Good afternoon, ladies and gentlemen.
This is the Legislative Committee on Bill C-2, meeting number 14. Orders of the day, pursuant to the order of reference of Thursday, April 27, 2006, are Bill C-2, an act providing for conflict-of-interest rules, restrictions on election financing, and measures respecting administrative transparency, oversight, and accountability.
Our first witnesses today are the Canadian Newspaper Association and the B.C. Freedom of Information and Privacy Association.
I hope my voice will stay long enough to introduce you; we'll do our best.
Anne Kothawala is president and chief executive officer; David Gollob is vice-president of public affairs. It's good to see you both again. Of the second group, the president is Richard Rosenberg; Stanley Tromp is research director. Good afternoon to all of you.
As you know, our witnesses normally say a few words at the outset, followed by questions by members of the committee. I don't know who is going to go first.
Ms. Kothawala...ladies first.
Thank you, Mr. Chairman, for having given us this opportunity to share our ideas with the committee. I am here today with David Gollob, our Vice-President, Public Affairs. I will limit my remarks to those sections of the Accountability Act that concern the public's right to know.
The CNA speaks for Canada's daily newspapers on matters affecting the industry. We share the interest of this committee in greater transparency and accountability in government. The public looks to newspapers for insight and context, not just the facts but the story behind the facts. When access to that story is blocked, we cannot do our job. If we cannot to our job, our system of democracy is in trouble. It really is that simple.
Freedom of information has been recognized by the Supreme Court of Canada as a quasi-constitutional right. From the tainted blood scandal where records were shredded, to the Somalia affair where records were hidden, to sponsorship where records were deliberately not created, Canadians have learned that we need better access law, not more exceptions to it.
Evidence provided at the Gomery Commission showed just how easily the right to know can be thwarted. Although many revelations concerning the sponsorship scandal were made following access to information requests filed by journalists working for the major dailies, witnesses also criticized the fact that there was political pressure on them to hide the truth.
We should all be concerned about that. Those efforts to hide the truth failed. Next time we may not be so lucky.
During the election campaign, we applauded the Conservative Party's promise to prevent next-times by introducing a federal accountability act. A core component was the commitment to enact Commissioner Reid's open government act, a reform package that would bring Canada's Access to Information Act into the 21st century, on a par with other modern democracies. But when Bill C-2 was introduced, the open government act was missing in action.
We believe the new government had been persuaded to defer the one promise that had power to expose and thus pre-emptively deter wrongdoing. It was also the one promise that inspired loathing among a powerful group within the federal bureaucracy. We were disappointed with that decision, as we were with the broad sweep of changes to access to information under Bill C-2. Thus my theme today: first, do no harm.
As in medicine, public policy must avoid remedies that unintentionally make the patient sicker. Prescriptions that pretend to cure, but don't, are just as bad. The patient gets worse and the false belief that a cure has been found puts an end to the quest. The patient today is the public interest, and the patient is feeling very poorly indeed.
Broadening access to information to include more crown corporations, officers of Parliament, and federal government agencies is a remedy whose promise is defeated by the mandatory exemptions that apply. We are talking about mandatory exemptions with no time period, no injury test, in excess of protections already in the act that government departments and even our security services have learned to live with.
For example, Health Canada receives proprietary information from pharmaceutical companies, which is protected under section 20 of the existing act. There is no reason why the Export Development Corporation or the AECL could not live with this type of protection. Health Canada and the companies it deals with find these conditions livable, despite the fact that the exemption is subject to a public interest override and reviewed by the Information Commissioner.
Another example: The Auditor General's office will come under the act, but the mandatory exemption renders its exclusion meaningless. A draft internal audit report, like the one that sounded the first alarm bells of the sponsorship scandal, would be sealed forever without a public interest override. Information about the Auditor General's office would be limited to travel and expense claims, which are already posted on the Internet.
The CBC requires a journalistic carve-out and we support that. But don't make it an exclusion immune to independent review. Commissioner Reid's open government act has language that will protect CBC journalism without endangering the principles of freedom of information.
Fixing this should be easy; you have the tools. If the open government act is not on a legislative track for now, let's at least ensure that Bill C-2 is consonant with it and with the spirit of the original Access to Information Act.
You have before you a series of eight amendments proposed by Commissioner Reid that will enable Bill C-2 to proceed without violating the central tenet of Canada's Access to Information Act: that government information should be available to the public, that necessary exemptions should be limited and specific, and that decisions on disclosure should be reviewed independently of government. We support these amendments and ask you to adopt them.
You could go even further. We urge you to enhance Bill C-2 with as much of the open government act as you can with regard to establishing a duty to create and maintain records; adopting the definition of the purpose of the Access to Information Act as defined in the open government act; bringing cabinet confidences under the act; providing a mandatory public interest override.
Finally, we ask that provisions of Bill C-2 with respect to Access to Information be submitted to parliamentary review after a period of three years.
I thank you very much.
