Information & Ethics Committee on Nov. 17th, 2009

[The Chair, Liberal, Paul Szabo]

Order, please. This is the 37th meeting of the Standing Committee on Access to Information, Privacy and Ethics. The order of the day is pursuant to Standing Order 108(2), the study of the review of the ethical standards in the Guide for Ministers and Ministers of State.

This morning our witnesses from the Privy Council Office are Mr. Joe Wild, assistant secretary to the cabinet, machinery of government, and Eileen Boyd, assistant secretary to the cabinet, senior personnel.

Welcome to both of you. I appreciate your taking the time to come and assist the committee to better understand the subject matter before us. I understand that you do have an opening statement, and I know that the members will want to engage in some dialogue with you after that.

Welcome, and please proceed.

Mr. Wild.

[Joe Wild, Assistant Secretary to the Cabinet, Machinery of Government, Privy Council Office]

Thank you, Mr. Chairman.

Mr. Chair, I'd like to thank the committee for inviting us to discuss the ethical standards contained in Accountable Government: A Guide for Ministers and Ministers of State. With me today is my colleague, Eileen Boyd, assistant secretary to the cabinet for senior personnel.

With your permission, I would like to begin by giving you a brief overview of the purpose and content of Accountable Government, including some background on the constitutional context in which this document and its standards of conduct arise.

Accountable Government provides high-level, principles-based guidance to ministers on the structure of Canadian government and their roles and responsibilities within that framework. This includes, among other important subjects, key principles of responsible government in the Westminster system; the structure of federal institutions, particularly those of the executive; rules for the conduct of cabinet business; relations with Parliament; administrative duties; consultation and coordination; and standards of conduct for ministers and other government officials.

This essential information helps members of a ministry, individually and collectively, support the Prime Minister in managing the business of the Government of Canada. At the core of the standards of conduct in Accountable Government are high-level ethical guidelines whose fundamental objective is to ensure that ministers and other public office holders uphold the highest ethical standards and make decisions in the public interest. In addition, the guide indicates that ministers are expected to comply with the Conflict of Interest Act, not intervene in judicial or quasi-judicial proceedings, respect the arm's-length relationship of the various agencies and crown corporations that may fall within their portfolios, and exercise discretion with regard to any invitations they may receive.

Additional guidelines are laid out in annex H in relation to political activities. These guidelines state that public office holders should not participate in a political activity where it may reasonably be seen to be incompatible with the office holder's ability to discharge their duties in a politically impartial fashion. Of course these particular guidelines do not apply to those public office holders whose roles and functions are necessarily of a political or partisan character, namely ministers, ministers of state, secretaries of state, parliamentary secretaries, or their staff.

The standards of conduct set out in Accountable Government must be understood within a larger constitutional framework—specifically, that in Canada, as in other Westminster parliamentary systems, it is by convention the Prime Minister who is responsible for forming and leading the ministry. The formation of a government is a defining responsibility of the Prime Minister. In so doing, the Prime Minister advises the Governor General on the appointment of other ministers. Flowing from this effective power of appointment and his overall accountability for the executive, it is the Prime Minister's authority to establish standards of conduct for ministers and other public office holders in the executive whose appointment he recommends. This includes standards above and beyond the requirements of the law the Prime Minister may set out as the basis on which he or she makes appointments.

It is the Prime Minister who must answer to Parliament and ultimately to Canadians for the conduct of the ministry and government. The Prime Minister must gage when the conduct of ministers—even conduct that may be entirely lawful—falls short of his expectations and what he can defend in the political forum of Parliament.

Consistent with this responsibility, the Prime Minister may ask for the resignation of ministers at any time. The Supreme Court of Canada has acknowledged this, most recently in the Dunsmuir case, where the court stated that unlike other public office holders, ministers do not have a contractual relationship with the crown.

The standard of conduct set out in Accountable Government: A Guide for Ministers and Ministers of State lets ministers know what the Prime Minister expects of them. It is worth noting that until recently, such documents were considered confidential as between the Prime Minister and the ministry; for example, both Canada's guidance for ministers and its United Kingdom counterpart were secret documents until into the 1990s.

