Mr. Chairman, members of the committee, thank you for the invitation to appear before your committee today.
To begin, I would like to introduce my colleagues who are with me — Mr. Robert Benson, the Deputy Commissioner, and Ms. Lyne Robinson-Dalpé, Director of Corporate Services.
I have some brief opening remarks with respect to various issues related to Bill C-2, then I will be pleased to answer your questions.
At the outset, I want to point out that my comments will focus not on Bill C-2 generally, but on the proposed Conflict of Interest Act, which creates a new conflict of interest regime for the public office holders in the federal government.
In general, I am pleased to see many positive features in the proposed regime in which the role and mandate of the commissioner will be expanded, notably in four areas: first, responsibility for the administration and compliance of the conflict of interest code for senators; second, investigative authority to include all current and former public office-holders, not just ministers, ministers of state, and parliamentary secretaries; third, authority for the commissioner to self-initiate inquiries; and fourth, powers of the commissioner to issue notices of violations and to impose administrative penalties.
I'm also pleased to note that some of the proposals included in the act directly address some of my own concerns and recommendations raised notably in my Issues and Challenges 2005 paper issued last fall and during my appearances before parliamentary committees in the last Parliament. These include the requirement for a timely publication in the public registry of ministerial recusals from cabinet meetings and adoption of a formal mechanism by which members of Parliament can refer requests for examinations from the public to the commissioner.
However, I do have some general comments on the overall approach of the proposed Conflict of Interest Act and the implications of this approach. The most important of these is that the new act represents a fundamental shift in the federal conflict of interest regime for public office-holders from a values-based system based on explicit principles to a rules-based system enshrined in legislation, which in some ways of course strengthens the regime.
On the other hand, this change in the foundation of the conflict of interest regime has a number of potentially problematic implications, and I will just raise three.
First, the act does not include any preamble or principles upon which ethical conduct can be evaluated as in the current code and indeed in the current code for the members of the House of Commons as well. Thus there is, for example, no mention of the requirement to conserve and enhance the objectivity and impartiality of government to make decisions in the public interest and to avoid giving preferential treatment to any person.
Second, the act sets out a definition of conflict of interest for the first time, which in itself, I think, is a step forward. However, there is no explicit mention of apparent or potential conflicts of interest. If the intent of the bill is for the commissioner to deal only with situations of what are referred to as real conflicts of interest and that cases of apparent or potential conflict of interest should be dealt with in the political arena, then the current wording of the bill is probably appropriate. Otherwise it could lead to ambiguity on the exact role of the commissioner.
Third, the focus of the new model is on enforcing specific conflict of interest provisions rather than managing conflict of interest in situations that might arise. Moreover, the statutory nature of the new model will require significant legal resources to interpret and of course enforce the rules.
Nevertheless, I believe that in general a lot has been gained under the proposed act. But something of course may have been lost in terms of some of the good features in the transition from a values-based system to a rules-based system. Relative to the observations I have made, I would like therefore to suggest three proposals for your consideration.
First, I believe it would be beneficial to add a preamble to the act setting out the ethical principles that the Conflict of Interest and Ethics Commissioner would be empowered to use to interpret the act. These principles, of course, need not be the current ones. They could be a different set altogether, as long as there was some reference to standards that could be interpreted. Then if a public office-holder is engaged in an activity that might be perceived to be a conflict of interest but that is not covered specifically by the legislation, the commissioner would be able to advise, at least, on the manner in which the matter could be resolved.
Let me give you an example. Suppose a minister is faced with having to decide whether to personally approve a large amount of public funds to a business entity in the minister's own riding. In this situation, even though the minister's private interests would not be furthered, as provided in the definition of conflict of interest included in the act, I believe the public expectation is that the minister should not personally approve this funding, unless of course it is one in a series of selected business grants across Canada. However, there is nothing specific in the proposed act that would require the minister to recuse himself in this situation, as it is not considered, apparently, a conflict of interest in terms of personal financial interests. Under the current code the principles of impartiality, making decisions in the public interest, and avoiding preferential treatment to anyone would provide the rationale for requiring a recusal.
