Public Accounts Committee on March 21st, 2007

[Prof. Ned Franks]

With the sponsorship issue, a huge number of the problems that came up were payments that were made under contracts when they shouldn't have been. That is clearly the statutory responsibility of the deputy minister, and the only thing you can say about that is that the deputy minister failed in his duty. I think the public accounts committee's entitled to say that sort of thing in a report, which is not something the Privy Council Office agrees with.

If you get to the issue you've been looking at more recently of the contract for space in Montreal, the contract is actually the responsibility of the minister. The minister can delegate contracting responsibilities, but the contract is the responsibility of the minister. Under the contracting policy of the Treasury Board, the deputy head, the deputy minister, now the accounting officer, has the responsibility to inform the minister when a contract does not meet the standards of prudence and probity.

Under the accounting officer approach, it is the duty of the deputy head, the accounting officer, to do that. If the minister still disregards it, the deputy minister could presumably appeal to the Secretary of the Treasury Board.

[Judy Sgro, Liberal, York West, ON]

Thank you very much.

[The Chair, Liberal, Shawn Murphy]

Thank you, Ms. Sgro.

Monsieur Laforest, you have four minutes.

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

Mr. Franks, in your introduction, you said that you had not received any cooperation from the Treasury Board in terms of developing the protocol you were to submit to us in accordance with the mandate you were given by the Standing Committee on Public Accounts. After that, when discussing the document itself, you said that the Privy Council Office trivialized the responsibilities laid out in the Federal Accountability Act. That is what I understood you to say. You also said that, in a way, this document minimizes the powers of parliamentary committees, and you cited the example of the Standing Committee on Public Accounts.

It seems to me that those comments are quite significant. You are describing a situation which I see as extremely problematic. You even said that over the centuries, Parliament has always won. So, this is not the first time there have been conflicting interpretations of the powers of parliamentarians, as opposed to those of the government. That is what I understood.

Finally, referring to this Committee, you said that its only real power is to examine issues. When you talk about its only real power, are you saying that it should have additional ones?

[Prof. Ned Franks]

No, there are two powers. First there's the power to call for persons and papers. Then there is the power to investigate, to examine. Then there is the power to report. But committees do not have the power to direct or discipline ministers or officials. In fact, that power is so rarely used by Parliament itself that it almost doesn't exist there.

The whole of parliamentary democracy works on the basis of publicity and casting a light on the dirty corners of government. The thrust of the Privy Council Office document, when it gets to the area of what the committee can do to investigate, makes it sound more like a meeting of boy scouts than an investigation into things that have gone wrong.

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

You talk about parliamentary democracy. Based on your analysis, is the Privy Council document tantamount to an attack or, at the very least, an attempt to reduce the powers vested in parliamentarians through this Committee?

[Prof. Ned Franks]

I believe the Privy Council Office feels entitled to direct Parliament, tell Parliament what it should and shouldn't do, in a way that it does not feel Parliament should tell the Privy Council Office what it should and shouldn't do.

Forgive me, sir, I will use an analogy. As I read that document, that's what the lawyers call “construing” something. They have construed the powers of accounting officers and the powers of Parliament as narrowly as possible. To give you an analogy, it is like the old definition of a platonic lover: someone who holds the eggshells while someone else eats the omelette. Well, what has happened here is that the Privy Council Office is eating the omelette and leaving Parliament with the eggshells, and I think that's the wrong way to go.

[The Chair, Liberal, Shawn Murphy]

Mr. Poilievre, four minutes.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Thank you.

I'm still trying to wrap my head around that. It's good to have you back, Dr. Franks.

I worry that if we don't have agreement between the executive and this committee on what constitutes an accounting officer, then when the executive meets with the committee, nothing will be accomplished because no one will agree on what the meeting actually constitutes. If the accounting officer is instructed by the executive branch to represent only the accountability of the minister, but the committee believes that the accounting officer operates within his or her own sphere, then the expectations that the committee has in its questions will not be fulfilled in the accounting officer's answers.

It is my belief that we have to continue to work to find some sort of consensus on what constitutes an accounting officer for the purposes of this committee, or this entire undertaking will have been a colossal waste of time.

