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

[Kristen Agrell]

I don't know.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Do you have no opinion on that? I would suggest perhaps you give it some—

[The Chair, Conservative, David Tilson]

I say that all the time, and they get away with it, so it's perfectly okay.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

My only point is that I would suggest this very method is indeed the same as giving a cash donation. I believe the act has covered it and I believe it is appropriate.

I will cede the rest of my time to my colleague, Mr. Poilievre.

[The Chair, Conservative, David Tilson]

You have about three minutes.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

On this question of the tribunal of judges versus the existing staff relations board, we're dealing with two issues here. One is that the staff relations board only applies to staff, whereas you've proposed, rightly, that protections ought to go beyond staff of the government to contractors and grant recipients, and other unions have proposed, for example, that federally funded researchers be protected.

Do you believe it's realistic to put all those different categories of potential whistle-blowers into a staff relations board for whistle-blower protection?

[Shalom Schachter]

I think I've answered that there are already labour tribunals in each of the jurisdictions that could deal, for example, with non-unionized workers. If there is a unionized workplace, then the collective agreement would have an arbitration process. So it's not our position that all complaints from across the country should have to come to either the Public Service Staff Relations Board or the CIRB. What is important is that this protection exist.

Let me again give the example of our members, who are involved with the use of billions of federal dollars in the delivery of health care. It seems to me the Parliament of Canada has an interest in making sure those billions of dollars are spent appropriately, and that can't happen if health care workers in the provincial jurisdictions don't have whistle-blower protection.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

That's a fair point. The second issue is that right now public servants already have access to the staff relations board for whistle-blower protection. If this bill passes they'll continue to have that access; there's nothing stopping them from choosing to go to the staff relations board.

What's being contemplated by some members of the committee, though, is amending the bill to force whistle-blowers to go to the staff relations board and take away the choice of going to a judge-led tribunal.

Do you believe this committee should take away the choice from whistle-blowers to go before a judge-led tribunal and force them all to go to the staff relations board whether they want to or not?

[Shalom Schachter]

If the choice is a true choice, an equal choice with equal access to remedies and with equal access to action on the part of the tribunal, board, or whatever, to ensure that the retaliator knows its actions were wrong, then why would we be opposed to choice?

There may be some issue in terms of appropriate use of resources. The member from the Bloc caucus was mentioning the duplication between federal jurisdiction and provincial jurisdiction. I think we want to make sure our tax dollars are spent efficiently, and before we set up parallel tribunals we should make sure it would be done in such a way that resources are not wasted.

[The Chair, Conservative, David Tilson]

That appears to be it. Our time has expired. We thank you both for coming. Ms. Agrell, Mr. Schachter, thank you kindly.

We will have a break for a few minutes before the next witness. Thank you.

[The Chair, Conservative, David Tilson]

I'm going to call the meeting to order.

Our next witness is Professor C.E.S. Franks from Queen's University.

Good afternoon, Professor Franks. We're glad to see you here today. As you probably can see, you have an opportunity to make some introductory comments, and then members of the different caucuses will, I'm sure, have some questions for you.

[Prof. C.E.S. Franks, Professor Emeritus of Political Science, Queen's University, As an Individual]

Yes.

Thank you very much. It's an honour to be here. I have a longstanding interest in accountability to Parliament and within government. I've met some of the people here before at other committee meetings, and it's nice to see familiar faces.

The focus of my remarks today is going to be on the Gomery commission recommendations in relation to the Federal Accountability Act. I thought I would take that approach, because I was senior research adviser to the Gomery commission, so I've had a chance to observe how it works, what it came up with, and the reasoning for the recommendations. That's what I'd like to address in the context of the Federal Accountability Act. I will talk about three major things, and probably some more minor ones, and there are more in the written submission that I provided last week.

One, I wanted to talk about deputy ministers, the deputy ministerial community, and deputy ministerial accountability. Two, I want to talk about the Public Appointments Commission. Three, I would like to make some general remarks about the broad issue of agents of Parliament and the role of Parliament in accountability. I say all of this in the context that the main focus of my academic research has been on Parliament. I think the role of Parliament is often under-stressed and under-appreciated in these sorts of things. Parliament has a right to define who is accountable to it, and how, and in what manner they are accountable to it.