Second, it would be very helpful to the commissioner, in carrying out his or her functions and responsibilities, if he or she had some additional discretionary authority for the interpretation of the act on the basis of the principles that might be included and, as is currently the case, for the extension of compliance deadlines where warranted—for example, to deal with a large number of new clients after an election, where there's a tsunami of material coming forward as various new people are appointed.
Third, I would like to propose that a clause requiring the act to be reviewed in five years be added. I know it is getting to be a bit of an annoying habit for many members to be constantly reviewing acts that have already been passed. Nevertheless, I think it would provide an opportunity to evaluate the experiences of this new regime and to make any necessary changes.
I believe these amendments would go a long way toward meeting the intent of the act, which is, I believe, to underline the importance of accountability in general, and ethics in particular, and to provide Parliament, the public office-holders, and the Canadian public with a solid framework to achieve these results.
In addition to these three suggestions, I want to point out two provisions in the bill that will pose some interpretation and compliance challenges. Subclause 15(4) on political activities appears to be wide open on the type and extent of political activities permitted for a public office-holder, and this could engender—I'm not saying that it will, but it could—difficulties in terms of the perception that a public office-holder would be biased in carrying out his or her official duties. However, if the intent of the bill is that any apparent or perceived conflict of interest situations are to be dealt with in the political arena, and that the commissioner is only required to deal with substantive conflicts of interest, then the proposed arrangements are appropriate as they are; if not, the section could be problematic.
The current wording of proposed section 64 on the activities of ministers and parliamentary secretaries vis-à-vis their activities as parliamentarians may create some confusion. Under what circumstances exactly should a minister wear his or hat as an ordinary MP and serve the constituents? This confusion would be especially acute when the minister is asked by constituents to deal with a quasi-judicial body, or a crown corporation, on their behalf.
The last area I would like to mention is that there will be administrative challenges in the implementation of the new act and the expanded mandate of the commissioner. Additional immediate and longer-term resources will be required for inquiries and legal services, as well as for system adaptations and changes.
In addition to the issues I raised above, I do have comments on other areas of the act. Given the limited time available this afternoon, I cannot raise them all, however, I will be glad to provide them to the committee if it wishes to receive them.
Along with my colleagues, I would now be pleased to answer your questions.
Firstly, thank you for being here this afternoon, Mr. Shapiro.
I would like to apologize for the ill-mannered way in which we are treating you and all the other witnesses that have appeared, or will appear, before this committee. Unfortunately, an utterly unconscionable time restriction has been imposed on the committee and on you. That is probably why you ended your presentation by saying:
|In addition to the issues I raised above, I do have comments on other areas of the act. Given the limited time available this afternoon, I cannot raise them all.
You were being very diplomatic. Other potential witnesses have refused to appear before the committee. I think that this situation is utterly inexcusable.
You said that you would be glad to provide your additional comments to the committee if it wishes to receive them. I do not know whether the committee wishes to receive them, but I certainly do. You can send them to me, along with any other information, through the clerk.
I would like to thank you for having suggested amendments. I do not have any questions for you. I simply wanted to make an observation, but you should feel free to respond to it if you wish.
The bill before us comprises 317 clauses and 250 pages. Yet, for the first time in 13 years, I find myself faced with a time restriction for studying the bill, a little like the time restriction imposed upon you for your presentation. The Conservatives have given us approximately two and a half weeks; I find this utterly mind-boggling. Other time restrictions are also being imposed, and the NDP has joined the bandwagon.
In making the three amendments I suggested, I tried to keep in mind what appeared at least to be the legislative calendar, or what appeared to be the calendar through which this was going to be considered and then dealt with. I made no attempt whatsoever to go into a detailed clause-by-clause imagination of how a revised bill might look in trying to realize whatever the government's intentions were. I made no attempt to do that. I just focused on the things that I thought would be most useful in the context we had.
It seems to me that adding some set of criteria--as I said, the principles we had may not be the ones that are wanted; there may be others that may be more useful--that would give both the people subject to the law--because it's a law now, it's not just a guideline--and Canadians in general some idea of what the objective was. Certainly we'd be glad to work with anybody who wishes to work those out. I offer the possibility, but that's a question of what the committee wants and wishes to do. I thought that would be helpful.
