The chair sees a quorum and calls the meeting to order.
Good afternoon, ladies and gentlemen. This is meeting 16 of the legislative committee on Bill C-2. The orders of the day are pursuant to the order of reference of Thursday, April 27, 2006, Bill C-2, an act providing for conflict of interest rules, restrictions on election financing, and measures respecting administrative transparency, oversight, and accountability.
We have two witnesses before us this afternoon. Representing the United Steelworkers is Kristen Agrell, counsel in the legal department of the national office of the United Steelworkers union; and representing the Ontario Nurses' Association, we have Shalom Schachter, the interest arbitration and long-term care regulation lead on the provincial services team.
Good afternoon. The two of you can make introductory comments, which will then be followed by the questions of the committee. Thank you for coming. Please proceed.
Thank you for the invitation to appear before your committee.
I'm going to restrict my remarks to three areas: the first area is the need to improve protection for whistle-blowers against retaliation; the second is the need to expand the whistle-blower protection beyond federal public employees; and the third is to expand the definition of wrongdoing and to narrow the scope for the refusal to investigate disclosures.
On the first point, in terms of whistle-blower protection, I think there is a recognition, given past events, that it is important for people to come forward with evidence of wrongdoing so that the public can hold their elected representatives to account. It needs to be recognized that there is a great fear in doing so, and that's why we need to have effective provisions against retaliation in order to encourage people to overcome their fears.
One of the things that's missing from the bill is a reverse onus clause. When an employer takes action against an employee, the employer knows the reasons for taking the action. The employee is not in a position to bring forward evidence that the reason the employer took the action is retaliation against whistle-blowing.
In most major labour legislation, there is a reverse onus provision with respect to unfair labour practices. The employer has to prove that the action taken against the worker was not motivated by a desire to punish a person for exercising labour rights. In normal arbitration, in terms of discipline, the employer has the duty to lead evidence of just cause and the worker does not have to prove there was no just cause.
We urge the committee to include a mandatory reverse onus clause in the legislation when employers want to take disciplinary action against people who have engaged in disclosure of information.
The other element is that there needs to be a broader justice with dignity clause. One of the major improvements of this bill over the previous legislation is the provision in proposed section 19.5, when the act is amended, that indicates when the commissioner decides to investigate a complaint, the employer has to reverse the action. For example, a worker who was fired would have to be reinstated, pending the investigation and the outcome of those proceedings.
It is a major improvement in the legislation, but it doesn't go far enough because it's contingent on the commissioner deciding to engage in an investigation of the complaint. The justice with dignity provision should be made applicable to everyone who has engaged in whistle-blower activity. Before employers are allowed to take disciplinary action on other grounds, they should have to prove it. Until that proof has taken place, they should not be allowed to impose the discipline on the worker.
Those are our comments with respect to the first issue.
With respect to the second issue, in terms of the scope of the protection, it needs to go beyond those who are in the federal public sector. In the “sponsorgate” situation, if the only people who had access to information about wrongdoing were employees of third parties who were dealing with the government, we needed them to come forward. I don't believe they would be covered under the existing provisions of the bill.
As well, there would be people under provincial jurisdiction. We have a situation in the city of Toronto, where I'm from. A police officer has come forward with allegations that the city police brass have swept concerns of police brutality under the carpet, and he is being disciplined for engaging in that public disclosure.
The federal Parliament has already engaged in legislation that affects the entire country. When it comes to making fraud a criminal activity, for example, the disclosure of fraud should be protected by federal legislation, even if it's done by people who are under provincial jurisdiction.
Finally, in terms of the third element, section 8 of chapter 46 of the previous legislation has very narrowly defined wrongdoing so that it only covers gross mismanagement, substantial danger, and serious breaches. Those criteria are far too narrow and are going to deprive the public of other disclosures that they need to know about.
Similarly, the criteria in proposed sections 24 and 19.3 of the bill, which give the commissioner the right to decline to engage in investigations or pursue complaints, are too broad and should be narrowed as much as possible so that as many disclosures as possible are investigated.
Those are my remarks.
I'm here from the United Steelworkers. We appreciate the opportunity to speak to you.
As you know, the Steelworkers represent 280,000 members in Canada in all sectors of the working world. We encourage all our members to participate in and take control over their conditions of working and conditions of life. To that end, the Steelworkers are looking to the bill to provide what we have found workers need to have faith in their ability to contribute to a democratic system, which is information about the system and the ability to have input into the system.
The Steelworkers have taken a more general approach than my colleague in our response to this bill. We have identified three areas. There are areas where we strongly support the bill and think it should not be changed, areas where the bill is silent and where the Steelworkers think there's a strong need for action, and areas that have the potential to be great, but where we would suggest changes.
The Steelworkers strongly support the creation of the parliamentary budget officer. We feel that to give accurate information that's not swayed by political concerns is a move that's beyond due.
The reporting requirement for lobbyists we think is also important information for the public to have. Also, we are strongly in favour of ending the lobbyists' success fees, and also of ending corporate and union donations in elections. The Steelworkers have been active in assisting political parties, but there are other ways than financial to do so. Those are the areas the Steelworkers support.
There are also areas the Steelworkers would like to see added to this act, such as Access to Information Act reform, which had been discussed prior to the bill. Some federal bodies have been added and are now covered by access to information, but the system really needs a greater overhaul, in our opinion.
We're also disappointed that there's nothing in the bill that would affect leadership races, as opposed to elections, and nothing that speaks to members who are elected and then change their party affiliations. Those are areas where the Steelworkers feel the bill could be improved.
Finally, there are cases that the Steelworkers think have good potential. The creation of the Public Appointments Commission we think is a great thing, but in order for it to be effective, we would suggest that the committee introduce language that would require it to be independent of the Prime Minister's Office and to report on its functioning. And come to that, if possible, there should be language to require that it come into existence at all and that it can't be delayed by the refusal of the governing party to nominate someone to chair it.
