Public Accounts Committee on June 11th, 2009

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

All right.

[Brian Goodman]

The other two members, if you're interested, are Gisele Morgan, who is from Montreal and is a former assistant deputy chairperson of the refugee protection division in Montreal; and, jointly appointed by me and the minister, Monsieur Roméo LeBlanc from Dieppe, New Brunswick, a retired professor.

[The Chair, Liberal, Shawn Murphy]

Merci beaucoup, Madame Faille.

Mr. Christopherson, you have seven minutes.

[David Christopherson, NDP, Hamilton Centre, ON]

Thank you, Chair.

Thank you all for your attendance today.

I must say it's rather disappointing to be back in this world again after things were so good on Tuesday. We had an excellent meeting with the passport agency, who had actually listened and acted on recommendations, who were able to show us what they'd done and acknowledged where they'd made mistakes. I mean it was really good, and now we're back to the bad old stuff again.

I'm really disappointed, Mr. Lynch, in your response in particular. I don't think we've ever had a response from a deputy so long and full of such bureaucratese, just filled with stuff that doesn't answer anything. It was very frustrating to read that letter. I have to tell you, I am not impressed at all, particularly—and people know this—when we have audits that go back where things have been found, and then they're not acted on, and then there's another audit and they're not acted on, and another audit. It just makes the blood boil.

There are aspects of this that go back 12 years. Twelve years! If you read your response today, you'd hardly know anything was wrong.

I want to start by dealing with this issue of the mandate. In your letter dated today, where you respond—although it's funny that you never did respond to the Auditor General—you say, and I'm quoting from Mr. Lynch's letter:

Further, commenting on the Immigration and Refugee Board's accumulated backlog and the number of vacancies on the Board, could be interpreted as moving from the mechanics of appointments to the decision to appoint, which is the prerogative of Ministers and the GIC.

Mr. Walsh is here. We have a letter from him. He's our law clerk, our law adviser, top lawyer in the whole organization, and he says, in part:

It seems to me fairly clear that GIC appointments, as a matter of process, fall within the AG's mandate to review from time to time and to report to Parliament, if necessary. The legal fact that the GIC appointment power is done at the exclusive discretion of the Governor in Council does not mean, in my view, that the exercise of this discretion cannot be reviewed, either by the House itself or by the AG on its behalf. It’s all part of the House’s constitutional function of holding the Government to account.

So we've heard your position and we've heard from the parliamentary law clerk. What do you say in response to the law clerk's position?

[Kevin Lynch]

Well, let me say two things.

One is that you've picked out a small portion of my letter back. As my remarks said, both we and the Auditor General, when she set out the scope for the mandate, indicated that the scope actually should be related to the process of the appointments, and we agree with that. Indeed, our interaction with the Office of the Auditor General was whether the audit, and elements of it, stayed within the four corners of that or whether there were some elements that may have gone outside that. We have raised, interactively with the office, observations with respect to insufficient appointments being made during the audit period, and the vacancy rates could be interpreted as dealing with the exercise of ministerial discretion that should be outside the scope of the audit, as we both said.

I also indicated in my letter, which you quoted from, that in any piece of legislation, the provisions set out in the Auditor General Act are subject to interpretation, and we may have differences of view on this. But I think it's really important that when it comes to mandate issues, which are so important, discussions take place and both the Auditor General and PCO engage in a constructive and transparent dialogue and make views known. And that's what we've done with the Auditor General and the committee.

[David Christopherson, NDP, Hamilton Centre, ON]

Okay. We've spent all that time and you didn't get me anywhere.

Mr. Walsh, did you hear anything there that causes you to change or amend the advice that you're getting, that what the AG was involved in is perfectly within her mandate?

[Rob Walsh, Law Clerk and Parliamentary Counsel, House of Commons]

No. But to be fair to the witness, this is an area in which reasonable persons may disagree. Where does the discretion or the power or the mandate of the Auditor General end and the discretion exercised by the government begin? Is there a fine line between the two? Arguably, there isn't.

