Evidence of meeting #72 for Government Operations and Estimates in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was commissioner.
A recording is available from Parliament.
Conservative
Auditor General of Canada, Office of the Auditor General of Canada
Really I don't, because all we do is what we're asked to do under the act. We've identified some limitations to what we are able to do, but confidentiality isn't something we've really considered from one angle or the other. It's just part of what exists.
Conservative
The Chair Conservative Tom Lukiwski
Thank you very much.
Gentlemen, thank you so much for being here. Your testimony has been extremely helpful and in some cases instructive.
I would also ask you, if you have any additional information to share with the committee that you think might help us in our deliberations, to please do so. You can contact our clerk.
Mr. Chamberlain, particularly I want to thank you for your recommendations. I should let you know, sir, that the one example and some other examples that you have given the committee concern me greatly, because the chair has received many responses from people we've attempted to get here as witnesses who have refused because they still feel that they would be subject to reprisal. It seems that the act designed to ostensibly protect whistle-blowers many times has the opposite effect: it punishes them.
That is of great concern to me. I would certainly appreciate any suggestions you have that can assist us when we're doing a thorough review of this act.
Thank you once again, all of you.
We will suspend for just a couple of minutes while we wait for our next panellists to approach the table.
Conservative
The Chair Conservative Tom Lukiwski
Colleagues, I'm going to have you return to your seats.
Thank you very much.
I want to welcome all of the witnesses who are with us again today. The meeting will probably end up being slightly truncated because we're about five minutes behind.
I would ask those of you who will be making opening statements to try to keep them as brief as possible to allow adequate questioning from our committee members. It's been our experience that even if you don't get to something in your opening statement, it usually comes out in the Q and As. That's where we find most of the information that's beneficial to us.
Our first panellist, representing The Professional Institute of the Public Service of Canada, is Ms. Daviau. I believe you have an opening statement.
Debi Daviau President, Professional Institute of the Public Service of Canada
I do. Thank you very much.
Members of the committee, thank you for inviting PIPSC for your review of the Public Servants Disclosure Protection Act. I feel like I've been involved in whistle-blowing legislation in one form or another since I was a baby steward and the institute's general counsel was a new employment relations officer at the institute, so we've been in this for a long time.
This is Isabelle Roy, who is general counsel for the Professional Institute of the Public Service of Canada. She will help to answer some of your questions today as well.
Canadians rely on public services every day to make their lives safer, healthier, and more prosperous. Our members are the ones who provide those services.
PIPSC is Canada's largest union of professionals, working predominantly for the federal government. We're proud of our service to Canadians and we're committed to their well-being. Whistle-blowing fits that commitment. It is ultimately a testament to the integrity of public service professionals.
Let me reiterate that whistle-blowing is a service to the public. It only happens in the rarest of circumstances, when public service professionals have tried every other avenue for resolving a significant concern, only to have their concerns dismissed by higher-level authorities.
When public service professionals take the action of blowing the whistle on a wrongdoing, they are doing us all a service, and they're doing so in keeping with their deep commitment to protecting and promoting the public good. Sadly, whistle-blowing has also meant sacrificing your career for the sake of public interest, and it shouldn't be that way.
Think about PIPSC members such as Dr. Shiv Chopra, Dr. Margaret Haydon, and Dr. Gérard Lambert, who blew the whistle over concerns about the veterinary drug approval process within Health Canada. They knew the drugs given to cattle could have made each and every one of us sick. Think about it. Every time you drink milk, eat cheese, or enjoy a steak, you should be thanking these public service professionals, who put their careers on the line to save you from potential illness.
What did they get? They got 15 years in litigation, and their cases have yet to be completely resolved.
The work of this committee is to ensure that whistle-blowing is recognized and appreciated as a service, not punished as a betrayal. It's your work to ensure that we favour whistle-blowing, not put up insurmountable barriers in the way of whistle-blowers. That was the promise of the Public Servants Disclosure Protection Act, but sadly, it's failed to live up to that promise. Let's fix that.
Before I propose three specific ideas from PIPSC, I want to affirm our support for one recommendation that you've heard from almost every witness before this committee, and that's to reverse the onus of reprisal in law. Fear of reprisal remains one of the main obstacles to whistle-blowing, and the current law fails to address that concern.