Finally, with regard to whistle-blower protection, the Steelworkers echo and adopt the submission of my colleague from ONA. Unions have experience in how to protect workers from retaliation, and we agree that the public is best served if people can speak out before a situation reaches a point of major illegality or immediate threat to life.
Those are our submissions.
Thank you very much, Mr. Chairman.
Welcome, Mr. Schachter and Ms. Agrell.
I note there's a congruity in two areas on page 7 of your overview, Ms. Agrell, on whistle-blowing protection and the concepts of reverse onus that have been mentioned by Mr. Schachter, so I'd like to question on that particular part.
We've had conflicting viewpoints with respect to the entrenching of the regime that would protect whistle-blowers around the use of a special tribunal that would be adjudicated through judges, as opposed to the labour arbitrations act and mechanism. It would appear from what you're saying that your comfort level--and I don't mean to put words in your mouth--would be to deal with an entity and regime that has an experience and an understanding of labour issues, labour law. And when it comes to whistle-blowers, you talk about the employer's duties, you talk about mandatory just cause, which obviously are mixed terms. They could be put into a judicial context as they could into a labour context.
My question is, which is more suitable? Is it to create a tribunal that would protect the rights of whistle-blowers through the regime that has been suggested? Or do you think it would be better to use the labour arbitrations act and panel and the experience that is gained in terms of protection of those rights?
Obviously, there's a certain expertise that labour tribunals develop that the courts have recognized and give deference to, and we would be obviously more familiar and therefore more comfortable with having these proceedings before an appropriate labour tribunal.
For example, I think the act already indicates that if you're a federal public servant you could go to the Public Service Staff Relations Board, except if you're an employee of the Public Service Staff Relations Board, and then you go to the Canada board, and if our proposal is adopted, to extend this to people within provincial labour jurisdiction. They could go to their own labour boards or even have the option of going to the arbitration board process that's under the collective agreement.
If you're going to a labour board, as opposed to a new tribunal, the important thing is that this board should also have the power that's set out in proposed subsection 21.8 of the bill, to respond appropriately to the wrongdoer who retaliated. Labour boards generally only give redress to employees and don't engage, if you like, in punishment of the wrongdoer.
It's very important that proposed subsection 21.8 be enacted in some form, otherwise the retaliator will have no incentive not to engage in retaliation. The worst that can happen is that the person who discloses will be returned to work, but the wrongdoer, obviously, hopes there will be pressure on that person to give up before the case is addressed. There need to be penalties beyond redress to the whistle-blower to give an incentive to the potential retaliator not to engage in that conduct.
Thank you, witnesses. It's a real pleasure to see both of you. I come from a labour background myself, as a former business manager of the carpenters union in Manitoba. Labour isn't always invited to bring their point of view to this type of activity, so it's important that your voices are heard.
From what I've heard of the briefs you've put forward, I think your recommendations will be helpful and useful, and especially your experience.
I'll begin with the whistle-blower section, Mr. Schachter. Your point is well taken, especially in the health care field. I can imagine you would have ample experience where workers probably would have come forward but for fear of reprisal.
I remember one high-level case in Manitoba concerning the head of pediatric heart surgery. There were actually 12 children who died, and there was a public inquiry. Nurses in the operating room were observing things that they knew full well to be just wrong. No one could come forward. There was such a culture of commitment. The master-servant relationship was such that it was viewed as a breach of some ancient code of loyalty that they owed. So it is difficult to balance the public's right to know and that ancient relationship.
In the carpentry trade, the master-servant relationship is part of ancient common tradition, and is in fact part of common law--your duty of loyalty to your employer. So it's difficult.
But as a former union organizer and then business manager, I know the Public Service Staff Relations Board and the CIRB are often backlogged two or three years. Talk about justice denied and justice delayed.
Would you agree that it would be far better to go to a specialized tribunal for that reason alone, rather than making an allegation of reprisal and then having a two- or three-year wait, and then still it's a fifty-fifty chance, because once the lawyers get at it, you have to make your case? Is that a good enough reason for a separate tribunal?
Thank you very much. It's an honour to be here. I have a longstanding interest in accountability to Parliament and within government. I've met some of the people here before at other committee meetings, and it's nice to see familiar faces.
The focus of my remarks today is going to be on the Gomery commission recommendations in relation to the Federal Accountability Act. I thought I would take that approach, because I was senior research adviser to the Gomery commission, so I've had a chance to observe how it works, what it came up with, and the reasoning for the recommendations. That's what I'd like to address in the context of the Federal Accountability Act. I will talk about three major things, and probably some more minor ones, and there are more in the written submission that I provided last week.
One, I wanted to talk about deputy ministers, the deputy ministerial community, and deputy ministerial accountability. Two, I want to talk about the Public Appointments Commission. Three, I would like to make some general remarks about the broad issue of agents of Parliament and the role of Parliament in accountability. I say all of this in the context that the main focus of my academic research has been on Parliament. I think the role of Parliament is often under-stressed and under-appreciated in these sorts of things. Parliament has a right to define who is accountable to it, and how, and in what manner they are accountable to it.
It seems to me that what is happening in the Federal Accountability Act in relation to the accountability of deputy ministers and heads of agencies is a matter of identifying them as holding responsibilities in their own right and Parliament wanting to see how they perform their functions and their duties. This is not unusual in parliamentary government. In fact, Canada has been almost at the extreme end in its thinking about ministerial responsibility, saying that ministers must be responsible for everything and the only persons who can be responsible before Parliament. I didn't agree with that, and neither the Gomery commission nor the Federal Accountability Act agrees with that.
