Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 4 - Evidence - Afternoon meeting
OTTAWA, Tuesday, September 5, 2006
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, met this day at 1:05 p.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: Honourable senators, I would like to call this meeting of the Standing Senate Committee on Legal and Constitutional Affairs to order. We are continuing our study of Bill C-2 more commonly known as the federal accountability bill.
As senators, witnesses and members of the public know, this bill reflects a central portion of the new government's agenda and is one of the most significant pieces of legislation brought before Parliament in recent years. I know that the committee will give the bill the extensive, careful and detailed study that it deserves.
Our hearings, which began in June, will focus on accountability, ethics, conflict of interest and political financing. Our hearings will continue into the next few weeks and will focus on other important aspects of this bill. For this meeting we will focus on the question of accountability, a question which Mr. Mitchell and Mr. McCandless discussed here this morning.
Joining us this afternoon are two distinguished individuals. Our first guest hardly needs an introduction. Few authorities on the public service are more eminent than professor Ned Franks. Professor Emeritus at Queen's University, Mr. Franks is one of the nation's foremost parliamentary and constitutional experts. Mr. Franks worked as a senior research advisor to Justice John Gomery.
Mr. Franks is joined by another eminent professor, Peter Aucoin from Dalhousie University. Mr. Aucoin, whose teaching and research have helped shaped government policies and inspired civil servants, is one of Canada's most respected political scientists. Mr. Aucoin has taught at the Department of Political Science at Dalhousie University since 1970. He is recognized both nationally and internationally as a leading theorist on the practice and reform of the public service including governance of the federal cabinet and political parties.
This committee is honoured to have these witnesses appear this afternoon.
[Translation]
On behalf of the committee, I want to thank you for joining us. Without further ado, I will turn the floor over to you. The ensuing questions and discussion should prove quite beneficial to committee members.
[English]
C.E.S. (Ned) Franks, Professor Emeritus, Queen's University: Thank you. The act is so big that I do not know of any single person who can digest it. I certainly have not and could not. I am focusing my remarks on responsibility and accountability in it, but I shall digress.
To be positive, I consider the proposed act to be a tremendous step forward in responsibility and accountability in the Government of Canada. The reason for that lies, in a gross error in the thinking of the Government of Canada, up until this act, that ministers were accountable to Parliament for every single thing that went on in their respective departments, whether the ministers had the statutory responsibility or not. It is very clear that acts including the Financial Administration Act and others assign responsibility for management and very important areas not to ministers but to deputy ministers. I believe that the government's refusal to acknowledge that ministers cannot account for those management responsibilities and deputy ministers must account for them, has led to a lot of the confusion and mess uncovered by the Gomery commission.
In this area, the Gomery commission recommended that deputy ministers be held accountable before — not to, but before — parliamentary committees for their administrative responsibilities. The act, I believe as revised by the House, states that they are accountable before committees of the Senate and House of Commons of Canada. It identifies the two Houses, and I think that is significant. I will return to that later.
To contrast the French terms of reference of the Gomery commission with the English, the English says "the respective responsibilities and accountabilities of Ministers and public servants.'' The French version says that much more cleanly, "la responsabilité des ministres et'' "sous ministres'' I think it is. In other words, responsibility in that sense involves accountability, and I firmly believe that. You cannot have responsibility in any real sense without having to be accountable for it in one way or another, and you cannot be accountable for things that you are not responsible for in the sense of having the duty to ensure that they are handled properly.
There are other meanings of "responsibility.'' The one I find most useful is that in which a mother might say to several children, "Who made this mess? Who is responsible for it?'' The other meaning of "responsible'' is in the sense of acting in a responsible manner, which is ultimately how we want government to behave. The question is how we get there.
Within the federal accountability act there is what I consider a profound change, although others may disagree, in the accountability of public servants and deputy ministers in particular. It says that deputy ministers will be designated as accounting officers and, as accounting officers, they will be accountable before the committees. "Accounting officer'' is a term from the British system, which the Senate committee has, of course, looked at. In that system the deputy ministers have to defend in their own right what they have done.
A further problem is that although we can change the formal statutory statement of accountability, we still have to make that into an effective operating system. I believe a real problem in Canada is that deputy ministers stay in office for too short a period of time and that they are appointed in a rather obscure and hidden process, which I believe, puts more of the onus on the Prime Minister than other parliamentary systems.
We have good ground for concern here. In the 20 years between 1985 and 2005, Canada has six clerks of the Privy Council, eight secretaries of the Treasury Board, 10 deputy ministers of industry, 10 of the environment and nine of Indian affairs. The average stay of a deputy minister was a little over three years. In July of this year, nine of the 22 deputy ministers, or 41 per cent, had been in their current position for less than seven months, only one had served more than three years, and the average time in office was 1.7 years.
Former Clerk of the Privy Council Gordon Osbaldeston made a study of accountability. One of the very interesting comments in his review is that it takes two to three years for deputy ministers to come up to scratch in a department. If we accept that as three years, we only have six out of 20 deputy ministers at present who have been in office long enough to be running their ministries effectively. In fact, Mr. Osbaldeston found that chief executive officers in private business were astonished at the turnover rate among deputy ministers and could not understand how government operates under such conditions. I will leave that hanging as Professor Aucoin will say more on that subject.
I will digress to matters that relate to responsibility and accountability including the proposed public appointments commission. That commission, which was initially presented in the House, has vague terms of reference. It states "the government may appoint the commission'' and so on, which I believe it still does. One had no idea of what the commission was supposed to do or what standard it was supposed to uphold.
In my written remarks I suggest the model they had in mind was the Office of the Commissioner for Public Appointments in England which has ten employees and in a year oversees several thousand appointments that we would call Governor-in-Council appointments. They do that through a process of having assessors who assist departments in the process. We need to examine the standards followed by the British Office of the Commissioner for Public Appointments which include: ministerial responsibility; appointments made on merit; a process which involves independent scrutiny; equal opportunities for all groups of people and all members of the public; public bodies committed to the principles and values of public service; openness and transparency in the process; and, proportionality in the sense that the amount of care taken in the appointment is relevant to the importance of the position. In other words, the president of the Canadian Broadcasting Corporation should be appointed by a much more thorough and careful process than should an ordinary member of a fairly anonymous board.
So far in Canada, our public appointment process is closed. We do not know the principles. The British system cannot be brought into Canada because most of these appointments are Governor-in-Council whereas in Britain they are made by the ministers under departmental acts, and the Office of the Commissioner for Public Appointments exerts a role through a central agency, the cabinet office, in overseeing the work of various departments in the appointments process. There will be a question of the accountability of the proposed office of the commissioner for public appointments, which I simply lay on the table at this point.
Finally, the act creates more agents or officers of Parliament — "agents'' being the more exact word — like the Auditor General, the Commissioner of Official Languages and so on. We are winding up with what I call a dog's breakfast of agents of Parliament. I believe there are 10 of them with many functions and no real clarity in their relationship to Parliament in terms of accountability and reporting. There is a huge range of functions from quasi- judicial to simply commenting on things. There is a question as to whether the Public Service Commission should be an agent of Parliament. It regards itself as that, although others do not. That area needs to be clarified at some point.
There is framework for an improved accountability regime. It will require an enormous amount of work by Parliament and the public service. The Treasury Board itself must undergo a drastic reformation. I believe there is a role for Senate in this reformation. I have often wondered whether the Public Accounts Committee should, like the Joint Committee for the Scrutiny of Regulations, be a joint committee of the Senate and the House of Commons in order that the experience and perseverance of the Senate can attribute to making government accountable.
Peter Aucoin, Professor, Department of Political Science and School of Public Administration, Dalhousie University: Thank you for the invitation to appear before this committee. It is an honour to do so, in part because of the importance of this bill. It is also the case, as both you, Mr. Chairman, and Professor Franks have pointed out, that it is a comprehensive bill covering a wide range of subjects — to some extent a potpourri of topics — and I want to speak to only a few of them.
I will confine my remarks, as I did my written statement, to Parliament and public accountability; the authority, responsibility and accountability of deputy ministers; the staffing and management of the senior public service, deputy ministers; and the staffing and management of Crown corporations and boards and CEOs of Crown corporations.
I will start with a general comment on Parliament and public accountability. For an audience such as this, it hardly needs to be said that Parliament is the key institution of public accountability of government. However, it must be emphasized because we have discovered there are no effective substitutes for accountability. While the media are essential, they are unable to act in an official capacity to undertake scrutiny of government. We have discovered over the past ten years that improved results-based reporting to Parliament or to the public simply will not do it. While we know that elections are important, elections are not sufficient to secure accountability.
We also know, from the Canadian and comparative perspective, that Parliament works best when government cannot rule by command and party discipline. In the Canadian context, there are a number of serious issues with respect to our situation. However, the weakness of our Canadian Parliament in comparative terms does not stem from a paucity of resources but rather from an imbalance of power between the government and the opposition. In that context, partly echoing what Professor Franks said, the improvement on the resource side will not have a substantial effect until some issues of the imbalance of power are addressed. For example, while I welcome the establishment of a parliamentary budget office to do the kind of detailed analysis that MPs require, it has as much chance of having a substantial effect as the results-based reporting had in the absence of a more robust accountability system. For example, the Office of the Auditor General of Canada is clearly the best resourced Auditor General in the world and yet there are severe limitations in its use in the Canadian Parliament.
Most issues about how to improve parliamentary accountability in that regard are outside the scope of this discussion. However, it is imperative that consideration be given at some time to ways by which minorities on committees can have a more substantial say in determining the kinds of scrutiny undertaken, the kind of witnesses that appear and the way in which witnesses are scrutinized. When majorities can frustrate and impede the legitimate demands of accountability, the important responsibility of Parliament is significantly undermined. That situation was seen dramatically in Australia over the past 18 months when the Australian government was able to assume control of the Australian Senate, the institution that likely had the most effective role in holding the Government of Australia to account. On the first day that the government assumed effective control of the Australian Senate, a major inquiry into government behaviour on a significant issue was squelched by the government majority.
I want to come back to the issue of Parliament and public accountability because other aspects of public service accountability will not work effectively in the absence of an effective Parliament. I will not repeat Mr. Franks' comments on the authority, responsibility and accountability of deputy ministers. This bill rejects the traditional official doctrine that deputy ministers are not accountable before, or to, the House of Commons through parliamentary committee for those matters for which they are personally responsible because deputy ministers have been given the authority and that authority has bypassed their ministers. Traditionally, there has been an accountability vacuum because deputy ministers were not held accountable before Parliament. Yet, clearly, their ministers could not account for them and for the authority held by them.
In that case, the important development is that the sponsorship scandal laid bare the lack of a coherent and proper understanding of deputy minister accountability in Canada. In that respect Justice Gomery got it right in virtually every aspect of his analysis and conclusions of who was responsible. The Conservative Party and current government have it right in respect of the accountability office or scheme proposed in Bill C-2. The important point is that deputy ministers must account to, before, and can be held to account by, a parliamentary committee.
On the matter of the staffing and management of the public service, it is important to emphasize that for an accountability regime to be effective, the governance regime also must be effective. In the Canadian context, in the case of ministers, the governance regime is effective, with the Prime Minister being responsible for the direction in the disciplining or the dismissing of a minister. In that sense, the structure is appropriate. In the case of deputy ministers, however, the governance structure is not only more complicated but also more suspect. Deputies are appointed, assigned and dismissed by the Prime Minister; advice is given by the clerk, and the clerk can be advised by a committee of senior officials, although the responsibility lies with the Prime Minister and the Prime Minister can and does exercise that responsibility.
At the same time, deputy ministers are the chief administrative officers of their departments. They lead what we call a "professional public service,'' which is meant to be a non-partisan and professional public service, but deputy ministers are not part of the public service that is independently staffed on the basis of merit under the authority of the Public Service Commission. That situation is the flaw in our system, or has become the flaw in recent years. Deputy ministers have the incentive to respond to political direction at all times, even when the direction is inappropriate; and we saw that in spades in the sponsorship scandal.
The traditional governance relationship between ministers and the public service is now broken, as argued by Professor Donald Savoie in his major study, Breaking the Bargain: Public Servants, Ministers, and Parliament, to which I have heard no serious opposition. I should add, to emphasize the point, that this situation is not unique to Canada. All Westminster systems comparable to Canada — Britain, Australia and New Zealand — have the same set of tensions. New Zealand has a different system for appointing their chief executives and, as a result, has a better relationship. The incentive for deputies to manage well comes a distant second to their incentive to curry prime ministerial favour. That incentive applies to a large body of associate deputy ministers and to all public servants who want to rise to the ranks of those two levels. In this respect, the Gomery commission argues correctly in favour of an independent staffing of the deputy-minister cadre, although some questions exist about the exact process recommended to carry this out.
As some or all senators might be aware, that recommendation has been rejected by a group of eminent Canadians as being "government by the unelected.'' However, I suggest the bill does not call for that. In fact, the appointment of deputy ministers by an independent process is precisely the kind of governance structure necessary to ensure more effective public governance and administration. This independent process also serves to emphasize that Parliament, Treasury Board and the Public Service Commission have given their powers to deputy ministers, not to ministers only, in order to promote good public administration. In that respect, the improvement that comes with the accounting officer regime proposed in Bill C-2 is limited by the fact that the primary incentive for deputy ministers is to remain as they are. That incentive still sends a powerful message to public servants who aspire to the top positions.
On that note of staffing the public service, I make one side comment with respect to the appointment of ministerial staff. Bill C-2 proposes to eliminate the priority status for ministers' staff, an action that is long overdue. Canada has been the only regime to provide such an advantage to political staff to enter the professional public service, which clearly contradicts the principles of independent staffing of the public service. However, I see no public interest in giving political staff access to competitions for positions accessible only to those in the public service and not to all Canadians. In short, political staff still have an unwarranted privileged access to the public service, as found in Bill C-2.
In his appearance before this committee, the President of the Treasury Board unwittingly, I think, stated that these political staff would now be "treated in an equivalent manner to public servants.'' The problem is that they are still, in a way, treated as equivalent to public servants, and it is still a back door, even though there is a competition. Those people who know how difficult it is to manage an independent competitive process for positions know that there is still an advantage in the system, and a perceived advantage in the system.
Finally, on the issue of staffing and managing Crown corporation boards and CEOs, here again we have a situation where Parliament has given authority to those other than ministers for the conduct of public affairs. It has long been the tradition to assume that ministers are not fully responsible or accountable for matters that are under the jurisdiction of the statutory authority given to Crown corporations. That issue has been confused, however, by the most recent efforts of the Treasury Board in 2005 under the direction of the previous government to articulate a new official doctrine in respect to the accountability for Crown corporations, which I suggest has muddied the waters even further.
Treasury Board now suggests that the boards of directors are accountable exclusively to ministers and that a strict hierarchy now prevails where boards are accountable to ministers and ministers are accountable to Parliament — again, even for matters for which Crown corporations are responsible. Therefore we are back to this odd situation that Professor Franks referred to, where Parliament gives authority to one body and then we somehow assume that ministers are responsible when that body exercises its authority. This situation was all part of an effort by the Treasury Board to tighten things up at the time.
Questions of good corporate public governance arose in response to the sponsorship scandal. In that regard, the recommendations from the Gomery commission would enhance public accountability and good public governance. The recommendations are slightly different than the ones in the federal accountability act and I think the approach here is, to some extent, an important one.
Justice Gomery recommended that the board of directors of Crown corporations replace themselves when vacancies arise. Bill C-2 proposes a public appointment commission, as I understand it by reading the bill, to monitor the process of ministerial appointments. These positions are still appointments made by ministers, and most especially by the Prime Minister.
This change is not necessarily an improvement in the situation. The approach in Bill C-2 is still one in which partisans — that is, ministers — make the selection, even if from a list. If you look at the issues that have arisen around Crown corporations, the governance and management of Crown corporations in Canada as elsewhere, there is not much evidence from Canada that competence is the major problem. In the sponsorship scandal, for example, where Crown corporations were involved, the problem was not competence but cronyism of the partisan variety.
If one looks at the British system that has been put in place with a public appointment commission, the criticism there again is not around the issue of competence but rather that cronyism has not been eliminated. As you can imagine, people who were appointed by the Labour government are referred to as "Tony's cronies.'' The commissioners themselves have criticized the role of ministers in the appointment process.
I think the Gomery recommendation is the better one and it needs to be developed as the preferable view. A commission could be used effectively — perhaps the Public Service Commission of Canada should be used here — to monitor the process if the boards of Crown corporations themselves fill those positions. In this regard, as well as in regard to the appointment of deputy ministers — a point I should have made earlier — a safeguard is always necessary, and the Prime Minister and cabinet should have a veto over such appointments when they are made independently, but the Prime Minister and cabinet should not have appointment power itself.
It follows that if one thinks in terms of a better process of governance for appointments of Crown corporations, clearly Crown corporations should appoint their own chief executive officers, as is good corporate practice in the private sector.