My name is Richard Rosenberg and I'm the president of FIPA, the B.C. Freedom of Information and Privacy Association. It's a non-profit society that was established in 1991 for the purpose of advancing freedom of information, open and accountable government, and privacy rights in Canada. We serve a wide variety of individuals and organizations through programs of public education, legal aid, research, public interest advocacy, and law reform.
FIPA's an enthusiastic supporter of the reforms to the Access to Information Act proposed by Justice John Gomery, Information Commissioner John Reid, and the federal Conservative Party during the recent federal election. Genuine opportunities for reform of this vital act are rare, and we're concerned, because we perceive, along with many other interested parties, that this opportunity may be slipping away. Significant reforms of the ATI Act have been deferred, and the minor measures included in the Accountability Act afford us little comfort.
Many Access to Information Act reforms were urged by Justice John Gomery in his final report on the advertising sponsorship problems as one key way of restoring public faith in the federal government. We continue to hope that the new administration and all the opposition parties endorse that goal. Our group, along with a large segment of the Canadian public, is anxiously awaiting the fulfillment of promises of a new era of transparency and access to information.
FIPA urges the federal government to fulfill all seven promises of ATI reform made in the Conservative election platform of 2005, and we urge that the Accountability Act be amended to include these reforms.
In its platform to strengthen access to information legislation, the Conservative Party pledged to implement the Information Commissioner's recommendations for reform of the ATI Act, and FIPA is disappointed that the government has chosen to defer most of these reforms and have them dealt with by the Standing Committee on Access to Information, Privacy and Ethics. The tone of the government's discussion paper on ATI reform is regressive, and there's no firm timeline set for achieving these reforms. We disagree, in fact, with comments made by the Information Commissioner that more study of ATI reform may be needed.
The ATI Act has been studied to death, in our opinion, by many committees over two decades, without producing reform, and we're concerned that reference to the standing committee....
Thank you. That sounds right.
We disagree with comments by the Information Commissioner that more study of ATI reform may be needed. The ATI Act has been studied to death by many committees over two decades without producing reform, and we're concerned that reference to the standing committee could once again prove to be a graveyard for positive action.
Second, on order-making power: give the Information Commissioner the power to order the release of information. Order-making power is essential to ensure the proper functioning of the ATI Act. The information commissioners in four provinces have this power, and those systems work far better than the current federal regime. In a report to the last federal government, Justice La Forest strongly recommended this reform be considered, and the Access to Information Review Task Force of 2002 concluded that order-making power is “...the model most conducive to achieving consistent compliance and a robust culture of access.”
Third, expand the coverage of the act to all crown corporations, officers of Parliament, foundations, and organizations that spend taxpayers' money or perform public functions.
The need for this measure is obvious and has been restated for more than two decades. Some quasi-governmental bodies object to coverage with the argument that their financial and competitive interests may be put at risk, but such arguments are spurious, because the ATI Act already contains strong sections to prevent disclosures that could cause such harms.
On September 29, 1997, Conservative--then Reform--MP Myron Thompson introduced a private member's bill, Bill C-216, to include all crowns under the ATI, presumably with the approval of the then-Reform leader. It was defeated by the Liberal majority. If this action was right for the Reform Party then, and could have been made law, why not now?
Fourth, subject the exclusion of cabinet confidences to a review by the Information Commissioner. As Commissioner Reid noted of the government's proposal on this topic in the Treasury Board discussion paper, “This proposal is the status quo. That is what happens now. The government's proposal will not, in any sense, ensure that cabinet secrecy is not abused.” We agree.
Fifth, oblige public officials to create the records necessary to document their actions and decisions. It is difficult to foresee how one cannot recognize the clear benefit to the public interest and government efficiency in this long-overdue proposal. True public access to information cannot exist without an accurate record of government action and decision-making.
Just in a slight aside, I take this to be crucial. What does open government mean if you can't access the variety of information that government produces, and their discussions? In fact, what we've noticed more recently is that there's less to get. Stuff is not being written down. Minutes are not available from meetings. This is a real concern after two decades of attempting to get good open government through access to information.
Sixth, provide a general public-interest override for all exemptions, so that the public interest is put before the secrecy of government. The cornerstone and ethical yardstick of effective access legislation is a workable public-interest-paramount override, such as those found in the freedom of information and privacy acts of Ontario, British Columbia, Alberta, and others. The purpose of such a provision is to ensure that regardless of other interests that may tend to influence the decision of a public body, the final decision regarding disclosure of records is taken in the public interest.
Seventh, ensure that all exemptions from the disclosure of government information are justified, not only on the basis of the harm or injury that would result from disclosure--not blanket exemption rules.
Eighth, ensure that the disclosure requirements of the Access to Information Act cannot be circumvented by secrecy provisions in other federal acts. Justice Gomery proposed deleting section 24 of the ATI Act--which allows such circumvention--and we agree.
Finally, on whistle-blower protection: Justice Gomery proposed six ways of improving Bill C-11, the whistle-blower protection act, and FIPA endorses these amendments.
