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C.E.S. Franks
On February 10, 2004,
Auditor General Sheila Fraser released the much anticipated results of her
audit of the advertising and sponsorship program run by the federal Public
Works Department. She found that $100 million
was paid to a variety of communications agencies in the form of fees and
commissions and said the program was basically designed to generate commissions
for these companies rather than to produce any benefit for Canadians. The
same day Prime Minister Paul Martin called for a public inquiry, to be headed
by Justice John Gomery, into how the sponsorship program was handled. The
Public Accounts Committee of the House of Commons, chaired by John Williams,
began several weeks of hearings on the Auditor General’s Report. One of
the last witnesses to appear before the Public Accounts Committee before
Parliament was dissolved for an election tried to look at some accountability
lesson to be drawn from the experience and suggested how such problems could be
avoided in the future.
The investigation by the Public Accounts Committee into the
sponsorship affair was successful and useful, although perhaps in an unexpected
way. It identified the crucial factor that allows such problems to happen. Not
one of the many witnesses who came before the committee, neither ex-ministers
nor public servants, stated, “yes, managing this program
was my responsibility, and I am responsible and accountable for what went wrong
with it.”
Ours is a system of
responsible government. Constitutionally, someone must be responsible and
accountable to Parliament for what the government does or fails to do, but no
witness before the committee has accepted that the problems were his or her
responsibility. Ministerial or any other sort of responsibility has been
missing. The breakdown of responsibility and accountability disclosed by the
investigation of the public accounts committee shows that something is
seriously wrong with the way the principle of responsibility is construed and
practised in Canada.
Responsibility must be
allocated to identifiable persons before they can be held accountable. In our
parliamentary system responsibility, for the most part, is assigned to the
Ministers of the Crown, but in an enormous and complex system like that of the
Government of Canada there must be exceptions to the general rules, and the
doctrine of ministerial responsibility has exceptions where responsibility is
assigned to persons other than ministers. The Canadian Privy Council Office
has, in various documents, given its interpretation of how ministerial
responsibility should work in practice and what exceptions there are to the
strict doctrine that the minister is responsible for all actions of public
servants. Appreciation of these exceptions is crucial to understanding the
frustrations and difficulties encountered by the Public Accounts Committee.
The Privy Council Office’s
version of ministerial responsibility also has weaknesses. These weaknesses
allowed the system to go so drastically wrong for so long in this sponsorship
affair. Understanding both exceptions and weaknesses identifies what needs to
be done to ensure that in the future these sorts of problems do not arise, or
at least are detected sooner.
First, according to the Privy
Council Office, only the minister who currently holds the post is responsible
and accountable to Parliament. A previous minister is not responsible and
cannot be held accountable or answerable by Parliament or its committees for
what went on during his or her tenure. That is why previous incumbents of
ministerial posts have appeared before the public accounts committee as private
individuals rather than in an official capacity.
Second, Privy Council Office
doctrine states that current ministers are answerable in Parliament for actions
taken during the tenure of previous incumbents of the office. To be answerable
means a weaker sort of relationship than to be accountable.
Third, the doctrine states
that ministers are required to answer to Parliament by providing information on
the use of powers by non-departmental agencies assigned to the agencies by
statute. For exercise of these statutory powers the heads of these agencies are
responsible not to ministers, but through ministers to Parliament.
Fourth, according to the
doctrine, deputy ministers are only answerable, not accountable, before
parliamentary committees. Deputy ministers are
accountable to their ministers, to the Prime Minister, and to the Treasury
Board, but not to Parliament or its committees. The responsibilities assigned
exclusively to deputy ministers by the Financial Administration Act
include crucial ones relating to maintaining accounts and ensuring prudence and
probity in financial transactions. These powers are not assigned to the
ministers. In effect, it appears that while ministers are not responsible and
accountable to Parliament for the exercise of powers assigned by statute to
non-departmental agencies, they are responsible and accountable for the
exercise of statutory powers assigned to deputy ministers.
Fifth, when errors or
wrongdoings are committed by officials, the doctrine states that ministers are
responsible for promptly taking the necessary remedial steps and for providing
assurances to Parliament that appropriate corrective action has been taken. The
requirements of ministerial responsibility are met when ministers answer to
this effect in Parliament.
The Privy Council Office
interpretation means that no minister, present or previous, is accountable to
Parliament for problems stemming from the tenure of a previous minister.