On a more minor scale, the question of discretion, it seems to me, is very helpful. It needs to be limited; it can't be too wide. For example, in the current situation the government changes and there's a huge tidal wave of paper that comes to the office, and it is probably impossible to deal with in the time limits that are provided. So some discretion to let that move a little so you can deal with the odd special occasion seems to me to be a good idea.
The revision of the review, I think, would be a natural consequence of the fact you raised earlier. There hasn't been a lot of time in some ways to consider this as carefully as might otherwise have been the case, but perfection can get in the way of the goods, so to speak, to use an English expression. I think a serious attempt at review of the experience once a number of years has passed--it could be three or four or five--would be a useful idea.
Another useful idea the committee may wish to consider as it looks at the law in detail is what the implementation calendar is like. There are some things that, of course, could be implemented right away, but very careful thought should be given to which of the sections may require more work--not on the section itself, but more work to get implemented. An example is anything that requires a regulation such as fines. It's a complex process, so the development of those can't be done in any instant way. Some thought about the implementation calendar should be given, and some thought has already been given, I should say, but I think more thought would be very helpful.
Dr. Shapiro, it's good to see you again. I have a couple of questions, but first I want to focus on your suggestion that ministers should perhaps recuse themselves from projects where funding goes to their home riding, even though the project does not benefit the minister personally or his personal interest, because you're suggesting there would be difficulties with the public perception of that. And perception is reality in politics.
I agree with what you're getting at and the spirit of it, because you want the public to be confident that the minister is not trying to feather his or her own nest, but I have difficulty in how you would administer that. I'm going to give you a couple of examples, because I really can't get my head around how you would deal with this.
In a general sense, any time there is a project that would go to a minister's home riding, regardless of whether that minister had anything to do with that file or with approval of that funding, when the announcement comes, the minister is going to be there for the photo ops and to make the announcement and perhaps to hand out the cheque, and everything else. So even though that minister had absolutely nothing to do with the funding of that, the perception may be, well, he certainly had some influence, and behind the cabinet's closed doors he did whatever he could to make sure the project went to his riding.
So how do you propose that a minister recuse himself, or are you suggesting that a minister should recuse himself?
I'll give you a second example, because it happened in Saskatchewan. Mr. Chair, I'm not doing this to get into personal examples here, but in my province of Saskatchewan, prior to the last election, we only had one government member representing the province, and he happened to be a cabinet minister. So realistically, whatever projects came to Saskatchewan, that minister was on hand to hand out the cheque. It could be argued that the entire province was that minister's home riding.
So are you suggesting that in any case where any funding or project happens, and a minister happens to be involved because it happens to be in his or her home riding, or home province, they should recuse themselves and not be available to participate even in a cheque-signing ceremony? I just can't get my head around how that—
Thank you, Mr. Chairman.
On the lighter side, Mr. Shapiro, when you were being introduced, the Hallelujah Chorus was going in the back here. Given the tremendous amount of exposure that you've had recently, I thought that was appropriate, poetic justice actually.
Mr. Shapiro, you've talked about moving from a regime that you have been familiar with, which is not a statutory but a values-based regime. I infer from that that it has allowed you to play a little bit of a different role from time to time in advising individuals with respect to their possible conflicts and so on. In fact, members can come to you and ask for your advice with a certain degree of confidentiality. In moving to a rules-based and a more statutory regime, you have indicated that there should be a continuity of that values-based regime by having an ethical mission statement--call it what you want--that would still give you that element of advisory, intercessional role.
My concern, and I wonder if you would address it--and I think the committee should be concerned about it--is that in a rules-based regime, if the balance is too far in that direction, then it's possible that the natural justice, the opportunity prior to huge publicity depending on your reporting responsibility, would really deny a member their opportunity to have a day in court, so to speak.
Could you make a comment based on your experience? Could you suggest any way the legislation could be written in such fashion that this possibility would not occur?
I must say that I have some difficulty in commenting on the substance and the content of a bill, since I spent 32 years of my professional life avoiding doing so. I hope you'll be generous with me if you sense any hesitation; however, I'll endeavour to answer your questions as well as I can.
My preliminary comments will focus on two aspects of the bill. My first remark is of minor importance in terms of accountability, but fairly important in terms of parliamentary procedure.