My concern with the view expressed by the Clerk of the Privy Council, for whom of course I, like everyone else in this room, have enormous respect for his knowledge of government and the machinery of government.... My concern with the view expressed in this letter, particularly in the fourth paragraph at the end of the first page, is that if vacancies or the incidence of vacancies is beyond the mandate of the Auditor General to consider, one could have a situation where the vacancy rate is very high for whatever reason, either the political decision of the government of the day or just being unable to get on with the process competently. This argument would suggest that it's no interest of the Auditor General on behalf of the House to express concern to the House, or it's no place of the House, inferentially, to take an interest in such a matter.

It seems to me that sort of argument--that vacancies, per se, are beyond the process--invites the conclusion that a situation I described would be beyond the purview of the Auditor General or the House to comment upon. And it seems to me, in the sense that the Auditor General is an agent of the House and the House acts in the public interest, that a high vacancy rate might, as a matter of public policy, be something that would concern the House. It might be something under subsection 7(2) of the act on which the Auditor General wanted to comment.

[David Christopherson, NDP, Hamilton Centre, ON]

Okay, I'm a layperson caught between two lawyers.

All I want to know is whether or not the Auditor General--

[Kevin Lynch]

Mr. Chairman, just to clarify, that's between a lawyer and an economist, actually.

[David Christopherson, NDP, Hamilton Centre, ON]

Oh, God, that helps? Where is the used car salesman?

[Voices]

Oh, oh!

[David Christopherson, NDP, Hamilton Centre, ON]

By the way, Chair, this is why I sort of wanted to have two different parts to the meeting. One would have been to deal with this legal issue, because it's going to take a while and I'm going to lose all my time to get to the actual report. Anyway, I raise that concern.

As I understand it, we've still got two recommendations from the Auditor General's report that are outstanding, which you're not responding to. Is that correct, Assistant Auditor General?

[Richard Flageole]

Mr. Chair, those are the responses that have been published in our report.

[David Christopherson, NDP, Hamilton Centre, ON]

I'm going to stay within the regular world, if you will. This is what I know. There were two recommendations from the Auditor General in her report that the Privy Council--I believe it's the Privy Council--won't respond to and they're saying no. At some point we have to come to grips with this as a committee. Is that acceptable or not?

I'm so far hearing it's not acceptable, that there is no reason they can't be responding to this, and that it's within the domain of the Auditor General and within the domain of the House.

I'm going to move along, but I want to say to my colleagues that we have to come to grips with whether or not we're going to allow any entity to just say, “Sorry, we don't want to answer those.” They then provide whatever legal answers they can find to do it. The bottom line is we're not getting a response from the government of the day on two recommendations from the Auditor General. As far as I'm concerned, that's unacceptable.

[The Chair, Liberal, Shawn Murphy]

I believe it's three recommendations, Mr. Christopherson.

Mr. Saxton, seven minutes.

[Andrew Saxton, Conservative, North Vancouver, BC]

Thank you, Mr. Chair.

And thanks to all of you witnesses for coming in today.

My first point is that I think it's rather ironic that Ms. Ratansi talks about an increase in public scrutiny when she knows full well that it was this government that addressed that issue.

Now I have a question for the Assistant Auditor General. In 2006 this Conservative government, through an order in council, granted you access to more documents than you had before. Was this helpful, and do you know why this wasn't done under the previous government?

[Richard Flageole]

Mr. Chair, I can really assure you that throughout this audit we did not have any issues accessing information. I think we had the mandate, the difference of view on the mandate, which came out later.

As far as the second part of the question, honestly I couldn't answer that question.

[Andrew Saxton, Conservative, North Vancouver, BC]

But you found it helpful that you had access to more documents than you had before?

[Richard Flageole]

Yes, as part of this audit we didn't have any issue at all with access to information. We got everything we wanted to get.

[Andrew Saxton, Conservative, North Vancouver, BC]

Thank you.

Mr. Lynch, my next question is for you. In your opening statement you said,

...the Government has introduced a number of new processes and practices since 2006 to make the appointment system more rigorous. The management of vacancies has been improved and both the transparency of the process and the access to appointments have been increased.

Can you tell us about the improvements that have been made in the appointments system in recent years?