Accountability in the Canadian context will improve to the extent that we recognize that in our system we have distributed authority to ministers — that is the cornerstone — but we have obviously distributed statutory authority to deputy ministers and to Crown corporations.
The critical question is whether ministers have sufficient authority to direct and manage the affairs of state. In regard to the public service and to Crown corporations, at the end of the day they still have sufficient directive powers to make certain that they can be held responsible as a government.
That point is not simply to state the obvious; in my view, there are some cases where that is not the case. While the point does not relate primarily to the concerns of this committee, the Auditor General and I have concluded on more than one occasion that the several independent foundations, such as the Canada Foundation for Innovation, which have been established by the previous Liberal government, do not fully meet the test of ministerial responsibility in this regard. Distributive government can go too far.
In the case of independently appointed deputy ministers or Crown corporations, that government is not too far. However, one needs the appropriate governance structure; and I think that there is a need for greater independence in the context of our system for the public service, for both good public governance and good public management.
I suggest that democratic governance will be strengthened, not weakened, by these measures. Democratic governance has always been strengthened by effective checks and balances in the system. The appeal simply to having ministers always in control is a populist appeal that may sell well in certain Latin American dictatorships but does not sell well in terms of democratic governments. The distribution of authority is an important element of democratic governance, and the capacity of Parliament — the House of Commons and the Senate — to be able to control government is critical. The federal accountability act makes an important contribution in that regard.
I conclude by pointing out, as Professor Franks has done, that a more effective use of the Senate, particularly with respect to public service accountability, is something that would be advantageous for our Parliament, given the strengths the Senate can bring to this issue.
The Chairman: Thank you both for two very excellent overviews. We are delighted and honoured to have such distinguished scholars with us. I have one question before turning to Senator Day.
Professor Franks has said that deputy ministers move frequently from department to department, and he gave the statistics that are now on the record. Since deputy ministers change, what is your view on whether accounting officers in this new Bill C-2 who were formerly in another department can be called before a parliamentary committee to account for what went on in that former department? This question has troubled me for some time and I would love to have the benefit of both your views on it.
Mr. Franks: That question has troubled me, too. The problem is that once a deputy minister, or minister for that matter, moves from an office, the deputy minister or minister no longer has responsibility for the office. They are answering as individuals in terms of someone who held the responsibility, but they do not have the power to act or to give instructions. That situation leaves the committee or whoever is holding them accountable in the position of saying, you made a real booboo five years ago and you were naughty, but we can do nothing to make you change it because someone else is in power, so all we can do is punish you or blame you for it.
The whole system of accountability works when it links blame and responsibility. That is why I have had so much concern about this short tenure of deputy ministers and others. It means that most of the time, when an issue comes before the Public Accounts Committee, by the time it is uncovered by the Auditor General, reported on and made public, the deputy minister who is now in power can say that there was a problem and it is fixed. If the previous deputy minister comes before the committee, he or she is simply an individual who can say yes, this has happened. It has been recommended — and the Public Accounts Committee itself recommended — that the responsibility and accountability stay with a person after leaving office.
The Chairman: For an indeterminate time, three years?
Mr. Franks: That is what the committee suggested. I can see why they said it. I much prefer my solution or the Gomery solution or Peter Aucoin's solution, which is that the deputy minister should stay there longer. The Gomery recommendation was a five-year appointment. I think that would solve about 90 per cent of the problem.
Mr. Aucoin: Part of the difficulty is that less attention than should be given to the management of departments is one of the main reasons for the significant shuffling of deputy ministers around too frequently. I have long been of the opinion that ministers and accounting officers should always be required not only to appear before committees to give an account.
The Chairman: To give an account or to be answerable?
Mr. Aucoin: No, to give their respective full accounts, even if they no longer are the minister or the deputy minister of a department; even if they are no longer in the government. As long as they are alive and able to come before a committee, they should give an account because the issue at hand is always an issue of what happened back at a certain point in time.
In fact, this could occur if this was a deputy for 10 years and a day after this issue arises before a parliamentary committee. We saw that clearly in the context of the Public Accounts Committee's examination on the sponsorship scandal as well as the Gomery examination of it. The key thing that one wants to do in many of these instances is to name someone — and, to put it in the boldest terms — to blame someone and to shame someone. It clearly is the case that the person, if no longer in the position, cannot take corrective action. In terms of giving an account, to give an account means to justify or defend, as well as to explain or to answer questions, about what happened. It is then for the committee to make the judgment or assessment of that account. Is it a satisfactory account or not? It is not a court of law in that sense, where you find someone guilty or not, but you do pass judgment. Clearly, the Public Accounts Committee passed judgment; the Gomery commission passed judgment. One must be able to link that to the corrective action that needs to be taken. If the issue still exists, that is a problem. It is important that we lay to rest this notion that people cannot be held to account once they have left the office. They could be dead and can be held fully to account.
Senator Cools: Cromwell was dug up and hanged again.
Mr. Franks: I do not disagree with giving an account. Even in Britain, where people stay in position for five years, the committee can always invite a previous accounting officer or someone else to give an account.
On the other hand, I think that the ultimate sort of responsibility and accountability we must look for is a sense of responsibility within the people who have the responsibility. As an instrument for encouraging that sense of responsibility, there is nothing like living around long enough to live with the consequences of your action or inaction. I think our system fails to do that. Worse, I sometimes am concerned that the system deliberately operates to avoid that. I can give you an a example of something that the Public Accounts Committee is now looking at, or was in June, namely, how was the decision made to exclude a legitimate expenditure from the Supplementary Estimates and the public accounts. The testimony before the committee suggested that it was done to save the government embarrassment in a pre-election period. Yet, the deputy minister who made that decision and accepted the responsibility was removed from office a few months before this came out in the report and was promoted to a senior position in the Privy Council Office. That sends the wrong message to deputy ministers and others on putting a priority of accountability to Parliament and rule of law ahead of keeping your minister and your government out of trouble. There is a less polite way of saying it, but I will not use it.
I think there is a very real problem in there that we have to work on.
The Chairman: I appreciate both your points on that subject. I now would like to turn to Senator Day, who, in addition to being the opposite critic on this bill, is also the chairman of the Standing Senate Committee on National Finance. He is someone very well-versed in the issues you have been discussing.
Senator Day: I take your compliment, but you are my former chair of the National Finance Committee in the Senate. First, with respect to national finance, I think you understand, Professor Franks, that public accounts committees tend to look at things after they have happened and we in the Senate try to look at things before they have happened and ask why rather than why are you doing this, where is this going. We tend to put a lot more emphasis and energy into national finance than we do on the public accounts. Your suggestion was a combined public accounts committee. I wanted to point out to you the way our thinking is right now in that regard.
Following up on our chairman's question about this sense of responsibility within the public service and the senior public servants, would that be achieved if we followed your recommendation that appointments be made by someone or some group other than the Prime Minister and the Prime Minister's Office?
Mr. Aucoin: I do not place great emphasis on the system operating by people voluntarily coming forward and admitting responsibility, except in the sense of admitting that they have the authority. Often, the failure in our system is one of effectively holding people to account. We saw — and I continue to refer to it — in the sponsorship scandal hoards of people who refused to accept responsibility and who pointed the blame at others. A task of parliamentary committees is to listen to what people say and then hold them to account, whether or not they accept responsibility. That is the dynamic of the checks and balances that operate in the system. It is very convenient if people come in and say that they are responsible, but the system does not presuppose that people will fall on their swords, they might have to be pushed by holding them to account.
The sense of people having a good sense of responsibility, particularly on the public service side, is that they are willing to give a full account and, in particular, willing to do that internally, and they will not attempt to escape responsibility by assigning the responsibility to others. That is why, as Professor Franks has pointed out, it is so important to get aspects of who has authority and responsibility correct in our system. When Minister Gagliano, for example, put a good deal of the blame on to the deputy minister of his department, in my view the minister was absolutely right. The minister himself may have been responsible for other things, but ironically, he identified the structure correctly.
I do not think we want to operate a system of accountability in which people have to voluntarily come forward. That is why we have parliamentary committees to make this examination. That is why the public accounts committee is so important in looking back to see what happened and who was responsible. While it is important for committees to look forward, holding people to account, I am afraid, is always looking backwards. The accountability is for what you have done.
Senator Day: Your use of the terms "responsibility'' and "accountability'' probably cries out for some sort of definition because people use these terms in different ways. When you say "refusing to accept responsibility,'' is that refusing to accept responsibility for the results of an action or inaction? There is a responsibility delegated to do a particular thing, to manage, to do this or that. One type of responsibility is to act, and the other responsibility is for the outcomes.
Mr. Aucoin: Unfortunately, in English at least, responsibility means both, and it is confused. Often when people say you are responsible, they are trying to say that you have the authority to act, and therefore you must give an account. You can say that you have an authority to act, and your authority to act is in respect to these responsibilities, which would be like a set of duties or functions, and you are accountable.
However, we use it in both ways. When we say you have the responsibility, particularly the way Professor Franks was using it, namely, that you are in the office, it means that if something comes up that you want to correct, you have the power to do so. You have not left the office. It also means that you are accountable in the sense that you are culpable. You are not showing up to say, "Someone messed up in my office, but that is not my fault'': just answerability.'' "Accountability'' means you are culpable. You had the authority, you were responsible and something went wrong on your watch; you now have to account for it.
There may be extenuating circumstances, so you may not be hung for it because you provide an adequate account. On the other hand, if you cannot, and simply did not, do what you were supposed to do, or you did what you should not have done, then you are fully accountable in the sense of being culpable.
The notion of naming, blaming and shaming is not entirely an inaccurate way of describing responsibility because while we cannot hold people guilty as in a court of law, it is important to assign responsibility in that full sense. It is important to emphasize that I consider deputy ministers in this context to be held accountable by parliamentary committees. Deputy ministers cannot be directed by parliamentary committees, they cannot be dismissed by parliamentary committees but they can be named, blamed and shamed by parliamentary committees.
I remind you that parliamentary committees have exactly the same powers with respect to ministers. Prime ministers, not committees or parliaments, dismiss individual ministers. The assumption that somehow deputies are in a different relationship to you when they appear before you than are ministers is mistaken in that sense. You cannot fire deputies or ministers. You cannot direct a minister, and you cannot direct a deputy minister. The importance of making that point is to emphasize the obligation of parliamentary committees to extract the account: not just to listen. Responsibility is not self-reporting. It is not just coming in and saying, "I am responsible.'' Parliamentary committees are supposed to get the account from the person. That is the whole point of asking questions.
Senator Day: Let us move to an understanding of the term "accountability.'' As you use the term, it includes culpability. We talked earlier about the requirement to act, divulge and set up management systems and objectives. If someone is an accounting officer and has an obligation to account to a committee — I will try not to use that word, responsibility— is that accounting officer obligated to talk about what did not go well?
Mr. Aucoin: The accounting officer has an obligation to give an account of what happened. Given what I have said, it is important that the committee try to find out what happened. Clearly, someone giving an account before a parliamentary committee should not be lying or deceiving. Clearly, they will probably try to put the best light on the situation, given the amount of time they have to give the account. At the end of the day, "accountability'' means that you answer questions, but in answering the questions, you are not just giving factual descriptions of what happened. You are justifying or defending what you have done.
The emphasis that some people place on answerability is misleading. Giving an account means you have the authority and responsibility, and you have to defend what you have done. That is giving the account.
If you appear on behalf of a minister as a public servant, as most public servants would before a committee such as this one, then you only answer if questions are asked because it is not your authority. You do not have to give an account in the sense of defending or justifying because the minister made the decision, or perhaps your deputy, but not you.
When a minister answers for what went on in a department, when the minister did not know and should not be expected to know, it is simply to give you an answer to a question you may have asked about an issue. However, as soon as that question is asked and the minister has answered, from then on the minister is fully accountable because now the minister can act because the minister is informed.
The same thing applies to ministers responding to questions from Crown corporations. If the question is about a matter over which the Crown corporation is responsible, the minister answers only as a conduit to get the information into Parliament.
If the question is a matter over which a minister might be able to issue a policy directive, and perhaps should issue a policy directive, the minister becomes accountable in that sense because the management and governance of Crown corporations are partly with the corporation and partly with ministers and the full government. Answerability can be used in that context, but in the Canadian context it often muddies the waters.
Senator Day: Is there an obligation, and what is it? If there is one, what is the greater and higher level of obligation of an accounting officer over a minister who merely answers questions being asked?
Mr. Franks: He is going to pass the ball to me for this one.
Senator Day: That is fine.
Mr. Franks: The minister's primary responsibility is broad in terms of the party and, ultimately, having to defend the record in an election. The responsibilities of an accounting officer under the act are limited in a management sphere.
I have said many times, and Mr. Aucoin said the same thing in other forums, that we have a skeleton here, and we have to produce a living, breathing body with blood flowing through it. One thing that needs to be clarified is the extent of the management responsibilities of deputy ministers. Mr. Aucoin used this word first in a publication, the Gomery commission also used it and I certainly have: what is needed is a protocol or a document that clarifies and establishes the limits of the management responsibilities of deputy ministers, and then clarifies where the minister's responsibility takes over. I do not think this responsibility can be graven in stone at this point in time, and I am sure whatever document that is created will be changed, but something like that is needed. In my view, the document has to be agreed to both by the Public Accounts Committee and the Treasury Board.
That document also strengthens the Treasury Board's hand because the Treasury Board is the weak partner in this. Its role in ensuring that departments conform to its own regulations is not impressive. The document gives the Treasury Board some authority over departments to say, "Parliament will hold the accounting officers accountable for this, so you had better be up to scratch. If you have any problems, come and talk to us.''
Also, when a deputy minister disagrees with an instruction by the minister or by a central agency or whoever, the act clarifies that situation to some extent. I do not have the wording right, but the act says something to the effect that when a deputy minister has some concern about an instruction, the deputy minister can ask for clarification from the Secretary of the Treasury Board: for a directive, policy or rule of the board. If the minister is not satisfied with the answer, he or she can appeal to the Treasury Board. That goes very far, but residual areas remain in which a minister might want to do something that a deputy minister feels is improper. It seems to me that something must be put in there to have a further role of appeal to the cabinet, either through the minister or the Treasury Board, so that it is clear that the responsibility belongs to a minister rather than to a public servant.
I will give you an example. There are two areas. I already mentioned the example of the need for a supplementary estimate where it seems to me there was no doubt that a supplementary estimate was needed and the decision was made not to implement it.
Another area of interest to me was the fighter aircraft maintenance contract that went to Montreal rather than to Winnipeg. That was in 1985. The rumours that went around, some of which I suspect were correct, were that the technical committee strongly recommended that Winnipeg get the aircraft. The assistant deputy minister said that was where it was going, and somebody at the political level disagreed. The assistant deputy minister said that according to the Treasury Board rules, he must do this. The assistant deputy minister went elsewhere and they brought in a new person. The rumour I heard was that the second assistant deputy minister said the same thing, and they finally got a third assistant deputy minister to do it.
That is not the right way to do it. It is far better for the minister to be able to overrule, but a record must be kept of where the minister or ministers of the cabinet make the decision rather than the accounting officers. If we follow that procedure over the years we will get a case record of how to define the responsibilities of ministers and deputies and where the boundary is between them. It seems to me that clarification is needed. It will take a lot of time.
Mr. Aucoin: I just want to make two points in regard to the accounting officer regime and the way in which you raised the question.
As I read Bill C-2, the difference of opinion between a minister and a deputy minister is confined to those matters over which the Treasury Board has authority. I have not spoken to the drafters of the act, but to my mind that is very significant. That means that the matter must fall within the Treasury Board's authority.
When we are speaking of deputy minister authority, there are authorities beyond the authorities that are delegated by the Treasury Board. There are authorities of the Financial Administration Act and other acts that do not go through the Treasury Board; they go directly from Parliament to the deputy minister, so they are silent on this.
I would assume that on those matters, when the deputy says no to the minister, that that is the end of it. The minister cannot override because he or she does not have the authority to do so. Those matters are limited, as Professor Franks has pointed out, but they are terribly important. They would encompass most of the things that went on in the sponsorship scandal, for example.
There is one other area that is important to mention as a footnote.
Senator Day: Mr. Aucoin, can you stop at that point? I was going to point out the same thing. Would you recommend that we amend the act in that regard to make this conflict resolution process broader in scope?
Mr. Aucoin: No, senator, I would leave it precisely where it is. If one accepts the principle of the act, it is well done in the sense that Parliament has said that there are areas where deputies should be able to say no and there are areas where, if there is a disagreement with the minister, the Treasury Board should rule because it is a Treasury Board policy, or interpretation of it.
Senator Day: Just for the record, we are referring to proposed section 16.5 of the Financial Administration Act.
Senator Milne: It remains a cabinet confidence and it is never made public.
