Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 4 - Evidence - Morning meeting
OTTAWA, Tuesday, September 5, 2006
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, met this day at 10 a.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
The Chairman: Honourable senators, I am pleased to call this meeting of the Standing Senate Committee on Legal and Constitutional Affairs to order. We are meeting today to continue our study of Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability.
The bill is more commonly known as the federal accountability act. As honourable senators, our witnesses and members of the public both in this room and across Canada on television know, this bill reflects a central portion of the new government's agenda and is one of the most significant pieces of legislation brought before Parliament in recent years.
I know that the committee will give the bill the extensive, careful and detailed study that it deserves.
I should like to begin by personally thanking all honourable senators for being here today, and for agreeing to sit through extensive hearings in the next few weeks. Thank you for your dedication in relation to this important policy initiative that will benefit all Canadians.
In June, this committee commenced its study and heard more than a dozen witnesses who provided the committee with information on a range of issues that were dealt with in the legislation. Included in those hearings were the Honourable John Baird, President of the Treasury Board, and the Honourable Vic Toews, Minister of Justice and Attorney General for Canada. This week, the committee will begin more focused studies of the different aspects of the bill. Subjects that will be covered include accountability generally, ethics and conflict of interest, and political financing.
Our hearings will continue in the next few weeks on other important aspects of the bill. For this meeting, we will focus on the question of accountability. We have before us today Mr. James Mitchell, a founding partner of the policy consulting firm, Sussex Circle. He has many years of experience in the analysis and resolution of complex public policy issues and in dealing with ministers and senior government officials. After several years as a university lecturer, he began his government career in the Department of Foreign Affairs in 1978, before moving to the Privy Council Office in 1983. He later served as assistant secretary of the Treasury Board from 1989 to 1991, where, among other things, he was responsible for the government's employment equity program. From 1991 to 1994, Mr. Mitchell held the position of assistant secretary to the cabinet, machinery of government, in which capacity he was responsible for providing advice to successive secretaries to the cabinet and prime ministers on matters relating to the organization of government, the reform and renewal of the public service and a host of other issues related to governance and change in Canada.
He was a principal adviser on the 1993 reorganization of the federal government. Mr. Mitchell has provided policy and organizational advice on virtually every area of federal responsibility.
Joining Mr. Mitchell this morning is Mr. Henry McCandless, general convenor of the Citizens' Circle for Accountability. He has been a student of accountability for over 15 years, author of journal articles and a fairly recent book for citizens on the subject, A Citizen's Guide to Public Accountability: Changing the Relationship Between Citizens and Authorities.
Mr. McCandless was a principal in the office of the Auditor General of Canada for 18 years, which included being parliamentary liaison officer for auditors general Macdonell and Dye.
On behalf of the committee, I want to thank you for joining us. Without further ado, I will turn the floor over to you. We will then proceed with questions and a discussion that should prove very beneficial to committee members.
James R. Mitchell, Partner, Sussex Circle, as an individual: I prepared a two-page statement, which I conveyed to the committee staff. Do you wish me to move directly to questions, or do you want me to enter this statement into the record?
The Chairman: I should like you to enter it into the record, please.
Mr. Mitchell: Thank you for inviting me, senators. It is a year since I was last before a committee of the Senate on this subject, and I am very pleased to have been invited back. I have only a few points I wish to make in my opening statement and then I would be pleased to answer any questions that you may have.
My first point is one of modesty. Bill C-2 is obviously a very substantial piece of legislation, containing five major parts and hundreds of amendments to other Acts. While I have read it carefully twice, I do not purport to be an expert on most of the issues raised in that Bill, notably those dealing with the new offices of Conflict of Interest and Ethics Commissioner, Commissioner of Lobbying and Procurement Auditor. On those matters, I do not believe I have anything useful to say to the Committee.
In addition, there are two aspects of the Bill where, because of my current work, I should not comment, namely the appointment of the new Parliamentary Budget Officer and the Public Appointments Commission.
I should like to focus my comments instead, and I hope we could focus the committee's questions today, around an issue that has long been of interest to me — and that is the accounting officer. Senators may be aware that this is a subject that has been widely debated by scholars and practitioners alike. I think it is fair to say that all the members of that community of interest outside government and inside government waited with anticipation to see what the government would do with respect to the accounting officer in Bill C-2.
I wish to say as clearly as I can before the committee this morning that I believe the government did precisely the right thing in section 259 of Bill C-2 — that is, pages 187 to 188 — when it amended the Financial Administration Act to include a clear definition of the role and responsibilities of the accounting officer within our system of Westminster government.
That, senators, is the main message that I would bring to you this morning in my opening statement.
The relevant parts of that section are in the bill as it is before the Senate. It is very short, so I will read it quickly. Section 16.4 (1) of the revised Financial Administration Act, in other words of the act that is being amended in Bill C- 2, would read as follows:
Within the framework of the appropriate minister's responsibilities and his or her accountability to Parliament, and subject to the appropriate minister's management and direction of his or her department, the accounting officer of a department named in Part I of Schedule VI is accountable before the appropriate committees of the Senate and the House of Commons for
(a) the measures taken to organize the resources of the department to deliver departmental programs in compliance with government policies and procedures;
(b) the measures taken to maintain effective systems of internal control in the department;
(c) the signing of the accounts that are required to be kept for the preparation of the Public Accounts pursuant to section 64; and
(d) the performance of other specific duties assigned to him or her by or under this or any other Act in relation to the administration of the department.
The act then goes on to apply the same obligations to deputy heads of the other parts of schedule VI — that is to say, the small organizations that are know as departments for the purposes of the FAA. That is the major change that is made with respect to the accounting officer in Bill C-2.
One other point I should like to make is this: What are the duties of the accounting officer?
The new proposed section 16.4 (3) defines it as follows:
16.4(3) The obligation of an accounting officer under this section is to appear before the appropriate committee of the Senate or the House of Commons and answer questions put to him or her by members of the committee in respect of the carrying out of the responsibilities and the performance of the duties referred to in subsection (1) or (2), as the case may be.
In other words, Bill C-2 makes it clear that an accounting officer, under our system of Westminster government, is a deputy head answering questions about administration before a committee of Parliament. That is exactly what we have today in our Canadian practice, except that the government has decided, for good reason, to put this long-standing practice into law.
The accounting officer is not accountable to Parliament; he or she is accountable before Parliament. It is the minister who remains accountable to Parliament. To make things even clearer, the bill has a sidebar heading that practically shouts out the point. It reads ``Accountability of accounting officers within framework of ministerial accountability.''
There is one important change in Bill C-2, and again, it is a useful one in. The bill puts into law an obligation of deputy ministers that has to this point only been a matter of policy, namely, the obligation to sign the accounts and related documents such as reports on plans and priorities and departmental performance reports. This statutory obligation makes the deputy's responsibility for financial management clear, and it gives the deputy more solid ground to stand on when discussing with the minister what can and cannot be done on matters of administration.
I believe the government has done Parliament and officials a great service by clarifying what is expected of public servants who appear before parliamentary committees on their minister's behalf. Bill C-2 makes it clear that officials are obliged to answer before committees on administrative matters, while preserving the essential authority and accountability of ministers to Parliament with respect to all aspects of departmental management. Our democracy depends on Parliament having the capacity to call the person in authority to account. This bill preserves that essential relationship.
That is what I think is the major virtue of this portion of Bill C-2, and I would be happy to answer any questions that you may have.
The Chairman: Thank you for that presentation. Before I move to questions on your presentation, I should like to have the remarks of Mr. McCandless. Once they are both on the record, we will then proceed with questions.
Henry E. McCandless, General Convenor, Citizens' Circle for Accountability: I thank the committee very much for inviting me. I shall speak only about public accountability and what it means and implies for government and Parliament. I will not get into the particular clauses of Bill C-2. You have my submission, which was sent earlier — my speaking notes for this morning — and a general statement on the issue of accountability by the Citizens' Circle for Accountability. I will be adding to my speaking notes that you have a current example for the need for accountability provisions in all bills coming to the Senate.
I also had sent earlier a two-page summary of what I consider the elements of a proper accountability act. In my submission, you will see that it is not continuing to be a major issue because the bill will probably pass. However, labelling a bill the federal accountability act when it has nothing to do with accountability as such is not a right decision. There is the possibility of setting back accountability for some time — true accountability, that is.
That is why I set out the elements that I think comprise a proper Government of Canada public accountability act. I have also left with the clerk a copy of the book that I published in 2002, for citizens, which the chair has stated. It is entitled, A Citizens' Guide to Public Accountability: Changing the Relationship Between Citizens and Authorities. The book is intended for citizens, but it has a few chapters in there about holding to account in Parliament. There is only a small note in it on the Senate of Canada, but I will come to that later. I now think it is the most powerful thing that could happen in Parliament, actually.
After I had sent the clerk my submission, I reread an article that David Wright and I wrote in 1993 on accountability. We wrote it in the journal Optimum. We wrote it because everyone seemed to have totally ignored the authoritative definition of accountability set out by the Wilson committee, which is explained in my submission, back in the mid-1970s. It set out the definition of ``accountability'' as ``the obligation to answer for a responsibility conferred.'' That means to explain or to report. It does not mean to take responsibility or to carry out responsibility.
