Thank you.
I really do appreciate, I think, the heartfelt interventions by all of the permanent members of this committee on this important issue.
I could go on, as you know, about elvers and lobster and all of that. I think that the subamendment has a connection to the Minister of Public Safety.
However, I will conclude the elver part of my discussion about the ministers and move on to a next part. If you will give me a little leeway to read the last email on this, I would appreciate it. Then I would like to discuss a bit about the concept of ministerial accountability, if I could.
In the 17 or 18 days since the closure of the elver fishery, as I said, Stanley King has written to the Minister of Fisheries and to other public security officials as to the enforcement of the law.
I will read you one email from two days ago. He wrote another one today, but I think this one is of particular interest. It fits into the finding fisheries officer question and what's similar to the finding Freeland issue that we're dealing with.
He starts off his email by saying, “Hello, Minister Murray.” This was after about 10 direct daily emails to the minister. “I would like to report continued elver poaching on the rivers we monitor in Nova Scotia. The poaching occurred last night on the Hubbards and Ingram Rivers. Please see the attached photographs.” I won't share them with you folks. “Apologies for the poor quality, because it was raining.” It's not unlike what we have been experiencing here in Ottawa.
“Poaching likely also occurred on additional rivers we monitor, but poachers have recently destroyed some of our cameras on these rivers. But rest assured, we plan to replace them so you can have an accurate idea of how impactful FMO closure has been, as well as your enforcement efforts. This is the sixteenth time I have reported elver poaching from these locations in 17 days, since the fishery was closed. I'm happy to report our security cameras captured a DFO CMP officer finally showing up on the river, something we have been unable to capture in our request for 'finding Freeland'. Unfortunately, it was 2:30 in the afternoon. Why would they be patrolling the rivers during that day for a fishery that happens at night? Maybe we should be looking for “finding Freeland” at night. We're currently looking for her in the day. Surely we see officers at the river during actual fishing hours as well. If not, I can only assume today's patrol was just for appearances, something we're challenged with, with 'finding Freeland'. As you know, East River is home to the longest-running class eel index study in North America.”
That's the science that DFO does. “This study has been run yearly for over two decades and is critically important for monitoring the the health of our stock and sustainability of our fishery. Licence-holders have pleaded with law enforcement repeatedly to protect this river, to no avail. Please consider enforcing the shutdown. The federal strike is now over, so that excuse is no longer valid. We would like to think CMP would start enforcing the closure as well as the RCMP, but since there was no meaningful enforcement before the strike, we highly doubt that this will be the case.” You can sense the frustration. “Without enforcement, the shutdown order has only hurt licensed holders, clearing the rivers for poachers. All the best, Stanley King, Atlantic Elver Fishery.”
His exercise of finding fisheries is very similar to the exercise and the purpose of the various motions and subamendments before this committee today on finding Freeland. Really, this is about ministerial accountability. Ministerial accountability is to Parliament. It's not to the Prime Minister, it's not to the Prime Minister's chief of staff, it's not to their deputy ministers.
I would like to turn to an important article written in the Australian Journal of Public Administration, volume 73, number 4. It's by a fellow named Scott Brenton, the school of social and political sciences, at the University of Melbourne. It's entitled “Ministerial Accountability for Departmental Actions Across the Westminster Parliamentary Democracies”.
For those watching, Canada is a Westminster parliamentary democracy.
The summary of the study says:
This study examines the convention of individual ministerial responsibility for departmental actions in the four key Westminster countries of Australia, Canada, New Zealand and the United Kingdom. The chain of ministerial responsibility traditionally began in the bureaucratic hierarchy of the public sector up to the minister, who is responsible to the parliament, which is responsible to the people. Many New Public Management reforms changed the roles and responsibilities of senior public servants, which arguably weakened the first link in...codes of conduct, guides, manuals, handbooks and legislation, [and] have attempted to codify and clarify politico-bureaucratic relationships.
This is just the summary.