So the recommendations on the accountability of deputy ministers and heads of agencies as accounting officers before parliamentary committees, primarily the Standing Committee on Public Accounts, is similar in the two. There is some difference in the process through which disagreements can be resolved, but that is not terribly important. The important thing is that it's recognized that senior public servants have responsibilities and duties in their own right, and these duties and responsibilities, at least many of them, do not belong to ministers, and that they should be accountable before parliamentary committees in their own right and not on behalf of ministers.
The place where this becomes difficult is in trying to define the boundary between the responsibilities of public servants and those of ministers. The procedure through which ministers, as the Treasury Board has proposed in the act, can overrule the accounting officers, the deputy ministers and heads of agencies, is a means of establishing that boundary. If a deputy minister objects to a proposal and is overruled by a minister, then the responsibility belongs to the minister. It's very clear, if a deputy minister feels it's within his or her purview and is not overruled, then the responsibility rests with the deputy ministers.
I want to emphasize that to make this system work is going to involve a lot of work on the part of the Treasury Board, a lot of work on the part of Parliament, and particularly the Standing Committee on Public Accounts. They're going to have to reach some understanding of what the responsibilities of the accounting officers involve. It will involve what's normally called regularity, in other words following the rules and the laws that will involve propriety, acting in a proper manner, and to some extent it will involve economy, but it will not involve questions of effectiveness or even of value for money, or the purpose of programs or the policies behind programs.
In the initial stage, I think the responsibilities of accounting officers should be clearly in the areas of regularity and propriety. As the committee and the public servants and the Treasury Board learn to work together, they can go further if it's the wish of all sides.
Many of the recommendations of the commission dealt with the length of tenure of deputy ministers in offices and departments and with the method of appointments of deputy minister. Without going into details, the concern behind them was that the commission felt, as Justice Gomery has made very clear, that deputy ministers did not in his opinion pay adequate attention to their management duties.
The intention was, through the accounting officer approach and through the longer tenure of deputies and through the appointing procedure, to make a system in which deputy ministers were clearly assigned duties, stayed around long enough to make sure they had some power and could exercise it over management of a department, and then were ultimately held accountable and had to defend themselves in public for what they had done.
This was an effort, as I say, to refocus the deputy ministerial community and heads of agencies more towards their management duties. Something would have to give in that, but that was not a worry in the commission's sense.
The next point I want to talk about is the Public Appointments Commission, which is very much in line with the appointments proposal for boards and chief executive officers of government agencies proposed by Gomery.
The thinking there was that these appointments have to be made in an open and transparent way that recognizes the principles of merit and non-partisanship and recognizes the diversity and variety of the Canadian nation.
I will give you an example of appointments I think should be made that way but have not been in the past, and that's of the chairman and members of the board of the Public Service Commission. The duty of the Public Service Commission is to ensure that appointments in the public service are made in an open and transparent way, are advertised, that all Canadians have equal access to them, that they meet the principles of merit and non-partisanship, and that diversity is recognized in them. Yet at present there is no guarantee in the procedure for appointing the members of the commission who are supposed to ensure this that they are made in that manner. I think the Public Appointments Commission is a very important part of the act.
The last thing I will remark on relates both to Parliament and to thinking about accountability generally. I have a concern—this is a personal concern—that the act asks too much of Parliament in terms of the number of agents of Parliament that Parliament will wind up with and in terms of the efforts to keep their own agents accountable and in line.
I express it as a concern, and it fits into another concern I have, that the thinking behind the Gomery commission on responsibility and accountability was, to rephrase an old expression, that you should choose wisely and entrust liberally. In other words, you choose the right people and give them the powers in the belief and faith that they will act responsibly, and then you hold them accountable at the end.
The Gomery commission boiled down its views on the accountability and responsibilities of deputy ministers by saying that if they are faced with an issue they're doubtful about, they should ask themselves two questions: first, can I defend this adequately before the public accounts committee, and second—since the public accounts committee represents Parliament, which represents the people of Canada—the question could be phrased as, can I defend this decision satisfactorily in a public forum?
What's implied in here is a sense of responsibility. The commission did not recommend any more regulations, rules, or oversight agencies; it felt that we had enough. The problem was that these weren't observed, not that we needed more. I have a concern that the Federal Accountability Act goes too far in the direction of more oversight agencies, more varieties of accountability and more mistrust of public servants, more efforts to control and command and punish, and less attention than I would like to see on ensuring that the public servants themselves have a sense of responsibility that they follow in their work.
Thank you, Mr. Chairman.
Thank you very much for being here, Professor.
I would like to address these three points and receive some reaction from you.
Certainly, the public appointments committee concept could be, I think--and I would like your opinion on it--contained within and, with appropriate amendment, administered by the Public Service Commission if the Public Service Employment Act were appropriately amended so that the president and the commissioners were appointed in ways that effectively made the president an officer of Parliament. I realize this goes to your proliferation concern. But rather than having a separate body set up, this would then set out the merit criteria and the diversity considerations and process and present a non-partisan front, but also draw on the expertise and more general responsibilities of that commission to deal with employment in the public sector.
That's one idea to which I welcome and value your response.
With respect to the deputy ministers and ministers, I'd like to put a simple proposition to you. First of all, I see responsibility and accountability with respect to ministers as a minister being responsible for his or her mandate and the administration of the department and accountable to the public through Parliament, as those two concepts can be applied. But the major issue, it seems to me, between ministers and deputy ministers and all of their departmental administrators is that there is a dividing line between the political side and the administrative side of governance. The political side is inherently partisan. Whether it's being elected on a platform or whether it's debating legislation or even appropriating funds in Parliament, those are appropriately partisan. They're open; they're debated; they're voted on.