It seems to me that what is happening in the Federal Accountability Act in relation to the accountability of deputy ministers and heads of agencies is a matter of identifying them as holding responsibilities in their own right and Parliament wanting to see how they perform their functions and their duties. This is not unusual in parliamentary government. In fact, Canada has been almost at the extreme end in its thinking about ministerial responsibility, saying that ministers must be responsible for everything and the only persons who can be responsible before Parliament. I didn't agree with that, and neither the Gomery commission nor the Federal Accountability Act agrees with that.

So the recommendations on the accountability of deputy ministers and heads of agencies as accounting officers before parliamentary committees, primarily the Standing Committee on Public Accounts, is similar in the two. There is some difference in the process through which disagreements can be resolved, but that is not terribly important. The important thing is that it's recognized that senior public servants have responsibilities and duties in their own right, and these duties and responsibilities, at least many of them, do not belong to ministers, and that they should be accountable before parliamentary committees in their own right and not on behalf of ministers.

The place where this becomes difficult is in trying to define the boundary between the responsibilities of public servants and those of ministers. The procedure through which ministers, as the Treasury Board has proposed in the act, can overrule the accounting officers, the deputy ministers and heads of agencies, is a means of establishing that boundary. If a deputy minister objects to a proposal and is overruled by a minister, then the responsibility belongs to the minister. It's very clear, if a deputy minister feels it's within his or her purview and is not overruled, then the responsibility rests with the deputy ministers.

I want to emphasize that to make this system work is going to involve a lot of work on the part of the Treasury Board, a lot of work on the part of Parliament, and particularly the Standing Committee on Public Accounts. They're going to have to reach some understanding of what the responsibilities of the accounting officers involve. It will involve what's normally called regularity, in other words following the rules and the laws that will involve propriety, acting in a proper manner, and to some extent it will involve economy, but it will not involve questions of effectiveness or even of value for money, or the purpose of programs or the policies behind programs.

In the initial stage, I think the responsibilities of accounting officers should be clearly in the areas of regularity and propriety. As the committee and the public servants and the Treasury Board learn to work together, they can go further if it's the wish of all sides.

Many of the recommendations of the commission dealt with the length of tenure of deputy ministers in offices and departments and with the method of appointments of deputy minister. Without going into details, the concern behind them was that the commission felt, as Justice Gomery has made very clear, that deputy ministers did not in his opinion pay adequate attention to their management duties.

The intention was, through the accounting officer approach and through the longer tenure of deputies and through the appointing procedure, to make a system in which deputy ministers were clearly assigned duties, stayed around long enough to make sure they had some power and could exercise it over management of a department, and then were ultimately held accountable and had to defend themselves in public for what they had done.

This was an effort, as I say, to refocus the deputy ministerial community and heads of agencies more towards their management duties. Something would have to give in that, but that was not a worry in the commission's sense.

The next point I want to talk about is the Public Appointments Commission, which is very much in line with the appointments proposal for boards and chief executive officers of government agencies proposed by Gomery.

The thinking there was that these appointments have to be made in an open and transparent way that recognizes the principles of merit and non-partisanship and recognizes the diversity and variety of the Canadian nation.

I will give you an example of appointments I think should be made that way but have not been in the past, and that's of the chairman and members of the board of the Public Service Commission. The duty of the Public Service Commission is to ensure that appointments in the public service are made in an open and transparent way, are advertised, that all Canadians have equal access to them, that they meet the principles of merit and non-partisanship, and that diversity is recognized in them. Yet at present there is no guarantee in the procedure for appointing the members of the commission who are supposed to ensure this that they are made in that manner. I think the Public Appointments Commission is a very important part of the act.

The last thing I will remark on relates both to Parliament and to thinking about accountability generally. I have a concern—this is a personal concern—that the act asks too much of Parliament in terms of the number of agents of Parliament that Parliament will wind up with and in terms of the efforts to keep their own agents accountable and in line.