They have generally captured the complexity of executive accountability and better reflect the original convention, while emphasising the preeminent role of the prime minister in upholding individual ministerial responsibility.
That's what we're dealing with here in these motions, whether it's the Minister of Public Safety, the Minister of Finance or, in the case of the two other committees I sit on, the fisheries and oceans committee and the industry committee, the Minister of Fisheries and Oceans and the Minister of Innovation, Science and Industry. This is about their accountability, through members of Parliament, to Parliament and their responsibility.
All we're trying to get is adequate time for this massive omnibus bill of the sponsoring minister to hold her accountable, but the finding Freeland effort is made more challenging by the fact that this committee—except for Mr. Blaikie and the other opposition members—and certainly government members seem oblivious to the need to have the minister here for a fulsome appearance to defend this omnibus bill.
I think it's important for those watching to understand the concept of what Dr. Brenton says about our Westminster ministerial accountability. I can see how riveted everyone is with this presentation, so I will begin:
Many Westminster parliamentary democracies rely heavily on conventions or unwritten parts of the constitution, which are based on precedent. Conventions by their very nature are customary, informal, uncodified, and therefore unenforceable by courts of law. While conventions are not explicitly articulated, they govern important political practices such as the activities of the cabinet and prime minister....
They are not even mentioned in most constitutions, certainly not in the United Kingdom.
He goes on:
Yet this remains largely uncontentious, while other conventions have come under closer scrutiny in recent times. For example, a House of Commons Committee reports that: “there is no agreed democratic approach to the division of responsibility between ministers and public servants, and certainly no universal model even among Westminster-style democracies”....
I assume this is a House of Commons committee in Australia, which is where the author is from. It goes on to say, “This paper considers whether the convention of individual ministerial responsibility still exists, in what form, and whether it is an effective accountability mechanism.”
We're trying to get at this issue of whether the Minister of Finance, through the finding Freeland effort, is aimed at trying to get a handle on whether this Liberal government believes in ministerial accountability.
This paper goes on to say:
Bovens et al.'s (2008) public accountability assessment tool is used to evaluate whether attempts to clarify or codify politico-bureaucratic relationships have adequately addressed perceived accountability deficits in the four key Westminster countries of Australia, Canada, New Zealand and the United Kingdom. The following analytical questions will be addressed: why is there an apparent trend towards codification; how did this trend develop and is it likely to continue; does codification mean the principles are no longer mere conventions; and most importantly, has accountability been improved.
We're searching for that here with the finding Freeland effort.
I'm going to struggle over this next one. Maybe it's my glasses.
In one of the canonical texts in the field, Modern Constitutions, Wheare defines a convention as “a binding rule, a rule of behaviour accepted as obligatory by those concerned in the working of the Constitution”.... Wheare also reconsiders earlier classifications of constitutions in terms of rigidity and flexibility.... While the “procedures” for changing conventions are not rigid like many written constitutions, in practice they are not easy to alter due to the very absence of a tangible and accepted means of immediate change. Rather, they evolve.
Apparently, they're evolving here in this effort to try to find Freeland. This is setting a new Canadian ministerial accountability precedent.
The paper continues:
In a later, yet equally pivotal book Constitutional Conventions, Marshall argues that Wheare’s “emphasis on obligatory behaviour...may obscure the point that the conventions, as a body of constitutional morality, deal not just with obligations or duties but confer rights, powers, and duties”.... It is unclear whether the convention of individual ministerial responsibility imposes obligations in contemporary politics, and if so, whether and which obligations are necessary to ensure accountability.
This goes to the heart of what we're discussing here.
The paper continues:
The doctrine of ministerial responsibility is often interpreted in terms of political responsibilities and parliamentary obligations, rather than in terms of administrative functions....
Bovens et al. (2008) argue that the existing literature on accountability is largely impressionistic based on perceptions of deficits and overloads that are labelled as such without an adequate yardstick. They identify three common normative perspectives—democratic, constitutional and learning—and advocate integration into a multi-criteria assessment tool to determine whether public accountability is working.
