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Advice from the Mother of Parliament’s hall monitor

Liveblogging the Last Day of the Oliphant Commission


 

ITQ is heading to the University of Ottawa today for the final public hearing of Oliphant Commission, which will include roundtable discussions with two witnesses: Sue Gray, the director of the propriety and ethics team for the UK Cabinet Office and Conflict of Interest and Ethics Commissioner Mary Dawson. The show gets underway at 9:30 sharp, so be sure to tune in for full liveblogging coverage.

Trivia note: The last time ITQ darkened the doors of Ottawa U, it was to write what turned out to be a faintly — okay, not so faintly — damning review of the cafeteria food, so she’ll be keeping a watchful eye out for revenge-minded sandwich assemblers during today’s visit.

9:09:24 AM
Greetings, Oliphantasticalists! Are you ready for some down and dirty tales of sordid parliamentary excess, courtesy of the woman in charge of keeping the UK’s elected officials in line? I hope not, because due to the somewhat limited mandate of the commission, those sorts of questions will likely be deemed too far afield for today’s session with Sue Gray.

We’re in a new venue today — the Gowlings Moot Court at Ottawa U, to be specific, and it definitely gives the entire procedure a much more official feel. So far, nobody has demanded that I remove the sunglasses from atop my head, so it isn’t quite like the O’Brien trial *yet*, but I’ll keep y’all posted.

9:29:25 AM
Oh, there’s the judge — looking especially judicial today, presiding, as he is, over a real(ish) court room.

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He’s flanked by Team Oliphant — with Roitenberg, it appears, poised to take the lead as far as questioning the witness. The rest of the usual suspects are here as well – minus Team Mulronagator, of course, since they didn’t deign to apply for standing for the second phase of hearings – including Karlheinz Schreiber, who looks like he’s nearly fully recovered from that unpleasant bout with a dodgy gallbladder.

9:32:28 AM
And here we go — oh, it appears I may have been wrong about the lead questioner, since it’s Wolson who is introducing Sue Gray, and doing a fine job of it, too. He reminds the judge that, after hearing from a past witness — Laurie Turnball — the commission arranged to have her make a presentation on the British system, and, well, here she is. He gives a quick recap of her career, which involved, among other things, running a pub in Ireland during the 1980s, an experience that she believes has given her a unique insight into her current charges.

9:36:32 AM
With that, Wolson hands the floor over to Oliphant, who first notes how happy he is to be back in Ottawa — “it’s a little like a reunion,” he notes, which is exactly how ITQ felt when she arrived this morning — and then invites Gray to begin her remarks, which she does with a quick overview of the UK Cabinet Office, and particularly the post-public office rules for ministers.

9:39:12 AM
Gray notes that ministers are made aware of the protocol as soon as they’re appointed; they get a letter that sets out what will be expected from them, both during and after their tenure in cabinet, including the cooling off period that may be imposed for up to two years. They make “a very detailed declaration of interest”, some — but not all — of which is made public, and there is an advisory council on appointments, which is a QANGO — quasi-non-governmental organization, and thank you, Yes, Minister, for exposing ITQ to that particular acronym when she was just a wee slip of a girl. The members of that council aren’t paid — other than a small honourarium which has just been added — and do it “for public service”. Like Gwyn Morgan was going to do for the Public Appointments Commission, way back before — well, all that stuff.

Did I mention Duff Conacher, Democracy Watcher is in attendance? He’s sitting right beside Richard Auger, looking terribly eager to get to the Q&A portion of the day.

Gray, meanwhile, is still explaining the rules, and the committee — which, it seems, former ministers must consult, confidentially, before taking up a new gig. So, basically, it’s a multi-person Ethics Commissioner with teeth.

