring in both Britain and Australia. The pressures exist in New Zealand, but they have been able to thwart them to some extent. It is also occurring in the Canadian context. To the degree that we want to continue to have a professional public service that goes right to the top — and we have always assumed it did, because of our tradition, at the federal level but not always at the provincial level — then we have to think about how to institutionalize the informal conditions of the past.
Senator Mitchell: One assumption under much of this discussion in this area seems to come down to this: Unless someone is blamed and fired, responsibility and accountability have neither been addressed nor fulfilled. Yet, on the other hand, if a minister or a prime minister, for example, discovers a problem and takes responsibility, and takes steps to fix that problem, that should be seen to fulfil both accountability and responsibility.
An extreme case perhaps, is the particular scandal involved in the Gomery inquiry. The problem was discovered and then brought to light, and the prime minister has taken a litany of steps to fix the problem. He has fulfilled both accountability and responsibility. We could list many things, from appointing Gomery, to stopping the program, to setting up comptrollers in departments, to restructuring the ethical and conflict of interest guidelines in the House of Commons.
Within that context, you have identified the issue with the deputy minister, in the Gomery situation. You have established an argued that that deputy minister — and this involves allegations at this point — had the power to do what should have been done, so we do not need to change any of that.
What would we change in that circumstance? Are you saying that, in this hypothetical circumstance, the deputy minister should have been fired? Are you saying that if the minister or the prime minister responsible did not fire that deputy minister — maybe someone will be fired after Gomery — that, somehow, a parliamentary committee should have the power to fire that person?
If that is the case, how does the public ever hold a parliamentary committee accountable? When you hold a minister or a prime minister accountable, you vote either for him or against him. Who are you voting for or against on a committee? If you do not like how the committee is being run in holding that person accountable, how do you express your electoral accountability?
Mr. Aucoin: The electoral accountability operates through our system of elections. You do not get at a parliamentary committee, but you do not get at a prime minister, either. You can get at the entire government by casting your vote along party lines.
Senator Mitchell: We got it with Brian Mulroney.
Mr. Aucoin: Yes, we got it with Brian Mulroney by not electing Conservatives. Unless you lived in his constituency, you could not vote against him. The same holds true with a parliamentary committee.
Let us back up. The assumption is that unless someone is blamed and fired, accountability is not fulfilled. I agree with you that that assumption is often made when what you really want to do is fix the situation. When you want to fix a situation, it is because there is a problem of administration or of management that needs to be fixed. It is not that someone made a mistake. If someone makes a mistake, the last thing you want to do is fix the administration system. Mistakes are made all the time. Too often, we have a knee-jerk reaction; we fix the system and it is just a simple mistake that will not recur.
I do not think you should underestimate that there is a need to blame and to fire, to use your words, in the sense that there is a need to identify who is responsible for a situation and that sanctions be applied, whatever they are, for example, firing or loss of reputation may be sufficient. To the degree that the public or others are concerned that we do not do a good job in singling that out, I think there is a legitimate concern. People really do want to know not only that the system needs to be fixed and will be fixed, to the degree it needs to be fixed, but also how did this happen and who is responsible?
In this particular case, I think that is legitimate. At the end of the day, if electoral accountability is to operate as you say, you want to know: Do we take it out on the Liberal Party or on the present government?
The commission will obviously help enormously, but here is where some of the confusion arises with respect to the issue of deputy minister and ministerial accountability.
The Standing Committee on Public Accounts issued a report stating that there is a problem in the accountability system, but it was not able to identify who was responsible for causing the difficulty. Leaving aside that they could not get at some of the problems identified by the Gomery commission, that is surprising. The reports identified the people who were responsible. The fact that nobody came forward and said, "I did it, I did it," is like the price of tea in China. The committee identifies the minister, former ministers and former deputies. It is all out there and what they did is all out there. They passed judgment on what these people did or did not do in the circumstances. For them to then say, "We have to have the system of the accounting officer because we cannot hold the deputy minister accountable," is questionable. I am sorry, but, as I scratch my head, the deputy minister in this case, plus other officials, were identified. They were said to be at fault, they were blamed and their reputations have taken major hits. What else would ever happen? They cannot fire these people. In some cases they are retired, in any event.
What are we trying to fix in the Gomery commission?