We proposed the definition of ``public accountability'' and basic standards for the public reporting. After about 10 years of trying to get a definition that is useful, comprehensive and, I would hope, unassailable, I finally produced the one that is in the submission, which is that ``public accountability is the obligation of authorities to explain, publicly, fully and fairly, both before and after the fact, how they are carrying out responsibilities that affect the public in important ways. ``Important ways'' is not a vague statement; I have explained that in the submission.
In the meantime, however, I have seen no advance in effective government accountability imposed by Parliament. We did have a couple of examples in the 1990s, the first being all government members of the House rising to deny compensation to pre-1986 victims of contaminated blood, and with those members not accounting to the public for why they took that decision when the evidence for compensation stared them in the face. We then later had the HRDC and sponsorship issues — disgraces, actually — again because the executive government was not made to account for the quality of management control in the government, which might have prevented both of those.
Here is one reason why that came about. Back in 1978, the Auditor General of Canada, MacDonnell at the time, got a value-for-money audit act, but Parliament did not at the same time amend the Financial Administration Act to require the executive government to account publicly for the quality of management control and value for money in government operations. I heard a previous comptroller general state at a conference that he could not understand why that was not done. I told him, ``You understood perfectly. It was purposely not put in.'' We then have the Auditor General of Canada doing accountability reporting for the government which the government should be doing itself. The role of the Auditor General could have been then to attest to the fairness and completeness of what people who are accountable report publicly. Instead, we just get a maze of horror stories.
What do we lose when we do not have the government obligated to report fully and fairly? We lose, first, information that parliamentarians and citizens should have to make sensible decisions about what trust they place in the executive government. Maybe even more important than that, we forgo the self-regulating influence that happens when people accountable have to report publicly and only if what they report and what they explain publicly is audited for its fairness and completeness. You cannot have public accounting on important matters without someone auditing it for its honesty.
What we need now is an operational definition of ``accountability'' that is put into the law, along with who has what public accounting obligations for what responsibilities, the basic standards for the accountability reporting, and also the standards for audit validation of that reporting.
Therefore, I proposed in my submission that the Senate can take on the non-partisan task of forging the public accountability requirements that should be an integral part of bills coming to the Senate. The Senate has unassailable power and independence to say to the Commons, ``We will not approve a bill coming to us if it does not contain a standard clause setting out who will publicly account for the discharge of all the important responsibilities that are laid out in the bill.''
To clarify what I mean by that, you have an example right at hand in the need for a standard public accounting provision in each bill. Again, it is a non-partisan requirement, and, in a democracy, people in authority cannot refuse to account. They can mislead or whatever, but they cannot refuse to account.
I would say to you that Canadians had better forget adequate protection for whistle-blowers acting in the public interest if a bill purporting to require protection does not contain a clause requiring the applicable ministers and deputy ministers to publicly explain to the House annually or if asked by a House committee the management control performance standards they have each set for themselves at their separate levels to achieve protection for whistle- blowers. They should also report the extent to which they think they have met those performance standards. The Auditor General and the whistle-blowers themselves can each publicly audit the fairness and completeness of these accountability assertions.
That gives you an idea of the powerful self-regulating influence that having to account publicly brings about.
We have all seen what the House just passed as a so-called accountability bill that has nothing to do with accountability, as I have described it. However, without a Senate initiative showing the way for the House of Commons, I would not put a lot of money on the House itself producing that kind of accountability.
It seems to me that the Senate has to show the way for the House of Commons, and if the senators do decide to deal with accountability meaningfully, I would do anything I could to help with you that.
The Chairman: Thank you very much for that report.
Mr. Mitchell, I heard your report, and I know that you talked about the accounting officer concept. You said that the accounting officer is not accountable to Parliament but before Parliament. You made that important vital distinction, and you also noted that the legislation preserves the important provision about ministerial responsibility.
You went on to say that one of the important changes, however, is that the act will put into law the obligation of deputies to sign the accounts. That reminded me of Sarbanes-Oxley in the United States where for corporations, at least, there were very serious consequences for senior officers of corporations in the United States if what they signed was not accurate.
What will be the consequences for deputy ministers under this legislation? What are the legal consequences of signing?
Mr. Mitchell: Senator, that is a good question. I am not a lawyer, and I cannot give you a legal answer to your question. I can certainly say that, in my view, if someone falsely signed the accounts or signed the accounts and the accounts were not as they were purported to be, it would be one of the most serious offences that one could commit as a senior official. In my personal opinion, not a legal one, that would be effectively a firing offence. That would be an unthinkably serious thing to either make a mistake on or to deliberately mislead on. It would be an extraordinarily serious thing. I am sure that anyone else who came before you from the bureaucracy would tell you the same thing.
Signing the accounts is the government's way of putting into law the obligation of officials to satisfy ministers that they have the facts before them and that what they are presenting to Parliament is accurate, as compiled by the competent officials. The deputy signing that is a very serious matter, and I cannot imagine anyone wilfully misleading Parliament on that. A mistake in that area would be an extraordinarily serious mistake.
The Chairman: I should like to turn to Senator Day, who is the opposition critic on this bill.
Senator Day: Thank you, Mr. Chairman. On behalf of my colleagues, I should like to welcome both of you here today. I shall try to follow your request and restrict my questioning to the area of your presentation, but if I or any of my colleagues wander a little bit, you will understand that this session was intended to deal with a bill of over 300 clauses and over 200 pages. We are at the front end of our hearings and dealing with the concept of accountability generally, so I should like to start there.
Mr. McCandless, you say the first thing is we should change the name of this bill. If it is not a government accountability bill, what would you call it?
Mr. McCandless: First, I do not think you will get the title changed. It went before the public in November of last year, that is the name of it and that is the way it will be. If you objected to the bill on that ground, it would be sent right back to you, and the public would not care that much because the public does not understand what accountability is. It is a word that is tossed around a lot.
The title ought to have been ``a federal government conduct act,'' or something to the effect of conduct, because as I skimmed through it, it is a proposed act having to do with prescriptions for people's conduct, what they will do and not do. That is not accounting.
Accounting is explaining what you intend and why you intend it, your intended performance standards, the results you think you have brought about and the learning you have gained and applied. That is not what the bill is about, as I see it.
That is one of the reasons I do not want to get into all the different issues. Mr. Mitchell rightly confines himself to the accounting officer act, which is something that you can deal with. What I am trying to say is that hereafter Parliament can do something sensible about achieving adequate public accounting from government and let the bill title go as it is.
As I say, the public will not stave off or want an election over the heading of it when the public does not even understand the difference between accountability and responsibility and blame or taking responsibility and all these other things. I just argue it because I did not think that the legal staff in Parliament should have let that go by when the title of the bill is obviously misleading.
Senator Day: Your comment just now in answer to my question reminded me of a comment you made during your presentation, where you stated, I believe, that the bill has already been passed. You meant already been passed by the House of Commons.
Mr. McCandless: Yes, I did.
Senator Day: However, it has not been passed by Parliament. I wanted to clarify the record on that.
Mr. McCandless: You have to be practical about these things. Is it worth it to stop a bill because of the misleading title?
Senator Day: Could we start by confirming that each of you has the same definition of accountability?
Mr. McCandless, you talked about Mr. J.R.M. Wilson's definition. He is a retired senior partner at Clarkson Gordon who did some work on this subject for the mandate of the Auditor General back a number of years ago.
Mr. Mitchell, do you accept that? Are we talking about the same thing in terms of the definition of accountability?
Mr. Mitchell: I would prefer Mr. McCandless' first short definition. I think it is easier to work with. I have not reflected enough on his longer definition. His first short definition, as I recall, was that accountability is an obligation to answer for the exercise of responsibilities conferred. I am happy with that. I would rather not comment on his longer proposed definition because I have not had opportunity to think about it. To that extent, I think we are talking about the same thing.
Mr. McCandless: That is fine by me. Mr. Wilson was talking about accountability in Parliament, and responsibilities conferred would probably apply to appropriations and the power that Parliament gives to the executive government to carry on. In my book, I say that is a good basis for considering what public accountability ought to mean because it stresses that accountability is the obligation to report, to answer for, to explain. It is not the taking on of a responsibility or the carrying out of it.
The reason I went to my larger definition was that I am working for citizens. If an authority does not act sensibly in the absence of some statutory requirement to do a particular thing, in my view they still are publicly accountable, just out of plain fairness and common sense.
For example, I think a minister proposing something as government policy should state publicly, at the time that policy is presented, who would benefit from that policy, why they should benefit, who would bear the costs and risks of that policy and why should they, both in the short and longer term.
The Wilson definition was working within the ambit of estimates and the public accounts and that sort of thing. One could not expect Wilson, back in the mid-1970s, to say, ``Wait a minute, we have to bring a social fairness proposition into this and have authorities account publicly when they intend something that would affect the public in important ways.'' I am making that broader than the most senior chartered accountant in Canada would have.
Senator Day: You said responsibility to answer for, to explain. Does that include any consequences for failure to carry out the responsibilities properly?
Mr. McCandless: No. In my view, accountability is simply explaining publicly what you intend and why you intend it, your own performance standards, and then, after the fact, reporting what you think came of it and how did you apply the learning available to you. I do not get into the consequences of not accounting adequately.
Senator Day: Mr. Mitchell?
Mr. Mitchell: I believe that accountability does include concepts like consequences and authority. I do not believe, for example, that you can be accountable to someone who does not have authority over you or to someone who has not conferred a responsibility on you. However, I do think you can account in the sense of explaining and answering, as Mr. McCandless was saying. I think officials should do that in support of their ministers before Parliament.