[Kevin Lynch]

Yes. Thank you very much.

There were at least six, which I enumerated at the start. The PCO has developed and distributed a document entitled: “A Guide to Managing the Governor in Council Appointments Process”. That sets out the expected standards for rigour, for communication, for the guidance in terms of appointees and communication issues.

We've also, again responding to the very valid points made by the Auditor General, worked on vacancy management. PCO now provides ministers and their departments with a monthly report outlining all appointments that are set to expire within the next 12 months. So in a sense, there is full information coming up.

Thirdly, related again to observations by the Auditor General, we have tried to address the management of upcoming expiries in our guidance to ministers and to their departments. For full-time appointees, ministers should now determine whether a reappointment will be recommended at least six months before the end of the appointee's term. For part-time appointees, this should now be at least three months before a term expires. Again, we're responding to concerns of the Auditor General over a number of years.

The fourth change relates to increasing the transparency and access to the GIC appointments process, something the Auditor General has raised in previous audits going back over a decade. In April 2006, the government launched the Governor in Council appointments website, which actually makes it fully transparent. That is a substantial change. It allows interested candidates across the country to have access to selection processes for positions in over 200 government organizations.

Fifthly, we've broadened the scope of recruitment efforts for these positions. We have a rigorous selection process. We have the selection and publication of appropriate selection criteria, public advertisements, and assessment of candidates through interviews and reference checks. That's a substantial change from previous practice, and it's applied uniformly, again something the Auditor General had asked us to do.

The sixth change--and again, the Auditor General in this report I think notes the improvement here as well--is that we have responded to her previous concerns about the need for enhanced training and orientation for both stakeholders and appointees. We now have one-on-one orientation sessions for new chairs, for heads of agencies, for CEOs of crown corporations, and regular workshops on how to implement the appointments process.

As I said, there are over 1,000 GIC appointments per year. It's over 200 organizations and agencies across the government. That's a very diverse and distributed system. I think these sorts of changes actually make a substantial difference and again respond very much to the valid and helpful observations of the Office of the Auditor General over a number of years.

[Andrew Saxton, Conservative, North Vancouver, BC]

Thank you very much.

Mr. Chair, how much time do I have?

[The Chair, Liberal, Shawn Murphy]

Two minutes.

[Andrew Saxton, Conservative, North Vancouver, BC]

I think you've answered my questions.

Thank you very much.

[The Chair, Liberal, Shawn Murphy]

I just have a couple of questions to you, Mr. Lynch.

It seems to me, and I have considered this issue carefully, that both your office and the Office of the Auditor General start at the same premise, that the actual appointment is beyond the scope or mandate of the Office of the Auditor General. But when you talk about the specific recommendations, it seems to me when I read the recommendations, they're dealing with the process. One is “clarify its expectation regarding the level of Crown corporation board involvement”. That involves mainly the immigration board. There is a little bit of an issue there.

The second one is the insurance of “timely appointments".

Again, Mr. Lynch, if we have a situation like the immigration board, which has what I consider to be a high vacancy rate, there is a 17-month delay, it brings the whole process...and some could argue that the system is almost broke. But again, we're not going to get into the actual appointments.

The third one is the whole communication issue, and the Auditor General interviewed all these appointments and none of them were given sufficient notice. We had situations where people were showing up to meetings that had been discontinued. That is a process issue, and it is an issue that is of concern to this House. It's not an issue about which you can say there is no mandate for the Auditor General or that it is of no concern to Parliament. I think it is. These are very much process issues. They're not getting involved.... They're not dealing with the actual appointment of the individual; they're dealing with a process issue. The Auditor General has made certain recommendations, which quite frankly I agree with. I would have thought that the Office of the Privy Council could have given us some response or given the Office of the Auditor General some response to that, especially the communications issue.

Let's be frank here. If you were not reappointed and you get all dressed up, you fly to Toronto, you go to a board meeting and the chair comes over and taps you on the shoulder and says, your appointment wasn't renewed a month ago, don't you think that as the Clerk of the Privy Council that brings the whole system into disrepute? It shouldn't be tolerated by either your office, your political masters, or by Parliament. Am I wrong on that?