ETHI Committee Report
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CHAPTER ONE — OFFICERS OF PARLIAMENT AND CONCERNS ABOUT THE FUNDING OF THEIR OFFICES
The term “Officers of Parliament” has been used in different contexts to mean different things. It is not a term of art, and has not been legally defined. For the purposes of this Report, we refer to the three Commissioners to which our mandate applies as Officers of Parliament — as they do themselves — and we also apply the term “Officer of Parliament” to the Auditor General of Canada, the Commissioner of Official Languages, and the Chief Electoral Officer.
The significance of the term quickly became apparent. 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.2 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, concerns have been raised 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.3
Although this 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 has not included these bodies in this study.
CONCERNS ABOUT FUNDING OF THE OFFICERS OF PARLIAMENT
This study was initiated in response to concerns raised by both the Information and Privacy Commissioners about the process by which their Offices secure funding each year. Their Offices submit 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 this Committee for review. The Ethics Commissioner, Dr. Bernard Shapiro, whose Office is in its first year of operation, is funded under a different mechanism, making its funding more independent of government.
The funding procedure for the Ethics Commissioner and his Office, which was endorsed as one worthy of consideration for the other Officers of Parliament by the Information Commissioner in his Committee appearance in November 2004, 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 Committee is aware that the issue of funding for Officers of Parliament has been before other parliamentary committees over the last several years. In June 2003, in its report on the Radwanski affair,4 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.”6
In addition, concerns about funding for the operations of the Office of the Auditor General, and related matters, motivated the House of Commons Standing Committee on Public Accounts to make its Seventh Report in February 2005.7 At that time, the Public Accounts Committee reported that it had been aware of issues regarding funding for the Auditor General’s 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 a new funding mechanism be established, prior to the end of October 2005, 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.”8
| 2 | 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. See the report of the Committee at http://www.parl.gc.ca/infocomdoc/37/1/SMIP/Studies/Reports/SMIP/page18-19-E.htm |
| 3 | Neither the Ethics Commissioner nor the Chief Electoral Officer felt that this concern applied to his office. |
| 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, available on-line at http://www.parl.gc.ca/infocomdoc/37/2/OGGO/Studies/Reports/oggorp05/03-cov2-e.htm |
| 6 |
Recommendation No. 1: That the House instruct a standing committee, or a special committee, to study and report back on the role and functions of Officers of Parliament, including but not limited to:
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| 7 | Available on-line at /Error/Error.asp"20pt" valign="top" class="FNote">8 | Recommendation No. 2: That a new funding mechanism be established for the Office of the Auditor General, prior to the end of October 2005, that safeguards the independence of the Office and ensures that it will be able to meet the expectations of Parliament. |