Mr. Aucoin: As it applies to the Treasury Board matter, yes. I have heard further discussion as to what that would mean. It seems to me that it buries it and makes it difficult for a deputy to appear as accounting officer and to give a full explanation. If one is giving a full explanation in defence, it means that one must say what happened. If one has been overruled and there is cabinet confidence, how does one deal with that situation?
The other thing I was going to address, in terms of a delegation, is the Public Service Commission. Obviously, a minister cannot override a deputy on the deputy's use of the powers that have been delegated by the Public Service Commission.
There is one final point I would like to make in this regard. I think it is proper to say, in the British context, that when a minister overrules a permanent secretary as an accounting officer, that is appropriate. My understanding is that the executive in Britain operates mostly on the basis of the royal prerogative and that the minister ultimately has the authority. When the minister says jump, eventually the permanent secretary has to jump. In the Canadian context, when a minister says that to a deputy, if it is within the Financial Administration Act it is clearly under the deputy minister's authority, then the minister does not have the authority to overrule.
You could argue that is an authority that bypasses our system of ministerial responsibility, and I would say you are correct, but it is one of those instances where we have bypassed the principle of ministerial responsibility on the assumption that it serves a better public interest.
Ministerial responsibility does not encompass everything. That is why I am not entirely certain what the phrase "under ministerial responsibility'' means in front of this. It is either an attempt to say, well, we really have not changed the official doctrine at all, which I do not think it can, given what then follows, or it is a attempt to say that the minister still has sufficient authority to govern and manage a department even if the deputy can, on occasion, say no.
The Chairman: Senator Cools had a supplementary on your earlier point.
Senator Cools: I had a supplementary question, but it has long passed and is probably long gone. I will just include it when I come back to my own time of questioning. It was relevant to the extent that you were talking about it, but you have probably lost your thought.
Senator Day: Thank you, Senator Cools. I will finish up on the point that you raised, Professor Aucoin.
In clause 259 of the Financial Administration Act, proposed section 16.4 (1) reads, "Within the framework of the appropriate minister's responsibilities...'' "...and subject to the appropriate minister's management and direction of his or her department...'' It then goes on to discuss the accounting officer's responsibilities subject to the overriding ministerial responsibility.
Mr. Mitchell and Mr. McCandless were very clear that ministerial responsibility, as we have known it, as inherited from the U.K., is not changed by this proposed legislation. They were clear that all of this procedure of questioning with respect to certain Treasury Board items is just down there in the misty flats below the ministerial responsibility, which is ultimate. The minister can be accountable and in fact is accountable to Parliament for something that the accounting officer is accountable to a committee. The same matter is at two levels of accountability.
Mr. Franks: May I respond? I cannot say this is on behalf of my colleague, because I do not entirely agree with him.
I do not think the issue in law is as clear as one might think. I do not agree with Jim Mitchell and others, who say that all responsibility is ministerial under the Interpretation Act and therefore, what you see here is simply a gloss on that doctrine; that the Financial Administration Act and the Public Service Act both clearly assign responsibility to deputy ministers. It is not clear, when you get to the boundaries, which responsibility belongs to whom. That is the reason I agree with you that a dispute resolution mechanism is necessary.
Ultimately, we have to know who makes the decision when an issue is contentious, because that responsibility is what was so blurred in the sponsorship affair and in many others, such as the fighter maintenance contract and so on. We need clarity on who had the duty of doing it right, and if somebody is overruled how do they deal with it. This issue came up before the Gomery commission at one of the meetings of the advisory committee and it is in their report: how can ministers have all this responsibility when the Financial Administration Act clearly gives responsibility to deputy ministers, as does the Public Service Act? A former Clerk of the Privy Council said he would ask the Treasury Board. The answer given by the Treasury Board was that the minister's responsibilities under the Interpretation Act trump the deputy minister's responsibilities under the Financial Administration Act, et cetera. Justice Gomery says in his report — I am talking out of school now, as was said at the advisory committee — one act cannot trump another. They both have to be read as standing.
This area is not clear at all. I emphasize that it is my belief that a dispute resolution process is needed that goes far beyond what is in the act. The process does not need to be specified in the federal accountability act. However, one needs to recognize that before we are clear on who has the responsibility for decisions when the formal statutory responsibility is not totally clear, the process has to clarify who made the decision so we cannot be in the situation of saying "not me'' or "not me,'' as happened before the Gomery commission.
Senator Day: I take it we need clarification in this bill on the dispute resolution side of things. Can I also take it that because you are in such disagreement with two of your colleagues, Mr. Mitchell and Mr. McCandless, with respect to the interpretation of proposed section 16.4, the section requires some clarification?
Mr. Franks: I do not know how far you can go in a statute at this point without getting into inscrutable questions of relating the Interpretation Act to the Financial Administration Act and to other acts. It seems to me the act pays an "obéissance'' to ministerial responsibility but tries to identify something for the accounting officers. It was like the "on the one hand'' fighting with the "on the other hand.'' I am not convinced that it can be clarified at this point. I look at this act as a good starting point. Then, there must be a protocol to identify the responsibilities of accounting officers before the committee and where those end.
The dispute resolution mechanism is useful insofar as it deals with Treasury Board policies and directives, but it does not clarify where, say, a minister's responsibilities under the Interpretation Act should take precedence over a deputy minister's views of what is in the Financial Administration Act. That area seems to be where you get into problems.
Most of these issues probably would not be issues of legality. That is fairly clear. However, they are issues of propriety, where Treasury Board regulations say that you must get value for money in contracts or something like that. The experience in Britain has been that the big issues tend to be over propriety rather than legality.
On the other hand, there is no question that pretty well everything that went wrong in the sponsorship scandal was an issue not just of propriety but of legality.
Mr. Aucoin: I agree with your conclusion that we do not agree with the two previous witnesses. Ministerial responsibility cannot encompass everything if statutes from Parliament give authority to others. That issue is just a misuse of the English language in my evaluation.
I agree with Professor Franks that law is not always clear, and in this case dispute resolutions between parties, each of whom claim to have authority— a minister and a deputy minister — is useful. There is one in the act.
The problem with the one in the act that it is a cabinet confidence as a consequence, I would agree with Professor Franks. To have more effective dispute resolution, there must be a public dimension to this mechanism because this dispute is not just an internal fight between ministers and deputies. This dispute is a matter of good governance and good public management, and ultimately it has to come before Parliament. Parliament has to be involved.
That was why I initially wanted to argue at the outset of my remarks the importance of Parliament holding people to account. In the end, there is no court to decide on the legality of this. It is a question of people assigning responsibility to ministers and to deputy ministers. That ultimate assignment of responsibility is a function of Parliament, the Senate and the House of Commons.
The matter cannot be settled in law. The protocols that are necessary are ones that will evolve over time, but they will not evolve if there is not recognition of the need for the House of Commons to hold people to account. Otherwise, it will just be academic exercises. The protocols will only make sense if they are of importance so that when an issue comes before, let us say, the Public Accounts Committee, that committee has the capacity to make a reasoned conclusion and assessment of what happened. The committee is not required entirely to rely on the individuals to say they are responsible or not, but the committee can make a determination that someone is responsible.
In the end the committee will also have to look at the statutes. The committee will need to look at what the Financial Administration Act says, as opposed to other acts that give ministers authority.
Senator Day: In defence of Mr. Mitchell, since I mentioned his name, he did say that an exception to ministerial responsibility would be the situation where there was a statutory delegation directly to the deputy minister.
Senator Campbell: I would like to start with the British model of the public appointment commission. You brought that up and it would seem that at the end you shot it down. Is that correct?
Mr. Franks: The two of us might have a difference of opinion between because I support it.
Senator Campbell: I will start with you, then, professor, before we go to Mr. Aucoin. Do they appoint peers?
Mr. Franks: No, nor senators. That is totally different.
Senator Campbell: I will leave that one alone.
Mr. Aucoin, may I have your comments? On the one hand we use the British model as an example. On the other hand, we say it does not work, either. I think you called them toadies, did you?
Mr. Aucoin: Cronies: Others have called them that.
The issue here is that there are two possibilities of appointing people to public office where those people are not elected. They are appointment by ministers or independent staffing. In the Canadian context we have long had a concern that ministerial appointments lead to patronage of the sort that lead to appointments of unqualified people. That problem has been addressed in various ways. Other jurisdictions have had to worry about the same thing.
My concern is that for the most part, issues of competence have been dealt with in other ways and the public appointment commission would deal with that. However, in terms of good public governance and good public management, particularly of arm's length agencies, the key consideration is to avoid what I call cronyism or the partisan influence. The reason for that is not that I am opposed to partisans participating in public life, but rather, when independent organizations or arm's length organizations such as Crown corporations are given authority to act, they have obligations to act. Those of you who are members of boards of directors of private corporations know the obligations you have in that capacity.
In the Canadian government context, when governments want to direct Crown corporations to do things that favour government policy, there are public mechanisms to do that. They should not be doing it by having coffee or playing golf with directors of the board of Crown corporations. That is where cronyism comes in. That is where you get into the kind of problems we experienced in the sponsorship scandal. This is where winks and nods can be sufficient to have government intervene inappropriately.
In defence of Justice Gomery, one might have liked to have taken a pen to his report to phrase things slightly differently when he used the term "ministerial intervention''. He meant by that "inappropriate ministerial intervention'' and not the proper use of "ministerial authority''. The intervention we saw concerning Crown corporations was inappropriate. Good partisans can get through an independent appointment process. We do not need ministerial appointments.
Mr. Franks: I would like to add two things. First, the British Office of the Commissioner for Public Appointments oversees a process in which they wind up with a list of three candidates from which the minister selects an appointment. There has been some argument that they should wind up making a single recommendation. However, I will not go down that route.
The other route I find more interesting relating to Professor Aucoin's second point is that there is provision in the Financial Administration Act for ministers to give directives to Crown corporations. I believe they have to be tabled in Parliament. I asked the record keepers in Parliament if they could find an example of any tabling of such a directive and they could not. There may be some examples that we did not find. In other words, there is a provision but it is ignored. This is where I share Mr. Aucoin's concerns that influence, cronyism and patronage become a hidden and potential pernicious activity.
Senator Campbell: Professor Aucoin has said that MPs themselves are the major weakness in accountability to the public service. He went on to say that theirs is not a robust scrutiny but a blame and call names game of rank partisan offence or defence.
This morning we discussed that if members of Parliament and senators were better versed on the issues and where we should be digging, then much of this bill would not be necessary. Do you agree?
Mr. Aucoin: No. I think a good part of the bill is necessary. I think the accounting officer part of the bill is important. Any measures to strengthen the capacity of Parliament to act are important. The recommendations with respect to the parliamentary budget office are important in that regard. I am not as concerned that we are getting a proliferation of agencies around Parliament. One might want to question the procurement office, but that is less of a parliamentary agency and more of a government agency. I am not concerned that the powers of offices such as the Auditor General are being expanded. If you look carefully at what they are, you will see they are simply extending it to Crown corporations in order to follow the money.
The problem inside the system to which many refer is the chill that has gone through the system. The chill has gone through the system because the professional public service is unwilling to do what needs to be done in terms of managing well because the signals are to have error-free administration. That kind of chill does not necessarily come from the bill. It comes from the sense that the public service is not sufficiently independent to carry out its management responsibilities.
Senator Campbell: I have a report published for the Canada School of Public Service and co-authored by you and Mark Jarvis. You say that members of Parliament are the major weakness in accountability of the public service. I am not talking about the public servants themselves not being accountable; I am talking about MPs and senators who sit on committees who are delegated by the people of Canada to look into these matters and to make them accountable. You say theirs is not a robust scrutiny. How do we go about educating them, as we discussed this morning, in what they should be doing and how to do their jobs?
Mr. Aucoin: The issue of MPs and not so much senators because there is experience in the Senate, not being effective in terms of holding government accountable ultimately goes to the question of the imbalance of power. When we have had instances of minority government, we have seen an increase in the role in holding to account. The limitation in the Canadian case with minority governments, perhaps with the exception of Nova Scotia, is the expectation that just around the corner there is a majority government. It is not like minority governments that are created by systems of proportional representation, for example, where the government just has to live with it. I mentioned Nova Scotia because, clearly, governments there have come to the conclusion that the electorate wants the kind of House they now have so they have to live with a minority government and make it work. That gives opposition more incentive to hold government to account.
In this case, if you compare Canada with Australia, New Zealand and Britain you will find that members of the House of Commons have not been as effective in holding to account. That is partly due to the balance of power and high turnover related to other aspects of our electoral system. It is also partly a question of culture. For example, when there were changes to the Public Accounts Committee process and the estimates committee process in the previous Parliament, questions were raised by some MPs as to why they should look at the past. Are those not bygone days? As I said earlier in response to Senator Day, holding people to account is looking at the past.
Mr. Franks: One of my concerns over the years has been the rapid turnover in the House of Commons. It has not been quite as rapid as the turnover in deputy ministers, but it is still very rapid. With an average stay of four and a half years in the House, MPs simply do not stay around long enough to do the job or to become familiar with the system. That turnover has decreased in recent years. The reason I see for it is, perhaps, a surprising one. Let us say that there has been a 30 per cent to 40 per cent turnover rate per election. Historically, one-half of that has been attributed to members deciding not to run again and the other half has been attributed to electoral defeat.
At present, the number deciding not to run again has gone way down. I attribute that to a decent pay level for members of Parliament.
Senator Campbell: Not service?
Mr. Franks: Service is a wonderful thing, but it helps to be paid in a way you feel you can keep your family in the style they deserve. In that sense I feel that has been a marked improvement to the system. It has a very real impact on the tenure of members in the House of Commons.
Senator Campbell: There was this idea —
The Chairman: Is this your last question, Senator Campbell?
Senator Campbell: No, it is not. I have a few more questions.
The Chairman: I have other senators who would like to ask questions as well.
Senator Campbell: That is fine. I guess we will have to continue on or have these gentlemen back. I do not intend to stop just because of time.
The Chairman: Please continue.
Senator Campbell: Mr. Mitchell said that Justice Gomery got it wrong on authority and accountability. In listening to you, I do not think that is true. I think we are talking about two different things. You are talking about leaving the Westminster system and moving into a different kind of responsibility. Mr. Mitchell is looking at the Westminster system and saying that Judge Gomery did not get this right. Are you talking about changing the Westminster system as was done in New Zealand and Australia rather than in the purity that Mr. Mitchell seeks?
Mr. Franks: I will not be charitable in these remarks. Mr. Mitchell is looking at a mythological 19th century notion of ministerial responsibility, which never existed.
Senator Campbell: Which is the Westminster system?
Mr. Franks: The accounting officer approach was adopted in the Westminster system at Westminster in 1872, and our system is supposedly based on the Westminster model, which means that whatever change that happens perfectly comfortably within that system can happen within ours.
To clarify, the responsibility and accountability of those to whom Parliament has delegated power is not a contravention of the Westminster system. Our act, and Mr. Aucoin has said so clearly, delegates power to many different people, not least of which are the deputy ministers, heads of Crown corporations and, in Britain, accounting officers. I assume accounting officers will be delegated power in Canada too at some point.
Senator Campbell: This is my last question for now, Mr. Chairman, but I do have more.
I have a difficult time with the concept. If we call the deputy minister the chief operating officer, for want of a better word, I have difficulty understanding why we would put a time limit on what they are responsible for. In other words, if I am the chief operating officer of a public company and do something that is wrong, leave that public company and six or seven years later an audit is done and they find out I did this wrong, I am responsible for that error. What we are saying here is, if you can get away with it for four years or whatever and you are not found out, you are clear. I do not understand that concept. It would seem if you are responsible for it today and it comes up five or six years from now, you are still responsible for it. You may not be in the position but you are still responsible for it.
Mr. Franks: You must make a distinction, I think, between criminal liability and errors in judgment.
Senator Campbell: I am saying judgment. I made this judgment, and five years down the road it is still the same judgment. It does not change, unless you want to get into, "In those days this is what we did.''
Mr. Franks: I have seen many instances of errors of judgments on the parts of chief executive officers who get the boot afterwards and still have their pensions, their stock options and everything else.
Senator Campbell: I am saying it still is your decision. You still have to answer for it no matter when it is.
Mr. Franks: The British Public Accounts Committee can invite a previous accounting officer to come and answer — give an account, as Mr. Aucoin said, or answer — but the responsibility, as the committee looks at it, belongs to the current holder of the office. That responsibility is not to take blame but to act if the problem has not been cured. I think that is true in private business, too.
Senator Zimmer: Thank you to both professors today not only for your appearance but also for your clear, concise statements. In my university days many years ago, in the presence of such eminent professors I would be nervous. Today, after many years, I am more comfortable, and pleased that I am on this side of the fence asking you questions.