Finally, we wish the committee to know FIPA disagrees strongly with the addition of a blanket of secrecy over draft internal reports and working papers for 15 years, the proposal to keep secret predominantly all records related to investigations of wrongdoing in government, and the government's opposition to extending the reach of the ATI Act into the Prime Minister's Office and other ministers' offices.
We thank you for your attention. I and my colleague Stanley Tromp, research director of FIPA, would be pleased to answer all your questions.
Welcome all, and thank you for cooperating with us, with some very useful advice from your various expertises.
As a partisan British Columbian, I would like to, if I may, just throw a rose to FIPA, which has done for almost 15 years now extraordinary work in British Columbia to ensure that we have in that province one of the finest information and privacy regimes in the country.
Gentlemen, perhaps first to FIPA, we do have a combined office in British Columbia, and we don't federally, although administration has been shared at some points in time. We've heard from both John Reid and Commissioner Stoddart over the last few days, and we're facing a regime and a new set of independent offices. They can be seen, from one perspective, as a proliferation that, while they're set up to assist members of Parliament to better keep a check on the executive, become so numerous that it becomes very difficult for them sometimes not to be drawing power away from legislators, rather than as an adjunct to it. So some of the concern is that there is just too much confusion in Parliament, in the public, in the media, and certainly in the public administration, as to who they're dealing with and who they're accountable to.
I'm wondering whether you have formed an opinion, given your experience in British Columbia, on whether it would be wise to start consolidating some of these offices, in particular with respect to information and privacy offices.
Thank you both, FIPA and the Canadian Newspaper Association.
I've been waiting for this type of group of witnesses, because I firmly believe, and I think it's the same tone in your presentations, that the access to information section of the FAA is probably the most meaningful and the most powerful in terms of changing the culture and the way we do things here in Ottawa. So, like you, I was crestfallen when the bill actually came forward and those key elements, what we believe to be the heart and soul of the Federal Accountability Act, had been ripped out of it.
So I thank you for your recommendations.
It is helpful, actually, Mr. Tromp, that you raise that book, because we have been studying this very issue for 20 years. That was the first review of the Access to Information Act. The first mandatory review generated that report, which made the recommendations that John Reid has just restated again here 20 years later. So we know what needs to be done in terms of reform to the Access to Information Act. We don't need to be hearing witnesses into next spring, as some parties would have us believe. In fact, we would miss this window of opportunity.
Now to specifics. I take it that you agree with Mr. Reid that the eight points he raised wouldn't give voice to his open government act, but it would mitigate any harm that perhaps Bill C-2 would have implemented. So you're recommending the eight amendments that Mr. Reid put forward?
I have spent my adult life--40 years--as an independent watchdog monitoring Ottawa. It has meant uncovering many hundreds of secret activities engaged in by Ottawa. It has included everything from the politics behind Canada's Food Guide, which we put on our fridges, to the questionable practices and funding in the multi-billion-dollar technology partnerships program. I've had to go to court to try to get, among other things, airline safety and drug inspection reports.
I've also appeared before many parliamentary committees seeking a more accountable Ottawa since 1979. One such intervention helped in the passage of the only progressive amendment to the Access to Information Act, which created penalties for record tampering in Ottawa.
The Accountability Act, as I see it, promises much but delivers too little. I'll briefly outline three basic flaws in Bill C-2, and then offer some suggestions for improvement.
First, Bill C-2 extends, rather than curbs, the culture of entitlement in Ottawa. It caters to powerful interests. It expands, rather than curtails, the unaccountable central powers that the Prime Minister and cabinet hold. That includes maintaining the Prime Minister's grip on the appointment selection process and increasing the number of prime ministerial, PMO, and cabinet records excluded from public access. This act expands everything in the wrong direction.
Deputy ministers and deputy heads, as well, get more power and money. Huge empires are going to be created under this bill. They become accounting officers, managers of more audits, arbiters of departmental ethical conduct, and gatekeepers for departmental disclosures. The bill also adds a new, expensive, and powerful CEO crown corporation category to the growing management ranks, and I can assure you that they've already started.
Bill C-2 makes special secrecy deals for certain crown corporations like EDC, Canada Post, and AECL. This signals that Ottawa is open to having hundreds of other government agencies live by weaker accountability standards. Certainly the courts will look at it that way too--I've been in front of courts many times--as will hundreds of outside corporations doing business with Ottawa, which will also want to be less accountable.
In addition, lobbyists, who were the big winners in this act, get greater influence in Ottawa, not less, and a mandate to largely continue their activities in secret.
Some federal agencies are ignored by this bill, such as the military and security intelligence, which are badly in need of oversight and greater accountability.
The second flaw--I'm trying to analyze what's wrong with this bill, because I want to right it--is that it puts in place a weak and secretive system of review and auditing and places transparency on the endangered list. Various parliamentary officers are given ineffective oversight powers to check abuses. The scope of what parliamentary officers can review is limited, as some key government operations and records are placed well outside their mandates. They are also limited as to what they are allowed to report and say. With limited enforcement powers and no means provided for coordinated investigations, parliamentary officers end up being toothless.