However, as soon as you have that policy set and your legislation in place and the money appropriated, you cross a line into the administrative side, and there you have a duty of fairness. The duty of fairness simply cannot be contested with the partisan side, on the more political and legislative side. It seems to me that if we had some simple rules that very clearly said that the political side should not interfere politically in that duty of fairness because that would offend it.... Ministers, of course, have a particular challenge because they straddle the line and they're, in a sense, administrators. But we need clear direction to ministers and to their public servants where those boundaries are and that the duty of fairness must maintain when you cross the line.
The third point is on the number of officers of Parliament, and I agree with the concern. As a former officer of a legislature, I am in favour of the model, but I hear the proliferation, not only because of the extra work it gives in holding them accountable to the legislative branch, but I think it also detracts, in some cases, from the power of legislators. As well, it's also a tremendous drain on the public bureaucracy, on the public itself, trying to deal with what sometimes can be mixed messages, where there are overlapping boundaries, when you start to get too many legislative officers.
Those are my comments for your observation.
I'll go at them in reverse.
On the parliamentary officers, the Privy Council Office prefers to call them parliamentary agents because the officers are the clerk, the Sergeant-at-Arms, etc., but the common term is a parliamentary officer, so I'll use that.
I've often wondered if we shouldn't go the route of lumping them together instead of having so many discrete ones. For example, we could have a parliamentary commissioner and put under that the Privacy Commissioner, the Information Commissioner, the Commissioner of Official Languages, the Public Service Integrity Officer...I keep forgetting how many there are going to be, but a lot of them have fairly logically related functions. I think they'd work very well as one organization if Parliament were prepared to do it.
On the deputy ministers and ministers, I would be the first one to say that the boundary between administration and policy is not always clear. I think it is very clear in retrospect that it was the duty of deputy ministers to prevent the things that went wrong in the sponsorship program, or to ensure there were good records in the HRDC issue, or to ensure that the estimates were accurate in the gun control program, etc. The point of the recommendations is to make sure that over time, the area of responsibility and duty of the public servant is clarified, and that Parliament has some means of assuring itself that they obey their duties.
The public service has a legal identity, it has a statutory identity, and it has a responsibility to the laws that govern it--the laws that tell it what it may and may not do, and how it may do things. My concern is that more times than we need in Canada, the public service has not adhered to the laws it's supposed to respect. That causes a loss of faith in the public service; the ensuing scandals are harmful to government, harmful to the public service, and I think harmful ultimately to people's faith in how they're governed.
The final one, or the first, was on the Public Service Commission. As you will know, the Public Service Commission recently changed its role profoundly, from one of actually doing much of management to one of having an audit and accountability function. I've often thought that the Public Appointments Commission could comfortably fit within the Public Service Commission, although one--the Public Appointments Commission--is dealing with Governor in Council appointments and the other is dealing with the tens of thousands of routine appointments made every year to the public service in Canada, the promotions within the public service of Canada, the deployments, and everything else, so in that sense they have quite different clientele and a somewhat different function.
The Public Appointments Commission, as far as I can see, is modelled on the British Office of the Commissioner of Public Appointments. It oversees something between 3,000 and 5,000 appointments a year with a staff of ten. It does that through an ingenious method of having assessors who sit on appointment boards. This is for our equivalent of Governor in Council positions.
The point is that they have different clientele and would probably have different ways of operating, but in the sense that they're both trying to ensure the same standards in their different clientele, there is a logic for linking them. That's as far as I can go on that question.
Thank you, Mr. Chairman.
Thank you for being with us today, Mr. Franks. It's a change to meet someone from the university, who has no direct link to the political aspect of the bill, but who is interested in its impact.
There are a number of topics. You talked about ministers and deputy ministers. Deputy ministers are very often appointed for a much longer period than ministers. Ministers depend on elections and the Prime Minister, who gives them ministerial responsibility for a year or two, at most. They are responsible for their department, but the deputy ministers are often in place for much longer periods of time, because their positions are considered apolitical, and they have much more work experience in a particular department. When you are appointed minister, you are responsible for your department and you are accountable. If there's every a scandal, of course, you're responsible for it. That's my opinion.
Some groups talked a lot about confidentiality. They have a lot of fears about the confidentiality of their clientele's information. How do you perceive that? The bill could have an impact in this area, when they have to keep their clients' information confidential. Then there's the entire matter of the $1,000 reward for a whistleblower. Our party is opposed to that. A whistleblower should make an honest disclosure because it is his or her duty to do so, not for money.
I'd like to hear your opinion on those two questions.
The deputy ministerial community in Canada is quite interesting. One of the very good political scientists who has studied this, you might conclude, took a turn up in profession or down when he became a politician—Stéphane Dion—but his findings were that deputy ministers in Canada, in comparison with their counterparts in Britain, France, the United States, Germany, and so on, are younger when they are appointed, have less experience in government, less experience in the department, and stay in a department a shorter time than their counterparts in the other countries.
For example, in Britain most people at the deputy ministerial level—permanent secretary—have that as their last appointment before retiring, and they are normally appointed on the expectation that they serve five to six years.
In Canada, the last statistics I was satisfied with suggested a stay of deputy ministers of about two and a half years. Now it's perhaps slightly longer, but it depends which department you look at how long it is.
The only figures I've seen on the average time of the tenure of one minister and one deputy together was in a study by a former Clerk of the Privy Council, Gordon Osbaldeston. He found the average “marriage”, if you could call it that, of a minister and deputy minister lasted for approximately one year, which in terms of how long it takes to develop a policy and get it into action is what I would call a one-night stand rather than a real marriage. It again might be longer, but I'm not convinced of it.
I don't think it's right to overstate the length of experience in office or the length of experience in departments of deputy ministers in Canada. That was something that concerned the Gomery commission—as it has many other observers who have looked at it—and that is going to have to be dealt with.
