ARCHIVED - Review of the Responsibilities and Accountabilities of Ministers and Senior Officials - Meeting the Expectations of Canadians

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1. Introduction

Accountability in the Government of Canada is framed by our system of responsible government. This system is based on the Westminster model, the cornerstone of which is the doctrine of ministerial responsibility. Parliament has a responsibility to hold the government to account. Ministers are accountable to Parliament for the exercise of authority assigned to the Crown under the constitution and under statutory law.

This review of the doctrine and practice of ministerial responsibility was conducted in response to direction from the Prime Minister to the President of the Treasury Board following the tabling of the Auditor General of Canada's November 2003 report.^[1] The report's investigation of the sponsorship program and advertising activities^[2] drew the attention of Parliament and the public to the issue of accountability. A number of other measures were taken at the time to address concerns about mismanagement of the sponsorship and advertising program, including the creation of an independent commission of inquiry led by Mr. Justice John Gomery to examine past behaviour in the sponsorship and advertising programs and to formulate recommendations in order to prevent mismanagement in the future.

Since December 2003, action has been taken on many fronts to strengthen accountability:

• Management expectations have been clarified, and the capacity to meet them is being enhanced.
• Improvements have been made in transparency and reporting to Parliament.
• Measures have been taken to enhance financial management.
• Greater attention is being paid to carrying out audits of departments and agencies, and audit capacity is being increased.
• Human resources modernization will also strengthen accountability within the Public Service.
• Governance and accountability has been strengthened in Crown corporations.

The focus of the report is on the role of Parliament, the ministry, and the Treasury Board in the accountability regime. It deals specifically with matters of financial administration, rather than policy, as that is where the current concern about responsibility lies. Financial administration covers matters relating to administrative policy, financial management, expenditure plans, programs and policies of departments, personnel management, and other matters related to the prudent and effective use of public resources.

This report complements the Review of the Governance Framework of Canada's Crown Corporations^[3] and The Financial Administration Act: Responding to Non-compliance. Mr. Justice Gomery has been mandated to take into account issues raised and commitments made in this review as he develops recommendations.

This report follows from an in-depth review of existing documents on the doctrine of ministerial responsibility and from consultations with noted experts and practitioners in the field. Consultations on the accountability regime were held through a series of round tables with distinguished academics, current and former ministers and deputy ministers, and other stakeholders.^[4] These consultations were also greatly aided by a discussion paper drafted by Professor Donald Savoie, who served as the Simon Reisman Fellow at the Treasury Board of Canada Secretariat in 2004, and were supported by other eminent observers of Canadian government: Denis Desautels, former Auditor General of Canada; Robert Marleau, former Clerk of the House of Commons; and Camille Montpetit, former Deputy Clerk of the House of Commons.

1.1 Structure of this report

This report explains in some detail the practice of ministerial responsibility in Canada, focussing in particular on how:

• responsibilities are assigned;
• the people with those responsibilities are held to account; and
• consequences are delivered when performance is found to be wanting.

Given the centrality and complexity of the accountability regime, the government believes that it is important to begin with a sound understanding of the existing principles and practices in Parliament and in government itself. Canadians, in judging the best way ahead, will want to know what mechanisms are currently in place, how they relate to each other, and how they have evolved. As will be shown in the report, a robust accountability regime is in place, and it has deep traditions and well-developed roles.

Therefore, the first few sections of the report describe the current accountability regime. Section 1 provides an overview of accountability in responsible government, explains the purpose of an accountability regime, and outlines the doctrine of ministerial responsibility and its practice in Parliament and in government. Section 2 deals with the role of Parliament (particularly the House of Commons), considers in some depth the role of the key mechanisms that Parliament uses to hold the government to account, and explores the accountabilities of ministers and senior officials in this context. Section 3 examines the essential aspects of accountability in the ministry, touching on the role of the prime minister and the Privy Council Office, and addresses how ministers and deputy ministers manage the political-bureaucratic interface. Section 4 outlines the central role played by the Treasury Board and its Secretariat in relation to managerial accountability, particularly as it concerns the responsibilities of deputy ministers for financial management.

The last section of the report describes a framework for reform. In this context, it is important to note the principal lessons learned from past efforts at reform. Knowing where we have come from will help guide where we should go. The government operates in a challenging environment and reforms, both in Parliament and in the government, can carry a high cost if not carefully planned and executed. Reforms must take us forward, not backward. Section 5 outlines each element of the framework and identifies the following for each of the core accountability mechanisms in Parliament, the ministry, and the Treasury Board:

• the specific challenges noted by the distinguished participants in the consultation phase of the report;
• the measures that the government has already taken to address these challenges; and
• the core values and objectives that will guide the government in developing its action plan.

