Information & Ethics Committee on May 13th, 2014

[Mathieu Ravignat, NDP, Pontiac, QC]

Yes, thank you, Mr. Chair.

I think this is rather straightforward, ensuring that:

applies or is selected for a position in the office of an agent of Parliament that includes decision-making responsibilities or is a position of influence.

I think it provides greater clarity. A clearer definition would potentially ensure fewer conflicts of interest and allow the bill to be strengthened with regard to certain transparency and accountability issues, so I happily propose this kind of common sense amendment.

[The Chair, NDP, Pat Martin]

Thank you, Mr. Ravignat.

Next on the list, Madame Borg.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Thank you, Mr. Chair.

I wanted to draw the committee's attention to one point.

Several witnesses have expressed their concerns over the fact that this bill would really apply to all employees, regardless of their positions in the line structure and regardless of their responsibilities within a given agency. I want to share what they said. Since I unfortunately received it in English only, I will therefore share it in that language.

The Auditor General wrote this.

The Bill applies to all employees, no matter what duties they carry out. The Committee may wish to consider whether the objectives of the Bill could still be met by restricting its application to those senior managers and employees with authority, influence, and supervision over the work of the Office.

The letter we received from agents of Parliament reads as follows:

Finally, the coverage of this Bill is very broad. It applies to all employees at all levels. The Committee may want to consider whether the Bill should be limited to employees with decision making power or in positions of influence.

In addition, the Conflict of Interest and Ethics Commissioner, Mary Dawson, stated the following:

Finally, the Bill is very broad and applies equally to all employees, regardless of level or whether they are in a position to make or influence decisions.

Consequently, we can see from the letter signed by all agents of Parliament that this is what they all request, that this apply only to persons who are in a position of influence and who really have decision-making responsibilities. They are concerned that this may affect all employees.

I am of the view that this amendment in fact directly addresses the concerns raised by the witnesses who are directly affected by this bill.

I therefore believe it is our duty to consider and adopt it.

Thank you.

[The Chair, NDP, Pat Martin]

Thank you, Madame Borg.

Is there any further debate on NDP-4?

(Amendment negatived)

Are there any further amendments to clause 4?

(Clause 4 as amended agreed to [See Minutes of Proceedings])

We have notice of an amendment by the NDP to clause 5, which has already been dealt with because it was consequential to NDP-1.

Are there any further amendments to clause 5?

(Clause 5 agreed to)

(On clause 6—Declaration of future intent)

Are there any amendments to clause 6?

Madame Borg.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Mr. Chair, I have no amendment to introduce, but may I speak to the clause?

[The Chair, NDP, Pat Martin]

Absolutely.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Clause 6 requires an agent of Parliament to make a written declaration.

[The Chair, NDP, Pat Martin]

You have a point of order?

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

No, forget it.

[The Chair, NDP, Pat Martin]

Every clause is debatable, whether there are amendments to the clause or not.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

That's fine.

[The Chair, NDP, Pat Martin]

Ms. Borg has the floor.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Thank you.

Clause 6 reads as follows:

(1) Every agent of Parliament who intends to occupy a politically partisan position while holding his or her position as an agent of Parliament must make a written declaration of their intention to do so as soon as possible and before starting in the politically partisan position. The declaration must indicate the nature of the position, as well as the period of time during which the agent intends to occupy it. (2) The declarations referred to in subsection (1) must be posted on the website of the office of the agent of Parliament within 30 days after the date of each declaration.

The fact that agents of Parliament would have to make a written declaration is a real concern.

Here I would like to share the comments that Michael Ferguson made because they very clearly explain the reason why we are opposed to this clause.

I apologize, but I only have the English version.

Section 6 of the bill requires an agent of Parliament who intends to occupy a politically partisan position while still holding his or her position as an agent of Parliament to make a written declaration of intent as soon as possible, before occupying the political position. Currently, under section 117 of the Public Service Employment Act, I am not permitted to engage in any political activity other than voting in an election.

This provision is extremely redundant.

The situation described in section 6 could never occur, and I would not like people to get the impression by reading the bill that it could.

I'm equally concerned with clause 6, which I think implies that as an agent of Parliament I could undertake some sort of partisan activity while occupying this position, whereas currently, under section 117 of the Public Service Employment Act, I already cannot do that. That causes some confusion. Overall within the bill there are many of those types of things that would need to be improved for it to achieve its objectives.

For example, section 6 under the current legislation is quite clear that the only thing I can do from a political point of view is to vote. That's the only right I have. Clause 6 seems to imply I can consider some partisan activity even while I'm an agent of Parliament.

I know that we have indeed adopted the Conservatives' amendment, which implies that this does not encourage agents of Parliament to occupy partisan positions or to want to occupy such positions. However, section 117 of the Public Service Employment Act clearly provides that that is not possible for them. I therefore do not understand the intent or necessity of this clause. It is redundant, and it provides for something that does not even correspond to reality.

The Auditor General said in his testimony that he could not occupy a political position. It is good that that is the case because we do not want agents of Parliament to be able to occupy such positions. I do not think they intend to run in the next election or to be president of an electoral district association. Then why propose this provision, which is completely redundant and implies something that does not at all correspond with reality under the Public Service Employment Act?

