'The tyranny of the opposition' - Macleans.ca

‘The tyranny of the opposition’

by

Below is the prepared text of government House leader Jay Hill’s statement in the Commons this morning, in which he laments for the state of Parliament’s committee system and explains why ministerial staffers will no longer be taking part. Those who delight in irony might wish to read Don Martin’s 2007 column on the government’s handbook for committee manipulation before reading the following.

Mr. Speaker, I rise on behalf of the Government to address the issue of Ministers’ staff members being called before committees to testify. We recognize that committees do have the authority to call for persons and papers. However Mr. Speaker, just because they can, does not mean they ought to in every case.

Allow me to begin by reminding Members of the constitutional principles that underline relationships among Ministers, officials and Parliament.

In our system of government, the powers of the Crown are exercised by Ministers who are, in turn, answerable to Parliament.

Ministers are individually and collectively responsible to the House of Commons for the policies, programs and activities of the Government. They are supported in the exercise of their responsibilities by the public servants and by members of their office staffs.

It is the responsibility of individual public servants and office staff members to provide advice and information to Ministers, to carry out faithfully the directions given by Ministers, and in so doing, to serve the people of Canada. These employees are accountable to their superiors and ultimately to their Minister for the proper and competent execution of their duties.

Ours is a system of responsible government because the Government must retain the confidence of the House of Commons and because Ministers are responsible to the House for everything that is done under their authority. We Ministers are answerable to Parliament and its committees. It is Ministers who decide policy and Ministers who must defend it before the House and ultimately before the people of Canada.

Accordingly, responsibility for providing information to Parliament and its committees rests with Ministers. Officials have no constitutional responsibility to Parliament, nor do they share in that of Ministers. They do, however, support Ministers in their relationship with Parliament and to this extent they may be said to assist in the answerability of Ministers to Parliament.

Pages 32 to 33 of O’Brien and Bosc state:

“Responsible government has long been considered an essential element of government based on the Westminster model. Despite its wide acceptance as being a cornerstone of the Canadian system of government, there are different meanings attached to the term “responsible government”. In a general sense, responsible government means that a government must be responsive to its citizens that it must operate responsibly and that its Ministers must be accountable or responsible to Parliament………. In terms of ministerial responsibility, Ministers have both individual and collective responsibilities to Parliament. The principle of individual ministerial responsibility holds that Ministers are accountable not only for their own actions as department heads, but also for the actions of their subordinates; individual ministerial responsibility provides the basis for accountability throughout the system. Virtually all departmental activity is carried out in the name of a Minister who, in turn, is responsible to Parliament for those acts. Ministers exercise power and are constitutionally responsible for the provision and conduct of government; Parliament holds them personally responsible for it.”

Page 139, of the Second Gomery Report “Restoring Accountability – Recommendations” Mr. Gomery says: “Ministers need to understand clearly that they are accountable, responsible and answerable for all the actions of their exempt staff.”

There is a clear case to be made that the accountability of political staff ought to be satisfied through ministers. Ministers ran for office and accepted the role and responsibility of being a minister. Staff did not.

Committees will often need to seek factual information and explanations at a level of detail that Ministers are not able to provide as effectively as public servants.  In these cases, the information that public servants provide in such contexts is essential to our system.

But we should be very clear: this is no substitute for ministerial responsibility.  When Ministers choose to appear before committees to account for their administration, they are the best source of accountability and they must be heard.  Public servants and ministerial staff support the responsibility of their Ministers; they do not supplant it.  They cannot supplant it.

Like public servants, ministerial staff are not accountable to Parliament for governmental policies, decisions or operations.  Any information given by ministerial staff on these topics would be on behalf of their Minister.  Moreover, unlike public servants, ministerial staff are not involved in departmental operations and are therefore not in the same position to answer questions about these operations.

Despite having these views about ministerial accountability, the government had accepted that ministerial staff could appear before the Ethics committee after being invited by the committee. The Government Operations committee took similar action regarding the subject of lobbying.

There were expectations that due process and fair play would be part of the process.  As you know, and I commend you for upholding this principle Mr. Speaker, the minority relies on the rules for its protection. It demands certain rights to counter against the strength of the majority. These rights must be applied fairly. And they have not been at committee.

Normally witnesses are given a chance to give a statement. During a meeting of the Government Operations Committee the committee decided that the staffers would not be allowed any time for opening statements. Later, they were given a minute or two to introduce themselves.