As part of ongoing efforts to increase government accountability and transparency, Accountable Government is now a public document. While the Prime Minister may effectively dismiss ministers at any time, other public office holders are not governed by the same constitutional conventions. In wanting to ensure that public office holders would discharge their function with integrity and in a non-partisan manner, the government has made compliance with the “Ethical Guidelines for Public Office Holders” and the “Guidelines for the Political Activities of Public Office Holders” a term and condition of appointment. The Privy Council monitors these guidelines, ensuring certification documents are provided prior to an appointment being made and providing advice based on the general principle and the guiding factors laid out in the guidelines.

Before I conclude, I'd like to say a few words about the relationship between the statutory scheme created by the Conflict of Interest Act, and the principles and standards laid out in Accountable Government.

As members know, a key component of the Federal Accountability Act was to strengthen conflict of interest rules for ministers and other public office holders by strengthening and enshrining in the law the conflict of interest and post-employment code for public office holders via the creation of the Conflict of Interest Act, and creating the new Office of the Conflict of Interest and Ethics Commissioner as an independent officer of Parliament with a mandate to administer and enforce the act.

By enshrining conflict of interest rules for ministers and other public office holders in legislation and entrusting its administration to an independent officer of Parliament, Canada became the only Westminster country to have created a statutory regime for ministers in this area.

An important consideration in legislating the conflict of interest regime was that this was determined to be an area in which it was possible to set out precise rules, compliance, and reporting standards. On the other hand, it was not considered desirable or even feasible to define ethical conduct in terms of adherence to statutory rules, nor can the role of an appointed official, however vital, fundamentally displace the responsibility of the Prime Minister for the ethical standards of his or her government.

Mr. Chairman, that concludes my opening remarks, and we would be pleased to address any questions the committee may have.

[The Chair, Liberal, Paul Szabo]

Thank you kindly.

We'll go right to questions.

Mr. Wrzesnewskyj, please.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you, Chair.

Thank you, Mr. Wild, for appearing before our committee.

Mr. Wild, did any of the public office holders, ministers, ask you for your advice prior to some of the cheque presentations that have been ongoing over the last number of months?

[Joe Wild]

No.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

If a minister had approached you, your office, for advice to find out whether or not it was ethical to replace, on these large mock-up cheques, the logo of the Government of Canada, to replace the maple leaf, with the Conservative Party logo, what would your advice have been?

[Joe Wild]

I don't really want to enter into speculation, nor do I think it's necessarily my role to provide advice to ministers on a question such as that. The communications policy and the federal identity program are under the purview of the Secretariat of the Treasury Board of Canada. It would be those officials who would provide advice on compliance with those policies.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Are you aware of any ministers asking those officials for their advice on whether or not to replace the maple leaf with the Conservative Party logo on these presentation cheques?

[Joe Wild]

I'm not aware, but neither would I be in a position to be aware.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you.

Taking off your civil servant hat, were you surprised when you saw photographs of Conservative MPs, some of them public office holders, holding these cheques that held their personal signatures, that replaced the Government of Canada logos with the Conservative Party logos?

[Joe Wild]

While I appreciate the offer to take off my civil servant hat, I can't. It is permanently attached.

[Voices]

Oh, oh!

[Joe Wild]

Unfortunately, I don't think that's an area where I can express a view.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Perhaps if I bump into you at the local Tim Hortons, I'll be able to ask you--when you don't have that particular hat on.

I note that in your opening statement, you made it quite clear that ultimately it's the Prime Minister who is to hold these public office holders, the ministers, to account for their ethical behaviour. Is that correct?

[Joe Wild]

Yes.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

We're in a situation right now where the Ethics Commissioner has told us that it's not within the act for her to be able to look into the ethical conduct, although I believe she has some 50 ongoing investigations on this matter and she'll come back to us.

It seems to have been suggested that perhaps the PCO would have the authority to look into this matter. But it seems from your statement that fundamentally the one person who's responsible for this type of misconduct is the Prime Minister.

[Joe Wild]

I think the way one should approach these kinds of questions is to look at how responsible government and the constitutional conventions that inform our basis of government are formulated. The Prime Minister is responsible for determining whether or not he has confidence in a given minister to carry out his or her duties as a minister. The Prime Minister can seek the resignation of any given minister at any time if he feels that person no longer carries the confidence placed in him or her.

