The Role of Independent Guardians: Description and Synthesis
A background paper for a
discussion forum on achieving balance in accountability and oversight
By Antoine Pastré and Todd Cain
1 Table of Contents
Glossary of Acronyms
Introduction
PART I: Independent Guardians of Canada
Different Types of Independent Guardians Discussion
PART II: Independent Guardians: Eight profiles I. Office of the Auditor General – OAG
II. Office of the Commissioner of Official Languages – OCOL III. Office of the Information Commissioner – OIC
IV. Office of the Privacy Commissioner – OPC V. Office of the Commissioner of Lobbying – OCL
VI. Office of the Public Sector Integrity Commissioner – OPSIC VII. Public Service Commission – PSC
VIII. Office of the Conflict of Interest and Ethics Commissioner – OCIEC
Conclusion and Areas for Future Research
2 Glossary of Acronyms
ATIA Access to Information Act
CHRC Canadian Human Rights Commission CITT Canadian International Trade Tribunal COIA Conflict of Interest Act
FinAA Financial Administration Act FedAA Federal Accountability Act
DAAC Department and Agency Audit Committees DNDO Department of National Defence Ombudsman GiC Governor in Council
OAG Office of the Auditor General OCEO Office of the Chief Electoral Officer OCG Office of the Comptroller General
OCHRO Office of the Chief Human Resources Officer OCI Office of the Correctional Investigator
OCOL Office of the Commissioner of Official Languages OCL Office of the Commissioner of Lobbying
OIC Office of the Information Commissioner OPC Office of the Privacy Commissioner OPO Office of the Procurement Officer
OPSIC Office of the Public Service Integrity Commissioner PBO Parliamentary Budget Officer
POAC Parliament of Canada Act PSEA Public Service Employment Act PSMA Public Service Modernization Act PSC Public Service Commission
PSLRB Public Service Labour Relations Board PSST Public Service Staffing Tribunal
SIRC Security Intelligence Review Committee TBS Treasury Board of Canada Secretariat
3 Introduction
The Institute on Governance (IOG) was engaged to shape a long-term dialogue
amongst influential stakeholders on the evolving role of reporting in achieving balance in accountability and oversight. In addition, the IOG investigated the relationships between the different types of oversight bodies which act as ‘guardians’ of good governance in the Government of Canada, including the Agents of Parliament and the public service, and the cumulative impact of their scrutiny on government departments.
This paper constitutes one part of the IOG’s program and describes some of the
current independent oversight guardians. Broadly these oversight bodies were chosen for their contribution to public administration and the overall functioning of government.
For this reason, others, notably the Chief Electoral Officer, were omitted, as their
oversight pertains to areas outside of public administration, while others were excluded because they were very narrow in focus, looking either at a sub-function, such as grievances, or a single department.
In reviewing these types of offices in Canada and abroad, there are differences in nomenclature for Agents and Officers and in the application of oversight, both formally and informally. For this work, the IOG has chosen the term ‘independent guardian’ to denote the responsibilities of these bodies to scrutinize, investigate and advise as independent entities bearing the sanction of Parliament. Their oversight functions have earned the corresponding organizations in the UK the title of ‘watchdogs’, evoking the sense of protection of the public interest within government institutions in the
execution of their governance functions.
The paper begins, in Part I, by setting out an analytical framework which delineates the different types of guardians, demonstrates the proliferation of independent oversight bodies, especially since 2006 and the Federal Accountability Act, and highlights areas of possible overlap and the cumulative structure of oversight in the federal government system.
The paper then, in Part II, presents an organizational overview of eight independent oversight agencies. It attempts to show these bodies within the scope of their role supporting Parliament, and their evolution over time. Each agency is presented in four categories: enabling legislation, profile, mandate and history. The paper highlights both the distinctive as well as the most similar traits of each, with the overall goal of
shedding light on the cumulative impact on our main systems of oversight and accountability.
Finally, the paper ends with some suggested areas for future research into issues of oversight and accountability.
4 PART I:
I. Different Types of Oversight Bodies
Independent oversight bodies, or guardians, within the Government of Canada reflect the need and demand for rigorous accountability and integrity in the use of political and administration power. The independence of these bodies from the institutions they oversee is critical to their ability and legitimacy as guardians of good governance standards and practices. In response to the Sponsorship Scandal which raised heightened concerns about the abuse of power and the potential for corruption, the Federal Accountability Act (2006) created three more oversight bodies and raised the profile of others by focusing on their role in safeguarding standards of governance and public administration. While this Act set a new standard for accountability and
independent oversight, it is part of a long-term trend to intensify accountability and external scrutiny.
