Evidence of meeting #22 for Access to Information, Privacy and Ethics in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was political.
A recording is available from Parliament.
NDP
The Chair NDP Pat Martin
Good morning, ladies and gentlemen. We'll convene our meeting.
Welcome to the Standing Committee of Access to Information, Privacy and Ethics meeting number 22. We're gathered today for clause-by-clause consideration of Bill C-520, which began its life as a private member's bill sponsored by Mr. Adler.
Welcome, Mr. Adler. I see that you're subbing in to join us today.
Conservative
NDP
The Chair NDP Pat Martin
It's our great pleasure to have you here.
We can begin if people have their papers in order.
The first thing I would say is that we'll stand aside the title and the purpose and deal with them at the end, if that's agreeable. That's the normal practice.
Pursuant to Standing Order 75(1), we commence our consideration of clause 1. The short title is postponed, so the chair moves to call clause 2.
(On clause 2—Definitions)
Everyone has the bill in front of them.
We have an amendment under the name of Mr. Ravignat, NDP-1.
Mr. Ravignat, do you choose to move your amendment?
NDP
Mathieu Ravignat NDP Pontiac, QC
I would, and in order to give a full context for our discussion today, it is clear that there have been many problems with this particular bill. This has been pointed out by experts across Canada and particularly the various commissioners who are targeted by this bill. We've heard from them briefly and, of course, there has been a reaction on the government side that perhaps the bill should be significantly changed.
That's a good sign, but the public should know that certain commissioners contacted you and this committee again, Mr. Chair, by letter, which is kind of unprecedented. It's the second time that commissioners have written to the chair of this committee on this particular bill, and I think it's important to go through what they have to say, for the public record.
The Commissioner of Official Languages wrote the chair on May 8, 2014. That's really not too long ago. He expressed further concerns with the bill. Mr. Fraser wrote that he fully and continues to endorse the views expressed in a letter that was jointly signed by the agents of Parliament, and that he also endorses the messages in the submission from the Information Commissioner of Canada and in the presentations that the committee heard on February 25 from Marc Mayrand, Michael Ferguson, and Madam Dawson.
He continues to say that he's particularly concerned about the bill's apparent conflict with the Public Service Employment Act and the values and ethics codes of the public sector. Some of the amendments that the NDP will be bringing forward today address this very point.
He continues to think that the bill could have an impact on the hiring process, that there are issues of procedural fairness, that he is concerned about the impact from the lack of definition of partisan conduct and the potential impact that an examination of an employee's conduct may have on investigations following an allegation of partisan activity.
He goes on to note more personally that his years as a journalist taught him the importance of not only fairness but also of the appearance of fairness, and that throughout his career, when he covered governments of different political stripes, he had a reputation of treating them all fairly. He wants to make clear that this isn't a partisan attack by him, but that he has a non-partisan view and that he is still fundamentally concerned about what this bill represents.
He goes on to say that he respects the public service and its independence and objectivity. He also recognizes that the public service has a right to engage in political activity, as defined by the Public Service Employment Act, and that we should be careful when considering those political rights.
He goes on to say that many who have worked for a minister or a member of Parliament have subsequently chosen to join the public service and that he's always considered this as a positive move. Some of Canada's most distinguished deputy ministers first came to Ottawa as political aides, for example.
He's concerned that the bill implies that “...partisan experience is something to be ashamed of—a liability rather than an asset.” He's worried that “...the provisions in the bill would discourage talented people who are committed to the ideal of linguistic duality from coming to work for the Office of the Commissioner of Official Languages.” It's a good point. He is obviously concerned that those with the most merit should be working for our public service despite perhaps having partisan political affiliations in the past—always within the standards, of course, imposed by the Public Service Employment Act, which in part 7 defines very, very clearly what public servants are expected to do with regard to political activity and partisanship.
Mr. Fraser goes on to mention the sponsor of the bill and quotes him: “In his appearance before this committee, [Mr.] Adler...said that agents of Parliament “sit in judgment on members of Parliament.”” But Mr. Fraser says that in his case, that is just completely untrue, because the Official Languages Act does not actually cover parliamentarians. He goes on to say that he would say the reverse is true; that members of Parliament sit in judgment of him; and that during that session they questioned him on his qualifications for the job before voting on his appointment. They can summons him to appear, cross-examine him, criticize him, and vote basically the budget that he receives. He says: “I report to you on whether federal institutions have lived up to their responsibilities under the Act.”