Senator Day and Senator Campbell touched on my first question, which has to do with the appointment process. The accountability of deputy ministers remains inadequate in the current employment process if it is maintained. Professor Aucoin, you have indicated that the primary incentive of deputy ministers is serving the interests of the Prime Minister rather than good public administration. Professor Franks notes that the average tenure of Canadian deputy ministers is about 1.7 years. The Gomery commission recommended an open, competitive appointment process for deputy ministers and it has sparked quite a controversy. What provisions, if any, should be in Bill C-2 regarding the appointment procedures and tenure of deputy ministers? Second, if the appointment of these deputy ministers is removed from the control of the Prime Minister, would this removal make it harder for the Prime Minister to provide overall direction to the public service, gentlemen?
Mr. Aucoin: The Gomery recommendation to have an independent process for the appointment of deputy ministers is based on the principle that deputy ministers ought to be appointed independently and not under the power of the Prime Minister. The actual recommendation is not entirely clear, to my mind. The recommendation refers to the Alberta model. The Alberta model, to my mind, is not entirely clear. I had a discussion about what Justice Gomery is actually saying, because my interpretation of what Gomery is saying is that the minister makes the selection from the short list rather than the Prime Minister. I am not clear if that process is the Alberta model and, in any event, the Alberta model is not written down in law.
If you want to establish a process of independent staffing of deputy ministers I do not think you should go from Prime Minister to minister. That change solves nothing in my mind and probably makes it worse. You have to go to some kind of system of independent staffing. Let me briefly mention to you what I recommended at the Gomery commission because I wrote the chapter on this matter.
I recommended that we adopt something along the lines of the New Zealand model. The independent staffing of deputy ministers in New Zealand came about by accident because their previous system had been one in which deputy ministers were appointed by the cabinet but essentially by an old boys' club. If you have ever watched the television program, Yes Minister, it was a documentary on countries such as New Zealand. It was not a comedy. To make the process more open to political influences there was a proposal that the State Services Commissioner, which is like our Public Service Commissioner for certain purposes, would seek ministerial advice or comment on the appointment of chief executives, as they called them, and would take that comment into consideration. This process would allow ministers to express their views on the kind of people they wanted in these positions, but not necessarily views on individual persons.
The process is now an open one of competitions, and is one where the State Services Commissioner makes a single recommendation to the cabinet: not to the Prime Minister, but to the cabinet. The cabinet can turn down the recommendation if it wants to but it has to state publicly that it has done so and the person's name is also made available. The cabinet has never done this in the 20 years or so that this system has been operating. The reason is that the government has come to accept this process as a productive way to proceed. The public service sees it as a productive way to proceed and even the academics have concluded that it is a productive way to proceed. It is productive in the sense that it produces a public service with a leadership that pays adequate attention both to advising ministers, because that is part of the role, and to managing the process. It also recognized, as well, that one must stay in that position, as Professor Franks has pointed out, to do both things well.
My recommendation for moving in that direction is to ensure that the leadership of the non-partisan professional public service has the right kinds of incentives under which it operates. In that sense, I think the system is a problem. I am not pinpointing individual prime ministers, ministers or deputy ministers for that matter. I do not think this process causes a problem for the Prime Minister, because the Prime Minister, the cabinet and individual ministers have more than ample authority to establish and implement their agenda. This process is not a case of establishing a public service that checks ministers from implementing their agendas. As long as ministers are able to get their agenda through Parliament — their public policies based on law — then deputy ministers and the public service must be fully responsive to that agenda.
This proposal is not obstructionist in any way. It is to establish, as the accounting officer, with principles long established, that a big realm of public policy is in administration and ministers are in charge of that. This matter is of proper administration, and deputies have statutory authority for doing that.
It is also not a case of prime ministers needing people they can trust in these positions. Professional public servants should be trusted by the prime minister, whether they are appointed by the prime minister or not. In fact, if a prime minister cannot trust an independently appointed deputy minister he or she cannot trust the entire public service right down to the street-level bureaucrats, who often exercise more discretion than deputy ministers.
The practice of having an effective public service independently staffed is one that Canada has established over the last century. In fact, the appointment process for deputies essentially was of that independent variety. Over the last 20, 30 or 40 years it has become less so with all the pressures on prime ministers and ministers to have people do their bidding, so it is not a criticism of any particular regime. While we often spoke of Jean Chrétien's friendly dictatorship, this occurred in every single regime of the Westminster sort, including the American government, which is a different level of government.
Those pressures are all of a certain sort and they will not go away, which is one reason for having an independently staffed deputy minister commission.
Mr. Franks: I defer to my colleague's eloquence on this topic. I share his concerns and the need, and I think it is unfortunate that the wording of the recommendation in the Gomery commission has so far obscured discussion on the real issue of how deputy ministers are appointed and to whom and to what principles are they responsible and accountable. Putting it very simply, in our system ministerial responsibility is a basic doctrine. We have the supremacy of Parliament, and we have the rule of law, and I believe that deputy ministers must treat all three as equal. In the present system, to my mind, privilege is ministerial responsibility and the responsibility to the prime minister above the other two, and I think that needs correcting.
Senator Zimmer: Professor Aucoin, in your document, "Naming, Blaming and Shaming'' you state:
Leaving aside the fact that one or more provisions in the Federal Accountability Act now before Parliament, such as the changes to the Canada Elections Act respecting campaign contributions, have little or nothing to do with government accountability...
Are you suggesting that election financing should not be included in the federal accountability act?
Mr. Aucoin: I was very much surprised when I saw the election financing provision in the accountability act. I fail to see how it is an issue of accountability, unless everything becomes accountability, which is not to say that I oppose the particular provision in that bill. The disadvantage of having it in the bill is that it has some provisions that are not directly related to the issue of accountability.
I have done some work in the past in terms of campaign finances as the director of research for the Lortie commission on electoral reform and party financing. One of the great advantages we have had in the Canadian system, notwithstanding what happened in the sponsorship scandal, is that we have developed the best campaign financing system in the world and usually considered matters of campaign financing in relation to other aspects of campaign finance. While this provision may well be an effective new component of the Canada Elections Act, I would have liked to have seen it discussed in the context of other aspects of the Canada Elections Act, in particular the spending limit provision.
Whenever one reduces the capacity to raise money in the system, one should prudently look at issues of one's capacity to spend. One wants to keep those in balance because we are dealing with a highly competitive system. Where scandals have occurred around campaign finance in other jurisdictions, and perhaps to some extent in Canada, it is always when those things get out of whack. You must consider the Canada Elections Act as a corporate whole in that regard.
Senator Zimmer: Professor Franks, in an article that you wrote entitled "From Gomery to the Accountability Act: the devil is in the details'' you imply that the federal accountability act appears to imply a deep mistrust. Can you expand on that a bit, please?
Mr. Franks: The question comes back to what I was saying earlier, that what is needed is a sense of responsibility, that there is a command, control and punish mentality, or there is the old British expression, "Choose wisely and confide liberally.'' I think our system ultimately, right from the principle of ministerial responsibility down, is based on the principle of choosing wisely. Prime ministers really have more power than presidents in many systems, and the checks and balances in the system do not prevent prime ministers from wielding a lot of this power. It is ultimately the role of Parliament in the accountability process and the elections that are the checks and balances.
I made that comment also in the context of a recommendation in Gomery, which I think is very well made, that we already have enough rules and regulations, it is just that they are not followed, and that we do not need a regime of more rules and regulations. The accountability act is so big that it is hard to say it is this or is not that. As I have said, I really support the accounting officer provisions because it seems to me they help clarify responsibility and accountability in a modern system of government. When I get into other things, including some of the jobs given to the agents of Parliament, some of these questions on election finance and whistle-blowing, although that has been changed a bit, I get a little nervous that we are going too far into command, control and punish, rather than inculcating a sense of responsibility into the office-holders.
Senator Stratton: I am interested in your well-thought-out comments. We all have concerns about too much command and control, but to have done nothing after the events of the sponsorship scandal, et cetera — and I am not talking about events under any particular government — would have been wrong. The public demanded that something be done, not only to affect the impact of the Gomery report but also the ancillary impacts of the gun control problem. Electoral financing became a critical part to tell the Canadian public clearly and concisely what we are doing. The public did not want to deal with one issue over here and another over there. To not do that would have been a failure by the current government. What is your reaction to that?
Mr. Franks: My reaction is that the key problem was in the failure of the public service to do its duty. A large part of the problem was that the most senior public servant did not do his duty. The act admirably covers that, as long as, as I said, the skeleton is fleshed out into a living body of true accountability. That is the crucial part of the whole thing. It is perhaps more abstract than saying you fine people this, you limit that or you reward people for something else, but I believe that is the system change that is needed.
Mr. Aucoin: I add a comment on the expectation to correct the failure, to which Professor Franks has referred. Perhaps I should emphasize, in my references to the sponsorship scandal, I refer to the maladministration that took place rather than the corruption at the other end. The problem was that the maladministration allowed the corruption to occur, and the big failure thus arose. That situation is significantly corrected by the accounting officer regime proposed in Bill C-2. That is also why I think the next step to the independent staffing of deputy ministers is necessary. It is also something that will occur over time.
I agree with you in terms of the need to attack things comprehensively. My point about the Canada Elections Act was not that government should not have moved on it but that including it in Bill C-2 perhaps takes away from its consideration with the Canada Elections Act itself. The Canadian public must be infuriated by the fact that deputy ministers have statutory authority and somehow are not accountable to Parliament, and that former ministers and deputy ministers, as Senator Campbell pointed out, can get off the hook because they no longer hold their positions. That is ludicrous.
Senator Stratton: I agree.
Mr. Aucoin: Parliament must exercise its powers of holding people to account, whether those people agree to it.
Senator Stratton: Some senators have been here long enough to remember many instances of asking a current minister a question on a problem of the past and hearing the reply that the minister was not here at that time. The deputy minister offered the same reply, and senators were powerless. That truly must change.
Mr. Aucoin: I do not think that senators are powerless.
Senator Stratton: For the most part, ministers and deputy ministers are off the hook.
Senator Cools: I thank the witnesses for coming before the committee. Professor Aucoin, you appeared last year before the Standing Senate Committee on National Finance and made many of the same comments that you have made today.
I have several thoughts for you. Frequently, I receive phone calls from journalists. I do many interviews in any given year. They always ask me how we can improve accountability. I respond that it requires government, the Prime Minister and cabinet to allow the Houses of Parliament to function as a Parliament, as opposed to simply a function. I mean that sincerely. The essence of your testimony, Professor Aucoin, is the imbalance of power — the concentration of power in the hands of the Prime Minister and the Prime Minister's Office, and the enlargement of the Prime Minister's jurisdiction.
I refer to comments you made a few minutes ago, Professor Franks, on appealing to the sense of responsibility within those people in positions of power to make decisions that are moral — I recall that you said "sense of responsibility.'' You have put before us the phenomenon of what I would call "the moral and ethical foundation of the system,'' with tremendous emphasis on the moral obligation that goes with offices or positions of public trust.
Whose job is it in government to uphold and to affirm those positions, principles, moral behaviour and approach? Please think carefully about the answer because it is difficult to find members and senators who could articulate for you the first 12 or so principles of the system of ministerial responsibility. Which minister is responsible for the moral conduct of office-holders and persons in a position of trust?
Mr. Franks: There is no single principal or guardian of morality in our system. The report of the Gomery commission did not acknowledge it but quoted from a British document when it stated that accounting officers, when in doubt about the propriety — which stands in for your use of "morality'' — of a proposed action, should ask two questions. First, they should ask whether they can satisfactorily defend the decision before the Public Accounts Committee; and second, because the Public Accounts Committee is a proxy for Parliament and the public, they should ask whether they could properly and satisfactorily defend the decision in a public meeting. That does not appeal in any sense to abstract moral rules. Politics is the art of the possible and not the art of the ideal, and that must be kept in mind. First, morality is a personal thing in that you have to feel some sense that what you do can be justified before other people. Second, morality in politics is very much a relationship between the governors and the governed. Ultimately, our accountability and responsibility is to the public, and this is true in many ways for professors as well as for politicians because we have a duty to the community. That does not answer your question in an idealistic sense but it does answer it in respect of process and what I call a sense of responsibility. It means that you have to sense that you can trust what you have done.
Senator Cools: Mr. Franks, you are describing the notion of ministerial responsibility, which in the 1700s, as the system developed, was believed to bring the political morality that was needed to avoid corruption in the House of Commons. The king and the appointees of the day would use their positions to achieve their desired results. I agree that many of these problems have resulted from the loss of comprehension of the basic moral principles that overarched the system.
When certain events occur, such as the one involving David Emerson, I receive many phone calls. Why is that wrong? You will know. I frequently tell people about the principles and refer them to a source. The problem is that not many ministers read about those ancient bodies of principles because one has to dig pretty deep into the literature to find them. For example, the principle that the two Houses must exist in a state of harmony with each other provides the means to pass bills through Parliament. However, I recall one Liberal minister, and there have been others, who publicly attacked the Senate on a regular basis.
When new members join this fine institution, where do they learn these principles? When a young able-bodied individual joins the public service or the ministry, where does this individual learn these principles? Frankly, I do not hear anybody in positions of leadership articulating these principles. My heart is with you. I agree with you.
Mr. Franks: I could argue that saying a simple thing such as when you are faced with a difficult decision you should ask if you can defend this decision before a public accounts committee is a general philosophical principle. It is, in a pragmatic way, an operational expression of Kant's categorical imperative. You should act as though your decisions are in accordance with general principles. It is a very profound thought, in a way.
The problem I see in the sponsorship scandal — not to trivialize it — is that for better or worse, for right or wrong, the federal government perceived a drastic problem that needed an emergency solution. Unfortunately, the emergency solution ran out of control and was abused.
To say it was an emergency situation is a matter of judgment. I might not agree it was as big of an emergency as they said or that they should have gone into the sort of program they did. However, they were entitled to do that. The problem came when those who had the duty to ensure the program was properly run failed to do so. We have to make a distinction between those two.
Senator Cools: You are coming in my direction in a particular way. Having discovered those problems, why was Parliament not asked to deal with them? Characteristic of the whole handling of that sponsorship scandal was the evasion of any judgment by either of the two Houses of Parliament.
Mr. Franks: It was also an evasion of informing Parliament about the program.
Senator Cools: Yes it was, in addition. The situation was very bad undoubtedly, but the responses to the situation were equally bad because they were all in the direction of avoiding a judgment of the House. I am trying to work my way toward Professor Aucoin's point about the weakness of Parliament.
Some of these problems have political origins. Undoubtedly, the sponsorship scandal had serious political overtones. I sincerely believe that if Parliament had its say and passed judgment on those individuals, the country would have been better served. This is my own private thought.
Mr. Franks: I share your view in retrospect, with one qualification. The fact that the government set up a commission and looked at it —
Senator Cools: Avoided Parliament?
Mr. Franks: No, I do not mean it in that sense. Many people said to Justice Gomery and the commission that having an Anglo-Canadian being so remorseless in pursuing the abuses that were so offensive to French Canada restored some faith in the system.
Senator Cools: Do you think so? I think it was the most demoralizing spectacle I have ever seen in my life.
Mr. Franks: Would you rather it had not happened?
Senator Cools: I did not say that. I would have preferred that Parliament dealt with it. Parliament should have been permitted to pass judgment on the political people and civil servants involved.
I was raised to believe that Parliament, this system, was the jewel of universal constitutionalism. Not to reveal caucus discussions and so on, but I belonged to that group of people who wanted to see it dealt with rather than whisked away to avoid an election, and to be put into the hands of a so-called royal commission. When Parliament speaks and passes judgment, it is usually a sounder judgment, I believe.
The Chairman: Professor Franks, do you want to make this your final comment on this subject because two other senators have been waiting patiently?
Senator Cools: I have another question. We need to find a way to divide up our time. The ones at the front end of asking questions get generous time.
The Chairman: Senator Day is the opposition critic and he is always given ample time.
Senator Cools: I make a motion to the effect that we should have our witnesses back.
Mr. Franks: In 1923, the British Parliament found the same objection to things being funded secretly out of private funds. The Public Accounts Committee made recommendations to be followed since then that things could only be funded for a limited number of years without getting parliamentary approval. We do not have that rule in Canada yet.
Senator Cools: What I was looking for from you as well is that the Public Inquiries Act needs serious revision. It was the use of that act to appoint the royal commission that allowed the government to duck Parliament on many of these issues. In the U.K., they still must go to Parliament individually, commission by commission, but not in Canada anymore.
The last point I wanted to make is to ask you to amplify two things, if you can. First, in your remarks you made a statement to the effect that a prominent group of Canadians opposed or condemned the Gomery recommendations.
Mr. Franks: That was Professor Aucoin.
Senator Cools: Could you comment on that? Second, in respect of strengthening MPs and Parliament to fulfill its proper role, do you have any comment on what I would call the practical day-to-day functioning of Parliament? For example, in today's society, the Prime Minister or the government chooses the members of the committee, and the chairman of the committee. Frequently, these persons are chosen for weakness, complicity or whatever. In today's community, they are not paid. When the bill came before us to start paying chairmen and vice-chairmen of committees, I opposed it personally. Can you comment on that?