9:46:25 AM
Interestingly, all of this is “soft law” — made up of codes, not enshrined in statutes, or federal accountability acts — which seems to have worked reasonably well, according to Gray. The members of the advisory committee are appointed by the prime minister, and most are former elected officials, as well as representatives from the military and the private sector. If a member was conflicted in any way, they would recuse themselves, Gray assures the judge. She notes that they will be watching with interest the results of this inquiry — yes, ours! Canada: back, etc. — and they’re also looking at ways that their current system could be improved.

9:49:50 AM
“We have a media that, obviously, scrutinizes everything,” she notes. See? We are *too* an essential part of parliamentary democracy! *Some* parliamentary democracies, anyway.
The advisory council, I’m gathering, has far more discretion to impose different restrictions and prohibitions on former public office holders — the cooling off period can be from three months to two years, for instance, depending on the nature of the appointment. That seems — actually, pretty sensible.

9:53:07 AM
Interesting: Although they’ve considered extending — and shortening — the two-year period — which is how long ministers are covered by the code, they’ve pretty much decided that it’s just about the right length. I wonder if it was based at all on Canada’s original lobbying regulations, which also imposed a two year ban on lobbying departments with which you had been involved while in government, or if we based ours on their system.

9:55:28 AM
And with that, it’s time for questions; first, from the judge, who wonders whether former public office holders have the right to appeal a decision of the advisory council. The answer seems to be yes, and she explains the process, which is fairly — and not unexpectedly — bureaucratic in flavour.

Wolson asks if it’s true that, up until recently, the council almost never met in person, but conducted its activities by correspondence, and Gray confirms that this is the case.

Finally, Wolson wonders how they keep politics out of the committee — partisan politics, that is — and she notes that these are individuals who are “well respected” — at the moment, they’re all drawn from the House of Lords, although several are former ministers.

9:59:43 AM
Gray dismisses — politely, sweetly, but firmly — the suggestion that the rules surrounding ministerial — and post-ministerial — conduct and activities discourages people from entering public life, and notes that newly elected members — and ministers — are given an excellent grounding in what is expected of politicians under the current codes; there is a “wide understanding” of the process, and the sanctions that might be imposed post-public office.
10:02:44 AM
Oliphant wonders about a former minister, or former prime minister, who is musing about taking the self-employment route; would that still require consulting with the committee? Absolutely, Gray tells him — the former prime minister Tony Blair had to get approval in order to give speeches for money. “Even if it was through the Washington Speakers Bureau?” Oliphant asks, to which the answer is yes — partly because that ensures that the information related to his new income stream is made public.

Wolson follows up on the judge’s query by asking about international lobbying, and gets the same answer — the process, in fact, would likely be similar to that in place for domestic lobbying ventures.

10:07:51 AM
After a BlackBerry outburst — from the witness’ phone, no less – “Feel free to take that,” the judge tells her, “It could be Mr. Brown!” — and a question from Oliphant on exactly it is to whom she reports — the Cabinet Secretary, which is — wait, is that the same as the Clerk of the Privy Council? I should totally know that — Gray gives a rather ominous description of what happens if someone tries to take a job *without* going through the committee.

Suffice it to say, Fleet Street does not turn a blind eye, and questions are ofen raised in the House. The damage done is not only to the reputation of the individual, but also for the company that hired him or her.

10:12:58 AM
Wolson wonders what she would recommend, as far as the Canadian experience, and not surprisingly, she’s a fan of the committee approach — it’s just too much to put the entire decision on the shoulders of one person, she suggests; it also allows the process to run smoothly and quickly.

She would also support an appeal process — it’s important, given the weightiness of some of the decisions — and once again notes that the fact that it’s not enshrined in law really does give the committee more flexibility to deal with whatever comes up.

ITQ, meanwhile, is having trouble not losing herself to daydreams about liveblogging the theoretical Canadianized version of the committee Not that many — if any — of the meetings are public, of course. But the ones that were, well — gosh, that would be interesting.