Many institutional forms and mechanisms exist within government to provide independent scrutiny, operating in a variety of ways with various degrees of independence. This paper describes the mandates of eight different independent guardians, based on at least 3 different institutional models.
For the sake of clarity, this paper begins with a definition of the broad institutional categories of guardians. However, while there may be important relationships between institutional arrangements and the effectiveness of the oversight function, this research program is more interested in the higher-level effects of our current oversight regime.
Agents of Parliament are located within the machinery of the executive branch and operate under their statutory mandates that require them to operate with a high degree of independence. Their responsibilities lie in the provision of information and oversight to and on behalf of Parliament on government activities, the protection of individual rights and the integrity of the electoral process. These Agents report directly to
Parliament, not through a Minister, and enjoy security of tenure for seven years, except for the Auditor General who has tenure for ten years. They have the power to
investigate and report.
Agents of Parliament are distinct in the level of independence from the executive.
Parliamentary involvement in the Governor-in-Council (GiC) appointment process and dismissal processes, as well as Agents’ ability to self-monitor in relation to TB policies and interact with parliamentary Advisory Panel in dealing with funding requests, further establishes their independence. Employees are public servants appointed under the PSEA. There are currently seven Agents of Parliament: OAG, OIC, OPC, OCL, OCOL, OPSIC, and CEO.
5 Officers of Parliament are located within the apparatus of Parliament itself, and serve directly as guardians of Parliament. Employees are not public servants but are
appointed under the Parliamentary Employment and Staff Relations Act. The
‘responsible ministers’ for Officers of Parliament are the Speakers of either the House of Commons or Senate.
Examples include: Conflict of Interest and Ethics Commissioner, Senate Ethics Officer, Parliamentary Librarian (including the Parliamentary Budget Officer).
Ombudsmen are those offices which are located administratively within departments but operate independently from the departments. Ombudsmen have the power to investigate and report. They report directly to the responsible Minister. Ombudsmen are mandated to investigate grievances and mediate disputes between the department and third parties and monitor departmental activities.
Non-Agent schedule I.1 organizations are those that are also listed under schedule I.1 of the Financial Administration Act (FinAA) with a corresponding responsible Minister. These organizations operate a highly independent oversight role, often as quasi-judicial tribunals. Although they share many of the same oversight
responsibilities as Agents of Parliament, they do not have as direct a relationship with Parliament. Examples include the PSC and the CHRC. They often carry some
executive power to order action by executive branch organizations.
All the independent oversight bodies have the power to investigate and report on concerns within the area of their mandate. As a remedial tool, many oversight bodies report on complaints of improper conduct or breaches of the governing Act. As a preventive and educative tool, many oversight bodies increasingly act in an advisory capacity.
While each of these institutions properly has the power to choose where to investigate, audit and evaluate, there are clearly opportunities for overlap on specific investigations or in the choice of a thematic or departmental focus for review. As the later description of parliamentary agents will show, the general tendency towards the expansion of the powers of the Agents, the risk of blurring of lines and overlap may grow overtime. As such, there should be a premium on finding appropriate mechanisms to coordinate oversight activities to get the most value possible from the collective resources
invested and maintain a reasonable balance between the focus on audits and reporting and program/policy delivery for public managers.
Figure 1 demonstrates, on a timeline, the increased number of independent oversight bodies within the federal government system and illustrates their cumulative
compliance burden on the organizations they oversee.
6 Figure 1: Select independent guardian timeline
7 2. DISCUSSION
In Part II of this paper, profiles of seven Agents and Officers of Parliament, as well as the Public Service Commission, are set out. They share many common features in the
machinery of their offices (e.g. terms of appointment, investigatory powers, etc.) and in their compliance and reporting roles. While all share the responsibility to investigate or audit within the scope of their responsibilities, only some have explicit education or advocacy roles. In the case of the AG, while the scope of possible issues for review is very broad, the Office has explicitly guarded against any direct advocacy of specific policies, other than in very specific public accounting issues. The PSC operates a dual function, as both an internal service provider and oversight body.
