The Gomery Commission’s mandate invited it to make recommendations on whistle-blowing legislation, the governance and accountability of Crown corporations, access to information legislation, and the provisions for compliance and sanctions in the Financial Administration Act. More generally, it was to report on ”œthe respective responsibilities and account- abilities of Ministers and public servants as recommend- ed by the Auditor General of Canada.” The commission’s second report, Restoring Accountability: Recommendations, concentrates on this last, more general, topic. It devotes 13 of its 19 recommendations to clarifying and strength- ening, within the context of the principle of ministerial responsibility, the accountability of the most senior pub- lic servants, deputy ministers and heads of agencies. These recommendations cover: 1) the accountability of these senior officials, and especially their accountability before the Public Accounts Committee of the House of Commons; 2) ensuring that they take their management responsibilities and accountability seriously; and 3) strengthening Parliament’s capacity to hold them to account.
The Gomery Commission, like the auditor general before, found confusion over the respective responsibilities and accountability of ministers and public servants. It also found, as did the Public Accounts Committee, that deputy ministers had not accepted responsibility for the proper man- agement of the sponsorship program, and that the abuses were the result of their management failures. In order to clear up this confusion and clearly identify who was responsible and therefore accountable, the commis- sion recommended that:
the government should modify its policies and publications to explicitly acknowledge and declare that Deputy Ministers and senior public servants who have statutory responsibility are accountable in their own right for their statutory and delegated responsibilities before the Public Accounts Committee.
In making this recommendation the Gomery Commission reaffirmed a reform proposed first by the Lambert Commission on Financial Management and Accountability in 1979, then by the Special Committee on Reform of the House of Commons in 1985, by Prime Minister Chrétien in 2002, by the Public Accounts Committee in 2005, and by Prime Minister Stephen Harper and the Conservative Party in their platform for the 2006 general election.
In proposing that senior public servants should have an accountability relationship with Parliament, the Gomery Commission took issue with the government’s interpretation of the doctrine of ministerial responsibility. The Privy Council Office and the Treasury Board have been adamant that senior officials are only ”œanswerable to Parliament in that they have a duty to inform and to explain,” that when giving evidence before parliamentary committees officials ”œdo so on their Minister’s behalf,” that ”œpublic servants have no direct accountability to Parliament,” and ”œthe fact that Parliament enacts the statutory obliga- tions of deputy ministers in certain areas does not give rise to an account- ability relationship between the deputy minister and Parliament.”
The commission pointed out that deputy ministers and heads of agencies have management duties and responsibilities in their own right, some assigned to them directly by statute, some delegated by the Treasury Board and the Public Service Commission. Further, ”œthe statutory and other responsibilities assigned specifically to Deputy Ministers belong to them personally. Deputy Ministers cannot delegate these responsibilities upwards to Ministers, anymore than they can delegate them to subordi- nates. Their accountability attaches to the deputy minister, and to the deputy minister alone.” Neither ministers nor public servants can be held account- able for matters for which they do not hold the responsibility.
This reform is now before Parliament in the Harper government’s Federal Accountability Act, which includes, as an amendment to the Financial Administration Act, the provi- sions that:
Within the framework of the appropriate minister’s responsi- bilities and his or her accounta- bility to Parliament, and subject to the appropriate minister’s management and direction of his or her department, the accounting officer…[of a depart- ment or agency]…is accountable before the appropriate committee of Parliament for:
(a) the measures taken to organize the resources of the department to deliver depart- mental programs in compli- ance with government policies and procedures;
(b) the measures taken to main- tain effective systems of inter- nal 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 depart- ment.
Schedule VI of the Federal Accountability Act lists 20 deputy min- isters and 78 heads of agencies who will become accounting officers under these statutory provisions, and who will be accountable for their manage- ment duties before the Public Accounts Committee.
The wording of the Act, like the recommendation of the commission and the Public Accounts Committee, proposes that deputy ministers be accountable before, but not to, the Committee. The government argued that this would simply confirm exist- ing practice:
The government notes the dis- tinction made by the Committee between accountability before Parliament and accountability to Parliament. If accountability before Parliament means the ren- dering of a factual account of what was done and answering questions to provide information and explanations before a parlia- mentary committee, it is difficult to see how that would differ from the existing system, whereby deputy ministers are answerable to parliamentary committees.