Reprisal against whistle-blowers who disclose wrongdoing is often difficult to prove. As a result, it's rare that one could find a smoking gun that would assist in proving that the reprisals have taken place. The simple solution to this problem is to require a reverse onus, which means that an allegation of reprisal is assumed to be true unless the employer can rebut it.
In addition, we recommend to the committee to take the following three steps.
The first is to fix the investigation process under the Public Sector Integrity Commissioner. Our experience in representing members demonstrates that the commissioner's investigation processes are often unfair, lacking in thoroughness, and insensitive to whistle-blowers.
Think about the case of our member El-Helou. Two years after filing a reprisal complaint, the commissioner came back with a decision to dismiss two of the three allegations, but the Federal Court set aside the commissioner's decision on the basis of failure to investigate crucial evidence, and also a failure to make the parties aware of the substance of the evidence the commissioner had gathered.
Following the Federal Court decision, the commissioner decided to re-investigate the allegation it had already determined had merit to go to the tribunal. Now, four years after the initial complaints were filed, the commissioner came back to say that none of the allegations warranted referral to the tribunal. What kind of message does this send to public service professionals who see wrongdoing and want to blow the whistle on it?
In our experience, the deficiencies in the Public Sector Integrity Commissioner's process require unnecessary litigation and result in unacceptable delays. They have to be fixed.
Our second recommendation is to eliminate the Public Sector Integrity Commissioner's gatekeeper role and replace it with a direct access system. The commissioner performs a gatekeeper role in respect of reprisal complaints. This role means that only the commissioner can decide which complaints are referred to the tribunal. This gatekeeper role places enormous discretion in the commissioner as to how reprisal complaints are dealt with.
As a result, very few reprisal complaints have been referred to the tribunal. The committee should eliminate the gatekeeper role and replace it with a direct access system that would allow reprisal victims to go directly to the tribunal to get relief.
Our third recommendation is to close the outsourcing accountability loophole. As you may know, PIPSC is a leading voice in fighting against the government's overreliance on outsourcing. Our research has shown that outsourcing is costing the federal government money, jobs, morale, accountability, and productivity.
Federal overreliance on outsourcing is creating a shadow public service to which the rules, regulations, and guidelines for accountability simply do not apply, and that's true for the act you're studying. The shadow public service is a massive loophole when it comes to the the Public Servants Disclosure Protection Act.
First, the act has no jurisdiction over private companies that receive government contracts. If the whistle is blown on a wrongdoing and an investigation leads the commissioner outside the public service, the investigator's hands are tied.
Second, contract workers have absolutely no protection under the act. If a contract worker decides to blow the whistle on a wrongdoing committed by their company or the government authorities who awarded that contract, they have no recourse under this legislation. Worse still, these contractors do not even have the protection and the resources of a union like PIPSC to help them navigate life as a whistle-blower.
One has to wonder if the whistle would have been blown on Phoenix or the email transformation initiative before their implementation. If the right protections had existed in law, would these things have played out the way they have?
The government has to end its overreliance on outsourcing. I recommend that you study the issue of outsourcing in full, but in the context of your current study of whistle-blowing, I urge you to pay close attention to the accountability loophole created by outsourcing. It's a loophole that must be closed.
Finally, I want to point out that the important work of this committee in reviewing the Public Servants Disclosure Protection Act should be augmented with another accountability measure that is sorely lacking.
Years ago, the Gomery commission called for a code of conduct for ministers and their political staff to ensure political staff don't meddle in the work of professional public servants. As you know, one of the larger groups represented by PIPSC is the federal scientists, who over the past decade have felt the chill of government muzzling. I'm proud to say that our scientists work hard to enshrine the right to speak into their collective agreements, and now they're working with their U.S. counterparts as they fight to protect their scientific integrity against the Trump administration.
The same threat of muzzling and political meddling still exists for all other public service professionals. It's not only disrespectful and demoralizing to have ministers and their political staff undermine the professional work of public service experts; it's also an immense waste of public knowledge and expertise. Let's bring in a code of conduct that ensures muzzling and meddling in the work of public service professionals never happens again.
Thank you.
Conservative
Larry Rousseau Executive Vice-President, National Capital Region, Public Service Alliance of Canada
Merci, monsieur le président.
Good morning, and thank you for inviting PSAC to talk with you about the PSDPA.
