Memories of PMOs past: Liveblogging the expert superpanel at the Oliphant Inquiry - Macleans.ca

Memories of PMOs past: Liveblogging the expert superpanel at the Oliphant Inquiry

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After reluctantly being forced to miss out on most of the policy review — thanks, Parliament, for picking last week to go into meltdown mode — ITQ is making one last pilgrimage to Old City Hall to bear witness to the grand finale of the Olphant Show, which could prove to be a wonktastic sendoff for our favourite Manitobans, featuring, as it does, the much-anticipated superduper-extra-awesome all-day expert panel, which includes a trio of formidable formers: Mel Cappe, onetime Clerk of the Privy Council, Chretien-era appointments czarina Penny Collenette and the still-Right-Honourable Joe Clark, as well as Public Policy Forum president David Mitchell.

For all the background information you could possibly want on the policy phase, click here — and check back at 9am for full liveblogging coverage.

8:49:50 AM
Greetings, diehard Oliphantiacs and Joe Clark enthusiasts! For one day only, ITQ is back in her usual spot in the Victoria Room, although that, it seems, is the only bit of the Victoria Room that hasn’t been radically rearranged for the policy phase. Instead of a courtroom-like setting, we now have an actual roundtable — well, technically, a squaretable – with the panel on one side, facing the judge and commission counsel, and the researchers and lawyers for the other parties on either side. It’s — rather like a big committee, actually, with Richard Wolson as the chair, although I don’t expect that anyone will be filibustering, or raising spurious points of order, so he likely won’t get the chance to administer a little gavel-based justice.

It’s lovely to be back, in any case, even if the sun is streaming straight into my eyes.

9:02:56 AM
And here come the witnesses — and Karlheinz Schreiber, who seems to be in high spirits, and actually just wandered over to introduce himself to ITQ, apologizing for not doing so earlier — apparently, he just didn’t realize that the liveblogger whose coverage he was reading was the frantically typing blonde at the back of the room.

(I can’t tell y’all, by the way, how nice it is to be welcomed back by the commission crew. I’ve missed them all so very much. Let’s totally do this again in a year or so when the inquiry into the slushfundification of the stimulus package gets underway!)

9:08:06 AM
And we’re up – Justice Oliphant gets things started by welcoming the panelists, who he describes as indisputably eminent Canadians. He hands the floor over to Wolson to make the formal introductions.

The lineup at the table: David Mitchell, Penny Collenette, Joe Clark and Mel Cappe, who is sitting at a slight, but perceptible distance from the former prime minister, although I’m sure that has more to do with the placement of the chairs than any animosity between himself and Joe Clark.

9:13:47 AM
Apparently, the plan is to allow the panelists to hold court for two hours, followed by a Q&A session with the full table. Wolson will ask one a question, then allow another to respond before opening the floor to all four, and first up, it seems, will be Penny Collenette, who Wolson asks to explain the purpose and ultimate objective of ethical rules.

She starts with a brief statement – very brief – before plunging into her response, which hinges on her belief that the current ethics regime is a “work in progress”, with five main goals.

First, that the public interest must always remain supreme — in any conflict, the outcome should ultimately favour the public, and not the individual.

The second purpose is education — the rules “have to be flexible,” true, because you can’t anticipate *every* situation. If drafted badly, rules can create confusion, dysfunction and – eventually – litigation. (Well, hello there, Federal Accountability Act.)

Third, the rules have to be part of a “framework”, although *not* a “frightening hierarchy” that terrifies all that are subject to it; fourthly, we have to be “realistic” – no rules can completely eliminate fraud or corruption, but it can be reduced, at least. Shaping behaviour, helping people – that’s what the ideal ethics rules should do.

The judge looks riveted, by the way, although it’s disconcerting to see so much of him at the table — when he was perched above the fray behind a desk, he was little more than an occasionally nodding (or shaking) head. Now, he’s an actual full person!