I have to say, as a member of the government--

[An hon. member]

The governing party.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Of the governing party, that's right. I would be thrilled to see many of the accountabilities passed down to the top public servant in every department. In fact, for a minister it makes life easier. He has less explaining to do, and it becomes the public servant's job to do the explaining and to take the blame for him.

Let me just state that as a political party that's in power, we have an interest in supporting your interpretation, but as a government that wants to adhere to sound practices of public administration, we do not. If you separate the sphere of responsibility and isolate it around the accounting officer, you undermine the centuries-old tradition of ministerial responsibility. In numerous matters we have faced before this committee, we have learned that the problem has not been a lack of accountability by the senior bureaucracy, but a lack of accountability by the minister.

I believe this proposal you put forward risks exacerbating that problem by extending more responsibilities for the function of government to the bureaucracy, and taking that responsibility away from the minister. It gives the minister a great scapegoat when he comes before this committee. He can simply say he's not responsible anymore, because the protocol says it's actually the bureaucrat who's to blame here.

I'm wondering how you reconcile those two principles: ministerial responsibility with this new interpretation of the accounting officer.

[Prof. Ned Franks]

Thank you, sir.

The first answer is that as I emphasized in the protocol and in my remarks today--and as the Privy Council Office does, this being one of those things we agree on--the accounting officer provisions of the Financial Administration Act give no new powers to deputy ministers. This protocol, working within the existing statutes, attempts to establish a means of holding accountable the heads of departments and heads of agencies, the accounting officers, for responsibilities that they already have and that ministers do not have. And I emphasize that; there's no point in pretending that ministers have them, because they don't, and if this is something that affects question period, then question period is going to have to get changed.

For instance, there's a perfectly straightforward answer for a minister if a decision is clearly the responsibility of the accounting officer. He can give information, and then, if the question comes up again--if it's something being investigated by, say, the public accounts committee--the minister can say, I have given an answer to this and it is now the responsibility of the public accounts committee.

An answer in Parliament has to meet two criteria. One, it has to be in parliamentary language, and two, it has to be relevant to the question. No answer meets those criteria, and that has been used in the past very effectively by ministers when they were not responsible for an issue. There are many ways of handling that problem.

On the second problem, to use the omelette analogy again, can you disentangle the whites from the yolks in the mixture of functions of minister and deputy minister? The answer is yes. I was talking to one lawyer about what we were doing here, and his response was that it's not really an omelette, it's a soft-boiled egg; it's gooey, but you can still distinguish the white from the yolk.

To go back in history, the British Parliament in 1862 established a public accounts committee. In 1865 the comptroller and auditor general act was passed. By 1867 the British public accounts committee was wrestling with the question of who it should hold accountable, the ministers or the permanent heads, that being the deputy ministers. It decided to hold the deputy ministers accountable, not the ministers. Britain has followed that path since then.

All I'm saying is let's carry that one step further. The British North America Act--the Constitution Act, 1867, as it's now called--says that Canada shall have a constitution like the British. The British Constitution in 1867 contained in it the possibility, and the beginning of the reality, of a division of powers between ministers and accounting officers. So it's perfectly legitimate, within our Constitution, to create something that was already existing in the British Constitution in 1867. Simply because it's taken us 140 years longer than the Brits to get there doesn't mean it isn't something worth doing. And the provisions of the accounting act are an effort to do it.

I have very little sympathy with the complaint or the feeling that this is a problem because this is only one side. I was the person who produced the protocol, and I consulted with a great many people. The ones I wanted to consult with, the government, refused to consult. Even when the last invitation was offered, after my last attendance before the committee in February, the government did not make any effort to consult. It simply produced its own document. I don't consider that a serious, honest effort on their part to cooperate with the committee.

[The Chair, Liberal, Shawn Murphy]

Thank you very much, Mr. Poilievre.

Thank you, Dr. Franks.

Mr. Christopherson, four minutes.

[David Christopherson, NDP, Hamilton Centre, ON]

Thank you very much, Mr. Chair.