10:22:08 AM
After a quick question from Nancy Brooks on the process, Maitre Batista steps up, and wonders how the committee members are chosen. Gray notes that, as far as the non-political members go — military, diplomatic, civil service — the names are put forward after discussions with the relevant departments or agencies. There’s no open call for resumes; it’s a “limited field”, with a very specific skillset. The political nominees are — well, the parties consider who would be “suitable for the role”, and then bring them forward, upon request of the prime minister.

Yes, ITQ is also suddenly seeing the potential difficulties in bringing such a — cooperative approach to the Canadian parliament, but let’s pretend, for the moment, that eventually, it will once again be, you know, not prone to explode at the slightest jostle.

10:25:28 AM
Roitenberg wonders what the turnaround is, as far as receiving the application and providing advice; if a government fell, he notes, there could be a sudden rush on requests. Gray notes that some can be turned around “very quickly” — like, within a couple of days — but others can take longer, by which she means two to three weeks.

10:28:46 AM
Oliphant just wants to “tidy something up” — what about those ministers who, as he puts it, don’t leave willingly, but are “retired by their consitutuents” — does the same process apply to *them*? It sure as shootin’ does, Gray tells him, with slightly less colloquity, but ITQ has to do *something* to keep herself — and hey, maybe even the rest of you — entertained.

Oh, incidentally, CP’s Steve Rennie and I may have been the only reporters when today’s session first got underway, but we’ve since been joined by several longlost Camp Oliphant alums, including CBC’s Rosemary Barton, the Hill Times’ Harris MacLeod and the Globe’s Greg MacArthur.

10:33:04 AM
One more question — from Team Oliphant, that is: Roitenberg wonders whether any allowence was made for politicians who were in office when the committee was brought into existence; those elected *since* might know what they’re getting into, but there was one parliament, at least, on which it was foisted after the fact (or at least after they’d made the decision to go into politics). She notes that, in fact, the current prime minister brought in reforms to the system when *he* took office, which strengthened the code and imposed more restrictions that caught those already in government; there was no public outcry or mutiny in *that* case, at least.

10:35:45 AM
Over to Craig Forscese, the commission’s director of research, who follows up on a few issues raised by his lawyer charges: What if a former minister doesn’t bother to go before committee at all, but simply plunges ahead with new employment; Gray notes that former — and current — politicians are also required to register any new interest, and those records are “scrutinized” by the committee, and – well, cue the baying howls of the perpetually bloodthirsty British press.

10:41:14 AM
Wolson once again wonders about education and awareness of the ethics rules amongst parliamentarians, and Gray reminds him that, on top of the mini-courses offered to newly elected MPs, there are followup workshops and reminder courses.

10:43:02 AM
Time for an impromptu edition of Tell ITQ Something She Doesn’t Know (note to CTV trademark lawyers: It’s an homage, not a ripoff — please don’t sue): it turns out that Gray doesn’t actually have any authority over ordinary backbench MPs, her rules – and her power – apply to cabinet ministers and senior bureaucrats and military officials. Parliament is in charge of keeping tabs on non-ministerial parliamentarians.

And with that, it’s time for a ten minute break. See you then!

11:01:57 AM
And we’re back! With breaking news of a non-Oliphant variety — apparently, Kory Teneycke – the senior PMO official so near and dear to so many of our hearts here in the gallery, and I don’t even mean that entirely ironically – will be bidding adieu to the Hill. Sniff. Anyway, more on that later, because we have another round of testimony on extraterritorial ethics rules, so let’s get back to that, shall we?

11:03:56 AM
Oh, heavens. It’s Duff Time — Duff Conacher, that is — which can sometimes stretch rather longer than anticipated. Last time, they had to wrap up the hearing to get him to stop talking; hopefully, this will be a bit less awkward.

His first question is about independent advisors, and Gray explains the process as far as declaring interests upon taking office — considerably more information than is required from MPs — which goes to the permanent secretary of the department in question. (That’s the deputy minister here in the colonies.) It’s then forwarded to the cabinet office, which provides its opinion on whether there is a potential for conflict of interest — or the perception of conflict — and *finally*, it goes to the independent advisor.
“In the UK, perception is a very big issue, as well as actual,’ she notes.