That is why I made the point that I think this time the government got it right on this particular matter. I am saying that because I have been arguing this point for a number of years. I had nothing to do with the drafting of this bill, advising on it or anything. When I read it I thought, wonderful. They have taken the right position. That is why I am endorsing it. I think the government has done the right thing here.
I think it is the right thing to do because it preserves that fundamental relationship of ministerial accountability to Parliament. It is the minister who Parliament holds to account. It is the minister whose authority we want to preserve. It is the authority of ministers over officials that we want to preserve. There should always be a parliamentarian that members of the House and senators can hold accountable for what is done by the government. I believe very strongly in that, and that is why I like this portion of the bill.
Senator Day: That leads us to the bill, page 187, the part entitled, ``Internal Audit and Accounting Officers,'' section 259 of the bill, amending the Financial Administration Act. You made reference to that. It is proposed section 16.4.
I should like your understanding of what this means when it says, as follows:
Within the framework of the appropriate minister's responsibility and his or her accountability to Parliament, and subject to the appropriate minister's management and direction of his or her department...''
What do all those qualifiers mean in the day-to-day activity of the deputy minister and the minister?
Mr. Mitchell: In my view, those words are intended to make it very clear that the minister is in charge and is responsible to Parliament for what is done in and by the department. It is to make it very clear that there is nothing in this proposed act that takes the officials out from under the authority of the minister.
Senator Day: Can the minister be accountable to Parliament for something that his deputy minister is accountable for before a parliamentary committee?
Mr. Mitchell: Yes, indeed, sir. When we say ``accountable before a parliamentary committee,'' as I understand this proposed statute here, the intent of these proposed sections is to say that officials are obliged to appear before committees like this one or committees of the House and to answer questions from senators or members of Parliament about what they have been doing in their departments. They have a statutory duty to do that on behalf of their minister, in support of their minister's authority and responsibility to Parliament. They have an obligation to answer truthfully and fully.
That is what these proposed sections are intended to establish clearly, which I think is useful. I do not think it changes much, if I may say. I wish to be clear to senators this morning. I think the useful service that is done by this portion of the bill is to make it very clear in statute what in fact has always gone on. I know this as a former official. When I appeared before a committee, I was there on behalf of the minister to answer questions, to be subjected to serious and often rigorous questioning about what, as an official, I had done. There was no mistaking that it was the minister who was the boss and the minister who was ultimately accountable to Parliament.
There are a few specific cases where officials have authorities in their own right which must be handled in a slightly different way, where the law gives authority to an official. For example, the commissioner of the Canada Border Services Agency has some authorities under the Customs Act. The minister does not have the authority; the official does. We have to handle those situations slightly differently.
Senator Day: That was my next question. There are exceptions to this?
Mr. Mitchell: There are a few minor exceptions, which do not change the basic principle that in our parliamentary system it is ministers who have the authority and ministers who are accountable to you, the parliamentarians.
Mr. McCandless: I do not really agree with that. I will give you two examples.
First, I agree that government officials appearing before a committee answer questions, and in that sense they do account directly to Parliament.
An outstanding example in my mind is the nifty question that a former vice-chair of the public accounts committee in the House asked of Marcel Massé, I think it was, who had just become the deputy minister for CIDA. He really surprised the deputy minister by asking him the following questions: What would you say are your most important management problems and what are you doing about them?
It was nifty because it required the deputy minister to know what was going on in the department, to inform himself adequately, and it also asked, What are you, at your level, doing about the management, which is your responsibility?
I believe that a deputy minister, as in HRDC, should account to Parliament for the quality of management control that is under that person's power and jurisdiction. I view the minister as accounting to Parliament for the quality of management control as the ultimate — for those of you who remember Lord Denning — concept of the directing mind. All ministers are accountable for the quality of the deputy ministers as to how they are exercising diligence in management control.
I do believe that deputies should account in some form. We are not talking about responding to a committee here. We are talking about a report to Parliament on the quality of management control in their department to which the Auditor General can attest. In that sense, I am saying that deputy ministers are directly accountable to Parliament for that and I do not think they should be hiding behind the minister.
Senator Day: Mr. McCandless, is your explanation of an accounting officer or deputy minister similar to the accounting officer concept that exists in the U.K. and Ireland at the present time?
Mr. McCandless: I used to know something about that but I have not involved myself. I am not disagreeing with the accounting officer concept. Someone formally takes authority for certain things, but that is a separate issue in my book from the deputy minister being accountable to Parliament for the things that logically that person should be responsible.
Senator Day: Mr. Mitchell, in your answer you say that the minister can be accountable to Parliament for something that an accounting officer is accountable before a parliamentary committee.
Mr. Mitchell: Yes, sir.
Senator Day: That has an exception in the statutory responsibilities that are given directly to a deputy minister.
Mr. Mitchell: In a few cases.
Senator Day: I know there are some delegated responsibilities through Treasury Board and the Public Service Commission that are given to deputy ministers. Would you put those delegated responsibilities in the same exception category?
Mr. Mitchell: Actually I would not, because Parliament has other people it can call who are the people to whom it has entrusted those statutory authorities and who have delegated them to the officials. Therefore, if Parliament is unhappy with how those delegated authorities have been exercised, ultimately it can call the person or persons who have been delegated those authorities and they can be held accountable for what they have done. Parliament might ask why they would delegate to a deputy minister who has obviously not done a very good job. It might question what has been done to review that delegation.
I actually would confine my exceptions to quite a limited range, and not in an effort to protect officials but rather to protect the authority of Parliament over the government. That is my objective here in my comments.
Senator Day: What I would like to get to is why you believe it is a good idea to make this statutory when, in effect, all we are doing is putting in a statute what is already taking place here in Canada and has been for some time in terms of deputy ministers appearing before committees, like the Standing Senate Committee on National Finance. We have them here quite regularly and they answer questions with respect to administration, et cetera. This does not go as far as the accounting officer concept as exists in the U.K. at the present time.
Mr. Mitchell: It does not go quite as far but it goes a long way toward that. I believe some senators went over to speak to officials in the U.K. You have had more direct contact than I.
However, what this bill does very usefully is it reinforces the point that ministers are in charge and they are responsible. If this bill had been in place, you might not have had some of the confusion you saw over the last couple of years where ministers got up before committees of inquiry and said it is not my responsibility.
I do not think that is a good thing. Parliament should never have a minister saying, ``It is not my job, it is the officials'.''
Senator Day: Is the value you see in making this statutory, in effect, a reaffirmation of ministerial responsibility to Parliament?
Mr. Mitchell: Yes, sir.
Senator Day: That is very helpful.
Mr. McCandless gave us an example of what we should do, in what we will call the federal government conduct legislation that we are dealing with, to create an accountability clause. With respect to various pieces of legislation that come before us, you were suggesting the Senate might take the initiative. Would you suggest that we should take the initiative with respect to this piece of legislation, Bill C-2? Should we have a clause saying that all statutes coming through Parliament should have a framework of accountability?
Mr. McCandless: That would show up the misleading aspect of the title of the proposed act.
No, I would see a Senate initiative as being, first, to get a handle on what public accountability should mean in the Senate's view and then state to the House of Commons that for any bill coming before the Senate that sets out important responsibilities of people there shall be a standard clause stating who will account publicly for what responsibilities. That is not telling anyone how to do their jobs. It is non-partisan. It is, in my view, simply an unassailable requirement.
My sense of the proposed act is amendments such as putting in a sunset clause or other aspects can be made. However, I would see not having the initiative I am suggesting buried in the turmoil or discussion of this Bill C-2. I would see it as something that the Senate works on and then goes public with what they intend.
In fact, the Senate, in my view, has the power to require this anyway. The House of Commons can send it back to the Senate, I gather, and it would then pass. In the meantime, the Senate can tell the people what is going on, which is that the government of the day does not want to include accountability in the bills that have to do with important responsibilities and let the government deal with that. I believe the Senate would have the people of Canada fully on side for that. The beauty of it is that it is non-partisan. Accountability is just a society of imperative; it is not political policy. I would not try to stick it in the bill right now. There is too much going on. It seems to be a bill having a whole bunch of disparate requirements, with the accountability officer being one.
I certainly agree with Mr. Mitchell that with the concept of the directing mind the minister is ultimately responsible for the quality of the deputy ministers to which he has alluded, but it does not say that a deputy minister should not account directly to Parliament for the quality of management control because that is really the deputy minister's job, which was not done in HRDC as the evidence of the parliamentary discussions on that would attest.
Senator Day: Do you see any difficulty with that statement when you have in mind that in our process here it is the practice that the Prime Minister and the Privy Council Office choose deputy ministers and not the ministers?
Mr. McCandless: That can be sorted out, but it is not the Prime Minister who writes cheques, it is the minister. The ultimate responsibility and accountability, I agree totally with Mr. Mitchell, lies with the minister. I am saying that that does not preclude the deputy minister explaining to Parliament the quality of management control that it is his or her job to oversee.
Mr. Mitchell: Senator Day, just to be clear for the committee, as I see it there is an important point on which Mr. McCandless and I agree, and that is that it is a good thing for officials to come before committees and explain what they have been doing with respect to management.
Mr. McCandless: If they are called.
Mr. Mitchell: Yes. Where I think we disagree is that I would not favour the insertion into every bill of an accountability clause that explains who is going to be doing the answering. It will always be clear that there is a minister responsible for every piece of legislation and every institution in the government. Therefore, the minister is accountable.