With me is Patricia Harewood. She is the legal officer with the collective bargaining branch at PSAC.
The act should provide guidance, support, and protection for public sector workers who wish to speak out against wrongdoing. It's been failing them from the start.
It's undisputed that workers are reluctant to come forward. When they do, they often experience great sacrifice in their personal and work lives. It sends a powerful message to others to remain silent. Perceived freedom to speak up without fear of reprisal is described as a basic need in the Canadian Standards Association's 2016 publication on whistle-blowing systems and best practices. CSA concluded:
There is a strong relationship between the creation of a psychologically safe and healthy workplace and the creation of a whistleblowing system...given that both involve establishing and reinforcing a culture that gives employees “voice”, as well as confidence that concerns will be handled in a just manner.
Overall, a speak-up culture is not being applied in Canada, nor is there an independent process or effective protections for whistle-blowers.
The act has been extensively criticized for setting too many conditions on whistle-blowers and for protecting wrongdoers. It reins in whistle-blowers by restricting them to making disclosures to internal mechanisms; they can only disclose a wrongdoing directly to the Public Sector Integrity Commissioner, PSIC, in limited circumstances. A disclosure to the commissioner can be made if the individual has reasonable grounds to believe that it would not be appropriate to disclose internally. That effectively shuts many cases down.
The act also does not ensure the right to disclose all illegality and misconduct. The definition of “wrongdoing” selectively omits large areas, such as Treasury Board policies, breaches of which spawned the Gomery inquiry. Public disclosures are only permitted when there is not sufficient time to make a protected disclosure and when there are reasonable grounds to believe that the issue constitutes a serious offence under legislation. If public servants go to the media with a disclosure of wrongdoing that doesn't meet one of these exceptional requirements and they suffer reprisals as a result, the commissioner cannot accept their complaint of reprisal because technically they never made a disclosure under the act.
In addition, the commissioner can refuse to deal with any disclosure if the commissioner believes that the whistle-blower is not acting in good faith, or it is not in the public interest, or for any other valid reason. Between the year 2007, when the commissioner's office was established, and 2015, the office received 623 disclosures of wrongdoing; the commission's own statistics show that only 10, or 1.6%, were considered as founded under the act. The office also received 207 complaints of reprisals. Only 10, or less than 5%, were referred to a tribunal.
These low rates can be explained in part by shortcomings in the act. They also suggest that the Integrity Commissioner's office has not proven itself as trusted and independent. These failures matter because they help foster an unhealthy and ineffective culture of silence in the public service.
The act also has other significant failings. It does not redress all forms of harassment, particularly passive retaliation. Instead, it takes a narrow and short-term view of what may constitute harassment. In reality, whistle-blowers are typically harassed over long periods by every method imaginable. The 60-day time limit to complain about a reprisal is totally unrealistic, because those who file complaints are often experiencing significant stress as a result of the harassment.
Legal assistance provided to whistle-blowers is completely inadequate, with a limit set at $1,500, or $3,000 in exceptional circumstances. That doesn't even get you a deposit for a lawyer. One former commissioner did not approve any whistle-blower funds for legal assistance. This effectively helped protect alleged wrongdoers who would be represented by a government legal team.
If reprisal complaints are referred, the disclosure tribunal has no authority to award costs to complainants. These are often long-drawn-out cases that can last for years. For example, the recent Sylvie Therrien case started in 2013; it's still ongoing. The investigation of reprisal complaints by the Integrity Commissioner must be fair and transparent. The Therrien case shows that the commission has been plagued with issues in investigations that lack basic procedural fairness.
If there is a claim of reprisal, the onus should be on the respondent to prove that their actions against the whistle-blower do not constitute reprisal. This was a recommendation of the Gomery inquiry in 2006, but was never implemented. However, article 31 of Quebec's new whistle-blowing legislation includes such a reverse onus.
The disclosure act carefully blocks all possible avenues to access any details of the commissioner's investigation, putting them beyond the reach of access to information laws not just for a few years, but forever. In addition, tribunal hearings may be conducted in secret and need not be filed at the Federal Court. When whistle-blower cases are settled by the Canadian government, there is a draconian gag order attached that prevents whistle-blowers from ever even discussing the wrongdoing.
