Bill C-2 (39th Parliament, 1st Session) Committee on May 16th, 2006

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Perhaps I misunderstood.

[Robert Marleau]

I'm sure you understood correctly.

I am proposing to expand the mandate of the Parliamentary Budget Officer to include the systematic long-term analysis of government estimates, which are tabled before March 1st of every year. I am talking about all the estimates for a given year, including supplementary estimates which are tabled in the fall. The latter are the result of various bills that have already passed, legislation supporting new programs and initiatives that the government may have announced in the previous budget.

Therefore, my suggestion is not with regard to bills as such, but rather the analysis of the budgetary estimates themselves.

[The Chair, Conservative, David Tilson]

I'm sorry, we're out of time. There goes the bell--perfect timing.

Mr. Marleau, thank you very much, sir.

[Robert Marleau]

Thank you, Mr. Chairman, and I wish the committee all the best in the exercises you've begun.

[The Chair, Conservative, David Tilson]

We appreciate your comments.

The documentation is being distributed to you for the next witness. We have two guests for the final session: from the Public Service Commission of Canada, Maria Barrados, the president; and the general counsel, Gaston Arseneault.

Good afternoon to both of you.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Mr. Chair, it being 5 p.m. and not 4:50 p.m., will we have the decency of giving Ms. Barrados at least 40 minutes, or will we be so impolite as to reduce her time by 10 minutes?

[The Chair, Conservative, David Tilson]

I'm in the hands of the committee, sir--

[Benoît Sauvageau, Bloc, Repentigny, QC]

I am suggesting that she be given at least 40 minutes, unless the Conservatives disagree.

[The Chair, Conservative, David Tilson]

--if you're asking for unanimous consent that 40 minutes be given to these witnesses.

[Benoît Sauvageau, Bloc, Repentigny, QC]

I ask for unanimous consent in order to extend this courtesy.

[The Chair, Conservative, David Tilson]

I also hope there will be politeness in this committee.

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

I don't think that was a necessary shot at all. I'm starting to take offence to you prefacing every comment with an insult to this committee. So it's you who is showing a lack of respect, with your persistence in being so insulting.

[The Chair, Conservative, David Tilson]

You have to remember I'm the chairman up here, and you can address your insults here.

Mr. Sauvageau and Mr. Martin, please direct your comments to the chair.

There is unanimous consent, so we will proceed for 40 minutes with these witnesses.

I'm sorry for the interruption. You may proceed with a few introductory comments.

[Maria Barrados, President, Public Service Commission of Canada]

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.

[The Chair, Conservative, David Tilson]

Thank you for your presentation, Ms. Barrados. The committee will have some questions for you.

Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair.

I have two questions. The first concerns ministers' exempt staff, which you mention on page 2 of your presentation.

I know that clause 103 vacates the priority of ministers' exempt staff to be hired within the public service. Does this mean that these people will no longer benefit from favouritism? My question is simple, because I am a new MP. Is this common practice? Is this a moral problem of partisanship?

[Maria Barrados]

Our goal is to have an impartial public service. We conducted a study in order to identify how many individuals had used this priority of appointment. The number is not very high: approximately 25 to 40 individuals per year at most.

The ministers' offices provided this information. We believe that these individuals have a good understanding of what the ministers do. People were hired when there was a change in government, for example 12 years ago, and, more recently, when the leadership of the Liberal Party changed. We are not talking about a large number of people. Rather, it is a question of perception.

This issue falls under the purview of the commission, which ensures that everyone hired in the public service has the necessary qualifications.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I have a question or comment to make about the protection of working documents. I agree in this regard. Not only have we heard comments from the Auditor General about this, but, today, the Society of Management Accountants of Canada sent us a letter in this regard.

I understand that accountants' working documents must be protected. However, the legislation and your presentation both mention that there would not only be audits, but also investigations.

We also have investigations--more than just audits, more than just searches prepared by auditors or accountants--but it reads as if these would be investigations done by non-auditors and non-accountants. I mean, Mr. Vieweg is speaking for the CMA, and you're speaking for a wider group, I think, who are not all accountants--or auditors, for that matter.

Keeping these papers private for a time protects your group, in fact the government, from preliminary opinions that need to be fleshed out. I gather it would apply then to non-auditor or non-accountant employees. Do you agree with that?

[Maria Barrados]

Yes. The wording we're proposing is the same wording as is in the bill. When the Auditor General was here, she clearly was speaking about audits. But the investigators have the same issue. The application of this provision to the Privacy Commissioner, the Information Commissioner, the Commissioner of Official Languages.... They are doing investigations, so they tend to be done by people who follow due process. They have the same obligations, in terms of gathering information, to go through a process of verifying the facts.

They tend to be different disciplines. Those who are doing my audits are trained as auditors. Those who are doing my investigations are trained as investigators and tend to be lawyers.

[The Chair, Conservative, David Tilson]

Monsieur Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Ms. Barrados, Mr. Arseneault, thank you and welcome. I want to thank you in particular for the proposed amendments that you have provided to us. This is very important. Some people are saying, as reported in the papers, that hearing witnesses is not very useful. In fact, some members, be they New Democrats or Conservatives, are saying that witnesses will not help us improve Bill C-2. However, your presence, and the list of amendments that you are proposing, contradicts that statement.

[The Chair, Conservative, David Tilson]

Mr. Sauvageau, earlier you asked that the members of the committee be courteous and polite. We are all ladies and gentlemen, and I would rather that you not provoke other members of this committee.

[Benoît Sauvageau, Bloc, Repentigny, QC]

I respect your decision Mr. Chairman. I didn't think it was impolite to quote statements made by members of this committee, statements that appeared in The Hill Times newspaper. I will be careful. In any case, I have already said it.

Ms. Barrados, you were directly involved in consideration of Bill C-11 in the previous session. At one point, you were even supposed to become the famous commissioner, under a provision of the former Bill C-11. This has been amended in order to create an independent commissioner.

Since you have been with us throughout the entire process and the consideration of Bill C-11, do you believe this bill can be immediately passed, in order to ensure a minimum safety net, or would that be too complicated?

[Maria Barrados]

That's a difficult question for me. It's true that I was involved in preparing the first bill, but now, I am not involved in any way. I think that it is a matter of opinion. Parliamentarians will have to make this decision. In my opinion, there is a real problem because there is already a proposal. There is, however, another motion before us and there will obviously be questions regarding the transition and the implementation. We had one model and we will have another. It depends on the risks that people are willing to take.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Mr. Shapiro, the first witness we heard today proposed an amendment that corresponds to a provision in Bill C-11. In fact, when we considered Bill C-11, the committee members were honest enough to say that the bill wasn't perfect and that it needed to be reviewed every five years. I see that this amendment is not something that is in your list of amendments. However, I'd like to hear your comments in this regard.

In your opinion, could we add an amendment to your amendments, to ensure that Bill C-2 would be reviewed every five years as we had planned to do with Bill C-11?