The government’s response was in error in claiming that a relationship of ”œaccountability before” a committee means the same thing as ”œanswerabili- ty.” The reform will do far more than simply codify existing practice.
There is a crucial middle ground between accountability and answer- ability that the government’s defini- tions ignore. In this middle ground belongs the role of an official, minister or public servant who holds responsi- bility in his or her own right and defends decisions, actions, and failures to act before a parliamentary commit- tee. The accountability of British accounting officers before their Public Accounts Committee belongs in this middle category: they must explain and defend their actions. In the mid- dle ground also belongs the accounta- bility proposed for Canadian deputy ministers and heads of agencies before the Public Accounts Committee. Like British accounting officers, Canadian deputy ministers and heads of agen- cies, not ministers, will be the respon- sible and accountable officials before the Committee. Responding on behalf of someone else, as the government’s answerability relationship postulates, is not at all like responding and defending one’s own decisions and actions, as is demanded by an account- ability relationship. The government has not recognized this middle catego- ry. Its thinking on responsibility and accountability has been held prisoner by the false dichotomy in its own ter- minology.
This recommendation of the Gomery Commission and the similar provisions of the Federal Accountability Act are intended to make it explicit and unequivocal that deputy ministers and heads of agencies hold management responsibilities in their own right and are personally accountable for their stewardship of these responsibilities before the Public Accounts Committee. The Public Accounts Committee and government must now identify the management areas for which these senior officials hold responsibility, and ensure that they take their management responsi- bilities seriously.
The second recommendation of the Gomery Commission on the accountability of deputy ministers and heads of agencies deals with the processes to be followed when a deputy minister believes that an instruction from the minister conflicts with his or her duties and responsibili- ties. The government stated that such a process already exists:
[When]…disagreements arise between Ministers and their Deputy Minister…the dispute may be resolved with the help of the Clerk of the Privy Council or the Prime Minister and his or her senior advisers. If the Deputy Minister does not concur with the final outcome, he or she has the option of resigning, rather than implementing the decision of the Minister.
The commission agreed that every effort should be made to resolve these disagreements within govern- ment, and that in most cases these dis- cussions would lead to a resolution acceptable to both sides. However, in some situations a deputy minister might still feel compelled to imple- ment a ministerial decision that he or she believes offends legal or ethical standards. The commission concluded that neither of the choices now offered deputy ministers in these situations, of ”œrisking violation of statutory or ethi- cal duties or committing professional suicide [by resigning], is appropriate for ensuring probity.” The commission proposed that:
The Government should estab- lish a formal process by which a Minister is able to overrule a Deputy Minister’s objection to a proposed course of action in the area of jurisdiction in which the Deputy Minister possesses statu- tory or delegated powers. The decision of the Minister should be recorded in correspondence to be transmitted by the Deputy Minister concerned to the Comptroller General in the Treasury Board Secretariat, and be available there for examina- tion by the Office of the Auditor General.
This recommendation is similar to one made by the Public Accounts Committee in 2005. It is based on a practice followed in Britain. It also appeared in the Conservative Party’s election platform. The proposed process is intended to accomplish three objectives: 1) to identify who, minister or deputy, actually made the decision and hence holds responsibili- ty in problem areas; 2) to affirm and protect the principle of ministerial responsibility by ensuring that minis- ters can have the last word; and 3) to clarify the boundary between the man- agement responsibilities of deputy ministers and the more general responsibilities of ministers by estab- lishing precedents and rulings through a process for resolving disputes.
This recommendation of the Commission met with strong opposition. As a result the Conservative Government’s Federal Accountability Act proposes a some- what different process:
Where the appropriate minister and the accounting officer for a…[department or agency] …named in Part I or II of Schedule VI are unable to agree on the interpretation or applica- tion of a policy, directive or stan- dard issued by the Treasury Board, the accounting officer shall seek guidance in writing on the matter from the Secretary of the Treasury Board…
Where guidance is provided under subsection (1) and the matter remains unresolved, the appropriate minister shall refer the matter to the Treasury Board for a decision…
A decision by the Treasury Board shall be in writing and a copy shall be provided to the Auditor General of Canada…
The copy of a decision provided to the Auditor General of Canada is a confidence of the Queen’s Privy Council for Canada for the purposes of any Act of Parliament.
