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

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2. The Role of Parliament in the Accountability Regime

Introduction

This section provides an overview of the role that Parliament plays in the accountability regime, specifically in relation to financial management. It highlights Parliament's involvement in the assignment of responsibility through its legislative role, explains the key mechanisms that Parliament uses to hold the government to account, and sets out the limits of Parliament's role in sanctioning ministers. In the course of explaining the practices of parliamentary scrutiny, the key principles of collective and individual responsibility and the anonymity of public servants are spelled out and certain misconceptions are addressed. The section makes it clear that accountability:

• is a shared relationship between Parliament and ministers;
• is fundamentally political; and
• depends on the neutrality of the Public Service for its efficacy.

2.1 Parliament and the assignment of responsibility

Parliament is the primary guarantor of the government's political accountability in responsible government.^[5] The direct accountability of ministers to the House of Commons is a central feature of this system, and its efficacy depends heavily on the will and capacity of the House to hold ministers accountable. Governments must account to Parliament, on whose will they depend for their very existence. However, although Parliament is sovereign, it does not exercise executive authority. That is the responsibility of ministers, individually and collectively. As the Chair of the Public Accounts Committee recently put it, "Parliament is not an institution of management; Parliament is an institution of accountability. We're not here to run the government; we're here to hold the government accountable for the way they run themselves."^[6]

While the organization of the ministry and the corresponding organization of portfolios is one of the defining responsibilities of the prime minister, Parliament plays a key role in the assignment of ministerial responsibility. In Canadian practice, departmental acts, which are passed by Parliament, characteristically set out a number of important provisions that help define ministerial responsibilities. They provide for the appointment of a minister; set out the powers, duties, and functions for which the minister is responsible; and give the minister responsibility for the overall direction and management of the department's financial and public service resources.^[7]

Parliament has also approved the Financial Administration Act. This Act is the cornerstone of the legal framework for general financial management and accountability of public service organizations. It describes the manner in which government spending may be approved, expenditures made, revenues obtained, and funds borrowed. It provides a procedure for the internal control of funds allocated to departments and agencies by Parliament and for the preparation of the Public Accounts of Canada, which contain the government's annual statement of revenues and expenditures.

The Financial Administration Act assigns rights and duties to ministers and directly to deputy heads in relation to the organizations they manage. These rights and duties include the obligation for a deputy head to establish procedures and maintain records respecting the control of financial commitments chargeable to public funds; the fact that only a minister or his or her delegate can request the issuance of a payment; and that before a payment is issued in return for work, goods, or services, the deputy of a minister (or another delegate) must certify that the work has been performed, the goods received, or the services rendered.

Ministers remain individually and collectively responsible for their statutory duties and accountable to Parliament and the prime minister for the stewardship of the resources and exercise of powers assigned to them.

Collective responsibility of Cabinet

Collective ministerial responsibility refers to the convention requiring coherence and discipline of the ministry in deciding policy, managing government operations, and speaking to Parliament with a single voice. An important manifestation of this principle is the requirement of Cabinet solidarity: while ministers engage in full and frank discussion of proposals in Cabinet, once a decision is taken, all ministers must be prepared to support it publicly or to resign. The decisions of Cabinet have mostly political and administrative effect, and their implementation is left largely to the minister or ministers directly responsible. Thus, accountability for specific policies or programs normally lies with individual ministers. Nevertheless, collective ministerial responsibility has great practical significance.

Before the evolution of Cabinet government in the 18th century, the House of Commons could remove ministers individually. Collective ministerial responsibility arose with the development of parties in Parliament and the need to elect a unified government and hold it to account. With the emergence of collective responsibility, the House's capacity to remove individual ministers was effectively replaced by a single, weighty instrument: the power to bring down a government if a majority of members so wish. In the case of individual ministers, members of the House can bring enormous pressure to bear, including demands for resignation. However, the decision as to what consequences the minister will actually be required to accept ultimately lies with the prime minister, who must assess the gravity of the situation and the likely damage to the ministry as a whole, either through a possible loss of confidence or through poor results in the next election.