Concerning whistle-blowing, the Gomery commission did not make any recommendations on the whistle-blowing aspect, although that wasn't in its terms of reference. One of the reasons is that the research that was done for it suggested that whistle-blowing is a necessary last resort but really not a very good thing, in the sense that most whistle-blowers are not happy they did it; they regret having done it afterwards. I'm not saying it's not needed, but I am saying there should be ways of resolving differences other than whistle-blowing.
I have a terrible worry about the $1,000 reward for whistle-blowing: that it's going to look more like 30 pieces of silver.
Excuse me, I have forgotten your last point, I regret. Je deviens peut-être plus âgé.
First of all, we must recognize that access to information is limited, that there are some things that aren't in it, that the Federal Accountability Act itself says that draft internal audits should be concealed for a period of years, should not be available I think it's 15 years--I'm not certain on that.
But one thing that is confidential at present, and I think always would be, is the advice of deputy ministers to ministers. There was no intention in anything Gomery did and there's no intention, as far as I can see, in the Federal Accountability Act to change that. The advice a deputy minister gives to a minister on policy or anything else is confidential, and then the minister's informal comments to the deputy minister are also confidential.
In a parliamentary committee, deputy ministers and other public servants at present can only answer about what a policy is. They do not say it is a good policy or a bad policy, they do not discuss alternative policies, and they do not say what they would prefer in policy. There's nothing that will change that. So the confidentiality of the relationship between minister and deputy minister would remain.
The issue would be only if there is something on which the minister and the deputy minister disagree that is within the responsibilities of the deputy minister that the process for appealing to the Treasury Board and the Secretary of the Treasury Board would be invoked--not on policy issues, just on administrative matters that are the responsibility of the deputy minister, the accounting officer.
Thank you. I did have a chance to read your brief. I apologize for coming in late.
I have heard you speak before on this issue, and I'd like to turn my attention to perhaps juxtapose this act with the work you did on the Gomery commission.
I'd like to get your take on recommendation 2 of the commission report--and just for those who might not have committed it to memory, it says, “The Government should adopt legislation to entrench into law a Public Service Charter.” There are references in the recommendations about what that is and the intent of that.
In fact, what this piece of legislation was to address was not specifically Gomery, but to take a look at what parts of Gomery they thought were applicable and certainly to fold them in.
Could you speak to that recommendation? We haven't talked a lot about it, and certainly, in my opinion, and from what I've seen in this town, it has been talked about a lot, the idea of inducing ethics into the way government operates. I think this was an attempt to do that.
Could you just speak to what the public service charter was to do and how we might see it come into place?
In the time remaining, I'd like to turn to public appointments. It's been talked about, as of late, and even tried.
In a motion passed through the House last May, we as a party put forward an ethical appointment process, and competence-related criteria were put front and centre so people could see that. The government would submit the criteria and have an oversight so that the committee could look at it and say, yes, the criteria make sense, and the government publicly released the criteria. The criteria would be there, if you will, to measure the basis of appointments, taking the appointment process out of the PMO and allowing it to be done by another party.
When we look at the Public Service Commission, you mentioned that it has changed in scope. One of the things I had considered is to not have it solely in their domain. I think it's important enough to have someone do it and to have a separate committee do it, with the commissioner separate from government, but to perhaps have the Public Service Commission provide an audit to make sure it's being done.
I think you mentioned that there are over 3,000 appointments. We certainly don't want to have one committee making those appointments an oversight, but to have an audit function that already seems to exist, in terms of the skill sets of the Public Service Commission, to allow them to do that. I'd like your comments on that.
Well, I think the real question that comes out of it is this. How do you want to do it? What sort of procedure do you want?
As I say, in Britain, most of these appointments are made by ministers, they're ministerial appointments. In Canada, they're Governor in Council. We have a more centralized structure in Canada, and have had since day one. It's part of the need to recognize the diversity in the regions, languages, and so on, in Canada. Whatever we would do would be different. But for the procedure in Britain, if you're going to go through something like this, a committee is set up. An assessor, appointed by the Office of the Commissioner for Public Appointments, sits on the committee and makes sure it adheres to the rules. The committee then makes a recommendation of three qualified persons, and the minister chooses from those three.
The concern of the Office of the Commissioner for Public Appointments is not that non-partisan people are appointed, but that every appointment meet the criteria of merit, due process, equity, and diversity, and that the end result be one that meets those general standards. The process itself is open and transparent. But I would think that for a lot of these, it would be unreasonable to expect the government or an individual minister to not want to appoint somebody whom he or she likes and wants in the office.
Thank you for your invitation, Mr. Chairman. I am glad to have an opportunity to come by and see if I can be of some help to the committee.
I won't have a long opening statement. The way I come at this subject is that this bill is really the third of three attempts to respond to the sponsorship scandal. The first attempt was made by Mr. Alcock as President of the Treasury Board immediately after the Martin government was sworn in, and Mr. Alcock's approach was to focus on officials. His way of trying to ensure the sponsorship scandal couldn't happen again was to apply a lot more controls and regulations and financial oversight.
My own perspective was that there were two problems. One, the implication of this was that sponsorship had come about because of the public service, which I think was not the case. I think it was politically driven, with a very small number of officials involved, and the Auditor General and Justice Gomery both said we don't actually need more regulations. In any event, that was Mr. Alcock's approach: put lots of rules in the public service and it can't happen again.
When Justice Gomery's second report came along, it's interesting that he took the exact opposite view to Mr. Alcock. Mr. Alcock said officials are the problem and Mr. Gomery said no, they are the solution. What he meant was the sponsorship scandal had come about because ministers have had an unfettered ability to do more or less what they want. So the way to make sure that doesn't happen again is to put officials in positions where they can check the power of ministers, place greater constraints on what ministers can do, and in fact the judge said that officials have an independent constitutional personality that is independent from that of the elected government.