Internal auditing reviews also become weaker and more secretive. Their terms of reference are firmly under management's control. Contracting practices are going to be made even more loosey-goosey because of looser rules and fast-tracking.
Drastically lowering the amount of public scrutiny that audits are subject to is not going to help. Much about the audit process is going to be made secret for up to 15 years. And yes, I was one of the people who got draft audits of the sponsorship reviews. Audits, remember, include matters vital to our safety, like airline and drug inspection reports. That's often overlooked.
The Auditor General's review powers are not really increased to follow the money. Sheila Fraser has told the committee that she doesn't want to do that, because in effect, to audit the corporate books, except in extreme cases, you need to get at the corporate books, and this act does not allow that. It's just for getting at government records.
I can go on about transparency, but I'll leave that until later.
The third and final flaw raises false expectations of better government performance and conduct because it sets limited goals. When it comes to spending, there are no spelled-out public service obligations set out in a purpose preamble section for the right to quality government programming and accountability.
Who is mandated under this act to audit and report on how well Ottawa is doing on alleviating income disparities, health and safety problems, and environmental degradation? These are management- and department-based conduct codes. They're not found in the statutes, and they are a mixed blessing because they're readily changeable, and therefore suspect.
Such managerial codes can handicap rather than help concerned employees in fully providing services to the public or coming forward when such efforts are being hampered.
The conduct service codes as well would do nothing to legally ensure that a proper record of decisions is kept. That's a real code; it's statutory. Nor would they advance the public's right to know immediately about health, safety, environmental, and consumer matters.
Besides its five-year internal reviews, the only probe of Bill C-2 is a one-time look at advertising and polling contracts. No provision is made for permanent, ongoing public parliamentary oversight, like that currently provided by this committee, of the bill's accountability standards and service performance promises.
It fails to set quality performance accountability objectives and standards, hasn't got that oversight, and doesn't link it to what we all think are very democratic rights and charter rights.
That's why, in a constructive fashion--and I have an earlier, longer submission--I've set out over a dozen areas for improving and amending these problem areas found not just in the access provisions but throughout the act. They include adding a purpose clause, which enshrines accountability standards and the public's right to know as part of the Canadian Charter of Rights; ensuring public access to the records of the Prime Minister and ministers, as well as Parliament; making the Public Appointments Commission an independent agency accountable to Parliament rather than an arm of the Prime Minister's Office; treating crown corporations no differently from any other agencies, and reducing rather than adding special exemptions and exclusions; broadening what the public knows about lobbyists' activities, government finances and contracts; releasing immediately audits on health, safety, environment, and consumer reports; regularly posting the exact salary and benefit information of public officials--I'm sure everybody would agree to that; following through on a commitment for a tougher Information Commissioner's office with binding order powers.
New ideas include open meetings. I'm not speaking about cabinet, but boards and commissions like the NCC should be required to hold public meetings. The Auditor General should hear and respond to complaints about government work and procedures. Make her office a little more democratic too.
There should be penalties for altering, withholding, and distorting government financial records; more coordination within accountability systems rather than empire-building; and joint investigations of such officers as the Auditor General and Information Commissioner.
And why not go international by setting up a centre for transparency, accountability, and anti-corruption here in Canada? And then, of course, you need the periodic review of the accountability standards by the designated parliamentary committee.
There are some modest reforms in this bill, I agree, but it doesn't go far enough to rein in Ottawa's mandarins and power structures. It doesn't hold them to account. It doesn't have conduct that is meant to be exceptional--and I've been waiting for this.
The answer doesn't lie, though, in rushing through another act. Sure, you guys should go ahead and do as much as you can, but if you're going to make officials more powerful, less reflective, and more able to retreat even further behind closed doors, why bother? Who needs yet more, rather than less, government waste and mistakes?
Consider my suggestions to reverse this, and make Ottawa accountable, transparent, compassionate, and credible, because that's what this government has to do.
My name is David McKie. I'm a journalist with the award-winning investigative unit for CBC News. I'm here to speak for myself and by extension other journalists who use the federal Access to Information Act to help, I think, tell stories of public importance.
I'm also here as an educator, someone who teaches journalism students at Carleton University and elsewhere how to use the act, and as someone who has written about the act and ways to use it in a recently published book called Digging Deeper. I am not—I repeat, not—here as a representative of the CBC. That might disappoint some of you.
For the past several years I've been part of a team of journalists who have used this act to uncover important facts. To name a few, there's the fact that a clinical trial at the Children's Hospital of Eastern Ontario in which a little boy died was never sanctioned by Health Canada—Anne MacLellan was the health minister at the time—or the fact that Health Canada's own adverse drug reaction database showed that the number of children being harmed by prescription drugs had tripled since 1997, and without the department's knowledge; the fact that about a third of this country's seniors are on prescription drugs they are not supposed to be on, either because those drugs are dangerous or because there are safer alternatives, and many of those seniors become statistics in Health Canada's adverse drug reaction database, which is now online.