That is challenging us here in the finding Freeland effort.
The paper continues:
This study argues that the evidence from the key Westminster countries is mixed; the evolution of the convention, reforms and responses seemingly mirrors the dominance of particular perspectives at particular times, but the pre-eminence of the prime minister in Westminster democracies is not captured by the assessment tool. This confounding variable appears to tie the effectiveness of accountability mechanisms to the “virtue” of the prime minister.
The challenge in this case is that our Prime Minister has been convicted three times of ethics violations. The question of virtue is obviously an issue here in Canada.
The paper continues: “The next section examines the different components of accountability, before briefly summarising the effects of New Public Management (NPM) reforms and accountability. The study focuses on”—we haven't gotten to the details of the study, but it's just setting it up, as all of these wordy academic studies do—“recent attempts to ‘codify’ (capture in a more formal, written form) conventions and considers the adequacy of these measures.”
The first point that the paper looks at is “Conceiving Individual Ministerial Responsibility More as an Accountability ‘Virtue’ Than Just a Mechanism”. On this point, it says, “Accountability is a relationship between an account-holder (or principal) and accountor (agent), where the accountor has an obligation to provide an account to the account holder and is subject to external scrutiny from the account-holder”.
In this case, the account holder would be the House of Commons Standing Committee on Finance and the members of Parliament here.
The study goes on to say:
Within the public administration literature there is a tendency to define accountability as answering for one’s behaviour and to then complicate this definition (Bovens et al. 2014).
It has other elements to it.
Yet it remains unclear who should be answerable, while also focusing on answerability rather than the behaviour itself. The convention under consideration here though is one of ministerial responsibility and not just accountability.... This Westminster tradition incorporates elements of both by being called to account for one’s actions before parliament, while also being responsible for internal aspects of one’s actions....
The unwritten doctrine of the responsibility of ministers to parliament was firmly established in the United Kingdom by the nineteenth century. Albeit imperfect, the chain linking the bureaucratic departmental hierarchy to the minister, who is responsible to an elected parliament, remains a chief accountability mechanism.... Bovens et al....disaggregate this accountability mechanism into three stages: the obligation to inform, explain or justify conduct, performance, outcomes or procedures; the opportunity to interrogate or question the account-giver....
That's what these motions are about: our ability to interrogate the finance minister, the public safety minister and perhaps others at this committee and others, in the effort of finding Freeland. It continues, “and the ability to then pass judgement.” That, after all, is the purpose of the examination of a bill: for parliamentarians to pass judgment on what a minister is proposing.
The paper states:
This is the dominant conception of accountability, which also permeates the political science literature, and focuses on agents in accountability forums, whether ministers in parliament or before committees, or governments before the electorate.
Obviously, this is the ultimate in ministerial and parliamentary accountability:
A common—yet inaccurate—interpretation of individual ministerial responsibility has been that ministers are expected to resign due to administrative failings....
There are a few in this cabinet who have set themselves up—which I believe as a member of His Majesty's loyal opposition—and are not being held enough to account. The Minister of Public Safety, whom we are trying to get before this committee, strikes me as one of those who has made questionable statements, in my mind, in the House of Commons on many issues—from the Emergencies Act to his most recent ones with regard to the intimidation of a member of Parliament and whether or not this government has done enough to protect the independence of members of Parliament from foreign country influence. To repeat, “ministers are expected to resign due to administrative failings”. I think there are a lot of examples with this government. The paper, by the way, doesn't say that latter part. That was my editorializing.
The paper goes on to say, “Yet this has not been the tradition for centuries”. It lists a number of sources and then says, “It is now generally accepted that resignation is only likely or expected when it is very serious and direct ministerial involvement can be clearly shown, popularly known as ‘the smoking gun’”.