Who answers in a particular case is up to the committee and the minister. The committee can call who it wishes and the minister can either appear personally or send the deputy, the executive director, the director of finance or whoever. In that way, the committee has the appropriate official to answer the questions the committee poses.
I disagree with Mr. McCandless with regard to inserting a clause into every bill. I agree with him when he says it is important for officials to come before committee and answer questions from senators and MPs about management.
Mr. McCandless: A bill coming before Parliament can set out the responsibilities of people other than ministers and people in departments. It can set out responsibilities for the Canadian Blood Services, for example, or for some other entity in society. If that is the case, then the bill should also set out what those ultimately accountable people will report and how they will report it.
I remain disagreed on the question of accountability only coming up when someone is called before a committee. Canadians can legitimately expect that in some report to Parliament a deputy minister will make an assertion about the quality of management control in that department.
As I said, management control is simply having the processes in place to ensure that what should happen does happen and that which should not happen does not happen. That responsibility lies principally with the deputy minister. However, it is the minister's responsibility to ensure that he has a deputy minister who is up to that. I do not want to get into whether that is a process fought out between the PCO and the Prime Minister and the minister. It is something that has to be sorted out. I would not like to supply accountability rules for that process.
It is a minister who signs cheques, not the Prime Minister or the PCO. Therefore, the minister has to be ultimately responsible and accountable for what goes on in the department.
Senator Stratton: Mr. Chairman, this has been a fascinating and interesting morning.
To recount a bit of history from the last Parliament, the Standing Senate Committee on National Finance did a study on this very issue. However, the report was never tabled. We travelled to London and Dublin to determine how those Parliaments imposed controls to ensure that the events that occurred under the last government did not happen again.
The fundamental question is misleading. I say that in terms of recent events such as the HRDC scandal, the Gomery inquiry and the gun control issue. The gun control issue is particularly rancorous to me because we had deputy ministers sitting where you are sitting today who told us year after year that this would be the final year in which cost increases would occur. That was after having the minister tell us unequivocally that the original cost would be $3 million and that it would not exceed that amount. The program ended up with extraordinary cost overruns.
We can discuss the esoterics of responsibility and that kind of thing. However, what Canadians really want to know is how this bill will prevent such things as the sponsorship scandal, the HRDC scandal and the horrific cost overruns concerning gun control from happening again. Those are the three fundamental issues. Will this bill address and resolve those three problems?
Mr. Mitchell: That is a fundamental question. As I read the bill, I think it is the government's intention that the bill strengthen the capacity of Parliament to put the government under scrutiny and to hold ministers accountable. As a private citizen, I believe that is one of the major purposes of this bill.
There are many measures in this bill that are intended to make government more transparent. They are intended to clarify the responsibility of ministers and to open up internal processes to more careful scrutiny by Parliament, the press and the public. In all those ways, is intended to make it easier for parliamentarians to hold the government accountable for what is being done, whether it concerns the gun registry, grants and contributions or contracting. I think that is the purpose of the bill.
There is a lot of machinery here in the bill. It is up to senators to decide whether you think all that machinery makes your job easier or more difficult. In some important ways, it strengthens that, and that is a good thing.
Mr. McCandless: The way I see gun control, for example, is as a matter of management control. I am not sure the bill addresses that. I do not know that it even mentions the term.
To me, if you are accountable for the quality of management control at your own level and you have to assert publicly what you think the quality of that management control is, then it will have a self-regulating affect on how diligent you are.
When Kenneth Dye was Auditor General, we had a project that would make the Auditor General more accountable. One of the deputies said, ``I see. If the Auditor General has to report on how effective his office is or how well it is run, then that will alter the conduct of people in the office. That is brilliant.'' It is almost axiomatic.
For me, if you want good management control in government, you have to make the responsible people account publicly and state what they think is the standard of control. Then you have to have an Auditor General attest to the fairness and completeness of that assertion. That is what the office of auditor general should be for.
The bill may have bits and pieces of prescriptions for conduct, but it does not address the question of who will account for the quality of management control in government so that other sponsorship scandals or the problems that occurred around gun control do not happen again.
You can call me a one-issue person, but it is a huge overriding umbrella issue.
Senator Stratton: In the end, the gun control issue illustrates clearly how the government did not have any real control over what was transpiring with the management of the program. The sense we got year after year was that there were always constant surprises. For example, the computer system did not work or the software had to be redesigned. Because it was an entirely new area, it was beyond the scope of what they were used to dealing with. They just did not know. That was the sense I got after sitting around the table year after year with them. We received assurances that this would not occur again, but every year it did occur again. I got the strong sense they did not know what they were managing. They would not admit that. Yet we had the same story year after year from the same individual. I am not talking necessarily about the President of the Treasury Board but about the deputy minister. I got to know him fairly well and thought he was a decent chap. The problem is what to do with a situation like that. How do you describe accountability in a situation in which they did not have proper control?
I believe they only misled us to the degree that they thought they could get the situation under control by the next year and the problem would not recur, but that did not happen. Would you like to respond to that? That is a kind of accountability that it is necessary for us to understand.
Mr. McCandless: Someone is accountable for the quality of management control; part of management control is the duty to inform oneself adequately for making decisions. If they did not really know what they were doing and were just stumbling around at the outset, and that just carried on, someone has to let the ministry know that that is the situation, that they are stumbling around because it is all new. The question becomes how new it is in common sense project management terms. Was the repeated situation avoidable?
You cannot expect ministers to know what good project control is, but it is the minister's responsibility to have someone in place who does know and who can control what is happening even in a new area. That is just general project management diligence.
Mr. Mitchell: To touch on a different dimension, senator, I believe that the most effective thing that can be done to ensure that you do not face cases like that in the future is to strengthen the capacity of Parliament, both the House and the Senate, to rigorously hold ministers to account and to rigorously question officials about what is being done in various areas of spending. That is far more important, and potentially far more effective, than writing any set of prescriptions in the law about what officials are supposed to do in this or that case. The fundamental instrument is your relationship with the minister and the answerability of the officials before your committees. The better you can equip committees of the Senate and the House to do their jobs as fully and rigorously as they wish, the better result you will get.
Senator Stratton: I agree with you completely that that should be the ultimate objective. My concern is the frustration of the Finance Committee in questioning the officials for five, six or seven years. The answers were always the same. I would never suggest that we were being deliberately misled. However, because this occurred year after year, we did wonder whether we were being deliberately misled. When the problem is escalating and the public is getting angrier about it, the question of whether the officials are deliberately misleading lingers. How do you get to the bottom of that with what you are saying today?
Mr. Mitchell: I cannot believe you were being deliberately misled.
Senator Stratton: I do not believe it either, but that was the question.
Mr. Mitchell: I accept that you were frustrated, that you may not have been adequately informed, and all the rest of what you have said. I have enormous respect for committees of the Senate, which are very substantive, and for committees of the House, which are no less important. The more committees can equip themselves through rules, membership, work plans, resources, staff and your own hard work to tackle those questions in a systematic way, an in- depth way, a way that never lets issues drop but rather keeps after big issues, and the more you televise and have press coverage of these hearings, the better you can do your job. All of those steps will ultimately be much more effective in getting at the issues you want to get at and in holding the government accountable.
That is my own experience and my own view.
Senator Baker: On several occasions the witnesses today referenced the work of Judge Gomery who, of course, struggled with the question of accountability. He heard many witnesses and made many recommendations.
I conclude, Mr. Mitchell, that you do not think very much about Judge Gomery's recommendations on accountability and what to do about it. Is that correct?
Mr. Mitchell: Senator, I disagree with some of what the judge concluded on matters of accountability, although not on matters of fact.
Senator Baker: Like what?
Mr. Mitchell: For example, I have a different understanding of what our Westminster system tells us about the responsibilities and accountabilities of ministers and officials than what I read in the report of Mr. Justice Gomery.
For example, Mr. Justice Gomery concluded at one point that he did not know who was accountable, because people denied that they were accountable. I would have said it is obvious who is accountable, even if they deny it.
There are a number of matters on which I do not share Mr. Justice Gomery's view, but I would rather stress for the committee today that I strongly believe in the virtues of our Westminster system and I strongly believe in reinforcing the accountability of ministers to Parliament and in reinforcing the capacity of Parliament to hold ministers accountable. That is my bottom line.
Senator Baker: One would conclude from your remarks that you are happy the government did not accept the recommendations of Justice Gomery as far as accountability is concerned.
Mr. Mitchell: Yes, sir, I was pleased to read what is in this bill. I was pleased to see what the government had done, but my views on these matters were known long before this case.
Senator Baker: Mr. Mitchell, you have said on occasion that Justice Gomery, in his conclusions on accountability, was wrong in law, in fact and in theory. Is that not correct?
Mr. Mitchell: I said that in a speech I gave, yes.
Senator Baker: Would you care to elaborate on that? I have read some of your speeches. You appear to have a good grasp of the law as it relates to accountability of public servants and the minister. You were very harsh in your comments concerning Justice Gomery, yet you have been glowing in your praise of this bill. Both Justice Gomery's report and this bill are about accountability but, according to your estimate, they are miles apart.
Mr. Mitchell: In fact, senator, you put your finger on a very important point. In his report, Mr. Justice Gomery did not properly reflect the principles and the features of our Westminster system with respect to the accountability of ministers and officials. In this part of this bill those features are properly reflected. The short answer to your question on this particular matter, senator, is that there is a difference, and I am happy to endorse the government's actions because I think they got it right. This bill clearly states that ministers are responsible, that ministers are in charge and that ministers are accountable to Parliament. I am pleased to see that because it is good for democracy, good for Parliament and good for Canada.