We have to clarify that deputy ministers are giving accounts. We do not need to institute the accounting officer scheme to have accountings but we do have to remind deputy ministers, committee members and Parliament that this is working. If a deputy wants to claim that the minister told him to do it, the appropriate response would be to say that the minister did not have the authority in the first place. A minister without authority is akin to someone walking in off the street and telling the deputy to do it. Would he listen to that person?
Is the minister or the deputy minister responsible if the deputy follows the minister's orders? The deputy minister is responsible because he had the authority. It does not matter what the minister told him. This is the point about holding people responsible. If they have the authority, then they have to accept responsibility for what they do. If a minister has authority and a public servant acts without the minister's knowledge, then it becomes a case of the minister saying that he did not know about it and looking into the matter to take further action if he finds a problem. Once the minister knows about it he becomes fully accountable for everything he does from that point on but remains unaccountable for what happened in the past because he did not know about it and could not have been expected to know about it.
When we know what has happened and who was in authority, as in this case, the deputy minister cannot simply say that the minister told him to do it because that would be a meaningless concept empty of constitutional position on the particular issue. The deputy either had the authority to do it or did not have the authority to do it. When the deputy has the authority, the deputy bears the responsibility. When the minister has the authority, the minister bears the responsibility.
In this particular case, we are trying to make that clear. It seems to me that we have to build some protocols around this issue. We have to clarify what deputies can answer for and what they should be expected to justify in terms of their behaviour. Some of these instructions are built into the system but we have to make improvements. This comes back to the capacity of committees. In particular, chairs of committees must learn how to control members of their committees from going after people who cannot give full accounts because they are public servants. Committees have to be able to instruct certain witnesses, such as deputy ministers, that when the matter falls within their jurisdiction, they must give a full account and if they do not give that account, it will be held against them.
Senator Comeau: Professor Aucoin, it is always a pleasure to hear your presentations.
I used the term "black hole" and, after listening to your testimony, I find that indeed there is a black hole. Some of us have been under the impression for years that there was a concept of ministerial responsibility such that a minister, when something like an Adscam occurred, would take action that might include a resignation, a firing or something else. Historically, that was expected to happen. There seems to be a growing public perception that once the damage in the system is uncovered, there is no responsibility taken or accountability proffered. Frequently those breakdowns are discovered by either the Auditor General or by someone requesting basic information under the Access to Information Act rather than through the parliamentary system.
I sense that parliamentarians have not been using the power that they have to hold ministers and deputy ministers to account. Rather, the government has dropped the concept of ministerial responsibility and adopted a system of responsible government. In other words, Parliament will do what it wants for three or four years and, after three or four years, the Canadian public can decide through an election whether they want Parliament to continue. It becomes more a case of responsible government rather than responsible ministers, and the results we have bear out that concept. Would you agree?
Mr. Aucoin: No, those are perceptive comments, Senator Comeau, to be expected from a fellow Nova Scotian. Great damage is done to the system to the degree that the parliamentary process does not glean out some of the major issues that we have faced. You are right in saying that if it comes from the Auditor General, even though the Auditor General is an agent of Parliament, or if it comes via the media obtaining things through the Anti-terrorism Act, then it looks like the main accountability form — Parliament — is not up to the task. Two things have happened here. The first is as you said, senator, that it is easy for the government to use the confidence convention of responsible government whereby it was elected by the people, therefore the people can decide; and in the meantime, please go away.
There is an element of that creeping into the system. The difficulty is that the government can get away with it as long as it is in a majority position. It is a little different when government is in a minority position. It has been exacerbated by the degree to which our Parliament has not developed greater capacity to extract accounts from ministers. For example, the estimates' process has just collapsed in this country. There is no significant examination of the estimates, where one would expect a serious examination of past administration where many of these things would arise.
Other political systems are not perfect in any respect but all three of the other major Westminster systems do a better job than we do in that respect and they do it for different reasons. It will be interesting to see whether a new Senate controlled by the government will make a major difference in Australia's system where the key had been the estimates committee. The House of Representatives in New Zealand does not do a better job than the House of Commons here but the Senate in Australia does a better job of independent inquiries that the government does not want done. Last week there was the first instance of a major report criticizing what has been their sponsorship scandal that occurred in their immigration department. Information controlled by the opposition has been released by the Senate. A member of the Senate in opposition trying to get a new inquiry around matters of the new workforce legislation was simply voted down by the government.
There is a reason why that the capacity does not exist, and you have clearly identified that the government can ignore Parliament. Parliament has not been able to exercise, for various reasons, its capacity to hold the government's and ministers "feet to the fire," so to speak.