One third of these independent guardians originated in the years since the HRDC grants and contributions controversy and the Sponsorship Scandal. The Public Sector Modernization Act and the Federal Accountability Act have reshaped the landscape of guardian agencies in a way that is still evolving. While the mandates of the long-standing Agents are well
developed and broadly understood, the roles, mandates and interplays of some of the newer independent guardians are still being clarified in the minds of the media, the public and some parliamentarians. In addition to these questions, their relationships with parliamentarians and the public service are variable.
It is important to note that many of these newer agents hold mandates that used to be carried out under different institutional arrangements.
This last point reinforces how critical it is to understand the Agents not only relative to themselves, but also in the context of other instruments of accountability and oversight.
Figure 2 below provides a high-level map of institutions carrying at least a partial oversight role, in relation to the different functional areas of government – Finance, Procurement, Human Resources, Information Technology/Information Management, Programs and Values and Ethics.
8 Figure 2: Oversight map by function
The oversight institutions are arrayed in terms of their independence from the executive branch, ranging from Parliament itself, Agents of Parliament, and independent executive agencies (including tribunals and ombudsmen) to the government’s own oversight functions in the Treasury Board Secretariat and Departmental and Agency Audit and Evaluation
functions.
Thus, Figure 2 includes a number of independent executive agencies, namely the Public Service Labour Relations Board, the Public Service Staffing Tribunal, the Canadian Human Rights Tribunal, the Office of the Procurement Ombudsman, the Canadian International Trade Tribunal, and a sampling of specialized oversight bodies such as the Security
Intelligence Review Committee, Office of the Correctional Investigator and National Defence and Canadian Forces Ombudsman.
9 PART II:
In this section of the paper, descriptions of eight selected independent guardians illustrate the features and mandates of these key offices.
I. Office of the Auditor General (est. 1878) Enabling legislation: Auditor General Act (1985)
Profile1
Budget FTEs Term Appoint. Removal Report. Parl. Comm.
$ 98.6 m 635 10 GB2 GiC3 with Parliamentary
role to approve appointments
and dismissals
2 (H+S)4 Dismissal by GiC on address of House and Senate
H PACP5, CESD6, OGGO7, NF8
Mandate
The original attest audit mandate of the Auditor General was to examine the financial statements to be included in the Public Accounts, as well as any other statement that the President of the Treasury Board or the Minister of Finance may present for audits. The Auditor General expresses his/her opinion as to whether they present fairly information in accordance with stated accounting policies of the federal government and on a basis
consistent with that of the preceding year together with any reservations he/she may have.910 The OAG is further mandated to conduct value for money or comprehensive audits, which seek to determine the extent to which both accountability mechanisms are respected and the
1 All profiles are based on the 2010-2011 expectations
2 GB : during good behaviour
3 GiC : Governor in Council
4 H : House of Commons ; S : Senate
5 PACP : Public Accounts Committee
6 CESD : Committee on the Environment and Sustainable Development
7 OGGO : Government Operations and Estimates Committee
8 NF : National Finance (Senate Committee)
9http://www.oag-bvg.gc.ca/internet/English/au_fs_e_828.html
10 A role which is complemented by the compliance audit – which is performed to ensure that all legislative enactments and government regulations have been complied with in the operations of programs. (see Barker 2008 below)
10 management of financial, human, and physical resources is conducted efficiently, effectively, and economically.11
The Auditor General reports annually to the House of Commons and may make, in addition to any special report and the Commissioner of the Environment and Sustainable Development’s report, not more than three additional reports in any year to the House of Commons on the work of his/her office; and on whether, in carrying on the work of her office, the office received all the information and explanations required.12
The strategic outcome of this office is, in the short-term, to engage Parliament and federal and territorial organizations in the audit process: it therefore provides an independent source of information that supports Parliament in holding government accountable. It also ensures that Parliament is well informed about its work, and maintains support for it. In the long-term, the Auditor General’s work is meant to lead to more effective, efficient, and economical government programs and operations that foster sustainable development.
History
The first legislation establishing an Auditor General vested in the Auditor the dual functions of Comptroller of issue and auditor of the public accounts. In 1931, the Consolidated Revenue and Audit Act split those functions of control and audit, leaving the audit functions with the Auditor General, and assigning the control or issue functions to a newly created executive officer, the Comptroller of the Treasury. In 1969, the Financial Administration Act was
amended, a move that abolished the Comptroller of the Treasury’s Office. The issue function, originally one of the Auditor’s roles, was transferred to the Receiver General of Canada.