Thank you again, Dr. Franks.

This situation, Chair, cannot stand. This is impossible, to have this situation where we are.

Let's remember how we got here. In large part, Mr. Williams pushed this as one of his priorities as the chair, but it flowed from the sponsorship scandal. I mean, it has been going on forever. I experienced it at Queen's Park, trying to get answers.

The simple matter is that with the sponsorship scandal, which is the one everybody knows, deputy ministers or ministers rolled in, they were asked questions, and they said, “I can't answer that because it wasn't my responsibility. The deputy did it.” That was the answer over and over again, on all kinds of questions. Then the deputy was brought in--as if that was going to solve things--and said, “I can't answer that. The minister runs the ministry and makes all those decisions. I can tell you what we did and I can produce the documents, but in terms of why we did it and anything to do behind that, you have to see the minister. I can only speak to what the minister speaks to and support that.”

There you are chasing your tail, and who do you call? The whole point of this exercise was to say, “No, Deputy, you are now personally in that role and you are responsible for all the actions you take on behalf of the minister, the government, and the department. You personally have to account for why things were done this way.” There's no deferring to a minister or to anybody else. That person is on the hook.

I disagree entirely with Mr. Poilievre in terms of his concern that we're pushing too much away from the ministers. Not at all. I liked his earlier comment that it makes more sense for a minister.... Ms. Sgro has been one, and there may be others. I have been a provincial minister. From a government point of view, I like the idea that you roll in, you're asked a question about the policy behind why you spent money, why contracts were let, and you answer, as the minister, that the policy of our government is blah, blah, blah, and we did this--blah, blah, blah.

In terms of whether there were problems with that contract--did the process not go the right way, are there questionable activities taking place?--that's not the minister's responsibility; that is the deputy's responsibility. Ultimately the minister becomes responsible for their deputy if they're inept, incompetent, or they're not doing their job.

Anyway, I like it. I think it would be better for a minister. I think it makes things crystal clear. More than anything, without it, this committee and Parliament can't work the way they're supposed to.

I think all of us are open as to where we go, but I think the important thing here.... Certainly I am very comfortable with where Dr. Franks is suggesting we are, policy-wise. I've read the document carefully twice now; I'm very comfortable with that. On the politics of the PCO telling us...I don't know how the point could be better made than what Dr. Franks has in his last paragraph.

I mean, it's not unlike some of the battles they're going through in the States with executive privilege, where Bush is saying, “I can do this and I'll do it alone.” The rest of Congress is saying, “Well, wait a minute, we've got a role here.” This speaks very much to who is in control of things.

I don't want to be unfair, but I think it really matters to this committee what Mr. Williams thinks.

I don't mean to put you on the spot. You obviously don't have to speak if you don't choose to, but in large part your leadership got us to this point. Chair Murphy is doing an excellent job of keeping it moving, but the weight of your opinion would matter on this, Mr. Williams. I will respect you if you choose not to say a word, but there's certainly a vacuum for that word to be placed.

Thanks, Chair.

[The Chair, Liberal, Shawn Murphy]

Thank you very much, Mr. Christopherson. I don't detect any questions there.

We only have about six or seven minutes left. I invite Mr. Williams to comment if he wants. He doesn't have to, of course.

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

Thank you, Mr. Chair.

I've been here for almost 14 years and I consider myself a parliamentarian, first and foremost--a democrat, in the fact that I believe in democracy and the power of Parliament to hold the government accountable. That's where I come from. Most of the time I was on the other side of the table while acting in your position, Mr. Chair, and it was important that Parliament held government accountable. That's the fundamental thing about democracy.

I was a little bit taken aback by the Treasury Board response here--or maybe it's PCO that wrote it. Two examples really stand out when they talk about--under V.8, former accounting officers--questions predating tenure, and they basically say that we can only ask the current incumbent a question regarding administration of the department.