In terms of specific considerations on any given case, I think a whole set of issues and factors go into determining what kind of a response is appropriate. I'm not in a position to comment on a specific incident around cheques. I think the testimony of the Clerk of the Privy Council, along with the Secretary of the Treasury Board, before the operations committee of the House of Commons two weeks ago more or less sets out the perspective of the Privy Council Office.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Your statement says the Prime Minister ultimately must answer to Canadians for the conduct of the ministry and the government. The Prime Minister must gauge when the conduct of ministers, even conduct that may be entirely lawful, falls short of his expectations.

What if the Prime Minister's expectations of the ethical behaviour of his ministers does not match the ethical expectations of Parliament and of Canadians at large? Is there any other recourse? The buck stops at the Prime Minister's desk.

[Joe Wild]

I think the way the Westminster system is designed is that the role of Parliament is to hold the government to account for how it is governing and ultimately that accountability is discharged through the electoral process.

I think at the end of the day the way the system is designed to work is that if there is a large disconnect between a Prime Minister and his ministry and their expectations around conduct and those of the general population of parliamentarians, those disconnects play out through the mechanisms that Parliament has to hold a Prime Minister and a ministry politically accountable through question period, appearing before committees, those sorts of things; then, ultimately, for the population it's through an election.

[The Chair, Liberal, Paul Szabo]

Thank you.

We'll move on now.

Just to let the members know, Monsieur Dorion is going to be a permanent member of this committee. So welcome, Monsieur Dorion and your colleague visiting today, our friend, Madame Faille.

Madame Faille, vous avez la parole.

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

Thank you, Mr. Szabo.

I'm pleased to sit on this committee, especially given that the issue of ethics has been greatly affecting the public service, recently. Over the last few years, I've been sitting on the Standing Committee on Government Operations and Estimates. I now sit on the Standing Committee on Public Accounts.

The commissioner mentioned that under the present act, she could not intervene on ethical matters and that her role was rather limited. Could you give us your opinion on this matter and explain the rationale for comments she made at the meeting held last October 20^th?

Further, could you tell us where we can get details on the relationship between public office holders and lobbyists as well as individuals not registered on the lobbyists' registry? I would like to know how and where this information is to be found and how Treasury Board and the Privy Council perceive the matter.

[Joe Wild]

With respect to the first question on the role of the Conflict of Interest and Ethics Commissioner in relation to ethical matters, there are a couple of things to point out. One is that certainly the commissioner has a role to play in terms of conflict of interest, which is a subset of ethics. As well, the post-employment regime that is set out in the Conflict of Interest Act is another subset of ethics.

The role she plays vis-à-vis the guidelines for members of Parliament also contains ethical considerations, but her role stops short of enforcing or administering the ethical standards that are set out in accountable government. The Prime Minister certainly has the opportunity to ask for advice from the Conflict of Interest and Ethics Commissioner on any ethical matter the Prime Minister wishes to, but ultimately the commissioner is not placed in a role of displacing the responsibilities of the Prime Minister for the ethical tone of his or her government. Ultimately, it is the Prime Minister who must answer politically to Parliament and to Canadians for the conduct of the ministry and government.

With respect to the question on lobbying, there is certainly a Lobbying Act. There is a Commissioner of Lobbying, who is an agent of Parliament. That act sets out and defines what constitutes lobbying activities. It sets out the--

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

I understand the Lobbying Act. However, I would like to know what your guidelines are and what authority the commissioner has in a case where a minister, a deputy minister or a public office holder meets with individuals whose names are not entered in the registry.

[Joe Wild]

The Lobbying Act is clear in that the burden is placed on those who are engaging in lobbying activities to register. The act provides for investigatory powers by the Commissioner of Lobbying to investigate situations where it comes to light that someone who should have been registered has not registered.

It also provides for a penalty regime that includes fairly substantial fines in the event that someone violates the provisions of the Lobbying Act. But again, the Lobbying Act is very much about putting the burden on those who are engaging in lobbying activities to identify.

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

Public office holders are therefore not accountable if they have repeated meetings with these individuals. In the case of the Prime Minister, for instance, those accompanying him and advising him carry out some checks before such meetings are held.

Do you know whether there are any public office holders who are currently the subject of investigations? Do you have the power to investigate or is that solely within the commissioner's mandate? Does she have this authority?