Procedure and House Affairs Committee on March 16th, 2011

[The Chair, Conservative, Joe Preston]

Order.

[Scott Brison, Liberal, Kings—Hants, NS]

The committee is still in session, actually.

[The Chair, Conservative, Joe Preston]

We've excused our witnesses, but go on.

[Scott Brison, Liberal, Kings—Hants, NS]

Okay. Given the amount of information provided to the committee and the need for members to review the government's data thoroughly, I move that we invite the ministers to appear back before us between 9:00 and 11:00 tomorrow morning for more thorough questioning. That's based on the binders that were provided to us 17 minutes before the committee started hearing from them today.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Brison.

Your chair has left a gap tomorrow morning for information. Certainly if you want to use the time to look through the information, that would be a great time for it.

[Scott Brison, Liberal, Kings—Hants, NS]

Mr. Chair, my motion was to have the ministers appear before committee between 9:00 and 11:00 tomorrow morning.

[The Chair, Conservative, Joe Preston]

That would of course depend on whether the ministers are available. We would have to ask them to see if we can do it.

[Scott Brison, Liberal, Kings—Hants, NS]

It's a motion. I'm moving that the committee invite the ministers to appear before committee tomorrow morning between 9:00 and 11:00.

[The Chair, Conservative, Joe Preston]

Mr. Brison, we have a fairly long schedule today, and if we stop to discuss a motion now, we will certainly inconvenience the other witnesses we have scheduled. I would take your motion at the end of the day, if we're under committee business.

I will suspend for a moment.

[Scott Brison, Liberal, Kings—Hants, NS]

The motion is in order, Mr. Chair. The motion is in order.

[The Chair, Conservative, Joe Preston]

I am suspending for about two minutes while we change witnesses.

[The Chair, Conservative, Joe Preston]

I call the meeting back into session. We're making our way through the day, and I thank you for that.

Mr. Cappe, it's great to see you here. You've been in the back watching most of the day, and I know you've been paying close attention, so you know what we're doing and how we're working on it.

What I'll offer you is a chance to give a bit of an opening statement, and then we'll have the members ask you questions. I think you know how this works.

[Mel Cappe, As an Individual]

Thank you, Mr. Chair.

Like the ministers, I am here with my entire entourage, although I am only appearing as an individual. I haven't seen The Mikado, the opera that focuses on...

Let me introduce myself. I'm Mel Cappe. I happen to be the president of the Institute for Research on Public Policy for the next month, and I am and will continue to be a professor in the School of Public Policy and Governance at the University of Toronto.

I had a career of over 30 years in the federal public service, culminating as High Commissioner in the United Kingdom, and have been Clerk of the Privy Council and secretary to the cabinet and head of the public service as well as deputy minister in several departments. Lest anyone think that because I was the Clerk of the Privy Council for Jean Chrétien I was somehow partisan, I want you to be aware that the first order in council naming me to the ranks of deputy minister was during the Mulroney government, and I've served seven prime ministers in my time.

Let me offer a disclaimer at the outset. I've been out of Ottawa for nine years and I've been out of government for five; therefore, I am dated. I earned this grey beard and therefore offered to help the committee.

There are two issues I'd like to address. The first is the question of cabinet confidences. I heard the conversation this morning with the law clerk and the Information Commissioner. I want the committee to understand that I'm a big defender of cabinet confidences, and I think that it is necessary for good government to have candour in cabinet exchanges. Frankly, it's been recognized by Parliament. Parliament passed the Access to Information Act and chose not to exempt cabinet confidences, but to exclude cabinet confidences, so when the government claims privilege on cabinet confidences, I think the're doing the right thing. It's recognized by Parliament in section 69 of the Access to Information Act. As well, there's an absolute exception, which I know Mr. Walsh talked about this morning, in section 39 of the Canada Evidence Act, which states that the clerk, with absolutely no review or restriction, can claim confidences of the Queen's Privy Council to be exempt.

Given the wording of Mr. Brison's motion and the finance committee's request for information in which you asked for “documents”, I can understand that it could be possible for the Prime Minister and the government to have interpreted this as a request for cabinet documents. As such the government claimed privilege and said that cabinet confidences will not be released. That was a legitimate response of the Prime Minister.

The committee, I think, was asking not for cabinet confidences; rather, it was asking for information. I heard the Minister of Justice and the Minister of Public Safety just now indicate that they were prepared to provide the committee with information. I think it's much better to view this as a demand for information, which brings me to my second point.

