Evidence of meeting #14 for Bill C-2 (39th Parliament, 1st Session) in the 39th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was information.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
In other words, there are some exemptions or some limits on access to information, and this is one of them.
CBC Investigative Unit, Canadian Broadcasting Corporation
Well, yes, sure. If I have to go to court I'll go to court, but I'm not going to give up my sources, and I would think that my colleagues would do the same.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
Good for you, by the way, but that's my opinion.
Mr. Rubin.
As an Individual
Well, I'm witnessing from the Prime Minister down a situation where you're focusing on a particular situation, but there's a broader problem, and that's with the gagging of parliamentary officers. You're saying these officers, like the Information Commissioner, shouldn't have certain review powers and shouldn't disclose certain information. I'm saying that they need the order power. They need the right to inspect more records. They shouldn't be shut out because it's a cabinet confidence. They shouldn't be shut out just because it may be a journalist's source. I think those would be protected. I don't think anybody disagrees with that.
If you look at the way every other section in this act is crafted--and I didn't want to go there, but I will--if you look at the exclusion of the CBC both under the act.... And by the way, it's different under the Privacy Act. Isn't that interesting? It's very broad. It doesn't talk just about journalists' sources. It also talks about this terrible thing that's introduced in this bill, that everything that is not general administration should be excluded.
We've been talking about the coverage of crown corporations, whether or not they should be covered and how broadly, and whether the Prime Minister should be covered or not, but then we've forgotten about the base of what it's all about--records. We've put in an ill-conceived definition of “record” that is about documents and is a much more limited one. We're willing to limit machine-readable records. We're willing to exclude whole categories of records unless they're general administration, including the CBC.
Somebody here has it backwards, and that's wrong. That is reversing 25 years of experience that has accumulated. You don't change the definition of “record”. You don't say in this electronic age that certain machine records aren't released. You don't just say general administration is the easy way out and the rest is excluded. That's wrong.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
I want to make sure, Mr. Rubin, so I'm clear. Are you suggesting the CBC should or should not reveal its sources?
CBC Investigative Unit, Canadian Broadcasting Corporation
If I could take up very quickly this whole idea of a record, right now a record can be anything from this piece of paper here, to the contents in this jug, to a database. I think Ken is right. If you start playing around with that definition, it means we would not have been able to get the adverse drug reaction database; we would not have been able to do stories about the ways in which certain drugs are affecting certain segments of our population. All you have to do is look at major issues like the recall of Vioxx, the problems with SSRIs, with anti-depressants and kids.
We cannot have definitions that restrict what a record is. There are departments that will take that literally and say, “Well, no, the act doesn't make that very clear; therefore, we're going to exclude it.” I know what road we're going to go down.
Conservative
The Chair Conservative David Tilson
I think with that point, the 40 minutes has expired.
Gentlemen, thank you very much for coming. You've been very good.
As an Individual
If certain members would like to constructively discuss amendments, I'm sure I or Mr. McKie or a lot of other people would like to join in. The sooner they're out, the better, because transparency's kind of important now.
Conservative
Conservative
The Chair Conservative David Tilson
Please sit down, members of the committee. We have a quorum. We'll call the final portion of this meeting to order.
Paul Thomas, from the University of Manitoba, welcome.
Prof. Paul Thomas Duff Roblin Professor of Government, University of Manitoba, As an Individual
I'm pleased to be here.
Conservative
The Chair Conservative David Tilson
Sir, you have a few moments to make some comments, and then the committee members will ask you some questions.
Duff Roblin Professor of Government, University of Manitoba, As an Individual
All right. There is a document that I presented.
Duff Roblin Professor of Government, University of Manitoba, As an Individual
I'll try to breeze through this fairly quickly. I know that I stand between you and dinner, and you've been working hard.
I really welcome the opportunity to present my views on what is a very comprehensive, omnibus piece of legislation. Because of its nature, I think it doesn't lend itself to sweeping judgments about being either good or bad, and there'll be lots of disagreement over which are the good parts and which are the bad parts.