“When truth and loyalty collide”, Collenette concludes, is when it gets tricky – when a staffer discovers his boss is behaving unethically.

9:23:08 AM
Cappe gets the nod to respond to Collenette, and he doesn’t disagree, although he’d like to emphasize the importance of trust. The actual behaviour that one is trying to engender is to build trust in government, which is “very easy to lose, but hard to build back.” That said, rules do not take the place of good judgment, and rules can build “an entitlement philosophy”. He points to the recent unpleasantness over expense accounts in the UK, where the activities garnering so much outrage were “perfectly legal” under the rules, just not so much defensible to the public.

9:26:31 AM
Cappe tells a story about an experience he had in the UK, when he sat as a member of the War Graves Commission, and was informed by the Ethics Commissioner that he would have to step down due to a potential conflict of interest — an opinion he found ridiculous, which he told the commissioner before declining to do so, and never heard back again.

“There is an optimum quantity of fraud,” says the supremely pragmatic former clerk, “and an optimum quantity of malfeasance”. People *will* make mistakes, and use bad judgment – so do you recognize that *some* acts are “dreadful” and should be stomped out, others that should be sanctioned, and still more that you just have to grudgingly accept?

There’s also the balance between enforcing a strict ethical standard, and not making public life entirely unappealing. That’s the trick.

9:29:55 AM
Next up: Joe Clark! Who promises “short, sharp points” — we’ll be the judge of that — starting with the notion of penalties; penalties can be consequences, but shouldn’t be the only goal; the public trust, and the preservation thereof, should be. Also, truth should always be the supreme arbitor, and as for the situation in the UK, the “inwardness” of the mindset became ignorant of the larger environment, hence the need for transparency – “to penetrate an inner circle that would not otherwise be so self-examining”.

Finally, David Mitchell – who, as a relative newcomer to the think tank game, may be feeling a little bit lost in the shuffle. He agrees with what the other panelists have said – particularly the bit about transparency, which is a word that needs to be included in the objectives.

As for trust, he agrees that it is “the ultimate objective” of ethics rules — the creation, or restoration of trust. The enemy of trust? Suspicon – that something may be not quite right.

9:35:31 AM
Next question goes to Joe Clark – has the standard of conduct for politicians changed? Yes, yes it has, he responds, immediately, earning a smile from the judge — first, there is “less deference” towards public office holders these days; nosy journalists – and even the public – clamour with questions that used to be left scrupulously unasked. It’s not a bad thing, he stresses — it’s just different from ye olden days.

Then there is accountability — and the definition thereof, which, Clark suggests, is a “symptom” of the new attitude towards ethics. He remembers what “accountability” meant during his day — he has the parking stub from a trip to Rideau Hall to prove it — but now, it’s more like a game of “gotcha”; it’s all about catching people breaking the rules, not fostering a spirit of wanting to keep them.

He quotes the late Arthur Kroeger on the FAA, which he described as “massive overkill”; we have to look carefully whether we’re moving so far down the road towards rules and regulations and punishment that we’ll lose sight of the purpose, and will actually contribute to the decline in public confidence.
9:39:57 AM
Mitchell agrees that expectations have changed, and then gives us a little history lesson, which I suspect may be a slightly revised version of the presentation he *almost* got to deliver at the O’Brien trial, when he was briefly on deck to serve as the expert witness on the importance of patronage as a tool within the parliamentary system. (He didn’t get to testify in the end, sadly.)

Schreiber, I should note, is nodding enthusiastically from his seat, which is right in front of ITQ.

9:43:45 AM
Cappe “totally agrees” with Clark on the gotchafication, and refers to the FAA by name – an acronym that *used* to be shorthand for the Financial Administration Act, he notes. He recalls the old days of one of his predecessors as British High Commissioner, who spent his days sitting in the Trafalgar Square offices of CP Rail – of which he was also chair – handing out land deals, which was perfectly legal at the time. Although there are still some bad apples, he believes that the many politicians and public office holders who resist the temptation to break the laws should get credit for that.

