Bill C-2 (39th Parliament, 1st Session) Committee on May 16th, 2006

[The Chair, Conservative, David Tilson]

Thank you.

We're going to have a problem each time. We have five minutes left in the 40-minute period. Hopefully somewhere along the line I'll be allowed to alternate it. We'll go the five minutes for the Liberal caucus this time, and hopefully in the future I can move that around.

Mr. Tonks.

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

Thank you, Mr. Chairman.

On the lighter side, Mr. Shapiro, when you were being introduced, the Hallelujah Chorus was going in the back here. Given the tremendous amount of exposure that you've had recently, I thought that was appropriate, poetic justice actually.

Mr. Shapiro, you've talked about moving from a regime that you have been familiar with, which is not a statutory but a values-based regime. I infer from that that it has allowed you to play a little bit of a different role from time to time in advising individuals with respect to their possible conflicts and so on. In fact, members can come to you and ask for your advice with a certain degree of confidentiality. In moving to a rules-based and a more statutory regime, you have indicated that there should be a continuity of that values-based regime by having an ethical mission statement--call it what you want--that would still give you that element of advisory, intercessional role.

My concern, and I wonder if you would address it--and I think the committee should be concerned about it--is that in a rules-based regime, if the balance is too far in that direction, then it's possible that the natural justice, the opportunity prior to huge publicity depending on your reporting responsibility, would really deny a member their opportunity to have a day in court, so to speak.

Could you make a comment based on your experience? Could you suggest any way the legislation could be written in such fashion that this possibility would not occur?

[Bernard Shapiro]

There isn't any way to write any legislation guaranteeing that everybody will always be dealt with in exactly the appropriate manner all the time. This is a human effort, and humans will make mistakes and do things they will regret, etc. We all do, and we try to minimize them, but there's no perfection to be had out there.

Let me put it another way. A rules-based regime, if it's a good one—and let's assume they're all reasonable—tends to be a smaller box, as this one is compared with the previous one, and a stronger box. It's smaller; it's much more carefully defined. I think it provides less flexibility—not no flexibility, but less flexibility—than would otherwise be the case. And what I'm suggesting is not necessarily a set of principles, although that's one approach, but that a preamble might perhaps be devised. Again, I'm not part of the writing team for this legislation, so I don't want to put words into their mouths. I'm suggesting a preamble that might at least give the people subject to the regime and the person administering it—the new Conflict of Interest and Ethics Commissioner—some way to make advice more meaningful, by being able refer back to something and therefore appear less arbitrary than might otherwise be the case.

None of these regimes is perfect; let's not pretend they are. Nevertheless, that's the challenge for those people putting the legislation together.

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

Mr. Shapiro, if there were an absolute point reached by a conflict where you were required to report somewhere on that, or to take some particular action, whom would you report to in this regime? What is the closing of that accountability loop when you act? How does that work?

[Bernard Shapiro]

Relative to the members, it would be to the House itself. It's the Speaker of the House of Commons to whom I've been reporting for the last two years. On other occasions, it turns out that it has been the Prime Minister in administering his particular code. There are requirements for publicity in both these cases for public...[Inaudible--Editor]...and things of that sort, and those have to be paid attention to.

One of the difficult things I've faced, I must say, over the past few years is that it's not clear whom I should report to all the time. So I've used the Speaker of the House as the most neutral person I can think of, and he has been very helpful in assisting me.

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

Thank you.

[The Chair, Conservative, David Tilson]

Thank you, Dr. Shapiro, and colleagues, for coming this afternoon. Thank you very much.

We will take a break for a few moments, thank you.

[The Chair, Conservative, David Tilson]

We'll reconvene, ladies and gentlemen.

Our second witness this afternoon is Robert Marleau. Most of you know Mr. Marleau. He's chair of the board of directors of the Parliamentary Centre and the former Clerk of the House of Commons.

Good afternoon.

Could you make some introductory comments, Mr. Marleau?

[Robert Marleau, Chair of the Board of Directors, Parliamentary Centre, and Former Clerk of the House of Commons, As an Individual]

Thank you, Mr. Chair.

I am grateful to the committee for remembering my name and my association with the institution.

[The Chair, Conservative, David Tilson]

The people who are sitting on either side of me remember you well.

[Robert Marleau]

I must say that I have some difficulty in commenting on the substance and the content of a bill, since I spent 32 years of my professional life avoiding doing so. I hope you'll be generous with me if you sense any hesitation; however, I'll endeavour to answer your questions as well as I can.

My preliminary comments will focus on two aspects of the bill. My first remark is of minor importance in terms of accountability, but fairly important in terms of parliamentary procedure.

My second point will focus on the process for studying the estimates, and on the way in which I think the scope of the bill could be broadened to include the estimates.

You may initially, as I comment on this, find the first point, the procedural point, somewhat minor, but in my view it has potential for difficulty in the House from a procedural standpoint. That's the issue of the secret ballot. The bill does provide for a secret ballot for the appointment of most of the parliamentary officers or agents or mandataires du Parlement, whatever term you want to use, except for the...no, it includes the Auditor General.