My second point will focus on the process for studying the estimates, and on the way in which I think the scope of the bill could be broadened to include the estimates.
You may initially, as I comment on this, find the first point, the procedural point, somewhat minor, but in my view it has potential for difficulty in the House from a procedural standpoint. That's the issue of the secret ballot. The bill does provide for a secret ballot for the appointment of most of the parliamentary officers or agents or mandataires du Parlement, whatever term you want to use, except for the...no, it includes the Auditor General.
In my career as a committee clerk advising on bills, and as table officer and Clerk of the House, I have consistently advised parliamentarians to avoid enshrining parliamentary procedure in legislation. The reason is that parliamentary procedure is designed to be somewhat flexible, allowing the House to advance its business against a set of standing orders. Although they are standing--and somewhat permanent--they can very easily be altered according to the wishes or mood of the House that day. If you enshrine the secret ballot in legislation, both houses will be bound, and the Speaker will be bound. There will be no choice but to hold a secret ballot, even if there's unanimous consent on the candidate. Even if there is the will to proceed quickly, the House will have to hold a secret ballot.
We've had difficulties in the past with procedure enshrined in legislation, prescribing certain debates at certain times within certain timeframes, and the House wasn't quite ready to deal with that. There was a political agreement not to deal with that, yet the House was bound to proceed.
I'm not disputing the issue of a secret ballot. What I would recommend to you is, if you wish a secret ballot, then enshrine it in the standing orders of both houses, not in legislation.
I spotted a small discrepancy--or maybe it's not a discrepancy; it may be a matter of policy. It's not for me to judge. The nomination process is subject to secret ballot, but the removal process is not, or at least it's implied that the removal process is not. In every case, the nomination process must be a secret ballot, but it appears that the removal process for most of these officers is a simple resolution adopted by a majority and, I assume--according to what's written in the bill--a public vote. On the one hand, you have nominations by a secret ballot; then you have a removal process by public vote. It's up to the committee to decide whether that's what it wants. To me, it appears to be an inconsistency, but it may not be.
I want to make another point, and here, Mr. Chairman, I will beg your indulgence a little bit because it may sound a little irrelevant, but I will make it quite relevant.
It is an unfortunate truth that the interest that members and parliamentary committees take in the estimates has waned over the past 40 years. I am not the first to make this observation. I think that those who have followed the evolution of the process for dealing with estimates in the House of Commons would agree with me.
There is very little incentive for MPs to spend a lot of time on estimates. It doesn't bring a lot of votes in your ridings, and sometimes it can be somewhat daunting, looking at the volume of information that comes from the government. By and large these committee reports don't get debated in the House, and as a consequence little interest is devoted to them.
You have today in the Auditor General's report a graphic example of violation, if you like, of the constitutional supply authority of the House, at least alleged by the Auditor General, that might have been picked up through a study of the supplementary estimates. I'm referring to the gun control issue. In the period that the Auditor General is commenting on, 2003-04, the justice committee was preoccupied with a major piece of legislation, and that was same-sex marriage. The committee held not even a single hearing on the gun control supplementary estimates.
I'm not criticizing the committee; please, don't get me wrong.
However, it does highlight a fundamental problem in terms of accountability that is not addressed in the bill.
Parliament is outside the loop of accountability in this bill. And I've just said to you, please don't put procedure in the bill, so I'm not arguing that you put the supply process in the bill. What I want to link it to is the parliamentary budget office.
I commend to you a research paper of the Gomery inquiry, in Research Studies: Volume 1, called “Parliament and Financial Accountability”, prepared by the Parliamentary Centre, and an article in The Hill Times of last week, signed by Peter Dobell and Bob Miller, the executive director of the centre, on that very subject.
It would be very easy to extend the mandate of the parliamentary budget office to include estimates. It would be my strong recommendation that you consider that as part of this bill, adding a second mandate of that office within the library, to capture the estimates process. The committees, I believe, as I've advocated publicly and privately, require substantive support by a financial analysis office in order to help the committees do a proper job on the study of estimates. Of course, with that would come a series of standing order changes, which would be irrelevant to your discussion today. This amendment to the bill has the potential to bring Parliament back into the accountability loop.