Individual responsibility of ministers

In applying the concepts of responsible government to individual ministers, we see that they have responsibility for their portfolios, which can include not only their departments and any arm's-length organizations in those departments, but also non-departmental organizations, such as Crown corporations. The prime minister assigns responsibility for portfolios, for the administration of various statutes, and for particular mandates within portfolio and statutory authorities. In current Canadian practice, a minister's powers, duties, and functions in his or her department are typically set out in a departmental statute. Responsibility thus reflects a sphere of legal authority, both statutory and non-statutory, and carries duties that must be discharged within that sphere. In a parliamentary system, the vast majority of executive actions are taken by or on behalf of an individual minister or ministers.

A minister's accountability to Parliament for his or her department means that all actions of the department—whether pertaining to policy or administration, whether taken by the minister personally or by unelected officials under the minister's authority or under authorities vested in those officials directly by statute are considered to be those of the minister responsible. If Parliament has questions or concerns, the minister must address them, providing whatever information and explanations are necessary and appropriate. (This means that accountability always includes answerability.) If something has gone wrong, the minister must undertake before Parliament to see that it is corrected. And, depending on the circumstances, if the problem could have been avoided had the minister acted differently, the minister may be required to accept personal consequences.

Ministerial accountability does not require that the minister be aware of everything that takes place in his or her department, any more than the chair of a corporate board of directors must be aware of everything that takes place in a large modern corporation. Similarly, accountability does not mean that the minister must accept blame (for example, by resigning) whenever something goes wrong in his or her department. Accountability and blame are different: blame applies only if problems are attributable to the inappropriate action or inaction of the minister.

To support a minister's accountability for a department, the minister and his or her deputy must work together to understand the level of detail at which the minister expects to be involved in the department's work. This will vary according to the circumstances and style of individual ministers. Broad direction rather than transactional engagement is the norm, especially with respect to administrative matters, although ministers will give more specific direction on key priorities such as Cabinet documents and Treasury Board submissions. But, whatever the level of detail at which the minister becomes involved, the minister and deputy have a complementary responsibility to ensure that appropriate systems are in place to manage the risk of problems and to correct them when they occur.

Ministers are similarly accountable for the exercise of authority by the deputy minister, whether the authority is delegated by the minister or assigned directly to the deputy minister by statute. While responsibilities can, and indeed often must, be delegated, accountability cannot. The person delegating authority must ensure that appropriate controls are in place to ensure that he or she can reasonably manage the risk of something going wrong. There is sometimes a mistaken impression that ministers have no role with respect to administrative matters, particularly where deputy ministers are assigned authorities directly by statute (for example, under the Financial Administration Act). However, ministers, who, unlike deputy ministers, are members of Parliament, remain responsible to Parliament for the overall management and direction of their department-a responsibility that is explicit in departmental statutes. Ministers cannot give specific direction to deputies on such matters, but they are accountable for ensuring that deputies discharge their responsibilities appropriately.

Ministers are said to be answerable, as opposed to accountable, with regard to the day-to-day operations of arm's-length organizations in their portfolio. This means, for example, that if questions were raised in the House about a decision taken by a quasi-judicial tribunal in a minister's portfolio, the minister responsible would be required to provide the necessary information and explanations to the House. The minister must not, however, intervene in the tribunal's operational process, nor would the minister be subject to personal consequences for the decision. However, ministers are accountable for arm's length organizations in their portfolio at a systemic level, and Parliament looks to ministers to ensure that their organizations are delivering efficiently and effectively on their mandate.

An important dimension of accountability is the capacity to respond when issues arise. Accordingly, with respect to matters arising under the watch of a previous minister, the current minister, rather than the previous minister, is accountable for answering to the House and for taking any necessary corrective action. This helps ensure responsiveness if problems arise. Personal consequences would not attach to the current minister for problems that could not be attributed to that minister's own action or inaction, but would depend instead on how effectively that minister addressed the matter.

Much of the debate concerning ministerial accountability has focussed on the appropriateness of holding ministers to account for matters in which they are not personally involved. But concerns in this area often confuse accountability with blame. A minister is subject to blame for matters in which he or she was not personally involved only if the lack of involvement was itself inappropriate because of the nature of the matter. It is difficult to imagine the system not asking this of the minister. Moreover, the minister, unlike public servants (or even political staff in the minister's employ), is a member of the House, and only he or she can participate in the workings of the House.