The specific measures the government will be taking to strengthen accountability are outlined in Management in the Government of Canada: A Commitment to Continuous Improvement.

1.2 Overview of accountability in responsible government

Any discussion of accountability in our constitutional system—the Westminster system of parliamentary democracy—must be informed by an understanding of how that system functions and why. Although the Westminster system developed incrementally, rooted in evolving democratic values rather than in abstract or static concepts, it has deep integrity, and the roles of different players complement each other in a fine balance. It is thus both an evolving system that has adapted to changing circumstances and an organic structure in which changes in one area inevitably have repercussions in another. This section provides an overview of the accountability regime. Each of the constituent elements is explored in greater depth in the sections that follow.

The Westminster system is defined by its distinctive accountability features: the twin tenets of parliamentary sovereignty and responsible government. Under this constitutional system, Parliament can make any law it wishes within the limits of the constitution—for example, the division of jurisdictional authority under the Constitution Act, 1867 and the rights set out in the Charter of Rights and Freedoms. The executive is responsible to the legislature—that is, the government of the day remains in power only so long as it commands the confidence of the elected House of Commons. The executive is therefore accountable to the legislature for the exercise of its authority, and together they are accountable to the electorate. Because in this system the members of the executive sit in the legislature and require its confidence, their accountability is anything but a remote theoretical construct—it is a living, daily reality in the House.

Ministers, who together as the ministry form the government of the day, exercise executive authority in this system. These ministers, who act largely through the work of a non-partisan public service, are accountable to Parliament both individually and collectively. All accountabilities in Canadian government flow from ministers' individual and collective accountability to Parliament.

Although Parliament does not exercise executive authority, it is the principal guarantor of the government's accountability, scrutinizing the government's policies and actions and holding it to account. Parliament has a spectrum of tools for doing this, ranging from its role in the passage of legislation to the review and approval of public expenditure to the interrogations of Question Period. But while the specific tool may vary, the environment remains constant—that of partisan politics. Parliament and its processes are inherently political.

Key concepts of ministerial responsibility In explaining the theory and operation of ministerial responsibility, the government has distinguished among three central concepts: responsibility, accountability, and answerability. Responsibility, in addition to referring to the constitutional relationship between ministers and the House under responsible government, also refers to the sphere in which a public office holder (elected or unelected) can act, which is defined by the specific authority given to that office holder by law or delegation. Accountability is the means of explaining and enforcing responsibility. It involves rendering an account of how responsibilities have been carried out; taking corrective action and fixing any problems that have been identified; and, depending on the circumstances, accepting personal consequences if the matter is attributable to the office holder's own action or inaction. Answerability refers to a duty to inform and explain. It is narrower in scope than accountability in that it entails neither the responsibility to take action nor the personal consequences associated with accountability.

The political responsibility of ministers, or accountability to Parliament, is an important element of electoral democracy. However, political responsibility is not the mechanism that ensures accountability on the part of public servants—that mechanism is managerial. Deputy ministers are accountable to their ministers, to the prime minister, and to the Treasury Board for the use of their authority to implement policy and particularly in the area of financial administration. Political responsibility is also not the means of determining civil or criminal liability for unlawful conduct—that is the justice system. The sanctions associated with ministerial responsibility are political, ranging from public embarrassment of a minister and consequent loss of political stature at one end of the spectrum to the potential fall of a government at the other.

As noted, all of these elements of the accountability regime will be explored in depth in this report, but what is clear from this overview of responsible government are the distinct and finely balanced roles of each of the system's different players. Ministers exercise executive authority on the basis of the political support that they receive from Parliament; they therefore have political accountability to Parliament. Parliament, in turn, does not exercise executive authority, but it ensures that executive power is properly exercised. Its mechanisms for doing so are political and partisan. They must be employed responsibly in order to strengthen accountability and not be used as a substitute for thoughtful scrutiny. Public servants, as the instruments through which successive ministries give effect to their policy and operational agenda, must adhere to principles and values that enable them to support successive governments effectively and without partisan bias. They must be accountable primarily to their ministers on terms, principally managerial, that respect this role.

