Finance Committee on May 11th, 2017

[Allen Sutherland]

No, I don't think I can add much to that. As always, PCO tried to do its best work.

[The Chair, Liberal, Wayne Easter]

Mr. Aboultaif.

Oh, sorry, go ahead, Mr. Fergus.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Sorry, I have a supplemental question.

All right. That was a fair point. It wasn't really a question to try to trap the witnesses.

Given this experience and that it's unusual for the House leader to indicate an openness to amendments on a budget implementation act, do you feel that, institutionally, the Privy Council Office, as a central agency, will make greater efforts in the future when drafting legislation that would eventually work its way for recommendation by the Prime Minister or the finance minister to take greater care not only to respect the political wishes of the government, but also to make sure they're doing even more due diligence than they already do, in having informal or formal consultations before the legislation is proposed?

[Allen Sutherland]

That is another very interesting question, Mr. Chair.

I would just say that, as always, we try to learn from every experience we've had, and we're learning from this one.

[The Chair, Liberal, Wayne Easter]

Thank you.

Mr. Aboultaif.

[Ziad Aboultaif, Conservative, Edmonton Manning, AB]

Thank you, again.

I feel it's bit unfair asking you guys to answer all of these questions when you had nothing to do with putting this in Bill C-44 to begin with. You were not consulted; it came from the Prime Minister's Office, maybe from the Minister of Finance. Wherever it came from, it is disappointing.

I'm a big fan of the PBO. I believe this is a breath of fresh air. We can go to a body that is independent, that can give the information we need in order to assist us, as parliamentarians, to be effective in everything we do. At the end of the day, we all want to serve Canada in a different and good way.

The technical question is about the changes in section 79.4. Why would the access to information provisions not allow the PBO to compel institutions and departments to provide requested information? We know that the only effective way for us, as parliamentarians, to get that information is for the PBO to have that ability to talk to different departments and to be able to enforce their way to pull some information for doing the job properly.

To your knowledge, why do you believe this change to section 79.4 was proposed?

[Allen Sutherland]

Section 79.4 includes a very significant expansion in the PBO's access to information. There are some important changes from the status quo. One of the important changes is that currently what PBO has access to is economic and fiscal data. That's what the legislation says. Now it says they have free and timely access to any information under the control of the department, and it's expanded to parent crown corporations as required for the performance of his or her mandate.

That's a significant expansion. We've seen in the past that the PBO has sometimes felt that they didn't have access to information they desired. This represents a significant expansion both in the coverage to include crown corporations and the type of information that's available.

With the PBO, as parliamentary budget officer, as an officer of Parliament, the best recourse for them is Parliament. If this committee asks for some work to be done, some economic analysis, and PBO seeks some work from departments and feels they're not getting it, the best recourse is to come back to this committee and for you guys to put pressure on departments.

In addition, this is the law. If it passes, this is the law, so it will be a requirement on departments' part to provide the information, and so there will be an expansion of access to information. It is subject to some reasonable constraints, appropriate constraints, given the larger amount of information that will now be available.

[Ziad Aboultaif, Conservative, Edmonton Manning, AB]

Why do we have to go through another layer of bureaucracy before we get information? We are, as a committee, parliamentarians, and we need to be able to ask the body that sits there to provide us with information. So I'm not convinced whatsoever that this is the reason, to be honest with you, because really that doesn't give us.... There are no details in there giving us any power to request information that is vital to what we do, and taking it away from the PBO is like taking a very important element from PBO that enables them to do their job properly.

[Allen Sutherland]

Mr. Chair, if this is put into legislation, it is a requirement for deputies and departments to follow the law, so they will need to provide this information.

[Ziad Aboultaif, Conservative, Edmonton Manning, AB]

If you're going through the proposed legislation, or proposed law, if you wish, won't that really delay the process? Won't that really thicken the time frame here to get information? Could that be another way to delay the whole process?

[Allen Sutherland]

The intent of the legislation is to give the PBO much wider information access so that that problem doesn't occur.

[Don Booth]

Part of the previous concern was that by saying that PBO only had access to economic and fiscal data, there were definitions. People would argue over the definition of what exactly was data and what wasn't data.