Mr. Chairman, I'll leave it at that. Those were my two major comments, one minor and I think one more substantive.
Welcome, Mr. Marleau. You've spoken about the parliamentary budget officer. That's one more of a growing list, as this bill expands it further, of parliamentary officers. Of course, 30 years ago we just had the Auditor General, then the information and privacy commissioners, and now we have a number of further ones.
This relates to your very useful suggestion of extending the parliamentary budget officer's mandate to cover estimates. A tension exists between these parliamentary officers, whose role is fundamentally to--as they're called--“assist” members of Parliament in doing their job. They extend the reach of an individual member of Parliament. The concern is that it becomes self-limiting, that at some stage we have so many independent parliamentary officers that we're creating a parallel universe between the executive and the members of Parliament. What is intended, properly, to be an assistance becomes a buffer.
I don't know the answer to this. I used to be one, and I highly value the role they can play in assisting members of Parliament and the public in holding the executive to account, but I am concerned about the proliferation. At some point, the public, and perhaps the public administration and the news media and everyone else, will be a little confused about who's responsible for what in these independent roles, which really aren't to be independent; they're supposed to be subordinate to Parliament.
It's this relationship that I'm interested in your reflections on.
First, as the legislation is drafted, I don't equate the parliamentary budget office with a full-fledged parliamentary officer. I see it much more as an internal support and resource--to parliamentarians, to committees, to individual MPs, to senators--than as an alternative accountability structure.
As for the other officers, I've read articles about the proliferation of these positions. It is true, I think, that over the years, in creating parliamentary agents, Parliament's intention was to delegate a certain accountability exercise, but in many cases it has diminished the authority of Parliament.
Take the Access to Information Act. Don't take this as criticism of the act and the value it adds to our political culture, but questions on the order paper and notices of motions for the production of papers had real value, real impact, before the Access to Information Act. A department, when it got a question on the order paper, took it quite seriously. Indirectly, what has happened now is that you're better off, as an MP, using ATI to get a document than using a notice of motion for the production of papers. I don't think it was Parliament's intention to diminish one of its own procedures by delegating this to an agent outside, but that's what has happened, in my view.
That's not to say that the system can't be strengthened and reined in, but along the lines of what you just outlined, that would be my comment.
Thank you, Mr. Chairman.
And thank you, Mr. Marleau. I want to say how often we think of you. Even though you may feel you are distant now, many of us carry around your book, Marleau and Montpetit, like a Bible and use it very well. So you're often in our thoughts, even if you're not here physically.
I want to thank you for this very helpful recommendation. Coming from the province of Manitoba, since I've been here, I have often found it odd how little time we spend on estimates. We dedicate all our time after the fact at the public accounts committee, scrutinizing every nickel that was spent and often criticizing how it was spent, but almost no time at the front end in reviewing the estimates.
Where I come from, it is not unusual to bring the minister in to a committee in the legislature in Manitoba and stay there all night. They will spend 50 to 60 hours of committee time on the Minister of Health's budget, going line by line and grilling that minister on everything he proposes to spend in the coming year. That has two positive effects: first of all, that's the correct time to give it that level of scrutiny, and second, the minister or his deputy or his technical people have to become an absolute authority on everything that's being spent.
I think this is an excellent idea. It's a graphic illustration of the benefit of giving all this time to hearing so many witnesses for this important bill. This is the type of thing we are getting here. I certainly hope we can agree to expand the role of the budget officer. Perhaps we can ask you for even further detail as to how you see that fleshing out. I won't dwell on that.
I do have a question, though. There are enemies of Bill C-2. There are people who don't want to see it go ahead. I won't say if some are political. Some, I think, are entrenched in the bureaucracy. But first of all, what is your view on omnibus bills? Do you think some of these bills get so big and so massive that they collapse under their own weight? Do you see it a viable option sometimes to hive off some of the less controversial components and deal with them separately?
Could you speak to that briefly?
Yes thanks, Mr.Chair. I'm splitting my time with Mr. Petit.
I thank you, Mr. Marleau, for being here.
