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Draft brief on Parliament and administrative agencies Submitted to the Law Reform Commission of Canada

Thank you very much for forwarding to us a copy of “Parliament and Administrative Agencies”, by Frans P. Slater, for our comments.

We support the general position that administrative agencies should be made more responsible to Parliament. Most of the recommendations of the study are well taken, including the general role outlined for parliamentary standing committees in enhancing accountability.

Of particular interest was the conclusion that “no agency should be accorded more independence than is needed to fulfil its mandate (p. 118)”. Imperfect as Parliament is, and as high-minded and independent as an administrative agency may be in theory, although rarely in practice, there is no substitute for a representative, elected legislature for making policy. The big problem, historically, is that the government of the day may fob off prickly questions of policy onto an administrative agency as an avoidance tactic. But it is the prickly questions that most need of full parliamentary consideration and should not be left to an unelected administrative body. The example you cite, the CRTC, is indeed a good one to use in making the general case for Parliament assuming to the full its policy-making responsibility. Almost every policy question decided by the CRTC, directly and indirectly, since its establishment in 1968, should have been decided by Parliament instead. This policy function by Parliament, further, should be accomplished through legislation, submitted to and approved by Parliament, and not through orders-in-council.

Further, it should be made as easy as possible for any agency issue that has a policy content to be taken up expeditiously by the appropriate parliamentary standing committee, to provide an immediate check or review of any agency’s dealing with policy as different from the agency’s discretionary administrative functions. The committee should be able to do this at any time of year and the reference to the committee should not be dependent on acceptance by a committee majority (the majority being made up of the same party as the government). Reference by a minority or by a single member of the committee should suffice to get the issue on the agenda, with committee rules to be established to prevent abuses, if any, as experience is gained.

Standing committee operations

On the specifics of the standing committees’ operations:

  1. As well as, or instead of, a provision for members of the committee to pool their time, as you suggest, it would probably be useful to liberalize the time provisions generally if, as you recommend, the committees are made smaller and more stable. Members of third and fourth parties, or even of reduced second parties whose collective numbers, particularly on small committees, may not be great, should nevertheless have full opportunity to proceed with complicated lines of questioning on their own. So should dissenting members of government and main opposition parties who, on any particular issue, may not be able to acquire pooled time from their colleagues. Furthermore, with the committee secretariats that you recommend, and which are long overdue, much basic information that now takes up committee time will be on hand, and can be scrutinized by committee members beforehand. This allows the committee more time for lines of questioning that will increase agency accountability.
  2. The study appears to deal with committees as unities, whereas they are also collections of individuals from different parties and with different perspectives. These differences in committees, as in the House as a whole, enhance accountability. Minority members in a committee should be given as much freedom of action in committee as possible, including the ability to get issues on the agenda and to bring witnesses before the committee.
  3. The committee secretariat, in each case, in addition to its general information function, should also be open to requests for particular kinds of information from individual committee members, and the committee members’ research assistants. Presumably, a general understanding, or preference, will be established regarding the line between the secretariat’s function and the function of committee members’ own research assistants, in procuring desired information. In that regard, the research staffs of committee members or their caucuses might also be increased to match the enhanced role of the committee process in reviewing administrative agencies and in other functions.
  4. In committee findings and recommendations, full scope should be given to the inclusion of dissenting opinions.
  5. In at least one jurisdiction, the United States legislative committees have their own counsel who may undertake questioning of parties appearing before the committee. Indeed, there are “majority” and “minority” counsel. Administrative agencies themselves–those that hold public hearings–of course, use legal counsel for questioning to a greater or lesser degree, depending on the role agency members themselves wish to play. In any case, consideration should be given to allowing a parliamentary committee collectively or by party, or by individual member (a) to use “counsel” or research expert for some of the questioning, and/or (b)to back up the committee member by being present and available during the committee’s proceeding for consultation, as a line of questioning proceeds. As your study points out, agency representatives and others who appear in connection with agencies are experts, whereas the committee member with heavy responsibilities as a Member of Parliament is generally speaking a generalist. In the face of a skilfully evasive witness, the committee member, regardless of prior preparation, might be helped by special expertise on hand. This is something members of Parliament, as committee members, will no doubt have opinions on.
  6. Provision should be made for close follow up where (a) the agency representatives appearing do not have on hand particular information sought by the committee, or (b) the agency representatives undertake to the committee certain commitments. In the former case, any findings of the committee should be delayed until the missing information is available. If at all possible, the agency representative should re-appear to answer questions about the added information if any committee member so requests. A deadline should be set for the reception of this information, and it should be circulated to all members of the committee. In the latter case, a deadline should be established for the undertaking of the commitment, failing which the agency should be immediately recalled before the committee. Presumably, the secretariat will look after ensuring that follow up requirements are met, and that the appropriate supplementary hearings are scheduled.
  7. Consideration should be given to the review, by the appropriate standing committees, of major appointments to agencies that fall under the committees’ mandates before appointments are officially confirmed. There are more rigorous possibilities, too, which should be discussed. For example, for certain major appointments, failing approval by the relevant standing committee, the Cabinet either surrender the appointment or place it before the House for debate in a mini-format. Accountability to Parliament of major agency appointments, through prior review, is as important, in its own way, as accountability of the agency to Parliament for its subsequent conduct, particularly since, in the latter case, the standing committee has no real power of its own other than the power of review and recommendation.