In the 1970s, a second wave of innovations affected the Office: the concept of value for money was introduced. In 1977, the Auditor General was given a broader mandate to examine how well the government managed its affairs. The updated Auditor General Act maintained the important principle that the Auditor General does not comment on policy choices but does examine how policies are implemented.13 In 1995, that Act was further amended to create, within the Office, the position of Commissioner of the Environment and Sustainable Development.
In 2006, the FedAA strengthened the role of the AG as an independent and reliable source of information on government spending, by giving the AG the authority to ‘follow the money’, by investigating the use of funds received by individuals, institutions and companies under funding agreements with federal departments, agencies or Crown corporations.
11 Barker P., 2008. Public Administration in Canada, Brief Edition. Thomson Nelson, p. 322.
12 http://www.oag-bvg.gc.ca/internet/English/au_fs_e_828.html
13 http://www.oag-bvg.gc.ca/internet/English/au_fs_e_821.html
11 II. Office of the Commissioner of Official Languages (est. 1970)
Enabling legislation: Official Languages Act (1970) Profile
Budget FTEs Term Appoint. Removal Report. Parl. Comm.
$ 22.6 m 177.5 7 GB GiC on approval
by resolutio
n of House
and Senate
2 (H+S) Dismissal by GiC on address of House and Senate
H and
S LANG14
Mandate
The Commissioner takes all actions and measures within his authority to ensure recognition of the status of each of the official languages and compliance within the spirit and intent of the Act in the administration of the affairs of federal institutions, including any of their
activities relating to the advancement of English and French in Canadian society. He ensures the equality of both languages in parliamentary and executive institutions, the federal
administration and the institutions subject to the Act; the preservation and development of official language communities in Canada; and their equality in Canadian society.15
The strategic outcome of this Office is twofold. Canadians' rights under the Official
Languages Act are protected and respected by federal institutions and other organizations subject to the Act; and linguistic duality is promoted in Canadian society. First, the Office serves as a protection of the languages through compliance assurance: through its
ombudsman, performance measurement and auditing, as well as court intervention roles.
Second, it allows the promotion of the languages through policy and communications, through its liaison, monitoring, and education roles.16
History
In 1969, the Government passed the Official Languages Act, which followed the findings of
14 LANG : Official Languages Committee
15 http://www.ocol-clo.gc.ca/html/mandate_mandat_e.php
16 http://www.tbs-sct.gc.ca/rpp/2010-2011/inst/col/col01-eng.asp
12 the Royal Commission on Bilingualism and Biculturalism17 and included the establishment of the Commissioner of Official Languages. In 1988, a new Act came into force, which
enhanced his powers. Today, the Commissioner’s duties can be seen as both linguistic ombudsman and auditor, as well as policy advocate and public educator.18
17 G. TSAI, N. PONCE, 2002. Relations between Parliamentary Agencies and the Public Service : New Perspectives, Canadian Centre for Management Development, p. 36.
18 McMILLAN C. M., 2006, Active Conscience or administrative vanguard ?: the Commissioner of Official Languages as an agent of change, In Canadian Public Administration, p. 165.
13 III. Office of the Information Commissioner (est. 1983)
Enabling legislation: Access to Information Act (1983) Profile
Budget FTEs Term Appoint. Removal Report. Parl. Comm.
$ 10 m 82 7 GB GiC on address of House
and Senate
2 (H+S) Dismissal
by GiC on address of House
and Senate
H and S
ETHI19
Mandate
The Commissioner assists individuals and organizations that believe that federal institutions have not respected their rights under the Access to Information Act. In doing so, he must also ensure that the rights of the government organizations and any involved third parties are respected. He provides arms-length oversight of the federal government’s access to
information practices. The Commissioner encourages and assists federal institutions to adopt approaches to information-sharing that meet the objectives of the Act. Overall, he/she has strong investigative powers to mediate between dissatisfied information applicants and government institutions. As an ombudsperson, the Commissioner may not order a complaint to be resolved in a particular way, though he/she may refer a case to the Federal Court for resolution.20
The strategic outcome of this Office is for the requestors’ rights under the Act to be
respected, which is done through compliance. Requestors benefit from a fair and effective complaints resolution process. Stakeholders understand the role and perspective of the Office in ensuring compliance with the Access to Information Act. Federal institutions meet their obligations. The Courts receive useful representations and relevant evidence about access issues, the proper interpretation of the provisions of the Act, related statutes, regulations and jurisprudence. Parliament receives clear, relevant information and timely, objective advice about the access to information implications of legislation, jurisprudence,
19 ETHI : Access to Information, Privacy and Ethics Committee
20 http://www.infocom.gc.ca/
14 regulations and policies.21
As well as the terms of the mandate, the Commissioner advocates for greater access to information in Canada.