You are dealing with an enlargement of jurisdiction and power in the hands of not even prime ministers but the people around them that is unprecedented. We want to make Parliament stronger. How do we deal with the situation we had a couple of years ago where the Prime Minister announced he would rid himself of 75 or 80 MPs who were troublesome by not signing their nomination papers?
Mr. Franks: I will not comment on the election laws. On the other points, I believe that members of committees should be appointed for the life of a Parliament. I believe the chairs of committees should be appointed for the life of the Parliament. We run into the same problem there that we have with deputy ministers under the current system: that they are patronage appointments.
It is not only the government that does it. The opposition parties do it, too. I think we got off on a wrong step there. I would like to see that changed.
If we say the prime minister's power is entrenched in the deputy ministerial community, surely the party leadership's power is entrenched equally strongly in controlling the behaviour, rewards and punishments in the House of Commons, in particular.
Senator Cools: It is a huge problem. I sincerely believe that we are doomed unless Parliament begins to function as a Parliament. Thank you very much. I have read all your stuff, Professor Aucoin.
Senator Milne: I am not sure which one of you gentlemen suggested joint committees: that is, having the Public Accounts Committee or the National Finance Committee set up as joint committees. I want to warn you against that. Both of you have appeared before both committees of both Houses and you know the difference between the committees of both Houses. The joint committees all operate under the rules of the House of Commons committees. That is enough said on that matter.
As a result of that, you never get the in-depth questioning that you do here in a Senate committee. You simply cannot get it with the way the House of Commons apportions the questions.
Professor Franks, you said that most deputy ministers have not been around long enough to live with the results of their decisions, actions and failures. This act has no provisions regarding the appointment procedures and tenures of deputy ministers. Reform in these two areas is essential if the reform to the responsibility and accountability of ministers and deputy ministers proposed in the act are to succeed. What would you recommend?
Mr. Franks: I like Professor Aucoin's approach, with the proviso that I believe the appointment of a deputy minister should be for five years. If deputy ministers are removed, Parliament should be notified of that fact. Documents should be produced explaining the reasons for the removal — I hesitate to say for cause, but removal should not be a trivial measure. Deputy ministers are entitled to have a power of position long enough to exert their authority and uphold their responsibility and duties. I do not think that happens in the selection procedure Professor Aucoin has discussed admirably.
Senator Milne: Professor Aucoin, you pointed out that in the United Kingdom, in the case of disagreements, an accounting officer can ask for written instruction from a minister. Am I correct?
Mr. Aucoin: Yes.
Mr. Franks: I will volunteer to answer this one because I did the paper on that subject for the commission. The minister says, "I want you to do this.'' The deputy minister is called a permanent secretary there. First, a long discussion occurs. At the end of the day, when the minister insists, the deputy minister says, "I cannot support that decision because it goes against my responsibilities as accounting officer.'' The minister, who presumably has consulted with colleagues — and on every important issue for the last 40 years has done so — writes back and says, "I insist you do this because it is necessary in the public interest,'' or for whatever reason. The deputy minister then does it, but when the Public Accounts Committee is faced with it, the Public Accounts Committee brings the deputy minister before them and asks, "Did you write to the minister?'' The response is, "Yes, I did.'' Sometimes the correspondence is private, which is when you get into the question of cabinet confidences. The chairman of the Public Accounts Committee then asks, "Were you overruled by the committee on this.'' The deputy minister would reply, "Yes, I was.'' The chair would then ask, "Therefore, the minister has the responsibility for making the decision?'' The deputy minister would reply, "Yes.'' Believe it or not, the Public Accounts Committee ends there, because its concern is strengthening the deputy minister positions. The committee investigation from then on is conducted in another committee of Parliament.
Senator Milne: It then goes to another committee of Parliament?
Mr. Franks: Yes: The important issues have been dealt with that way.
Senator Milne: The answer is yes, unless they are covered by cabinet confidentially?
Mr. Franks: They still go there. Sometimes members have appealed when the issue has been held to be confidential. Then, the equivalent of our information officer has examined it and either supported it or not supported it.
There have not been many of these issues. Of the two that have become public — and they are in the appendices to my study of the Gomery commission — one was immensely damaging to the Thatcher government. The second one was supported by the public and the government because it was an issue where the permanent secretary's responsibility for value for money would have meant that British industry would not have had something that the government felt it should have had. That is to say, a contract dealing with military procurement would have gone to another country.
Senator Milne: Do you think a version of this could be worked into the Canadian parliamentary context?
Mr. Franks: I do. However, I share Professor Aucoin's caveats. I would not rush into it because I think we have to work through this concept. My main concern is that Parliament, and particularly parliamentary committees, put enough emphasis on the system that includes the deputy ministers: how they are appointed and their tenure and what Parliament holds them responsible for — that is, the definition of their responsibilities, where they begin and end, how ministers begin and end and how they resolve disputes. The emphasis must go that far before we have a real working system. It will not happen overnight.
Senator Joyal: Professor Franks and Professor Aucoin, it is a pleasure to see you back. I have to declare a conflict of interest with Professor Franks, with whom I worked for several years.
I would like to come back to one of your preliminary statements to the effect that our system is organized on the principle of diffusion of power with various components. I want to come back to Parliament per se.
Professor Aucoin, you mentioned that one characteristic of the Canadian system is an imbalance of power between the government and Parliament. Professor Franks, you have been a keen observer of the functioning of Parliament — that is, of both Houses. The way I see the bill and the dynamics that the bill contains, I do not think it will address that imbalance per se between the government and Parliament. I think you and the Gomery commission have been highlighting the role of the Public Accounts Committee. However, the Public Accounts Committee is like the fire department: it comes once the alarm has been triggered. However, the commission should prevent the fire from happening. Essentially, that is the study of the estimates. Through the estimates process Parliament can hold the government to account.
If you look at the way the estimates are dealt with — and I think both of you have observed that — the estimates are not even discussed because they are presumed to be adopted by such a date. By its very nature, Parliament has abandoned its role to scrutinize because the estimates are deemed to be adopted by the end of May. That overall role of Parliament and the responsibility of dealing with all those reports from those six or so officers that are piled up on the system will not change the practice of Parliament. That abandonment will have an impact on the public service because, everything being equal, you cannot have structure without having to provoke readjustment or reaction to the system.
However, in terms of Parliament, I do not see anything in this bill or in anything the government has announced so far that will change the way that imbalance of power that you have described between government and Parliament will be addressed.
As a matter of fact, the House of Commons more or less has the ability to appoint chairs of committees through election. As you know, the first initiative of the present government was to put that ability aside and appoint the chair, contrary to what you have concluded in the Gomery report. The minimum of independence that the committee already had was more or less set aside.
The overall issue of imbalance is not addressed fundamentally. In the years to come, we will probably conclude that we have not arrived at a solution that would change some of the fundamental elements of the way the system has operated.
Mr. Franks: I see a problem in the parliamentary budget officer, which is that we have a parliamentary system of responsible government. As part of that system, the government is responsible for the estimates. That is the government's program. The estimates are a fundamental policy document and a control document over administration. I fully support that all parliamentary committees need more support to the extent they can use it, and there I agree totally with Mr. Gomery's report. It is not just a budget officer and not just on budget. As you know, if you look at the estimates documents, you are talking about the Main Estimates: the votes. Also, departmental performance reports and everything else need a closer look — not every single one of them, but a look — so somebody can identify problem areas and talk about them.
Ultimately, the government has a responsibility for proposing and defending. I can become very frustrated with Parliament and parliamentary committees. On the other hand, we have a wonderful system of government that works well. In all of this, one must bear in mind proportionality: that the sponsorship program was one hundredth of one per cent of the expenditures of the Government of Canada. Most of the rest passed the smell test reasonably well. This weakness puts us up with the other governments of the world. We are not dealing with a system run by saints, scholars and wise kings. We are run by a government of human beings with all their fallibility.
The more I have looked at both Houses of Parliament over the years, the greater the respect I have for the commitment of people. Sometimes the system frustrates that commitment. I could go on for an hour or two on reform of committees. That is where I began my interest in Parliament — Saskatchewan in the 1960s — but I will spare honourable senators that history and defer to my colleague who made more criticisms of Parliament than I did.
Mr. Aucoin: One of the things I do is comparative studies. It is safe to say that the Canadian political culture and political tradition make the Canadian political system one of the best in the world for many reasons.
In part, we have been fortunate. You are absolutely right in terms of the imbalance of power. We operate a system that depends hugely on the behaviour of the government and the public service to do the right thing. The checks we have in the system have either diminished or have never been terribly effective in Canada.
To compare to other systems, Britain, for example, has a much larger House of Commons, which is able to do a lot of the effective work. A tradition in the British House of Commons is that a large percentage of MPs — less than a majority — take the holding of government to account as the first priority. The Parliament of Canada sent a committee 10 or 15 years ago to Westminster and was surprised to find how many MPs in Britain think that holding the government to account is the priority. Studies in Canada show that it is way down on the list. It is not even on the radar screen. Britain also has had the accounting officer system.
Australia has been fortunate in a more unruly political system to have a powerful Senate. Its House of Representatives pales in comparison to the House of Commons here, in a way, but the Senate is powerful. The Senate has the accountability function, in part because of the number of senators who have been around for so long in that system. Their electoral system makes them a powerful and knowledgeable institution.
The system in New Zealand was probably the weakest of the four until it adopted proportional representation. Overnight, the imbalance of power changed hugely, even with coalition governments that tend to be coalition minority governments. The House of Representatives went from being a weak Parliament to a strong one that also made effective use of the resources it always had, such as the Auditor General.
In the Canadian case, what we have done with the accountability bill is improve on the margins. The accounting officer concept is important; some aspects of helping Parliament are important. We have not dealt with the issue of public service independence, which is coming in all jurisdictions.
We certainly have not dealt with the fundamental issue, namely, the estimates. If Parliament does not pay much attention to the estimates, it is unlikely to pay much attention to the accounts. If it does not, it will not catch these things. Where was Parliament during all of this? Why were these questions not asked earlier? Even when the sponsorship scandal exploded, why was the Public Accounts Committee not more effective? These things resulted in a shambles after a while. All that speaks to those traditions, cultures and practices.
One final point is to be made, particularly for political scientists such as myself that throw around the terms such as "prime ministerial government'' and "prime ministerial power'': it is important to remember that the Canadian Prime Minister is more powerful than any of the other Prime Ministers in the world. Margaret Thatcher was thrown out at the height of her power. Bob Hawke in Australia was thrown out at the height of his power. David Lange in New Zealand was thrown out. That does not occur here. Our prime ministers are powerful, mostly because of their security within the party system. Tony Blair has survived largely because the Labour Party has a system of disposing of its party leaders, and therefore, prime ministers, which is very much like the Canadian tradition. They can do it, but it is eight months of blood on the floor. He has been able to survive, compared to Margaret Thatcher, who was out literally within 24 hours.
The capacity of a prime minister to dismiss the independent selection of chairs speaks to that as does the capacity to have a system that favours free votes that disappear after an election. Those kinds of things occur within our system because of the power of our prime minister. The power is not in the occupant of the position but in the position itself.
Senator Cools: Professor Franks did not comment on his statement about the prominent Canadians who have rejected the Gomery recommendations. Could he include that at some point before the end of the meeting?
Mr. Franks: I apologize.
Senator Cools: You are forgiven. I will forgive you anything.
Mr. Franks: I felt a hatchet job was done on the report by taking some of the things that were not terribly strong — one that Mr. Aucoin has discussed is the specific process for appointing deputy ministers — and attacking these things to the point of missing what Gomery was saying. For example, ministers should not be witnesses before a public accounts commission because the commission then becomes partisan. When it becomes partisan, it does not pursue the responsibilities of deputy ministers. It should pursue the responsibilities of deputy ministers and force the public service to live up to its responsibilities and so on, all the way along.
The Gomery commission recommended that records be kept of decisions. Look at the issue that the Public Accounts Committee is looking at now. When was it decided that things should not go into a supplementary estimate? There is no record of the meeting, and people are giving different explanations of what happened.
These things are serious, but I have felt that a group of people were opposed to the demands that the deputy ministers become responsible and accountable in a public forum. I carried on my side of that argument, too, at the time. I have been quoted as saying that this was Kroeger and the Notables, as I call them, a rock group of some sort, which did that. I know that Mr. Kroeger has been before this committee and I have the highest respect for him, but I simply did not agree either with the tenor of that discussion or the overall thrust of the arguments. I appreciate having the opportunity to come before this committee and to offer a different way of looking at things.
Senator Baker: When Professor Aucoin mentioned the British system and the comparisons, I was thinking that in 1974, Stanley Knowles and I, both members of the committee, travelled to Britain and to other nations, examining their accountability structures, namely, Question Period, committees and so on. We came back with two recommendations. One was to allow committees to originate their own terms of reference, and the other was to appoint an outside body, made up of representatives of the academic community and the media, to recommend constant changes to the rules regarding such things as Question Period, committees and so on.
I think that outside separate committee still exists under the British system. In other words, we are saying you cannot leave it to politicians to change their own rules to make the system accountable. How do you feel about that?
Mr. Franks: I can give you an answer on the first. When the estimates were given to committees — and I think it was 1968— the Speaker, to my astonishment, would not accept a substantive report on the estimates. The Fisheries Committee, in particular, attempted to write serious reports and they would not be accepted, the reason being that the estimate issue was simply a vote on the money. That was changed just a few years ago, so your work with Mr. Knowles took 20-plus years to reach fruition. It means that committees can now initiate their own investigations. One regrets that they so far have not been terribly enterprising on that. This is a terrible thing to say, but that whenever I look at committee work in Parliament, I hold up Senate committees as the models to choose on investigations. There have been some good ones in the House of Commons, but I could probably list five Senate committee reports to every House report. I think we get back to one of the things that Professor Aucoin mentioned, which is shortage of manpower.
Mr. Aucoin: I agree. My reference is to giving even the minorities on committee's greater powers, for committees to scrutinize and to hold people to account. You certainly cannot do that with respect to legislative committees because there you have to respect majority rule, but for committees that are holding the government to account or conducting scrutiny, it is important that those committees be as strong and as independent of the government as possible. The majority of that kind of work these days must be done through committees, it cannot be done on the floor of the House or the Senate. We can measure the efficacy and effectiveness of Parliament by the capacity of the committees to do this work without the command of the government, particularly as your party discipline coming down strong.
On having outside bodies to recommend rules, for the same reason that in Canada we have made huge progress compared to other countries by using things like independent electoral boundary commissions for matters that touch upon the partisan interests of members of Parliament, it is always useful to use outside bodies in some fashion over these matters, because partisans find themselves in a conflict of interest when they are pursuing these matters. There are partisan interests versus the public interests, so the best of people will get tipped the wrong way at times. That, again, I think is introducing a check within the system that is very helpful. If you look at what is occurring in several other jurisdictions around the world surrounding matters of constituency boundaries, you can see the wisdom of the Canadian approach in this regard.
The Chairman: Thank you very much, witnesses. This has been excellent. I know that you both have had an opportunity to appear before Senate and House committees before, and every time you come before Senate committees we are all enriched by what you are able to do by way of enlightening us as to the subject at hand. Today the subject at hand is Bill C-2. Thank you for your words and your helpful understanding of some of the difficult sections relating to accountability. It is deeply appreciated.
Honourable senators, I am saying goodbye and thank you to these two witnesses. There are more to come, but before we suspend, I have a motion I must revert to Senator Milne.
Senator Milne: I move that in consideration of any votes on any motions dealing with the disposition in committee of Bill C-2, an act providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, that any votes be held no earlier than the completion of hearing all witnesses.
This has been normal practice within this committee, never to have votes before all witnesses have been heard. I am just putting it once again, as has been done in the past, into words.
Senator Stratton: Is there any further discussion with respect to that motion?
Senator Cools: I am just wondering why you think it is necessary. You are saying it has been done in the past, but there is no need to do it just because it was done in the past. Why do you think it is necessary?
Senator Milne: I am just proposing it so that both sides can relax and nobody gets blindsided by any motion to go immediately to clause-by-clause.
Senator Stratton: So you mean by adopting this motion, senator, you guys can stay away?
Senator Milne: No, you can stay away.
Senator Stratton: That, too. You guys do anyway, for the most part. You have a tough time turning out.
I would like to put an amendment to this, if I could, because there was an agreement made earlier, notwithstanding the motion put by Senator Milne, that Bill C-2 be reported back to the Senate no later than the afternoon session of the Senate on Tuesday, September 26, the reason being that it was a previous agreement made by the steering committee — it is in writing — that this bill would be reported back by September 26. That is three weeks from now. We can hear every witness under the sun in three weeks. Therefore, I put that motion as an amendment to your motion, Senator Milne.
Senator Campbell: Can I see that agreement in writing? I am advised that there is no agreement in writing. This is the first I have heard of it and I would like to see that document.
Senator Day: I am wondering if this is a proper amendment to the earlier motion.
