The Standing Committee on Access to Information, Privacy and Ethics began
hearings in the fall of 2004 on the Estimates of the three Officers of
Parliament who fall within its mandate the Information and Privacy Commissioners
of Canada, and the Ethics Commissioner. The Committees mandate includes
matters related to the reports of these three Commissioners (the Ethics
Commissioner primarily with respect to his responsibilities under the Parliament
of Canada Act relating to public office holders) and to reports tabled
pursuant to the Lobbyists Registration Act. The details of its mandate
are set out in section 108(3)(h) of the Standing Orders of the House of
Commons. This article looks at the background to the issue of funding Officers
of Parliament, the views of several parliamentary officers and others who
appeared before the Committee, various funding models that were considered,
the recommendations of the Committee in its report tabled in May 2005 and
some reaction to that report.
In the course of its first meetings with the three Commissioners, the Committee
was alerted to funding concerns that were shared by the Information and
Privacy Commissioners. John Reid, Information Commissioner of Canada, described
his office as being in a financial crisis. He reported to the Committee
that he was hindered in meeting his statutory obligations by inadequate
resources, and indicated that both the investigatory and non-investigatory
staff groups in his Office are significantly understaffed, resulting in
a growing backlog of cases. Also, his Office has had to give up its public
affairs, research, education and training capacities. Despite repeated
pleading with Treasury Board, his Office had received only emergency and
The Privacy Commissioner, Jennifer Stoddart, explained that since the adoption
of the Personal Information Protection and Electronic Documents Act (PIPEDA),
her Office has relied on two streams of funding, one under the Main Estimates,
providing the Office with funding for its operations under the Privacy
Act, and another relating to its responsibilities under PIPEDA. She expressed
concern about the way in which these two streams of funding would be reconciled
to ensure that the Offices long-term financial needs are met. This concern
has been the subject of ongoing negotiations between her Office and the
Treasury Board Secretariat. Ms. Stoddart indicated that her Office would
make a submission to the Treasury Board Secretariat for long-term permanent
funding in 2005. In this case, the funding concern was not about adequacy
of funds, but the nature of the mechanism by which her Office is funded.2
Both Commissioners sought a new funding mechanism that would ensure their
Offices independence from government. Their functions as ombudsmen, or
oversight agencies scrutinizing government performance in important areas,
necessitate an appropriate degree of independence. This argument was reinforced
throughout the Committees hearings on the subject of funding of Officers
of Parliament, and ultimately convinced Members to issue a report and recommend
change. A summary of the content of that report, its recommendations, and
some reaction to it follows below.3
The Committee was not the first to deal with concerns about the funding
mechanism for Officers of Parliament. In June 2003, in its report on the
Radwanski affair4, the House of Commons Standing Committee on Government
Operations and Estimates identified a need for a comprehensive review of
the structure and functions of Officer of Parliament positions, including
the accountability regime that governs their relationships with both the
government and Parliament.5
That Committee recommended that a
House of Commons committee study and report back on the role and functions of
Officers of Parliament, their independence, the Estimates process, and “other
items in their accountability to Parliament.”
In addition, concerns about funding for the operations of the Office of
the Auditor General, and related matters, motivated the House Standing
Committee on Public Accounts to look into this matter as well.6 At that
time, the Public Accounts Committee reported that it had been aware of
issues regarding funding for the Auditor Generals Office for four years.
Its Report notes that discussions between the Auditor General and the Treasury
Board Secretariat regarding a new funding mechanism had been prolonged
far beyond what could be considered a reasonable time limit. The Committee
recommended that, prior to the end of October 2005, a new funding mechanism
be established for the Office of the Auditor General that safeguards the
independence of the Office and ensures that it will be able to meet the
expectations of Parliament.
The Standing Senate Committee on National Finance has also issued a report
on Officers of Parliament.7 After reviewing the Estimates of various Officers
of Parliament, the Senate Committee identified budget determination as
a common concern. As part of its Estimates hearings, the Senate Committee
met with the President of the Treasury Board, Reg Alcock, who advised that
the Treasury Board intends to test some alternative processes this year
in order to move toward a solution to the problem. The Senate Committee
recommended that the processes of determining the budgets of Officers of
Parliament involve Parliamentarians, through the Speakers of each House
and an administrative committee, before the budgets are submitted to the
Treasury Board for inclusion in the Estimates.
Who are the Officers of Parliament?
One of the first questions the House Committee considered was the meaning
of the term Officers of Parliament. The term has been used in different
contexts to mean different things. It is not a term of art, nor has it
been legally defined. For the purposes of its report, the Committee referred
to the three Commissioners within its mandate as Officers of Parliament
and applied the term to the Auditor General, the Commissioner of Official Languages,
and the Chief Electoral Officer.