Enhancing direct accountability to the public

The above suggestions deal with ways that administrative agencies may be made more accountable to the public by being accountable to Parliament, the public’s elected (in the case of the Senate appointed) legislative body. Means must also be sought, with the aid of legislation and with standing committees, to make administrative agencies more accountable to the public directly–the public as individuals or groups–regarding the proper conduct of the agencies’ affairs.

  1. Some high profile, specially mandated office should be created to review agencies’ procedures, to hear public complaints about procedures, to publicize weak or faulty procedures, and to maintain pressure on the agencies and government until reform is implemented. Complaints about procedure now, including detailed studies such as those prepared by the Law Reform Commission, tend to sink into the vast ocean of government and surrounding paper. The Joint Committee, as you describe it, does not seem appropriate for this particular reform role, whatever its other problems. What we are looking for, perhaps, is a procedural ombudsperson, acting vigorously for the public, and able to do so expeditiously and with persistence. Alternatively, instead of a single office, one person in each committee secretariat could be mandated to act as public advocate on the agency procedures reviewed by that committee. The question, moreover, could be given priority on committee agendas. Presumably, the specialists on this from each secretariat would have liaison.
  2. Where appropriate, procedural requirements correcting faulty or weak procedure should be written directly into legislation, providing stronger grounds for judicial appeal in the case of questionable agency conduct.
  3. Each committee and its secretariat should set a special priority for the appearance before the committee of a broad range of witnesses and dissenting opinions, particularly so in the cases of committees reviewing regulatory agencies like the CTC and the CRTC where the agency may become captive to the industry it is supposed to regulate. With the CRTC and broadcasting, for example, the standing committee traditionally brings in representatives of the industry associations but rarely, if ever, spokespeople of the “public interest,” either representatives of public interest organizations or knowledgeable individuals. This omission is a crippling one for making agencies accountable to the public and to their enabling legislation, through committee review. These valuable and necessary sources of information for the committee do not usually have a well-financed presence in Ottawa and need to be actively sought out and put on the agenda on a continuing basis. The committee should also cover costs to the witnesses, including a fee for time.
  4. We have some hesitation in agreeing with your recommendation that appeals to cabinet from decisions of an agency be eliminated, although we understand well, and in detail, the arguments for such a step. One could also argue, on the other hand, that wherever an agency decision has a policy factor in it, appeals should be allowed. Moreover, one would have to go much further than “to lay down the broader policies and priorities for the agencies” to eliminate policy factors, sometimes quite important policy factors, from agency decisions. One could even argue, theoretically, that all special cases have a policy factor in them, and that all cases are special. Is it not better to leave the line between policy cases (where the political appeal process has a rationale) and non-policy cases to convention and precedent established by previous cabinet actions, and the discussion surrounding them, and to the general understanding of what the political appeal provision is for? Furthermore, the suggestion that appeals should be eliminated because the reversal of an agency decision “change(s) the law retrospectively in respect of individual cases” does not apply in the case of every agency, where the issue of appeal may have broader immediate import and may be of such consequence that to let it go by, only to amend the statute later, is to close the barn door after one or more important horses have bolted. Of course, having policy decisions made this way by, in effect, order in council rather than legislation, and after a time-consuming administrative procedure, isn’t desirable. Unfortunately, however, the sequence of events is sometimes allowed to follow that order, and sometimes the fault is expressly with the agency for not thinking of, or refusing to refer a policy heavy matter to Parliament, even when the agency is asked to do so by members of the public.

We would like to see this matter more fully discussed, with the case of different agencies differentiated where appropriate (the Immigration Appeal Board from the CRTC, for example). However, the first step, as your study points out, is to recover for Parliament as much of a role in creating policy as possible, and to ensure that the creation of new policies is taken on vigorously, expeditiously and in sufficient detail as new situations present themselves. This latter task is not an easy one in a political world.

We hope these comments will be of help to you. We appreciate having the opportunity to make them.