Senator Cools: It is not an amendment. This is a new proposition.
Senator Stratton: I guess the fundamental question becomes: What are you afraid of?
Senator Campbell: I am not afraid of anything. I just want to make sure that we get to listen to all the witnesses. We could be finished before then, but I am not sitting 24/7 just to get this through. I might add that when the Liberals brought in this type of a bill, it took four months for the Senate to go through it. That was a Liberal Senate. It took them four months to go through it. It made sense.
Senator Stratton: Why did this committee not sit over the summer then? We could have had four months.
Senator Campbell: Why would we want to sit over the summer?
Senator Stratton: We could have had four months.
Senator Campbell: What is the urgency?
Senator Stratton: There is an urgency to get it done and you know the reason as well as I do.
Senator Campbell: There will not be any bones sticking out if we do not have this thing done in any given time. I do not see any great emergency. You had the big emergency in Afghanistan and people are dying there. Nobody will die if we do not have this thing through by September 26. This committee is set up by the Prime Minister, by the Conservatives, to try and embarrass the Senate, and frankly I am not prepared to go along with that. They will say, "Oh, well, they're dragging their feet. Here's another example of people who do not want to do anything.'' I am prepared to sit eight hours a day to talk to witnesses and to hear what they have to say.
Senator Stratton: If we sit eight hours a day for three weeks —
Senator Campbell: I am not sitting next week.
Senator Stratton: Five days a week, eight hours a day: how many hours is that?
Senator Campbell: One hundred and twenty hours, but I am not sitting next week because we had an agreement that we would sit the first week and we would sit the third week.
Senator Cools: I would like to say something, Chairman. I know of no agreements, and I am not convinced that the steering committee can make such agreements on anyone's behalf.
Perhaps, Mr. Chairman, we need a full-fledged discussion here on the relationship between the steering committee and the broader committee. While we are throwing everything into the wash, I belong to that group of people that do not even understand how witnesses are chosen and what inputs the members of the committee have into choosing witnesses. I am not happy with just a note saying, "Meetings are fixed, these and those dates are there, just get here as soon as you can, and by the way, here are the witnesses.'' That is not good enough for me.
The issues on the table are piling up, but the first issue before us, honourable senators, is that the amendment is not an amendment to the motion. It is a new proposition.
Senator Milne: I agree with Senator Cools. It is not a proper amendment to my motion, but I would like to hear from the two members of the steering committee who were here when I was absent.
Senator Stratton: I would like to ask why, in your opinion, my amendment is inappropriate? It gives a due date.
Senator Milne: You ask your colleague. It does not amend my motion in any way whatsoever. It is a further issue.
Senator Cools: A motion is a distinct proposition, and your amendment, as a proposition, is valid, so we are not talking about its validity, but it should be moved as an independent motion, not as an amendment to a motion.
Senator Stratton: I do not object to that, but I would like to put that proposition forward as a separate motion, if that is acceptable to the room.
Senator Campbell: I am still waiting to see this written agreement.
The Chairman: Is there any other discussion to come before the table?
Senator Joyal: As far as I recollect, and I would like to stand by what Senator Campbell mentioned, when the government proposed that we sit in the first two weeks of July, which was originally put to the members of the steering committee, Senator Day and I finally agreed at the committee that we would not propose that the committee sit the first two weeks of July. Instead, we would sit two weeks before the Senate resumed its sitting, which is this week and the third week, because at that time the chair was not available for the week of September 11. We totally recognized that. We were informed that the chair was to be away.
The Chairman: The week of the eleventh of what?
Senator Joyal: The week of September 11. That is what we were informed.
The Chairman: Who told you that, senator?
Senator Joyal: You, Senator Oliver, said the committee would not sit the week of September 11.
The Chairman: That I was away, did you say?
Senator Joyal: That you would not be available. I do not the specific reason, but that you would not be available the week of the eleventh.
The Chairman: That is false.
Senator Joyal: That is the impression we got.
The Chairman: It is a wrong impression.
Senator Joyal: If it is a wrong impression, I did not want to offend you in whatsoever way. That is the impression I had and I apologize if it was wrong, but instead of sitting the two weeks in July we would sit in September, before the Senate resumed. That is why we are sitting today and the rest of the week, and that is why we would sit the week of September 18. That was agreed and that is why all members on the government side are here and members on the opposition side are here.
Senator Cools: I need not have been here? Do I conclude that I need not have been here today because Senator Oliver was available next week?
Senator Joyal: No, we had that agreement and that is why a list of witnesses was put forward and witnesses were invited, as is the usual procedure, to come and testify this week and the week of September 18. We have that agreement and we have absolutely no quarrel with that. On the contrary, I think it is a proper way on the committee's part to show that the committee wants to deal with this bill in a serious manner and bring to the bill the thorough consideration that today we have brought to the witnesses that were before us. I think that is the way the committee should continue to do its work.
Senator Cools: In the nature of a formal written agreement, what you are really expressing is hopes and intentions, perhaps, as to how the committee should move ahead, which is a different proposition from a formal signed agreement.
Senator Joyal: That is essentially our perception. Of course, the committee is always the master of its own decision and the committee may decide when the committee wants to sit or not.
The Chairman: Senator Campbell, before you make your comments I would like to say that, as Senator Joyal said, all individual committees of the Senate are the masters of their own agenda, and the whole committee can make decisions on how they deal with studies, bills and other things. It is not a subcommittee or anything else who makes these decisions but the whole committee. However, the whole committee should know that there have been four months of extensive negotiations in relation to witnesses for this hearing, orally, in writing, over the telephone and in offices. Those negotiations were done by the so-called steering committee, or the Committee on Budgets and Administration of the Standing Senate Committee on Legal and Constitutional Affairs. Agreements were reached by that subcommittee upon which the hearings have been held today.
It seems to me that the normal way that most Senate committees deal with the calling of witnesses and so on is not to do it in open television before all Canadians but the steering committee meets, prepares a list and the list is given to honourable senators to review. Why we have to do this in public and to show various disagreements and misunderstandings is beyond me. It seems to me that the proper thing to do is to give this subject matter to the committee where it belongs, the Committee on Budgets and Administration that deals with the naming and the calling of witnesses. They prepare a list and times, and present it to the committee. It should be done on the basis of the four months of negotiations already completed from which certain conclusions have already been reached.
I wanted to put that on the record.
Senator Campbell: I am not trying to disagree with anyone. All I am saying is that when we met in July, I was advised — and it may be in writing, I will have to check my notes — that we would sit the first week of September and the third week of September. I was not advised that we would finish this committee on September 26. I have seen the witnesses as they have come out, and there is a long list. I asked why we were sitting in September and I was advised that an agreement was reached that we would sit the first and third week and not in July. I was told that was agreed upon by everyone, and I accept that. I felt that was fine, and now I understand that. However, I have seen nothing about September 26. I am advised now that it is in writing and I would like to see that document.
If the committee is the master of its own destiny then the committee can overrule anything.
The Chairman: That is perfectly clear.
Senator Campbell: I am not questioning you, Mr. Chairman. I accept everything that you and Senator Stratton have said. We have known about this since at least July.
The Chairman: As I have said, negotiations have been ongoing for four months.
Senator Campbell: In July, we agreed we would sit the first and third weeks of September. There was nothing about September 26.
The Chairman: That is not true.
Senator Campbell: Excuse me, Mr. Chairman. Are you accusing me of lying now?
The Chairman: No.
Senator Campbell: I promise you; on my honour, I know nothing about September 26. I have never seen or heard anything about it from anyone save this morning. I was told this morning that there was September 26.
Senator Cools: When I raised the business of the relationship between the steering committee and the whole committee, I did not in any way mean to question the integrity of anyone or the good intentions of any of my colleagues. I was not questioning the substance or the good wisdom of the choice of the timetable by which the committee should proceed or even the choice of the witnesses. I was attempting to clarify was that the steering committee works and acts on behalf of the committee. The steering committee is a delegated authority that should receive authority from the larger committee at all times. Senator Oliver, if you call this Senate practice, I dispute that quite strenuously. When I have served on committees the steering committee eventually comes to the larger committee for approval of its overall plans.
The Chairman: I said that was the procedure.
Senator Cools: That is what you said. What do you mean by that is what you said?
The Chairman: Go ahead.
Senator Cools: You cut me off. You could at least finish and tell me why.
The Chairman: Please take the floor, Senator Cools.
Senator Cools: I had it. You cut me off.
Some committees used to proceed by a kind of written report, which would set out the witnesses and a proposed timetable. I think you could say that it makes for good social cohesion, not to mention good politics, to keep committee members involved and participating in the process of what I would call the proper functioning of the committee.
There is not a witness that I heard today who I would not have voted for or approved of gladly and willingly. However, I believe that the chair of the committee and the other responsible persons just have to ensure that committee members are apprised and are asked to approve of the actions of the steering committee. Habit is a funny thing. Certain persons engage in certain practices for a year or two and then tell you that it is a practice forever more. That happens quite often in this place. If those habits have become practices, then just let me put you on notice that I do not accept it. I do not accept it. I expect to be consulted and to have the witnesses and the plans of the committee brought forth, in camera or in public, for my involvement and participation. That is how I wish to function. The committee clerk may have a different opinion but that is okay with me, too.
I want to be able to express my approval that those witnesses who came today were welcome witnesses. They were excellent witnesses. I am not trying to be picky, but I do believe that the proper functioning of a committee should proceed on the basis that all senators are equal and that all senators have a right to participate in the decisions of the committee. It is that principle that makes a committee a master of its own proceedings rather than a master of the one or two whims and fancies of one or two people.
I want to keep the principles straight.
The Chairman: Thank you, Senator Cools.
Honourable senators, I would like to tell you that when a Senate committee is first formed it is usual to have a subcommittee appointed during that founding meeting. The language of the motion forming the subcommittee reads as follows:
That the Subcommittee be empowered to make decisions on behalf of the Committee with respect to its agenda, to invite witnesses, and to schedule hearings.
That is the power.
Senator Baker: I agree with you completely, Mr. Chairman. We have a witness waiting. Perhaps we could postpone the discussion until after the witness has finished so that CPAC can cut away without having this discussion.
The Chairman: Senator Day, did you want to comment?
Senator Day: I agree.
Senator Stratton: The suggestion was to take about three minutes to do the two votes.
Senator Baker: If it will take only three minutes, why not use those three minutes after the witness is gone.
Senator Stratton: Senator, the public is waiting for the answer. The public deserves to know. They need to know now.
The Chairman: Senator Milne has moved her motion.
Senator Milne: I have moved it twice now.
The Chairman: Will all those honourable senators in favour of the motion of Senator Milne raise their hand?
Contrary?
Motion carried.
Senator Stratton, your motion.
Senator Stratton: I move that Bill C-2 be reported back to the Senate no later than the afternoon session of Tuesday, 26 of September 2006.
The Chairman: All those in favour, raise —
Senator Campbell: I have a question.
I am still waiting to see this signed document.
Senator Stratton: The question has been put.
The Chairman: All those in favour —
Senator Campbell: So you are shutting us down.
The Chairman: No, I am not shutting you down.
Senator Campbell: You called the question.
Senator Stratton: Senator, the question has been put.
Senator Campbell: You called the question. You are stopping us from any further debate.
The Chairman: All those in favour?
Contrary minded raise their hands?
Abstentions?
The motion is defeated.
Honourable senators, I am now delighted to introduce Leslie A. Pal, professor of public policy and administration at Carleton University. Professor Pal taught for 10 years at the University of Calgary and has been at Carleton University since 1992. Professor Pal has served on the national boards of the Canadian Political Science Association, the Institute of Public Administration of Canada, the Institute on Governance and the Performance and Planning Exchange. For several years, he worked with the Civil Service Training and Development Institute of the Government of Hong Kong training senior civil servants. In addition, he has worked on public sector reform projects in Ukraine, Russia, Armenia and Georgia.
Leslie A. Pal, Professor of Public Policy and Administration, Carleton University: Thank you very much. I would like to begin by thanking the committee for this opportunity and share some thoughts on a very important piece of legislation. This is my first appearance before a Senate committee and following Ned Franks and Peter Aucoin is a tough act to follow. I am not sure what I can add but I will share some general thoughts. I will make my comments in English.
I submitted a short paper that tried to provide an analysis of the concept of accountability. My remarks are focusing primarily on Part 4 of the legislation that deals with the relationship between deputy heads or deputy ministers and ministers; in other words, the issue of ministerial accountability.
I can see from the previous discussion that you are well aware that the proposition of an accounting officer concept is at the heart of the bill's proposed restructuring of the relationships of deputy ministers and ministers. I support the idea and I support the way it is framed in the legislation.
I also agree with Mr. Franks who said that in any attempt to implement such a new kind of relationship we need to be careful in how it is shaped and framed and how it is introduced. We must be careful because even though it does not depart that much in practice from the types of accountabilities that senior public servants have before Parliament, it would introduce a new philosophy of relationship between elected and appointed officials. It would alter the scope of accountability and personal accountability that senior officials would have before parliamentary committees.
Others did not support the accounting officer concept, at least in the way it was proposed in Gomery. This was alluded to in the previous discussion. I believe that the current legislation has struck a balance by introducing the notion that the accounting officer would be imbedded within the broader tradition or framework of ministerial accountability. For those who were initially sceptical or concerned about the potential constitutional impacts of such a change, this seemed to have mollified them to some extent. However, you will be better judges because you have a wider scope of witnesses before you. I still think that in practice, whatever language is used, it does imply a significant change in philosophy about the accountabilities of appointed civil servants to Parliament.
The point at the heart of the debate is twofold. The first question is, as I put it in my paper: Is accountability all or nothing? Does it have to be organized hierarchically all the way up to the minister, uniquely through the minister to Parliament and, more broadly, subsequently to the wider electorate?
In my interpretation, those who had reservations about the accounting officer concept clung to a notion of a single flow or single channel of accountability through the public service, through to the minister and then subsequently through to Parliament. More fundamentally, they view political accountability to Parliament as an all-or-nothing affair, as indivisible, in a sense. The approach that I hinted at in my paper is that we can perhaps begin to think about accountabilities in a more complicated or complex way. I use the term "joint stewardship'' at the end of the paper as another way of thinking about a partnership between elected politicians and appointed officials in their collective responsibilities to Parliament and to the Canadian people.
As I mentioned in the paper, the traditional hard view of ministerial accountability is that it is indivisible and constitutionally, legally, and in practice imbedded in the person of the minister who then is accountable to and before Parliament.
The second aspect of the point at the heart of the debate is whether the traditional doctrine of ministerial accountability is adequate to contemporary Canadian governance. Even if we did not want to change it in any major way, that we did not want to go down the road to an accounting officer concept, if we stuck with the old traditional conceptualization of ministerial accountability, is it adequate to the structures and practices of contemporary Canadian governance? I do not think it is. I think in some measure the discussions and debates around the accounting officer principle and beginning to think of accountabilities in a more complicated way is actually coming to grips with the reality of much more complex government. It is trying to come to terms with the notion that the appointed part of the executive should be held accountable and answerable in its own right in some measure to Parliament.
I spent a little bit of time in the paper reviewing the basics of ministerial accountability and I am sure it is familiar to all the members of this committee. As I said, at its heart the traditional interpretation suggests that accountability runs through the minister to Parliament and eventually to the electorate. If we accept this theory, how well does it work in practice? Contemporary governance puts substantial strains on this conventional notion of ministerial accountability. The sheer size of government obviously makes it difficult for ministers to be answerable or accountable for each thing that goes on within their departments.
There is a move — ironically in a sense, intended to further the depoliticization of certain aspects of governance. The use of arm's length agencies such as foundations that we have established in the last number of years here in Canada makes it difficult to reconcile the traditional concept of ministerial accountability with organizational forms which are now somewhat of a hybrid of ministerial departmental forms. They are directly responsible or connected to the minister or others that are at arm's length or once removed where ministers are still answerable in some respects for those organizations and agencies, but they do not determine their activities in the same way that they allegedly or constitutionally speaking determine the activities within their departments.
There have been a number of changes in management philosophy and management thinking in the last number of years to give deputy heads more authority within their departments for management issues. We have gone down that road and tried in the late 1970s with the Lambert commission and earlier with Glasco report talking about letting managers manage. If they are responsible for the management practices within their departments in a much larger sense, it seems to make sense as well to provide them with the proper accountabilities. The reality is that deputy ministers appear and report on administrative practices within their departments and before Parliament.
As we saw in Gomery, there are some matters of concern in terms of how public servants and politicians account for their actions. I have an extensive quote in the paper from the Gomery report concluding that in fact this was not a system of accountability but a system of mutual deniability in the context of the sponsorship program.
If it does not work particularly well in theory, why should we hang onto the conventional interpretation of ministerial accountability? I do not think there is such a problem in thinking about divided or complementary accountabilities — complementary accountabilities for administration or management and then subsequently for policy. There are arguments on both sides about what this would imply in terms of the possibility of ministers refusing to respond to questions about management because they would point the finger at senior officials and say it is their responsibility.
