PACP Committee Report

DEPUTY MINISTERS HOLD CERTAIN STATUTORY POWERS IN THEIR OWN RIGHT

As the administrative heads of departments, deputy ministers are delegated certain powers, while they hold other powers directly in their own right. Among the most salient of these is the Financial Administration Act which assigns important powers directly to deputy ministers, as pointed out by Privy Council Office:

[t]he FAA [Financial Administration Act] … assigns to the deputy head specific responsibilities for the prudent management of allocated resources… The specific responsibilities include:

• Preparing a division of an appropriation or item included in the Estimates, at the commencement of each fiscal year, or at such times as the Treasury Board may direct (subsection 31(1));
• Ensuring by an adequate system of internal control and audit that the allotments provided in a division of allotments approve by the Treasury Board are not exceeded (subsection 31(3));
• Establishing procedures and maintaining records respecting the control of financial commitments chargeable to each appropriation or item (subsection 32(2));
• Providing the required certification to authorize any payment to be made (section 34); and
• Maintaining adequate records in relation to public property for which the department is responsible and complying with regulations of the Treasury Board governing the custody and control of public property. (section 62) ^[4].

Deputies also hold other directly assigned authorities apart from those found in the FAA. As the Privy Council Office again points out:

Responsibilities relating to personnel management in the public service, including appointment, employer/employee relations, and the organization of departments, are assigned to the deputy head directly rather than through the minister ^[5].

Apart from these responsibilities, deputy ministers also have statutory powers in their own right under the Official Languages Act.

It is also worth noting that a significant number of Treasury Board policies, including the Policy on Internal Audit, assign responsibilities directly to deputy ministers. As a general rule, when the Committee recommends that Treasury Board Secretariat enforce its policies the common response is to assert that deputy ministers — not the Secretariat — bear individual responsibility within their departments for the implementation of central agency policies and guidelines.

These observations suggest the following question: how are deputy ministers held to account for the exercise of authorities that are uniquely theirs? Privy Council Office has an answer:

Deputy ministers and other public servants appear before parliamentary committees on behalf of their ministers to answer questions or to provide information on departmental performance that Ministers could not be expected to provide personally due to the level of detail or complexity ^[6].

Canadians who have followed the work of the Committee in investigating the Sponsorship Program will know that the Auditor General and the Committee were highly critical of the fact that the Executive Director of the Communications Co-ordination Services Branch (Mr. Guité) routinely certified contracts for payment, indicating that services had been delivered, even in the absence of any tangible proof. In performing this certification, Mr. Guité was exercising an authority under the Financial Administration Act (section 34) delegated to him from the deputy minister. Furthermore, the creation of the CCSB, the decision not to remove procurement from the CCSB to place it back in the main department, and the promotion of Mr. Guité to EX level and to Assistant Deputy Minister all occurred under the authorities vested in the deputy minister — and yet, Mr. Quail testified that these actions were taken at the behest of the minister. For his part, former Minister Gagliano repeatedly took personal credit for the implementation of corrective measures and routinely assigned the blame for any mismanagement to public servants or testified that he was simply unaware of any wrongdoing because public servants failed to inform him ^[7].

As a result of the way in which Privy Council Office interprets and applies the doctrine of ministerial accountability, however, there was confusion regarding who should bear the ultimate responsibility — and thus be held to account — for the way in which these authorities were exercised. Dr. Franks indicated, during his first appearance before the Committee 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.” (43:1115) [*] In the Committee’s view, this arrangement constitutes a major weakness in that the person who is responsible for management of departmental human and financial resources and for the exercise of related statutory authorities — the deputy minister — is not accountable to the ultimate source of those authorities and the approval of annual departmental appropriations — the Parliament of Canada.