History
Conceived in the late 1970s, and passed into law in 1982, the Access to Information Act established the Office of the Information Commissioner. The establishment of this institution cannot be understood without considering the international trend towards the enacting of similar legislation. Within Canada, there are important differences in the way this Agent of Parliament is empowered to accomplish his/her duties, compared with provincial
counterparts. Whereas the federal legislature preferred an ombudsman-type function to head its information-access and privacy-protection systems, most provincial legislatures followed Quebec’s lead in creating quasi-judicial bodies.22 Also, as mentioned above, the
Commissioner is given a very large mandate for investigations, but he/she must count on moral authority and power of persuasion to ensure the recommendations are implemented.
21 http://www.tbs-sct.gc.ca/rpp/2009-2010/inst/nd5/nd501-eng.asp
22 P. A. COMEAU, 2002. « Office of the Information Commissioner : Searching for its True Nature », quoted in TSAI/PONCE, op. cit., p. 36.
15 IV. Office of the Privacy Commissioner (est. 1983)
Enabling legislation: Privacy Act (1983), Personal Information Protection and Electronic Documents Act – PIPEDA (2000)
Profile
Budget FTEs Term Appoint. Removal Report. Parl.
Comm.
$ 23.2 m 177 7 GB GiC on address of House
and Senate
2 (H+S) Dismissal by GiC on address of House
and Senate
H and S ETHI
Mandate
With regard to government, the Commissioner investigates complaints from individuals with respect to the federal public sector and the private sector. Canadians may lodge complaints with the Commissioner about any matter specified in Section 29 of the Privacy Act. He/she has the power to summon witnesses, administer oaths and compel the production of evidence if voluntary co-operation is not forthcoming. Under certain circumstances, the Commissioner may apply for review by a Federal Court, if the recommendations are not acted upon.23
The strategic goal of this Office is to play a lead role in influencing federal government institutions and private sector organizations to respect the privacy rights of individuals and protect their personal information. This is done through compliance activities, research and policy development, as well as public outreach.24
History
The Office of the Privacy Commissioner has been described as the “other side of the coin” to the Office of the Information Commissioner. The current 1982 Act flows out of the parallel debates over the Access to Information Act, which raised immediate questions about the
23 http://www.priv.gc.ca/aboutUs/mm_e.cfm#contenttop
24 http://www.tbs-sct.gc.ca/rpp/2010-2011/inst/nd6/nd601-eng.asp
16 compatibility between such legislation and the privacy standards within the Access to
Information Act.25 The Act applies to personal information held by the Government of Canada. For matters relating to personal information in the private sector, the
Commissioner’s role is to investigate complaints under Section 11 of the Personal Information Protection and Electronic Documents Act (PIPEDA).
25TSAI/PONCE, op. cit., p. 39
17 V. Office of the Commissioner of Lobbying (est. 2008)
Enabling legislation: Lobbying Act (1985), Lobbying Registration Act (1989) Profile
Budget FTEs Term Appoint. Removal Report. Parl. Comm.
$ 2.4 m 28 7 GB GiC on address
of House
and Senate
2 (H+S) Dismissal
by GiC on address of House
and Senate
H and S ETHI
Mandate
The Commissioner ensures transparency and accountability in the lobbying of public office holders in order to contribute to confidence in the integrity of government decision-making.