I think today, with the report of the Auditor General, illustrates how effective independent officers can be, the value they bring to our work as parliamentarians, and some of the things that we as parliamentarians are unable to do. When we have these independent officers, they're certainly tasked with working in the best interests of Parliament and, in doing so, working in the best interests of all Canadians to get a job done. That's why I'm taking a great deal of interest in what you've said on maybe some value-added for the parliamentary budget officer.
I want to clarify one thing. There might be some confusion, but my understanding under Bill C-2 is that the parliamentary budget officer is indeed an officer of the Library of Parliament and is, therefore, probably physically and organizationally part of the Library of Parliament. So that may address some of my colleagues' concerns as to duplication or so on.
I know for a new member of Parliament there are so many things we have to do. The estimates are very daunting for a new member--and it's been mentioned here--when you see these numbers coming out. So I see the value to what you're saying on perhaps expanding the role of the parliamentary budget officer to look at estimates.
Can you comment a bit further on how that added role could be of assistance to us in our day-to-day work when it comes to analyzing what the government spends on behalf of Canadian taxpayers?
I'd be glad to do that, Mr. Moore.
Beyond just expanding the mandate of the parliamentary budget officer, you would have to do some tinkering with the Standing Orders in terms of powers of committees, particularly the government operations committee, and I'll get back to that in a moment.
The parliamentary budget officer would have the same authority and powers on estimates that the bill is providing for on the budget; that is, access to Treasury Board documents and access in a timely fashion to departmental planning papers, in order come up with an analysis of the proposed estimates and provide that advice to a committee or to members of Parliament taking interest in a particular program or issue.
So it's a question of having the same kind of access, if I can say that. Right now, the poor researchers at the Library of Parliament, with whom I sympathize, can only deal with public information in advising you on what's going on. Whatever they can pull off the website is what they can use to advise you on departmental programs. They would have more privileged access under this legislation, as it is proposed, for the budget side of the operation.
If I may bootleg in one small point about the government operations committee, it has an estimates mandate and it has yet to fully exercise that mandate. It's had it now for seven or eight years. I think we need to return to a time way past--the seventies and early eighties--where there existed a committee called the miscellaneous estimates committee. The supplementary estimates that come out in the fall went as a package to this committee. They weren't split among 23 committees. The President of Treasury Board and the Secretary of Treasury Board came before that committee to explain the supplementary context of the government and why all this extra money was required, and it fit in a more global analysis or review of the estimates.
Right now they're hived off here and there, with vote 1 over here and vote 5 over there. That's what happened on the gun control thing. The justice committee was busy that year on the same-sex legislation. It was travelling, under great pressure to get through the bill, and it didn't look at supplementary estimates.
If the supplementary estimates go as a package to government operations and are analyzed by an office in support of Parliament, I think you've got a better accountability dialogue with the government, with the executive. I like to call it a kind of sustained accountability dialogue, and not so much an adversarial one. The more you ask for information, the more information you get, and the better you can judge the efficiency of programs and their delivery.
Thank you, Mr. Chairman.
Thank you for being here, Mr. Marleau.
For some time, we have known that the various people who would be appointed, such as the Auditor General, would prefer to be appointed using what we call an open ballot instead of a secret ballot.
You are aware that a secret ballot has the advantage of providing freedom to the people who are voting. For example, in unions, voting by a show of hands has been replaced by a secret ballot in order to enable union members to vote more freely for a proposed agreement.
In this case, would a secret ballot not give all members more freedom?
Secondly, I would also like to understand the link you make with removal. It is quite uncommon—at least I have not seen it very often—for removal to be by way of a secret ballot. The removal procedure is generally as follows. For example, a problem is raised with the members of a committee, and the board of directors removes the person involved after having heard from him, in accordance with certain procedures.
I am trying to understand how you would be able to remove someone by way of a secret ballot. I know that it can be done, but that is quite a rare procedure. I have rarely seen that kind of a procedure in the organizations I have belonged to. Perhaps you have examples to give us. I would like to hear you on that.
Regarding your last question, I agree with you about removal by way of a secret ballot. It is almost equally as uncommon to see nominations by secret ballot. I would say that there are two aspects. First of all, it is true that a secret ballot gives some freedom of action to the person voting. Others will say that people must have the courage to vote openly according to their convictions.