Senator Comeau: When I talked to you briefly prior to this meeting, I mentioned that in my capacity as a senator I focus my efforts on two issues: official languages and fisheries, which I have been doing for years. During those many years, I have come to know the acts and statutory instruments a bit better than I would if I only dabbled in committee work occasionally, yet I still sense that at times I do not have the required expertise to hold either a minister or deputy minister to account. That leads me to the question: Should parliamentary committees have access to resources such as, for example, someone with your expertise, Professor Aucoin, to look at the system and help committee members prepare their questions for a day's testimony by a deputy minister? I ask this in terms of Adscam because I, too, listened to some of the questions asked by the Standing Committee on Public Accounts with which I was not very impressed. Had they had the benefit of a briefing by an expert on the subject, they might have done a much better job of their study.
Should we consider the idea of resident experts attached to the committees, notwithstanding the excellent help that we have from the Library of Parliament researchers?
Mr. Aucoin: It is very important that any organization that is doing scrutiny and questioning have the requisite capacity, and that includes having a staff that can do the work to support that capacity. In the Canadian context, virtually everyone recognizes the need to enhance the staff members and the resources extended to them. It is best to have full-time staff that can specialize in these areas, but there are two other important elements.
First, if the process is not right, the staff will not be used to its best advantage. You have to have a committee that knows how to use the staff and often, in the legislative process, MPs or senators who do not know how to do that. The process must be right.
Second, one of the difficulties in the Canadian case is the high turnover of Canadian MPs. This goes back to the question of electoral democracy in Canada holding people to account. While there have been some exceptions and a bit of slow down recently, on the larger scale Canada is greatly removed from everyone else in terms of people having parliamentary careers. It is not just that we are somewhere in the spectrum. We are a real exception. Our MPs tend not to be knowledgeable because they are amateurs, and they are amateurs because they come and go with such great frequency. In all the other systems, people who have been there for a long time do the significant committee work.
There is one other dynamic in the process and that is, although I hate to use the word "culture," the culture inside the institution. A sufficiently critical mass of British MPs have taken it into their heads for many generations that holding the government to account is important, that it is why they are elected. Canadian MPs do not have that view. Survey after survey shows that Canadian MPs put that so far down the list you may as well not count it. They believe that constituency and policy work is more important than holding the government to account. That view was beautifully expressed in a committee that I believe Reg Alcock chaired on changing the estimates. An expert witness explained why MPs should be examining the estimates and looking at past accounts. One MP asked if that meant they had to look at history. That tells the whole story. They are not interested in holding the government to account; they are only interested in their involvement in policy or serving constituents, which they see as important stuff. Most MPs turn to constituents after the door shuts on the policy side. Once they are here for a little while they realize that they are not in Washington, but here in Ottawa, so they turn to the constituency side. That is important, but a minimal role.
I did not get into some of the details in terms of greater use of specialized committees to hold public servants to account. We must do two important things in terms of holding deputy ministers to account. We need committees that can do that well, particularly around issues of public service management. We have suffered from not having dedicated committees on public service management in our system. There are committees on this elsewhere. We do not have this, although some committees try to do bits and pieces of it. In particular, in dealing with deputy minister accountability, we need to have protocols and that means that the committees that do this have to be good.
One thing that could easily offset some of the things I have talked about is greater use of House and Senate joint committees. The question of deputy minister accountability when talking about preserving the independence of MPs, having the right protocols in place, et cetera, cries out for a joint House and Senate committee. We could develop the required expertise and experience so that these committees could play their roles properly and play down unnecessary partisanship. In this way, we could develop something along the lines in the British system of accountability. Although we must not overestimate it, the Committee of Public Accounts in Britain has the sense that it is important to hold officials to account without grandstanding and that it is an important public responsibility of MPs to do this.
We could develop some of that culture in a joint Senate and House committee and that would be very effective for advancing the cause in Canada.
Senator Ringuette: It is very nice to hear from you, Professor Aucoin. You have dealt more with the reality of operation than the theory of it.
In your brief, you state that ministers have the authority and the responsibility. You also state, on the other hand, that deputy ministers have statutory authority and powers that are delegated by Treasury Board guidelines and those deputy ministers can overrule ministers.
I heard yesterday about a situation within Fisheries and Oceans Canada where officials have exercised a lot of leeway with regard to travel expenses. In reality, because of the parliamentary system, the minister would answer questions on such issues in the House of Commons. However, the authority and responsibility with regard to non-political staff expenses rests on the responsibility and powers of the deputy minister.