In my career as a committee clerk advising on bills, and as table officer and Clerk of the House, I have consistently advised parliamentarians to avoid enshrining parliamentary procedure in legislation. The reason is that parliamentary procedure is designed to be somewhat flexible, allowing the House to advance its business against a set of standing orders. Although they are standing--and somewhat permanent--they can very easily be altered according to the wishes or mood of the House that day. If you enshrine the secret ballot in legislation, both houses will be bound, and the Speaker will be bound. There will be no choice but to hold a secret ballot, even if there's unanimous consent on the candidate. Even if there is the will to proceed quickly, the House will have to hold a secret ballot.

We've had difficulties in the past with procedure enshrined in legislation, prescribing certain debates at certain times within certain timeframes, and the House wasn't quite ready to deal with that. There was a political agreement not to deal with that, yet the House was bound to proceed.

I'm not disputing the issue of a secret ballot. What I would recommend to you is, if you wish a secret ballot, then enshrine it in the standing orders of both houses, not in legislation.

I spotted a small discrepancy--or maybe it's not a discrepancy; it may be a matter of policy. It's not for me to judge. The nomination process is subject to secret ballot, but the removal process is not, or at least it's implied that the removal process is not. In every case, the nomination process must be a secret ballot, but it appears that the removal process for most of these officers is a simple resolution adopted by a majority and, I assume--according to what's written in the bill--a public vote. On the one hand, you have nominations by a secret ballot; then you have a removal process by public vote. It's up to the committee to decide whether that's what it wants. To me, it appears to be an inconsistency, but it may not be.

I want to make another point, and here, Mr. Chairman, I will beg your indulgence a little bit because it may sound a little irrelevant, but I will make it quite relevant.

It is an unfortunate truth that the interest that members and parliamentary committees take in the estimates has waned over the past 40 years. I am not the first to make this observation. I think that those who have followed the evolution of the process for dealing with estimates in the House of Commons would agree with me.

There is very little incentive for MPs to spend a lot of time on estimates. It doesn't bring a lot of votes in your ridings, and sometimes it can be somewhat daunting, looking at the volume of information that comes from the government. By and large these committee reports don't get debated in the House, and as a consequence little interest is devoted to them.

You have today in the Auditor General's report a graphic example of violation, if you like, of the constitutional supply authority of the House, at least alleged by the Auditor General, that might have been picked up through a study of the supplementary estimates. I'm referring to the gun control issue. In the period that the Auditor General is commenting on, 2003-04, the justice committee was preoccupied with a major piece of legislation, and that was same-sex marriage. The committee held not even a single hearing on the gun control supplementary estimates.

I'm not criticizing the committee; please, don't get me wrong.

However, it does highlight a fundamental problem in terms of accountability that is not addressed in the bill.

Parliament is outside the loop of accountability in this bill. And I've just said to you, please don't put procedure in the bill, so I'm not arguing that you put the supply process in the bill. What I want to link it to is the parliamentary budget office.

I commend to you a research paper of the Gomery inquiry, in Research Studies: Volume 1, called “Parliament and Financial Accountability”, prepared by the Parliamentary Centre, and an article in The Hill Times of last week, signed by Peter Dobell and Bob Miller, the executive director of the centre, on that very subject.

It would be very easy to extend the mandate of the parliamentary budget office to include estimates. It would be my strong recommendation that you consider that as part of this bill, adding a second mandate of that office within the library, to capture the estimates process. The committees, I believe, as I've advocated publicly and privately, require substantive support by a financial analysis office in order to help the committees do a proper job on the study of estimates. Of course, with that would come a series of standing order changes, which would be irrelevant to your discussion today. This amendment to the bill has the potential to bring Parliament back into the accountability loop.

Mr. Chairman, I'll leave it at that. Those were my two major comments, one minor and I think one more substantive.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Marleau.

I think for committee members it's a challenge to have someone appear before them who used to advise Speakers and clerks of committee. It's a pleasure to have you here.

Mr. Owen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you, Chair.

Welcome, Mr. Marleau. You've spoken about the parliamentary budget officer. That's one more of a growing list, as this bill expands it further, of parliamentary officers. Of course, 30 years ago we just had the Auditor General, then the information and privacy commissioners, and now we have a number of further ones.

This relates to your very useful suggestion of extending the parliamentary budget officer's mandate to cover estimates. A tension exists between these parliamentary officers, whose role is fundamentally to--as they're called--“assist” members of Parliament in doing their job. They extend the reach of an individual member of Parliament. The concern is that it becomes self-limiting, that at some stage we have so many independent parliamentary officers that we're creating a parallel universe between the executive and the members of Parliament. What is intended, properly, to be an assistance becomes a buffer.

I don't know the answer to this. I used to be one, and I highly value the role they can play in assisting members of Parliament and the public in holding the executive to account, but I am concerned about the proliferation. At some point, the public, and perhaps the public administration and the news media and everyone else, will be a little confused about who's responsible for what in these independent roles, which really aren't to be independent; they're supposed to be subordinate to Parliament.

It's this relationship that I'm interested in your reflections on.