The Commissioner administers the Act by: maintaining the Registry of Lobbyists, developing and implementing educational programs to foster public awareness of the requirements of the Act; and conducting reviews and investigations to ensure compliance with the Act and the Lobbyists' Code of Conduct. He/she reports annually to Parliament on the administration of the Act and the Code and tables reports on any investigations conducted in relation to the Code.26
History
This Office’s origins stem from the Lobbyists Registration Act dating back to 1989. It set basic requirements for the registration of paid lobbyists, including that lobbyists were to provide information about themselves and the subject matter of their lobbying. In 1995–1997, amended legislation mandated the development of a Lobbyists' Code of Conduct, which was to be enforced by a newly created Ethics Counselor.27
In 2004, new legislation changed the reporting structure under the Lobbyists Registration Act, so that the Registrar reported to Parliament directly through the Registrar General of Canada (the Minister of Industry), rather than through the Ethics Counselor. In 2006, the
26 http://www.ocl-cal.gc.ca/eic/site/lobbyist-lobbyiste1.nsf/eng/h_nx00264.html
27 http://www.ocl-cal.gc.ca/eic/site/lobbyist-lobbyiste1.nsf/eng/h_nx00267.html
18 Office was transferred to the portfolio of the President of the Treasury Board as an
independent entity. In 2008, the position of Registrar of Lobbyists was replaced with that of Commissioner of Lobbying, an independent Agent of Parliament, with expanded investigative powers and an education mandate.28
28 Ibid.
19 VI. Office of the Public Sector Integrity Commissioner (est. 2007)
Enabling legislation: Public Servants Disclosure Protection Act (2007) Profile
Budget FTEs Term Appoint. Removal Report. Parl. Comm.
$ 6.5 m 34 7 GB GiC on address
of House
and Senate
2 (H+S) Dismissal by
GiC on address of House and
Senate
H and S NF, OGGO, ETHI
Mandate
The Office establishes a safe, confidential and independent mechanism for public servants or members of the public to disclose potential wrongdoing in the federal public sector. It
investigates disclosures of alleged wrongdoing and complaints of reprisal. It protects public servants from reprisal for making such disclosures or cooperating in investigations under the Act.29
History
The Office originated in the Report of the Task Force on Public Service Values and Ethics (best known as the "Tait Report"), released in 1996. Following recommendations made in 2000 by the Auditor General on values and ethics in the Public Service, the Treasury Board adopted a new policy that required organizations in the core public administration to
establish procedures for reporting wrongdoing and created the position of Public Service Integrity Officer as a neutral third party for investigating alleged wrongdoing in the
workplace.30 The mandate was transferred to the newly created OPSIC as part of the Federal Accountability Act, and coverage was extended to most of the federal public sector either directly or through the obligation for certain organizations to create parallel processes appropriate to their unique mandates. The Act does not apply to elected officials or their staff, and employees of the House of Commons and the Senate are excluded.31
29 http://www.psic-ispc.gc.ca/about_apropos/mission-eng.aspx
30Ibid.
20 VII. Public Service Commission (est. 1908)
Enabling legislation: Public Service Employment Act (2003) Profile
Budget FTEs Term Appoint. Removal Report. Parl. Comm.
$ 116.3 m 1012 7 GB The President GiC on approval
of H and S, Commissioners
by GiC
2 (H+S) Dismissal
by GiC
H and S OGGO
Mandate
The Commissioner safeguards the integrity of staffing and the non-partisan nature of the public service. His/her mandate is threefold. First, he/she appoints, or provides for the appointment of, persons to or from within the public service. Second, he/she oversees the integrity of the staffing system and ensures non-partisanship. Third, he/she administers provisions of the Act related to the political activities of employees and deputy heads.32 History
In 1868 the Canada Civil Service Act was enacted; in 1908 it was amended in order to create the Civil Service Commission, an independent body to oversee appointments to government positions in Ottawa. In 1961, a new Civil Service Act gave civil servants the right of appeal against not only promotional decisions, but also transfers, demotions, suspensions and dismissals. In 1967, the Public Service Employment Act (PSEA) and the Public Service Staff Relations Act (PSSRA) came into effect. The PSEA gave the renamed Public Service
Commission the responsibility for all the elements of the staffing process.
In 1992, the Public Service Reform Act amended both the PSEA and the PSSRA. The Act enabled the PSC to prescribe standards of competence to measure merit. In 2003, a new Public Service Employment Act created the first legislative definition of merit33 as part of the Public Service Modernization Act (PSMA). Importantly, while reserving staffing authority with the PSC, PSMA signaled a shift for the PSC to take a greater role in audit and assurance, as Deputies would exercise more direct control over staffing under delegation from the PSC.
