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Speech in Senate Chamber: Internal Economy, Budgets and Administration, Motion to Authorize Committee to Study the Powers and Responsibilities of the Officers of Parliament and Their Reporting Relationships to the Two Houses—Motion in Amendment Adopted

Internal Economy, Budgets and Administration

Motion to Authorize Committee to Study the Powers and Responsibilities of the Officers of Parliament and Their Reporting Relationships to the Two Houses—Motion in Amendment Adopted—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Comeau, seconded by the Honourable Senator Di Nino:

That the Standing Committee on Internal Economy, Budgets and Administration be authorized to examine and report on the powers and responsibilities of the officers of parliament, and their reporting relationships to the two houses; and

That the committee present its final report no later than March 31, 2013;

And on the motion in amendment of the Honourable Senator Tardif, seconded by the Honourable Senator Hubley, that the motion be not now adopted, but that it be amended by replacing the words "Internal Economy, Budgets and Administration" with the words "Rules, Procedures and the Rights of Parliament".

Hon. Anne C. Cools: Honourable senators, I rise to speak to Senator Tardif's amendment to Senator Comeau's motion in respect of referring the question of the examination and report on the powers and responsibilities of the officers of Parliament to the Standing Senate Committee on Internal Economy, Budgets and Administration. In addition, Senator Comeau had tabled the five-line letter, obviously with the intention that the committee would study that.

Honourable senators, I would like to begin by saying that this five-line letter, dated February 16, 2011, and its nine-page paper entitled The Accountability of Agents of Parliament, to the Senate Internal Economy Committee is something that should deeply concern us all.

This short letter, not on letterhead, was signed by seven officeholders, self-described as "agents of Parliament." They are the then Auditor General, the Chief Electoral Officer, and the Lobbying, Information, Privacy, Official Languages and then Interim Public Sector Integrity Commissioners.

This letter was addressed to five chairmen of Commons committees and to Peter Milliken, not as the then Commons Speaker, but as Chair of the novel — very novel — Advisory Panel on the Funding and Oversight of Officers of Parliament.

Clearly, their use of the word "Parliament" must not include the Senate, for it was addressed to no senator. It was copied to five Commons Clerks, the Treasury Board Secretary, the Privy Council Clerk, and our Senate Speaker. Its subject is their claim for more independence. Worthy persons though they are, their positions, self-described as "agents of Parliament," and their affiliation to Parliament are unclear. I thank Senator Tardif for her speech and for supporting this initiative. I also thank Senator Comeau for his endeavours and efforts to place this question before us. On my own behalf, I would like to say that this proposed committee study is timely, needed and welcome.

Honourable senators, these appellations "agents of parliament" and "officers of parliament" were not created by any of our 41 parliaments assembled. Not one of them assigned either of these terms to these seven offices. Not enacted by Her Majesty in statute or in royal instruments appointing them, these terms are a mystery. As applied to these offices, these terms are no part of the lexicon of the ancient law of parliament, its usage and customs, the lex parliamenti. This lex, and our constitutional order, received into Canada in the Constitution Act, 1867, section 18, was the grant of the full ancient privileges, immunities and powers of the British Commons House. This lex is jointly and jealously held by the Queen, the Senate and the Commons, the parliaments — the word "parliaments." These terms are recent political innovations, responses to weakness in our two representative houses, and in our political parties, private societies, which deliver responsible government.

Honourable senators, signed by the seven officeholders, this letter was addressed to the Advisory Panel on Funding and Oversight of Officers of Parliament. Rejecting the panel's choice of style, "officers of parliament," they chose instead to name their paper The Accountability of Agents of Parliament. At page 1, they state:

We are using the term "Agents of Parliament". . . This is the term that is used by government. It has been suggested that the term "Officers of Parliament" may be confusing, as it is also used to describe other officers that serve Parliament, including the Sergeant at Arms, the Usher of the Black Rod, and the Parliamentary Librarian.

Having reconsidered the term "officers of parliament," they have chosen to re-style themselves "agents of parliament." Perhaps they could re-style again. The words "officer" and "agent" are not interchangeable and have different legal meanings. Neither are they wholly satisfactory or appropriate. However, the term "officers," as arbitrary and unhelpful, is not yielding easily to Privy Council's chosen term "agents."

Honourable senators, senior lawyer at Justice, Ann Chaplin, wrote a book, Officers of Parliament, Accountability, Virtue and the Constitution. At page 120, she writes about these offices in phrases like "independent moral actors" who appear "to be here to stay" and who "we have not yet considered enshrining . . . in the Constitution." About the "agents of parliament," the law of agency, and principal-agent relations, she writes, at page 78:

If the officers can be said to be acting as agents simply because they are exercising a mandate under legislation, then they are acting as agents of the Crown, as well as the House of Commons and Senate. Put this way, it is easy to see that the flaw here is not just theoretical. If it is enough to establish an agency relationship with Parliament that a law is passed by Parliament empowering the actor then everyone who acts under powers conferred by federal statutes would be an agent of Parliament.