We are therefore entirely opposed to this clause because it is redundant and illogical.

[The Chair, NDP, Pat Martin]

Is there any further discussion on clause 6?

I see Mr. Ravignat.

[Mathieu Ravignat, NDP, Pontiac, QC]

I agree with my colleague's analysis of clause 6. Even the process of appointing an agent of Parliament partly excludes this possibility. Furthermore, the code of conduct of agents of Parliament and the law governing the political activities of public servants sufficiently cover that possibility. I see only bitterness on the government's part in this clause.

As for Mr. Page and the other individuals who had the audacity to criticize the government, some of my colleagues have said they were subjected to a witch hunt. I would not go so far as to say that, but the fact remains that I do not understand the logic of this amendment since we already have an act that limits the political activities of agents of Parliament.

Why does the government need this kind of provision? Can anyone imagine asking commissioners to come and testify about their political activities before a committee?

We will cross-examine these persons on their political opinions, on whether they have or have not been members of a particular party, whether they will be in the future, whether they intend to be, whether or not their wives will be, and whether or not their kids have actually engaged in any form of partisan activity.

It seems to me what this article is to give a beating stick or a flail to a government. With future governments, we'll have to live with their ability to smear the name of an independent agent of Parliament on a whim, or on an ill-defined partisan definition. I think it doesn't have its place in a democracy, where we have agents of Parliament who actually watch the government and do their job. Also, we're not the only ones saying so. As my colleague, Madame Borg pointed out, the commissioners themselves don't understand why this was put into this bill and what it's supposed to cover.

At one point, Mr. Chair, we have to understand that this has never occurred in the past. There has not been one incident of partisan activity in the various commissioners' offices. So, you solve a problem when there is a problem. You don't create a solution which causes problems.

It seems to me there has to be some form of evidence-based legislation-making, and this is clearly a failure on that account on several levels. So, if it hasn't happened, why are they wanting to drag out the commissioners on their partisan opinions? I don't understand it. The commissioners don't understand it. The Canadian public doesn't understand it.

It's too bad I can't ask questions of the drafter of this bill, because it would be interesting to know what motivated the inclusion of this particular article. But the fact that the government actually wants to keep it in here is really worrying, and it would be interesting to understand why. Why do they feel this is actually necessary? I'm not going to get that answer. It will probably go to a vote, but it would be interesting, indeed, to have it, because I'm sure there are a lot of people asking the same questions that I am.

So, I'll keep it there, Mr. Chair, and I thank you for your diligence.

[The Chair, NDP, Pat Martin]

I should remind the member, thank you, that Mr. Adler, as the sponsor of the bill, was a witness before this committee and testified, gave his rationale, and was available for questions. You are free to put questions to any committee member. They just have no obligation to answer. But that opportunity was when he was a witness before the committee.

Seeing no other speakers on clause 6, shall clause 6 carry?

(Clause 6 negatived)

It must have been a very compelling argument you made. I don't think I've ever seen that happen before, actually.

(On clause 7—Position in the office of an agent of Parliament)

We have notice of four amendments by the NDP to clause 7.

We are on NDP-6, under the name of Madame Borg. Madame Borg, would you like to introduce your amendment and speak to it?

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Thank you, Mr. Chair.

My colleague has raised some concerns about the fact that we would be asking agents of Parliament to change the hiring process.

My amendment aims to restore the situation. I am referring to clause 7. This specific amendment requests that the provisions of this bill be limited to persons who have decision-making power or who have influence. I have previously mentioned my concerns on this matter.

Now I would like to share something that we have not yet had an opportunity to discuss. This is in the letter that we received from the Office of the Information Commissioner of Canada. By the way, they did an excellent job. They divided all the various problems or improvements they wanted to make by individual clause.

The letter reads as follows:Declarations of past political positions raise privacy concerns in that it requires the disclosure of personal information without any nexus or connection between this disclosure and their ability to perform their functions.

In doing this, we would really be asking everyone to make these disclosures public when this is not really necessary in such cases.

I previously outlined my concerns over the excessive scope of the provisions and mentioned that we should limit them, particularly clause 7, solely to individuals who have decision-making power. We have concerns about privacy, but also about the fact that this might undermine the ability of these individuals to make a request in future given that, in any case, they do not have decision-making power. That is the purpose of this amendment.

I do not know whether other people want to speak to this amendment. I would be pleased to hear their comments.

[The Chair, NDP, Pat Martin]

Thank you, Madam Borg.

Are there any further speakers on NDP-6?

Mr. Ravignat.

[Mathieu Ravignat, NDP, Pontiac, QC]

Once again, I think the proposed amendment could significantly improve the bill. I think it is important to be very clear in each of the clauses. The way my colleague moved this amendment significantly clarifies clause 7 as a whole.

I believe we are doing it in good faith. We are moving common sense amendments. These amendments are an attempt to improve a bill that, I would recall, had a lot of deficiencies. They are deficiencies that Ms. Borg's amendments address.

