Bill C-2 (39th Parliament, 1st Session) Committee on May 31st, 2006

[Paul Dewar, NDP, Ottawa Centre, ON]

In the time remaining, I'd like to turn to public appointments. It's been talked about, as of late, and even tried.

In a motion passed through the House last May, we as a party put forward an ethical appointment process, and competence-related criteria were put front and centre so people could see that. The government would submit the criteria and have an oversight so that the committee could look at it and say, yes, the criteria make sense, and the government publicly released the criteria. The criteria would be there, if you will, to measure the basis of appointments, taking the appointment process out of the PMO and allowing it to be done by another party.

When we look at the Public Service Commission, you mentioned that it has changed in scope. One of the things I had considered is to not have it solely in their domain. I think it's important enough to have someone do it and to have a separate committee do it, with the commissioner separate from government, but to perhaps have the Public Service Commission provide an audit to make sure it's being done.

I think you mentioned that there are over 3,000 appointments. We certainly don't want to have one committee making those appointments an oversight, but to have an audit function that already seems to exist, in terms of the skill sets of the Public Service Commission, to allow them to do that. I'd like your comments on that.

[Prof. C.E.S. Franks]

Well, I think the real question that comes out of it is this. How do you want to do it? What sort of procedure do you want?

As I say, in Britain, most of these appointments are made by ministers, they're ministerial appointments. In Canada, they're Governor in Council. We have a more centralized structure in Canada, and have had since day one. It's part of the need to recognize the diversity in the regions, languages, and so on, in Canada. Whatever we would do would be different. But for the procedure in Britain, if you're going to go through something like this, a committee is set up. An assessor, appointed by the Office of the Commissioner for Public Appointments, sits on the committee and makes sure it adheres to the rules. The committee then makes a recommendation of three qualified persons, and the minister chooses from those three.

The concern of the Office of the Commissioner for Public Appointments is not that non-partisan people are appointed, but that every appointment meet the criteria of merit, due process, equity, and diversity, and that the end result be one that meets those general standards. The process itself is open and transparent. But I would think that for a lot of these, it would be unreasonable to expect the government or an individual minister to not want to appoint somebody whom he or she likes and wants in the office.

[The Chair, Conservative, David Tilson]

Thank you.

Monsieur Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you.

Mr. Franks, I'd like to ask you a question. You're a professor at Queen's University. I believe you're still a professor now. The question I would like to address with you is the following.

[Prof. C.E.S. Franks]

I'm retired, sir.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

That's fine.

You know the university, and that's important. A number of people have come to see us, particularly students who receive research money from the federal government. They told us that, because major funding comes the federal government, they would like to be subject to the provisions of Bill C-2. It's a matter of accountability. I know that the question of federal research funding is a major problem across Canada. Do you agree with this idea that university student researchers should be subject to the controls provided for by Bill C-2 in its present form?

[Prof. C.E.S. Franks]

I have always had a strong belief in the need for independence of academic research. I'm old-fashioned in that way. Ultimately, academics get tested by their peers, by other people. You can't publish a paper unless it's been looked at by two or three, normally many more people than that, and they write reactions to it and so on. All universities, or all reputable ones, have ethics officers and ensure that their research meets the ethical principles in dealing with human subjects, etc.

I have never been sympathetic to the notion that government itself should look after research or hold individual researchers accountable. There are some fundamental freedoms, which include freedom of speech, freedom of religion, and freedom of politics, but I also include in that, as do most people who look at it, freedom of artistic expression and freedom to do research. One has to be careful, in patrolling the boundaries of those freedoms, that one doesn't intrude too far into government doing things or preventing things that it doesn't approve of, rather than simply ensuring that the basic standards and rules are observed.

The whole process of grant-giving to universities through SSHRC and the National Research Council is a matter of peer review and granting of money. This is a very heavily entrenched process. Its equivalent in government is the process through which the Public Service Commission reviews appointments and promotions and tries to ensure that the principles of merit are observed and that there is no bureaucratic patronage or personal favouritism in appointments and in promotions.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you.

[The Chair, Conservative, David Tilson]

That appears to conclude our time, Professor Franks. Thank you kindly.