Well, we know the Minister of Public Safety and the Prime Minister had security briefs on the interference by China with parliamentarians two years ago and refused to act. In my mind, that—to quote this article—clearly shows, and properly, a “smoking gun”. That is enough to say, I would venture, that not only should the Minister of Public Safety resign, because I don't believe he did his job, but also.... The Prime Minister's chief of staff said before a parliamentary committee that he reads everything, especially national security briefs, and must have read that brief two years ago, yet he didn't act. If not protecting the integrity of our Parliament isn't a reason for a prime minister to resign, I don't know what is.
The paper goes on to say, “Ministerial resignation or dismissal by the prime minister is the ultimate and extreme sanction in Westminster systems, but sacrificing a minister has become increasingly uncommon”. I have to tell you, this was written quite a while ago, but it sounds like it was written about the current government. It goes on:
While the ability to impose remedies or sanctions, along with an element of retributive justice, is part of the accountability relationship, resignation is not the only outcome.... Rather, accounting for one’s own actions or for that of the department can involve informing, explaining, apologising, remedying the situation, or resigning.
It's pretty hard to get to any of those levels when the finding Freeland effort is on and we've had challenges getting that answered. In fact, in the fisheries committee—I know I digress—we have often asked for the Minister of Fisheries to appear for two hours. On one occasion, she agreed to appear for two hours and 15 minutes but then beforehand decided to change it to an hour. Now, that is her prerogative, but it is disrespectful to Parliament and parliamentarians, in my mind.
I'll go back to the paper:
In order to remedy the situation and to respond to a web of accountabilities, ministers often need to remain in their positions.... Furthermore, the proportion of resignations or calls for resignation for departmental failings is much smaller than for an expanding range of other reasons, which have generally increased over the last few decades....
NPM is an acronym referred to earlier in my presentation of this paper. It continues:
NPM reforms accentuated the roles of principals and agents and therefore it can be tempting to analyse accountability in terms of principal-agent theory. However, in this context the limitations soon become apparent with the assumptions that principals are interested in specific results and agents are opportunistic being too simplistic, and the social and political environments in which these actors behave are understated.... This study aims to contribute to the literature emerging from the alternative social contingency model.
I'm sure we've all read that.
While this model is also based on the idea of rational actors, the key difference is that these actors have an expectation that they may have to justify their judgements, actions and decisions to others, and this logic of appropriateness guides behaviour.... This basis in historical institutionalism helps to explain the political stability surrounding many conventions, as political actors respond to various situations with what they consider to be the most appropriate conduct with regard to their position and responsibilities
One assumes that in other Westminister systems, that means they're actually attending parliamentary committees to be held accountable, as we are searching for in this finding Freeland effort.
The article goes on to say:
Further, much of the existing literature is about public accountability, in that it is “open” and “transparent”.... Again while this does capture answerability, the substantive behavioural aspect is often not public nor should be public. For example, public servants should not be publically accountable for the provision of frank and fearless advice to their ministers, but they are still accountable to their ministers. Bovens et al....refer to this “accountability as a virtue”, and is inherently contested and domain-specific. It is similar to the commonly used normative term in American academic and political discourse of “being accountable” and relates to the performance of actors and their “sense of responsibility”....
That's very important to ministerial responsibility. Part of a sense of responsibility is a sense to appear before our parliamentary committee, and that's why we are engaged in these motions to find Freeland.
The article goes on to say:
Prior to the ascendency of NPM, there were slightly different senses of what constituted a breach of the convention. In Australia, the rhetoric was that resignation was required for a major departmental “blunder”.... In practice, ministers resigned if they could not support government policy or if they acted unethically....
We've had ministers convicted in this government of breaching conflict of interest and ethics laws. Apparently that's not enough for resignations here, but it is perhaps in Australia.
The article goes on to say:
...but only rarely if they were responsible for a major departmental error, which had to first be uncovered and involve the minister misleading parliament....
We're talking about the Minister of Public Safety appearing before a committee. It's just a thought that comes to mind when I read that sentence.