He continues to believe that it is his job to ensure that his staff “...interprets the Official Languages Act in an appropriate fashion, neither too broadly nor too narrowly, but, as the Supreme Court has put it, in a generous, purposive fashion.” He says that he is responsible for striking the balance between laxity and zeal and finding the most effective way to achieve these results, and that as an agent of Parliament, he could be called upon at any time to justify the positions that he has taken.
He goes on to say that during the seven and a half years that he has been carrying out this responsibility, partisanship has never been a factor in his work, and that there have been vigorous internal debates over many issues: whether or not a complaint is admissible or recommendations would be most effective, and whether or not he should intervene in a court case, for example. He says he is proud of the dedication that his staff consistently demonstrates to their mandate.
What I find impressive about this, Mr. Speaker, or Mr. Chair, rather—I will get it right this morning—is the heartfelt cry of the commissioner with regard to this bill, expressing himself in such a candid way. For those of you who know Mr. Fraser, it's kind of out of character. It is clear that, to say these things, he is fundamentally worried about this piece of legislation.
He's under probably personal attack by this bill to say this: “I am proud of the dedication that my staff consistently demonstrates to their mandate.” He says that those who work in the Office of the Commissioner of Official Languages do so because they are committed to the principles embodied in the act, and that he witnesses that commitment every day. He says that not once has he felt that these internal debates were affected by partisan considerations. On the contrary, he says, they were honest, candid exchanges of opinion on how the act should be interpreted and applied, how he should meet his responsibilities as a commissioner, and how he could achieve positive results. Ultimately, he says, the final decision on these questions was his, and his alone.
Again, the tone of this letter is amazing, Mr. Chair, for its candidness, its defensiveness with regard to his role. He's defending his record as being an objective agent of Parliament. It goes on to say:
As a small organization, the Office of the Commissioner needs people with a wide variety of experience, whether in regional issues, investigations, policy, corporate services, legal work, communications or parliamentary affairs. Political experience, in my view, is an asset rather than a liability.
If a parliamentarian feels that his decisions have been or appear to have been affected by partisan considerations, then he says he would be happy to appear before the committee or any other to explain the reasoning behind his decisions. He ends if by thanking you, Mr. Chair and the committee. What a remarkable letter it is at this point of the discussion.
It is a cry from the heart, as they say in French. He fears the consequences this bill might have. He had fears before the amendments moved by the Conservatives and by the NDP, and he is still right to have fears.
We unfortunately have only the amendments brought forward here today. That is the nature of the process. He obviously had not received this information before reading his letter. The fact nevertheless remains that it was very important for me to talk about it.
NDP
Mathieu Ravignat NDP Pontiac, QC
All right.
Thanks to the interpreters.
He obviously had not read the amendments before writing his letter. Consequently, we do not know his opinion on the amendments introduced by the government and the NDP. However, it is very important that we begin debate on this bill knowing the commissioners' full opinions. They have come and testified before the committee and have since had occasion to reflect and speak once again to the bill. I commend them for doing that. I believe the public and journalists must know that the commissioners have written to you, Mr. Chair, and that they were very concerned before this meeting to give clause-by-clause consideration to the bill.
This time I am going to cite the opinion of the Commissioner of the Public Service Commission of Canada, who also expresses reservations about the bill. Then we will be up to date. There are deficiencies in the process being used to analyze this bill. We could have heard from many more witnesses, such as various groups in Canadian society that are concerned about this bill. Whatever the case may be, that is where we stand. At least we will know the commissioners' opinions.
Here is what the commissioners of the Public Service Commission wrote in two letters dated February 17 and May 9, 2014. The letter of February 17 reads as follows:
Dear Mr. Martin, We are writing with respect to "Bill C-520—An act supporting non-partisan agents of Parliament", which has been referred to the Standing Committee on Access to Information, Privacy and Ethics for a clause-by-clause review.
In the letter of May 9, 2014, we are told the following:
The Public Service Commission (Commission) wishes to reiterate that it has a keen interest in the proposed legislation and will support any effort to safeguard the merit principle for appointments to and within the public service and the non-partisan nature of the public service.
I believe the majority of Canadians agree that public service appointments should be based on merit. The most qualified Canadians must work for the government. I understand the concern of the Public Service Commission, which is responsible for ensuring that the merit principle is applied within the public service, and the reason why it spoke out first on this fundamental issue.