I express it as a concern, and it fits into another concern I have, that the thinking behind the Gomery commission on responsibility and accountability was, to rephrase an old expression, that you should choose wisely and entrust liberally. In other words, you choose the right people and give them the powers in the belief and faith that they will act responsibly, and then you hold them accountable at the end.

The Gomery commission boiled down its views on the accountability and responsibilities of deputy ministers by saying that if they are faced with an issue they're doubtful about, they should ask themselves two questions: first, can I defend this adequately before the public accounts committee, and second—since the public accounts committee represents Parliament, which represents the people of Canada—the question could be phrased as, can I defend this decision satisfactorily in a public forum?

What's implied in here is a sense of responsibility. The commission did not recommend any more regulations, rules, or oversight agencies; it felt that we had enough. The problem was that these weren't observed, not that we needed more. I have a concern that the Federal Accountability Act goes too far in the direction of more oversight agencies, more varieties of accountability and more mistrust of public servants, more efforts to control and command and punish, and less attention than I would like to see on ensuring that the public servants themselves have a sense of responsibility that they follow in their work.

Thank you, Mr. Chairman.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Owen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you very much for being here, Professor.

I would like to address these three points and receive some reaction from you.

Certainly, the public appointments committee concept could be, I think--and I would like your opinion on it--contained within and, with appropriate amendment, administered by the Public Service Commission if the Public Service Employment Act were appropriately amended so that the president and the commissioners were appointed in ways that effectively made the president an officer of Parliament. I realize this goes to your proliferation concern. But rather than having a separate body set up, this would then set out the merit criteria and the diversity considerations and process and present a non-partisan front, but also draw on the expertise and more general responsibilities of that commission to deal with employment in the public sector.

That's one idea to which I welcome and value your response.

With respect to the deputy ministers and ministers, I'd like to put a simple proposition to you. First of all, I see responsibility and accountability with respect to ministers as a minister being responsible for his or her mandate and the administration of the department and accountable to the public through Parliament, as those two concepts can be applied. But the major issue, it seems to me, between ministers and deputy ministers and all of their departmental administrators is that there is a dividing line between the political side and the administrative side of governance. The political side is inherently partisan. Whether it's being elected on a platform or whether it's debating legislation or even appropriating funds in Parliament, those are appropriately partisan. They're open; they're debated; they're voted on.

However, as soon as you have that policy set and your legislation in place and the money appropriated, you cross a line into the administrative side, and there you have a duty of fairness. The duty of fairness simply cannot be contested with the partisan side, on the more political and legislative side. It seems to me that if we had some simple rules that very clearly said that the political side should not interfere politically in that duty of fairness because that would offend it.... Ministers, of course, have a particular challenge because they straddle the line and they're, in a sense, administrators. But we need clear direction to ministers and to their public servants where those boundaries are and that the duty of fairness must maintain when you cross the line.

The third point is on the number of officers of Parliament, and I agree with the concern. As a former officer of a legislature, I am in favour of the model, but I hear the proliferation, not only because of the extra work it gives in holding them accountable to the legislative branch, but I think it also detracts, in some cases, from the power of legislators. As well, it's also a tremendous drain on the public bureaucracy, on the public itself, trying to deal with what sometimes can be mixed messages, where there are overlapping boundaries, when you start to get too many legislative officers.

Those are my comments for your observation.

[Prof. C.E.S. Franks]

I'll go at them in reverse.

On the parliamentary officers, the Privy Council Office prefers to call them parliamentary agents because the officers are the clerk, the Sergeant-at-Arms, etc., but the common term is a parliamentary officer, so I'll use that.

I've often wondered if we shouldn't go the route of lumping them together instead of having so many discrete ones. For example, we could have a parliamentary commissioner and put under that the Privacy Commissioner, the Information Commissioner, the Commissioner of Official Languages, the Public Service Integrity Officer...I keep forgetting how many there are going to be, but a lot of them have fairly logically related functions. I think they'd work very well as one organization if Parliament were prepared to do it.

On the deputy ministers and ministers, I would be the first one to say that the boundary between administration and policy is not always clear. I think it is very clear in retrospect that it was the duty of deputy ministers to prevent the things that went wrong in the sponsorship program, or to ensure there were good records in the HRDC issue, or to ensure that the estimates were accurate in the gun control program, etc. The point of the recommendations is to make sure that over time, the area of responsibility and duty of the public servant is clarified, and that Parliament has some means of assuring itself that they obey their duties.