These stories and many more we've told would not be possible without the Access to Information Act. Even at that, we have to fight hard to get the material we did in the cases I've just mentioned. It took years to obtain Health Canada's adverse drug reaction database. In the case of the clinical trials, it took us two attempts to obtain the proper documentation.
If we step back to take a broader look at this act's application, we need look no further than stories such as the infamous “Shawinigate” affair and the trouble former Prime Minister Jean Chrétien found himself in. And of course, we all know about the ad scandal, one of the reasons for our present political configuration and one of the key reasons we're all sitting in this room talking about the need for more accountability.
I should also point out that it's not only journalists who have managed to use this act. Dare I say, politicians too have used it to great effect. All parties have managed to ferret out information to in some cases embarrass the government and more importantly to outline shortcomings in public policy.
My colleague Ken Rubin has already explained some of his concerns, and I share them; we talked about them before this presentation. What troubles me even more is that the flow of information to which we have the legal right is in some cases slowing to a trickle.
Just yesterday I filed two more complaints with the information commissioner's office, one against the Department of National Defence for fees ranging in the thousands of dollars, and a second against Foreign Affairs and International Trade for denying me a document—David Emerson's mandate letter—that I think should be a matter of public record; why not? We are also locked in another battle with Health Canada over its adverse drug reaction database, and that battle may end up in federal court, costing everyone involved far too much time and money.
Last month I edited a story in the Canadian journalists' association Media Magazine from a former master's student out at the journalism school at U.B.C, who recounted the frustrations and threats—yes, threats—she endured while trying to extract information from Transport Canada on the exemptions they were employing to deny journalists information after the September 11 attacks in New York, Washington, and Pennsylvania. I have a copy of that article, if anyone's interested in reading it, and I suggest you do, because it's disturbing.
So we face a lot of obstacles without having to endure new ones. My concern is that in many instances departments are not respecting the spirit of the act; instead, officials choose to take narrow interpretations and apply liberal exemptions, such as advice to the minister or security concerns, to keep information secret. This means that in many instances it's becoming increasingly difficult for us to do stories such as on safety at airports, problems certain segments of the population may be having with prescription drugs, or policies our correctional services are using to deal with dangerous offenders—an issue this government is concerned about. These stories are not being told, and they should be.
So I applaud the initiatives that would bring crown corporations and foundations into the act's sphere, including mine.
I think the spirit behind the legislation, one that promotes openness and accountability, is one that should also be applauded. I would just urge you to watch the loopholes, the vague language, the addition of exemptions, and other potential obstacles that could become roadblocks. Ken has talked about them.
I would also urge you to argue for more funding--and this is important--more funding, so departments can adequately staff their ATIP offices. Too frequently, I deal with harried bureaucrats crumbling under the weight of requests. This results in lengthy delays. You can implement all the reforms you want, but if ATIP offices are understaffed, the information that needs to get out becomes stuck in the proverbial bottleneck. Information delayed is information denied.
Finally, I would ask you to act with some haste. I don't know how many stories I've done about efforts to study the act. Study, study, study, talk, talk, talk, and yet all that study has led to too few meaningful reforms for an act due for a shake-up. So you have a chance to make a difference, to correct what one former prime minister called the democratic deficit. An increasing number of countries are adopting their own access laws; Canada can and should be a model for openness and accountability.
Thank you for your brief and your recommendations, Mr. Rubin. In my opinion, the Conservative Party should accept three of them very quickly.
Your second recommendation talks about making documents of the Prime Minister and the ministers accessible to the public. On page 13 of the Conservative platform, we read that a Conservative government would prepare to amend Bill C-2 in order to comply with this principle.
In point 4, you talk about treating crown corporations like other organizations and about reducing rather than increasing, the number of exemptions and special exclusions. On the same page of this Conservative platform, we see that a Conservative government would apply the act to all crown corporations, officers of Parliament, foundations and organizations that depend on taxpayers' money or that carry out public responsibilities. So your recommendation should be of immediate interest to them.
In point 3, you talk about following up on the commitment to have a stricter Information Commissioner. As my colleague pointed it out to me, the Conservatives have stated in writing elsewhere that a Conservative government would enforce the recommendations made by the Information Commissioner about reforming the Information Act. Despite what they stated during the election campaign, the Conservatives voted against the motion.
You recommend that this be included in Bill C-2, and I don't think this will fall on deaf ears. You are reminding them of their lofty promises and the Conservatives will no doubt demonstrate their intention to act on them.
My question is to both of you. If Bill C-2 were to be passed tomorrow in its present form, without any amendments whatsoever, is there a guarantee that there could not be another sponsorship scandal?
Thank you, and thank you for both your presentations.
I think what you've done is underline the importance of the tools that are available to what in your case I'll call the fourth estate to do the job that I think is severely lacking in our society; that is, to give us a window into how decisions are being made and what those decisions are. All you have to do is pick up a newspaper and do a content analysis of the stories. Today you'll pick up the paper and see a tabloid story being thrown out as news. I think that's a sad state in many ways. You have to then do an analysis to ask what's lacking; why are we being offered this as news? I would suggest what you've presented is the fact, that we don't have access to the information; we don't have a window in.