11:11:38 AM
Seriously, Kory – gone? What does it all *mean*? Who will take his place at the head of the table at those secret background briefings for bureau chiefs? Will the New Kory remember that Colleague Wells prefers Diet Coke, and ITQ is a pushover for dark chocolate chip cookies? Oh, I kid — ITQ never got to attend a single one, and now may never.

Focus, focus. Connacher wonders if the committee has any investigative powers — can they research what the department provides, and ensure that the former minister in question really didn’t have any contact with a particular company? Not really — the permanent secretary is taken at his or her word — but if it would come out that they hadn’t been forthcoming, that would be dealt with afterwards.

11:18:03 AM
Connacher continues to grill Gray over what, exactly, constitutes a conflict — what if a minister was involved in, say, banking law reform? Would that mean he couldn’t work for any bank or bank-related interest? Gray notes that the context is always taken into consideration, and it doesn’t just involve laws, but policy discussions and decisions as well. “I wish we had that here,” Connacher muses, just before asking why *all* the information isn’t made public, and Gray notes that the committee just doesn’t feel that it’s necessary. There are privacy concerns – and you have to find a balance. The public, too, doesn’t expect to see *that* level of detail, she suggests.

But that’s not a decision that the public could challenge in court, Connacher terriers away — the decision by the committee on what, if any, information should be made public, that is. No, it’s not, Gray acknowledges.

11:22:47 AM
Last question from Democracy Watch: Are former ministers ever audited? No — not tax returns or anything else. The vast majority of people *do* follow the rules, she reminds him — and there’s also the media, which is always looking out for scandals involving former politicians. Wait, I meant the public interest. It’s a tireless slog, but someone’s got to do it.

11:26:14 AM
After a surprisingly succinct outing by Connacher, Wolson informs the judge that we have twenty minutes left before the next witness is scheduled to appear, so – with the consent of Oliphant, of course – he’s going to ask Gray some of the more general questions about ethics that have come up with other witnesses during phase two.

This, as it turns out, leads to more discussion of the “special advisor” status of staffers, which, Gray explains, applies to “temporary civil servants” working in an area where government and politics “overlap”. They are political advisors, but civil servants as well, and there are approximately 75 active in the government at any one time. Oliphant tries to figure out if the Canadian equivalent would be the exempt staffer, which leads to Gray aking *him* a question that he, not unwisely but with his usual charm, declines to answer.

“I hve enough lawyers around me that I know when not to answer the question,” he jokes before suggesting that Mary Dawson — who has been watching quietly from the audience — may be able to provide Gray with a response.

11:32:54 AM
Gray agrees that, as far as public perception, expectations and ideas of what constitutes acceptable behaviour has gotten considerably more stringent over the years; as for public servants, the issue of leadership is taken seriously from the moment of the first interview with a prospective employer. Departments are regularly questioned on what training they provide on ethics and values, and are expected to do so regularly.

11:36:43 AM
One more question – yes, again with the just-one-more-ing, although this isn’t nearly as bad as Edelson at O’Brien – from Oliphant, who wants to follow up on the question of what happens when the rules change after one is already in office. What if your spouse and children are suddenly required to disclose their interests? Is there a grandfather clause? It is very difficult, Gray acknowledges — if there is justification to change the rules, it’s hard to rationalize exempting a great swath of the target population.

11:41:15 AM
And with that, Gray is excused from the witness stand — after lavish thanks from Wolson and Oliphant for coming all the way to Ottawa to tell us about her job — and we get a five minute break, so I’ll see you then!

11:50:18 AM
We’re back – with Nancy Brooks taking over MC duties from Wolson. She begins by noting that this is actually Mary Dawson’s second appearance before the commission; she’s here to explain more about the activities of the Office of Conflict of Interest and Ethics, specifically, the “outreach” activities undertaken to make sure that public office holders are fully aware of the rules. Oh boy. (I honestly don’t know whether that was sarcastic or not.)