Senator Baker: Mr. McCandless, do you agree with Mr. Mitchell that Judge Gomery got it wrong?
Mr. McCandless: The problem, with due respect to the lawyers present, is that in the inquiry into lethally contaminated blood, Judge Krever did not address accountability; Judge Curran did not address accountability in Westray; and Judge Gomery had no background in management control or accountability and took the advice of academics. If you try to fit accountability within notions of ministerial accountability and the processes of Parliament — some of it ritual — then such problems will arise. However, if you begin with a concept of accountability that is useful to citizens and then match to that what people say about ministerial responsibility, it is likely that you will find inadequate the existing notions of ministerial responsibility and the things academics like to write about forever.
Justice Gomery needed to have people on his commission who knew management control and who would operate under a useful concept of public accountability, which for him did not exist. I sent that commission my book and my statements; they were ignored, but that might be because of Judge Gomery's background. On the question of who is responsible, which Mr. Mitchell referred to, Justice Gomery did not have an adequate handle on public accountability. Therefore, statements about accountability in his report would not likely be as rigorous as they should be nor what citizens could understand. The issues you have been discussing are not as relevant to my neighbours in Victoria, British Columbia.
Senator Baker: Mr. McCandless, you used the word ``fraud'' when you mentioned the government's accountability bill and suggested that the government was perhaps guilty of fraudulently calling this bill an ``accountability act.'' Could you elaborate on that?
Mr. McCandless: Staring the government in the face was this authoritative definition of ``accountability'' as the obligation to answer for responsibilities, which is to report or to account. There is nothing in the bill about that accounting. There is no definition of ``accountability'' in a bill labelled ``an accountability act.'' The government hijacked the popular term ``accountability'' and said there will be an act in that respect. It is true that everything in the bill relates to accountability, but the bill is not about people's accounting obligations. That is why I say it is fraudulent. I cannot believe that the people who put the bill together, either in Mr. Harper's office or in the office of the drafters, did not know what ``accountability'' truly means.
Senator Baker: Mr. Chairman, I must say that the two witnesses have been extremely straightforward in their comments publicly and before the committees, and we appreciate that very much.
Senator Milne: Mr. Mitchell, you have stated clearly that this bill defines the role and the responsibilities of the accounting officer properly and that they are in agreement.
My question is about the proposed director of public prosecutions. In your time with the Treasury Board and with the Privy Council Office, was such a proposal ever brought forward for consideration? Do you recall a need to reorganize this section of the Department of Justice? It seems to me that the office of the proposed director of public prosecutions could become a kind of ``star chamber'' system in Canada like the one they have in the United States.
Mr. Mitchell: Senator Milne, I do not purport to be an expert on that portion of the bill. However, I do not recall a formal proposal to create a director of public prosecutions coming forward during my time in government. That idea always existed for consideration because other jurisdictions have done the same thing. The U.K. has a director of public prosecutions and I believe that Nova Scotia has one. A number of other parliamentary jurisdictions have separated that part of the attorney general function from the minister of justice's policy role.
I do not see anything in this bill that would lead me to think that it had those potential negative consequences. This is a straightforward effort to set up something that similar Westminster jurisdictions, such as the U.K. and Nova Scotia, have. It will not be easy to untangle the various elements of the Department of Justice that are involved, but I am certain that officials and the minister are thinking about that. Senators would have to ask them about how they are proceeding.
Senator Milne: Would you foresee that, in effect, it might be untangling those aspects of the Minister of Justice from the overview of Parliament?
Mr. Mitchell: No, senator, I do not think that is the bill's intent. I am not a lawyer but I see it simply as a decision to do in Canada what has been done elsewhere — to have a clearly autonomous federal prosecutorial function that is ultimately subject to ministerial override but in a statutorily transparent way. It seems to me that is a good thing. I have no reason to think otherwise, and that is all I would care to say.
Senator Milne: Mr. McCandless, I pose the same question to you.
Mr. McCandless: I will have to pass on that because I did not review that part of the bill. As I said, I am a one-issue person on Bill C-2.
Senator Milne: Mr. McCandless, you noted before the committee in the other place that you would like to see a section added to the whistle-blowing provisions of Bill C-2 to ensure that ministers and deputies report annually to Parliament. Of course, that is the topic of your presentation today.
Do you foresee these reports presented in writing or will ministers and their deputies simply appear before parliamentary committees to answer for the operation of their internal policies on an annual basis? How would you view the establishment of a convention whereby a parliamentary committee would review the policies of a set number of departments each year and report to the chamber on its proceedings? How would that kind of committee and the reporting system be set up? I foresee such a committee and its mandate preoccupying the entire sitting time of Parliament.
Mr. McCandless: Senator, in your question regarding executive government reporting, for example in a whistle- blower case, do you mean that the minister and the deputy minister each would make an annual statement on the quality of management control over the actual protection of whistle-blowers?
Senator Milne: Would there be a specific committee?
Mr. McCandless: No, but I could see a short report in each of the department's annual reports or something like that.
Nothing should ever take away from an applicable committee's intention to interrogate ministers and deputy ministers on what they are doing. However, in the whistle-blower case, if the deputy minister and the minister had to state annually in a document and had to report to Parliament what they thought their actual performance was in the protection of whistle-blowers, I think you should have that under the purview of the Auditor General to say, yes, that seems to be what is going on. Then you would also have the whistle-blowers themselves saying no, that is not what is going on, I am sorry, that is not right. Then that comes up for debate in the House of Commons or indeed here.
The point is that for the minister and the deputy minister to have to go on the public record stating the level of diligence that they see themselves carrying out in the protection of whistle-blowers imposes a self-regulating influence on their diligence. You can fight in Parliament or even in Senate committees about how adequate you think the protection actually is compared to what it is purported to be, but it is the business having to state publicly in print what you think the standard is that you are meeting that improves the conduct of those responsible.
Senator Joyal: Mr. Mitchell, I would like to come back to one of your answers to Senator Stratton. You stated that one of the most important measures to keep the administration accountable generally would be to strengthen the capacity of Parliament; you say that is far more important than any prescriptions in law or regulations.
I am not disagreeing with you on this, especially when I read your September 2004 presentation to the new members of Parliament. You said:
Most MPs would say that committees have not functioned as useful forums for finding out about government policies and programs.
Most would say that committees have not been effective forums for holding Ministers accountable for what they have done with the money voted to them.
Most would say that committees have at best done a passable job of developing recommendations for change to government policy and legislation.
And many MPs would like more professional staff to support House committees.
According to your comments this morning and your evaluation generally of Parliament, the least we can conclude is that Parliament needs to be strengthened. I totally agree with you on that.
Moreover, to come back to the Gomery recommendations, I read at least five recommendations that deal specifically with enhancing the government capacity — recommendations one, three, four, seven and eight. Five recommendations out of 16 deal with strengthening the capacity of Parliament. However, in Bill C-2, it seems to be half of the pie. There are many regulations, many administrative amendments to existing practice or, as you say, consolidation of practice, but where is Parliament in that bill? We do not have from the government any enunciation of objectives whereby the capacity of Parliament would be enhanced in the way that you quite rightly suggest and the way that Mr. Justice Gomery has suggested.
If we adopt this bill as is and implement it within the present context of the way that Parliament functions, will we really get to the core of what we want to improve?
Mr. Mitchell: First of all, thank you for pointing out that there are a number of places in the Gomery report where the commissioner made recommendations with which I fully agree.
Second, I am very modest about appearing before a committee of Parliament here at the Senate and suggesting to senators or parliamentarians how they ought to run their affairs. When I made those remarks in 2004 that you have just quoted, that was my perception of how committees work. Basically, I was saying to parliamentarians then that committees do not work as well as they could — and I do believe that.
When I have appeared before parliamentary committees as an official, I have often felt it was a shame that those committees did not get at the real issues they should have been exploring. I know many officials who have had the same experience. Almost all officials would welcome House and the Senate committee's being better able and better equipped to really get at the issues that matter to Parliament and to Canadians — and, frankly, that matter to the department.
You are absolutely right, senator, that this bill does not address the things that you talked about. I do not know whether it could because, in a sense, it is up to Parliament to determine how to conduct its affairs. It is up to the Senate to decide how to run its business; it is up to the House of Commons to decide how to run its business.
The government ultimately controls the resources that it gives to committees to do their work, so there are some obvious areas in which the government can signal that it either supports an enhanced role for committees or it does not really favour it. You know how that has varied over the years of your career, senator; sometimes committees have had more money and broader mandates, while in other years they have had less money and more restricted mandates.
I am not sure I would personally favour a lot of legislation that would tell the Senate or the House how it ought to do its business. I would rather encourage the government, the Senate and the House of Commons to take the opportunity to do things differently and better, if I may say that.
For example, I think the rules of committees, especially in the House, could be made much more conducive to get to in-depth questioning of witnesses on issues. If committees had a more focused and deliberate approach to questioning of witnesses, they could get far deeper into matters than they do right now.