I can't dispute or even counter some of the things that are in this bill, in terms of the goals. What I'm hearing from you is the same thing: these are laudable goals. The problem—and my colleague, Mr. Martin, has mentioned this before—is we don't have a window in to assess whether these goals are being met.
I appreciate, Mr. Rubin, what you've said about the extended powers of certain people. But on a couple of your recommendations, Mr. Rubin—and then I'd turn to you, Mr. McKie, and some of your comments about access to information—you talked about the importance of changing the proposed Public Appointments Commission. I couldn't agree with you more. We have some amendments that we will be putting forward.
The fact that you're going to try to change accountability through the PMO.... Good public policy shouldn't be dependent upon there being a benevolent person in office; it should be based on having good structures, and then functions that follow.
I'm curious about your concerns regarding lobbying and the statements you've made and the recommendations. Maybe I'll just start with that, Mr. Rubin, and your concerns with how this bill is structured. I'm someone who has been very concerned about lobbying and the effects lobbyists have on public policy and on access to decision-makers. Would you elaborate on that, please?
I'll try to breeze through this fairly quickly. I know that I stand between you and dinner, and you've been working hard.
I really welcome the opportunity to present my views on what is a very comprehensive, omnibus piece of legislation. Because of its nature, I think it doesn't lend itself to sweeping judgments about being either good or bad, and there'll be lots of disagreement over which are the good parts and which are the bad parts.
I have been working on accountability, privacy, access, deputy ministerial accountability, and so on, for years and years, both as an academic and as a consultant to government. I've tried to offer a range of views on a number of topics that flow out of Bill C-2.
I start with the point that the centre of accountability in a democratic system has to be Parliament. I deliver something of a sermon to parliamentarians, insisting that they need to adopt a more positive, constructive approach to the enforcement of accountability. Principally, they have to look to ministers to answer for things that go wrong within government, and senior public servants should be answerable only indirectly and only under specific, narrowly defined circumstances.
Too much of Parliament, it seems to me, is about playing the “gotcha” game of accountability. Particularly in relation to scrutiny of the public service, the performance of departments, and the performance of programs, as I said, we need to adopt more of a learning approach and less of a blaming approach.
I've written in the past about officers of Parliament. We're adding to the population of those independent agencies that serve Parliament. Parliament clearly can't oversee government operations unaided, and it needs the support of auxiliary agencies, like officers of Parliament. But we're adding to the group and we need to ensure that for those agencies we find the right balance between independence, not only from the executive, but also from Parliament, and accountability, most appropriately to Parliament and less so to the government of the day.
Finally, in terms of an opening section, accountability is obviously vitally important in a democracy, but it has to be balanced and accommodated with other values, like effective representation, efficiency, effectiveness in programming, trust within government, and legitimacy of government. We have to be careful that we don't overbuild scrutiny mechanisms so that the public service spends all of its time checking on things and too little time doing things.
I'll say a brief word about whistle-blowing, and then I'd be pleased to answer more questions.
I believe in whistle-blowing legislation; however, in all the jurisdictions that I've studied, and I've looked at these regimes around the world now, it's usually been oversold, passed in the aftermath of a scandal, and oversold in terms of its contribution to the integrity in government.
The reason for that is that whistle-blowing deals with highly unusual and exceptional circumstances--i.e., serious wrongdoing, which isn't an everyday occurrence. Secondly, it involves exceptional individuals: individuals in the public service or working on public programs who are courageous enough to risk retaliation and damage to their careers or those who don't let pessimism discourage them from reporting.
I think that in addition to providing whistle-blowing protection, we should spend far more effort in terms of resources and time on promoting so-called “right doing” through ethics and education, helping people to understand what it means to be ethical and to act with integrity within government.
I understand that the idea of financial incentives for whistle-blowers is pretty much off the table now. I've done a long paper on the U.S. False Claims Act. I'm quite happy to share that with people. It will at least cure your insomnia, if nothing else. My conclusion is that it's had perverse results in the United States. It is not a good piece of legislation. It's made instant millionaires out of a select few people. It's a bad idea. It doesn't travel well north of the 49th parallel. I won't get into that.
I'm very supportive of the idea of extending protection against reprisals to people outside government: contracted-out program delivery organizations; for-profit or not-for-profit; or procurement organizations involved with procurement. I think we have to do that in the “joined up” world of government today.
I'm not sure that I see the need for a new public servants disclosure protection tribunal. As you know, under Bill C-11, the Public Service Labour Relations Board was available to perform the function that's being assigned to this new tribunal. I'm enough of an institutional conservative that I don't see the real need to produce a brand-new tribunal.
I think it's appropriate that employees be granted the opportunity to achieve financial assistance to buy legal counsel. I think that will be necessary. Another consequence of the whole range of changes going in under this bill is the creation of a more difficult legal environment where there's going to be a lot of uncertainty, both for front line employees but also for managers who will see more restraints or constraints on their freedom.
