The investigation by the Public Accounts Committee into the sponsorship affair was successful in an unexpected and unintended way. It identified the crucial factor which allows such problems to happen: not one of the many witnesses who came before the committee, neither ex- ministers nor public servants, ever stated: ”œyes, managing this program was my responsibility, and I am responsible and accountable for whatever went wrong with it.”
Ours is a system of responsible government, and con- stitutionally 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 break- down of responsibility and accountability disclosed by the investigation by 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- cabinet 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 there are exceptions where responsibility is assigned to persons other than ministers.
The Canadian Privy Council Office has, in various docu- ments, 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 ver- sion of ministerial responsibility also has weaknesses. These weaknesses allowed the system to go so drastically wrong for so long in the 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 cur- rently holds the post is responsible and accountable to Parliament. A pre- vious minister is not responsible and cannot be held accountable or answer- able by Parliament or its committees for what went on during his or her tenure. That is why previous incum- bents of ministerial posts have appeared before the public accounts committee as private individuals rather than in an official capacity.
Second, Privy Council Office doc- trine states that current ministers are answerable in Parliament for actions taken under the tenure of previous incumbents of the office. To be ”œanswerable” means a weaker sort of relationship than to be ”œaccountable.”
Third, the doctrine states that min- isters 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 main- taining accounts and ensuring pru- dence and probity in financial transactions. 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 doc- trine states that ministers are responsi- ble for promptly taking the necessary remedial steps and for providing assur- ances to Parliament that appropriate corrective action has been taken. The requirements of ministerial responsi- bility are met when ministers answer to this effect in Parliament.
The Privy Council Office interpre- tation means that no minister, whether present or previous office holder, is accountable to Parliament for problems stemming from the tenure of a previous minister. Responsibility and accounta- bility belong to the office and its cur- rent holder. Ministers are also answserable rather than accountable for public servants’ misdeeds. More impor- tant in the sponsorship affair, 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 ”œresponsible” person interro- gated by the Public Accounts Committee is rarely the deputy minister who held the post when contentious transactions occurred. Ministers also change office fre- quently, making their accountability into answerability, as has happened in the sponsorship affair, by the time that prob- lems come to the attention of Parliament.
This Privy Council Office interpreta- tion 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 responsibil- ities, did what the ministers and the Prime Minister’s Office told them to do. Previ- ous 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 sys- tem worked as described by the Privy Council Office.
The Public Accounts Committee was faced with the question of whether it considered this to be an ade- quate description of what ministerial and deputy ministerial responsibility and accountability of government to Parliament ought to be. Dissolved for the election, the committee did not have the opportunity to determine whether this was adequate. It remains for the Gomery judicial inquiry to make its study of what went wrong, and for the police to investigate possi- ble criminal activities. But if the Public Accounts Committee committee did not believe that this was satisfactory, then it has an opportunity, when re- constituted in the new Parliament, to address an additional task. That is to find a better way of handling these cru- cial relationships between Parliament, ministers, and public servants.
A better way exists. Britain has a quite different approach towards responsibility and accountability to Parliament for administration and the use of funds. In Britain the ”œpermanent heads” of departments (equivalent to our deputy ministers) are designated as ”œaccounting officers” and have full and personal responsibility for the transac- tions in the accounts, 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 ensur- ing that it works in practice, has been the central concern of the British Public Accounts Committee 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 in part was based on a mis- understanding of the British practice. Other persons have argued against the accounting officer approach because it is ”œunconstitutional” 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 a hundred years can be unconstitutional or go against the principles of the Westminster model. Another argument offered against its adoption is that present arrangements work well most of the time. This is true. But when 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 govern- ment, including public trust, and confidence in the neutrality of the public service.
The Public Accounts Committee might not agree with the Privy Council Office’s interpretation of the doctrine of ministerial responsibility. The commit- tee is entitled to, and should, express its views. The committee might conclude that the government’s interpretations and practices, not Parliament’s wishes, have led to scandals and the sort of obfuscation of the lines of responsibili- ty 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 parliamen- tary 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 adopt- ed 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.
Charles E.S. Franks is a professor emeri- tus of political studies at Queen’s University, and this article is adapted from his testimony before the Public Accounts Committee last May.