I have been working on accountability, privacy, access, deputy ministerial accountability, and so on, for years and years, both as an academic and as a consultant to government. I've tried to offer a range of views on a number of topics that flow out of Bill C-2.
I start with the point that the centre of accountability in a democratic system has to be Parliament. I deliver something of a sermon to parliamentarians, insisting that they need to adopt a more positive, constructive approach to the enforcement of accountability. Principally, they have to look to ministers to answer for things that go wrong within government, and senior public servants should be answerable only indirectly and only under specific, narrowly defined circumstances.
Too much of Parliament, it seems to me, is about playing the “gotcha” game of accountability. Particularly in relation to scrutiny of the public service, the performance of departments, and the performance of programs, as I said, we need to adopt more of a learning approach and less of a blaming approach.
Duff Roblin Professor of Government, University of Manitoba, As an Individual
Slow down. Okay. I'm mindful of the clock, that's all.
Conservative
Duff Roblin Professor of Government, University of Manitoba, As an Individual
Okay.
I've written in the past about officers of Parliament. We're adding to the population of those independent agencies that serve Parliament. Parliament clearly can't oversee government operations unaided, and it needs the support of auxiliary agencies, like officers of Parliament. But we're adding to the group and we need to ensure that for those agencies we find the right balance between independence, not only from the executive, but also from Parliament, and accountability, most appropriately to Parliament and less so to the government of the day.
Finally, in terms of an opening section, accountability is obviously vitally important in a democracy, but it has to be balanced and accommodated with other values, like effective representation, efficiency, effectiveness in programming, trust within government, and legitimacy of government. We have to be careful that we don't overbuild scrutiny mechanisms so that the public service spends all of its time checking on things and too little time doing things.
I'll say a brief word about whistle-blowing, and then I'd be pleased to answer more questions.
I believe in whistle-blowing legislation; however, in all the jurisdictions that I've studied, and I've looked at these regimes around the world now, it's usually been oversold, passed in the aftermath of a scandal, and oversold in terms of its contribution to the integrity in government.
The reason for that is that whistle-blowing deals with highly unusual and exceptional circumstances--i.e., serious wrongdoing, which isn't an everyday occurrence. Secondly, it involves exceptional individuals: individuals in the public service or working on public programs who are courageous enough to risk retaliation and damage to their careers or those who don't let pessimism discourage them from reporting.
I think that in addition to providing whistle-blowing protection, we should spend far more effort in terms of resources and time on promoting so-called “right doing” through ethics and education, helping people to understand what it means to be ethical and to act with integrity within government.
I understand that the idea of financial incentives for whistle-blowers is pretty much off the table now. I've done a long paper on the U.S. False Claims Act. I'm quite happy to share that with people. It will at least cure your insomnia, if nothing else. My conclusion is that it's had perverse results in the United States. It is not a good piece of legislation. It's made instant millionaires out of a select few people. It's a bad idea. It doesn't travel well north of the 49th parallel. I won't get into that.
I'm very supportive of the idea of extending protection against reprisals to people outside government: contracted-out program delivery organizations; for-profit or not-for-profit; or procurement organizations involved with procurement. I think we have to do that in the “joined up” world of government today.
I'm not sure that I see the need for a new public servants disclosure protection tribunal. As you know, under Bill C-11, the Public Service Labour Relations Board was available to perform the function that's being assigned to this new tribunal. I'm enough of an institutional conservative that I don't see the real need to produce a brand-new tribunal.
I think it's appropriate that employees be granted the opportunity to achieve financial assistance to buy legal counsel. I think that will be necessary. Another consequence of the whole range of changes going in under this bill is the creation of a more difficult legal environment where there's going to be a lot of uncertainty, both for front line employees but also for managers who will see more restraints or constraints on their freedom.
On access to information, I was a member of the advisory committee to the 2002 task force. It was rewriting the Access to Information Act. So I'm frustrated about the delay in modernizing an act that is sadly out of date.