On access to information, I was a member of the advisory committee to the 2002 task force. It was rewriting the Access to Information Act. So I'm frustrated about the delay in modernizing an act that is sadly out of date.
On the other hand, I'm not sure that it should be combined with this particular piece of legislation. I know people want to move ahead with that, and Commissioner Reid certainly does, but I think there is time to do this in the fall and there is a committee to do that in the House of Commons.
I'm also a member of the advisory committee to the Privacy Commissioner, and I just want to make the point that I reinforce Commissioner Stoddart's message that the Privacy Act is sadly overdue in terms of its need for modernization.
I do a little section in the paper on the parliamentary budget office. I think there are aspirations to create a kind of congressional budget office here on Parliament Hill in downtown Ottawa. It will never be as powerful as the CBO in the United States. The CBO has a budget of millions--$35 million--and it employs 760 people. We're talking about a little branch-plant operation in the Library of Parliament.
Parliament must find some way to do better work at scrutinizing the estimates and the hundreds of performance reports that are now tabled and go unnoticed, unread, and unused. It's not just the quality of the information. There have not been enough MPs dedicated to the task of that.
On deputy ministerial accountability, I don't see this as a radical change, provided that it's narrowly defined for financial and management matters, that there's the opportunity for the deputy to report the imprudent use of public money when he or she is ordered to do that, and if deputies are seen as answerable before parliamentary committees, that they're not accountable in the full sense of the word, that the committee cannot apply sanctions or rewards to deputy ministers.
On the appointments commission one, I did a paper back in 1985 that looked at the McGrath committee report. They created the opportunity for the appropriate standing committees of the House of Commons to review order in council appointments, with the exception of judicial appointments. Right from the start, it was subject to gamesmanship by both sides. The government had the Liberal appointees sanitize their c.v.s, the opposition brought only the controversial appointees before the committees, and games were played. A lot of people don't want to be put through that. So if there is going to be an appointments commission that's outside of Parliament, we'd better be sure that it has broad representation on it and that whatever findings it produces are made public. If we continue to use the parliamentary mechanism, I'm afraid we will still get into being partisan again.
I think the idea to institute a uniform approach to the appointment of officers and agents of Parliament is overdue, whereas we multiply these types of agencies. There are still issues related to the appropriate balance between independence and accountability for such entities, particularly for new funding mechanisms for parliamentary agencies. You had committee reports on that earlier, and I'm quoted in a couple of those.
Finally, on that point, I would say that the more of these agencies we create, the more there are going to have to be links between them and efforts to coordinate their activities, because we're going to have investigations going on through different parliamentary officers. We're going to have to form a club of some sort and get them to wear uniforms and meet regularly, because they're going to be working on some of the same issues.
I'll finish with this point, that the way this has been promoted and part of the political rhetoric around this is that it's about fighting corruption. I fear that in the aftermath of Gomery and this piece of legislation and the rhetoric surrounding it, the public is going to be even more cynical and discouraged about honesty and integrity in government.
Gomery pointed out that a small number of people were involved in the misdeeds that he investigated, and that the vast majority of people, both elected and appointed, worked within the parameters of the law. They worked effectively. They worked diligently and with integrity.
One of the crucial requirements going into the future will be to build trust in government. We've eroded trust severely, and somehow we have to restore trust. That must be done on numerous levels. Parliament has a role to play there by following a more constructive approach to accountability.
Finally, Mr. Chair, when it comes to scrutinizing the operations of departments and programs, the government is going to have to relax, in terms of party discipline, and allow committees to make inquiries into the operations of departments, programs, crown corporations, and other non-departmental bodies with less government control, and the opposition is going to have to take a more constructive approach by asking how it can help make government work better. A lot of these issues just don't lend themselves to partisan disagreement. There is lots of room for partisanship, but many of these issues of how to make government work better and be more accountable don't lend themselves to the theatrics of party debates.
Just because parliamentary committees cannot assign or award sanctions against deputies doesn't mean that deputies don't take these appearances before committees seriously. I know them. I've interviewed the deputies. Over the years, I did work for the Lambert commission on financial management and for the Treasury Board on the reform of the supply process. I've done so many studies up here on Parliament Hill.
Perhaps this is the most frustrating part of the parliamentary process. You have this huge expanse of government spending sitting in front of you. You try to understand what it's all about, and it's not easily intelligible. You're doing it under the pressure of time and so on. So I think that some additional assistance, particularly in terms of scrutiny of department spending and operations from professional staff attached to the Library of Parliament, is appropriate. There may be another avenue of staffing, which I mention in the paper.
For the revenue side of the budget process, I think that really is open to serious political debate. It's something you want to talk about in very broad political terms—about what you stand for in terms of taxing and spending.
During those sessions when the deputy is present, I think the government has to be more relaxed in terms of saying that we can talk about some of the undiscussable issues to get to the bottom of why things don't turn out.
