08 July 2007

Key Green provisions delayed to October 9 and beyond

Members of the House of Assembly will be spending their constituency and other allowances until after the next election as Bond Papers reported on 22 June 2007.

In addition, as The Telegram reported on Saturday, those members won't have to worry about accountability since the sections of the Green bill bringing the legislature under the province's access to information laws also won't take effect until October 9, 2007.

But even then members may not have to worry about the public discovering how they spent their allowances in the months leading up to the provincial election. Even on October 9, the access to information laws would not apply to the pre-election period. Outgoing speaker of the legislature Harvey Hodder told the Telegram:
"That has not been clarified," Hodder told The Telegram. "The intent of the legislation is that it would be on a go-forward basis."
A closer examination of the bill passed in the legislature in June 14 show that other key accountability provisions of the bill won't come into effect until October 9 or, in one case, August 2008.

The delayed provisions are:

1. October 9, 2007: Section 24, which provides a mechanism to deal with appealing expense claims that are rejected or that would allow members to obtain an opinion from the speaker on the permissibility of an expenditure before it is made.

2. August 31, 2008: Section 28(3)(l) that provides the clerk of the legislature, in his or her capacity as chief financial offer is responsible for "certifying to the commission as required that the House of Assembly and statutory offices have in place appropriate systems of internal control and that those systems are operating effectively".

Section 28(3)(h) as it relates to statutory offices is delayed until April 1, 2008. This section establishes the clerk is responsible for "authorizing and recording all financial commitments entered into on behalf of the House of Assembly and statutory offices."

In his report, Chief Justice Derek Green specifically notes a failures by the Internal Economy Commission and certain officials to certify compliance with established rules and procedures:
Over the years, the House and the IEC have repeatedly emphasized a commitment to the imperatives of transparency and accountability. Yet, as the forgoing indicates, there is reason for concern with respect to the manner in which the IEC and the administration of the House has handled its important obligations with respect to: compliance, reporting and public disclosure. [Emphasis added]
3. October 9, 2007: Section 31 requiring the clerk of the legislature to be accountable to the Public Accounts Committee of the House "for measures taken to organize the resources of the House of Assembly service to deliver the programs in compliance with established policies and procedures; measures taken to implement appropriate financial management policies; measures taken to maintain effective systems of internal control; certifications that are made under section 29; and performance of other specific duties assigned to him or her by or under this or another Act in relation to the administration of the House of Assembly service and the statutory offices."

That section also enables the clerk to seek advice from the deputy attorney general or the comptroller general in instances where a disagreement exists between the clerk and the Speaker on a matter of policy.

4. October 9, 2007: Sections 35 to 42 of the ethics and accountability section of the legislation that allow for the establishment of a code of conduct for members of the legislature, give a mechanism for lodging a a complaint against a member and resolving the complaint.

In recommending this section, Chief Justice Green noted:
In making this recommendation, I recognize that there are more elaborate mechanisms employed in some jurisdictions with respect to the way in which allegations of a breach of code of conduct may be investigated and enforcement action taken. I have declined to recommend a more elaborate scheme at the present time. This is partly because the provisions of Part II of the House of Assembly Act dealing with conflicts of interest of Members are not technically within the scope of my mandate and the whole area of the code of conduct, including conflict of interest, should be reviewed comprehensively. That would require a more detailed analysis than I was able to give to the matter for the purposes of this report. I regard the foregoing recommendation, therefore, as an interim measure, but an interim measure that should be proceeded with forthwith with a view to restoring public confidence. [Bold and italics added]
5. October 9, 2007: Section 53, which establishes clear a right of any person to seek a mandatory order directing "a member, the speaker, deputy speaker, clerk, clerk assistant or the commission" to observe or comply with a duty imposed under the Green Act.

Chief Justice Green described mandamus as another layer of accountability:
It is not unreasonable, therefore, that members of the public who become aware of a major failure to comply with a statutory duty should have an opportunity, out of sense of public duty, to seek enforcement of those duties through the courts where they perceive that others in the system are not taking appropriate enforcement action. [Italics added]
6. October 9, 2007: Section 67 which brings the House of Assembly - with certain specific exceptions - under the Access to Information and protection of Personal Privacy Act.

7. October 9, 2007: The Rules, contained in the schedule to the bill that among other things, prohibit members from spending public money on partisan activities or on gifts and donations, hold members personally liable for overspending and require members to keep records of spending.

Even the manner in which the Green bill was passed, along with its amendments delaying some provisions, repeated a pattern Green criticised severely. In a section of chapter four, titled "An ever-weakening legislative framework" Green described the unsatisfactory manner in which the members of the legislature amended the rules governing House operations:
When the IEC wished to change policy, it did so. If such policy was inconsistent with the rules, it changed the rules. If such policy was inconsistent with the legislation, the legislation was amended - and amended expeditiously. Changes to the Internal Economy Commission Act tended to be made in the last day or two of a session when efforts seemed to be focused on concluding business in order to close the House. From our review of Hansard, it appears the changes would be made with the pre-approval of all parties, minimal notice, minimal debate in the House and unanimous approval. [Emphasis added]

The reality is that the normal checks and balances that are inherent in an adversarial parliamentary system do not effectively operate where the subject under discussion directly engages the self-interest of all members regardless of political affiliation. Some mechanism must be found to improve the likelihood that important changes to the legislative framework involving MHA compensation and allowances will receive considered reflective attention in the House and cannot be pushed through without debate in the rush to bring a legislative session to a close.

When the bill was hastily passed on June 14, members of the legislature who spoke publicly left the clear impression that the entire bill was in effect immediately. In the wake of the first Bond Papers report, Deputy Premier Tom Rideout initially dismissed the matter as "poppycock". Later in the day, he admitted to reporters that the rules would come into effect on October 9.

He made no mention of other sections of the bill that would be delayed and offered no explanation beyond mentioning that implementation of some provisions required staff training and new software.

In addressing the issue of delayed implementation of the access to information provisions, Rideout said:"There was no recommendation (from) Green as to when it came into effect, so nobody, including myself, read anything into this...".

In fact, Recommendation 80 described the need to introduce the bill as soon as possible for debate and enactment with the attached schedule of rules being presented forthwith. "Forthwith" means "immediately; without delay or hesitation; with no time intervening."

In Rideout's view, by contrast, some provisions will come into effect today, while others will come tomorrow "and tomorrow is October 9". If tomorrow will not arrive until October 9, April 1 and, in one instance, August 31, one might wonder exactly when "today" is.