Collenette agrees – there are vast numbers of ethical politicians and civil servants who live quietly virtuous lives, and never get noticed. She does think rules are essential, though. She also becomes the first panelist to mention twitter, as part of a tangent on the “bombardment” of information through electronic technology, which makes it difficult to see the context.

Clark just doesn’t want the perception of public service to be all about the miscreants and malfeactors — he wants to see the “high quality” of people recognized, and wants to encourage strengths, rather than force people to “hunker down” lest they run afoul of the rules.

9:50:03 AM
David Mitchell is first up for Wolson’s next question — how does one create an ethical public service — and advises good rules that are “firmly enforced.” For politicians – or former politicians – the idea of public embarrassment would be a very dire consequence. As for *creating* the “ethical culture”, he goes back to the biggies – trust — which can be encouraged through communication and understanding. He points to the “troubled” relationship between the executive and legislative branches of government, troubles which also afflict parliamentary officers. Is he talking about the hostility between PMO and the bureaucracy? The government and government? Maybe he’s waiting til this afternoon to get *really* scathing.

9:56:30 AM
Penny Collenette – who, I just noticed, is the only woman at the table of fourteen, including the judge – thinks that ethical culture-creation should begin early – like, at the party/nomination level – and notes that she’s never heard a Canadian prime minister bring up the importance of a strong ethical grounding in a campaign, or a speech, that is *not* a reaction to a scandal.

Cappe, meanwhile, isn’t sure about setting up a separate ethics officer – or commissioner – since that sloughs off the responsibility onto someone else, and allows the politician to avoid using his judgment.

9:59:28 AM
Joe Clark takes us on a trip down prime ministerial memory lane, and notes that when he took over for that brief, confusing moment in parliamentary time, there were a lot of questions that he and his newly minted ministers had that weren’t in any handbook — but they were able to call on the institutional memory of the civil service, and the House of Commons, and they all lived happily ever after. Well, for nine months, and in his defence, I don’t believe his government was dragged into any *ethical* scandals during his tenure.

10:01:36 AM
Mel Cappe gets the next question – it was very short, and I missed the exact wording – but begins by noting that it’s difficult to go from a rules-based system to a “culture” of ethics. He’d like to see more “vaunting” of good behaviour — ITQ would like to see more use of the verb “vaunting” — and points to one of the luckless bureaucrats dragged into the sponsorship scandal: Ron Quail, who was so much of a by-the-bookie that he would pay back his $1.75 cell phone bill to the government.

You know who would have been a really interesting witness? Louis Ranger.

10:05:20 AM
Cappe thinks we-the-media have to be less … well, awful – you know, cover issues of substance rather than careening from one manufactured scandal to another, not that I’m *disagreeing*, you understand. He’d also like to see politics become less of a “blood sport”.

In response, Clark points out that the national political debate used to be conducted amongst national political parties, which is why you never wanted to offend a potential voting group. Now, parties are more “sectioned” – not like his day, when leaders “couldn’t conceive a vote they couldn’t win”, and would never simply write off a region of the country, like Quebec. Wait, I think I might have added that last part.

Anyway, on accountability, the former PM agrees that the rules may be “unravelable”, although he does believe some changes may be possible; he’s a fan of the paper submitted by Turnbull – you can read that one on the Oliphant website – and the idea of ministers publishing reports on the advice they receive on how to proceed on a particular file, as is the case in the UK – not just the advice they *take*, but that they eventually reject, as well. (In a subsequent question, Oliphant points out that this sort of system is already practiced within the judiciary.)

As for the deterrance from entering public life, he points out that some people would do it no matter how draconian the ethics regime, and he points to the equally important question of attracting high quality public servants.

10:13:46 AM
First off, Penny Collenette wants to debunk the notion that potential candidates are “fleeing in droves” because of the current ethics rules — and she should know, what with having been a candidate in the last election. She was also pleased that her party required her to provide a criminal background check before signing off on her nomination, and points out that many candidates – and MPs – are members of a profession that already enforce a code of conduct.