I am not speaking in favour or against either option, I am simply explaining both. In the case of a removal, I think it is above all important to know who, what faction, wants to see a person removed. It is perhaps more difficult to be removed by way of a secret ballot, without knowing where it has come from, than it is to be appointed by way of a secret ballot, assuming that it came from everyone. So I would say that is a lack of consistency that I identified in the bill.
Our political system, generally speaking, advocates transparency in votes by members. You are elected individually as members of Parliament, and citizens expect to know what your positions are and to see how you carry out the responsibilities they have given you.
So there are pros and cons to a secret ballot. In some cases, such as the election of the Speaker of the House of Commons, I think it is a success. The Speaker of the House of Commons would be removed, if necessary, by way of an open ballot.
Mr. Chairman, thank you for the invitation to appear before your committee on Bill C-2.
I'm accompanied by Mr. Gaston Arseneault, General Counsel for the Public Service Commission.
The Commission is a unique organization. Independent of ministerial direction, we report to Parliament. We safeguard the integrity of the public service staffing system and the political neutrality of the public service through monitoring, and conducting audits and investigations. We also provide staffing and assessment services to government departments.
More detail is available in the information kit you have before you.
The new Public Service Employment Act which came into force on December 31st reconfirms the PSC's independence, stating in its preamble that merit and non-partisanship are values to be independently safeguarded. It also further enhances the PSC's unique status by emphasizing the PSC's audit authorities on behalf of Parliament; bestowing upon the PSC the power to make special reports to Parliament; and providing for the President's appointment by the Governor in Council only after approval by resolutions of both the Senate and the House of Commons.
Our work, which is to report on staffing and non-partisanship to the government, supports the proposals in Bill C-2 to enhance accountability in government.
Today I would like to propose, for your consideration, amendments to Bill C-2 which would make improvements in two areas: first, how we do our work and relate to Parliament, and the scope of our responsibilities.
First, with respect to ministerial exempt staff, clause 103 removes the priority entitlement for ministerial exempt staff to enter into the public service, but clause 101 provides access to more ministerial staff to internal staffing processes for one year. We support this change, since the appointments would be made on merit.
Next, regarding the appointment of the president, Bill C-2 proposes to standardize the method of appointment for positions supporting Parliament. To make the president's appointment process the same as that of other positions supporting Parliament, I recommend that Bill C-2 amend the PSEA to add the elements of consultation and secret ballot.
Regarding the protection for auditors and investigators, individuals working for organizations that carry out audits and investigations that are reported to Parliament are already designated or will be designated through clauses 2 and 308 as not competent or compellable witnesses, and are immune from criminal and civil proceedings for actions taken in good faith while performing their duties. The PSC also conducts investigations and audits, the results of which we table in Parliament. In fact, we will be tabling two reports on Thursday. Such reports involve personal and often contentious issues that could give rise to subsequent legal action. In order for us to do our work and protect our auditors and investigators, I recommend that Bill C-2 amend the PSEA to provide the same protection for PSC auditors and investigators.
On a similar issue, the heads of a number of organizations supporting Parliament and conducting investigations and audits will be required under clause 146 to refuse to disclose under the Access to Information Act records obtained or created in the course of investigations, examinations or audits. While final audit and investigation reports should be publicly accessible, records obtained or created by auditors and investigators in the course of carrying out their work may contain misleading and unsubstantiated comments and observations. The PSC and those being audited or investigated need to be assured that only substantiated findings appropriately explained are released. As the Auditor General said when she appeared before you, auditors need protection of their working papers to do their work. Since the PSC is mandated by the PSEA to conduct investigations and audits, I recommend that clause 146 of Bill C-2 be amended to provide the same protection to our audit and investigation records.
I have also noticed that Bill C-2 does not contain a mechanism for the Commissioner of Lobbying to transmit his or her special reports to Parliament. The PSC has a similar problem. Amendments to the PSEA that added a clause enabling the PSC to make special reports to Parliament were assumed at the time to mean that we could transmit these reports directly to the Speaker of both houses. However, in the absence of specific wording in the act, we were advised that this was not possible. Modelling the tabling mechanism on that in place for the Information Commissioner, I am recommending that Bill C-2 amend the PSEA to provide the PSC with the ability to transmit its special reports directly to the Speakers of both houses for tabling. Your committee may also want to provide the Commissioner of Lobbying with the same provision in clause 78.