Several clauses in the bill would jeopardize this basic principle, which probably dates back to Confederation, or even before it. According to that principle, the appointment of a person to the federal public service or to any other level of government should be based on merit. The hiring of an individual at any level of government, but especially in the public service, should be based on merit.
The officials who work on the Hill demonstrate very clearly that this principle is always applied. We are well served. The work that analysts and clerks do is proof that the merit principle is not dead in the public service. I thank them for their work, by the way.
The commission adds that it also wants to protect the impartial nature of the public service. It remains concerned "about the Bill's effect on the merit-based appointment system and the impact of the overlap with the Public Service Employment Act provisions for managing non-partisanship and political activities of public servants, which could have an impact on employees and their rights."
These concerns are cited in a letter accompanied by a document prepared by the commission and sent to our attention, Mr. Chair, on February 17, 2014, as a constructive contribution to the study of this bill.
In the conclusion, the commission says it is prepared to continue discussing with us protection of the merit principle and the political impartiality of the public service.
These two letters express the commissioners' concerns. They did not have enough time to inform us of their views or to express their concerns. They clearly felt compelled to speak to us once again about this bill.
I'm switching to English now, if that may help the interpreters.
Clearly the NDP has brought forward a number of amendments today that are in the spirit of the commissioner's worries, and I think the government has done so as well. I'll remind Canadians that this was done under some heavy pressure, both from the commissioners and the public, and also from the opposition.
This bill was basically about claptrapping, I would say, muzzling the independent agents of Parliament. My mind is open, as are probably all of my colleagues, in making sure that agents of Parliament can do their jobs objectively. We have to say that the record of this government with regard to the independence of agents of Parliament to express themselves has not been good. We can think about Mr. Page as being a prime example of this government's inability to listen to independent voices.
Having said that, I'd like to refer to my first amendment, which would delete lines 11 and 12 on page two of the bill, basically the line that say:
(j) any other position added by the Governor in Council in accordance with section 5
NDP
The Chair NDP Pat Martin
If I could interrupt you, Mr. Ravignat, just for information, to say that there is a relationship, I believe, between NDP-1 and NDP-5. In fact, should NDP-1 carry, NDP-5 would also carry, and the inverse is also true. Should NDP-1—
NDP
The Chair NDP Pat Martin
—be voted down, that would have a consequential effect and defeat NDP-5 as well.
Proceed, you have the floor.
NDP
Mathieu Ravignat NDP Pontiac, QC
Okay, thank you.
There are a lot of amendments; we want to make sure that we're on the right page here.
“Any other position” is just an example of how badly crafted the original bill was, in terms of some of its openness with regard to what could occur under this particular bill. We these lines were superfluous and could be removed. So it's a pretty simple amendment and doesn't seem to be particularly controversial.
As the chair indicated, there is a relationship between two of our amendments, so perhaps I can speak, just briefly, to.... Actually, I don't need to do that. They're pretty self explanatory, so there's no reason why we can't go ahead with other speakers on this amendment.
NDP
The Chair NDP Pat Martin
Thank you, Mr. Ravignat.
We have a list of speakers developed. Charmaine Borg is next.
Are there any other people interested in speaking to this?
NDP
Charmaine Borg NDP Terrebonne—Blainville, QC
Thank you, Mr. Chair.
I would like to add my voice to that of my colleague and to support this proposed amendment. Several agents of Parliament have expressed their concern with this bill. They fear it could lead to a witch hunt in which those agents who are responsible for overseeing members and who have the power to tell parliamentarians that they have broken the rules might be attacked. There would be a witch hunt and attacks would be directed at the people responsible for enforcing the House Standing Orders and regulations respecting elections, official languages and so on.
Lines 11 and 12 on page 2 of the English version would enable the government to add anyone's name to this list of persons who would be subject to the provisions of this bill. This is extremely problematic. Agents of Parliament have previously said they were concerned about this potential witch hunt. These two lines would make it possible to extend the possibility of witch hunts to include other persons as the government wishes. This is extremely problematic.
We could rule out that possibility by deleting these two lines. Despite the fact that we are fundamentally opposed to the principle of this bill, we nevertheless want to improve the fate of our federal public servants. By deleting these two lines, we could rule out the possibility of a future witch hunt and thus avoid the problems associated with the possibility of including anyone in future. We want to ensure that these types of provisions cannot be added to bills. One never knows what that can lead to or the scope it can have.
