That the fourth report of the Standing Committee on Access to Information, Privacy and Ethics, presented on Tuesday, May 10, be concurred in.
Mr. Speaker, it is my pleasure today to move the fourth report of the Standing Committee on Access to Information, Privacy and Ethics.
The committee's mandate gives it responsibility for matters concerning Canada's Information, Privacy and Ethics Commissioners, with respect to their responsibilities under the Parliament of Canada Act relating to public office holders.
During the course of meetings with the commissioners to discuss their main estimates, the committee was made aware of longstanding concerns about how officers of Parliament were funded. The Information Commissioner, John Reid, advised the committee that because of inadequate funding, the Information Commission faced a continuing and growing backlog of cases requiring investigation. Mr. Reid said:
We are in a financial crisis. The cause of that has been that resources have not kept pace with the workload that is imposed on the office...Despite repeated attempts to convince Treasury Board to properly fund the full range of the commissioner's mandate, including several exhaustive reviews by independent, outside consultants, taken jointly with the Treasury Board Secretariat, emergency and partial funding has only been forthcoming.
The Privacy Commissioner, Jennifer Stoddart's office, has two funding streams. Funding is provided under the Privacy Act and under the Personal Information Protection of Electronic Documents Act, which is referred to as PIPEDA. Her concerns about funding have less to do with the adequacy of her office's funding and more to do with how the office is funded. She told the committee:
In addition to the fact that we are an Officer of Parliament, we must consider the very nature of our ombudsman role on privacy issues for the public and private sectors. As an ombudsman and oversight agency of government for Parliament, we investigate and audit other federal departments and agencies. The necessary independence of our role as an ombudsman has been recognized by the Supreme Court of Canada in the 2002 Lavigne decision which states that we are “--independent of the government's administrative institutions--”.
The committee recognized this concern by those commissioners and the committee therefore commenced a study to investigate the concerns raised by these officers of Parliament, and for the purposes of the study, the committee included the Auditor General of Canada, the Commissioner of Official languages and the Chief Electoral Officer.
Officers of Parliament are responsible directly to Parliament, rather than to the federal government or an individual minister. This emphasizes their independence from the government of the day. Therefore, as a result of this principle, concerns have been raised that the current budget determination process may not be the best method of ensuring the independence and functional integrity of these officers.
With the exception of the Ethics Commissioner and the Chief Electoral Officer, the officers of Parliament felt that the current funding mechanism raises the possibility of a conflict of interest between them and the government, or at least the appearance of one.
Over the course of study, the committee met with all of the officers of Parliament, with academics in the field and with the officials of the Treasury Board Secretariat in order to gather information to deal with this issue. Issues about the current funding mechanism for officers of Parliament included the adequacy of funding levels, the timeliness of the process, transparency, and the capacity to respond to changes in funding needs due to technological change, mandate expression and increasing demands for an officer's services.
Officers raised the difficulty that they have in seeking budget approval from the very government which they investigate. As Commissioner Reid put it:
With all due respect, it's very difficult for the government to play both roles as the funder and as the people who are being investigated. I think there's a certain friction that must take place under those circumstances. On balance, therefore, I prefer to have members of Parliament take on the responsibility of funding, rather than have it in the hands of the government.
The possibility of a conflict of interest for the government as both source of funding and subject of investigation arises with all the officers of Parliament that we examined, with the possible exception of two. The Ethics Commissioner, as described in chapter one, is already funded under a mechanism managed by Parliament. The Chief Electoral Officer receives most of his funding by statutory authority, under parameters set out in strict detail by the Canada Elections Act.
It should also be noted that the Chief Electoral Officer is not an ombudsman. He is responsible for the delivery of the right to vote and the right to be a candidate in an election. In accordance with this role, the independence of his office from political influence is safeguarded in a number of ways, including the funding mechanism.