The public service has a legal identity, it has a statutory identity, and it has a responsibility to the laws that govern it--the laws that tell it what it may and may not do, and how it may do things. My concern is that more times than we need in Canada, the public service has not adhered to the laws it's supposed to respect. That causes a loss of faith in the public service; the ensuing scandals are harmful to government, harmful to the public service, and I think harmful ultimately to people's faith in how they're governed.

The final one, or the first, was on the Public Service Commission. As you will know, the Public Service Commission recently changed its role profoundly, from one of actually doing much of management to one of having an audit and accountability function. I've often thought that the Public Appointments Commission could comfortably fit within the Public Service Commission, although one--the Public Appointments Commission--is dealing with Governor in Council appointments and the other is dealing with the tens of thousands of routine appointments made every year to the public service in Canada, the promotions within the public service of Canada, the deployments, and everything else, so in that sense they have quite different clientele and a somewhat different function.

The Public Appointments Commission, as far as I can see, is modelled on the British Office of the Commissioner of Public Appointments. It oversees something between 3,000 and 5,000 appointments a year with a staff of ten. It does that through an ingenious method of having assessors who sit on appointment boards. This is for our equivalent of Governor in Council positions.

The point is that they have different clientele and would probably have different ways of operating, but in the sense that they're both trying to ensure the same standards in their different clientele, there is a logic for linking them. That's as far as I can go on that question.

[The Chair, Conservative, David Tilson]

Thank you, Professor Franks.

Madam Guay.

[Monique Guay, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chairman.

Thank you for being with us today, Mr. Franks. It's a change to meet someone from the university, who has no direct link to the political aspect of the bill, but who is interested in its impact.

There are a number of topics. You talked about ministers and deputy ministers. Deputy ministers are very often appointed for a much longer period than ministers. Ministers depend on elections and the Prime Minister, who gives them ministerial responsibility for a year or two, at most. They are responsible for their department, but the deputy ministers are often in place for much longer periods of time, because their positions are considered apolitical, and they have much more work experience in a particular department. When you are appointed minister, you are responsible for your department and you are accountable. If there's every a scandal, of course, you're responsible for it. That's my opinion.

Some groups talked a lot about confidentiality. They have a lot of fears about the confidentiality of their clientele's information. How do you perceive that? The bill could have an impact in this area, when they have to keep their clients' information confidential. Then there's the entire matter of the $1,000 reward for a whistleblower. Our party is opposed to that. A whistleblower should make an honest disclosure because it is his or her duty to do so, not for money.

I'd like to hear your opinion on those two questions.

[Prof. C.E.S. Franks]

Thank you. Forgive me for speaking in English, but I'm not familiar with the French terminology for much of what I have to say.

[Monique Guay, Bloc, Rivière-du-Nord, QC]

That's fine.

[Prof. C.E.S. Franks]

Merci. The deputy ministerial community in Canada is quite interesting. One of the very good political scientists who has studied this, you might conclude, took a turn up in profession or down when he became a politician—Stéphane Dion—but his findings were that deputy ministers in Canada, in comparison with their counterparts in Britain, France, the United States, Germany, and so on, are younger when they are appointed, have less experience in government, less experience in the department, and stay in a department a shorter time than their counterparts in the other countries.

For example, in Britain most people at the deputy ministerial level—permanent secretary—have that as their last appointment before retiring, and they are normally appointed on the expectation that they serve five to six years.

In Canada, the last statistics I was satisfied with suggested a stay of deputy ministers of about two and a half years. Now it's perhaps slightly longer, but it depends which department you look at how long it is.

The only figures I've seen on the average time of the tenure of one minister and one deputy together was in a study by a former Clerk of the Privy Council, Gordon Osbaldeston. He found the average “marriage”, if you could call it that, of a minister and deputy minister lasted for approximately one year, which in terms of how long it takes to develop a policy and get it into action is what I would call a one-night stand rather than a real marriage. It again might be longer, but I'm not convinced of it.

