Watching the Watchdogs:

1. Watching the Watchdogs: Assessing the Independence and Contributions of Agents of Parliament IPAC National Conference August 23, 2010 Westin Hotel, Ottawa, Ontario Robert P. Shepherd Christopher Stoney School of Public Policy and Administration Carleton University

2. Outline of Our Discussion • What is the issue? • Our Argument • Who are these Agents anyway? • Our Assessment (Stillborn criteria) • Helping Parliament? • Monitoring? • Independence vs Accountability • They do offer benefits! • Some thoughts.... Watching the Watchdogs - IPAC 2010

3. What is the Issue? Consider the following quote from Savoie: It is not at all clear how they (officers of Parliament) are to be held accountable or by whom. They all have one thing in common – they are independent and are free to voice their views even when they may be serving the interest of their own organizations. For the most part, they answer to themselves and play to the media. They operate above the political fray, and the media turn to them for material, slip-ups, and political miscues with which to challenge government officials. (Savoie, Power: Where is It?: 80-81) Watching the Watchdogs - IPAC 2010

4. What is the Argument? • This view is unsubstantiated – based entirely on opinion. • Many of Savoie’s criticisms could be regarded as positive attributes. • Using Stillborn’s criteria for assessing Agents, we believe: • They actually bolster Parliament’s effectiveness • They provide impartial assessments and judgements based on law • Independence and accountability are mutually reinforcing, and necessary for effectiveness Watching the Watchdogs - IPAC 2010

5. Who are these Agents? • Officers are defined as those positions within Parliament, which have a formal reporting relationship within the parliamentary bureaucracy, and not considered independent of its functions (e.g., PBO, Black Rod, Chief Librarian, Sergeant of Arms, etc.) • Agents “are independent accountability agencies created first to assist Parliament in holding ministers and the bureaucracy accountable and, second, to protect various kinds of rights of individual Canadians” (Thomas, 2003: 288) Watching the Watchdogs - IPAC 2010

6. Who are these Agents? • Access to Information Commissioner (1983) • Auditor General of Canada (1878) • Chief Electoral Officer (1920) • Commissioner of Lobbying (2008) • Conflict of Interest and Ethics Commissioner (2007) • Official Languages Commissioner (1983) • Privacy Commissioner (1983) • Public Sector Integrity Commissioner (2007) Watching the Watchdogs - IPAC 2010

7. Helping Parliament? • Argument: agents support Parliament in carrying out its functions or sideline/circumvent by holding governments to account. The argument also goes that accountability is shifted away from institutions to individuals. • Stillborn is concerned about the supplanting of Parliament argument in which agents have assumed roles that Parliament could undertake. • Ministerial responsibility is not incommutable! Other relationships are legitimate because Parliament says they are. Complexity demands specialized knowledge parliamentarians cannot provide. • PBO has polarized debate on the appropriate role for serving Parliament. He has defined an aggressive stance on this question, sometimes pitting Parliament against the government. Also has highlighted the partisan nature of committees. • Agents enjoy elevated status respecting “truth claims.” But also provide specialized knowledge and contribute to enforcing laws in a non-partisan manner. That they provide evidence used to criticize government is a strength in our view, as long as it does not detract from progress. Watching the Watchdogs - IPAC 2010

8. Impartial Monitoring or Institutionalized Negativity? • Argument: concerns single-issue mandates of agents and the extent to which they establish standards governments cannot meet. Fuels an already cynical public? • Provides power to individuals who may become overly zealous – leads to few checks on that power? Elevated to celebrities (e.g., PBO, AG)? • Response: the question is not whether individuals enjoy elevated status, but rather, understanding that the government-of-the-day enjoys the exercise of virtually all levers of power. That Parliament exercises some of its authorities through agents ought to be a welcome addition (e.g., census long form??) • Single-issue mandates are a concern – ignores the big picture. However, this is an argument in favour of allowing the AG the ability to carry out performance audits; evaluations use systems analysis; all agents have a policy function that demands the long view... • Long line of negative reports could weaken public confidence – could also show the public someone is watching government’s exercise of power (e.g., FedAA made great promises, but on government’s terms) Watching the Watchdogs - IPAC 2010

9. Independence vs Accountability • Argument: independence insulates agents from the need to be accountable. • Agents are held to account in several ways: • By Parliament as a whole for performance of offices – called regularly before committees to account for specific decisions. • By parliamentary committees for operation of offices – file an annual report (except Ethics Commissioner) and answer for the conduct of their responsibilities. • By budget review committee for financial arrangements – must file an annual audited financial statement. • By those affected by decisions. Example: departments provide responses to audit reports; departments respond to integrity complaints; lobbyists have right of appeal to exemption and other requests. • By the media and advocacy groups for performance (e.g., Jaffer Inquiry, Prop Cheques complaint to Ethics). • Also, informal responsibility of agents themselves. Agents are screened thoroughly prior to appointment (vetted by PCO, leaders, houses). • Most agents have voluntarily built accountability arrangements, such as an annual audit by the OAG. Watching the Watchdogs - IPAC 2010

10. Legitimacy is Vital • Fournier: “to be effective and credible, an ethics commissioner must be independent; his/her independence, in turn, requires meaningful accountability. (annual report, 2010) • Many forms of independence: • As protected in legislation to enforce laws; • Discretion to perform duties as appropriate; • Access to information based on legislative authority; • Ability to solicit appropriate resources as necessary; • Ability to determine the terms and conditions for engaging staff – limited by legislative responsibilities. Watching the Watchdogs - IPAC 2010

11. Benefits? • Improve transparency of government decisions and processes (e.g., AG and MP expenses) • Brings specialized expertise to enforcing parliamentary regulations (e.g., Facebook complaint on privacy) • Check political decisions of government for ethical conduct (e.g., Ethics Commissioner’s investigation into prop cheques; hiring decisions in minister’s offices) • Brings attention to Parliamentary behaviour (e.g., expansion of definition of DPOH – Jaffer) • Brings attention to extent government takes various protections seriously (e.g., official languages, fairness in elections, whistleblowing) Watching the Watchdogs - IPAC 2010

12. Research in Progress • Our research is preliminary, but we are focussing on the following: • Governance arrangements for holding agents accountable (e.g., budgeting, recruitment, audit committees) • Ways in which independence is necessary – that is, what are the moments of truth when independence is vital (remember Shapiro??) • How much alternative bureaucracy is necessary? Are we building too much? Why? What is the impact? • How much of this is related to a lack of confidence in government? • Are agents a response to centralizing power in PMO? If so, must there be a way to limit their responsibilities, or is this for Parliament as a whole to decide? Do minority governments make these offices even more necessary? Watching the Watchdogs - IPAC 2010