The significance of the term became apparent to the Committee over the
course of its study. Officers of Parliament are responsible directly to
Parliament rather than to the federal government or to an individual minister.
This emphasizes their independence from the government of the day. They
carry out duties assigned by statute, and report to one or both of the
Senate and House of Commons, usually through the Speaker(s). The appointment
of such Officers usually although not necessarily involves the House of
Commons and/or the Senate.8
While for the most part their independence is safeguarded by reporting
and removal procedures, fixed terms of appointment and general control
over the operations of their offices, it has been argued that the current
budget determination process may not be the best method for ensuring the
independence and functional integrity of these offices. Indeed, because
of their accountability and reporting structures, the Officers of Parliament,
for the most part, feel that the current funding mechanism raises the possibility
of a conflict of interest between them and the government, or at least
the appearance of one.9 Auditor General Sheila Fraser, in her testimony,
repeated several times that her concern was not for sufficiency of funds,
but that she sought a more rigorous, independent budget challenge that
would make her Office more accountable to Parliament.10
Although the Committee and most of the witnesses who testified as part
of this study referred to them as Officers of Parliament, these officials
are referred to by the Privy Council Office and within the public service
as Agents of Parliament. Calling them agents emphasizes that they carry
out work for Parliament and are responsible to Parliament. Moreover, the
term is used as a means of distinguishing them from other parliamentary
officers, such as the Speaker or the Clerk of either House, the Sergeant-at-Arms,
the Law Clerk and Parliamentary Counsel. Whereas the latter group are part
of, and assist, Parliament in procedural and administrative matters, the
former group perform a watchdog function or check on government that
supports Parliament in its accountability and scrutiny function.
Other bodies, such as the Canadian Human Rights Commission and the Public
Service Commission, are occasionally considered in the same category as
Officers of Parliament because they have a degree of independence and perform
a similar watchdog function, and in some cases, their members are also
appointed or ratified by Parliament. The Committee did not include these
bodies in its study.
The evidence of the Officers of Parliament, at least those seeking a new
budget determination method, was that they should be independent of government
and more fully managed by Parliament. These Officers believe that it is
inappropriate for those who scrutinize governments performance to have
to seek approval for budgets from the very government which they investigate.
They would prefer that their budget determination process more actively
The Offices of the Information and Privacy Commissioners are currently
funded in the same manner as are government departments. They submit annual
budget projections to the Treasury Board Secretariat, and only to the extent
approved by the Treasury Board do their Estimates proceed to the House
of Commons, and then to the Committee for review. The Ethics Commissioner,
Bernard Shapiro, whose Office is in its first year of operation, is funded
under a different mechanism, making his funding more independent of government.
The funding procedure for the Ethics Commissioner and his Office is provided
for under section 72.04 of the Parliament of Canada Act. It specifically
excludes any involvement of the Treasury Board Secretariat in the development
of the budget proposal.
72.04(8). The estimate referred to in subsection (7) shall be considered
by the Speaker of the House of Commons and then transmitted to the President
of the Treasury Board, who shall lay it before the House of Commons with
the estimates of the government for the fiscal year.
The Chief Electoral Officer is also in a somewhat different funding position
than the other Officers of Parliament. This Office receives most of its
funding by statutory authority, under parameters set out in strict detail
by the Canada Elections Act. Only the salaries for permanent staff are
paid from an annual appropriation vote through the Estimates process.
Unlike most other Officers of Parliament, the Chief Electoral Officer is
not an ombudsman. His Office must deliver two fundamental democratic rights:
the right to vote, and the right to be a candidate in an election. In accordance
with this unique role, the independence of his Office from political influence
is safeguarded in a number of ways, including the funding mechanism, but
more importantly, the appointment and removal processes.
The need for a more independent funding mechanism for Officers of Parliament
was supported by Professors Craig Forcese of the University of Ottawa and
Paul Thomas of the University of Manitoba. Professor Forcese argued that
the Commissioners11 quasi-judicial powers, such as their power to punish
for contempt, legally necessitate their independence from government.12
Professor Thomas argued that the budget-setting process for Officers of
Parliament should reflect the primacy of their relationship with Parliament,
but he cautioned that such agencies should not be sheltered from government-wide
financial realities of the day, either, and that they must be held accountable
for the economy, efficiency and effectiveness of their spending.13
In seeking to fashion a new budget determination process that was more
independent of government, the Committee considered a number of proposals
submitted by its witnesses. The Information Commissioner was a strong proponent
of a simple, transparent parliamentary budget determination process similar
to that of the Ethics Commissioner. Budgets of parliamentary Officers would
be considered by the Speakers of the House and the Senate who would transmit
them to the President of the Treasury Board for tabling along with the
government Estimates for that fiscal year. In this way, these budgets would
not be vetted by the Treasury Board Secretariat or subject to approval
by the Treasury Board.