Perhaps other people would like to speak, but I would like to repeat once again that I support this amendment and to recall that it is necessary.
NDP
The Chair NDP Pat Martin
Thank you, Madam Borg.
Is there any further debate on amendment NDP-1? Seeing none, we'll call the vote, then. All those in favour, please signify in the usual manner.
(Amendment negatived)
The amendment does not succeed. NDP-1 is struck. That will also have the effect of defeating NDP-5.
We have further amendments to clause 2. Amendment NDP-2 calls for Bill C-520, in clause 2, to be amended by adding after line 31 on page 2 the following:
“partisan manner” means conducting one's duties and responsibilities in such a way as to constitute a political activity that would be disallowed under Part 7 of the Public Service Employment Act as impairing or being perceived to impair the ability of an individual to perform his or her duties in a politically impartial manner.
That's in the name of Mr. Ravignat.
Mr. Ravignat, do you have any comments on your amendment?
NDP
Mathieu Ravignat NDP Pontiac, QC
Yes, of course. Thank you, Mr. Chair.
I believe the amendment is clear and specific enough. The fact is that the definition of partisan activity in the Public Service Employment Act is very clear. Every public servant is required to comply with that act.
The amendment would also ensure a kind of standardization of that definition in all circumstances relating to partisanship. I think that is the definition that should be used.
It is well known to the public service and the commissioners. As you know, I just read their opinion and the Public Service Commission has adopted the same position. Basically, any definition of what is partisan should be consistent with the Public Service Employment Act.
If you look a little more closely at that act, unless I am mistaken, the provisions are in part 7. The clause clearly states when persons may take leave without pay in circumstances in which they wish to be politically active, in what circumstances they may be members of a political party and how they may express partisan political opinions.
I suggest that my Conservative and other colleagues look at that part. It is something that should perhaps have been done before this bill was drafted.
I think that what is fundamental is that we make sure we reduce political conflicts of interest across the public service as far as possible. How can we do that without defining what partisan activity is?
If we leave this definition open to the government's judgment, the regulations will be clear for no one. Abuses will inevitably occur in the absence of regulations. We should avoid abuses at all costs. I believe it is up to the government, and perhaps to Mr. Adler as well, to comment on that subject.
I would like to ask Mr. Adler a question since he is here among us. May I do that, Mr. Chair?
NDP
Mathieu Ravignat NDP Pontiac, QC
All right. That is good to know. I did not know that.
So going back to what I was saying, I believe that if Mr. Adler had examined the act at the start, we could probably have avoided a lot of confusion. Some of my Conservative colleagues probably share that view given the changes they have made.
When we consider the amendments, we will see whether the members of the government party support an opposition amendment. If I had to advance arguments as to which amendment is most essential to support, I think it would probably be this one, but I may be somewhat biased since I introduced this amendment myself. The fact remains that, if we do not examine the definition of what is partisan in this bill, I believe the bill will fail in its scope.
I will stop there. I think I have said enough about the importance of defining partisanship and of systematically linking this question, which appears in the bill, to the Public Service Employment Act.
Thank you, Mr. Chair.
NDP
Charmaine Borg NDP Terrebonne—Blainville, QC
Thank you, Mr. Chair.
The bill before us comes directly from the witnesses, even though there were very few of them. We did not have an opportunity to hear testimony from all agents of Parliament. We nevertheless heard from two who expressed their concern over the fact that the expression "partisan manner" was not defined.
I simply want to remind the committee that Michael Ferguson emphasized in his testimony that, since the term "partisan manner" was not defined, an agent of Parliament would have to do it, which could cause problems. Mary Dawson said the same thing. These people said they were concerned about the idea that a definition of the term "partisan manner" is not included in the act. Once again, that could lead to a witch hunt that would be based on a vague and ultimately undefined notion.
I also recall the letter that came from all the agents of Parliament and that was submitted to the committee. It read as follows:
For instance, in the absence of the definition of partisan conduct, it is unclear how this notion would differ from the definition of political activity contained in the Public Service Employment Act (PSEA).
In this amendment, we are asking that the definition correspond to what appears in the Public Service Employment Act. That will therefore be a direct response to the concern expressed by those individuals. I believe that is entirely wise. I also think it is our responsibility, during clause-by-clause consideration of the bill, to consider what the witnesses expressed and to respond to their concerns. That is precisely what the amendment does. I hope that all my colleagues will support this amendment so that we can improve what is basically a bad bill.