So his solution was that ministers and indeed members of Parliament should focus on policy issues, and once those have been settled they should leave officials to get on with the job without what he would have termed “political interference”.
There's a problem with Justice Gomery's recommendation, just as there was with Mr. Alcock's, in the sense that it really would have taken us into a very different system from what we have today. That is to say, it would have taken us in the direction of government by the unelected. It would have broken the chain of accountability that starts at the lowest levels of the public service and goes on up to the minister and from the minister through to Parliament. It would have created officials with an independent accountability to Parliament.
There are two problems with that. One of them is it's very difficult to create a permanent distinction between policy and politics on the one hand and administration and management on the other. They're all mixed up together, at least in Canada, and of course when officials appear they can be questioned very extensively, and they have been for decades, about all aspects of management. Committees quite often will give you a pretty frank opinion of what they think of your management, which is fine. It's well established in Canada that officials are accountable before committees. Where I became uncomfortable was when Justice Gomery said, yes, but they should actually have an accountability independent of their ministers, because that really does take us in a different direction.
Turning to the legislation you have before you, it's the third of the three attempts to respond to the sponsorship scandal, and in my view it's the most successful. This is a bill that has some problems in it I think, but it also has a number of positive features, and in particular--I'm only going to talk about one aspect of what is a very long bill--how the bill treats the relationships between ministers, officials, and Parliament. I think it's quite ingenious.
You just heard from Ned Franks. Ned and I have had our disagreements about the accounting officer principle, and one of the achievements of this bill is that we agree with each other now.
The problem I had with the accounting officer principle is that, again, it breaks that chain of accountability that's supposed to run through the system, where you're accountable to your minister for everything because the minister, by statute, has responsibility for everything.
The bill says that officials are now going to be accounting officers within the system of ministerial accountability. That solves it. That keeps Professor Franks and me equally happy.
The other thing it does, which eliminates a worry I've had.... The British system on which the accounting officer model is set says, well, you know, if a minister really insists on doing something you think is a bad idea, you make the minister give you a written instruction and you give that to the British treasury and the auditor general. If you're a deputy minister or a senior official, you deal with the minister all the time--nights, Sundays, mornings. You go to meetings together and you travel together. If you're going to work well, you have to have a solid working partnership. It doesn't mean you always have to agree, and in fact you shouldn't. But the idea that every time the minister does something you think is a bad idea you ask for a written instruction I think would be quite destructive of the kind of partnership arrangement that is essential.
So what your bill says, which I think is very good, is that if a deputy finds him or herself dealing with a minister who wants to do something that looks improper, for example, you go and see the secretary of the Treasury Board and the secretary gives you an opinion. You tell the minister, and the minister says, “I don't care, I want to do it anyway”. At that point, the minister has to talk to his or her colleagues at the Treasury Board. What I like about that is that it is elected people providing rulings about elected people rather than an unelected official somehow throwing roadblocks in the way of what a minister wants to do. I don't mean you always agree with your minister. You have a duty to disagree and to warn and all the rest, but at the end of the day, elected people should be in charge and should be accountable for what they decide.
Those are my main comments on the bill.
If I may, Mr. Chairman, I'd like to offer just one last observation. This runs contrary to all my years of conditioning as a senior official, when I always thought that what parliamentarians did was none of my business--you didn't give them advice. But since I'm now a private citizen and some other private citizens have given you advice, maybe I can too. I hope you'll take enough time with this bill. This is a major piece of legislation.
One of the great advantages you have, as far as I can tell from the outside, is that this is not really a matter in which there are intense partisan divisions. When I was in government, my observation was that Parliament was at its best when a committee did not have a situation in which one side was dug in on one position and another was dug in on another. Instead of that, you had members of Parliament putting their heads together and trying to figure out what kind of outcome would best correspond to the public interest. As parliamentarians, you have unique responsibility in that you are the ones who have the last word about the public interest.
So I'm not going to tell you what should and shouldn't be in the bill, but I do think it's really important that you not rush it, and that when you get into clause-by-clause, you take as much time as you need to work it out. It's complicated. There are some things in the bill that I think show some haste. There are some things that a more experienced government probably wouldn't have done. In putting your heads together on this committee, I hope you'll be able to sort those out and arrive at improvements. It's a good bill, and I think you have the opportunity to make it better.
Thank you, Mr. Chairman.
Thank you, Mr. Kroeger, for being here. We all are well aware of your background and reputation and are grateful to have your advice. And I think your presentation was very clear, so I won't get into those issues.
There are two issues we touched on with Professor Franks; then Professor Franks raised one of them briefly at the end, and I would be grateful for your opinion on it. It is that the codification of a code of conduct can put the legislative branch literally into the courtroom. That's obviously what we're doing or are faced with having done in Bill C-2. I'm not asking you as a parliamentarian but as a long observer of these interactions amongst branches of government whether you feel that having it legislated poses any particular dangers, as against the advantages it might have.
The second was a point we got into a little with Professor Franks as well. I won't apply the word “proliferation”, because it has a negative connotation, but we are adding more and more parliamentary agents, as Professor Franks said. That can be confusing to parliamentarians—and can as well overburden them, perhaps, in their responsibility to oversee their agents—but also to the news media, who often popularize and personalize these offices around the incumbent, and also to the bureaucracy.
This is perhaps where you could give us some good advice, because often their mandates, particularly as they multiply, will inevitably overlap, and that will cause confusion and at least duplicity—I mean duplication....and maybe duplicity as well, but it can cause confusion.
In the interests of time, I would ask my colleague Mr. Tonks to ask a question as well, and then perhaps you could address them together. I know he has one.