This resurrects a procedure in the Financial Administration Act prior to 1969, through which the comptroller of the treasury, an independent senior official in the Treasury Board Secretariat, could require the Treasury Board to rule on disagreements with deputy ministers over the regularity or propriety of proposed expenditures. When the position of comptroller was abolished in 1969 and responsibilities for making expenditures assigned to deputy ministers, this provision for an appeals procedure was deleted.
The process proposed in the Federal Accountability Act should meet the three objectives of the process recom- mended by the Gomery Commission. The process might also force the Treasury Board to take a more active role in the accountability processes for deputy ministers and heads of agencies. A 2005 Treasury Board study found that problems identified in deputy ministeri- al accountability to Treasury Board had not been resolved. The Gomery
Commission concluded that:
Something has not been work- ing in the way Treasury Board oversees departments, and it has not been working since responsibilities for financial administration were assigned to Deputy Ministers in 1969. … similar problems in financial management continually recur in the administration of the federal government…The Commission is left with the impression that Treasury Board no longer considers its oversight function to be an important part of its overall respon- sibilities.
The devil is in the details in this, as in other reforms. For it to work, the Treasury Board will have to focus more on the responsibilities and account- abilities of accounting officers, and the Public Accounts Committee will have to be satisfied that the dispute resolu- tion procedures succeed in establish- ing clear guidelines on how statutes, rules and policies should be interpret- ed. The rulings of the Treasury Board will also have to be made public, so that they can serve as precedents to guide accounting officers and the Public Accounts Committee.
Two studies for the Gomery Commission examined the man- agement role of deputy ministers. Professor Jacques Bourgault used the notion of ”œproprioception” (adapted from the domains of biology and kinesi- ology) to explain how deputy ministers, working in a complex environment, confronted with many different and often competing demands, have to decode and make choices as to what is important and which pressures they should respond to. Professor Bourgault found that in making their choices deputy ministers give the desires and concerns of ”œthe centre” ”” the prime minister, clerk of the Privy Council, and their offices ”” prime importance, at the expense of other duties, including departmental management.
Professor Peter Aucoin compared the Canadian approach to staffing and managing the deputy minister cadre with that of other Westminster-style parliamentary democracies: Great Britain, Australia, and New Zealand. He found that ”œthe conventions respecting the staffing and management of the deputy minister cadre that once served to secure the required neutrality of the public service have diminished in their effectiveness,” and that ”œthe independence of deputy ministers needs to be restored to secure the required balance, and thus the strengthening of adher- ence to the value of public-service neu- trality.” Aucoin is not alone in reaching this conclusion. He noted: ”œOne of Canada’s most respected former deputy ministers, Arthur Kroeger, has conclud- ed that the Sponsorship Program deba- cle, as the most serious of a string of recent instances of maladministration, indicates that the public service needs ”˜to exercise an independent role.’”
The Gomery Commission con- curred with these concerns and pro- posed reforms intended to make deputy ministers more responsive and attentive to their managerial duties. It recommended that ”œThe Government of Canada adopt an open and compet- itive process for appointment of deputy ministers similar to the model used in the Government of Alberta.” The commission also proposed that the functions and titles of the Clerk of the Privy Council should be redefined so that he or she should be ”œSecretary to the Cabinet,” while the Secretary of the Treasury Board should assume the title and function of ”œhead of the pub- lic service,” which currently belongs with the Clerk of the Privy Council.
The wording and details of these two recommendations met with strong opposition. They are not likely to be adopted. It is unfortunate that these objections have led discussion away from the commission’s intent: to ground deputy ministers more firmly in their departments, to strengthen their commitment to their managerial role, and to ensure that their sense of responsibility and accountability includes a strong commitment to their statutory and delegated duties.