I introduced the concept of joint stewardship near the end of the paper to try to suggest that there are ways that we can begin to think about mutually reinforcing accountabilities within the executive branch, but thinking in more complex, balanced terms between the appointed elements of that branch and the elected. I think that is where we are gradually going, though again I would echo the point that Mr. Franks made about being relatively careful about thinking through the implications of this in practice over the longer term.
The final point in the paper discusses the problem of disagreements. If we do have more personal and formal accountability by senior public servants, what happens when there is a disagreement? Professor Franks spoke with respect to the process in the U.K. A similar process suggests that in the event of disagreements there should be formal letters lodged with external authorities and eventually resolved by the Treasury Board.
In conclusion, at least with respect to this one issue, the bill has been reasonably well thought out. I think it is reasonably realistic in terms of what it is suggesting. It is time to move forward in respect of our thinking on accountability and not to become mesmerized by the traditional or conventional concept of ministerial responsibility, which has been shown to be difficult in practice in contemporary governance. We have examples from other jurisdictions that show it is possible within a parliamentary Westminster system to think outside the box in organizing these relationships to ensure better transparency and better accountability.
The Chairman: Thank you for the excellent overview. I will begin the questioning with the opposition critic on this bill, Senator Day.
Senator Day: Professor Pal, we have spent a great deal of time on this narrow issue of the proposed federal accountability act. Professor Franks commented earlier that no one individual could possibly grasp all the different aspects of the bill. Unfortunately, the committee has been tasked with doing just that.
In respect of the accounting officer, referenced in the proposed section 16.4 of Part 1.1 under Financial Administration Act, at page 187 of the bill before the committee, the bill states:
16.4 (1) Within the framework of the appropriate minister's responsibilities and his or her accountability to Parliament, and subject to the appropriate minister's management and direction of his or her department, the accounting officer of a department...
How would you interpret the words "subject to'' and "within the framework of'' in light of ministerial responsibility?
Mr. Pal: The act attempts to balance the conventional and traditional definition with a specific reference in the legislation to ministerial responsibility, with an innovation that would formalize accountability to Parliament. I believe that Mr. Kroeger, who initially opposed the introduction of the accounting officer concept on the basis of ministerial responsibility, in his testimony before the commons committee indicated that he could live with this formulation of the balance between ministerial accountability and the accounting officer concept. In my conjecture, that is being attempted with this proposed legislation.
If this passes in the form as you have read it, senator, it will be interesting to find out what it will mean in practice: what it will mean for the performance or accountability of senior officials before parliamentary committees and, I suppose, what it will mean in respect of how parliamentary committees might view their capacity and scope for calling public servants to account.
Senator Day: We have had two sets of witnesses today. One group indicated that the minister, through ministerial responsibility, could be accountable and that the deputy minister or accounting officer could be accountable before a committee on the same issue. The accounting officer would be accountable before a committee of Parliament but the minister would be accountable as well to Parliament, generally, on the same issue. Is that the interpretation of joint stewardship that you talk about or is that a kind of piggybacking? Do you accept that concept?
Mr. Pal: For clarification, do you find that problematic?
Senator Day: I would like to understand what this section truly means. If the proposed section does not define clearly what the draftsmen wanted, then the committee's responsibility, before we put it out there for interpretation by a judge, is to have the section state clearly what is intended and what is desirable.
Mr. Pal: It will never be possible to have sharp distinctions between what a minister would be accountable for and what an accounting officer would be accountable for. It would be a pipedream to think that through the drafting of proposed legislation or guidelines we would have separated spheres of influence and accountability between the two members.
The wording in the bill is an attempt to elevate, highlight or emphasize the personal, specific accountability of a senior public servant in a way that has not been recognized before. As senators know well, the practice is such that senior officials are called to account or they are answerable before committees. The bill attempts to formalize personal accountability of senior officials while maintaining a balance within the broader notion that the minister is constitutionally accountable to Parliament for everything that happens. Critics have raised the worry about this balance that in a circumstance, the elected politician or the appointed official can claim that it is the responsibility of the other to be accountable for one or other aspect of policy or administration.
I do not have great fears of that because in the practice of government, particularly at senior levels, there would be an accommodation and agreement. Ministers and deputy ministers have to work closely together and their work practices iron out any possible gaps in the accountability regime.
Senator Day: Do you endorse the view that the concept of ministerial responsibility covers everything that occurs within the minister's department, and that this is a kind of subtype accountability as defined in the bill? In this way, there will never be any gaps because the minister will have full and total, but not exclusive, responsibility. Is that what you are adopting, and is that what you mean by "joint stewardship?''
Mr. Pal: The idea of joint stewardship is to try to recognize that the accounting officer and public servants have substantial responsibilities for the non-political management of their departments and agencies. In recognizing that, joint stewardship makes it clear that they will be accountable and answerable to Parliament in a personal way. That is a useful step forward in my view. The idea behind it is to have an incentive structure that will create a formal obligation to maintain appropriate standards in running their departments.
Senator Day: I am still not certain which of the two views you are adopting — the accountability officer kind of accountability unto a committee of Parliament or the ministerial responsibility kind of accountability to Parliament. Are they exclusive or overlapping?
Mr. Pal: Ultimately, ministerial responsibility is political or policy accountability. In an ideal world, we could divide linguistically the responsibility between policy direction and the politics administration dichotomy. In practice it would be difficult because they overlap. I would like to see us evolve cautiously in that direction. We cannot introduce major changes without being careful about it. The balance between policy responsibility on the part of the minister and a day- to-day management responsibility on the part of deputy ministers makes conceptual sense. In practice, that is what we have done. The conventional theory of ministerial responsibility maintains the fiction that everything is ultimately answerable or accountable by the minister. I do not think that accords with the reality of contemporary governance and our own practices. What this does in a modest way is acknowledge the reality.
If you are asking would I be comfortable with the appointment of an accounting officer without using the language that is in here that embeds within ministerial responsibility, yes, I would be generally comfortable with that appointment. This tries to balance the two and, in a sense, embed the accounting officer direct accountability or responsibility within this larger framework of ministerial responsibility. What that would mean in actual practice, I do not know; but I think in practice what you will have is a formalizing and a sharpening of the specific, even if they are considered delegated responsibilities and accountabilities to public servants.
Senator Day: By adopting the term "accounting officer,'' which comes from the United Kingdom in 1872 legislation that we got excited about a little while ago here, it suggests that there are two domains and policies and ministers. If the minister is asked a question in Parliament about the administration within the department, he will say his deputy minister will answer those questions, and that is before a public accounts committee.
Mr. Pal: I do not know if it has to be that way. I think it would still be acceptable if we decided to adopt a practice that ministers be expected to answer in some measure — or at least eventually answer in some measure because obviously appointed officials cannot appear in the chambers. It would mean that on a day-to-day basis the bulk of that management accountability would be undertaken before investigative committees and review committees on administration. I know at some level it sounds contradictory, but I do not see why it would not still be possible to exercise the prerogatives of Parliament in the House with respect to the accountability of the minister.
My view of accountability is more elastic. I certainly do not wish to disparage a long tradition of scholarship and constitutional ideas about what ministerial accountability should consist of, but in my review of the literature, I think the Canadian practice or view has been somewhat too brittle. Those who would defend that approach would argue that we need to be extremely careful with constitutional principles and we should not change them without careful forethought. As the previous witnesses indicated, our system on the whole works extremely well, so if it ain't broke, don't fix it.
Senator Day: Is accountability to you answerability or is it something more than that?
Mr. Pal: In the paper, I tried to distinguish different types of responsibility, of answerability. Accountability is a combination of being both responsible and having an obligation of care for something, and also having an obligation to respond to questions, investigations or examinations to those to whom you are properly accountable. It is a combination of obligation, of responsibility and of answerability. That is why I think the concept of accountability is a more robust and serious concept in comparison to other types of relationships that we see in governance or in management.
Senator Day: The responsibilities have been there with respect to deputy ministers before this legislation; and the practice at least, and therefore the obligation from a practical point of view, has been there for the deputy minister to appear before committees of both Houses of Parliament. What does this legislation add to that?
Mr. Pal: It formalizes it. We have been operating under constitutional conventions with respect to those responsibilities and accountabilities. Those who are concerned about it see it as a major change in the constitutional relationships between senior officials and elected politicians, elected ministers, so you can view it quite radically. If you view the conventional concept of ministerial accountability as the heart of our constitutional system, even a modest change to it can be seen as quite radical.
The alternate view is this could be seen as a relatively incremental, modest change that formalizes a relationship and underscores a constitutional obligation for accountability in certain spheres to the appointed officials. Then it also, in conjunction with the process for resolving disagreements, formalizes a process. There was a process but it essentially involved an informal convention of approaching the clerk if there were disagreements between ministers and deputy ministers. This would formalize a written trail or evidence of disagreement. It has a resolution process that is more transparent and visible, and it still remains within the hands of elected politicians in the end.
Again, this is a difference from Mr. Gomery's proposals, which I think also exercise some opposition from those who thought that the ultimate constitutional responsibilities of governance in our system always must rest, almost exclusively, with elected officials.
Senator Day: From a practical point of view, is this just formalizing and putting into statute a practice that has already existed?
Mr. Pal: I believe in large part, yes, but the implications down the road might be such as to strengthen the sense — at least among elected officials — that they have specific accountabilities and formal accountabilities, not simply ones that are part of the regular practice of parliamentary reporting.
Senator Day: Gomery wanted to go further with respect to the dispute resolution portion. This bill is restricted in that regard only to directives of Treasury Board, as you see. There could be disputes that exist, and there likely will be disagreements from time to time between the deputy minister and the minister on issues outside of directives from Treasury Board. There is no dispute resolution for that. Do you recognize that in this bill?
Mr. Pal: I may have misread it, senator.
Senator Day: It is proposed section 16.5 that reads, "...unable to agree on interpretations or applications of policy, directive or standard issued by Treasury Board, the accounting officer shall seek guidance...'' It is only Treasury Board, so it is a restricted process.
Some witnesses have said that it should be much broader and others have said there should not be anything at all. This seems to be coming down the middle, much like the other section we were just reading.
Mr. Pal: Again, it is a very specific set of disagreements around management principles, not about policy.
Senator Day: Yes, it concerns Treasury Board management issues.
Mr. Pal: You would not expect there to be a way of resolving policy disputes because policy should be in the hands of the minister.
Senator Day: There are many more management issues than directives from the Treasury Board; that is the point I am making.
Mr. Pal: That is correct.
Senator Day: It is only Treasury Board directives that are involved in this dispute resolution.
Mr. Pal: Yes.
Senator Campbell: Professor, are we proposing the end of the Westminster system model? I will get an answer one of these times.
There is a lot in the proposed legislation that I like. What I see here is almost moving to the business model, where certain people within an organization are tasked with certain decisions and that is their responsibility. There is no question that the person at the top has ultimate decision powers, although here not necessarily so and I will go into that next. Are we moving beyond this Westminster model?
Mr. Pal: I do not believe so. I did allude to some of the concerns that have been expressed by those who publicly criticized some of the recommendations from Gomery. They criticized those provisions directly on the grounds that this would involve a constitutional revolution. I do not think they put it quite in those terms, but this would be a fundamental change in our Westminster system.
I do not agree for the following reasons, as I indicated earlier to Senator Day. The other parts of the bill are more substantive, fundamental, organizational, and institutional changes. However, these specific provisions seem to be relatively modest amendments that formalize certain relationships and try, in a modest way, to tease out a slight separation or balancing of accountabilities so that we have a clearer and firmer idea that senior public servants have certain internal management issues for which they are accountable. I see this objective as relatively modest.
The other issue is how central you think this set of relationships is to the larger Westminster system. Obviously, you know better than I that it is a system that is, in the Canadian case, characterized by the roles and respective responsibilities of the House of Commons and the Senate, our committee system, our political parties, and the conventions, practices and history of how our government operates. No, it would be hard for me to imagine, with the introduction of a relatively modest amendment of this sort, that the very complicated system would come crashing down and be fundamentally altered or changed forever more.
Senator Campbell: The second question concerns resolving a difference between, for instance, the minister and the deputy minister. In this version, a committee of cabinet makes the ultimate decision.
This issue may be hypothetical, but what would be the effect on the minister who had a decision overturned because the committee of cabinet decided that the deputy minister was right? Under the Westminster system, what is the minister's choice?
Mr. Pal: It would depend on the gravity of the disagreement. This is all hypothetical, but if such a disagreement reached this stage, it would have to be fairly significant; it would not be minor disagreements in management. Under that scenario, overturning the minister's decision would indicate a certain lack of confidence, possibly on the part of the minister's colleagues in cabinet. Again, it would depend on the nature of the disagreement and the decision.
If the issue was about something on which reasonable people could disagree or was entirely a management issue, I do not know if it would necessarily lead to the resignation of the minister, which I think is what you are getting at. However, if it involved lapse of judgment, some degree of culpability, or even modest wrongdoing or questionable political judgment exercised with respect to an administrative matter, then that would lead to the possibility of a request by the Prime Minister for resignation of the minister.
Senator Campbell: Should the decision of the committee of cabinet be secret?
Mr. Pal: The Secretary of the Treasury Board and the Treasury Board itself would be the committee of cabinet. As I understand the legislation, the decision of Treasury Board would be lodged with the Auditor General. Frankly, I am not clear about whether that would be made public.
Senator Milne: Professor Pal, you talked about complementary responsibility. In answer to Senator Day, you said that this bill is a partial answer to setting up a system of complementary responsibility.
In my experience, when a deputy minister appears before a committee, the deputy mininster will often say, It is a political matter, or a policy matter and I cannot answer that: The committee will have to ask the minister. What if the minister is asked a question in the House of Commons and the minister says, That is completely in the field of interest of my deputy minister: This responsibility has been granted to the deputy minister by Parliament. A member of the House of Commons, a senator or the public has no way of having any particular committee call a deputy minister before the committee on any particular issue. The whole thing falls down on that premise.
I also see a problem with disagreements between a minister and their accounting officer being resolved by Treasury Board and then Treasury Board reporting to the Auditor General. However, a cabinet matter can be covered by cabinet confidence and neither the public nor members of Parliament will know the answer. The matter may be resolved quite nicely behind doors, but the process does not make it any clearer or more transparent to the public. I have great concerns with this particular part of the bill.
Mr. Pal: Do you want me to comment on that?
Senator Milne: Yes, please.
Mr. Pal: I do not wish to appear necessarily partisan in favour of the provisions here. I am trying to think through what the potential logic might be. Generally, I like the idea because it introduces some clarity and recognizes some reality. Therefore, I support the measure.
Senator Milne: This is where the logic falls down.
Mr. Pal: It is difficult to imagine that a minister, when asked about management issues with respect to their portfolio or department in Parliament, would simply refuse to answer by pointing the finger at the deputy minister. In fact, that is exactly what Gomery and the provisions in this legislation were intended to get around because in the previous regime that seems to be what happened. Politicians pointed fingers at each other or at their public servants and the other way around. That policy administration split was never cleared. It really cannot be cleared. However, because there was no formality to the responsibility with respect to administrative matters, tracking things down became more difficult.
You may be correct, but I think this provision is intended to get around this problem. I find it difficult to imagine ministers simply refusing to answer questions. With the way it is framed here — and this goes back to the response to Senator Day — the framework of ministerial responsibilities as formally mentioned in the legislation is intended to be captured here. That is, a minister cannot completely and entirely evade answerability, if not necessarily day-to-day accountability, before Parliament. If that balance were struck — that is, if ministers did not try to evade questions at a general level about their responsibilities and at a specific level, if it turned out that there were allegations of wrongdoing — the minister would still report on the advice and the support of the deputy minister. The deputy minister's accountability and answerability is before committees, again looking specifically at activities and management practices within departments.
I do not necessarily see that scenario. It is possible, but I think, unlikely, frankly. I wish to add a footnote to something Professor Franks said. What we have here is legislative provision. What matters most definitely is the way in which we elaborate and flesh out those legislative provisions in a set of practices and conventions. As you well know, building conventions, practices and understandings is difficult and takes time.
To this extent, I agree with people who are concerned about the potential impact. We would want to do exactly what you are doing: namely, think through the potential implications and ensure to the greatest extent possible that negative consequences do not arise.
Senator Milne: In that case, Professor Pal, what areas of this bill — perhaps this area — would you like to see explored more fully before this committee before we have completed our hearings? Are there any specific sections of the bill where improvements can be made so that public servants and the minister can fulfill their responsibilities to Canadians?
Mr. Pal: I had taken my brief to look specifically at section 4, and I did not explore in detail other elements of the legislation. The role of the public integrity officer and the provisions on whistle-blowing could bear some additional scrutiny. I believe the original provisions of the bill were amended in the House with respect to the reward system for whistle-blowers. One issue there, and I say this cautiously because I have not looked at it in great detail, is the question of trust within the public service more generally.