Mitchell pretty much agrees with the other panelists, although he wonders whether the “natural leaders of our communities today” are offering themselves up in the same numbers today as in the past? Anecdotally, he says, it would seem not — so why is that the case?

He wraps up his response by lamenting the gradual loss of so much institutional memory, both in Parliament and in the public service, and Collenette follows up with a sort of ad hoc summation of the points she’s made so far; she notes that there *is* a concern amongst candidates over the widening net and the increasing scrutiny of family members — especially with the growing number of working couples. It’s not just the MP who could be dragged into a scandal, but his family as well.

Mel Cappe, meanwhile, once again argues the importance of recognizing the rule-followers, and calls on Canada to “valorize” excellence in following the rules, raising ITQ’s suspicions that he may dream of one day presiding over the presentation of his very own award.

10:27:08 AM
Joe Clark agrees that, in many cases, public servants *do* know more about the portfolio than the responsible minister, but may now be too spooked by the rules to make their opinions known. As for the political difficulty of unmaking the rules – or amending the FAA – he doesn’t think that’s a good reason for not doing so.

10:30:03 AM
Oliphant wonders what has caused the inhibition, and risk aversion that currently plagues government, and Clark notes that the question now seems to be how *accountable* a public servant is, and not how effective. It’s all about colouring within the lines.

Cappe points to the blame game – although he agrees that there is “an appropriate amount of risk”, but he *still* wants more positive reinforcement — even when an idea doesn’t work out as hoped, someone should be congratulated for “a good attempt”. But if the only response is punishment, there will be no incentive to take risks.

ITQ should point out that, as enthusiastic as one party — Schreiber — appears to be about what he’s hearing from the panelists, another – Democracy Watcher Duff Conacher – seems to have exactly the opposite reaction. He keeps — glaring, although not at anyone in particular, and meticulously jotting down his thoughts.
10:32:54 AM
The next question – on how to ensure former public office holders don’t exploit their connections or knowledge for subsequent personal gain – goes to Penny Collenette, who approves entirely of cooling off periods, although she suggests that it might rely a sliding scale — less time for a one-term MP than a lifer, for instance — but does give the not unanticipated but no less impassioned speech on the difficulty of public life, what with the uncertainty, and the scrutiny, and the awful, awful media.

Clark agrees that this seems to make sense, since it really is different for longer-serving MPs, or former ministers/prime ministers, as well as the cooling off period. He agrees that “farming out” ethical dilemmas to an independent officer is a problem, as is maintaining “the high quality of appointment” as when it is first created, particularly when the office of a commissioner is hardly the first definition of a civil servant “high flyer”.

The former prime minister also laments the profound lack of understanding – amongst the public, but also among far too many politicians – of how government actually works, and notes that there are *also* some ostensible experts with similar deficiencies.

With that, we break for fifteen minutes. No “all rise”? That’s just — freaky.
10:53:59 AM
Joe Clark is on his BlackBerry, y’all! Also, the director of research, Craig Forsece, would probably appreciate it if I pointed out that the gender balance around the table was much better during the previous meetings — today just happens to be more male, but that’s by accident, not design.

10:59:17 AM
And we’re back — with a slightly more pointed question for Clark from Wolson, who wonders whether the rules should impose restrictions on international activities by former public office holders. Clark notes that it would be very difficult to apply, and suggests that it may be the US experience that is driving the current mania on that front; he notes that, with all due respect to Canada, “we’re not as important” on the international stage, and don’t have to worry nearly as much about approaches by outside entities.

He’s also a little worried about discouraging Canadians from their collective tendency to gravitate towards multilateral initiatives, such as NDI – an organization with which he is involved, and which is “chock full of Canadians.”

Mel Cappe agrees, and points out that you wouldn’t expect, say, former British Prime Minister Tony Blair not to use his contacts when brought in to head up a high level diplomatic mission, although he agrees that it shouldn’t involve using inside information. (That also doesn’t address *commercial* business relationships of a lobbying or marketing sort, it’s worth noting.)