In short, I encourage my colleagues to vote for this amendment.

[The Chair, NDP, Pat Martin]

Thank you, Mr. Ravignat.

Is there any further comment on NDP-6?

(Amendment negatived)

Still on clause 7, we have NDP-7, again in the name of Ms. Borg.

Would you like to introduce it and move your amendment, Ms. Borg?

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Thank you, Mr. Chair.

The purpose of my next amendment is to amend clause 7 of Bill C-520 by replacing line 16 on page 4 of the English version with the following: "possible after being hired, provide the".

Clause 7 provides that, during the hiring process, the person in question must prepare a list of his or her partisan activities, which are not defined. According to some witnesses we heard and the letters I will be reading in part later on, people are concerned about the way this clause is presented in Bill C-520. They think it will undermine the merit-based hiring process. It could undermine the current process already used by the offices of the agents of Parliament.

Once again I am going to refer to the table that the Office of the Information Commissioner of Canada sent us, where it reads as follows concerning clause 7: Asking candidates to disclose past political positions may jeopardize the merit-based appointment process under the PSEA in that it may be perceived that such information will be considered in the appointment process. This goes against s. 30 of the PSEA requiring that appointments be made on the basis of merit and "free from political influence".

As you can see once again, there are subtle differences between what the bill proposes and what is already in the Public Service Employment Act, which establishes a merit-based hiring process.

My amendment is very simple. Its purpose is to have agents provide the list of previously occupied political positions only after hiring, which is entirely legitimate. This would make it possible to determine whether there is a risk that a decision might be considered political. An individual's application could be set aside during the hiring process, because that person previously occupied a political position, in contravention of the Public Service Employment Act, which provides that appointments must be free from all political influence.

I would also like to share what the Public Service Commission of Canada said in its letter dated May 9, 2014:

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.

The commission reiterates that it is very important for it to protect the merit principle. However, clause 7, if not altered by the amendment I am moving today, could vastly undermine the merit-based appointment process.

There is also a letter from the Commissioner of Official Languages, who states appreciably the same thing. It reads as follows:

I am particularly concerned about the Bill's apparent conflict with the Public Service Employment Act and the Values and Ethics Code for the Public Sector, its impact on the hiring process, the issues of procedural fairness, the lack of a definition of partisan conduct...

The commissioner says he is concerned that the provisions will undermine the merit-based hiring process.

This amendment is relatively simple, but it thoroughly addresses several concerns. I could cite several other passages. I have at least three pages of testimony, but I will spare you that because you have heard the same thing as I have.

I know this was a very important part of the testimony, letters and communications that we received from the agents of Parliament, various associations and the Public Service Commission. I do not believe we have a duty to amend the hiring process, nor do I believe that is the member's intent. Perhaps he would like to comment on that point. This is already provided for in another act. I repeat, I believe that this is extremely important and the witnesses have asked us for this.

This is a sensible amendment. I hope we will show some common sense today.

[The Chair, NDP, Pat Martin]

Thank you, Madame Borg.

With further debate on amendment NDP-7, Mr. Ravignat.

[Mathieu Ravignat, NDP, Pontiac, QC]

Obviously I'm going to speak in favour of the amendment for one particular reason: what is the assumption with this article? One is that commissioners can't do their job at hiring their own staff to ensure that they are non-partisan. It's hard to see this as anything else but an insult to the commissioners and their management acumen, their ability to ensure that their own staff is non-partisan. We selected and we'll continue to select these people for a very good reason: because they're professionals. They do an amazing job at what they do. I remind the committee that there has been no case of blatant partisanship on behalf of any of the offices of the commissioners. What are we telling them? Here is this great position of responsibility, and, oh, by the way, you can't do your job. You're not capable of weeding out intensely partisan staff or keeping your staff and your shop professional, objective, and non-partisan.

Also, fundamentally there's no distinction in this between a position of importance like the commissioner and the administrative assistant who has no public profile at all. Are you going to expect the administrative assistant, the public servant, to essentially bare his or her partisan life for the entire hiring process? Hiring should be based on merit, and post-having been hired, that's another matter because then there are fundamental expectations that are in place with regard to the objectivity of your work as a public servant. Those expectations are very clearly made out in the Public Service Employment Act, as I mentioned before.

It's hard to see this as anything else but an attempt to screen non-Conservative public servants in the commissioner's office. Why would you want to know as a hirer what a person's political experience and activities were—let's take the administrative assistant, for example—before hiring that person at a commission if it isn't to screen out potentially critical people of a particular government, of a particular stripe? It arms a government with too much power, and it's useless and redundant because there are already rules in place. It's useless and redundant.

Mr. Adler, as the person who actually drafted this particular clause, what were your intentions? You have been given permission to answer if you would like. I wonder what your intentions were with regard to this particular article.

[The Chair, NDP, Pat Martin]

Mr. Zimmer.

[Bob Zimmer, Conservative, Prince George—Peace River, BC]

On a point of order, Mr. Chair, isn't the member supposed to be asking the questions through the chair? I just want to clarify; he's speaking to the member directly, and I just wonder if that's correct.