Accountability of public servants

Clearly, the management and direction of a modern government department requires significant formal delegation. In fact, this reality is not unique to contemporary government. Over 150 years ago, in the famous Northcote-Trevelyan Report on the British civil service, the following statement was made: "The Government of this country could not be carried on without the aid of an efficient body of permanent officers, occupying a position duly subordinate to that of the Ministers."^[8]

Departments, as apparatuses for the exercise of authority and responsibilities that reside in ministers, are the basic organizational unit of executive administration in the Westminster system, and ministers act principally through the public servants in their department. The role of the Public Service is to advance loyally and efficiently the agenda of the government of the day without compromising the non-partisan status that is needed to provide continuity and service to successive governments with differing priorities and of different political stripes. In order to do this, public servants must provide candid, professional advice that is free of both partisan considerations and fear of political criticism, which in turn requires that they remain outside the political realm. But, while public servants provide advice, the democratically elected ministers have the final say, and public servants must obey the lawful directions of their minister. In short, all government departments, and all public servants who work for them, must be accountable to a minister, who is in turn responsible to Parliament. Were this not so, the result would be government by the unelected.

In keeping with these principles, public servants as such have no constitutional identity independent of their minister. This, and not an entitlement to operate under a cloak of secrecy, is what is meant by the "anonymity" of public servants. Even when senior officials support the accountability of their minister by providing information publicly, as for example when appearing before parliamentary committees, they do so on their minister's behalf. These officials are answerable to parliamentary committees in that they have a duty to inform and to explain. Public servants have no direct accountability to Parliament and may neither commit to a course of action (which would require a decision of the minister) nor be subjected to the personal consequences that parliamentarians might otherwise mete out.

In short, while ministers, as elected officials, are accountable for maladministration through the political process, public servants are not. Rather, they are accountable to their immediate superiors and, ultimately, to the deputy minister, through the employment relationship, whose sanctions are managerial rather than political (for example, reprimand, reduction or denial of performance pay, suspension, demotion, or termination). In the event of unlawful conduct, both elected officials and public servants are—like anyone else—accountable through the justice system.

Accountability of deputy ministers

Inevitably, deputy ministers and other senior officials exercise significant responsibility on behalf of ministers.^[9] Indeed, certain administrative responsibilities of deputy ministers are assigned to them directly by statute. Some commentators have expressed concern that there is no accountability for this authority because deputies are not accountable to Parliament. But as we have seen, accountability to Parliament is political: Parliament can apply political pressure that may diminish the reputation of an elected official and perhaps threaten the position of the ministry sufficiently to force a minister's resignation. None of this is appropriate for non-partisan public servants.

Accordingly, a deputy minister is accountable to the minister (and ultimately, through the clerk of the Privy Council, to the prime minister) for the discharge of his or her responsibilities, in addition to being subject to the systems of managerial accountability internal to government (discussed below). The fact that Parliament enacts the statutory obligations of deputy ministers in certain areas does not give rise to an accountability relationship between the deputy and Parliament. Parliament creates many statutory obligations—under the Income Tax Act, for example—but this does not give Parliament the authority to oversee compliance or to enforce the law. That is a function of the executive.

This also means that, when senior officials support the accountability of their minister by appearing before parliamentary committees, they do so on their minister's behalf. These officials are answerable to Parliament, in the sense that they have a duty to inform and explain, although they should do so without being drawn into discussion of the merits of government policy, which would both undermine the responsibility of their minister and threaten their own non-partisan status. Deputy ministers have no direct accountability to Parliament because other aspects of accountability beyond answerability do not apply: a deputy may neither commit to a course of action (which would require a decision of the minister) nor may he or she be subjected to the personal consequences that parliamentarians might otherwise mete out.

2.2 Parliament's role in holding the government to account

Parliament's role, on behalf of Canadians, is to hold ministers to account for the activities carried out under their authority or those authorities vested directly in departmental officials.^[10] Ministers, in turn, need to assure themselves that structures and processes are in place to give them the appropriate degree of control, which includes ensuring that their deputy is managing the department well enough to support ministerial accountability.

