Information & Ethics Committee on Nov. 17th, 2009

[Joe Wild]

The Commissioner of Lobbying clearly has the authority to investigate if someone is engaging in lobbying activities who is not registered when they should be registered. The law does not create penalties for public office holders who meet with people who should be registered but haven't. Again, the law is designed to put the burden on those who are engaging in lobbying activity to register, and there is a robust investigatory set of powers around the commissioner to investigate situations where that does not occur.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Is that a problem for you? Does it make you uncomfortable?

[Joe Wild]

On the laws and expression of the will of Parliament, we're working through the implementation of that law, and I'm certainly not aware of significant issues or problems in terms of the administration of the Lobbying Act.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

With respect to appointments, namely to the IRB, can the president of a quasi-judicial organization carry out investigations or intervene if he believes there's a conflict of interest, or is that your responsibility?

[Joe Wild]

The Conflict of Interest and Ethics Commissioner has the responsibility to investigate complaints—either self-initiated or brought forward by members of Parliament or senators, either in their own right or on behalf of a member of the public—with respect to whether a public office holder has gotten himself into a conflict of interest. The role of the commissioner is to investigate those complaints and provide a report. Ultimately, the Prime Minister would determine whether any consequence or recourse is necessary.

[The Chair, Liberal, Paul Szabo]

Mr. Siksay.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Thank you, Chair, and my thanks to Mr. Wild and Ms. Boyd for being with us this morning.

Does the need for this Accountable Government document indicate some belief that there's a failing in the Conflict of Interest Act? Are there deficiencies in the act that need to be squared with another document?

[Joe Wild]

No, I don't think so. Accountable Government has had various titles over the years, but it's a document that was first produced in 1974 by Prime Minister Trudeau. It gets updated every time there is a change in prime ministers, and occasionally in between, when certain things change in the landscape.

For example, the 2008 guide contains annexes on ethical conduct and political activities that were introduced in the 2007 version of the guide. This was introduced as a result of the Federal Accountability Act, which was based partly on the Conflict of Interest and Post-Employment Code for Public Office Holders. It took part of that code and legislated it. It left the ethical guidelines part unlegislated. At the time of the Federal Accountability Act, the government had announced in its action plan that those ethical guidelines would find their way into accountable government, which is in fact what happened once the Conflict of Interest Act came into force.

So no, I don't think you can trace the existence of Accountable Government to any view that there's an insufficiency in the Conflict of Interest Act. It was all part of a regime designed to legislate certain things and leave others to judgment.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Is there a problem with an accountability document that begins with the principle of cabinet solidarity? It's prominently placed. Clearly, it's a big deal when it comes to forming a cabinet and a government. Does that cause ethical problems stemming from the overriding importance of cabinet solidarity?

[Joe Wild]

No, I don't think so. In a Westminster system, the collective responsibility of ministers to cabinet and the consensus decision-making process are absolutely fundamental. One could argue that it's the defining characteristic of a Westminster system. It's what differentiates that system from a republican government in which you have various levels of government that all have power and collide, so as to end up either in deadlock or in some compromise.

The beauty of the cabinet system is that by bringing together a collectivity of ministers from across the country and driving decision-making on a consensus basis, public policy is developed in a way that attempts to meet the expectations of Canadians. Ultimately, of course, it's a matter of political judgment.

I think the notion of individual ministerial responsibility to Parliament for the conduct of his or her department is perfectly compatible with the notion of collective responsibility. The idea behind collective responsibility is that once the government has made a policy decision, all stand behind that decision. If a minister feels he cannot in good conscience stand behind that policy decision, then his option is to resign from cabinet.

To my mind, there's nothing incompatible about, on the one hand, having a government speak with one voice and, on the other hand, having individual ministers responsible for the powers, duties, and functions that they're discharging under their statutory mandates.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

I understand that annexes G and H are requirements, that compliance with those is a requirement or condition of appointment of someone to a ministerial position. How exactly is that certified, or how is that certification done? To whom is the certification made?

[Eileen Boyd, Assistant Secretary to the Cabinet, Senior Personnel, Privy Council Office]

I can speak about the public office holders who are Governor in Council appointees.

With respect to Governor in Council appointees, it is a term and condition of employment. Before someone is appointed, the nominee must sign a certification document stating that they will comply with both the ethical and the political guidelines.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Excuse me, Ms. Boyd. Forgive my lack of knowledge about the proper terminology, but does that include ministers and ministers of state?

[Eileen Boyd]

No. By Governor in Council appointees, we're referring to deputy ministers—

[Bill Siksay, NDP, Burnaby—Douglas, BC]

I'm asking specifically about ministers and ministers of state. What is the certification process for them?

[Joe Wild]

For ministers, I'm not aware of a specific certification that they sign. Again, there's a difference between the position of ministers and GIC appointees. Those who are appointed by the Governor in Council have certain rights under contract law. A certification, and so on, is an important process point that you have to take if you want to make it clear that under the conditions of the contract of their appointment there is an obligation to follow these ethical standards and guidelines.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Again, my question is about ministers and ministers of state.

[Joe Wild]

I know and I'm getting there. I'm sorry for taking a while to get there. It's just that the distinction is important because there's a necessity to do it from a process perspective for GIC appointees that does not exist for ministers, because ministers have no position of contract. The Supreme Court of Canada has confirmed this. Ministers are basically there at the complete and utter whim of the Prime Minister, so there is no expectation of procedural fairness, of reasonableness--

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Do ministers just promise the Prime Minister that they're going to uphold this, and it's not part of their oath of office? How do ministers make their compliance, or their intention to comply, clear about these annexes?

[Joe Wild]

It is part of their oath of office. As they're sworn in as a privy councillor, part of the oath speaks to upholding the highest values of public integrity.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

And this would include the definitions that are included here.

It's curious to me that annex H is included in a guide for ministers and ministers of state, because what annex H seems to do is exempt them from the terms of the guidelines, in a sense. It talks mainly about other public office holders, not about ministers and ministers of state.

Why is annex H included in these guidelines, given that it just seems to exempt them and that's the operative part of that annex for ministers and ministers of state?

[Joe Wild]

I think there are a couple of things about accountable government. It does play to a multitude of audiences in the sense that not only is it important for ministers and ministers of state to understand how the system of government basically works, it's also important for deputy ministers and other senior appointees to understand how that system works. While the guide says “A Guide for Ministers and Ministers of State”, it applies equally to other public office holders.

Annex H is doing two things. It's making clear for public office holder appointees through the Governor in Council what the rules are in terms of their capacity to be involved in political activity. It also makes clear—and this part would apply to ministers, and so on—the prohibitions around the use of government property for partisan political purposes.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Is there a separate guide for other public office holders, other than ministers and ministers of state, that would parallel this document?

[Joe Wild]

There is a document called Guidance for Deputy Ministers, as well as a guide for heads of agencies. Those lay out some of the principles of the Westminster system that speak to them. In particular around political activities, there's legislation that governs public servants. In terms of ethics, there is also the Values and Ethics Code for the Public Service. Again, that would apply to public servants.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Could you provide those parallel documents to the committee, the ones that pertain to deputy ministers?