I don't have any particular hesitations about a code of conduct for public servants. If you want to put it in legislation, that's fine.
A code of conduct is mostly what you carry around in your head. You don't pull out a little book every once in a while to see what you ought to do, but if it is useful as a general way of establishing an operating environment, I don't worry about it. I don't think it should get you into court very often, but perhaps I'm overlooking something.
On the question of the functioning of an accounting officer and responsibility to Parliament, I'm going to see if I can combine my response to Mr. Tonks and Mr. Owen.
When you go to a parliamentary committee, you really have to be ready to provide information about anything the committee wants, within obvious limitations of confidentiality. You have to be prepared to answer questions about whatever the committee raises; again, certain questions are off limits for an official, but I think you should be able to have very wide-ranging discussions with parliamentarians, because that's how you get them to understand better what you're trying to do. If that gets into the operations of the department--how well your policies are working, whether your programs are well designed--that's all part of it. You should be able to discuss that, as well as the nuts and bolts of the last financial report the Auditor General brought in.
On the question of audit, the legislation says you have to have an internal audit committee. I think all departments have internal audit committees. I know that every department in which I served as a deputy minister had an internal audit committee. I chaired it. The Auditor General was always invited to have a representative at the table. The Comptroller General was always invited to have a representative at the table. I always assumed that anything in our audits was going to become public, as it should. I have no problem with any of that.
The one rider is that you still I think need to preserve the principle that elected people are in charge. It doesn't mean they're to blame for everything that happens, but you work for the minister. The minister is the boss; the minister is elected and has prerogatives that you don't have.
It is up to you, the members, to judge how much time that takes, but this is a very complex bill.
The President of the Treasury Board said this morning, in his speech to officials, that it had taken nine weeks to prepare this bill. That's very little time, in view of its considerable content.
You must judge what changes to make and how to discuss them. For my part, I hope that your members won't feel rushed and that you won't feel obliged to finish your proceedings on June 15 at all costs.
I appeared before a committee when I was Deputy Minister of Transport. The bill was at the clause-by-clause consideration stage. Four weeks were devoted to it, at a rate of about 40 hours a week. That totalled 150 or 200 hours. During that period, I believe 84 amendments were made to the bill.
All bills are different, but this is very important: what you establish here is a framework for the operation of government and officials. So I would say, without wanting to prescribe anything, that it would be good for you to take the necessary time.
Mr. Kroeger, in our party, we had actually proposed before the election some concerns that we had about what was going on. Ethics and accountability, and putting those two together, were pretty apparent in this town and across the country. We put forward a kind of mission statement, if you will, that Canadians were demanding changes in ethics and accountability. We wanted a strong Canada that had institutions, if you will, based on sound, ethical, and accountable mores and ideas. Having honesty, fairness, and transparency were critical.
My predecessor, Mr. Broadbent, put forward a seven-point plan. Part of it had to do with Parliament and the government, and part of it had to do with the democratic system itself. We were concerned and still remain concerned. This says a lot about the accountability of government and Parliament, but there's one component missing, and that's the accountability to the public. We've talked about some other concerns we have about proportional representation and concerns about other institutions, like the Senate.
That's background from our perspective as a party
But when we got into this bill—and we think we share some of your sense of the bill—there were some really good things and there were some things that we think can be improved upon. Access to information is an obvious one, and we'll put forward proposals and amendments on that. But there are some institutions that are unchartered waters, and I would like your comments.
I'd turn your attention to the parliamentary budget officer. There's an interesting component to the parliamentary budget officers. They would have the ability to cost private members' bills but not to really do a costing or evaluation of the government bills, as I read it. I find that interesting.
I don't know if you've looked into that part of the bill at all or if you can look at other jurisdictions as to what that kind of office would provide and what the need would be. I understand the need, and we certainly wanted to have that. It was mostly to do with concerns around the Department of Finance: how the surpluses would be out of whack with what everyone else was saying, therefore the money that was available to government and Canadians wasn't there, and alas, every year the government would say, oh, look, the surplus was a lot larger than we had anticipated. We wanted some transparency there, and that's why we thought an oversight was important.
I'd like to mention a couple of other points, if I have time.
On that one particular component of the bill, it's curious to me that you would cost private members' bills, in which traditionally you can't spend money, and then have the government bills not costed. What do you think the intent is? What could this do?
I might receive clarification now, but traditionally I've been told to steer away from anything that has to do with finances, as a private member putting a bill forward. If it's an extra service, so be it.
If we go back to where the source of this was--I'd actually, just as a comment, say that this committee has been going on for quite a while--you mentioned Mr. Alcock and his remedies, and I heartily agree with you. Particularly for the people in this town, the effect would have been paralysis to government if they had been enacted, in my opinion, and from what I was hearing from public servants. You did have the Gomery commission, and here we are. So I think, with respect, we've been at this for a while. We had an election on it.
There's a perceived rush. I'm not wanting to rush. We want to make sure good things get done.
But when you look at the public accounts committee and at the estimates process, we haven't talked about that enough, in my opinion. It's strange to me--and I'm wondering if you see it in this bill or another tool--to allow Parliament to be more vigorous in looking at spending at the front end and not at the back end.
In other words, if we look at some of the concerns that came out of Gomery, and before that, other programs, it was after the money had been spent, and voilà, look here, we had some misspending or account problems, and so on. Sometimes, indeed, the problems were exaggerated, and we found that out after the headlines.
Some provinces are much more rigorous in their estimates process. We have the blue book here. I've looked through it. This year was a bit of an anomaly because it came out before the budget. So I'm no stranger to--
That's an important question. It is one of the fundamental functions of Parliament, obviously.