11:06:50 AM
Oh, back to the mailroom – the prime ministerial mailroom, and how correspondence is handled. Clark makes an oblique — at least, to ITQ — reference to an unfortunate incident during his time at Langevin, and a very important letter that nobody still can explain the losing of. (Any idea what he’s talking about?) Anyway, his attitude, as a minister and prime minister, was that if it was *bad* news, he wanted to know about it right away, and not find out via the front page of the morning newspaper, and he doesn’t think it should be that difficult to set up a system to make sure that bad news — or potentially bad news — is fast tracked to the top.

Mel Cappe agrees that this is a wildly underscrutinized area, and notes that during his day, they wanted to make sure the system was working, which is why he would periodically raise the issue with the chief of staff to make sure they were getting everything they needed to know. At the same time, he believes the PM should be “insulated” from certain kinds of communication — you don’t bring *everything* to him, or to a minister. If you’re dealing with the revenue minister, and you get a letter related to a specific case currently before the courts, it would be entirely appropriate to make sure he *doesn’t* get it.

Really, everyone – well, every one of the panellists – is dazzled by the Thomas report, although Collenette points out that there was one thing that he missed — letters can come to a prime minister through many other routes than the PMO mailroom — his riding office, or in caucus, or in the House of Commons during Question Period — and that has to be taken into consideration as well.

She’d also like to note, on the subject of keeping *some* information from the prime minister, that it really is “the job from Hell” — everyone wants something from you, and in some cases, you just don’t want to tell him that there’s a letter from “Mr. X”, who wants to be named ambassador to somewhere or other.

11:18:32 AM
Mitchell – who is, he reminds us again, a historian by profession – recalls going through volumes of letters to past PMs, from constituents, party members and even other goverments. The modern iteration of the position may be less hands-on, but it would be almost impossible to prevent any errors from happening; as Cappe would no doubt put it, there is an “optimum level” for misplaced mail.

There is also the doctrine of “plausible deniability” in the running of a prime minister’s office; it may not have been advocated today, or during these hearings, but any system that is appropriate has to deal with the reality that senior staff might use such a doctrine.

Clark agrees that PMs have to be “protected” from the onslaught of correspondence, but what happens to a letter that ought to be in the system? If the matter is important enough that it should be there, it should be there, and that may well mean that the prime minister should see it.

11:25:08 AM
Mel Cappe reminisces that he used to have a lot of people come to him insisting that the prime minister had agreed to something; they used to joke that these sorts “must have whispered it in his right ear”, which was, of course, his deaf side. He’s actually a *defender* of plausible deniability — sometimes, it just makes sense.

11:26:32 AM
With that, we move into the full Q&A, and Forcese gets the first crack at quizzing the witnesses; he invites Mitchell to explain why he believes the FAA has created a culture of risk aversion, and Mitchell tries to come up with a polite way to write the whole thing off as an unsalvageable mess, although he does call it a perfect example of how *not* to regulate behavior within the public service, what with its wide-tarring brush.

11:29:15 AM
Roitenberg agrees with Clark’s posit that one shouldn’t *not* fix the FAA just because it’s politically tricky to unravel even the most ridiculously unworkable regulations, but he wonders what practical suggestions he might have for moving back towards a non-draconian system. Clark suggests looking at ways to demonstrate that the current system is counterproductive, although he acknowledges that there are *always* political ramifications — which is why political *leadership* may be required. These rules, he reminds us all, were conceived in haste — and now, apparently, repented at leisure — and from time to time, governments do things that just don’t work, and have to be undone.
Easy for him to say — imagine being the party to campaign on a reality-based accountability platform. Wait, this is where me and my ilk in the media are supposed to show up and an environment for informed public debate, right?