[Robert Marleau]

First, as the legislation is drafted, I don't equate the parliamentary budget office with a full-fledged parliamentary officer. I see it much more as an internal support and resource--to parliamentarians, to committees, to individual MPs, to senators--than as an alternative accountability structure.

As for the other officers, I've read articles about the proliferation of these positions. It is true, I think, that over the years, in creating parliamentary agents, Parliament's intention was to delegate a certain accountability exercise, but in many cases it has diminished the authority of Parliament.

Take the Access to Information Act. Don't take this as criticism of the act and the value it adds to our political culture, but questions on the order paper and notices of motions for the production of papers had real value, real impact, before the Access to Information Act. A department, when it got a question on the order paper, took it quite seriously. Indirectly, what has happened now is that you're better off, as an MP, using ATI to get a document than using a notice of motion for the production of papers. I don't think it was Parliament's intention to diminish one of its own procedures by delegating this to an agent outside, but that's what has happened, in my view.

That's not to say that the system can't be strengthened and reined in, but along the lines of what you just outlined, that would be my comment.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Mr. Tonks has a question.

[The Chair, Conservative, David Tilson]

Yes, Mr. Tonks.

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

Mr. Marleau, just with respect to closing the accountability loop and reinforcing the oversight provisions of committees, the congressional system has a similar entrenching of a financial officer. We have the Library of Parliament, and you've already said that it's not so much an accountability as it is an additional resource to be accountable. I think that's very important.

If we're going to create a parliamentary budget officer, keeping in mind that this act also creates the deputy minister as the accountable financial officer in every department, why would we not as a committee strengthen the resource capability by entrenching that and locating the parliamentary budget capacity in the Library of Parliament, for example?

[Robert Marleau]

I think that's what I was trying to advocate, that having that resource within the Library of Parliament makes it a resource of Parliament as compared to a stand-alone officer with somewhat of an arm's-length relationship in the exercise of his or her duties.

I am one who resists congressional creep. I don't think all our solutions are in a system very different from ours. Therefore, I think locating that function within the Library of Parliament, within the control of Parliament, as a servant of Parliament, is a more effective way of strengthening the accountability role of the House.

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

I hadn't heard that, but that clarifies it. Thank you, Mr. Marleau.

Thank you very much, Mr. Chair.

[The Chair, Conservative, David Tilson]

Monsieur Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Thank you, Mr. Marleau. As I said to Mr. Shapiro before asking my questions, I am very sorry for the cavalier fashion in which the committee has treated you. The Conservatives and the NDP decided to impose a time limit on your intervention. I am sure that you had more to say on Bill C-2.

If C-2, believe by the Conservatives to be the 11th commandment, were adopted without amendment, do you think that it would be problematic in terms of interpretation and implementation?

[Robert Marleau]

Mr. Sauvageau, I am not trying to avoid answering your question, but several aspects of this bill are outside of my area of expertise and my experience. I would go no further than what I already said. To my mind, one of the problems with the bill is the decision to enshrine the secret ballot in law. Such a decision would restrict the House and would bind the Speaker to following the procedure set out in the statutes, even if it were not the will of the House.

Secondly, whenever you include procedural matters in a bill, you are asking for the courts to get involved. It could give rise to all sorts of situations. Let us say, for example, that somebody was unhappy with the secret ballot, be it in terms of the process, the results, or something else. The individual in question could ask the courts to change or annul the result. While it is possible that the courts would respect parliamentary privilege and independence, there are no guarantees. In an ideal world, everybody would be reasonable and a reasonable question would be brought before a reasonable judge. But that is not always the case, and whenever you blur the distinction between parliamentary process and the courts, you run the risk of there being court interventions in the future.

[Benoît Sauvageau, Bloc, Repentigny, QC]

I would like to think that any other amendments that you may wish to make would be accepted by the committee and the clerk. If you have time to study the bill, we would be delighted to receive any further suggestions for amendments that you may have.

I have a question for you, but I do not know whether you will be able to answer it. It concerns the possibility of broadening the role of the Parliamentary Budget Officer.

However, Bill C-2 overlooks another matter, which requires clarification. I am referring to decisions handed down by the Canadian International Trade Tribunal. Were a claimant to take legal action against two government departments, Bill C-2 would not cover all the decisions.

Let us say, for example, that a citizen, or a group of citizens, filed a complaint against the Department of Public Works and Government Services Canada on the grounds that an invitation to tender had been organized in such a way that only one tender could meet the criteria. Were the Canadian International Trade Tribunal to rule in favour of the complainant and determine that there had indeed been misconduct, Bill C-2 would not apply to the decision. This is something that has already happened.

Do you think that Bill C-2 ought to be amended to include Canadian International Trade Tribunal decisions?

[Robert Marleau]

When beginning my presentation, I begged the indulgence of the committee. This is an example of a question that is way beyond my field of expertise.

Is it desirable for the bill to cover such matters? I believe that is a matter of government policy. It is a question of scope. I am not prepared to say whether it is desirable or not. I think that is a decision for members of Parliament to make.

[Benoît Sauvageau, Bloc, Repentigny, QC]

I am going to share my time with Ms. Lavallée.

Do you have any questions, Carole?