I don't think it's right to overstate the length of experience in office or the length of experience in departments of deputy ministers in Canada. That was something that concerned the Gomery commission—as it has many other observers who have looked at it—and that is going to have to be dealt with.

Concerning whistle-blowing, the Gomery commission did not make any recommendations on the whistle-blowing aspect, although that wasn't in its terms of reference. One of the reasons is that the research that was done for it suggested that whistle-blowing is a necessary last resort but really not a very good thing, in the sense that most whistle-blowers are not happy they did it; they regret having done it afterwards. I'm not saying it's not needed, but I am saying there should be ways of resolving differences other than whistle-blowing.

I have a terrible worry about the $1,000 reward for whistle-blowing: that it's going to look more like 30 pieces of silver.

Excuse me, I have forgotten your last point, I regret. Je deviens peut-être plus âgé.

[Monique Guay, Bloc, Rivière-du-Nord, QC]

My final question concerns confidentiality. Businesses are very concerned about the disclosure of certain clientele information.

[Prof. C.E.S. Franks]

First of all, we must recognize that access to information is limited, that there are some things that aren't in it, that the Federal Accountability Act itself says that draft internal audits should be concealed for a period of years, should not be available I think it's 15 years--I'm not certain on that.

But one thing that is confidential at present, and I think always would be, is the advice of deputy ministers to ministers. There was no intention in anything Gomery did and there's no intention, as far as I can see, in the Federal Accountability Act to change that. The advice a deputy minister gives to a minister on policy or anything else is confidential, and then the minister's informal comments to the deputy minister are also confidential.

In a parliamentary committee, deputy ministers and other public servants at present can only answer about what a policy is. They do not say it is a good policy or a bad policy, they do not discuss alternative policies, and they do not say what they would prefer in policy. There's nothing that will change that. So the confidentiality of the relationship between minister and deputy minister would remain.

The issue would be only if there is something on which the minister and the deputy minister disagree that is within the responsibilities of the deputy minister that the process for appealing to the Treasury Board and the Secretary of the Treasury Board would be invoked--not on policy issues, just on administrative matters that are the responsibility of the deputy minister, the accounting officer.

[The Chair, Conservative, David Tilson]

Thank you, Professor.

Mr. Dewar.

[Paul Dewar, NDP, Ottawa Centre, ON]

Thank you. I did have a chance to read your brief. I apologize for coming in late.

I have heard you speak before on this issue, and I'd like to turn my attention to perhaps juxtapose this act with the work you did on the Gomery commission.

I'd like to get your take on recommendation 2 of the commission report--and just for those who might not have committed it to memory, it says, “The Government should adopt legislation to entrench into law a Public Service Charter.” There are references in the recommendations about what that is and the intent of that.

In fact, what this piece of legislation was to address was not specifically Gomery, but to take a look at what parts of Gomery they thought were applicable and certainly to fold them in.

Could you speak to that recommendation? We haven't talked a lot about it, and certainly, in my opinion, and from what I've seen in this town, it has been talked about a lot, the idea of inducing ethics into the way government operates. I think this was an attempt to do that.

Could you just speak to what the public service charter was to do and how we might see it come into place?

[Prof. C.E.S. Franks]

On that one I feel that I really should talk about what's in the report, because as a commission, we did not commission research into that area. Justice Gomery was very concerned about the need for a simple, straightforward statement of ethics that would apply to perhaps not even just the public service, but public appointments generally, including the boards, corporations, and so on.

The problem is finding one like that. For instance, the current code of ethics of the public service is really chunks of the report of John Tait's task force, put into codified form. Tait himself said in the introduction to his report that it wasn't meant as a code of ethics. It winds up as a fairly long and cumbersome thing. It covers an enormous amount of territory, and you give it credit for that, but it isn't short and inspiring like, say, the Ten Commandments.

The one that's mentioned in the report on that is the British “Seven Principles of Public Life”, and that I think is well worth looking at.

But there's a real risk, you see, in entrenching these things in laws, because then the courts make the decision on what's right and wrong and it might well be that Parliament would rather retain that right to itself than give it to the courts.