32 http://www.psc-cfp.gc.ca/centres/mission-eng.htm
33 Ibid.
21 VIII. Office of the Conflict of Interest and Ethics Commissioner (est. 2007)
Enabling legislation: Conflict of Interest Act (2007), Parliament of Canada Act Profile
Budget FTEs Term Appoint. Removal Report. Parl.
Comm.
7.1 46 7 GB GiC on approva l by H
GiC on address to H only
H: reports under POCA, H + S: reports under COIA
ETHI
Mandate
The COIEC is not an Agent of Parliament, but rather an Officer of Parliament, in that it has the same legal status as the Parliamentary Librarian, for example. The Office administers the Conflict of Interest Act for public office holders and the Conflict of Interest Code for members of the House of Commons. The Act and the Code set out a number of obligations, and
prohibit various activities that involve conflicts between private and public interests, or have the potential to do so. The Office administers these two regimes by: providing confidential advice to elected Members of Parliament and public office holders about how to comply with the Code and the Act; reviewing Members’ and public office holders’ confidential reports of assets, liabilities and activities; maintaining public registries of publicly declarable
information; and investigating possible contraventions. The Commissioner may conduct an examination under the Act at the request of a Senator or Member or on her own initiative34. The COIEC operates in a ‘hybrid’ role, with an oversight role of both parliamentarians and executive and an advisory role to the Prime Minister.
History
Conflict of interest guidelines for Cabinet ministers were first introduced in 1973. They
included prohibitions on the use of insider information for private gain, restrictions on outside activities and a requirement that ministers either divest or publicly declare certain assets. In 1994, the Assistant Deputy Registrar General was replaced by an Ethics Counsellor, who
34 http://ciec-ccie.gc.ca/Default.aspx?pid=8&lang=en
22 served under the general direction of the Clerk of the Privy Council.35 In 2004, an
amendment to the Parliament of Canada Act came into force, creating a new office and the new position of Ethics Commissioner as a separate parliamentary entity. In 2006, the Federal Accountability Act established the Conflict of Interest Act, which replaced the Conflict of Interest and Post-Employment Code for Public Office Holders and created the new position of Conflict of Interest and Ethics Commissioner 36 as an Officer of Parliament.
35 http://ciec-ccie.gc.ca/Default.aspx?pid=86&lang=en
36 Ibid.
23 CONCLUSION AND AREAS FOR FUTURE RESEARCH
The role of the oversight bodies within the Government of Canada establishes Canada as a leader in the area of independent scrutiny of the institutions of government and the
processes of public administration. However, the proliferation of such guardians risks the possible overlap of oversight and the duplication of compliance requirements. These deserve detailed investigation, both in order to rationalize and define discrete areas of oversight and to reduce any resulting excessive compliance burden on line departments.
Furthermore, the question of reporting should also focus on a critique of Parliament’s exercise of its scrutiny role once it has received Agent reports. An area for valuable future research would be to assess the costs and accountability benefits of the current
arrangements, including reporting required by the Agents’ offices, as well as those required of the Executive to respond to Agents’ case investigations and reports.
24 SELECTED BIBLIOGRAPHY
H. R. Balls, 1978. The watchdog of Parliament: the centenary of the legislative audit, in Canadian Public Administration, vol. 21 (4).
C. J. Bennett, 2003. The privacy commissioner of Canada: Multiple roles, diverse expectations and structural dilemmas, in Canadian Public Administration, vol. 46 (2).
O. P. Dwivedi, T. A. Mau, B. Sheldrick, 2009, The Evolving Physiology of Government, Canadian Public Administration in Transition, Ottawa: University of Ottawa Press.
C. M. McMillan, 2006. Active Conscience or administrative vanguard?: the Commissioner of Official Languages as an agent of change, In Canadian Public Administration, vol. 49 (2).
Senate of Canada, 2005. Third Interim Report on the Main Estimates 2005-2006. Officers of Parliament. Standing Senate Committee on National Finance, Twelfth Report.
Senate of Canada, 2008, Report on the Officers and Agents of Parliament created or
modified by the Federal Accountability Act. Standing Senate Committee on National Finance.
Thirteenth Report.
P. G. Thomas, 2008. The past, present and future of officers of Parliament, in Canadian Public Administration, vol. 46 (3).
G. Tsai, N. Ponce, 2002. Relations between Parliamentary Agencies and the Public Service:
New Perspectives, Canadian Centre for Management Development.
