Public Accounts Committee on March 21st, 2007

[The Chair, Liberal, Shawn Murphy]

Mr. Williams, I can't disagree with what you're saying. I have to say I agree with everything you're saying. With the unfortunate position the committee has found itself in, though, we are quite substantially behind on our agenda. We're behind by about six reports now. We have a fairly aggressive agenda, as you know. We're trying to do a number of things, and we're trying to get them done. We thought it would be helpful to give ourselves a little extra time when we're doing reports. We don't need to use the three hours if we get them done earlier.

I'm at the committee's disposal. We talked about it at the steering committee. We have agenda problems in terms of getting the reports done, because we are behind, at six.

Is it six now, Alex?

I'll take your comments under advisement, but I'm certainly not disagreeing with them. When I'm here for two hours, I like to go on to the next item of the day too.

Mrs. Sgro.

[Judy Sgro, Liberal, York West, ON]

It's just a question. Are the six reports completed? Do they need us to go through them as a committee? Is that what you're referring to?

[The Chair, Liberal, Shawn Murphy]

There are four completed.

I'll let Alex answer the question.

[Alex Smith, Committee Researcher]

We have already started on two of those reports. One was on the leaks, and the other was on the performance report of the Auditor General.

Brian has also prepared a report on the relocation issue with Public Works.

There is also the issue of Place Victoria, which we were just hearing about today. If the committee decides to have another hearing, it may take more time before a report is prepared.

There is the RCMP pension issue. We'll have a hearing next week. A report needs to be prepared and presented to the committee.

And then there's the Treasury Board Secretariat roles and responsibilities study, and the expenditure management system.

[Judy Sgro, Liberal, York West, ON]

How many reports do you have that you require the committee to go through so that we can move them off our agenda here? How many are complete and ready for committee review?

[Alex Smith]

We have four reports that are complete and ready for the committee to review. A couple more are in the process of being prepared and will be ready shortly.

[Judy Sgro, Liberal, York West, ON]

Mr. Chair, I know everybody on the committee works hard and they'd probably like things to be completed. Until you table them in the House, they're not complete. Given all this election talk around us, wouldn't it be important for us to table the reports that everybody has worked on and get them into the House?

[The Chair, Liberal, Shawn Murphy]

Ms. Sgro, they have to be approved by the committee, and they come to the committee—

[Judy Sgro, Liberal, York West, ON]

I know, but I'm saying from a scheduling perspective—

[The Chair, Liberal, Shawn Murphy]

Once we schedule something and we get the witnesses lined up, like the corrections ombudsman next Monday, I can't bump that thing then. It's an important issue. The committee also did approve a motion to call another group before the end of March.

When we come back, we do have a couple of days for reports. Hopefully we will be able to get through them. But I point out again that there's a lot on the committee's agenda.

Monsieur Laforest.

[Jean-Yves Laforest, Bloc, Saint-Maurice—Champlain, QC]

I don't know exactly what you're intending to do today. On the other hand, I do know we have to leave by 5:15 p.m. Is it your intention to come back afterwards?

[The Chair, Liberal, Shawn Murphy]

No, that's out of the question.

I would like to put this to a vote, if I may.

[Jean-Yves Laforest, Bloc, Saint-Maurice—Champlain, QC]

Since there will be votes in the House tomorrow around 5:30 p.m., have you considered asking Committee members to meet at 3:30 p.m.? Everyone may not be able to, but I thought I should raise it. If we sat tomorrow from 3:30 to 5:00 p.m., we would at least have an hour and a half to try and make some headway.

[The Chair, Liberal, Shawn Murphy]

My experience, Mr. Laforest, is that people have other committees and they have other engagements. A lot of members are on two committees. I appreciate the suggestion, but unless everyone here puts up their hand and is agreeable, it isn't going to happen.

I'd like to put this to a question. Somebody please make the motion that the steering committee minutes be approved, as circulated.

[John Williams, Conservative, Edmonton—St. Albert, AB]

I so move.

(Motion agreed to)

[The Chair, Liberal, Shawn Murphy]

I'm now going to invite to the table Dr. Ned Franks, and we're going to talk about the protocol that this committee has been working on for the last four or five months.

Just by way of background, colleagues, there has been a development recently that I find a little disconcerting. Dr. Franks can speak to it better than I can, but when we started this, we attempted to develop a joint protocol for working with Treasury Board Secretariat, because we have very similar roles. Over the last two or three months, we've attempted to get some dialogue going with Treasury Board Secretariat. You people were all here when I questioned Mr. Wouters on this issue and just pleaded with him to talk to us.

We did finally get a response last week that Mr. Wouters is not interested in pursuing the joint protocol at all. In fact, what they've done is post on their website their own protocol—this would be the protocol from the executive—as to the appearance of accounting officers before them.