Officials from the Treasury Board Secretariat raised some concerns about
the lack of government input (appropriate given the governments responsibility
for sound stewardship of public resources) that would be present in the
Ethics Commissioner model. They also felt that it would be difficult to
apply this simple process to Officers with broad mandates and large budgets,
such as the Privacy Commissioner and the Auditor General. The Officials
therefore suggested a modified version of the Ethics Commissioner model
whereby budget proposals of Officers of Parliament would be examined through
the management machinery of Parliament (more specifically, through the
Internal Economy review mechanisms of the House of Commons and the Senate)
with input from appropriate parliamentary committees and the Treasury Board
Secretariat.14 In another variation on this model, the budgets of Officers
of Parliament could be combined in a larger Parliamentary Envelope similar
to the process currently employed by the House of Commons, Senate and the
Library of Parliament.
As a result of her longstanding quest for an alternative budget determination
process, the Auditor General was able to present for the Committees consideration
several funding options, including one modelled after the United Kingdoms
National Audit Office. There, an all-party Commission of Parliament, created
by statute, examines the proposed Estimates of the National Audit Office
and tables a report to parliament with any modifications it sees fit. The
Public Accounts Commission is comprised of the Chair of the Committee on
Public Accounts, the Leader of the House of Commons and seven other Members
of Parliament appointed by the House, none of whom may be a Minister of
the Crown. Commission members hold office until they either fail to run
for election, are defeated in an election, or are replaced by another Member
of Parliament. The Commission normally meets twice a year and is required
to receive advice from the Committee of Public Accounts and the Treasury
(the equivalent of our Department of Finance).15
Some modified versions of the U.K. model were also presented to the Committee.
For example, it was suggested that an enhanced parliamentary committee
could be established that would allow for all-party membership and include
both Houses of Parliament. It was also proposed that a parliamentary committee
or committees could receive budget proposals from Officers of Parliament
for review and report back its findings to the Treasury Board for tabling
in Parliament as part of the government-wide Estimates process. The Official
Languages Commissioner clearly favoured parliamentary scrutiny of her budget
through the official languages committees in the House of Commons and the
Another budget determination model put forward by the Auditor General involves
the use of a blue ribbon panel of experts to review and to challenge the
budget proposals of Officers of Parliament. The panel would report on the
level and details of each Offices Estimates to the Speakers of both the
House and the Senate and to the President of the Treasury Board for tabling
as part of the Parliamentary review of the Estimates process. As in the
case of the Ethics Commissioner model, the Estimates would not be subject
to a final vetting by the Treasury Board Secretariat or to approval by
the Treasury Board.
Finally, the Committee heard testimony on multi-year formula funding models.
In particular, Professor Forcese promoted a sustainable and long-term funding
formula that would be pre-established to increase according to an objective
benchmark over a fixed period of time (such as five years). Annual increases
in funding could be based on objective criteria that are tied to the individual
functions of each Officer of Parliament (for example, the number of complaints
received by the Information Commissioner). If the formula were legislated,
criteria could be set out in the legislation.
The principal difficulty with the multi-year formula funding approach,
however, was pointed out by Professor Thomas, who indicated that finding
the most appropriate reference point for such a model would be controversial
and artificial. Some body (Parliament, a blue ribbon panel or the executive)
would still be required to determine the initial level of funding, and
some arbitrary but automatic mechanism would determine all subsequent increases.
All Members of the Committee agreed on the need for greater parliamentary
involvement in the budget determination process, and the fact that resource-allocation
decision-making must be based on objective and expert analysis. It was
also agreed that the process must include the elements of the government-side
budget design and approval process that ensure accountability to the public
for expenditures of public funds. As a result of the expertise already
developed by the Treasury Board Secretariat in terms of challenging, analyzing
and advising on the budgets of Officers of Parliament, the Committee felt
that the Secretariat should maintain this function in any new funding mechanism.
In view of the timing of the Committees study, which took place as consultation
was ongoing between the Treasury Board Secretariat and the Officers of
Parliament, the Committee recognized that certain details about its proposed
new funding mechanism could not yet be spelled out.17
The Committee therefore recommended that a new permanent parliamentary
body be created as the budget-determination mechanism for the funding of
all Officers of Parliament.18 Like the U.K. model, the membership of this
body would be representative of all parties of the House of Commons and
the Senate, and equally comprised of government and opposition representatives.
This body could also incorporate the Senate, where, for example, some Officers
report to both Houses of Parliament, by having both Speakers as ex officio
members of the commission.
Annual budget submissions of Officers of Parliament would be made directly
to the parliamentary body along with an accompanying submission from the
Treasury Board Secretariat setting out budget parameters and providing
analyses, challenges and advice on the feasibility of the Officers submissions.