Anyway, Dawson begins by noting that, as far as the Conflict of Interest Code goes, the word “ethics” isn’t mentioned at all; it comes from the Parliament of Canada Act, which empowers her to provide advice to MPs and ministers about their obligations.

11:54:19 AM
After the last election, Dawson says, she and her office sent letters to ministers offering to provide information on the law; since then, she’s given five presentations to ministerial staffers, as well as the caucuses of the four parties, and have issued bulletins and information notices on everything from gifts to disclosure.

11:58:38 AM
Apparently, her office has “just hired” a new communications manager — ladies and gentleman, it’s Kory Teneycke! Kidding, kidding — and are awaiting a report from an outside firm on future outreach efforts. Also — and I’m a little confused by this — she refers to the two year cooling off period under the conflict of interest code, which – but isn’t it a five-year prohibiton when it comes to lobbying? Nobody else seems to be perplexed by this apparent contradiction, which means that ITQ probably missed something.

12:01:22 PM
Onto questions, the first of which invokes virtually a word-for-word repetition of Dawson’s opening statement, as far as what her office has done in the past as far as making ministers and exempt staffers aware of their duties. Brooks then asks about the education of ordinary MPs — who are not, I don’t think, covered by the Conflict of Interest Code as far as post-employment conduct. Dawson notes that, even so, she has made several presentations to the various caucuses. Cauci?

12:05:29 PM
Brooks moves along to “more specific questions” — what about individuals who are newly covered by the Conflict of Interest Act? Is there a mandatory education component? Not under the current law, Dawson notes — she also thinks that it might be “better” for people to come voluntarily, since otherwise, participants might just show up with a book and read through the whole thing, which was what happened at mandatory training offered by her office during a previous professional life that she won’t mention. No, nowadays, they’d just spend the whole time hunched over the berryscreen.

Anyway, she’s “agnostic” on the notion of mandatory training, and thinks it’s more important to keep sending out those letters.

12:10:47 PM
Wow, this panel has been surprisingly tough on the thumbs. I think I must be out of shape — it’s been barely three hours, that’s not much longer than a standard committee meeting.

There’s no requirement under the Act for followup letters on the post-employment requirements, Dawson says — although her office *has* been contacted by a few former ministers seeking advice on what they can do under the code. Hmm, that’s — actually a pretty short list of potential callers. David Emerson, Monte Solberg — who else? I mean, now former public office holders of the ministerial variety who would be covered under the current FAA, which I *think* would exclude most Liberals purely by timing.

12:15:31 PM
Oliphant takes over the questions, and asks Dawson for her opinion on the creation of a committee similar to the one that we heard about this morning from Sue Gray, and she doesn’t seem overly keen on the idea — not that she like, sighed audibly or rolled her eyes, but you get good at picking up body languages when you’ve watched enough expert witnesses at work. She agrees that there may be “some value” in having a group of peers “discussing possibilties”, but when you have an Act, and defined rules, it’s hard to moosh the two together, so it would probably be a parallel system. Meanwhile, Gray – who is still at the witness table, and listening closely to Dawson – looks inscrutable.
Dawson thinks it could be valuable if it were strictly a “sounding board” — but Oliphant notes that, with the usual infinite respect, the commission may also consider it as a replacement for the current setup. Dawson agrees that lots of other countries have different systems, and this one sounds plausible. If the question is “instead of”, and not “in addition to,” she’d support the idea in theory, at least.

Wolson reminds her that, unlike the system in the UK, there are no reporting requirements in Canada on post-employment conduct, which Dawson acknowledges. In some cases, she points out, “we simply don’t know they’ve retired.” That said, she thinks it could be hard to go back after bringing in an Act — once the rules have been enshrined in law, it could be difficult to switch back to a code-based system. But aside from that, it’s definitely “an alternative approach” – each has its advantages and disadvantages.

