Archived - Agents of Parliament and the Machinery of Government – Notes for an address to Statistics Canada's executive conference
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Ottawa, Ontario, October 7, 2013
Graham Fraser - Commissioner of Official Languages
Check against delivery
Beginning of dialog
Thank you very much for inviting me to speak to you about the role of agents of Parliament.
For some time now, we have used the term “agents of Parliament” to describe individuals who report to parliamentarians, in order to distinguish us from those who work directly for Parliament, like the Clerk.
We are, in some ways, neither fish nor fowl: neither public servants in the classic sense, in that we do not report through ministers and are not responsible for carrying out the priorities of the government of the day, nor are we officers of Parliament, like the Sergeant-at-Arms or the Clerk of the House, helping to manage the proceedings of Parliament.
Some academics, like J.R. Mallory, have expressed some skepticism about our roles; others have listed us among the additional pressures that are placed on deputy ministers.
Donald Savoie, one of Canada's leading experts on how the federal government operates, quoted a former clerk of the Privy Council as saying “deputy ministers see themselves as accountable to the Prime Minister, the Treasury Board and the Public Service Commission… In addition, [d]eputy [m]inisters recognize that they have special responsibilities to officials such as the Auditor General and the Official Languages Commission[er], as well as having an obligation to coordinate and cooperate with other departments.”Footnote 1
Savoie went on to say, “He could well have added the Public Accounts Committee, the Prime Minister's Office, the Privy Council Office and the … Information Commission[er]. What this suggests is that anyone wanting a clear mandate in the day-to-day work environment ought not to aim to become a deputy minister.”
There are eight of us:
- the Auditor General, established in 1868;
- the Chief Electoral Officer, established in 1920;
- the Commissioner of Official Languages, created by the Official Languages Act in 1969 and actually established in 1970;
- the Privacy Commissioner and the Information Commissioner, both established in 1983;
- the Conflict of Interest and Ethics Commissioner and the Public Sector Integrity Commissioner, both established in 2007; and
- the Commissioner of Lobbying, established in 2008.
I think the case can be made that each office was created as a parliamentary response to a problem that seized parliamentarians: they felt that they needed a source of information separate from the bureaucracy, which reports to the executive. I think of us as guardians of values.
Thus, the position of Auditor General, the most significant agent of Parliament, was created immediately after Confederation in order to ensure that members of Parliament could know that public money was properly spent.
Similarly, the Chief Electoral Officer was given the mandate to ensure the integrity of elections.
In 1969, the Official Languages Act was passed—and established my office to make sure that complaints could be heard, and that the will of parliamentarians be followed so that the Act would be respected. The Act itself, which provided for the appointment of a commissioner, was a response to a recommendation by the Royal Commission on Bilingualism and Biculturalism, which observed in 1965 that Canada was going through the greatest crisis in its history.
Then, in 1983, as parliamentarians became increasingly aware of the issues of government secrecy and personal privacy, the positions of Information Commissioner (sometimes called the Access to Information Commissioner) and of Privacy Commissioner were created.
Finally, under the present government, three additional agent-of-Parliament positions have been created: the Conflict of Interest and Ethics Commissioner and the Public Sector Integrity Commissioner in 2007, and the Commissioner of Lobbying in 2008.
I have not gone back to check the parliamentary debates that led to those three positions, but I think it is worth making the following observations.
Political scientist David Smith argues that we are seeing the development of “the audit society” and that agents of Parliament “are in the process of becoming the integrity branch of government.”Footnote 2
Although not all of us are ombudsmen, in the classic sense of receiving complaints from the public, several of us are—and I think that we all owe our positions in some sense to the spirit that led to the creation of the ombudsman.
As you may know, the ombudsman was an official, created by the King of Sweden in the 18th century, who was given the responsibility of seeing to it that the administration was living up to its responsibilities while the king was off leading his army into battle in Europe.
In 1809, when the king was deposed after losing a key battle, one of Napoleon's generals became King of Sweden—and Parliament took over the ombudsman's office.