There are critical exclusions from the disclosure act. Security agencies are excluded from the act, and employees cannot approach the commission to report wrongdoing or seek protection from reprisal.
The law does not address private sector misconduct at all, and private sector information cannot be used. Therefore, government misconduct involving the private sector cannot be investigated. Public-private partnerships are on the increase, and as contractors perform an increasing proportion of the government's work, this is a gaping omission in the law. The recent Phoenix fiasco is sufficient evidence that the act must be extended to cover potential misconduct when the private sector and government are involved.
Adequate corrective measures are also missing from the act. An important purpose of whistle-blower legislation is to investigate and correct wrongdoing. While the act gives the commissioner power to investigate individual disclosures, it does not provide the tools necessary to finish the job properly. Overall, the act does not ensure corrective action to end wrongdoing. The commissioner has no power to order corrective action, sanction the wrongdoers, initiate criminal proceedings, or apply for injunctions to halt ongoing misconduct. The commissioner can only report the found wrongdoing to the departmental head and then to Parliament and hope that something happens as a result. When it comes to reprisals, the commissioner can apply to a tribunal, which will determine whether or not reprisals occurred. However, the tribunal has limited remedies to offer complainants. How can wrongdoing be deterred or honest employees protected when there is no reliable mechanism to sanction proven wrongdoers or those who engage in reprisals?
In summary, here are our key concerns about the act.
The investigative process must be fair and much more transparent. The onus should be on the respondent in complaints of reprisals. The 60-day time limit to report retaliation is much too short. The legal assistance available to whistle-blowers is insufficient. Details of the commission's investigations are blocked forever from access to information requests. The provisions for sanctions and corrective action are inadequate. Information about misconduct involving the private sector cannot be used, and former public service workers are untouchable in the sense that when they leave the public service, the commissioner cannot investigate allegations of their misconduct.
In short, significant changes must be made to the act if it is to actually protect public sector workers.
I'd like to thank you for your time today. Ms. Harewood and I are ready to answer any questions you may have.
Merci.
Conservative
The Chair Conservative Tom Lukiwski
Thank you very much.
Finally, we have someone who has had not only direct but personal experience with the issue before us.
Go ahead, Mr. Korosec.
Stan Korosec As an Individual
And it's about time, I think, Mr. Chairman.
I've listened to colleagues here and I've read some of the testimony on the website from other things. You have someone here who's been a whistle-blower and was subject to reprisal, and, in my case and my two other colleagues' cases, termination.
Thank you, Mr. Chair, and members of the committee for inviting me today. When I was asked to participate in this, I was excited to do it, but it dug up a lot of bad memories too.
I will start by saying that if a public servant approached me today and asked me, “Should I blow the whistle, Stan, based on your experience?”, I would tell them, “If you can afford to be out of work for maybe up to a year and a half with no benefits, go through a lot of stress on co-workers and family, then go ahead and do it, but otherwise don't.”
I want to address certain sections of the act, how it affected my experience, how it affected my colleagues' experience too, and how maybe we could make things better.
With regard to a bit about me, I graduated from the University of Windsor with a business degree. I worked as an immigration officer at the Blue Water Bridge for two years, and for the next 18 years I was a proud member of the Ontario Provincial Police. In 2003, Blue Water Bridge Canada, a small crown corporation, approached me and hired me as their vice-president of operations, where I remained until my termination in March 2013.
In February 2012, I was a witness in a protected disclosure involving the CEO of the crown corporation. The investigation resulted in findings of wrongdoing by the CEO, who retired effective March 15, 2013. I and two others who participated in the disclosure were terminated two business days later, as they deemed our positions redundant. In effect, four days after the CEO resigned after being found guilty of wrongdoing, the board dismissed the next two senior officers at the crown corporation—the vice-president and the CFO—and one other manager. The following day, we filed a reprisal complaint.
Now before I go further, we didn't do this haphazardly. It festered for a long time. We went on the website and read the whole thing about how we're protected and how we shouldn't worry about it, that it will be dealt in an informal, expeditious manner, and that reinstatement was a possible remedy.
I'd like to address a couple of sections of the act here and tell you how it really went. Sections 19.4 and 19.5 gave the commissioner 15 days to decide whether or not to deal with the complaint when we filed our reprisal. As has been mentioned before, when the commissioner decides to refer it for an investigation, there is immediate protection to what I call “the reprisers”—I've called them other things—but it provides nothing for the whistle-blower. There is no protection at all. They're protected against any disciplinary action, while we're out of pay and have no benefits while the reprisers carry on as usual.