12:23:44 PM
Suddenly, this session has gotten lively — after Dawson’s defence of the status quo in Canada, Gray – who I think I’m developing a quasi-independent officer crush on – commented that it’s actually an interesting debate — code vs. Act, that is — which prompted a fascinating-to-ultrawonks-like-ITQ bit of back and forth between the two over which office is more effective, in theory, at monitoring and regulating post-employment conduct. (ITQ is voting for the Brits, but is willing to entertain opposing arguments.)

12:27:24 PM
Now Roitenberg is getting into the spirit, and pointing out that there is also a significant difference as far as mandatory reporting and education. Dawson reminds him of the disclosure obligations, which “gives us a vehicle to sit down with them and talk about what they’re doing” — if her office sees something that could be a problem, they follow up on it with the minister. It’s just the *post* employment period that doesn’t require reporting.

Okay, ITQ is well aware that she has a tendency to pick on the FAA with moderate to wild abandon, but honestly, does that strike anyone else as an inexplicable oversight by the drafters of the law? Why *don’t* we have mandatory reporting for former public office holders? Add it to the list of stuff that needs to be fixed when the five year review finally rolls around.

12:34:01 PM
And now, questions from the parties, starting with Forcese, who wonders what percentage of current public office holders would have attended one of her sessions. Dawson estimates that probably half of the MPs have attended — ministers “rarely” — as well as boards of directors of the larger crown corporations and agencies. Oh, and *ministers* might not attend, but their staff do.

12:36:41 PM
Now, we’re off to the parties, the only one of which seems to have any questions is Duff Connacher, who approaches his microphone with downright vulpine hunger. He wants to know more about disclosure — for instance, of exemptions to five year ban under the Lobbyist Act — and Dawson points out that this is rare: Only two, she reminds him, have been approved so far. (ITQ has, in fact, written about the exemption process in the last few months, so if anyone is curious, feel free to Google up her thoughts on the current situation.)

Dawson definitely seems to be a little more curt in her responses to Connacher’s questions, possibly because he has, as far as ITQ can recall, at least one application before federal court that very nearly challenges the right of her office to exist.

12:43:57 PM
After a brief intervention by Brooks, who asks Dawson for more details on how her office responds to requests for advice on a potential employment offer, it’s back to Connacher, who asks if she conducts ‘random audits’ to determine whether former public office holders are contacting proscribed departments, and Dawson reminds him that, as far she interprts the law, she doesn’t actually have the power to do that. She points out that her office has yet to have to impose a penalty on a former for failing to disclose — yes, I know what some of you are thinking, you cynical souls.

12:47:06 PM
Onto Stevens v. R — I think that’s the citation – and the decision by the court that a politician cannot be found guilty of violating a rule that was not explicitly stated; in this case, it was the guidelines on gifts. Dawson notes that context, once again, is everything, and since the law has only been in force for two years, there’s no body of precedent that would allow her office to prepare guidelines, although she once again points to the notices that her office puts out on a regular basis.

What about summaries of opinions, and the publishing thereof, without specific details as far as the parliamentarians involved? She doesn’t say no — not exactly — but points out that these opinions are based on “facts and circumstance”, and really couldn’t be used as guidelines. What’s great about the presentations that she delivers, she notes, are the questions that she gets. Connacher points out that this wouldn’t apply to former public office holders, and she agrees.

12:51:17 PM
With that, it seems that today’s session is over — a few minutes early, even. The judge thanks the witnesses, and dismisses them, noting that this also brings an end to the policy review portion of the inquiry. Aww. I thought I’d gotten over it, but every time it ends, I get a little bit verklempt.

On the plus side, now I can hit the berry to get the latest Kory-related gossip without neglecting my liveblog duties. First, though: Lunch! I’ll see you all later today.


 

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