It then says, “even then they would be advised to ‘tough it out’. I'm sure there are a lot of “tough it out” conversations between the current government's ministers and the boys and girls in short pants in the Prime Minister's Office. “Canadian ministers typically resigned due to problems with cabinet solidarity”. We saw that with Jody Wilson-Raybould and Jane Philpott. They clearly didn't like being told that they should intervene in a pillar of our democracy, the independence of the judicial system, and they actually had something that many of the Liberal ministers in this government do not have, which is integrity.
It goes on to say, after “due to problems with cabinet solidarity”, “and rarely for unethical conduct”. It's in this paper—“rarely”. Rarely do Canadian ministers, for some reason, resign over unethical conduct. As a new member of Parliament, I find that quite interesting, because in my private sector life, unethical conduct would have put you out the door pretty quickly. It says, “rarely for unethical conduct, personal private misconduct or personal political mismanagement”.
The paper then reports:
In only two of the 151 ministerial resignations from 1867—
That's our year of Confederation.
—to 1990 did a minister accept responsibility for departmental maladministration in resigning. In New Zealand, the Cave Creek tragedy of 1995 is commonly cited as a turning point, emphasising the shift from the traditional convention to a post-NPM separation of the minister and the agency. In the United Kingdom, there were three main grounds for possible resignation: inability to support cabinet solidarity;—
We see that, actually, quite often in Britain today.
—personal errors,—
We've seen that as well recently in Britain.
—particularly private indiscretions but also where the minister acted without the support of their department; and policy errors where the minister misled or misinformed the parliament....
Wow. That's still a concept in Great Britain. Isn't that interesting. I'm editorializing again. I apologize to committee members. I'll just note that again. One of the reasons that ministers resign in the United Kingdom, which is often referred to as the mother of all Parliaments because that's where the first Parliament started in a farmer's field.... That's why the colour of the House of Commons is green. They set the trends and the rules for all parliamentary systems, the Westminster systems, which Canada has.
I'll read that last bit again: “policy errors where the minister misled or misinformed the parliament”. Maybe that should be brought up more directly in Parliament. Perhaps it should be mandatory reading for new ministers when they are sworn in to the Privy Council here in Canada.
The next section of this important paper is titled “NPM: Clarifying or Complicating the Convention?” It says:
While NPM directly recast the roles and responsibilities of senior public servants, ministerial responsibility has also been affected. Four broad reforms have characterised NPM: marketisation; managerial autonomy to increase responsiveness to clients and communities; a results-focus and performance measures; and a disaggregation of multipurpose departments into smaller, more focused agencies.... Rhodes et al....argue that NPM increased the delegation of direct accountability to senior executives, with ministers transferring responsibility and expecting problems to be fixed regardless of whether the cause is a problem of policy or maladministration.
The original New Zealand “model” of the late 1980s was based on principal-agent theory, and included performance contracts between ministers and agency heads to clarify the formal-legal separation of responsibilities and to detail objectives....
That's quite an interesting concept, actually.
Ministers were “principals” while executive agencies and non-government or private service providers delivered and implemented policy. Ministers purchased particular “outputs”...from agencies in order to achieve chosen outcomes. The agencies were then fully responsible for specified outputs....
Outputs are a thing. Outputs are something that this government seems to not understand. It understands a lot of inputs. This budget and the budget framework have $3.1 trillion in spending in the next five years. This government seems to measure success by spending record amounts of money, not by what that money actually produces in results. However, I digress.
Ministers purchased particular “outputs”...from agencies in order to achieve chosen outcomes. The agencies were then fully responsible for specified outputs and thus the chief executive could be held accountable, while the minister retained the more complicated accountability for social impact or outcomes....
Similarly, the 'Next Steps' programme in the United Kingdom during the same period—
Remember, that was the 1980s.
—saw the proliferation of specialised executive agencies with delegated government functions. Hood and Lodge...describe the creation of executive agencies as a “special type of public service bargain”, with agency heads receiving managerial pay, perks and some autonomy in exchange for relinquishing anonymity and permanence.
As an aside, understand that this budget implementation act creates new agencies, particularly in the area of industry and the area of global investment funding. They have these grand titles. There's $15 billion, I think, in that.