In this case, the legislation is proposing to expand the two, so any relevant information under the control of the department, with the exception of a few reasonable limitations around information, privacy, and cabinet confidences.... In terms of the scope of what the PBO can request, it's greatly expanded.

[The Chair, Liberal, Wayne Easter]

Mr. Dusseault.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Thank you, Mr. Chair.

I want to follow up on that, because I am not convinced that this is enough.

You're saying that if proposed section 79.4 is passed, it will become law, and departments will be forced to provide the information. It's as if we were including an offence in the Criminal Code, and the citizens of Canada weren't allowed to commit it, but there would be no penalty for the offence. I think that's a problem. There would be legislation that would clarify that obligation, but there would be no recourse if the departments decided to stonewall.

Take the Canada Revenue Agency, for example. A senator had asked for the tax gap to be calculated. It is a fairly complex process, which requires a lot of information from the Canada Revenue Agency. The Parliamentary Budget Officer has repeatedly been denied the cooperation of the Canada Revenue Agency. He was forced to tell the honourable senator that he could not respond to his request because he had not obtained CRA's cooperation. Things stopped there; the Parliamentary Budget Officer has no other recourse. He was forced to accept the fact that a department or agency was deciding not to cooperate. The fact that the department is forced to do so under the legislation doesn't change anything.

In that context, would you be open to the idea of a mechanism that would allow the Parliamentary Budget Officer to legally require departments to cooperate, a mechanism that would impose penalties if they refused and would block access to information?

[Allen Sutherland]

It's not for me to allow or not allow, Mr. Chair.

On the issue of the recourse the PBO has, if they are not getting the information they feel they are entitled to, the first recourse should be Parliament. As an officer of Parliament, the recourse should be to Parliament.

Beyond that, if the PBO feels that the department is acting illegally, they can take them to court. There is nothing preventing that.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

The PBO could therefore bring a lawsuit against a department that would stonewall. Since I'm not a lawyer, I don't know how he would go about it, legally.

[Don Booth]

That's our understanding. As an independent body, the PBO has access to common law recourse and principles if there is a perception of an overt act of criminality—if there is an overt breaking of the law.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Okay. It is worth noting.

[Allen Sutherland]

It is put in the legislation to expand information access. The way it should work is that people follow the legislation—departments, the PBO—and information flows, and there is no issue. That should happen 99% of the time.

In areas where there is a dispute, there should be an attempt to work it out. If it can't be worked out, the PBO does have significant recourse through Parliament, and that's the best place for it to go, not through the courts. You want your PBO focused on economics; you don't want him focused on legal procedures.

That would be my advice.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

The recourse in Parliament would be contempt of Parliament by a department.

[Allen Sutherland]

It could take lots of forms. It could take this committee's stating their wish for the information directly; it could be an MP; it could be speaking with the minister, whose department it is. It could take lots of forms, far short of contempt of Parliament.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

I don't want to take all the committee's time.

However, I have a big problem with part of proposed section 79.2 on costing requests from parliamentarians. I will read it. Under proposed paragraph 79.2(1)(f), the PBO shall prepare a costing of policy proposal at the request of an individual parliamentarian. If the section would stop there it would be perfect, but then you add that parliamentarians may request costing for any proposal they are considering making before Parliament and its committee, under proposed subsection 79.2(3).

That's the main problem for me.

I'll continue in French so I can explain properly.

Right now, a parliamentarian can ask for a cost estimate for any policy. Now, under the new clauses, the request for a cost estimate must be linked to a proposal that is intended to be presented to Parliament. In the explanations, it says that it can be a private member's bill, an amendment or a government bill. I assume that applies to a motion, too.

Why have you limited the requests of parliamentarians by now accepting only those related to proposals that they are considering tabling in Parliament? Why didn't you maintain the broader provision that allowed parliamentarians to ask for a cost estimate for any policy?

[Allen Sutherland]

Mr. Dusseault's interpretation is correct. That's in fact what the bill says. His recourse, though, isn't limited as an MP. You could make a broader request in committee, let's say, on something unrelated to a PMB. So you could work through committee. The other approach is that you could have it embedded in the annual work plan.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

I would need them, though, if I wanted to submit something from committee. I'm the only one at this table.

[Allen Sutherland]

That's correct.