Now, everybody around this table and many others know that we can ask any question of any Canadian that we feel appropriate, period, with no limitations of any kind; and if they don't want to come and answer the question, we can subpoena them, as we did; and if they don't want to answer before the committee, we can hold them in contempt of Parliament. So for the Treasury Board or the PCO to tell us that for the government that we are supposed to collectively hold accountable, we are precluded from talking to people who may have made the mess-up because they've now been promoted or transferred to somewhere else and are therefore off limits, I think, is an insult to this institution. It shouldn't be this way.

Then continuing on, under V.9, they actually try to tell parliamentarians how to behave themselves and that they should act nicely to the witnesses who are before them to try to explain why they messed up in their department. It's your responsibility, Mr. Chair, to keep us in order. It's not for the PCO or the Treasury Board to tell us how we're going to behave around this table. This patronizing attitude by the government to the institution of Parliament really bothers me a lot. Seriously, it does bother me a lot.

As you may know, I chair an organization called the Global Organization of Parliamentarians Against Corruption, GOPAC, for short. Fundamentally, Mr. Chairman, that organization says let's educate parliamentarians so they can understand their constitutional responsibility in order that they may hold government accountable. If we are to capitulate to this document by the government saying we can only hold them accountable on their terms, we're doing a serious disservice to the people who elected every one of us.

[The Chair, Liberal, Shawn Murphy]

Thank you very much, Mr. Williams.

We only have two minutes.

Mr. Sweet.

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

Because I think we agree on the nature of the response we got from the PCO or Treasury Board on this, I would like to ask that, just as we've done in past cases, you write a letter and demand they meet with Dr. Franks. I don't think this should go any further.

[The Chair, Liberal, Shawn Murphy]

If I may respond, this has been going on for several months, and I think we have to bear in mind that this document could be a work in progress. I would like to move forward with it, and it might be that, on further reflection, we decide we want to change it.

We can meet with them, but you were here when I talked to Mr. Wouters. I've pleaded with him. I've asked for meetings myself, and he won't meet with me. We've written him letters. Dr. Franks has attempted on many occasions to meet with him, and last week we got a response. So I honestly think we should just.... Mr. Williams is quite correct, it's up to Parliament to define and set the parameters of the range of accountability within the legislative confines of the Federal Accountability Act and other legal instruments.

I'm in the hands of the committee, of course, but I would like to either do it now or reserve 15 minutes at one of the meetings next week and put the question to a vote as to this particular document.

But I have a couple of questions for Dr. Franks, and I want to get it clearly on the record--

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

I just want to clarify something. I was suggesting that you write to the President of the Treasury Board, not the public service. Write to the minister and demand a meeting. This is absolutely ridiculous. I agree that you haven't had any response from Wouters, and we should have the minister accountable in this.

[The Chair, Liberal, Shawn Murphy]

I can do that, but I'm not prepared.... I'm totally in the hands of the committee and take my instructions from the committee. But I would urge against just delaying it further for another month or two so I can have an audience with the minister to discuss this. The minister's intentions, views, and position are set out on the website of the Treasury Board, so if he's not in agreement with that document, he has a very serious situation on his hands. I assume they have come forward with this protocol and have put it on the website after reflection, deliberation, and discussion.

I want to ask one other question. I think it's important to get this on the record.

Dr. Franks, I have two items I want you to address very briefly. In your opinion, is anything in your protocol contrary to the provisions of the Federal Accountability Act? Do you recommend to this committee that we adopt the report you presented?

[Prof. Ned Franks]

My answer to the first question is no. I've run this past several lawyers, political scientists, and various officials in Ottawa. Nobody has suggested it's contrary to the provisions of the Federal Accountability Act or any other act.

What was your second question?

[The Chair, Liberal, Shawn Murphy]

Are you recommending to the committee that we adopt the protocol?

[Prof. Ned Franks]

I am recommending that, with the proviso you made in the protocol, that it's a work in progress. And once you've adopted it, if the Privy Council Office and the Treasury Board want to talk to the committee, they should, and you would welcome hearing from them.

I wanted to say earlier that the reason offered by the Treasury Board for not discussing it with me was that they required political direction from the minister before they could respond. I think the only way you can read what the Privy Council Office put out is that they got that as a result of their discussions with the ministers.

[The Chair, Liberal, Shawn Murphy]

Mr. Christopherson.