[Paul Dewar, NDP, Ottawa Centre, ON]

May I seek a point of clarification with respect to Mr. Petit?

[The Chair, Conservative, David Tilson]

Yes, you can.

[Paul Dewar, NDP, Ottawa Centre, ON]

The concern that was brought forward by the students was not per se with the universities; it was with companies who were involved in the research. They were being, I would say, duct-taped about their concerns about the research and where it was going.

I would be the first one to stand up and say that's not on, when you have researchers who are involved and are being funded with product dollars and they have concerns and they're being told they can't speak out. I think the concern that was raised wasn't about universities per se, but when there's a funding component from the private sector and the research that's being done affects citizens...that's what I think their concern was. That's a point of clarification from my perspective.

[Prof. C.E.S. Franks]

The answer there I think is quite different. I do not believe that universities, inside their borders, should be sponsoring or permitting research that is private in nature and is not going to become part of the public intellectual world. That's a very harsh thing to say, and I know most universities, probably my own, don't follow that. But I think we have a real problem when publicly funded institutions, whose duty is the pursuit of knowledge and truth, are under somebody's thumb in what they can reveal publicly. If it is privately sponsored, I think there should be a guarantee of publication of results and a guarantee of the independence of the researchers. I think we fail on those grounds sometimes, though.

[The Chair, Conservative, David Tilson]

Is everybody happy?

Thank you, sir.

We'll break for a few minutes.

[The Chair, Conservative, David Tilson]

Our last witness of the day, our guest, is Mr. Kroeger. Thank you very much for coming. I think you've been watching, so you know the rule. You can make a few comments, and then members of the four different caucuses may have some questions for you.

[Arthur Kroeger, As an Individual]

Thank you for your invitation, Mr. Chairman. I am glad to have an opportunity to come by and see if I can be of some help to the committee.

I won't have a long opening statement. The way I come at this subject is that this bill is really the third of three attempts to respond to the sponsorship scandal. The first attempt was made by Mr. Alcock as President of the Treasury Board immediately after the Martin government was sworn in, and Mr. Alcock's approach was to focus on officials. His way of trying to ensure the sponsorship scandal couldn't happen again was to apply a lot more controls and regulations and financial oversight.

My own perspective was that there were two problems. One, the implication of this was that sponsorship had come about because of the public service, which I think was not the case. I think it was politically driven, with a very small number of officials involved, and the Auditor General and Justice Gomery both said we don't actually need more regulations. In any event, that was Mr. Alcock's approach: put lots of rules in the public service and it can't happen again.

When Justice Gomery's second report came along, it's interesting that he took the exact opposite view to Mr. Alcock. Mr. Alcock said officials are the problem and Mr. Gomery said no, they are the solution. What he meant was the sponsorship scandal had come about because ministers have had an unfettered ability to do more or less what they want. So the way to make sure that doesn't happen again is to put officials in positions where they can check the power of ministers, place greater constraints on what ministers can do, and in fact the judge said that officials have an independent constitutional personality that is independent from that of the elected government.

So his solution was that ministers and indeed members of Parliament should focus on policy issues, and once those have been settled they should leave officials to get on with the job without what he would have termed “political interference”.

There's a problem with Justice Gomery's recommendation, just as there was with Mr. Alcock's, in the sense that it really would have taken us into a very different system from what we have today. That is to say, it would have taken us in the direction of government by the unelected. It would have broken the chain of accountability that starts at the lowest levels of the public service and goes on up to the minister and from the minister through to Parliament. It would have created officials with an independent accountability to Parliament.

There are two problems with that. One of them is it's very difficult to create a permanent distinction between policy and politics on the one hand and administration and management on the other. They're all mixed up together, at least in Canada, and of course when officials appear they can be questioned very extensively, and they have been for decades, about all aspects of management. Committees quite often will give you a pretty frank opinion of what they think of your management, which is fine. It's well established in Canada that officials are accountable before committees. Where I became uncomfortable was when Justice Gomery said, yes, but they should actually have an accountability independent of their ministers, because that really does take us in a different direction.