Professor Craig Forcese of the University of Ottawa appeared as a witness and contended that there was a legal basis for the need of independence for the officers of Parliament. He told the committee:
--at least five officers of Parliament are obliged to meet court-like standards of independence. These five officers—the access, privacy, official languages, and ethics commissioners, and the Auditor General—have the powers of a court of record to compel the attendance of witnesses and the giving of evidence. They therefore have the power to punish for contempt in response to acts committed in their presence. Because they possess this power, the Constitution requires that these officers be sufficiently independent of the government.
The committee examined a number of funding models. The first was the model currently employed by the Office of the Ethics Commissioner. This model would have the budgets of officers of Parliament considered by the Speakers of the House of Commons and/or the Senate, who would transmit them to the President of the Treasury Board for tabling along with the government estimates for that year. The budgets would not be vetted by the Treasury Board Secretariat.
There was a U.K. model that the committee reviewed and it also had its supporters. In the United Kingdom, an all party commission of parliament, created by statute, examines the proposed estimates of the national audit office and tables a report to parliament with any modifications it sees fit. Known as the public accounts commission, it is composed of the chair of the public accounts committee, the leader of the house of commons and seven other members of parliament appointed by the house, none of whom may be a minister of the crown.
Another model proposed was a panel of experts otherwise known as a blue ribbon panel. The Auditor General proposed that the panel could be composed of three persons, one appointed by each of the Speakers of the House of Commons and the Senate, and the third appointed by the Treasury Board. Another model involved long term funding as proposed by Professor Forcese in his appearance before the committee. He stated:
The thought I had was that a multi-year formula that establishes a baseline for funding for officers, so officers aren't in the present position of being obliged to go to Treasury Board each year, distances officers from at least the perception that their activities in a given year might influence the receptivity of government to funding them fully. It grapples with the independence issue and it also grapples with the cost associated with setting up this blue-ribbon panel.
After a number of meetings, the committee concluded that the status quo for funding officers of Parliament was totally unacceptable because, at the very least, it raised the perception that the critical functions of these officers could be impeded by budgetary restrictions. There was a general consensus that the budget must be removed from the exclusive domain of the executive, Parliament must play a greater and more critical role in budget determination and resource allocation must be based on objective expert analysis.
The committee felt that a parliamentary body similar to the United Kingdom model should be established to examine estimate submissions of officers of Parliament.
Finally, it was suggested that a pilot project be launched for the fiscal year 2006-07 and 2007-08 with the existing House of Commons Board of Internal Economy acting as the parliamentary budget determining body and the Information, Privacy and Ethics Commissioners as the initial participants. The committee also recommended that the Auditor General be considered for inclusion in this trial.
That was the decision of the committee in its recommendations to the House. I would like to elaborate somewhat on two of the recommendations.
First, the committee recommended that a new parliamentary body be created as the budget determination mechanism for the funding of all officers of Parliament. The new parliamentary body and the new funding process established for it should have the following features: First, the membership of this body should be representative of both the House of Commons and the Senate, and equally comprised of the government and opposition representatives; second, the officers' annual budget submissions would be made directly to this body along with an accompanying submission by the Treasury Board Secretariat setting out budget parameters and providing analysis, challenges and advice on the feasibility of the officers' submissions; third, the parliamentary funding body may obtain advice from experts, as well as from appropriate parliamentary committees to assist its deliberations; and finally, the recommendations of the new parliamentary body should be submitted to each House of Parliament, as appropriate, which would provide the recommendations to the Treasury Board for tabling as part of the government-wide estimate process.
The second and final recommendation of the committee was that the Board of Internal Economy serve as the parliamentary budget determination body for the offices of the Information, Privacy and Ethics Commissioners on a trial basis in the same manner proposed in the first recommendation. As I indicated, this project would be instituted for two years, 2006-07 and 2007-08, and shall be subject to parliamentary review immediately thereafter.
Those were the two recommendations put forward by the committee. The committee did spend a substantial amount of time reviewing the different positions of the officers of this place. The following people appeared before the committee: Ethics Commissioner Shapiro, along with Micheline Rondeau-Parent, Director, Communications and Parliamentary Relations and the Director of Corporate Services; and Commissioner John M. Reid, office of the Information Commissioner of Canada.