I'm a little surprised. There was one recommendation that Judge Gomery made that I thought was very good that hasn't been picked up in the legislation, but it hasn't been picked up in anything else that I've heard the government say. Justice Gomery said to increase the resources available to parliamentary committees.
By most standards--of the United States, I won't even speak, but most other countries have far greater support for their parliamentarians and their parliamentary committees than we have in Canada. So you're really trying to operate on a shoestring. The Library of Parliament does a formidable job for you, but there aren't all that many of them.
So, number one, if the government and the parliamentarians saw fit to increase resources for committees, I think that could do quite a lot. That could give you good research reports.
I used to be responsible for the main estimates, but I was a Treasury Board official. The thing is that thick. You can't as parliamentarians get into that unless somebody has done some research and says, “Hey, take a look at this”. You need the staff support and the analysis before you come to the table. So that's number one.
Number two is a question of how Parliament wants to organize itself. This is something that has always kind of puzzled me, because historically--I'm not just talking about the present government, I'm talking about governments that I've known over a period of time--there was not very much system. Somebody is appointed parliamentary secretary, they serve two years, and then their term is up. So, okay, we'll make you chair of this committee; it doesn't matter if you know anything about it or not, and whoever is the chair of that committee goes off to do something else. You get random substitution of members on committees.
There are a number of practices that are actually, to some degree, I think, within the control of Parliament itself, and there, parliamentarians have to make a judgment call as to which of these functions is the most important--because there are reasons you do substitutions. If you really wanted to get into the financial structure of the department, you could organize a series of hearings, and officials, I can tell you, would really enjoy coming and giving you a two-hour briefing, saying, “Look, here's how we're organized. Here are the main programs. Here is the budget. Here is our history. There's the background. Now, what do you want to get into?” At future meetings you could say, “Well, you know what? We're really curious about your regional programs.” So you'd start burrowing into those.
But that's a question of how a parliamentary committee chooses to organize its work. Officials can't do that for you, and to some extent, even the government can't do it for you. It's parliamentarians themselves.
Thank you very much, Mr. Chair.
Mr. Kroeger, welcome. I enjoyed your presentation very much.
I want to go back for a few moments to a fairly popular subject, it seems this afternoon, and that's the time required to deal with this bill.
With all the greatest respect in the world, I have to disagree with my colleagues, Mr. Sauvageau and Madam Guay, and I think they both know I respect them very much. But their implication is, or their assessment is, that we are trying to rush this bill and not give it the due consideration, the rigorous examination, required. But I think we've struck a fairly happy marriage, because, for a couple of reasons, there is some need for speed, if you will.
We've heard from a number of witnesses who have stated that they are asking us to deal with this and get this bill through committee quickly so it can be enacted into law, for a number of reasons. A more primary reason, in my opinion, is the fact that because this is a minority government that could fall at any time, should we not deal with this expeditiously, we could be faced with yet another situation where a good attempt to get a necessary bill passed is derailed because of an impending election. So we have the challenge then of how to deal with things expeditiously, yet still give it it's due diligence. And I think what we're doing here is the best compromise, and that's to extend the sitting hours.
I noted with interest that you said that when you were on the transport committee you dealt with a bill 40 hours a week; right now we're dealing with this bill 24 hours a week. By the time we reach the end of the session, June 23, we will have spent over 120 hours or so discussing this bill. As you would well know, a normal standing committee of Parliament meets four hours a week, and over the 28-week period that Parliament usually sits, that would be about 112 hours. So in fact in a short and compressed period of time, we will have met the equivalent of a year of a regular standing committee.
Should we go beyond that—and we have a motion that has been approved by all of us at this committee to keep sitting until this bill is done—I suggest that we can probably increase the sitting hours to approximately 40 hours a week, starting the week following the rising of this House, and if we sat for another three weeks after that, it, in effect, would be the equivalent of yet another year of a normal standing committee. I think we're all quite prepared to do that, because we all agree that this bill needs to be passed, but we need to give it its due diligence and all of the rigorous examination of every clause.
I'm not asking for you to say yes or no on this, but I would ask for your comments, given the parameters that I've just described to you, on the need for some urgency, and the fact that we're putting an intensive amount of work into this bill through examination and interventions by witnesses, and then when we go into the clause-by-clause, whenever that may occur--and I'm not sure if it's going to occur next week or not. Do you suggest that if we end up getting approximately 200 hours of examination, that might be considered adequate?
I wouldn't feel competent to put a number on it. Let me tell you how I think about the bill.
These are institutional questions you're dealing with. You're creating new officers of Parliament who are going to be there for the long term, or so you hope. You're creating new procedures. And again, this isn't a quick fix. This is something that you, as parliamentarians, and officials, and ministers, are going to live with for the foreseeable future. It's not as though it was really urgent to pass this bill because people were stealing money hand over fist. Canada is not that kind of a country. You're not trying to deal with larceny or fraud in regional offices or on the part of anybody in politics.
Coming back to Mr. Dewar's comment about morals and values, every year there's an organization called Transparency International that publishes a so-called corruption perceptions index. It's got 170-plus countries on it, and Canada is always in the top 10, with the Scandinavians, the New Zealanders, and the Dutch, and good folks like that. So it's not as though we have a question of rampant corruption that it's urgent to deal with; you're dealing with longer-term matters.
I don't know, I have no idea, what the right number of hearings is. I might venture a suggestion just from my own experience of some past legislation. Once you get into clause-by-clause, and where you're not having partisan arguments but you're actually figuring what the best way to do this is, you may find that's more complicated than you have thought. But that's speculation on my part.
I would not want to prescribe to parliamentarians what is the right amount of time to give this. I would express the more general opinion. This is long-term legislation. I hope you won't feel that you've got to come to too many conclusions in the short term, but I wouldn't go further than that.