The committee also decided, upon the instigation of the NDP member for Winnipeg Centre and the Chair, that if there was to be any resistance from the staffers to their invitation, that the clerk be authorized to serve them with subpoenas. Having served on committees Mr. Speaker, this is not the normal course. Witnesses are invited and presumed cooperative. Sometimes there are reasons to decline, or there are scheduling conflicts. Committees are usually respectful and do not, as the Government Operations committee did, threaten the witnesses right off the top. The whole process begins with intimidation and hostility.

It is also worth noting that, as an MP, the Minister of Human Resources had an absolute right, just as any MP has the right, to attend the committee meeting and participate in its proceedings. Nonetheless, the Chair told the Minister, and I quote, “you are not able to address this committee directly.” He made this ruling based on the fact that the Minister wasn’t invited.

Contrast that with the appearance of an HRSD official, Patricia Valladao, who appeared alongside her ADM, Peter Larose, in spite of Mr. Larose not having been invited to appear.   Unlike the standard applied to the Minister, the Chair allowed Mr. Larose to answer questions and participate in the proceedings at the committee.

Then there was the Chairman of the Ethics Committee who made threats of contempt in the Hill Times regarding the appearance of Mr. Togneri. An intimidating statement which was not his to make. It is for the committee to initiate and for the House to agree.

And then there was the Government Operations committee meeting of May 12, where the witness was not a Minister’s staff member. The questioning involved very serious allegations about people’s conduct, but was not subject to any rules or principles of fairness. The witness was repeatedly asked questions such as, “can you speculate?”  Questions that would never be acceptable in a court of law.

People’s conduct is being attacked without any of the fairness or procedural safeguards or principles of justice that would be found in a court or tribunal.

These are but a few examples of what is playing out in our committees.

It is not that different than what happened in the last parliament when the tyranny of the opposition made that parliament dysfunctional.

On March 29, 2007, you referred to the challenges of a minority Parliament saying, in part, “…neither the political realities of the moment nor the sheer force of numbers should force us to set aside the values inherent in the parliamentary conventions and procedures by which we govern our deliberations.”

On March 14, 2008, you further emphasized the need for all parties to respect the rules and principles of the House to avoid having committees “verging on anarchy” and being in a state of “general lawlessness”, as you had described it.

You also emphasized in your March 14 ruling, the first principles of our parliamentary tradition which Bourinot described thus:

To protect the minority and restrain the improvidence and tyranny of the majority, to secure the transaction of public business in a decent and orderly manner—

You went on to comment, “It matters not that the minority in the 39th Parliament happens to be the government, not the opposition, or that the majority is held by the combined opposition parties, not the government.”

While the problems of the 39th Parliament are still, to some degree, with us today, there is a new game being played. The tyranny of the opposition majority has turned its attention to the men and women who make up our political staff. Men and women who did not sign up to be tried by a committee – to be humiliated and intimidated by members of parliament.

The Chairman of the Ethics Committee rose on a question of privilege when the House last met complaining about being intimidated because the government began to push back on his conduct at the committee he chairs and his committee’s treatment of our staff appearing before it. He referred to it as “a chill factor” and he believes that he is the victim.

I agree with the Chairman of the Ethics Committee – there very well could be a chill factor – but it is not he nor the opposition who are the victims here. The activities of his committee may be causing a chill among some Ministerial staff who work very hard and competently advising their ministers.

They bring to us many talents – and I expect for many of them, when they accepted their jobs, they never imagined that one of the skills required was to stand up to the interrogation of a bitterly partisan parliamentary committee. They could not have expected, in our Westminster Parliamentary system of responsible government, that hostile committees and a tyrannical chairmen would deny them the protection of the rules and their Minister.

And I suspect that there must be a chill running through the political staff of the opposition. Things are safe for now. But in politics, things change.

Political staffers are under no delusions. They serve at the pleasure of their ministers and any wrong doing on their part will be dealt with swiftly by Ministers. Ministers, after-all, are the ones who are responsible and accountable.  For a committee to attempt to reach around a minister and take some action against a political staffer would be wrong and does not meet the doctrine of ministerial responsibility.

As I said earlier, we accepted, at first, that ministerial staff would appear before committees. We did so, maybe naively, and maybe expecting that the Speaker’s words in the last parliament would not fall on deaf ears, that due process and fair play would be part of the process.  But it was not.

When the Conflict of Interest and Ethics Commissioner appeared before the Ethics Committee on April 22, she said, and I quote, “There are a lot of people who like to criticize, but the fact of the matter is, these are people’s lives we’re dealing with….We are not a kangaroo court” That’s good advice for all parliamentarians.

Mr. Speaker, since parliamentary committees have not respected due process and fair play, hence forth Ministers will instruct their staff members not to appear when called before committees and the Government will send Ministers instead to account for their actions.