Furthermore, the way in which committee business, schedules and agendas is managed could be improved. It should be clear to senators and MPs where they will be devoting their work in this session of Parliament, where they will put their effort and time, so that a particular committee would become quite an important focus of the work of a member or a senator, and would have the proper resources and the right support from the Library of Parliament or your own staff. Committees could go a long way, then, senator, and that would be a good thing. You would get more press; you would get more public attention. The papers would follow the committee hearings much more closely, although they are following them more and more, I notice. Much could be done, but it is not so much a matter of legislation as it is of how the two Houses decide they will run their own business.
I would support going much farther down that road. However, I want to be careful about presuming to tell the Senate how to do its business. I am not here to do that.
Senator Joyal: Mr. Mitchell, the bill should have been complemented with an enunciation of objectives for Parliament to consider. It should have had terms of reference to the Standing Committee on Rules, Procedures and the Rights of Parliament for both Houses to reconsider their practice and make recommendations about how they would deal with all the reports that would be piled now on the desks of MPs and senators from the public accounting officer, the director of public prosecutions, the director of lobbyists and all the other officers attached to the public administration.
How would that be digested in Parliament? Generally, the intention of the bill is positive. However, the implementation of it on Parliament's side falls short of any kind of suggestion that Parliament should reconsider the way it has dealt in the past with reports at the Finance Committee or at the Public Accounts Committee or the way committees have tackled their work. An important element is added to this bill to deal with that.
Furthermore, there is the question of resources, as you have mentioned. The government can hold the committee at bay, if it wants to do so, by maintaining the current level of resources and by piling on more work without providing the proper resources. We have good intentions but not the practical means to deal effectively with the recommendations in the report. Those seem to be the two sides of the effort that we should be considering if we want to be effective in terms of dealing with the objective of the bill.
Mr. Mitchell: I agree with much of what you just said. I think it is possible for the Senate and the House of Commons to move the yardsticks through their work, regardless. What becomes perceived as necessary can change, depending on what the Senate and Senate committees or House and House committees can do. The more effective those bodies are, the more the public expects and appreciates that the committees are important, and the harder it is to deny resources to the committees and to control the mandates of the committees.
I believe that the more you do the kind of thing you have been talking about, senator, the more you will change the yardsticks and the higher you will raise the public's expectations of the committee and the Senate.
Mr. McCandless: In my book, I have several pages on the quality of House of Commons committee questioning under the title ``The Quality of Opposition Questioning.'' Maybe that comes from having been parliamentary liaison to the Public Accounts Committee at one time.
We cannot expect all members of the public to ask the nifty question that Louis Desmarais asked, namely: What are your main management problems and what are you doing about them? Coming from a large corporation, he may have been able to ask the right questions based on the responses he got. I do agree that it is possible that members of Parliament and senators can train themselves to hold to account better. In fact, 10 days ago our new MP in Victoria called me to her office. I gave her my book as she headed off to Parliament. She told me she wanted to be trained in holding to account. We will see what happens.
It is not that difficult. It does not take that many resources. You must have the right people involved. I do not know much about the orientation sessions for new MPs, but I doubt there is a section in training that deals with how to hold to account properly as an MP, whether for the government or in opposition.
I am not getting into scheduling and that sort of thing, but I think it is possible for parliamentarians to train themselves better in asking the right questions of the executive government. It is not rocket science.
Senator Fox: Perhaps you could jog my memory. I remember reading in the various statutes that the minister has the department and, if I recall, the deputy minister has the management and direction. Do I have that right? What was the wording?
Mr. Mitchell: The statutes usually state that ``the minister has the control and direction of the department.'' Almost every departmental statute would state that, although there are lawyers in the room who could correct us on that.
Senator Fox: Is the deputy minister's role also defined in the statutes?
Mr. Mitchell: I am sorry, senator; I cannot remember a typical statute there. Again, the staff could help us.
It is clear that, under the minister, the deputy is responsible for managing the department, yes.
Senator Fox: I am interested in your explanation regarding the accountability of accounting officers within the framework of ministerial accountability. It seems to set that accounting officer apart from the deputy minister in the overall management of the department. He seems to have distinct responsibilities and distinct reporting requirements.
At the moment, even without this act, I assume that any parliamentary committee can ask a deputy minister to appear and can ask him all the questions covered by the accounting officer. How does the accounting officer fit into this overall scheme? Does it not go against the principle that the deputy minister is responsible for the management of the department?
Mr. Mitchell: Actually, the statute makes clear that the deputy minister is the accounting officer, so the accounting officer is the deputy minister.
The statute says that deputy ministers are the accounting officers. In that capacity, they shall appear before parliamentary committees and answer questions with respect to the management of the department and the funds that have been entrusted to them.
The virtue of this section of the act is that it makes crystal clear that deputy ministers must do that, but it is done within the framework of ministerial authority and responsibility to Parliament. That is a good thing. This section is clear and simple. It may not be news to experienced parliamentarians, but it is a good thing to put into a statute.
Senator Fox: It is a good thing to put into a statute, but it is not necessarily ground breaking. All of this is covered under the Westminster system of accountability, as described before.
Mr. Mitchell: Yes. That is its great virtue, in my opinion.
Senator Fox: How will this work in practice? The deputy minister, as the accounting officer, will appear before Parliament. This is an indication to members of committees as to what kind of questions they should be asking of deputy ministers.
Do you see in here any obligation for the deputy minister to disclose? One can decide how to tailor a presentation, be it a speech or a presentation to a parliamentary committee. In other words, is there an obligation to go beyond the generalities of going in one direction and admitting to go in another direction? Some departments have a multitude of programs. For example, the old Secretary of State must have had 200 programs. Will the deputy minister have to cover all of the programs in his department, or does he give just a general overview? Does he have the obligation to report?
Mr. Mitchell: I do not read in the statute here that there is a particular obligation to disclose problems. I would be surprised if the accounting officer did that.
On the other hand, there certainly is an obligation to respond to questions about what is being done in the department. That obligation is specifically put on the deputy as accounting officer. One practical consequence of this law, if and when it is passed, is that you will see more deputy ministers before committee. Right now, you see them sometimes but not always. You see more of them, and then they might be accompanied by a chief financial officer or head of the branch.
This sharpens, in effect, the answerability of deputies before parliamentary committees. That is a good thing. It does not mean they have an obligation to come before Parliament and say, ``Senators, we have had a problem in this thing which I am now going to bring to your attention. The minister does not know about it but now you do.'' I do not think that will happen. Certainly, there would be no obligation or duty to disclose advice to ministers or options being considered, for example. That would be the same as you are working with right now.
However, you would have a clear opportunity to get these officials to answer serious questions in-depth, not just generalities, but to grill them on a program for four days, if you want to. That is where the committee needs to pick its agenda and issues and concert its efforts. It comes back to Senator Joyal's point.
Senator Fox: That is extremely important if it is to become a living tree. Mr. Mitchell, in section 16.5, I see that if the appropriate minister and the accounting officer — that means the deputy minister, I guess — are unable to agree on the application of policy, ``... the accounting officer shall seek guidance in writing on the matter from the Secretary of the Treasury Board.'' Does that not make it a bureaucratic thing? Should it not be the President of the Treasury Board?
Mr. Mitchell: It should be from the secretary because a deputy minister should write to another deputy minister.
Proposed section 16.5 of the Financial Administration Act puts into statute what is effectively already done today: If a deputy has a problem with what the minister wants to do, or if the minister wants to do something the deputy thinks is inadvisable or cannot be accommodated within the Financial Administration Act, the deputy will say, ``Minister, I have to get guidance from the Treasury Board on this because I really think we have a problem here. We have a difference of view here and I am going to seek guidance from my colleague, the Secretary of the Treasury Board.'' When he or she gets such a letter it is a big deal.
Senator Milne: Go run and hide.
Mr. Mitchell: I do not think it is run and hide. Then the secretary will go to his or her minister, the President of the Treasury Board, or maybe to the Treasury Board as a whole, and get a decision on that matter.
The key point here is that, ultimately, the matter is decided by ministers. In the end, if what is done is not proper, inappropriate or if Parliament disagrees with it, you can call the President of the Treasury Board and ask, ``What happened here? You took this decision. Why did you take that decision?''
Senator Fox: Could it not have been that the minister writes to the President of the Treasury Board?
Mr. Mitchell: The minister writes to the president. The minister could always do that.
Senator Fox: This disagreement between the minister and the deputy minister is being solved through a bureaucratic route as opposed to having the minister write to the President of the Treasury Board.
Mr. Mitchell: That is a fair point. It shows my bias. I was looking at it from the official's point of view.
Obviously, a minister can always write to his colleague, the President of the Treasury Board, and might consider doing that. Normally, the minister would be advised by the deputy on these matters. The minister would want to do X or not do X, and the deputy would say, ``My advice is the following: I have checked with the Treasury Board. They tell me that we can only do this,'' or ``You cannot do that.''
If you have an impasse, then the source of that advice, the deputy, would go back to the authority, which is the Treasury Board, and get a ruling on the matter. That is what proposed section 16.5 is intended to do.
Senator Fox: Mr. McCandless, I am trying to understand your speaking notes to the committee this morning. We are dealing mostly with the control of the executive by Parliament. You have a paragraph where you refer to accountability by government members and their refusal to publicly account fully and fairly for voting to deny compensation to pre-1986 victims of contaminated blood. How does that fit in here? One would assume that their accountability is to the people of Canada.
Mr. McCandless: Do you mean the accountability of the government members in that case?
Senator Fox: Yes.