I know there has been talk about reverse onus. I strongly agree with that. It seems that it's very weighted to the other side, and not to ours. I felt as if I was guilty until proven innocent. They get the benefit of the doubt, and we don't.
I recommend that once the commissioner decides to investigate, the complainant—especially if the reprisal is a termination—should be reinstated, reassigned, or put on leave with full pay and benefits until the end of the investigation, especially in a small crown corporation. We were about 50 or 60 people, so reassignment was not really possible there, as opposed to being in Ottawa, where you have a large organization. That's one recommendation that I have.
Subsection 21(1) states that the proceedings before the tribunal are to be conducted “as informally and expeditiously” as possible. Regarding the informal part, as I told you before, I was a police officer for 18 years and I was used to testifying in a court-like setting. Well, the logistics for this tribunal that we went through.... It was held in a small hotel room that was very crowded. There were about two or three lawyers on the reprisers side, and we had the commission lawyers and our own lawyer. It was very intimidating, even for me a bit, but imagine somebody who's never been to court before, never been under that stress. They have to get up there in the stand; there's a justice there, and then they're getting hammered with cross-examination.
It's very intimidating for those people, and it's by no means informal. I think that has to change, or at least be taken into consideration, when the case goes to a tribunal.
Subsection 21.7(1) is about the remedies. At the beginning of our tribunal hearing, I recall that there was some discussion about the remedies listed. On the other side there are paragraphs (a) to (f), identifying different remedies, such as reinstatement, this or that, but they were arguing that it could be just one of those things, not cumulative. It could be this, or this. It was and/or. Therefore, I'm suggesting that in that subsection, and/or” be written in between each paragraph, so that argument is out of the way for the justice in the case when looking at remedies. It can be this, plus this, plus this.
Paragraph (f) talks about $10,000 for pain and suffering. Sorry, but that is woefully inadequate, especially when it comes to a reprisal where there's termination. Reprisals, as you know, can constitute anything from a smaller thing to the worst, and that's from zero dollars to a $10,000 range. Absolutely, that doesn't compensate someone for the pain and suffering of going through this whole process.
I'll leave it up to you to fix an amount, but $10,000 is way too small.
Subsection 20.4(1) reads, “If, after receipt of the report, the Commissioner is of the opinion that an application...is warranted...[he] may apply to the Tribunal” to determine “whether or not a reprisal was taken...and, if the Tribunal determines that a reprisal was taken...” they can make “(a) an order respecting a remedy in favour of the complainant; or (b) an order respecting a remedy in favour of the complainant and... disciplinary action against” the reprisers.
I don't understand why paragraph (a) is even in there. After a little research, my understanding is that most of the time paragraph (a) has been applied, which means there's no penalty for the reprisers, since that can't be considered. A reprisal is a reprisal is a reprisal. If you did it and it was found in the court, then there should be a penalties section applied, not the “or” in here, so that it's either you get the remedy or you get the remedy and there's discipline.
It doesn't make any sense. It's like having a section of the Criminal Code for theft with the option of no penalty. There has got to be some penalty there, some deterrent. If you want more people to go through this process, there has got to be something. It seems like it's slanted to the other side, and you know what I mean by the other side.
There was talk about legal fees. Personally, mine were $30,000, so there has to be more compensation for legal fees.
Lastly, I just want to say that when this was all going on back in 2013, the staff did the best job they could with what they had, and what they had was the act. I've heard things here that the staff is motivated, there's a new commissioner, and everything is great, but unless you change some of the legislation, they're only as good as what they work with.
Those are my comments. Thanks.
Conservative
The Chair Conservative Tom Lukiwski
Thank you very much.
Colleagues, we'll have enough time for one full seven-minute round, and we'll start with Monsieur Ayoub.
Mr. Ayoub, you have the floor and you have seven minutes.
Liberal
Ramez Ayoub Liberal Thérèse-De Blainville, QC
Thank you, Mr. Chair.
I want to thank the witnesses for being here this morning. I'll ask my questions in French. If you need earphones to listen to the simultaneous interpretation, don't hesitate to use them.