This year is the 204th anniversary of the first parliamentary ombudsman, whose job was to make sure that the public administration was acting fairly and honestly, and to report its findings to Parliament.
But we are also auditors, checking to see how federal institutions are living up to the obligations that parliamentarians have imposed upon them or, in the case of the Canada Elections Act, upon themselves, specifically:
- whether institutions and politicians are spending responsibly;
- whether politicians are acting within the election spending limits;
- whether institutions are respecting the language rights of Canadians, the Privacy Act, the Access to Information Act, the Ethics and Conflict of Interest rules, the whistle-blower protections and the limitations of the Lobbying Act.
This is not without controversy. A number of academics have suggested that we undermine the role of parliamentarians.
In a paper published by the Institute on Governance, Jeffrey Graham Bell reviews these arguments. “Yes, [agents of Parliament] change the dominant policy networks, the political discourse and citizens' impressions of government,” he writes. “But they leave our fundamental democratic mechanism intact.”Footnote 3
With the application of closer scrutiny and accountability on our operations, there has been a concern about maintaining our independence from the institutions we monitor.
So, for several years, starting with the Martin government and continuing through the years of the Harper minority government, there was a pilot project involving a parliamentary panel to approve any additional expenditures, and a series of discussions with Treasury Board to exempt our offices from those directives that have an impact on our mandate, and on our independence as agents of Parliament.
For example, after Sheila Fraser raised the issue before a parliamentary committee, the government formally acknowledged that agents of Parliament were not required to submit all of our publications and news releases to the Privy Council for approval.
In June 2009, after lengthy discussions, the Treasury Board Secretariat modified its requirements so that the rules applying to agents of Parliament ensured that they were “solely responsible” for matters for which other deputy heads were “accountable to their ministers and to Treasury Board.”
This change applied to a series of areas, ranging from hospitality and the engaging of legal counsel to policies on evaluation, common-look-and-feel standards for the Internet, internal control and financial management governance.
Michelle D'Auray, then Secretary of the Treasury Board, noted that the Treasury Board Secretariat would not be actively monitoring our offices for compliance. “This enhanced recognition of the independence of agents of Parliament is accompanied by increased responsibility.”Footnote 4
I have been asked how I go about making changes to the Official Languages Act, since I do not report to a minister.
The Act has only been amended twice. In 1988, it was amended in order to be in compliance with the Canadian Charter of Rights and Freedoms. It was therefore a governmental decision, advocated by the Minister of Justice. The Commissioner at the time was so frustrated by the government's slowness in dealing with Charter requirements that he threatened to resign.
The only other time the Act was amended was through a private member's bill in 2005. Dyane Adam, my predecessor, played a key role behind the scenes.
I must confess that I don't spend a lot of time thinking about how to amend the Act. However, I do spend a lot of time thinking about how to enforce it.
I have also been asked how I position my organization and my work against the government, central agencies and other departments—and what choices I have.
I confess, I don't see my job as working against the government or federal institutions. Rather, I see my role as one of working to help federal institutions understand their responsibilities under the Official Languages Act, and ensuring that they respect them. When I applied for this job, I defined it as part cheerleader, part nag. I have come to appreciate that there are many allies and supporters for Canada's language policy inside the federal government, and it is often more effective to inspire rather than require compliance.
What choices do I have? In some areas, my choices are limited. If a complaint is admissible under the Act—if it deals with a specific incident, a section of the Act and a federal institution—I have to investigate. But I have considerable latitude in deciding what our priorities are, how we will spend our budget, which issues I will emphasize and how, and the tone that I adopt.
Is there an agent of Parliament community? Yes. We don't meet often—it's hard to find a time when everyone is available—but we support each other and discuss common problems. We are currently exploring the possibility of sharing some services.
What is my consultation process? It all depends on the subject matter. Sometimes, my office decides to establish advisory committees: for example, for its reports on post-secondary education and on the bilingual capacity of the superior courts. I communicate on a fairly regular basis with the parliamentarians that sit on my committee, both formally and informally. My office also conducted a survey to gauge the satisfaction level of complainants and of the institutions under investigation.