While the Committee rejected the idea of a blue ribbon panel or the use
of existing parliamentary committees in determining the budgets of Officers
of Parliament, it did incorporate the essence of these models by recommending
that assistance be provided to the parliamentary body by appropriate parliamentary
committees and experts with in-depth knowledge in areas in which Officers
function. The recommendations of the new parliamentary body would then
be submitted to each House of Parliament, as appropriate, who would provide
the recommendations to the Treasury Board for tabling as part of the government-
wide Estimates process.
The Committee was concerned that more foot-dragging might ensue with respect
to the implementation of its recommendation. Therefore, in order to facilitate
the process, the Committee recommended that a pilot project be launched
for the fiscal years 2006-2007 and 2007-2008 using the existing House of
Commons Board of Internal Economy as the parliamentary budget-determination
body and the three Commissioners within its mandate the Information,
Privacy and Ethics Commissioners as the initial participants. A pilot
project would also facilitate an assessment of how best to construct a
parliamentary budget-determination mechanism that could be legislatively
applied to all the Officers of Parliament. For this reason, the Committee
also recommended that a parliamentary review of the pilot project take
place immediately after its completion.
The Committees report was issued while the Treasury Board Secretariats
consultation process with Officers of Parliament was ongoing. Judging by
the comments made by Treasury Board President Reg Alcock before the Senate
Finance Committee, as discussed above, the process of developing a pilot
project for the new mechanism for funding Officers of Parliament is still
In her appearance before the Committee on her Offices 2005-2006 Estimates,
Privacy Commissioner Jennifer Stoddart congratulated the Committee on its
report and indicated her willingness to work with the Committee toward
the new funding mechanism.19
The Committee met in June 2005 with the Information Commissioner, John
Reid, on his Annual Report for the year ending 31 March 2005.20 At that
meeting, the Deputy Commissioner, Alan Leadbeater, indicated to the Committee
that the Office of the Information Commissioner was very supportive of
the Committees report, as its recommendations would provide Officers with
rigorous review, independent of the government of the day. He suggested
that the Treasury Board Secretariat was moving toward implementation of
a pilot project that would be roughly compatible with what had been recommended
by the Committee, but possibly involving all Officers of Parliament.
1. House of Commons, Standing Committee on Access to Information, meeting
No. 3, November 3, 2004.
2. Ibid., meeting No. 4, November 17, 2004.
3. A New Process for Funding Officers of Parliament May 2005.
4. In June 2003, the previous Privacy Commissioner, George Radwanski, resigned
during investigations of his financial and human resources practices.
5. Matters Relating to the Office of the Privacy Commissioner, June 2003.
6. See its Seventh Report, February 2005.
7. Third Interim Report on the Main Estimates 2005-2006: Officers of Parliament,
Twelfth Report of the Standing Senate Committee on National Finance, May
8. It is important to note, however, that the appointment procedures for
such Officers of Parliament are not consistent, despite a 2001 recommendation
of the Special Committee on the Modernization and Improvement of the Procedures
of the House of Commons that the appointment processes be the same.
9. Neither the Ethics Commissioner nor the Chief Electoral Officer felt
that this concern applied to his office.
10. House of Commons, Standing Committee on Access to Information, meeting
No. 13, February 24, 2005.
11. All of the Officers of Parliament considered in the Committees study
except the Chief Electoral Officer.
12. House of Commons, Standing Committee on Access to Information, meeting
No. 14, March 8, 2005.
13. Paul G. Thomas, Notes for Submission to House of Commons Standing
Committee on Access to Information, Privacy and Ethics on the Topic of
Funding Mechanism for Officers of Parliament, March 5, 2005, page 1.
14. This would be similar to some provincial funding models.
15. One of the principal concerns raised by witnesses with respect to the
U.K. model centred on the fact that money paid out to the U.K. Comptroller
and Auditor General stems directly from the Estimate laid before the House
of Commons by the Commission. In Canada, our constitutional framework requires
that the initiation of spending resides with the Crown and Parliaments
role is limited to approving, rejecting or reducing spending proposals.
Thus, for the U.K. model to work in this country, it would have to be modified,
for example, by having the Estimates submitted to the Treasury Board for
tabling as part of the government-wide Estimates process.
16. House of Commons, Standing Committee on Access to Information, meeting
No. 11, February 15, 2005.
17. For example, the Committee felt that consultation with the Senate of
Canada was necessary before the nature of Senate participation in the new
funding determination body was to be prescribed.
18. The Information, Privacy, Ethics and Official Languages Commissioners,
the Auditor General of Canada and the Chief Electoral Officer.
19. House of Commons, Standing Committee on Access to Information, meeting
No. 26, May 31, 2005.
20. Ibid., meeting No. 32, June 21, 2005.