She adds, at page 81:

By either a private or public law approach to agency, therefore, it seems unlikely that officers of Parliament are legally the agents of Parliament . . .

Honourable senators, mindful of this, I add that the law of agency governs commercial relationships, and that Parliament can neither be sued nor be a principal. I also note that the Public Officers Act and the Seals Act, in their Formal Documents Regulations, do not list these seven offices under their heading "Officers of Parliament." It lists only the officers of the two houses. One must conclude that both terms, "agents" and "officers," are of uncertain origin and meaning. This is in sharp contrast to our lex, where words, meanings and styles are strictly tested. These two terms have acquired political currency, but they are recent unclear creations. What is clear is that they have no pedigree in the lex or in our constitutional order. This, I submit, is why doubt has arisen about the nature and character of these offices, notwithstanding the good character and work of their present and past occupants. These positions need to be examined by the lex in rigorous and thoughtful application.

Honourable senators, much academic opinion holds that the modern ascendancy of the officers of Parliament is eroding representative politics and weakening the powers of the members of both houses. These offices' "mandate creep" is at the expense of responsible government and the public good. However, other opinion welcomes this "mandate creep" as the natural growth of a new fourth branch of government that they call the "integrity branch." These integrity-branchers opine that these offices are the guardians of virtues, values and morality. Professor David Smith, in his paper A Question of Trust: Parliamentary Democracy and Canadian Society, in the 2004 Canadian Parliamentary Review, wrote at page 25:

Officers of Parliament are not a new phenomenon; . . . The difference between then and now is that where once seen as servants of Parliament, they are evolving into its masters. . . . what is clear is that the officers are in the process of becoming the integrity branch of government, what Bruce Ackerman of Yale University has labeled its fourth branch.

Though not elected, some suggest they are democratic. Dr. Smith, in his 2007 book The People's House of Commons: Theories of Democracy in Contention, writes at page 69:

The auditor general and the other officers of Parliament represent much more than their narrow label implies. A reading of their reports to Parliament bears out that claim. Here they speak to Parliament; but they also speak for, if not on behalf of, public opinion. . . . In their commentaries and in the attention their commentaries elicit, officers of Parliament assume some of the features of representation. . . .

He adds:

Conscience, principle, and character describe this type of `unaccountable' representative, since there is no direct linkage between elector and elected. . . . Still, officers of Parliament inhabit a world of representation and articulate concerns some of the represented believe to be inadequately expressed by elected members. The thread that joins officers of Parliament is their common concern for integrity.

Honourable senators, the officeholders echo this integrity-virtues theme. Ousting members and ministers, they have occupied the moral ground. At page 1 of their paper, they state that one of them:

. . . has aptly described the Agents of Parliament as "guardians of values that transcend the political objectives and partisan debates of the day." These values include the responsible handling of taxpayers' dollars, the integrity of elections, transparency through access to information, privacy, the integrity of public servants and lobbyists, and linguistic duality.

Jeffrey Graham Bell, in his 2006 paper, "Agents of Parliament: A New Branch of Government?" in Canadian Parliamentary Review writes at page 20:

If APs have engaged in "mandate creep," as Professor Aucoin fears, this is neither shocking nor, on the whole, detrimental. . . . Bureaucratic "mandate creep" from this initial theory has meant that, in practice, bureaucrats are responsible for both policy proposal as well as administration.

Parliamentarians can be safely consigned to a similarly minimal, yet profoundly essential role, . . . AP mandate creep is the rational maximization of public expertise finally freed from the defence of the government of the day. The political power exercised by APs is influence.

This influence, this political power, this "creep," now reaching the public purse, cannot be for the public good. Such independence does not exist in our constitutional order, not even for judges in their high judicial independence.

Honourable senators, the officeholders' paper is aimed at the lawful, constitutional role of the Treasury Board and the Financial Administration Act in the national finance, mainly the Constitution Act, 1867, sections 53 and 54, known as, in the vernacular, "the financial initiatives of the Crown" and "the control of the public purse."

Honourable senators, constitutions by design are supposed to be resistant to change, and these sections the more so because they are the bedrock of government by Her Majesty in her councils, in her Parliaments. Jack Stillborn, once Library of Parliament staff, wrote about this and the novel advisory panel. In his 2012 paper, "Funding the Officers of Parliament: Canada's Experiment" in the Canadian Parliamentary Review, 2010, he said at page 38:

It is the exclusive prerogative of the Crown to place recommendations for spending before Parliament. Strict adherence to this principle underlies what has remained the central formal limitation upon the independence of the officers of Parliament.