Mr. McCandless: Yes, of course, it is. I am saying that there was no process that required the government members standing up to vote down the compensation to account to the Canadian people for why they took that decision. If the MPs had inquired, they would have found that the cause of that contaminated blood could have been fixed earlier than 1986. That was the big issue. When I say the evidence was staring them in the face, it would have been if they had inquired. However, in my view, they just stood up obediently and voted it down because the word came out that we are not going to compensate those people.
Senator Fox: I do not understand how this fits here. They are not the executive or the government. These are individual MPs standing up and voting in the House of Commons.
Mr. McCandless: I am not excluding the proposition that MPs collectively in the House of Commons will somehow account adequately to the Canadian people for the decisions they take. In that case, every member of the opposition voted against that. It was simply the government members with a majority that voted not to compensate those people. Never before in history has that block of people ever done so, but it does not mean they should not have, as a block of people, accounted to Canadians for why they took that decision. No one ever held them to account.
Senator Fox: How do they do that? They usually do it in a general election. Are you suggesting there should be some other way?
Mr. McCandless: I do not believe elections are holding to account. They are a means of twanging everybody's nerve endings just before an election to make them vote in a certain way, like Keith Davey used to.
I am proposing something that is not done. I work with the word ``ought,'' not what is done. I could not propose a mechanism to have a government majority as a block of people account with a collective accounting to the Canadian people. We are not there yet, but we might be 20 years from now.
Senator Campbell: The overriding statement is that we need to have legislation that says the buck stops here with the minister. Is that correct?
At this point, it is self-regulating and it is set up through the Westminster and that type of thing. We need something that says, ``The buck stops here.''
Mr. Mitchell: I suppose we need it. I am sorry to say we need it. I would have said 10 years ago that we did not need it, that our system was clear enough and that responsible ministers were accountable and you do not need to put it out in a specific statute. If it seems to be necessary given the uncertainties of the last few years, then fine, let us say it. As long as we are saying the right thing, I suppose there is no harm in saying it.
Senator Campbell: I believe Senator Stratton was talking about control, and I agree with him. If something was out of control, we expect the minister to fall on the sword. Is that correct?
Mr. Mitchell: You would expect the minister to deal with it and to respond to your questions, whether on the floor of the Senate or in committee or wherever. You would expect something to be done in response to the questions that you have raised. You would expect public and political attention to the matter.
Whether ministers have to fall on their sword is a political judgment, and, as you know as well as I do, it does not happen often. I do not believe it has to happen every time something goes wrong. What you need is to know that someone is taking your question seriously and doing something about it.
Senator Campbell: Mr. McCandless asked about a session on accountability for new members of Parliament. In fact, there are such happenings. You gave one in 2004, and I thought it was very well done. The one crux that was in here is as follows, and I quote you:
In a nutshell, you are there to ensure that public money is being spent efficiently and to good effect, in accordance with the rules laid down by Parliament in the law, or by the government in its rules and policies.
It would seem to me that one of the great downfalls that we have here and that you have brought forward, as has Mr. McCandless, is that if members of Parliament and members of the Senate started doing their jobs properly and started asking the questions and being informed on the issues, we would not have to worry about this proposed accountability act.
Mr. Mitchell: I do not want the headline to read —
Senator Campbell: I have read all of your stuff and I agree with it. I have to tell you where I come from. I am a past mayor of the City of Vancouver. When somebody did something wrong at the City of Vancouver, we would not punish the person who did something wrong; we would pass a new bylaw to ensure it never happened again. It affected another bylaw and another bylaw and pretty soon you had a mess. Maybe we need to start taking some of the accountability, as do members of the Parliament, and maybe we need to be trained, as Mr. McCandless said, in this area.
Mr. Mitchell: I am not so sure it is a matter of training. I do not think senators have much to learn. I think it is a matter of equipping. I believe that Senate and House committees need to be equipped with the rules, resources and staff that enable them to do their job.
I do agree with you that if they were properly equipped and if the rules allowed them to do their job in the way they would like to, a lot of the stuff in here might not be necessary.
Senator Campbell: I think we can all agree with some of what is contained in the proposed act, but there are some areas I have difficulty with. You spoke about this when you spoke to the members of Parliament.
Members of Parliament and, by extension, the Senate, would like more professional staff to support House committees. It is not that the people we have are not excellent, such as the Library of Parliament staff, but there are not enough of them. This is something that this bill does not address. Nowhere in the bill does it say, if you want to know what is going on, there are a myriad of resources. If you do not use those resources, you are derelict in your duty. That is an area that I think is missing in this proposed legislation.
My next point is something that I think this committee will have to deal with. I quote from you.
First, and this is a point made by many commentators (including Professor Franks) the committee rules that limit the time allotted to individual Members for questions mean that, effectively, there can be almost no sustained questioning of witnesses; no digging deeper into issues raised in previous questions; no time to explore a Member's particular concerns in any real depth.
I think this is critical and important. I will give you an example.
Mr. McCandless, you appeared before the House committee on Bill C-2. How long did you have?
Mr. McCandless: The opening remarks were five minutes and then taking of questions. Instructions were for each witness to have five minutes. There is a big difference between five minutes and seven minutes.
Senator Campbell: I cannot even say my name in five minutes. This is what I am talking about. It is like doing an investigation and having all of these people that have information like you gentlemen have and then saying, I am sorry, you can only have five minutes to do this, when in fact your knowledge is so in-depth that you cannot limit it.
I went through some of these House of Commons things. It was: Are you ready to finish up? Are you ready to finish up?
I would like to reserve the right to call these gentlemen back at a future date because I have many more questions.
Again, you are a tremendous speaker, Mr. Mitchell.
Mr. Mitchell: That is very kind.
Senator Campbell: One of the things you spoke to, which I found fascinating, was the Royal Military College, ``Speaking Up,'' it was called. It is a great paper.
You describe the Westminster system. You say, regarding the division of power:
The simple division of roles has become clouded in recent years through the establishment of an increasing number of parliamentary officers with specific duties in the area of protection of rights and investigation of wrongdoing.
You list the Auditor General, and you go on. There are a number of them.
Within Bill C-2 — and I can be corrected on this — there are at least six new officers that they would like to see here.
You finish up by saying, regarding us, the senators and members of Parliament:
This trend towards independent office-holders as protectors of rights and investigators of wrongdoing has eaten away at the traditional and fundamental role of Parliament. Instead of looking to Parliament, Canadians now look to these independent office-holders as protectors of their rights in the face of wrongdoing in or by government.
You say, why is this? You say because Canadians have lost faith in politicians and that question period has turned into a gong show. Those are my words, not yours.
I wonder, in that context, with all of these ombudsmen, as you refer to them, what would be the effect of six more?
Mr. Mitchell: Senator, I think you can see from the previous statements I have made that my bias is towards strengthening Parliament rather than creating new office-holders. I guess we will have to see what happens.
The government obviously felt that it is a priority to address the issues contained in this bill. They have come forward quickly with a substantial bill. There are a lot of office-holders here. It is going to complicate life somewhat for people inside government and also for parliamentarians, at least for the first couple of years. We will just have to see how it works, frankly. I am not the Prime Minister or the President of the Treasury Board. This is the government's bill. God bless them. One thing I would do would be to reinforce the fundamental role of Parliament.
Senator Campbell: Are we not giving up that responsibility by just making six more officers?
Mr. Mitchell: I do not think that the Senate or the House are giving up responsibility. I think what you are doing is creating a more complex universe within which you will be doing your work. I do not think this weakens Parliament. I should make that clear. I do, however, think that it makes your life more complicated.
Senator Campbell: Thank you, chair. Those are my questions. I should like to reserve the right to ask these gentlemen back.
Mr. McCandless: May I make one comment. In my experience in the audit office over the years, parliamentarians have tended to pass the accountability buck over to the Auditor General. The Auditor General serves the accountability relationship between the executive government and Parliament but stands outside that relationship. Therefore, it is only the House of Commons, with backup from the Senate, which holds government to account.
If members of Parliament have tended over the years to pass the buck, they still get their salaries and pensions with the Auditor General doing their job. Why would that not apply with adding six more officers? I agree with your concern. It also ties in exactly with what Mr. Mitchell is saying. If we can improve the effectiveness of parliamentarians to hold to account, like a trained basketball squad, as a good example, then they will get used to holding to account more effectively. Then you may still have these next six officers, but it will not allow members of Parliament to pass the buck to them in their particular areas. If you have enough other officers, I guess you could theoretically say members of parliament have nothing to do for their salaries. They have to overcome that tendency and only the parliamentarians can do that.
Senator Zimmer: As Senator Campbell and others have said, you have been informative and enlightening.
In your report, Mr. Mitchell, of March 2, 2006, on page 10, you comment that Gomery is mistaken about the concepts of authority and accountability in the Westminster government act. You indicate this is not correct but you then say that just because people are reluctant to accept their responsibilities does not mean they are not responsible. If, in perception, they are reluctant to accept their responsibilities, would that not mean that they are not being responsible at that point, and though they may appear to be responsible, if in their minds they are reluctant to accept those responsibilities, does that not create a problem?
Mr. Mitchell: Just quickly, senator, when I said what I said eight months ago, I was trying to make the point that the fact that a minister does not accept his responsibility does not mean the minister is any less responsible. That was my polite way of saying that, and I did not want to get into politics on that occasion, I do not want to get into them now. However, that was my simple point. People may misunderstand their responsibilities, they may be reluctant to face up to them, they may decide that the clever way out is to deny responsibility, but I believe it is the duty of parliamentarians and of judges to know who is responsible and to say so. That is my simple view, but I would rather not say more than that in a forum like this.