Nowhere yesterday did we hear, from parliamentarians asking questions or the media asking questions, any indication of the deputy minister's responsibility and his delegation of authority to the assistant deputy minister and so forth for this kind of check and balance in the system. The only figurehead in this issue is the minister who has, as you said earlier, no real authority or power because whatever authority and power he has in this regard can be overruled and is actually under the power of the deputy minister.
How can you reconcile that situation? I agree with you that we need to fill the gap. I find that the gap in the system is the accountability of the bureaucracy. There is a definite need for the bureaucracy to be accountable. I also tend to agree with you that in the current minority Parliament it is not evident that committees will require deputy ministers to be that accountable, because they do not score political points with regard to the opposition to do so.
I do believe that the area on which we need to reflect is the area of bureaucratic authority, responsibility and accountability where I do not think there is a real process.
Perhaps another comment that I would like to refer to is on page 4 of your brief, where you say that pressure increases the power at the centre under the PMO — and I would include PCO and political aides. However, in item three you say that there is an increased effort to politicize staffing in the public service.
I completely disagree with you because last week the Public Service Commission report said it did not find any evidence of political interference in the public service. However, in a special audit, it found bureaucratic patronage alive and well in the public service.
I would like to have your response to these comments.
Mr. Aucoin: I will start with the first, which is a very important point. I do not think I said that the deputy minister overruled the minister; I think I said the minister could not overrule the deputy minister in these regards. However, the example you raise is a classic case.
If officials in a department are abusing or misusing travel monies, that clearly is a matter that could be sent to the minister. Sorry, you could ask the minister whether the rules governing the travel monies, as laid down by the Treasury Board, are sufficient. In this case, I think if you look at the rules, you will see that there is poor administration of the system.
In this case, it is clear that you have to ask the deputy minister. These are matters of financial control in a department and are clearly under the deputy minister's authority. Deputy ministers should be called to account for the performance of their departments. To some extent, we do that, but we do not do it very well. In other systems, they do it better, particularly with items such as travel accounts that tend to be popular with politicians.
We are dealing with a situation where the minister has authority for the general management of a department and programs and the deputy has that authority. You asked how to reconcile that situation. There are two ways to do that. One would be to delete the deputy minister's authority and give the ministers authority for all aspects of financial controls and administration. I cannot imagine that we would want to delete the deputies' powers to staff, but you could do that.
You could say no, we have assigned or delegated those powers to deputies for financial and human resource management for good reasons; therefore, we are not going to delete them. Instead, we will have to do a better job of holding deputies to account. You are not going to drag every single public servant before a committee; you have to get to the person who can manage this — it is back to your "fix it."
Inside the system, there are ways of imposing discipline on those who have not lived up to their responsibilities. As you may note, the new Human Resource Modernization Act takes the authority to discipline away from the Treasury Board and gives it directly to deputy ministers.
That is another reason for having a good public service administration committee in Parliament, perhaps with a joint committee, because you might want to have that committee meet in camera in some cases. You could haul the deputy minister in front of you, find out whether the appropriate discipline has been imposed, and reassure the deputy that you will keep the testimony in confidence. In that way, you could assure Parliament publicly, without getting into the details that things have been taken care of satisfactorily.
That is the way you reconcile that situation. The system is already in place. We are not talking about taking powers away from ministers. If it is a matter of changing the law, then ministers can be asked the question. As you point out, the opposition goes after ministers because that is where it scores political points.
In the context of our parliamentary government system, we try to achieve two things: we want to have good politics and we want to have good government. Too often, we forget about the importance of good government, which is Parliament bringing public servants in front of committees so there is a good accounting for administrative stuff that does not get on the front pages of The Globe and Mail unless it is a scandal. That is important.
In terms of the question of an increased effort to politicize staffing in the public service, The Globe and Mail today points out the politicization that occurred with respect to the appointment of Mr. Campbell to replace Mr. Guité. That is as straight politicization as there is in the system. It also is complicated by the fact that alone in the Westminster systems, we have the possibility of political staff going into the public service on a priority basis.
In terms of the public service commissioner finding no evidence of this and finding evidence of bureaucratic patronage or favouritism, I agree with you — clearly, I cannot disagree because that is what was said. However, the issue is that if you go around and talk to senior public servants in all jurisdictions, there is increased pressure to politicize appointments.