1.3 The goal of an accountability regime

The government must be accountable for both the policies it sets and the means by which it implements them. However, the area of particular concern in the current context is the responsibility and accountability of ministers and senior officials for matters of financial administration and management in policy implementation. This report, therefore, focusses on responsibility and accountability for financial administration. In this regard, the accountability regime under our system of responsible government must do the following:

• provide assurance to Parliament and Canadians of the government's proper use of lawful authorities and public resources;
• reinforce all parties' compliance with established legal requirements and management policies and practices; and
• promote a culture and practice of continuous improvement of governance and administration in the Public Service.

The accountability regime must therefore be marked by at least three core features:

• well-defined roles and responsibilities, where those with authority have the capacity to carry out their duties;
• a credible process of rendering an account, where those with responsibility answer for their performance against the standard of what they were expected to do; and
• the assignment of consequences, good or bad, for the performance of responsibilities.

The actions of ministers and public servants, and reforms to the accountability regime must be guided by a vision of good management. Given that good management includes not just adherence to sound systems of controls but also the encouragement of creativity to generate continuous improvement, the goal should not be to eliminate all mistakes, at any cost. Good management means that:

• organizations can allocate public resources based on demonstrable performance, sound values, and the confidence to innovate;
• management decisions give balanced and integrated consideration to risk, resource stewardship, people, and rigorous accountability; and
• managers continuously strive to improve the quality of their analysis and their understanding of the needs of Canadians, have the training required to meet performance expectations, and are accountable for meeting those expectations.

An assessment of the accountability regime must take into account the objectives of the regime, examine the practices associated with each of the elements of good management, determine whether this vision of management is being met, and judge whether the proposed framework for reforms will result in the necessary measures to reach this goal.

1.4 Overview of strengthening accountability

The government has taken steps to enhance accountability and will continue to do so in the future. The Westminster system is an evolutionary one and can embrace any changes that reflect its fundamental spirit, but such changes must be thoughtful rather than reflexive. Lessons can be drawn from the practices in the accountability regime that provide direction for future reforms:

• Accountability is a shared responsibility, with central roles played by Parliament, the ministry, and the Public Service. Any reforms must address the challenges faced by each actor and reinforce its unique role.
• Control systems are important, but they must allow for, not stifle, innovation and creativity. Controls can undermine accountability if they remove responsibility from ministers and public servants and centralize it.
• Controls alone are not enough; they must be supported by a strong ethical code, learning opportunities, and capacity-building initiatives to ensure that individuals operating in the regime strive to properly fulfil their duties and responsibilities.
• Even when significant issues of mismanagement arise, the urge to revamp the entire regime must be resisted; a balanced, measured approach that tackles the problems in a comprehensive and sustained way results in better long-term outcomes.

As the Clerk of the Privy Council observed in the Twelfth Annual Report to the Prime Minister on the Public Service of Canada, "We cannot tolerate breaches of the law or of our core values and ethics … but we cannot build systems based on distrust. We cannot go backwards, building layers of hierarchy and rules governing each transaction. And we cannot treat all errors the same way. Errors made in good faith are inevitable, especially in an organization that values innovation and creativity. Accountability requires that we report honestly and accurately, including the errors, and demonstrate that we have learned from the mistakes and have made the necessary adjustments. But accountability cannot become mere blaming."

Based on careful consideration of the advice and recommendations of the distinguished individuals consulted, the government has developed a framework for strengthening the accountability regime. It builds on the many initiatives already taken and complements the core principles of ministerial responsibility. The framework will do the following:

• support Parliament in its role in holding the government to account by encouraging Parliament to enhance its capacity for scrutiny and by working with Parliament to improve the quality of information on government plans and performance and how it is reported;
• support ministers and deputy ministers in carrying out their responsibilities and improve management performance by clarifying the assignment of responsibility and accountability, particularly in areas of financial administration; by ensuring that those who are responsible have the capacity to fulfil their duties; by strengthening financial management and oversight, particularly in high-risk areas; and by strengthening the accountability reflex through reinforced public service values, greater transparency, and decisive action when things go wrong; and
• strengthen the Treasury Board's role in ensuring solid managerial accountability by implementing the Management Accountability Framework as the basis of accountability within departments and across government and by enhancing the availability, quality, and use of expenditure and performance information.

Details of this framework are provided in Section 5. The specific measures to be taken to strengthen accountability are included in the report Management in the Government of Canada: A Commitment to Continuous Improvement. Before finalizing its plans in this area, the government will carefully consider the recommendations of Mr. Justice Gomery in his final report.

 

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