Letter to Standing Committee on Access to Information, Privacy and Ethics concerning Bill C-520

Letter to Standing Committee on Access to Information, Privacy and Ethics concerning Bill C-520

24 February 2014

Mr. Pat Martin, M.P.
Chair, Standing Committee on
Access to Information, Privacy and Ethics
House of Commons
Ottawa ON K1A 0A6

Dear Sir,

Re: Bill C-520, Supporting Non-Partisan Agents of Parliament Act

We are writing in the context of your deliberations of Bill C-520. As Agents of Parliament we support initiatives that enhance transparency and accountability to Parliament and Canadians. Our role is to serve Parliament in a strictly non-partisan manner. In this regard, we support the principle that underlies Bill C-520 and are committed to ensuring that we, and the employees of our respective offices, discharge our duties and functions in a fair, independent, impartial and non-partisan manner.

Section 3 of the Bill states that the purpose of the Bill is to avoid conflicts that may arise or could be perceived to arise between partisan activities and the official duties and responsibilities of an Agent of Parliament or one of its employees.  It seeks to do this principally by requiring a written declaration from an Agent of Parliament and any employee in the office of an Agent, of their intent to occupy a politically partisan position while continuing to function as Agent or employee in an Agent’s office (sections 6 and 7). In addition, the Bill requires a written undertaking from every Agent of Parliament and employees in their offices that they will fulfill their duties and conduct themselves in a non-partisan manner (section 8).

Section 9 also provides that an Agent of Parliament may examine an allegation raised in writing by a member of the Senate or House of Commons that an employee has conducted himself or herself in a partisan manner in the performance of his or her responsibilities. Following an examination, the Agent of Parliament must submit a report to Parliament by transmitting it to both the Speaker of the Senate and the Speaker of the House of Commons for tabling in both Houses (section 10).

Overall, the Bill’s provisions do not provide specific guidance on how they would interact with the current legislative and policy regime that governs political activities of public servants. The current regime includes Part 7 of the Public Service Employment Act, the Public Service Code of Values and Ethics, and the Values and Ethics Code adopted separately by each of our offices.  For instance, in the absence of a definition of partisan conduct, it is unclear how this notion would differ from the definition of political activity contained in the Public Service Employment Act (PSEA). The PSEA provides that only the Public Service Commission can conduct investigations into allegations of political activities. This lack of harmonization or integration may create uncertainty for employees and may give rise to issues regarding competing redress mechanism and overlapping jurisdiction.

The following paragraphs highlight specific issues for the Committee’s consideration.

First, the requirement to declare a prior partisan position occupied during the past ten years at the earliest opportunity during an appointment process may impact on the hiring process. As Agents of Parliament, we have delegated authority to appoint employees based on merit principles outlined in the PSEA and the accompanying regulations. Consideration of prior politically partisan position would not be permitted during an appointment process. If an individual had declared prior politically partisan positions and, due to reasons of merit was unsuccessful in obtaining a position in the office of an Agent of Parliament, the decision not to hire that individual could be challenged under the PSEA on the basis that the declaration impacted the hiring process.

Second, there is no definition of what constitutes partisan conduct, no threshold of evidence that would be required to request an examination and no remedial action for the manager or any redress mechanism for the employee. In addition, the Bill has no provision on confidentiality requirements that apply to the request for an examination, the examination process or the issuance of a report. These raise issues given the impact an examination and a report may have on the reputation of an employee. This is particularly important should there be no basis for finding that the employee had acted in a partisan manner.

Third, examining the conduct of an employee following an allegation of partisan conduct may have an impact on the particular files, audits or investigations conducted by the employee in question. Such examination could halt or hinder an ongoing file, audit or investigation and cause undue delay. 

Finally, the coverage of this Bill is very broad. It applies to all employees at all levels. The Committee may want to consider whether the Bill should be limited to employees with decision making power or in positions of influence.

We thank you for considering the matters we have raised in this letter. Each of us welcome the opportunity to appear before the committee during its review of Bill C-520 to further discuss these concerns.

Sincerely,

Michael Ferguson, FCA
Auditor General of Canada

Karen E. Shepherd
Commissioner of Lobbying of Canada

Marc Mayrand
Chief Electoral Officer of Canada

Suzanne Legault
Information Commissioner of Canada

Chantal Bernier
Interim Privacy Commissioner of Canada

Graham Fraser
Commissioner of Official Languages

Me Mario Dion
Public Sector Integrity Commissioner of Canada

c.c.:

Ms. Pat Davidson, M.P., Vice-Chair, Standing Committee on Access to Information, Privacy and Ethics

Mr. Scott Andrews, M.P., Vice-Chair, Standing Committee on Access to Information, Privacy and Ethics

Chad Mariage, Clerk, Standing Committee on Access to Information, Privacy and Ethics