Much of it is not partisan political appointments, although there is some of that. Much of it is what we would call "prime ministerial personalization" or "ministerial personalization." Ministers want their own people in those positions. The appointments often come from the public service, but the appointees are generally people with whom the prime minister or the minister feels comfortable. In confidential interviews, senior officials, including those who make the appointments, tell me that all the time — and they will say it has changed. There has always been that pressure in the system, this is not entirely new, but they will say the pressures have increased tremendously.
That is one reason why you see these people who are enthusiastic about the government. As a former secretary to the Australian cabinet pointed out to me, the real problem is the number of junior public servants who want to show how enthusiastic they are about government policies so that those who make the appointments will single them out. In many cases, you do not have to talk about ministers knowing whom they want; it is clear they have already been identified in the system. Those pressures are to be expected as long as prime ministers, ministers, or some combination makes the appointments. That is why I argue that we have to move to a more independent system. It is natural it will be that way and we must protect the public service in that regard.
In terms of the increased influence of political aides, this complicates the issue. They are part of the pressure — you can see that in spades through the sponsorship scandal — but it is not just that. In all of the other issues that have been identified in recent years, you can see that through the piece.
Some jurisdictions have gone further than others. In Britain, Tony Blair went so far as to give his political aides the power to issue instructions to public servants. If you followed one of the incidents over there, where David Kelly committed suicide, he was in that area. Eventually, Alistair Campbell, who was the first aide to get the power to issue directives to public servants, resigned.
They have really mixed up their political officials and public servants in the British case and these paradoxes occur in the system. On the one hand, you have pressures for new public management, which is devolution of authority to public servants, and on the other you have what I call the "new public governance," or these concentrations and recentralization of power.
Senator Ringuette: As a closing comment, in regard to appointments, you are evidently not talking about the same kind of appointments that I am. If you look at protecting the public service, last year it hired 35,000 new employees and only 26 per cent of those new employees were from outside and from a competitive process. That means that 74 per cent of last year's new public employees — casual, term and permanent — were hired through the back door from the bureaucratic patronage within the system.
How can we be expected to protect the public service? I agree that in comparison to other jurisdictions, our public service is very competent and supplies good service to the public. However, there are some weaknesses in the system that have to be taken care of, and that is one of them.
I would also like to add that there is not an increase in political aid. I remember that in 1993 when I ran in an election my opponent who was a minister had a staff of 56. At that time, that seemed to be the norm. Today there is a maximum of eight political staff for each minister, and the lack of adequate staff likely causes some of the problems.
The Deputy Chairman: Thank you very much, and can we treat that as a comment as opposed to asking Professor Aucoin to reply?
Senator Ringuette: Yes, we can.
Senator Murray: I have a number of observations on which the witness may or may not wish to comment.
First, I want to say a small word in defence of the practice of allowing some preference to former political staffers to get into the public service. It may well be that we need parameters and a special process to try to prevent abuse, but I state, on the basis of long observation, that the experience in this country and in the federal government has been mostly positive.
There are some very fine senior public servants presently serving in the Government of Canada who got there through that route, having served either in Liberal or Progressive Conservative governments for various ministers. Therefore, I would not like to see it simply jettisoned, as some suggest.
Second, let me just say a word about caucus because you raised it. It is true that beginning in 1919, first the Liberal Party and then other parties moved from the practice of having leaders selected by the parliamentary caucus to national conventions. That was done for very good reason, which has to do with the perceived need for leaders to have a national base of support in this country.
However, we should not pretend that the caucus has completely lost its authority over leadership. The residual power, so to speak, is still there. If you saw or heard the documentary on both CBC and Radio Canada having to do with the circumstances of the 1995 referendum, it is clear that senior people in the Liberal Party, and, indeed, senior cabinet ministers were prepared, in the event of the "yes" side winning that referendum in Quebec, to move Mr. Chrétien aside and replace him with a non-Quebec prime minister. They were prepared to contemplate even reorganizing the government into a national unity government.
The power is very much there, and no prime minister who loses the confidence of his caucus will survive long. I will go farther and say no cabinet minister who gets on the wrong side of caucus on any continuing basis has much of a future either.
It is true that what people see is the excessive use of a party discipline system in our system. The whips have far too much influence and are too uptight in trying to get every parliamentarian to vote the party line on every division.