The next proposed amendment relates to clause 106 regarding some GIC appointments, for example, deputy ministers. Currently, most appointments to these positions are provided for by specific legislation. A small number are not; for example, when there is a restructuring of government and legislation is not yet in place. The mechanism traditionally used when the GIC wishes to make an appointment for which no legislative provision exists has been to exempt the person from the application of the PSEA, with the exception of the provisions for political activities. The approval of both the Governor in Council, and the PSC is required for this mechanism. The use of this exclusion order is reported in the PSC's annual report. With the new merit-based regime in force under the recently enacted PSEA, I am uncomfortable with the PSC excluding these appointments from merit, and I am supportive of an alternative proposal.
Clause 106 formalizes the current process; however, it includes a greater range of positions than is the traditional practice. The exclusion of appointments to these additional positions from the application of the PSEA could pose a threat to a meritorious public service. I recommend this clause be amended, first, to narrow the positions in question by removing associate deputy head and positions of equivalent rank, and special adviser to a deputy in English to make it the same as in the French; and second, to ensure part 7 of the PSEA on political activities applies, thus protecting the political impartiality of these appointments.
Finally, clause 119 establishes the position of parliamentary budget officer within the Library of Parliament. Currently, staff of the library, the Senate, and the House of Commons are able to apply to internal appointment processes in the public service only due to an instrument still in place under the old PSEA. With the new PSEA in place, we have been advised that we cannot do this without a legislative change. After consultations with the heads of these organizations, I am proposing Bill C-2 amend the PSEA to allow these employees, who have much to offer the public service, to participate in these meritorious processes.
Mr. Chairman, the PSC is an important part of the accountability framework that underlies our system of responsible government. Our work, which is to report to the government on staffing and non-partisanship, is consistent with the spirit of this bill. Our recommendations seek to improve it by enhancing our ability to conduct audits and investigations, and strengthening our ties to Parliament.
I would like to table with the committee these proposed amendments along with those related to a small number of Governor in Council appointments and the mobility of parliamentary staff.
Thank you for your attention. I would be pleased to answer any questions you may have.
Thank you, Ms. Barrados. I have three very simple questions to ask you.
First, you are asking us to adopt an amendment so that clause 146 of the bill will state that the President of the Public Service Commission of Canada is on a par with the Auditor General of Canada, the Official Languages Commissioner, etc. You are asking us to add the President of the Public Service Commission to the list. I want to know your reasons so I will ask you why.
Second, you mentioned from the outset that you try to ensure that the public service is impartial. As far as I know, in any public service, many public servants are members of political parties and unions. But, I don't think that they shed their partisanship when they go to work in the morning. They live with it; it's part of their reality. So, I am trying to understand how you could say that the system must be impartial. I know that you are talking only about work, since many people, during the course of the day, are both members of a union and a political party, work in the evening or in the day as the case may be, and are perhaps more partisan than political supporters themselves.
How do you reconcile your job with what is being proposed in Bill C-2? How could this bill resolve this problem? Given what you've seen in the bill, can you prove that it is strong enough to do away with the partisanship that we carry with us every morning when we go to work because we belong to a union or a political party, etc., and we work eight hours for the government, hours that don't really belong to us as such?
Thank you for the question.
The amendment sought to the appointment process is not a request to put our position on the same level as others. Currently, under the PSEA, the Public Service Employment Act, and the legislation which regulates my organization, you need the approval of both Houses to appoint a president. There are two parts to the process outlined in Bill C-2, the PSEA and the proposals: consultations, which were conducted in my case, and the voting procedure.
I would suggest that the process be the same. That wouldn't involve putting the president of the PSC at the same level as others, but it would ensure that the appointment process is the same.
Second, as far as partisanship is concerned, the PSEA deals with that. It's one of our responsibilities. You're right to say that it isn't absolute. Obviously, people may have partisan ideas, but they have to conduct their work in a non-partisan fashion. Under the PSEA, it's our job to manage the system.
Perhaps Mr. Arseneault may want to add something about the current system.