On the other hand, I'm not sure that it should be combined with this particular piece of legislation. I know people want to move ahead with that, and Commissioner Reid certainly does, but I think there is time to do this in the fall and there is a committee to do that in the House of Commons.
I'm also a member of the advisory committee to the Privacy Commissioner, and I just want to make the point that I reinforce Commissioner Stoddart's message that the Privacy Act is sadly overdue in terms of its need for modernization.
I do a little section in the paper on the parliamentary budget office. I think there are aspirations to create a kind of congressional budget office here on Parliament Hill in downtown Ottawa. It will never be as powerful as the CBO in the United States. The CBO has a budget of millions--$35 million--and it employs 760 people. We're talking about a little branch-plant operation in the Library of Parliament.
Parliament must find some way to do better work at scrutinizing the estimates and the hundreds of performance reports that are now tabled and go unnoticed, unread, and unused. It's not just the quality of the information. There have not been enough MPs dedicated to the task of that.
On deputy ministerial accountability, I don't see this as a radical change, provided that it's narrowly defined for financial and management matters, that there's the opportunity for the deputy to report the imprudent use of public money when he or she is ordered to do that, and if deputies are seen as answerable before parliamentary committees, that they're not accountable in the full sense of the word, that the committee cannot apply sanctions or rewards to deputy ministers.
On the appointments commission one, I did a paper back in 1985 that looked at the McGrath committee report. They created the opportunity for the appropriate standing committees of the House of Commons to review order in council appointments, with the exception of judicial appointments. Right from the start, it was subject to gamesmanship by both sides. The government had the Liberal appointees sanitize their c.v.s, the opposition brought only the controversial appointees before the committees, and games were played. A lot of people don't want to be put through that. So if there is going to be an appointments commission that's outside of Parliament, we'd better be sure that it has broad representation on it and that whatever findings it produces are made public. If we continue to use the parliamentary mechanism, I'm afraid we will still get into being partisan again.
I think the idea to institute a uniform approach to the appointment of officers and agents of Parliament is overdue, whereas we multiply these types of agencies. There are still issues related to the appropriate balance between independence and accountability for such entities, particularly for new funding mechanisms for parliamentary agencies. You had committee reports on that earlier, and I'm quoted in a couple of those.
Finally, on that point, I would say that the more of these agencies we create, the more there are going to have to be links between them and efforts to coordinate their activities, because we're going to have investigations going on through different parliamentary officers. We're going to have to form a club of some sort and get them to wear uniforms and meet regularly, because they're going to be working on some of the same issues.
I'll finish with this point, that the way this has been promoted and part of the political rhetoric around this is that it's about fighting corruption. I fear that in the aftermath of Gomery and this piece of legislation and the rhetoric surrounding it, the public is going to be even more cynical and discouraged about honesty and integrity in government.
Gomery pointed out that a small number of people were involved in the misdeeds that he investigated, and that the vast majority of people, both elected and appointed, worked within the parameters of the law. They worked effectively. They worked diligently and with integrity.
One of the crucial requirements going into the future will be to build trust in government. We've eroded trust severely, and somehow we have to restore trust. That must be done on numerous levels. Parliament has a role to play there by following a more constructive approach to accountability.
Finally, Mr. Chair, when it comes to scrutinizing the operations of departments and programs, the government is going to have to relax, in terms of party discipline, and allow committees to make inquiries into the operations of departments, programs, crown corporations, and other non-departmental bodies with less government control, and the opposition is going to have to take a more constructive approach by asking how it can help make government work better. A lot of these issues just don't lend themselves to partisan disagreement. There is lots of room for partisanship, but many of these issues of how to make government work better and be more accountable don't lend themselves to the theatrics of party debates.
Thank you.
Conservative
The Chair Conservative David Tilson
Professor Thomas, thank you very much. I don't know how you did it, but you summarized a very thorough paper in ten minutes. Good for you.
We have some questions.
Mr. Tonks, go ahead, please.
Liberal
Alan Tonks Liberal York South—Weston, ON
Thank you, Mr. Chairman, and thank you, Mr. Thomas, for that overview.