What has tested my leadership? Let me give you some examples.
When I was appointed Commissioner in October 2006, the government had already announced the elimination of the Court Challenges Program. Official language communities reacted very strongly to the news, and it wasn't just the lawyers. Soon after I arrived, I received some 109 complaints on this issue from across the country.
This was the first real test of Part VII of the Official Languages Act, or at least of the version amended by Parliament in 2005. My office's investigation supported the complainants, and serious shortcomings were found in the process that led to the decision.
The Fédération des communautés francophones et acadienne du Canada (FCFA) brought the matter before the Federal Court in 2008, with my support as an intervener. In the spring of 2009, just as the Court was about to render judgment, an out-of-court settlement was reached between the government and the FCFA: the linguistic component of the Court Challenges Program would be replaced by the new Language Rights Support Program.
We will never know what the Federal Court's ultimate decision was, so highly anticipated as it was at the time. What we do know, however, is that official language communities were undaunted in seeking a court remedy, and this got results.
I think that the work we did on the Vancouver 2010 Olympic Winter Games was a success. Services were available in both languages, announcements were in both languages, signage was in both languages, and even the private sponsors got into the spirit of it with ads in both languages. The one failure was the cultural component of the opening ceremonies, which made me realize that failure is obvious and success is invisible.
Our experience in working with the Olympic organizing committee led to the creation of a handbook for organizers of major sporting events and a positive working relationship with organizers of the 2013 Canada Games in Sherbrooke and the 2015 Pan-Am Games in Toronto.
Another success, paradoxically, flowed from a government failure. The appointment of an auditor general who was not proficient in both official languages led to criticisms from across the country and a series of complaints. Subsequently, we made it clear that senior officials who report to Parliament need to be able to communicate with parliamentarians in the language of their choice. Agents of Parliament also need to be able to communicate with all Canadians in either official language.
The result was a private members' bill that was supported by all parties. It is now the law that agents of Parliament must be bilingual.
I will concede a failure. In the spring of 2010, an NDP private members' bill, C-232, would have required Supreme Court judges to be sufficiently bilingual so that they can understand pleadings before the court without simultaneous interpretation.
I appeared before the Justice Committee in support of the bill, which would have eliminated an exemption in the Official Languages Act that now exists for the Supreme Court. The Harper government, which was then in a minority, assumed that the Liberals would vote to defeat the bill in the House.
They didn't, and then it went to the Senate (after no media coverage of the debate in committee or in the House). There was a burst of invective from Conservative senators and conservative commentators: the bill was discriminatory, unconstitutional, unfair to the unilingual and to Western Canada—all the arguments, in fact, that had been put forward in 1969 against the Official Languages Act.
I made my support for the bill very public, responding to editorials and columns in The Globe and Mail, the National Post and the Winnipeg Free Press. The government's displeasure with me over the position I had taken was made very clear, in very direct terms. The bill died on the order paper without coming to a vote in the Senate, and Prime Minister Stephen Harper named a unilingual judge to the Supreme Court.
So, you win some, you lose some. And that is the nature of the work that we do as agents of Parliament.
I would be pleased to use the remaining time to answer any questions that you might have.
- Footnote 1
Donald J. Savoie, The Politics of Public Spending in Canada, University of Toronto Press, Toronto, 1990, p. 221.
- Footnote 2
David E. Smith, “A Question of Trust: Parliamentary Democracy and Canadian Society,” Canadian Parliamentary Review, Spring 2004, pp. 24–29.
- Footnote 3
Jeffrey Graham Bell, Agents of Parliament: The Emergence of a New Branch and Constitutional Consequences for Canada, Institute on Governance, 2006.
- Footnote 4
Letter from Michelle d'Auray, Secretary of the Treasury Board, to Graham Fraser, Commissioner of Official Languages, September 18, 2009.