What people do not see is that at any given time in this town, there are perhaps as many as half a dozen government initiatives, policies or pieces of legislation hung up because the caucus has not agreed to them. Therefore, there is still considerable authority and power in the parliamentary caucus, but most of it is in fact below the radar screen. One of the problems here is what they call in Britain "the payroll vote." The prime minister is able to select not just ministers and parliamentary secretaries but also, caucus chairs and so on. If you look at it, you will find that most of the backbenchers are in receipt of extra pay for these duties, so it gives the prime minister a great deal of control.
Third, the question of political staff, which you have mentioned, needs serious examination, and I wish someone would give it that. I am fairly sure that in the instructions to ministers when they are sworn into cabinet, there is a chapter about political staffs, how they are to be recruited and what standards they are expected to meet. The fact is that ministers need political staff. They need personal staff, if only to shield the public service from involvement in matters not properly those of the public service.
We have to consider the relationship between the political staff and the public service, which, as you have suggested, is a problem in the U.K. It seems to me to be a no-no that any ministerial staff should give directions to the public service. That is the minister's and deputy minister's prerogative.
Another serious question to look at is the extent to which ministers share information with political staff. I do not mean just cabinet secrets or security matters, although those are problems, but also other information of a competitive nature. Political staffs are the people fielding the calls from lobbyists and pressure groups, et cetera. Something needs to be done to codify the limitations and the role, generally, of political staffs in our system. In some case, these are the people who are fielding the calls from lobbyists and pressure groups, et cetera. There is a great deal of turnover, as you know, and they come and go between minister's staffs and lobby firms, which in itself constitutes a problem.
Fourth, there is the question of the accountability of former ministers. We have to find a way around what seems to be only a conventional prohibition against convening former ministers or deputy ministers to come and explain what they did on their watch. I do not know what the rule is. I understand why they cannot be questioned in Question Period, but a committee should be able to convene them. We will have to build parameters around that, so that in the event of a change of government it just does not become good sport for the new crowd to be convening former ministers at parliamentary committees. That could go on forever. We have to formalize some measure of accountability of former office holders given the fact that there is such a revolving door in cabinet and in the senior ranks of the public service. Otherwise, we will never be able to get to the bottom of anything.
Fifth, I have the impression that in Canada there is much more accountability on the part of deputy ministers to Parliament than in other countries. I believe that in the U.K. the senior public servants appear before one highly prestigious, as you pointed out, senior public accounts committee of the House of Commons. Here, there are committees, and this is one of them, where we see much more of the deputy ministers than we ever see of ministers, and we convene them regularly. There are other committees as well. The Standing Committee on Official Languages has been doing this for 25 years.
I am with you when you say that deputy ministers should be held accountable by Parliament, certainly, for the statutory powers that are theirs and probably also for the delegated powers. I have some difficulty with the proposition that you and Professor Jarvis have made elsewhere, to the effect that deputy ministers would not expect ministers to accept responsibility for decisions that fall within the deputy's sphere of authority and responsibility.
I have difficulty with that one because I think that would lead to a lot of "after you, my dear Alphonse," routines between the minister and the deputy minister. The Standing Committee on Official Languages is one committee that comes very quickly to mind.
The deputy minister has statutory responsibility but the minister can and does influence the whole climate and culture of the department. I think the minister should be held properly responsible in a political sense, not just, as to whether his deputy has complied with the letter of the law but whether the spirit of the law is properly observed as well, and for the general policy climate in the department.
That is all I have to say for the moment. That is probably too much. You may or may not want to comment on one or more of those points.
The Deputy Chairman: Thank you, Senator Murray. I am mindful of the time. It is coincidental that we talk about caucuses because we all have to go to them very shortly.
Honourable senators, because we are out of time, and both Senator Ringuette and Senator Murray's comments were very extensive and very valuable to get on the record, if Professor Aucoin would like to correspond with us on any of these points, we would be very interested. You might already have thought about some of these and you could refer us to the extensive work you have already done.
I did want to mention that Senator Segal has joined us. I am sorry we have run out of time and cannot give you an opportunity to ask a question. Senator Mitchell, you were on a second round. It may be we will have to ask Professor Aucoin to come back on another occasion. For today, sir, I would like to thank you very much for being here. It is very obvious that this was a session very much appreciated and enjoyed by all of us. Thank you.
Honourable senators, we will not be meeting tomorrow. We meet next Tuesday at our regular time slot. I understand that there is a possibility we will not be meeting next Wednesday as well, because the Speaker has invited us all to get together. You will be notified of that in due course.
The committee adjourned.