Mr. Thomas, there was just one part at the end, in which you talked about the best approach to parliamentary accountability being summed up as “trust but verify”. When I was a kid, we used to look at the American dime that said “In God We Trust”. We used to throw in the ending, “All Others Pay Cash”.
I guess the reason I tried to go through the levity window is to say that we have to establish a culture of trust. There are two initiatives in the proposed legislation that you have pointed to. The first establishes the role of the deputy minister as the financial officer accountable and responsible for expenditures. You, quite rightly, have pointed out that this hasn't changed much, and that the deputy minister is responsible through the minister to Parliament. I guess that would be the right way of saying that.
But when you combine that with the concept of a parliamentary budget office, is there any way that the oversight of committee could be enhanced? Because in my experience, calling the deputy minister before the committee has been rather perfunctory. We have the estimates and we go through them in a day or whatever. It really isn't the accountability over the purse that you referred to in your document. Could you help the committee to understand how the accountability loop could be completed? Could it be, in fact, through committee, through the budget officer, or through deputy ministerial responsibility enhanced in some way? Would that not go a long way to contributing to that sort of culture of trust that you're talking about, so that people could trust that the system was working?
Duff Roblin Professor of Government, University of Manitoba, As an Individual
Just because parliamentary committees cannot assign or award sanctions against deputies doesn't mean that deputies don't take these appearances before committees seriously. I know them. I've interviewed the deputies. Over the years, I did work for the Lambert commission on financial management and for the Treasury Board on the reform of the supply process. I've done so many studies up here on Parliament Hill.
Perhaps this is the most frustrating part of the parliamentary process. You have this huge expanse of government spending sitting in front of you. You try to understand what it's all about, and it's not easily intelligible. You're doing it under the pressure of time and so on. So I think that some additional assistance, particularly in terms of scrutiny of department spending and operations from professional staff attached to the Library of Parliament, is appropriate. There may be another avenue of staffing, which I mention in the paper.
For the revenue side of the budget process, I think that really is open to serious political debate. It's something you want to talk about in very broad political terms—about what you stand for in terms of taxing and spending.
During those sessions when the deputy is present, I think the government has to be more relaxed in terms of saying that we can talk about some of the undiscussable issues to get to the bottom of why things don't turn out.
I've looked at performance reporting. We have hundreds of these reports now that are tabled. I looked at two years of estimates. I found two references to these performance plans and performance reports. It's depressing. All of those documents, both online and in hard copy, are produced presumably in the interest of promoting accountability. If they're not used—and they're not used internally either, to any great extent—that's a huge waste of money.
Other jurisdictions that I've studied—the U.K., Australia, and the leading states in the United States—have scaled back their performance reporting requirements. Why? Because they're not being utilized. It's depressing news, I'm sorry to tell you. So one of the key features of this new approach to accountability would be that we report on everything. But if the reports don't get used....
So yes, I want public servants to come here. Probably they need clearer rules of engagement for these encounters. I think public servants understand what their roles are. I think sometimes MPs cross the line in terms of taking public servants into areas that are more political, where public servants really shouldn't have a public opinion.
That was too long an answer. I apologize.
Conservative
Liberal
Stephen Owen Liberal Vancouver Quadra, BC
Professor, thank you for joining us and for this very comprehensive scan of the legislation.
I have two points. Since you were so rushed in your presentation because it was so comprehensive, I want to bring you back to the idea of this growing parliamentary bureaucracy. I've called it a parallel universe to the executive and Parliament, in some senses because of the loose accountability of those offices—albeit they have great importance in extending the reach of Parliament into monitoring the executive.
I'll go to the specific comment you made. I share your concern that the proliferation can be very confusing, expensive, and complex, with multiple investigations into overlapping issues. But you made the point that you do not approve of these officers of Parliament having order-making power. I assume that's based on the basic principles of ombudsmanship: that you are there for moral suasion, you are there as an extension of parliamentarians, and you are there to investigate independently and report publicly. But you're not there to—