This is very serious, senators, but this gives some no pause. Jeffrey Bell states and ends his paper starting at page 21:

As always, vigilance is warranted and welcome as the Canadian constitution gathers more experience. Still, we must not allow precedent and constitutional idealism to prevent new tool boxes from being opened.

What tools? Whose tools?

Honourable senators, these united officeholders, self-described as Parliament's "agents," have made the united but unproven claim that the Treasury Board's role in deciding sums of money for them and their offices, their bureaucracies, might impair their independence. They want out from under the lawful financial administration regime, our constitutional order. This contentious claim, accepted by a few, has never been —

The Hon. the Speaker: Honourable senators, the honourable senator's time has expired.

Senator Cools: May I ask for five more minutes?

This contentious claim, accepted by a few, has never been put before either house. They describe their 2005 pilot project in their paper at page 5:

The main feature of the pilot project was the ad-hoc all party parliamentary Advisory Panel, chaired by the Speaker of the House of Commons, which has provided oversight on the annual funding requests of Agents of Parliament and made recommendations in that regard to the Treasury Board.

Supported by the late former Commons Clerk William Corbett and his private 2008 evaluation of their project, they seek, in his words, that, "Parliament" — note, not the Commons — "give the Advisory Panel" a fixed place in the House of Commons Standing Orders.

Honourable senators, the lex knows no such ad hoc parliamentary advisory panels. Not constituted by a house, such creatures must be outlaws to the constitutional order. Such panels' secret decisions do not proceed in the house by motion, debate and division. Without such house approbation, they cannot be "proceedings in parliament," with its privileges and protection accorded to participants. They are not even flawed or corrupt proceedings which, though impure, can be corrected by a house vote to void. Further, none can claim that the Senate cannot inquire into this panel on grounds that the house is the master of, and has exclusive cognizance of, its proceedings, because the house has never had such a proceeding and can have no cognizance of it. Though well-intended, such panels' decisions have no public or parliamentary character. Secret and unrecorded, they are the private and personal musings of some who are members, and who have vested the panel with their personal credibility. These musings, not house proceedings, are the wilful avoidance, exclusion, of the House of Commons itself in the plenitude of its members — never mind the Senate — the exclusion of the house.

Honourable senators, it seems that these officeholders are trenching, claiming a share in the decisions of the national finance and the public revenue, a constitutional change. This spending power is equal only to its twin, the taxing power. Our Constitution Act, born of the sacrosanct tax and spend powers, admits no such claim. Our constitutional order knows no independence with such access to the public purse and treats such claims as heresy and illegal. I repeat, even the judiciary, a coordinate in our Constitution, have no such power.

Honourable senators, this is a Senate matter. Changes to the law of public finance attach the Senate. The Confederation Fathers were much concerned that taxes raised in one region could be misspent in another. To avoid problems, they structured this Senate to have its powerful federal role in the public finance, with greater powers than the then House of Lords. Our lower Commons house, like Britain's, was constituted as a house in a unitary state, but not our upper house. This Senate, constituted to embody the federation, was armed with strong federal constitutional powers in the national finance.

Honourable senators, Sir William Blackstone wrote on the exclusive law of Parliament. In his The Commentaries on the Laws of England, Vol. 1, adapted in 1876 by Robert M. Kerr, Blackstone, citing Edward Coke, said at page 131:

For, as every court of justice has laws and customs for its direction, some the civil and canon, some the common law, others their own peculiar laws and customs, so the high court of parliament has also its own peculiar law, called the lex et consuetudo parliamenti . . .

Honourable senators, the ancient dictum is that all questions in the houses must be moved, debated and decided by the lex parliamenti. Trust me, senators, the lex is a faithful and abiding friend. It holds the answers about the nature, character and constitution of these offices. It will tell us whether they are our agents, our officers, or neither, and how and by what legal power and process they are so affiliated and styled. Their novel demand undermines their own claim to be our agents, because the first duty of an agent is to uphold the legal and financial order of its principal.

Honourable colleagues, I laud Senator Tardif for supporting this effort. I laud Senator Comeau for bringing it forward. There are deep, large, moral, political and legal questions involved. I look forward to this study. I look forward to the challenge. I have served on other committees that have looked at some of these issues and, as I said before, it is a huge challenge. I shall pick up more of these challenges in my next speech, which I plan to give on the main motion.

To all of those who are unaware of the complexity and the challenges around how this institution was structured, I invite you to pay careful attention to because it was for this purpose that this Senate was created. Remember, in 1867 the U.K. was well on its way to limiting the financial powers of the House of Lords. That is not what happened in the Senate; they strengthened powers here for the Senate, precisely because of the national interest and the Senate's interest in the national finance, the public revenue.

The remainder of this day's Senate Debates are available here.