Parliament has a broad range of means to hold the government to account. The oldest and still among the most powerful is control of the public purse—the exclusive right to authorize taxation and the expenditure of public funds. In support of this responsibility, Parliament audits the accounts of revenues and expenditures in a manner of its choosing.^[11] Other means include Parliament's role in the passage of legislation, the scrutiny and approval of public expenditures, debate over resolutions, and the provision of information, whether through Question Period or formal reporting. ^[12]Three areas warrant specific attention: Question Period, the scrutiny of the government's performance by parliamentary standing committees (particularly the House of Commons Standing Committee on Government Operations and Estimates, and the House of Commons Standing Committee on Public Accounts), and the role of the auditor general.^[13]

Question Period

Question Period is a distinctive feature of Westminster democracy and arguably its most powerful instrument of accountability. A centrepiece of parliamentary life, Question Period gives parliamentarians timely opportunities to challenge policies and raise questions about administration. Ministers are obliged to be present in the House of Commons to respond to questions, to account for the authority that has been assigned to them, and to defend the way in which they or their officials have exercised authority.^[14] Any member can ask any minister any question about his or her area of responsibility, without advance notice. By questioning ministers, parliamentarians hold the government to account in ways that apply appropriate political pressure, especially by raising public attention to a problem.

Committee review of government spending

The Estimates process is fundamental to holding the government to account and is linked to Parliament's control over the public purse. The government can raise revenue and spend or borrow money only with the authority of Parliament. Parliament exercises authority over government financial administration through enabling legislation, such as an appropriations act, and by reviewing financial documentation, such as the Main Estimates (parts I, II, and III) and the Public Accounts of Canada.

In the Main Estimates, the government presents Parliament with spending proposals for a fiscal year and provides details on individual programs and on the plans and performance of departments and agencies. It indicates the areas in which it will spend funds and defines the limits to what the government may legally spend on a program without returning to Parliament to request more funds, which is done through a supply bill or an appropriations act. If called, ministers must appear before a committee of the House of Commons to answer questions on spending for which they are responsible.

The Standing Committee on Government Operations and Estimates (the Government Operations and Estimates Committee) has a mandate to examine the government's management of its physical, human, and financial resources (essentially, the effectiveness of government operations). It also has broad responsibilities relating to the supply process and financial reporting to Parliament by departments and agencies, including the review of the Estimates and the supply processes, as well as the format and content of all Estimates documents.

The Standing Committee on Public Accounts (the Public Accounts Committee) scrutinizes all reports of the auditor general and the Public Accounts of Canada once they are tabled in the House of Commons. The Committee helps ensure that public funds are spent for the purposes authorized by Parliament and that sound financial practices are followed in administration generally and in areas of estimates and contracting specifically. The Public Accounts Committee does not assess the appropriateness of the policies adopted by the government. It is concerned solely with the economy and efficiency of government administration, and it tables reports on ways to improve managerial and financial practices and controls in departments. A member of the official opposition chairs this committee.

The practices of the House of Commons and the use of standing committees have evolved. The practices and procedures that the House adopted in 1867 were a refinement of those in force in the United Province of Canada (1840–1867).^[15] Little changed in the standing orders or in the detailed scrutiny of government expenditures until the mid-1950s. Rules adopted at that time addressed matters including the length of time for the budget debate. In 1958, with the election of the Diefenbaker government, greater use was made of standing committees; for the first time, a member of the official opposition was chosen to chair the Public Accounts Committee, and the Committee began to hold regular meetings. In 1968, a series of significant reforms were made to House procedures, including the following:

• The Estimates were no longer considered by a committee of the whole House but were sent to standing committees.
• The opposition was given a total of 25 days on which it could choose the topic of debate.
• Most bills were referred to standing committees.

Further reforms occurred in 1982, including the establishment of an annual parliamentary calendar and numerous measures to improve the use of the House's time. In 1985, the McGrath Committee noted that many parliamentarians were straining under the new workload placed upon them under the committee system. The Mulroney government implemented a number of the McGrath Committee's recommendations, including those that reduced the size of parliamentary committees, ensured continuity of committee membership in order to develop expertise, and provided committees with their own budgets for research staff and legal counsel. The government also agreed that standing committees should have before them the full departmental policy array, including the department's objectives, the activities carried out in pursuit of those objectives, and the immediate and long-term expenditure plans for achieving them. Since 1993, further efforts have been made to enhance Parliament's capacity to hold the government to account by providing more timely and comprehensible information to Parliament, with greater focus on results. The Government Operations and Estimates Committee was created in 2002.