11:33:17 AM
Cappe notes that there is an important role for the opposition — not, he hastens to add, necessarily *this* opposition – to come forward and point out that there are problems with the current laws, and propose ways to fix it. Yeah, that would be the same opposition that obligingly passed the FAA without raising so much as an eyebrow at the more ridiculous portions, despite any number of committee witnesses warning them that it was a bad idea. Sorry, that turned into a bit of a rant, but it still makes me *so* frustrated to see all the simple little amendments that could have been made if the Liberals had shown even a sliver of spine, or the NDP not in love with the idea of passing an entire bill just to immortalize the terrible, horrible actions of the previous Liberal government. (The Bloc Quebecois is excused, since they actually *did* try.)

11:35:20 AM
Oliphant wonders about the granting of waivers from the cooling-off period — publicly released, published, not a shady backroom deal – but none of the panelists seem to be wild about that notion.

11:37:54 AM
On to Duff Conacher, who, Wolson notes, told him that he had twenty questions, which he devoutly hopes has been winnowed down. Conacher, who is looking especially grim even for him, wants to know if any of the witnesses have “actual evidence” of the rules going too far, and Clark cheerfully informs him that he has heard comments to that effect from any number of public servants, although he can’t bring it foward as “concrete evidence”. Although he can’t specify a *rule*, he can think of colleagues whose difficulty reentering private life after “relatively brief” ministerial service “delayed their ability to take on a new career”.

He agrees that this may be a “necessary consequence”, but it still shouldn’t be ignored, especially for people with a relatively short term of service. Also, there is onus — is it on him to prove the rules don’t work, or on others to show that it doesn’t?

11:44:08 AM
Cappe delivers a similar response, reminding the table that this is not a criminal trial, which means that comments he’s heard from former public office holders would not be admissable as “evidence”, whereupon Duff Conacher then baffles the entire room by claiming that the FAA doesn’t impose a single rule on the public service.

Clark makes an honest effort to figure out what he’s talking about, and wonders if he – Conacher – has never really never heard the suggestion that there is a “chill” on the public service. Cappe then points out that one of *his* authorities is the current clerk of the privy council – for another day or two, that is – who refered to the “web of rules” imposed by the FAA. It’s the approach to regulating behaviour that has woven that web, he notes.
Conacher, however, has a different view – there were always a lot of rules, but thanks to the FAA, there is also now whistleblower protection, as well as an independent commissioner. The rules are being enforced — “and that’s why everyone is scared.”

11:51:56 AM
After a warning from Wolson that his time is rapidly running out, Conacher moves on to the issue of advice and guidance, and wonders whether Cappe believes that all decisions by an ethics commissioner should be made public, and the former clerk agrees that he would be uncomfortable with a system of mostly-private advice and decisions.

With that, the commissioner intervenes — he’s willing to give Conacher the opportunity to make a submission, but since he’d really like to hear from the *panelists*, he’s going to cut him off so they can give their respective closing remarks. Conacher accepts this with admirable grace, and Wolson hands the floor over to the four superexperts for one last round.

11:55:09 AM
Mitchell stresses the need to ensure that transgressors “pay the full price” – with reputational harm as, perhaps, the most effective deterrent. He points to the need to educate everyone on the current regime, as well as “possible reforms”, and — oh, I guess he’s the only one with a closer, because Wolson is now thanking the panellists for their participation, as is the commissioner. Aw, I wanted to hear more from the other three.

And that’s it for today — and for the Oliphant inquiry, as far as public hearings. It’s all in the judge’s hands now — and ITQ can’t wait to liveblog the eventual release of his report.

I guess that means I’ve got to go back to the Hill, huh? Curses. Foiled again!

12:03:02 PM
Wait! It turns out phase two *isn’t* over — there will be One More Hearing — probably at the end of July — to hear from One More Witness, this time from the UK, who will talk about how *they* do things over there. I hope he brings pictures of the moats!

Okay, with that, ITQ is skulking off for one last Sconewitch. Expect regular parliamentary – well, off-session parliamentary – blogging to begin this afternoon.