It's troubling. It has been a big morning. That's what I can say after listening to the previous witnesses and to Mr. Korosec describe a personal experience. Thank you for meeting with us.
At the same time, I remember the presentations given last week, when we met with the Commissioner and with RCMP and Public Services and Procurement Canada representatives. We asked the witnesses questions about the many whistleblower cases. We have the table and we've seen statistics in this regard.
My view is as follows. I wrote “the code of silence.” I heard it earlier. I've heard a bit about this type of thing. However, when we ask people, we're told that it wasn't what was said. People tell us that we must refer to the collective agreements, because there are different ways to raise and solve issues.
I'll go back to the basic principle, which is respect for anonymity when a disclosure is made. This obviously seems to be a big issue. Afterward, there's talk about the accountability of people who are singled out or investigated.
How do you see the issue of respect for anonymity in Canada in relation to the services here and in relation to other countries, where this doesn't seem to be the case and where anonymity appears to be less of a problem?
Ms. Daviau and Mr. Rousseau, do you have anything to say on the matter?
Executive Vice-President, National Capital Region, Public Service Alliance of Canada
I'll let Ms. Harewood respond first, but I'd also like to make a few comments.
Patricia Harewood Counsel, Public Service Alliance of Canada
I want a few clarifications regarding your question.
You spoke of anonymity and the way this issue is addressed at the international level. Obviously, I can't talk about the international context as such. In terms of PSAC members, respect for anonymity represents a challenge. People are afraid to file complaints, either through the collective agreement or the legislation. They fear their anonymity won't be protected or respected.
Counsel, Public Service Alliance of Canada
This is obviously an issue. Unfortunately, I can't tell you how this issue is addressed at the international level.
Liberal
Ramez Ayoub Liberal Thérèse-De Blainville, QC
We've heard talk of New Zealand and other countries where these situations occur, but where the protection of anonymity seems to be less of an issue than it is here.
February 21st, 2017 / 10:15 a.m.
Executive Vice-President, National Capital Region, Public Service Alliance of Canada
We need to be careful. In the first part of your question, you spoke of collective agreements.
Executive Vice-President, National Capital Region, Public Service Alliance of Canada
In our experience with collective agreements, even in cases where the agreement was blatantly violated, people wait until they're desperate and they have no other avenue of recourse possible to file a grievance. This is even for something normal. A great deal of water may have flowed under the bridge before they file a complaint regarding malfeasance or wrongdoing. I wouldn't advise them to do so.
We would like to see provisions in the legislation that help actually protect anonymity. Mr. Korosec is absolutely right. In many cases, we're not talking about the vice-presidents of organizations. We're talking about mid-level employees who don't make disclosures on a routine basis. We really need to keep this in mind.
Liberal
Ramez Ayoub Liberal Thérèse-De Blainville, QC
Our view of anonymity may be inadequate. We're trying to protect something that's almost impossible to protect. It's my own personal opinion, but I think that, in disclosure cases, the people involved sense it. Obviously, there will be a response to their actions.
We can address the issue the opposite way, by being more transparent in certain cases and by making the information public. Making the information public protects the person who disclosed it. The secret aspect often makes the situation worse, or at least doesn't help.
I see Ms. Roy nodding.
Isabelle Roy General Counsel, Legal Affairs, Professional Institute of the Public Service of Canada
You brought up some good points.
It's important to understand that, in all disclosure cases, for the sake of natural justice, there must be an opportunity to respond. You mentioned it earlier. Anonymity is often impossible. Think of the small communities. Mr. Korosec may want—
General Counsel, Legal Affairs, Professional Institute of the Public Service of Canada
—to share some concrete facts. Just look at our members here in Ottawa, where most federal public servants can be found. It's quite easy to locate the individual who has the information that led to the disclosure. Anonymity often can't be protected.
The committee must decide on the potential impact of media attention. That said, under the current legislation, the commissioner doesn't have the chance to impose interim measures to protect the informer. There may be an attempt to keep the informer's identity confidential, but it's often impossible, despite people's best efforts and intentions.
Liberal
Ramez Ayoub Liberal Thérèse-De Blainville, QC
This would be the best protection for a whistleblower.
General Counsel, Legal Affairs, Professional Institute of the Public Service of Canada
As Mr. Korosec said, interim measures are absolutely necessary.