There is no doubt in my mind, and certainly the Speaker made this clear, that Parliament has a right to adequate information on which to pass legislation. Therefore when you parliamentarians come to judgment on legislation, you need to know what the implications of that are and what the long-term costs are.

Citizen Cappe, appearing before you, wants to make sure that parliamentarians have adequate information before they pass legislation.

When I was Deputy Secretary to the Treasury Board in the 1990s, I spent four and a half years appearing before committees such as yours explaining the process for identifying program costs.

First there is the expenditure management system, which continues now, as far as I understand it. The Treasury Board Secretariat and finance officials insist that all new programs or proposals for programs or for legislation that go to cabinet must have a notional costing of anything for which there will be implications of costs.

However, those costs cannot be put into main estimates until they're elaborated, so this notional costing takes place, and therefore, for instance, the government's tabling of main estimates might not include some of the announcements that were in the budget. They will wait for an appropriation act wherein the costs have been elaborated, so therefore supplementary estimates come to Parliament for approval in an appropriation act.

I bother to elaborate this because I want to distinguish that notional spending estimate from the actual spending required. It's in that context that I want to conclude by saying that cabinet confidences must be protected and, at the same time, Parliament must have adequate information for making judgments on legislation. I'm not going to pass judgment on the binders you've just received that I have not seen yet, but it strikes me that this is the kind of material that parliamentarians need in order to come to judgment and say, “Is this in the public interest?”, and pass legislation.

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you very much.

Mr. Brison, are you leading for...?

Go ahead, Mr. Brison, for seven minutes.

[Scott Brison, Liberal, Kings—Hants, NS]

Thank you very much for being here, Mr. Cappe.

While legislation is being developed or discussed at cabinet before the legislation has actually been tabled or introduced to the House of Commons by a government, could cost information be considered cabinet confidence at that stage of the development of the legislation?

[Mel Cappe]

The way I'd like to answer that question is actually by citing Parliament, frankly. If you look at the Access to Information Act, in section 69 that was referred to earlier—I will be quick—paragraph 69(3)(b) says that “discussion papers” introduced in cabinet are not “confidences of the Queen's Privy Council” and should be released if the decisions to which the discussion papers relate have been made public. Those are discussion papers, not the memorandum to cabinet.

[Scott Brison, Liberal, Kings—Hants, NS]

Once the legislation has been tabled by the government, the decision is public.

[Mel Cappe]

That's right.

[Scott Brison, Liberal, Kings—Hants, NS]

So as such, any costing information that was part of that information provided to cabinet ought to be provided to parliamentarians?

[Mel Cappe]

Again, this is a distinction that's made in the law between a discussion paper and a memorandum to cabinet, but the discussion paper is a background document that would have been put to cabinet. Now, I should tell you that this has fallen somewhat into disuse, so there may not be discussion papers, but that's what was presaged in the legislation.

[Scott Brison, Liberal, Kings—Hants, NS]

You're saying that once the government has tabled a bill in Parliament, the costs of that bill cannot be covered or ought not to be covered by cabinet confidence?

[Mel Cappe]

That's right. The documents.... Again, Madame Legault was basing her presentation on documents, and I'm not. I'm talking about information, and I think the information on that is not a confidence. The documents that went to cabinet and the advice to cabinet are confidences.

[Scott Brison, Liberal, Kings—Hants, NS]

On December 1, when Justice Canada said that it couldn't provide this costing information based on cabinet confidence, or when, going back to November, the government initially refused to provide this information to Parliament based on cabinet confidence, you're saying that cabinet confidence ought not to have been used to protect costs and to deny Parliament the information on the costs of the government's legislative agenda.

[Mel Cappe]

That's right.

[Scott Brison, Liberal, Kings—Hants, NS]

Thank you very much.

I'll draw your attention to the “Guide to Costing” from Treasury Board. You, as a former secretary of Treasury Board, would be familiar with this. This is a March 2008 document, but I don't think a lot has changed since when you were there.

On the costing of a new initiative, it says:

All the costs of a new initiative for a department must be known, including costs of employee benefits and accommodation. For a new initiative that is incremental to existing programs, it is necessary to know the incremental financial impact;

How would you interpret that in terms of the obligation for Finance and Treasury Board to provide the costs of legislation to cabinet?