Their protocol actually deals with all committees, not only this committee. In my humble consideration, it falls far short of my understanding of the provisions of the Federal Accountability Act. The issue is not personal to the accountability issues involving previous accounting officers. In this case, as you know, in most of the instances this committee deals with, we're talking about the previous accounting officer, because of the way they switch deputies in Ottawa.

Colleagues, we're down to a classic fight between the executive arm of government and Parliament. In my view, it's up to us, as a committee of Parliament, to develop our own protocol. However, we have to be very careful that we do not have in our protocol anything that's contrary to the law, anything that's contrary to the Financial Administration Act—or any other law, for that matter—so we've had the staff working very carefully over the last number of weeks.

Dr. Franks can comment much better and with much more wisdom on the executive protocol, and he can comment on his own protocol, for which I want to thank him very much for putting so much time and effort and energy into doing. That has been circulated to members.

Without having to say anything further, I turn the floor over to Dr. Franks, and I want to thank him for being here today.

[Brian Fitzpatrick, Conservative, Prince Albert, SK]

If I may, before we start, I have a point of order or a comment about the procedure on the points of disagreement between the protocol of the Treasury Board and Mr. Franks' issues.

I got that during question period today. I think it's very difficult. These are not easy issues to grapple with. Unless there's somebody here who's a lot smarter than I am, these are not easy issues to come to grips with. I would have really liked to have that information well in advance so I could come before committee and make better judgments than I am right now.

I'm registering a protest about making decisions today without having had that in my hands in advance so I could think through these issues. It was my understanding that we were going to have that in advance.

[The Chair, Liberal, Shawn Murphy]

You're quite right, it is nice to get these documents as early as possible. Your point is well taken. However, we only got the Wouters response last week. Dr. Franks, to his great credit, did do it, and we did get it a couple of days ago. We had to get it translated. Until we got it translated, we were unable to circulate it.

But your point is well taken.

Dr. Franks, I turn the floor over to you.

[Prof. Ned Franks, Professor Emeritus of Political Science, Queen's University, As an Individual]

Thank you.

As far as I know, the protocol, which is now on the PCO website, was not put there until late last Friday, and I did not have it to comment on until then. My great regret in doing the protocol is that I did not have the cooperation of Treasury Board, and it would be a better product if I had. I made every effort, as the committee did, to invite them to cooperate and collaborate, and they showed no interest whatsoever. So I have to live with the best job I could do, which is what I did for you.

I found the Privy Council Office's “Accounting Officers: Guidance on Roles, Responsibilities and Appearances Before Parliamentary Committees, 2007”--the document they posted late last week--to be disturbing because it seemed to me to fail to recognize what the statutes involved dictate.

The intention of the accounting officer approach as proposed by the public accounts committee, the Gomery commission, academics, and the Conservative Party and now embodied in the Financial Administration Act is, first, to identify the sphere of management that deputy ministers and heads of agencies--the accounting officers--hold in their own right; and second, to establish the principle that as accounting officers these very senior public servants are accountable before parliamentary committees, and particularly the public accounts committee, for their stewardship of their management responsibilities.

The Privy Council Office's document construes the accounting officer provisions of the Financial Administration Act so narrowly as to trivialize the very real and important management responsibilities of accounting officers and to deny that they are accountable in their own right.

The document also dictates a role for parliamentary committees in the accountability processes so limited as to make it doubtful whether, if the public accounts committee were to adhere to it, the committee could effectively hold the government to account for its stewardship of the public purse.

The Privy Council Office's document correctly states that the accounting officer provisions do not create new management responsibilities, but it is incorrect in stating that the accounting officers appear before the public accounts committee only in support of the minister's accountability to Parliament. Accounting officers cannot possibly appear in support of their ministers when they, as accounting officers and not the minister, hold the responsibility.

Responsibility means the authority to act. Accountability means being held to account for the use of that authority. Where ministers do not have the power to act, they cannot be accountable. Where accounting officers hold the power to act, they are the responsible and accountable officials. Accounting officers hold formidable management responsibilities in their own right. Powers delegated to them under the Public Service Employment Act and the Financial Administration Act give them, not ministers, most responsibilities for human resources management.

The Financial Administration Act assigns powers both directly and by delegation to deputy heads, the accounting officers. Neither act permits powers to be delegated to ministers, only to deputy heads. Parliament has assigned these powers to non-partisan public servants in order to maintain the neutrality of the public service and to protect the public purse from abuse by politicians.

The Financial Administration Act gives deputy heads, and deputy heads alone, statutory responsibility for ensuring that payments under contracts meet standards of compliance and propriety.