On another day, the following people appeared before the committee: Commissioner Jennifer Stoddart, office of the Privacy Commissioner of Canada; Jean-Pierre Kingsley, office of the Chief Electoral Office, along with Diane R. Davidson, Deputy Chief Electoral Officer and chief legal counsel.
We also had Commissioner Dyane Adam from the office of the Commissioner of Official Languages appear before the committee. Steven Wallace, acting Assistant Deputy Secretary of Government Operations with the Treasury Board of Canada Secretariat appeared twice, with a number of people from his office. Auditor General Sheila Fraser, appeared, along with Jean Ste-Marie, the Assistant Auditor General, legal services. I also indicated that Craig Forcese, law professor from the University of Ottawa, appeared.
As members can see, we spent a great deal of time deliberating and coming to the conclusions that we made. I would recommend to those in the House to read the report if they have not already.
I would like to summarize some of the items from the conclusion of the report. It states:
There is no doubt that the current budget determination process for the funding of Officers of Parliament raises serious concerns.
I think the immediate concern was raised by Commissioner John Reid who would make his presentation to the Treasury Board for funding and acknowledged that there might be an investigation going on at Treasury Board. The question is whether the whole process can be independent, that someone seeking money from someone that he is investigating be independent. The committee concluded that was not the case, which is why the committee concluded that the status quo was unacceptable.
At the very least, it raises the perception that the critical functions of these officers would be impeded by budgetary restrictions imposed by the very body whose actions they are charged in scrutinizing.
We thought that justice must appear to be done. We did not make any specific allegations against anyone but in that situation, particularly when Commissioner Reid said that he was receiving totally inadequate funding, it gave us grave concern.
The report goes on to state:
All of our witnesses, including officials from the Treasury Board Secretariat, had concerns about the present funding mechanism; however, there was a divergence of views over how to best address this issue.
We felt that the recommendations we made was a fair compromise of the various positions that were given to us.
The report continues to state:
Although not everyone could agree on the particular funding model that should be applied to Officers of Parliament, it appeared to us that there was a general consensus on what should guide the development of an alternative mechanism. Primarily, the budget determination process must be removed from the exclusive domain of the executive; while at the same time, an appropriate performance review, budgetary challenge, and accountability mechanism must be maintained.
The committee finally concluded that:
Parliament must play a greater and more critical role in the budget determination process, and resource-allocation decision-making must be based on objective and expert analysis.
This would allow members of this new committee to receive advice from different experts on different areas that were being raised.
The report goes on to state:
The process should be practical, transparent, simple, and expeditious. Finally, the system should take into consideration the differing mandates in reporting mechanisms of the various Officers.
The positions are different. We believe that the proposal that the committee is putting forward deals with that issue.
The report continues to state:
The Committee feels strongly that some form of parliamentary body must examine the Estimate submissions of Officers of Parliament. This body could be similar to the Public Accounts Commission in the U.K. in that it should be representative of all parties, and it could incorporate the Senate, perhaps by having both Speakers as ex officio members of the commission, thereby addressing the fact, for example, that some Officers report to both the House of Commons and the Senate. Like the U.K. Commission, and indeed the House of Commons Board of Internal Economy, this parliamentary body should have a permanent existence, and like the board, its membership would be equally comprised of government and opposition representatives.
Given the expertise already developed by the Treasury Board Secretariat in the areas of challenging, analyzing and advising ton the budgets of Officers of Parliament, we feel that it is imperative that the Secretariat continue this function by assisting the parliamentary body. The Secretariat could provide a separate submission that would accompany the Estimates proposals of the Officers.
Those are my submissions for the House to consider on behalf of the committee. I think this is a good proposal to develop some independence in determining how the officers of the House of Commons, and indeed the Senate, should be dealt with. I would ask the House concur in the motion.