The commission recommended that deputy ministers should be ”œappointed to their positions for a mini- mum of three years, with the expecta- tion that a standard appointment would have a duration of at least five years.” When the government wants to deviate from this policy, it ”œshould be required to explain publicly the reason for such a derogation.” The commis- sion was concerned first, that deputy ministers should stay in an office long enough that they live with and can be held accountable for their decisions and actions, and second, that longer tenure in a department would make deputy ministers more responsive to their managerial duties. The tenure of Canadian deputy minis- ters in departments is astonishingly short: in the 20 years between 1984 and 2004 Canada had six Clerks of the Privy Council, seven Secretaries of the Treasury Board, seven deputy ministers of finance, and twelve deputy ministers of industry. A private business could not be managed properly with a senior man- agement turnover like that.
The Public Accounts Committee expressed similar concerns over the brief tenure of deputy ministers. The government was not sympathetic in its response:
The appointment of deputy min- isters is based on the operational and policy needs of the govern- ment. The length of a deputy minister’s term in a position in no way diminishes his or her accountability and responsibility. Deputy ministers typically have significant depth and breadth of experience and expertise, and they remain accountable for the performance of their departments regardless of the duration of their assignment.
Many others have expressed concern over the short tenure of deputy ministers. Unfortunately, there is no indication that the government will accept the commis- sion’s recommendations on this, or even accept that there is legitimate concern over the commitment of deputy minis- ters to their managerial responsibilities. In contrast to its positive response to the commission’s recommendations on the accountability of deputy ministers, the government has so far ignored the commission’s recommendations to strengthen the commitment of deputy ministers to their managerial role and accountability.
The commission made four recom- mendations to strengthen parlia- mentary committees. One addressed problems facing all committees: ”œTo redress the imbalance between the resources available to the Government and those available to parliamentary committees and their members, the gov- ernment should substantially increase funding for parliamentary committees.” Although a study for the commission had proposed a parliamentary budget office, the commission preferred broader support for all parliamentary commit- tees. The Harper government intends to establish a parliamentary budget officer. The commission’s first recommendation on the Public Accounts Committee identifies the committee as being especially in need of substantially increased funding for research, legal, administrative and expert staff. The second is that ”œmembers of the Public Accounts Committee should be appointed with the expectation that they will serve on the Committee for the duration of a Parliament.” The third recommends that the Committee ”œshould ensure that Deputy Ministers, other heads of agencies and senior officials are the witnesses called to testify before it. As a general princi- ple, Ministers should not be called as witnesses.” A study for the commission described in some detail the difficulties caused for the Public Accounts Committee by frequent changes of membership (76 members sat on the committee at one time or another during this investigation), and the parti- sanship resulting from the presence of ministers as witnesses in its highly charged and partisan investigation into the sponsorship affair.
The commission stressed that the Public Accounts Committee has a spe- cial duty to ensure that the govern- ment does not conduct financial administration in a partisan manner. To do this the committee itself must function in a non-partisan manner, and must concentrate on non-partisan querying of deputy ministers and other senior officials: ”œThe presence of Ministers before the Committee creates a real danger that it will lose sight of its essential function of overseeing the non-partisan tasks of administration and, to the detriment of its accounta- bility to Parliament, will engage in par- tisan excesses.” The committee succumbed to this danger in its investi- gation into the sponsorship affair.
The commission also addressed the chain of accountability from department though auditor general and Treasury Board to Public Accounts Committee. It found that:
Some links in the chain are weak, if not broken. The weak- ness that most concerns this Commission is that between the Public Accounts Committee and the Treasury Board. These agen- cies should hold Deputy Ministers accountable for their management responsibilities. The Committee acts on behalf of Parliament, and the Treasury Board on behalf of the executive, but they have common interests in ensuring that financial admin- istration meets acceptable stan- dards. The Treasury Board and the Public Accounts Committee should be, if not amicable, then at least collaborative partners to ensure that they achieve their common goal of probity in finan- cial management.
The Treasury Board and the Public Accounts Committee must engage in a dialogue, not confrontation, the com- mission concluded.
The first topic of this dialogue should be the terms and conditions for the appearance of deputy ministers and heads of agencies as accounting officers before the committee. Some of these ground rules are well established. Deputy ministers do not enter into partisan issues and discussions. Deputy ministers may be required to explain departmental policies, which they do by providing detailed informa- tion. They do not defend or criticize policies or decisions of the govern- ment. They simply inform. They do not debate matters of political contro- versy and do not discuss confidential advice given to ministers, whether on policy or administration.