One potential criticism of the system that will be developed on the basis of the legislation, if it passes, is that, paradoxically, it may create the impression that public servants and elected officials are considerably more corrupt or inept than they actually are. The paradox would be the illusion that all this machinery is required on a day-to-day basis to ensure that people behave appropriately when, in practice, these behaviours were aberrations. Mr. Gomery underscored this. These behaviours were departures from the day-to-day rules and practices.
In general terms, there is a lot of support for many of these measures. They address sets of relationships that have either been not addressed or addressed in different ways before. The general philosophical worry I have is that, in the end, we may undermine to some extent public trust, even as we try to address concerns that have come from these previous events.
Senator Milne: Are we throwing the baby out with the bathwater here?
Mr. Pal: It is possible. As far as I know, the legislation will introduce, if all the provisions go through, one of the most robust accountability regimes in a Western democracy, with a whole host of provisions dealing with election financing, lobbying, internal relationships among public servants and elected officials, some aspects of Parliament and reporting provisions around budgetary and financial issues. The final result will be a much more baroque architecture. In that respect, if the legislation does not completely undermine the Westminster system, it will, in the aggregate, when all of these different pieces of Lego are put together, affect the system in ways that are unpredictable at this stage but could have a cumulative impact that is greater than the sum of the different pieces.
Senator Cools: I would like to welcome the witness here today, and I just want to say, Professor Pal, you have a most interesting name.
Mr. Pal: It is Hungarian in origin.
Senator Cools: Is Pal an abbreviation or a shortened form of a name?
Mr. Pal: It is a fairly common name in Hungary. I go there occasionally. It is like Smith.
Senator Cools: I shall call you my pal.
The ethics commissioner regime is challenging, as it is in this bill. I do not know whether you have given this any thought, but let me just try.
According to this bill, a novel constitutional creature will be created called the ethics commissioner, and who, because of the method of appointment, of necessity will be a Crown servant. As you know, for over a hundred years now, Parliament has not been comfortable with Crown servants for profit in their midst. I am sure you are aware that it took about a hundred years to drive the office-holders out of Parliament, even to the extent that until about 1935, I believe, ministers of the Crown in Canada had to resign and, to run again, had to get the permission of their constituents to be their minister. Few people know it any more, but that was the law. An MP could not be a minister of the Crown so easily. It was a difficult proposition. It used to be a dangerous proposition, too.
In the House of Commons, there is no such real creature as an officer of Parliament or agent of Parliament. That is all a concoction, a large illusion, a kind of intellectual fiction that has been perpetrated. However, each House had its officers — the Senate had its officers and so did the Commons. We know who some of those officers are: the Clerk of the Senate, the Clerk of the House and the law clerks as well.
Therefore, this bill has this novel creature. Not only is this an office-holder who is a Crown servant, but he or she is actually employing or deploying the name that is clearly Her Majesty's servant, which is "commissioner.'' As soon as you hear commissioner, you know the constitutional level involved.
I have to caution you that it is not easy to find many people to put these questions to because the most neglected area of study is probably the law of Parliament and its twin sister, the law of the prerogative. However, if you were to look at the proposed sections of the bill that constitute this new commissioner and make it a joint creature, which is even more novel and so on, I wonder if you could wrap your mind around the fact that this new constitutional creature will acquire what seems to me the total powers, privileges and immunities of the Senate. The interesting thing is that individual senators would not have these powers because the novel thing about parliamentary privileges or senators' privileges is that they are held in collectivity. These privileges are unlike the privileges of judges. In the case of Parliament, it is a collective, so I hold my privileges in a collectivity with every other senator.
Proposed section 86(2) states the following:
The duties and functions of the Commissioner under subsection (1) are carried out within the institution of the Senate. The Commissioner enjoys the privileges and immunities of the Senate and its members when carrying out those duties and functions.
I read that to mean that the Senate privileges are being conferred on one individual because the individual.
It is very interesting. It is in a different part of the bill. If you go to clause 48, page 26 — you do have a copy of the bill in front of you?
Mr. Pal: Yes, I do.
Senator Cools: Clause 48(1), you see that here the commissioner is vested with the full powers of summoning witnesses. There is not an individual senator who can go out and do this sort of thing. A Senate committee can do that, the Senate as a whole can do that, but any such decisions made collectively become a motion. That is what made the process of impeachment so cumbersome, because every single item had to move ahead by motion, debate and a vote.
These sections are very worrisome because what you are dealing with here is giving an individual first the constitutional position of being a Crown servant. Then you turn it around and vest that individual with the full powers, privileges and immunities of the Senate. Then this individual is supposed to make an assessment and judgment about the conduct of members.
I am just wondering if you have any thoughts on it. To me it is a very scary creature. I would say it is unconstitutional.
The Chairman: There is a question for you.
Senator Cools: A lot of you fellows come before us and you are wonderful witnesses. We are blessed to receive your knowledge. Very few people look at the actual drafting of the legislation for what I would call its conformity to the principles and the law of Parliament. I can tell you that 60 years ago, whoever would have drafted that would have impeached this sort of thing.
Mr. Pal: I have to admit that your knowledge of parliamentary procedure vastly eclipses mine. I did not look at this section of the bill very carefully.
Senator Cools: While you look at it, please go to the proposed section on removal. I think it is around clause 82. Proposed section 82(1) of the Parliament of Canada Act speaks to the tenure of the commissioner. What we have here is a medley of every single form of tenure mixed into one. For example, proposed section 82 reads, "A commissioner holds office during good behaviour for a term of seven years.'' An appointment is during good behaviour or it is for a term. In addition to that, if it is for a term, then it goes on: "...may be removed for cause by the Governor-in-Council.'' Removal for cause is a different concept from removal by motion, an address in particular, of the Senate and the House of Commons. This guy or gal will be irremovable — make no mistake about that — because every form of tenure has been thrown into that clause.
I know that a lot of this stuff that I am speaking about has become to many people rather cryptic, but trust me, I have made it my business to study this and what you have here is a new constitutional creature with an extravagant investment of power who is then going to be virtually irremovable. Any government's attempt to remove this guy will invariably force a vote of confidence and a defeat of a government. It is problem-riddled and I cannot get anybody to look at it. If you have not thought about it, I appreciate that, but when you go home, see if you can take a look at it.
Mr. Pal: I do not necessarily see a contradiction between good behaviour for a term of seven years and dismissal or removal for cause. I agree that a joint address would make it very difficult and it would be hard to see, outside of really egregious behaviour, that you would have that agreement. A fixed term, but serving on good behaviour during that term, seems to be not contradictory.
With respect to the other point that you made, proposed section 86(3) says, "The commissioner will carry out those duties and functions under the general direction of any committee of the Senate.'' The same is true of the House of Commons. I suppose this is just the safety clause, but proposed section 87(5) says "...this section shall not be interpreted as limiting in any way the power, privileges, rights and immunities of the House of Commons or its members.''
I am perplexed, but I am wondering whether there are not some balances here. I should not engage in conjecture because, as I said, I have not looked at this closely.
Senator Cools: I would just ask you to give it some thought. If you want to look at that proposed section again to show you the devil in there, it says "on address of the Senate and the House of Commons.'' Well, addresses are to the Governor General, not to the Governor-in-Council. Even that is an irregularity, because it is patterned after the section in the BNA act about the removal of judges, serving good behaviour but may be removed on address. It says very clearly "by the Governor General.'' In all its wisdom, Parliament does not address the Governor-in-Council. That is what an address is. It is the mode of communication from the Houses to the monarch.
Mr. Pal: I would be happy to undertake some reflection on that.
Senator Cools: This is a strange, novel and unique constitutional creature. Then they try to convince me that this will be an officer of Parliament. Not so. I would even dispute the use of the term "parliamentary agent'' and "officer of Parliament.'' These are novel terms that have just sprung into action recently. Even the use of the words creates a lot of confusion. If you come across anything, I would be happy to talk to you about it, because I am shocked by it.
Mr. Pal: I would be happy to.
Senator Cools: Thank you. See, you will be my pal.
Senator Joyal: Mr. Pal, I would like to come back to proposed section 16.4 of the Financial Administration Act. Senator Day raised this issue. It states,
Within the framework of the appropriate minister's responsibility and his or her accountability to Parliament, and subject to the appropriate minister's management and direction of his or her department, the accounting officer of a department, named in Part I of Schedule VI, is accountable before the appropriate committee of the Senate and the House of Commons for...
Then there are four elements of accountability.
I have two questions. The first one deals with the wording in proposed section 16.4(1)(a) of the amendments to the Financial Administration Act, when it says.
(a) the measures taken to organize the resources of the department to deliver departmental programs in compliance with government policies and procedures;
To me a government policy has the content of the government agenda, if you want. While in fact, if you read in the French part of the bill, it says, in the same proposed section 16.4(1) (a):
...en conformité avec les règles et méthodes administratives applicables;
Therefore, clearly we are dealing with the administration.
In the English version, however, government policies seem to be more a way that the deputy minister is organizing the resources of government to deliver the government policies, which may be a program that provides for a delivery of a service or a benefit to a certain group of citizens. It would be the responsibility of the deputy minister, who is deemed an accounting officer to properly organize the resources of the department, be it in terms of facilities or human resources and so forth.
I tried to wrestle with the understanding of that proposed section. Of course, when I read the French version, there seems to be a doubt. I would like your comments in regards to that.
My more substantive comment is that if something happens in a minister's department that deals with resources of the department, administrative issues, for example, there is wrongdoing, the department does not deliver on time or there are critics, would the minister not be tempted to send the deputy minister to the appropriate committee and say that this is the realm of the deputy minister according to section 16.4 of the act. The deputy minister has to answer, is accountable, and will give the committee the explanation. Do you not think, as you said in your remarks, it is the law of unintended consequence? Today, we can always seek the responsibility of the minister for wrongdoing in the department. However, the moment you put into an act of Parliament specific responsibility for the deputy minister whereby the deputy minister is accountable to a proper committee, in fact you add into the system an element whereby a minister who is caught in a difficult situation will try to send it to the deputy minister. The minister will tell the deputy minister to explain the matter to the appropriate committee of the House or the Senate because it is the deputy minister's responsibility, not the minister's.
As you said, a convention will evolve for a minister to try to skip responsibility rather than the situation at the present time, where the minister answers for it because, as you know within the old understanding, the minister is presumed to be responsible for what is going on generally in their department.
Mr. Pal: On the first point I agree with you completely. The French wording is much more precise with respect to administrative practices and procedures. There is an ambiguity in the English, I agree.
On the second point, I am not sure what kind of scenario you have in mind but I do not necessarily see that as problematic. Rarely do ministers resign for faulty administrative practices within the departments. Ministers, as you well know, tend to resign almost exclusively in cases of visible wrongdoing or personal culpability on the part of the minister.
If the accounting officer is indeed responsible for administrative practices, as the deputy head is indeed responsible, and those administrative practices, policies and measures to maintain effective systems of internal control within the department have not been effectively implemented, I do not see why that deputy head should not appear before a committee and be responsible for their duties as they are listed here.
I do not necessarily see that situation as the minister escaping responsibility. I see that responsibility and accountability being more clearly focused with respect to the management and operations of the department. If a deputy head falls short of their responsibilities with respect to the management of the department, I do not see a problem that they would be held primarily accountable.
Senator Joyal: I have no objection per se that a deputy minister comes to a committee, be it national finance, public accounts or any other committee that deals with an issue of Parliament. I am just trying to understand how the system works once you have codified a precise and determined sector whereby the deputy minister will now be responsible for this.
I am not opposed to the idea of the deputy minister appearing before a committee. Many committees hear deputy ministers who represent administration. I am concerned with the political dynamic that you would include in the system whereby this is now clearly stated in an act of Parliament that the accounting officer, that is, the deputy minister, is now accountable before the appropriate committees. I would be tempted, if I were a minister, to tell the deputy minister to go to the committee and explain themselves because legally the statute says it is their responsibility. What is the responsibility of the minister in Parliament now for the sound and proper management of a department?
Mr. Pal: I can see one possibility where questions might be raised about why the minister was not aware, or why the minister only suddenly became aware of improprieties, for example, in the department. That would be a legitimate question to ask the minister. The minister might respond by saying they were not aware because they were not made aware. In other words, the deputy head did not fulfill their responsibilities to ensure that the minister was properly informed, but I think that may happen in any case. You might have some additional steps in the process, but it does not necessarily mean that the minister is let off the hook completely.
May I introduce this idea, which is pure conjecture? The way ministerial accountability works now is that we have this fiction that ministers are responsible for everything that happens within their department. We know the reality is different. They cannot know everything. A political dynamic, if you will, tends to happen where even small errors of administration, because the minister is allegedly responsible, are elevated into gaffes, criticisms or critiques. When did you know? When did you find out? Why were you not better informed? What are you going to do about it? Even relatively small matters of administration are amplified politically in partisan terms because we have this possibility of blaming or claiming accountability on the part of the ministers all the time.
It may well be — and this is conjecture — that by introducing more formal, if limited, accountabilities for the accounting officer you may relieve ministers from egregious attacks based on relatively minor aspects of maladministration. It may focus the accountability of the minister where probably it more properly lies, which is on government policies and issues of state. It may, in fact, result in depoliticizing the process in some respects simply by ensuring that there is a little more clarity about what the respective responsibilities are.
Senator Baker: The wording referenced by the honourable senator talks about government policies and procedures.
Later, in the same proposed section, it states "...and answer questions put to him or her by members of the committee...''
As you know, we do not have a law in the House of Commons to require a minister to answer a question. Would you suggest it would be a good thing to put into Question Period a requirement that a minister answer a question?
What we have here now is something in an act of Parliament that requires that person to answer the questions put to him or her concerning, as Senator Joyal pointed out, government policies. With your great knowledge of parliamentary procedure, would you anticipate a much litigated matter concerning whether or not somebody has actually answered a question, which they will be required to do under this bill? Would you recommend the same thing be required of ministers?
Mr. Pal: My understanding is that there is a constitutional convention that ministers need to answer questions in the House. That does not mean they have to answer them to the satisfaction of those who pose them. That would be true of this provision as well. You can answer a question by simply saying, "I do not know.'' That is an answer. It does not shed light on the question, but it is an answer.
Senator Baker: The only thing requiring someone to answer a question is in the Canada Evidence Act. A minister does not have to answer a question.
Senator Joyal's point was that when you are required to address government policy as it relates to your functions and then you have it in law that you shall answer the questions put to you, then that is an additional requirement.
Mr. Pal: I beg to differ slightly. We do not have a legal requirement for ministers to answer, but the constitutional convention under ministerial accountability is that there is someone answerable for portfolios and activities of government.
The prospect that a minister could refuse to answer ad infinitum would be a direct contravention of constitutional —
Senator Baker: Do you ever watch Question Period?
Mr. Pal: Yes, I do.
The Chairman: Thank you, Senator Baker. Senator Zimmer has the last question.
Senator Zimmer: Thank you for your presentation. You said earlier that Gomery was an aberration rather than the norm. My question has a bit of an election financing slant to it.
It is being proposed that the amount for individual donations be dropped from $5,000 to $1,000. That is pretty drastic in any scenario. In 2003, the new rules were brought in by Prime Minister Chrétien. Since then, we have not had an analysis of how effective they have been. Even Mr. Kingsley has said it is too early because we have not done any analysis of the average donation and if there has been any abuse. To my knowledge, since 2003 I have not heard of any abuse at the $1,000 corporate level.
My question is: It is almost in the eye of the beholder. How would we arrive at $1,000 from $5,000? What is the rationale for that decision? I suspect if you were to ask everyone in this room each person would have a different number. The perception is that lower is better. A former prime minister once told me, if the people believe you are an early riser, you can sleep until noon. It is probably true.
As Senator Milne said earlier, are we throwing out the baby with the bath water? What is your perception of lowering that amount without there having been any real analysis of what has transpired since 2003?
Mr. Pal: On this one, I actually disagree with both Mr. Chrétien's introduction of limits and with this element of the legislation. This is simply a matter of personal belief. For me, as a matter of democratic practice, one of the most fundamental aspects of democracy is for people to be able to support political parties and other representatives of their political interests.
I would go in the other direction. The legislation contains this proposal which has been part of our practice for a number of years under the previous government. That is simply a matter of political philosophy, if you will. I am not an expert on election financing.
I think the reasons are fairly straightforward. The political party in power has a better capacity to raise individual donations as compared with its competitors. Speaking frankly, the introduction of these limits plays well politically. It also plays well strategically to the capacities of the current government. Other political parties will have to change their fundraising techniques in order to compete.
The Chairman: Professor Pal, the title of your presentation is entitled "Accountability: General Issues''. From the questions you have received from senators, they have been very general and very specific. You have done a wonderful job at responding to them all. On behalf of all honourable senators, I want to thank you very much for your appearance.
The committee adjourned.