The Treasury Board's contracting policy demands that public servants who have been delegated authority to negotiate and conclude contractual arrangements on behalf of the Crown must exercise this authority with prudence and probity. The accounting officer is responsible for ensuring that these activities meet these standards, unless his or her advice has been overruled by the Secretary of the Treasury Board or the board itself. Failure of the Deputy Minister of Public Works to meet his statutory obligations and ensure that his department adhered to these standards allowed the problems in the sponsorship affair to occur.

The Privy Council Office's accounting officer document acknowledges that ministers may not give specific direction to accounting officers if they have been assigned management responsibilities or authorities by statute. But it maintains that the accounting officer is still accountable to the minister for the exercise of these authorities. The PCO misses the point here. Parliament has assigned the responsibility to accounting officers, not to ministers. The accounting officers, not the ministers, are accountable. The accounting officers appear before parliamentary committees to explain and defend their use of powers they hold in their own right. They do not appear to support the accountability of their ministers.

The Privy Council Office claims that the accounting officer is not accounting to the committee for his or her personal performance. This is not what the laws say. The provision of the relevant statutes makes it clear that the accounting officer is accountable before the committee for his or her personal performance. Where accounting officers hold the responsibility, they are responsible and accountable.

The Privy Council Office argues that former office holders should not appear before the public accounts committee because they cannot appear to commit to action. But a parliamentary committee cannot demand action of any official, minister, or accounting officer. Half the corps of deputy ministers were appointed to their current office since March 2006. If the committee were to do as the Privy Council Office instructs and only hear testimony from current office holders, much of the time it would not hear from the official who actually made the decisions under investigation. The committee would not be able to demand accountability from the officials whose actions they are examining.

Like all parliamentary committees, the public accounts committee cannot discipline or direct officials, whether those be ministers or public servants. The committee's powers are limited to hearing the testimony of witnesses, investigating issues and producing reports. The committee's work begins after something has gone wrong and has been reported on by the Auditor General. The committee's only real power is the power to examine and report. Its power is that essential component of parliamentary government to identify and expose, to enforce the deterrent effect of bad publicity. Responsible parliamentary government's great strength is that it clearly identifies who has responsibility and then holds them accountable.

Over the centuries, Parliament, against opposition by the Crown and government, insisted that it and it alone had the right to determine who was accountable before it, and how they should be held accountable for their use of the powers Parliament grants to officials. Parliament won. It still has this right. The Privy Council Office appears to have forgotten this fundamental constitutional principle.

Thank you.

[The Chair, Liberal, Shawn Murphy]

We can go to approximately four minutes, if people want.

Ms. Sgro, have you any comments or questions? Ms. Sgro, you have four minutes.

[Judy Sgro, Liberal, York West, ON]

I received this just this morning, and frankly I think you've done a very good job of trying to assist the committee with the whole issue of accountability.

I find it's still troubling, because if anything goes wrong, we go after the minister. The minister is the minister, and it's your head on the chopping block--that's about as simply as I can put it--if anything goes wrong in your department. Yet we all clearly know that you're talking about accountability through all your deputies. If a deputy--as you said, the accounting officer--were to receive direction from a minister with which he did not agree, what avenue would he have?

[Prof. Ned Franks]

First of all, I have some sympathy with going after ministers, because I think that in the partisan aspects of parliamentary politics, which are a crucial part of democracy, politicians normally like to go after big game rather than little game--tigers rather than rabbits. So they want to go after the ministers rather than the public servants, the deputy ministers.

[Judy Sgro, Liberal, York West, ON]

It makes for better media coverage.

[Prof. Ned Franks]

You can also draw more blood if you succeed. That's on the first hand. That's a natural tendency.

On the other hand, as I have tried to emphasize, there's a statutory framework that gives responsibility to deputy ministers. Now we call them accounting officers because of their managerial responsibilities. They have recourse under the Financial Administration Act, as amended by the Federal Accountability Act. If they are given an improper instruction, they can appeal to the Secretary of the Treasury Board, and the Treasury Board secretary can issue an opinion. If that answer is, “No, Minister”, the minister can appeal to the Treasury Board itself, and the Treasury Board can give an opinion.

There is also an avenue of recourse of a deputy minister to the Clerk of the Privy Council, and that, as I understand, is used once or twice a year by deputy ministers. Now, there are areas in which there could be a profound disagreement not within the managerial responsibilities of an accounting officer, and presumably that would be used there.

[Judy Sgro, Liberal, York West, ON]

The accounting officers meet with PCO, and so on, fairly regularly to discuss areas in that department, as to how things are going, where some of the issues are, and so on. So the idea that someone can go off on their own and make these decisions about moving, changing a direction of something or other, without any consultation, just because I happen to be the minister and I'm telling you I want you to go and make some major changes--those things don't happen in isolation. That's the point I'm trying to make.