Auditor General

The first auditor general, John Langton, had responsibilities to both the government and Parliament. As Deputy Minister of Finance and Secretary of the Treasury Board, he was responsible for the use of funds and for reporting to Parliament on the results of his audits. The first independent auditor general was appointed in 1878, with responsibility to examine and report on past government transactions and approve the issue of government cheques. In 1931, the Consolidated Revenue and Audit Act made the auditor general an officer of Parliament to examine the government accounts and report on them to Parliament. In 1959, the first chartered accountant was appointed to the post of auditor general, but the House began referring his reports to the committee only in the mid-1960s. For the most part, these reports contained only a list of specific incidents that, in the auditor general's opinion, indicated inappropriate spending by the government.

In 1977, provisions governing the auditor general were removed from the Financial Administration Act and major reforms were instituted through the Auditor General Act. This led, among other things, to a more systematic approach to the auditing of financial management in government and to the issues considered by the Public Accounts Committee. Generally, the government's financial management is examined through three types of audits: attest audits (which verify that the government is keeping proper financial records), compliance audits (which ensure that the government spends only the amounts authorized by Parliament and only for the purposes approved by Parliament), and value-for-money audits (which assess whether government programs are run economically and efficiently and whether the government has in place the means to measure the effectiveness of its programs).^[16]

Accountability and the financial cycle

The annual accountability process on government spending begins when the government sets out its budgetary plans in the budget speech and legislation, typically in February. The Estimates, tabled in the House of Commons shortly after the budget, are essentially a policy document and identify how the government will allocate its resources among competing priorities. They set out projected expenditures, balancing various demands on resources, while taking into account economic circumstances and the government's determination of the most effective means of achieving its objectives. The Estimates are provided to various parliamentary committees for scrutiny, and ministers are called upon to justify the policy decisions outlined in their respective plans. The committees hold ministers responsible for those plans and usually report back on the Main Estimates by the end of May. After consideration, if Parliament deems the plans approved through supply bills, ministers are responsible for the management of the public funds allocated by Parliament in accordance with their statutory powers and the policies and regulations set out in Treasury Board policies. In short, the Estimates are an important control instrument.

Finally, there is a requirement for the accounting of how public funds are spent. The government prepares departmental performance reportsandthe Public Accounts, and each deputy minister attests to the accuracy of the accounts of his or her department. These are submitted to the auditor general for review and tabled in Parliament, typically in November. The Public Accounts Committee then reviews the auditor general's reports and holds ministers to account for the performance of their departments.^[17]

2.3 Role of Parliament in sanctioning the government, ministers, and senior officials

Parliament has the right to express its displeasure at the government's performance through votes of censure. The ultimate sanction takes the form of a vote of non-confidence that could result in the downfall of the government. Because Parliament confers or withdraws support for a government collectively, it does not have the power to remove ministers individually. When a minister is held to account by Parliament, Canadians and parliamentarians can judge him or her on the adequacy of the response; a minister's moral and political authority is effectively placed under public review. In a political system, this has very real effect. Further, parliamentary committees can register their opinions on the performance of a minister with the aim of embarrassing the individual.

Neither Parliament nor its committees should single out a public servant for censure, among other reasons because public servants have no position in Parliament and must not engage in political debate. Consequences open to Parliament—principally public censure or demands for resignation or removal from office—are political, and public servants cannot defend themselves against them without compromising their political neutrality. If a committee is not satisfied with how a public servant has managed delegated or statutory responsibilities, it may hold the minister to account for failing to oversee that person properly.

Does the fact that Parliament cannot strictly compel the disciplining of individual ministers mean that ministers are not truly accountable to Parliament? From the perspective of both individual ministers and the ministry as a whole, the clear answer is no. They take very seriously the prospect of public censure, with its attendant risk both to their personal political stature and to that of the government, and this risk has significant practical impact on their conduct.

 

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