There is less agreement on deputy ministers’ management responsibilities. The government has argued that the management responsibilities belonging to deputy ministers cannot be defined, because a distinction cannot be made between administration and policy. This does not hold water. Britain has not found difficulty here. Policy and admin- istration form opposite ends of a con- tinuous spectrum. At the clearly administrative end are such matters as regularity, or ensuring that rules and laws are obeyed, and propriety, or ensur- ing that administration is conducted with probity. Economy, in the sense of avoiding obvious waste and extrava- gance, is also close to the administrative end. Further along the spectrum toward policy are efficiency, value for money, and effectiveness. The administrative responsibilities that deputy ministers hold in their own right cover only a nar- row range of activities at the administra- tive end of the policy-administration spectrum, for matters of regularity, pro- priety, and economy. Nevertheless, these are the areas in which recent scan- dals, including the sponsorship affair, have occurred. They are the areas in which the Public Accounts Committee needs to hold deputy ministers and heads of agencies to account.
The commission did not make rec- ommendations in some of the areas in its mandate, including whis- tle-blowing legislation and the Access to Information Act. Its rec- ommendations on advertising and Crown corporations were restricted to narrow aspects of these broad topics. The commission’s research program usefully covered these areas. Though the commission made only one recommendation on lobbying, the proposals in the Federal Accountability Act on lobby- ing bear a close resemblance to the recommendations in the commis- sion’s research study on lobbying.
The commission’s core recom- mendations deal with responsibility and accountability as essential parts of the democratic process, and as quali- ties that ought to be deep inner con- cerns and commitments on the part of ministers, officials, and parliamentari- ans. As the Commission’s report states, the problems:
will not be solved by adding more rules, more internal oversight bodies, new approaches to management, and more demands on Deputy Ministers for detailed accountability to central agencies. The source of the problems in responsibility and accountability do not lie in regulations. They lie in an administrative culture that has not only failed to encourage senior public servants to fulfill their duties and responsibilities but has failed to impose penalties for non-fulfillment.
”œAccountability,” the Commission emphasized, ”œhas an internal or per- sonal dimension, a knowledge that there are proper and improper ways to act, and that a responsible public office holder should choose the proper ways and avoid the improper.” As a final test if officials still question whether a pro- posed course of action meets accept- able standards, they should ask themselves: ”œCould I satisfactorily defend this before the Public Accounts Committee?
Alternatively, since accountabili- ty is ultimately to the public, the test could be worded: Could I satisfactori- ly defend this course of action in public?”
The Gomery Commission’s recom- mendations and proposals in the Federal Accountability Act agree in the crucial area of the accountability of deputy ministers and heads of agencies. On appointments to boards of Crown corporations and other public offices, the two complement each other. But the philosophies behind the two sets of pro- posals diverge widely. The recommenda- tions of the Gomery Commission are based on the assumption that that the system should demand that officials behave with probity and in a responsi- ble manner. It places the burden of doing so on senior public servants. They, in turn, must ensure that their departments and agencies observe the same high standards.
Where the Gomery Commission believed that officials could be trusted, provided responsibility is clear- ly assigned and effective accountability processes are in place, the Harper gov- ernment’s Federal Accountability Act appears to imply a deep mistrust. It is more concerned with strengthening oversight mechanisms and detecting and punishing wrongdoing, the need for controls, and mechanisms such as rewards for whistle blowing. It propos- es new agents of Parliament, including a commissioner of lobbying, a parlia- mentary budget officer, a public service integrity commissioner, and a new conflict of interest and ethics commis- sioner. It proposes adding a procure- ment auditor and a director of public prosecutions to government. The Harper government claims that its action plan strikes an appropriate bal- ance between oversight and flexibility. But there are legitimate concerns that the plan goes too far in the control, punishment, and mistrust direction. Its reforms will also place a heavy burden on Parliament in holding accountable this plethora of agents and officers and ensuring that they act with moderation and restraint in their complex inves- tigative, reporting, and quasi-judicial functions.