Turning to the legislation you have before you, it's the third of the three attempts to respond to the sponsorship scandal, and in my view it's the most successful. This is a bill that has some problems in it I think, but it also has a number of positive features, and in particular--I'm only going to talk about one aspect of what is a very long bill--how the bill treats the relationships between ministers, officials, and Parliament. I think it's quite ingenious.

You just heard from Ned Franks. Ned and I have had our disagreements about the accounting officer principle, and one of the achievements of this bill is that we agree with each other now.

The problem I had with the accounting officer principle is that, again, it breaks that chain of accountability that's supposed to run through the system, where you're accountable to your minister for everything because the minister, by statute, has responsibility for everything.

The bill says that officials are now going to be accounting officers within the system of ministerial accountability. That solves it. That keeps Professor Franks and me equally happy.

The other thing it does, which eliminates a worry I've had.... The British system on which the accounting officer model is set says, well, you know, if a minister really insists on doing something you think is a bad idea, you make the minister give you a written instruction and you give that to the British treasury and the auditor general. If you're a deputy minister or a senior official, you deal with the minister all the time--nights, Sundays, mornings. You go to meetings together and you travel together. If you're going to work well, you have to have a solid working partnership. It doesn't mean you always have to agree, and in fact you shouldn't. But the idea that every time the minister does something you think is a bad idea you ask for a written instruction I think would be quite destructive of the kind of partnership arrangement that is essential.

So what your bill says, which I think is very good, is that if a deputy finds him or herself dealing with a minister who wants to do something that looks improper, for example, you go and see the secretary of the Treasury Board and the secretary gives you an opinion. You tell the minister, and the minister says, “I don't care, I want to do it anyway”. At that point, the minister has to talk to his or her colleagues at the Treasury Board. What I like about that is that it is elected people providing rulings about elected people rather than an unelected official somehow throwing roadblocks in the way of what a minister wants to do. I don't mean you always agree with your minister. You have a duty to disagree and to warn and all the rest, but at the end of the day, elected people should be in charge and should be accountable for what they decide.

Those are my main comments on the bill.

If I may, Mr. Chairman, I'd like to offer just one last observation. This runs contrary to all my years of conditioning as a senior official, when I always thought that what parliamentarians did was none of my business--you didn't give them advice. But since I'm now a private citizen and some other private citizens have given you advice, maybe I can too. I hope you'll take enough time with this bill. This is a major piece of legislation.

One of the great advantages you have, as far as I can tell from the outside, is that this is not really a matter in which there are intense partisan divisions. When I was in government, my observation was that Parliament was at its best when a committee did not have a situation in which one side was dug in on one position and another was dug in on another. Instead of that, you had members of Parliament putting their heads together and trying to figure out what kind of outcome would best correspond to the public interest. As parliamentarians, you have unique responsibility in that you are the ones who have the last word about the public interest.

So I'm not going to tell you what should and shouldn't be in the bill, but I do think it's really important that you not rush it, and that when you get into clause-by-clause, you take as much time as you need to work it out. It's complicated. There are some things in the bill that I think show some haste. There are some things that a more experienced government probably wouldn't have done. In putting your heads together on this committee, I hope you'll be able to sort those out and arrive at improvements. It's a good bill, and I think you have the opportunity to make it better.

Thank you, Mr. Chairman.

[The Chair, Conservative, David Tilson]

Good presentation.

Mr. Owen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you, Mr. Kroeger, for being here. We all are well aware of your background and reputation and are grateful to have your advice. And I think your presentation was very clear, so I won't get into those issues.

There are two issues we touched on with Professor Franks; then Professor Franks raised one of them briefly at the end, and I would be grateful for your opinion on it. It is that the codification of a code of conduct can put the legislative branch literally into the courtroom. That's obviously what we're doing or are faced with having done in Bill C-2. I'm not asking you as a parliamentarian but as a long observer of these interactions amongst branches of government whether you feel that having it legislated poses any particular dangers, as against the advantages it might have.

The second was a point we got into a little with Professor Franks as well. I won't apply the word “proliferation”, because it has a negative connotation, but we are adding more and more parliamentary agents, as Professor Franks said. That can be confusing to parliamentarians—and can as well overburden them, perhaps, in their responsibility to oversee their agents—but also to the news media, who often popularize and personalize these offices around the incumbent, and also to the bureaucracy.