Senator Cools: I wish to thank the witnesses for appearing before us. I have had the pleasure of hearing the witnesses before on other occasions so I am well acquainted.
You said some very interesting things and many of those statements are easy to agree with, but I am always struck that at the end of the day, after all the suggestions and all the dialogue and all the debate, we come back to the fundamental bottom line, which is that the real problem in our community today is the constitutional weakness of Parliament. Professor Aucoin, whose work I am sure you know, in a speech he gave on May 11, 2006, said about this proposed act that one can almost say that MPs have agreed to contract out the duty of Parliament to hold ministers and officials to account to their parliamentary agents.
The thing that fascinates me about thinkers and academics is that we keep coming to this same spot: Parliament is at its weakest stage in its thousand-year history. I often wonder, since we always end up at that point, why do we not begin at that point and why do our reforms not consistently begin with correcting the weakness?
For example, gentlemen, a few minutes ago you agreed that very few ministers fall on their swords any more. I do not think one has fallen on his sword for 20 years. I mean, through the firearms debacle, through human resources, through sponsorship, not a single minister has resigned for mismanagement of departments; not one. Some ministers have resigned on personal questions, but I am talking about resigning for mismanagement of departments.
Having said that, you said senators and MPs should ask the right questions and do good work. Well, gentlemen, my experience is that many of us do a lot of good work. I know I ask a lot of questions. The problem is not in asking good questions, the problem is getting a minister to answer them.
Having said all of this, this problem seems to be afflicting the Westminster system. It is not just Canada. If you compare the resources I have in my little office to the Minister of Justice, with his 3,500 lawyers right now, it is an extravagant gap, in view of the fact that the government deliberately keep MPs and senators impoverished, and in view of what I would call the extravagant enlargement of jurisdictions of prime ministers over MPs and over the Houses, my question is: Do you foresee a day soon when a modern prime minister and a modern cabinet will allow their own MPs and their own senators to hold them to account?
Mr. Mitchell: Can I give you a short answer, senator, without necessarily accepting all of the premises of your question, if I may?
Senator Cools: Yes.
Mr. Mitchell: I have just one point. I would site, for example, the resignation of John Fraser in the tainted tuna case as an example where a minister effectively resigned because of mismanagement in the department.
Senator Cools: That is right.
Mr. Mitchell: It was an issue that was particularly high profile and it was in 1986, I think.
Senator Cools: Then you are still 20 years ago.
Mr. Mitchell: I was not meaning to correct you, senator. I was meaning that I think that case reminds us that on a matter of mismanagement, where there is political heat applied, where there is political attention paid to the mismanagement, that, in fact, a minister can resign if it is seen as sufficiently important.
Senator Cools: My point is that this has not happened recently.
Mr. Mitchell: Absolutely.
Senator Cools: It used to happen a lot more. However, it has not happened in the last 13 years. That is the real question. As a matter of fact, I believe we need to have a debate as to whether we are still functioning constitutionally under the notion of ministerial responsibility.
Mr. Mitchell: You asked me to look ahead and I will look ahead so I can answer your question.
Senator Cools: Look into the future and tell me if you see that coming soon, a new day, a brighter day.
Mr. Mitchell: I see a brighter day coming for reasons that have to do with the nature of the world in which we live. We live in an information age in which Senate committee hearings are now regularly televised and watched by more and more people. Why are they watched? Why do people watch these sessions? It is not just because they have insomnia but rather because they are fascinated by the human dynamics of a parliamentary setting. They watch Question Period and they watch committee hearings on very odd subjects, but they watch them. You can expect to see more and more of that. The actual human dynamics of parliamentary government make me optimistic that, in fact, Parliament will be strengthened and will be seen by Canadians as being more important.
Senator Cools: If the concern is accountability, why do we not begin at the front, and in the present, to strengthen the role of Parliament in this entire process?
Mr. Mitchell: That is a question better put to a minister than to me, senator.
Senator Cools: You all share this. You all come back to the fact that Parliament is in a state of weakness. You can read testimony after testimony and everyone comes back to that point, but at the end the recommendations are not directed towards the weakness of Parliament. It is always to create another commission, create another officer or create something else. None of those positions will strengthen Parliament. As a matter of fact, I would argue that the creation of such commissions weakens Parliament.
You mentioned the Auditor General. What is the budget of the Auditor General? It is more than the Senate. That alone should tell you that the Auditor General cannot be the servant of Parliament. Do you know of any servant who has a budget greater than the master's? I am not speaking against it. The Auditor General has a real and important role to play, and I do not question that.
What I am asking is this: At what point in time do we attempt to look at the real problems?
Mr. Mitchell: I certainly know many experienced parliamentarians who know how to use instruments like the Auditor General to serve their parliamentary purposes, and I think they should. You can hear what I am saying. I am the first to say that Parliament ought to be strengthened to play its role as effectively as it can.
Senator Cools: What we are dealing with is the fact that we need more constitutional checks on the enlargement of power in a prime minister, in the Privy Council Office and in the office of the Prime Minister. I can make that statement. I have been working on this for a long time.
The Chairman: Witnesses, on behalf of the committee I want to thank you both for the excellence of your presentations and your responses. It has been useful for us as we begin the resumption of our hearings on this important piece of legislation, Bill C-2.
Today, much of the evidence was about accountability and accounting office. That sets a good background for other witnesses from whom we will be hearing this week.
Senator Milne: Mr. Chair, I did not have the opportunity to bring this up at the beginning of the meeting. It has been the habit of this committee to agree informally that when we have a list of witnesses before us there will be no votes taken before all the witnesses have been heard. Since we are now under new management, I should like to move:
That there be no votes on the bill itself before all the witnesses have been heard.
The Chairman: Who are all the witnesses?
Senator Milne: The witnesses who the steering committee has agreed to hear over the course of the next number of weeks.
The Chairman: I had no notice of this, senator. I am new to the committee and am thus taken by surprise. I do not know of this procedure. However, if you are making a motion, please make your motion.
Senator Milne: I have just moved that there be no votes taken on this bill until all the witnesses that have been agreed upon have been heard. That will let both sides of the chamber relax a little when they are in the committee.
Senator Cools: Can we have debate on the motion?
The Chairman: Certainly.
Senator Cools: You are saying that there be no votes of the committee, Senator Milne.
Senator Milne: On the bill.
Senator Cools: On the bill in respect of reporting the bill to the Senate?
Senator Milne: Yes.
Senator Cools: But not on any other matter?
Senator Milne: No.
Senator Cools: That is good.
Senator Day: I do not serve on this committee in the normal case.
The Chairman: Neither do I.
Senator Day: If it is the tradition of this committee and it deals only with this bill, then it is important for this committee to maintain its ability to deal with any procedural matters it may wish to deal with throughout and not preclude itself from voting on such matters.
The Chairman: Why does it need a formal motion? I have never heard of another Senate committee having such a motion, and I have been here for 16 years.
Senator Day: You have got me by 11.
Senator Cools: You spent a lot of those years chairing committee meetings.
Senator Day: I am in the hands of the committee.
The Chairman: There is a motion before honourable senators.
Senator Joyal: Mr. Chairman, it has been a practice — and you might want to review it with the clerk — that when we are dealing with a bill there is normally no vote on the bill per se, or clauses on the bill, before the committee has concluded its hearings. That does not prevent the committee from voting on other issues pertaining to other aspects of its work, such as Senator Day has mentioned, those being procedural matters. However, Senator Milne was chair of the Standing Senate Committee on Legal and Constitutional Affairs for at least four or five years, and Senator Cools has served on the committee for many years, as have I. That has been the practice of our committee.
The Chairman: Have you done it by formal motion?
Senator Joyal: We always do that at the beginning of a hearing.
The Chairman: I will look up the motion.
Senator Day: Mr. Chairman, why do we not stand this motion until we return at one o'clock? That will give you an opportunity to speak to the clerk about this. I do not think this is something that has to be dealt with immediately. Because the chair said he was caught somewhat by surprise on this and there was no notice of it, I would be happy to move that we table the motion until we reconvene this afternoon.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
Senator Day: I have another procedural matter, Mr. Chairman. As you know, I have been serving on the steering committee while Senator Milne was not in attendance. Senator Milne has returned. I do not believe that there is a necessity for another motion. However, because Senator Milne is here I will now no longer be part of the steering committee. Senators Joyal, Milne and Oliver are the three members of the steering committee of this particular committee. I remain as critic.
Senator Joyal: Mr. Chairman, since Senator Milne is deputy chair of the committee she is entitled to be a member of the steering committee. That is normal practice. Since Senator Day is the opposition spokesperson for this bill, I suggest that I withdraw from the steering committee and Senator Day occupy the chair of the steering committee for the time the committee deals with this bill. I think that would be proper.
Senator Day: Mr. Chairman, we have not had a chance to discuss this. I am prepared to serve if the committee wants me to, but I am happy to remain as critic and allow Senator Joyal to continue.
The Chairman: Is this something that has to be done in public? Could we not talk about this in private?
Senator Cools: It needs a motion of the committee.
Senator Day: My only difficulty was that there was a motion appointing me and Senator Milne is back.
The Chairman: Could we discuss this first?
Senator Day: Can we hold this matter over until this afternoon?
The Chairman: I hereby declare this meeting adjourned until one o'clock when we will resume with Professor Peter Aucoin and Professor Ned Franks.
The committee adjourned.