I've looked at performance reporting. We have hundreds of these reports now that are tabled. I looked at two years of estimates. I found two references to these performance plans and performance reports. It's depressing. All of those documents, both online and in hard copy, are produced presumably in the interest of promoting accountability. If they're not used—and they're not used internally either, to any great extent—that's a huge waste of money.
Other jurisdictions that I've studied—the U.K., Australia, and the leading states in the United States—have scaled back their performance reporting requirements. Why? Because they're not being utilized. It's depressing news, I'm sorry to tell you. So one of the key features of this new approach to accountability would be that we report on everything. But if the reports don't get used....
So yes, I want public servants to come here. Probably they need clearer rules of engagement for these encounters. I think public servants understand what their roles are. I think sometimes MPs cross the line in terms of taking public servants into areas that are more political, where public servants really shouldn't have a public opinion.
That was too long an answer. I apologize.
So it was just around the time.
And you know, obviously with the idea of tightening up financial accountability.... One of the things that is interesting in the bill--I don't know if it caught your eye--is to give cost estimates for private members' bills, which is interesting, because usually you're not allowed to spend money when you're presenting a private member's bill. But there's no initiative to look at government bills. I'd like to get your comment on that, or the logic. Maybe you're not the person to speak to it. It would be important public policy to have that; if you're going to give cost estimates for private members' bills, then you should do the same for government bills.
I'm really interested and very concerned about the estimates process. If we go back to where this bill came from, the Gomery commission, it was about concerns about oversight of spending and the fact that spending became outside of accountability, if you can say that.
I'm a new member of Parliament. I represent a predominantly public service riding, and they said, to a person, when I talked to them: We don't need more overlays like the previous government was intending; we need to be able to breathe a little, to talk about outcome-based policy again, which used to be the way; we want to get there, and we need to come up with some of our own ideas to get there.
But on the estimates--and you've studied provincial governments--it seems to me they do it differently. There's more attention, more time taken to look at the estimates. And here it seems to be--and we saw this with Gomery.... Certainly what came out of there is that attention is given to the public accounts after the money has been spent. And talking to some people, former parliamentarians, it used to be different here in Ottawa. But certainly the experience, and if you could just....
The second question is about the estimates process in other provinces and how that might get to your point about taking the partisanship out of that component, looking at money, cost-benefit analysis, and where it should be placed--at the beginning or at the end of the equation.
First, on the CBO, it does very credible work in terms of estimating the costs of new programs, but the congressional apparatus is so much bigger, and the institutional rivalry in Congress, even when it's controlled by the same party as the President, is so strong that there's motivation there to look in depth.
And congressmen, particularly on the Senate side, have huge personal staffs of their own. That is a big industry. It doesn't mean that they still get it right. The multi-year budget forecasts of spending and revenues have been way, way off, particularly as you get way up.
That was one of the reasons there have been arguments recently to give Parliament more capability in terms of economic and fiscal forecasting, but we shouldn't presume that just because we attach an office to Parliament that we're going to get the forecasting part of it.
I was around here in 1971-72 as a parliamentary intern. I was involved back then at looking at the supply process, and we've been debating supply and the weakness of the supply process since then.
My report to the Treasury Board back in the late nineties asked why MPs are more interested in vindicators than in indicators. Why can't we spend time looking carefully at what we spend and what we get for the money we spend? And it's not just because the information is inadequate. I think even the more sophisticated....
We have to find, maybe, a separate committee that can select part of the estimates and study it in depth, and maybe go on a cycle and find that small, dedicated band of MPs who are prepared to spend a lot of time on it.
I admire this committee. I'm not saying this just to flatter you, but I know a number of people around this committee who have spent time in the past working on the machinery-of-government issues. There is no political gain to be had from that whatsoever, unless there's a rousing scandal of some kind. Mostly, it's unrewarded in political terms to do that, but somebody has to do it.
So I would say, take a minority of MPs who are interested in that, give them adequate staff to go on a cycle, and pick years. And then have the capacity for Parliament to hold up the passing of the estimates. Because we did away with the ability to block spending, and now most of the estimates are deemed to be reported and passed by the House. So it's a kind of ritual we go through, but they never get really examined.
Thank you for your presentation. I can certainly relate to some of what you're saying about these performance reports and about other reports on supply, also.
When we do have limited staff, and we try to look at some of this raw material and make some sense out of it, it is a pretty daunting task. So I think we are taking steps in the right direction.
You mentioned that Congress has a much larger staff than ours. I'd be interested in hearing a bit about that, because we can always use more help in doing the work we're doing.
But on the Public Service Staff Relations Board, there has been some debate about that. I'm certainly not interested in creating extra layers of bureaucracy or duplication, but I think we want to set up institutions that are going to work and make the situation better.
There has been discussion in this committee about extending some protections, not only for government employees, but also for contractors and federal government grant recipients. And also there has been discussion on federally funded researchers.
That being the case, when you look at what the traditional mandate of the Public Service Staff Relations Board has been--and you've already expressed the one reservation, whether this is only going to be dealt with in an employment context.... Does setting up a new body--that approach--make a little more sense if we did, in fact, extend some of the reach to federally funded researchers, and so on?