This is perhaps where you could give us some good advice, because often their mandates, particularly as they multiply, will inevitably overlap, and that will cause confusion and at least duplicity—I mean duplication....and maybe duplicity as well, but it can cause confusion.

In the interests of time, I would ask my colleague Mr. Tonks to ask a question as well, and then perhaps you could address them together. I know he has one.

[The Chair, Conservative, David Tilson]

You only have about four and a half minutes left.

[Alan Tonks, Liberal, York South—Weston, ON]

Thank you to my colleague.

To the two professors, similarly to dividing policy from administration and management, the accounting officer concept attempts to entrench responsibility in the area of administration. But internal audits and whistle-blower issues spin off into other jurisdictions: internal audits into the Comptroller General, various whistle-blowing aspects into other oversight bodies.

It seems to me that where you didn't go is where we need to know: how can the accounting officer and the deputy minister...? Within what both of you say is the context of ministerial responsibility, how can the accounting officer be responsible to Parliament? Would you support the notion that, as the Auditor General reports on matters in her domain four times a year, the accounting officer should report to Parliament on whistle-blowing issues that have been raised and have been brought to his or her attention, and extreme incidents of administrative shortcomings that come as a result of internal audits or whatever? It would seem to me that each deputy minister should be a member of the internal audit committee that has been put forward by the legislation.

My question is, Professor Kroeger, how would we tighten up that accountability? How would we close the accountability loop through the accounting officer who is responsible for administration?

[Arthur Kroeger]

Just as a point of clarification on Mr. Owen's question, is it about the public service code or a code of conduct?

[Stephen Owen, Liberal, Vancouver Quadra, BC]

It's a code of conduct.

[Arthur Kroeger]

I don't have any particular hesitations about a code of conduct for public servants. If you want to put it in legislation, that's fine.

A code of conduct is mostly what you carry around in your head. You don't pull out a little book every once in a while to see what you ought to do, but if it is useful as a general way of establishing an operating environment, I don't worry about it. I don't think it should get you into court very often, but perhaps I'm overlooking something.

On the question of the functioning of an accounting officer and responsibility to Parliament, I'm going to see if I can combine my response to Mr. Tonks and Mr. Owen.

When you go to a parliamentary committee, you really have to be ready to provide information about anything the committee wants, within obvious limitations of confidentiality. You have to be prepared to answer questions about whatever the committee raises; again, certain questions are off limits for an official, but I think you should be able to have very wide-ranging discussions with parliamentarians, because that's how you get them to understand better what you're trying to do. If that gets into the operations of the department--how well your policies are working, whether your programs are well designed--that's all part of it. You should be able to discuss that, as well as the nuts and bolts of the last financial report the Auditor General brought in.

On the question of audit, the legislation says you have to have an internal audit committee. I think all departments have internal audit committees. I know that every department in which I served as a deputy minister had an internal audit committee. I chaired it. The Auditor General was always invited to have a representative at the table. The Comptroller General was always invited to have a representative at the table. I always assumed that anything in our audits was going to become public, as it should. I have no problem with any of that.

The one rider is that you still I think need to preserve the principle that elected people are in charge. It doesn't mean they're to blame for everything that happens, but you work for the minister. The minister is the boss; the minister is elected and has prerogatives that you don't have.

[The Chair, Conservative, David Tilson]

Thank you.

Next are Monsieur Sauvageau and then Madame Guay.

Monsieur Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Mr. Kroeger, thank you for your presentation.

At the end of your presentation, you said you hoped we would examine it thoroughly. You said we should take the time to do things properly in the clause-by-clause consideration because it's necessary to prepare a good bill. You were a senior official, and you therefore probably have considerable knowledge about bill. Between 1988 and 2000, 14 bills containing more than 300 clauses were tabled. According to one document from the library, the average time between first reading and royal proclamation for one of these bills is 196.6 days, or 200 days, if you round up the figure. We're being asked, we're being required to study Bill C-2 and pass it in more or less 40 days. Do you think, after reading Bill C-2, that legislators like us can do what you want, that is to say study the bill thoroughly and take the time to improve it in the clause-by-clause consideration with a schedule like the one I've just referred to?