Responsibility and
accountability belong to the office and its current holder. Nor
are ministers accountable, rather than answerable, when public servants
misbehave. More important in the sponsorship affair is that deputy
ministers are accountable only within the government, to minister, Prime
Minister, and Treasury Board, but not to Parliament, for the crucial management
functions assigned to them alone by statute. It also appears, though the Privy
Council Office does not explicitly state so, that it considers that the
principle that responsibility belongs to the office and not to the person
applies to deputy ministers as well as ministers.
Since both deputy ministers
and ministers change office frequently in Canada, the responsible person
interrogated by the public accounts committee is rarely the deputy minister who
held the position when the contentious actions occurred. Ministers also change
office frequently, making their accountability into answerability, as has
happened in the sponsorship affair, by the time the problem comes to the
attention of Parliament.
This Privy Council Office
interpretation of the doctrine of ministerial responsibility accurately
describes the way various witnesses have construed their responsibilities and
accountabilities to the public accounts committee. Deputy ministers,
regardless of their statutory responsibilities, did what the ministers and the
Prime Minister’s Office told them to do. Previous ministerial incumbents are
not responsible or accountable, and the present minister has satisfied his
responsibility by ensuring that the problems have been corrected. No one is
responsible or accountable for the problems. The system worked as described by
the Privy Council Office.
The public accounts committee
now faces the question of whether it considers this to be an adequate
description of what ministerial and deputy ministerial responsibility and
accountability of government to Parliament ought to be. If the committee
believes it to be adequate, its work is completed, and all that remains is for
the judicial inquiry to make its study of what went wrong and for the police to
investigate possible criminal activities. But if the committee does not believe
this is satisfactory, it has an additional task: to find a better way of
handling these crucial relationships between Parliament, ministers, and public
servants.
A Better Way
Britain has a quite different approach towards
responsibility and accountability to Parliament for administration and the use
of funds. In Britain the permanent secretaries or heads of department,
equivalent to our deputy ministers, are designated as accounting officers and
have full and personal responsibility for the transactions in the account,
including matters of prudence, probity, legality, and value for money, unless
they have been explicitly overruled in writing by their minister. This
responsibility of the accounting officers is personal and remains with them,
even when they change office or retire. Either the minister is responsible or
the deputy is, not both, not neither. Establishing the
accounting officer approach and ensuring that it works in practice has been the
central concern of the public accounts committee in Britain for over a century.
The accounting officer
approach was recommended for Canada
by the Lambert commission on financial management and accountability, but this
recommendation was rejected by the government. The government’s rejection was
based in part on a misunderstanding of the British practice. Other persons have
argued against the accounting officer approach because it is “unconstitutional”
and goes against the principles of the Westminster
style of parliamentary government. I find it difficult to understand how a
practice that has existed in the British Parliament at Westminster
for over 100 years can be unconstitutional or go against the principles of the Westminster model.
Another argument offered
against adoption is that the present arrangements in Canada work well most of the time.
This is true, but when the present arrangements do not work well, as they did
not in the sponsorship affair, the consequences can be horrendous and
destructive to the entire system of parliamentary cabinet government, including
public trust and confidence in the neutrality of the public service.
Another argument used by the
Privy Council Office against the accounting officer approach is that:
Formal and direct
accountability of officials to Parliament for administrative matters would
divide the responsibility of ministers.... Responsibility shared tends to be
responsibility shirked.... Parliament prefers not to recognize the informal
division between the answerability of officials and of ministers...and the
attempt to identify discrete areas of official accountability to Parliament
would likely result in the further blurring of lines of accountability,
weakening the ability of the House to hold the minister responsible when it
chooses for matters falling under his or her authority.1
The Public Accounts Committee
might not agree with the Privy Council on these points. The committee is
entitled to, and should, express its views.
The committee might conclude
that the government’s interpretations and practice, not Parliament’s wishes,
have led to the scandals and the obfuscation of lines of responsibility and
accountability found by the committee in the sponsorship affair. It might
conclude that the Privy Council Office’s interpretation of responsibility and
accountability in our parliamentary system contains far too many gaps,
ambiguities, and contradictions and that the system does not work to the
satisfaction of Parliament or the people of Canada.
I do not believe that
responsibility and accountability could be much more shirked or the division of
responsibility between ministers and deputy ministers much more confused and
blurred than the committee has proven them to be in the sponsorship affair. If Canada adopted
the accounting officer approach, then at least the public accounts committee
and Canadians in general would know who was responsible and who should be held
accountable. That, to put it mildly, would be a great improvement.
Notes
1. Canada, Privy Council
Office, Responsibility in the Constitution, 1977, reprinted in 1993, pp.
77-78.
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