Watchdogs or Poodles? (Part 6 of 8): Independent Agencies in the Supplicant Society

Bryan Schwartz, Commentary, Taxation, Uncategorized

Manitoba’s chronic reliance on transfer payments, its ever-inflating public sector and its increasing concentration of sectoral decision-making power in the hands of a few on Broadway is having an enervating effect on the province, Law Professor Bryan Schwartz argues in The Supplicant Society. It doesn’t have to be that way, Manitoba can change for the better, Schwartz demonstrates in this series for the Winnipeg Free Press and the Frontier Centre for Public Policy. The series continues weekly on Saturdays, ending on March 5. Footnoted versions of this article can be found at WinnipegFreepress.com and at www.fcpp.org.

During the Premier Gary Doer era, the self-sustaining nature of the supplicant society was shielded from inquiries and policy-making processes that might have asked hard questions or produced any real change.
Doer came to power largely because Gary Filmon did the right thing when a scandal broke. There were allegations that Conservative operatives had encouraged and financed an Aboriginal party to runin a riding in the 1995 election and thereby drain votes from NDP candidates. Filmon initially said the Chief Electoral Officer should investigate. Doer demanded an independent public inquiry.1 Filmon, to his credit, agreed. Its investigation turned up some previously secret machinations that tarnished the image of the government, contributing to its defeat.2 The lesson Doer learned, apparently, was never hold a public inquiry that might hurt your partisan interests. When questions were raised last year about NDP expense claims during the 1999 election, the Conservatives demanded a public inquiry, and rightly so.3
Why had the office of the Chief Electoral Officer come down very hard on the losing Conservatives for inadvertent breaches of election laws—yet gone so soft on the winning NDP when its operatives engaged in calculated and arguably illegal measures to secure public financing? Maybe the treatment really was principled and consistent—but how could the public know without an independent inquiry? Doer’s response: trust the Chief Electoral Officer.4
The current government is reluctant to hold a public inquiry when its own image is vulnerable. For example, it did not support a public inquiry into the Crocus Investment Fund scandal when provincial ministers were under fire.5 However, when the primary Taman inquiry targets were an independent prosecutor and a municipal police body, no stone was left unturned.6
There is a conflict of interest when a government must decide if it will call an inquiry into its own conduct.7 The solution is to introduce a major role for an independent official. That person would be a preliminary investigator examining the need for an inquiry, considering carefully its scope and the protections to be given to those under scrutiny, and would make a decision or a public recommendation to the government of the day. The federal government of late has successfully used preliminary investigators to look at issues such as setting up an inquiry into the Air India disaster and the Mulroney scandal. It is important for the public to have a justifiable confidence in the impartiality of senior officials, including the chief electoral officer and provincial auditor, who report directly to the legislature and act as referees in the democratic process. 
There should be a review of the provisions concerning the appointment and removal of such officials to determine whether they are effective in ensuring independence. The remuneration of these officials should be tied by legislation to an objective benchmark rather than left to the free discretion of current or future power holders.
The administrative agencies that scrutinize government decision-making are filled at the discretion of the government. To some extent, this is legitimate. Agencies are often charged with policy-making, and in some contexts, it can be appropriate for a government to appoint senior officials who share the government’s philosophy. But competence and integrity should be major factors as well. Manitoba is behind other provinces in bringing more transparency to the appointment process: Qualifications should be defined and made public and the relevant background, education and experience of persons appointed should be made clear.
Under both Doer, and his successer Selinger, the NDP government’s approach to scrutiny of its administration and policies by opposition parties has been just as uninspiring. Opposition members have little in the way of research funding or staff. The legislature sits so infrequently that Question Period is too rare to make a proper impact. Legislative committees meet only when the Assembly is in session. If the opposition parties do discover anything, they have pitiably less money to spend explaining it to the public than does the government.
Democratic reform measures must include:
 - Minimum sitting days for the Assembly, and the authorizing committees to meet more extensively;8
 - Providing more resources to opposition caucuses;
 - Raising the limits on spending by opposition parties during and outside of elections; and,
 - Ending the use of taxpayer money to subsidize partisan propaganda dressed up as government information.
These reforms are not sufficient in themselves to produce a balanced, competitive, and free political culture. Manitoba’s political culture would remain distorted by the dominance of the provincial government over its dependant businesses, non-profits and local governments, but opening up the democratic process could be a crucial beginning.

 

ENDNOTES

 

1. Hansard, Thursday, June 25, 1998. 4th-36th Vol. 71B – Oral Questions: Doer and see Bryan Schwartz, “Doer sings different song,” Winnipeg Free Press, June 24, 2009, A14. Available online at http://www.winnipegfreepress.com/opinion/westview/doer-sings-different-song-48996991.html.
2. See Elections Inquiry Commission (Commissioner Alfred M. Monnin), “Report of the Commission of Inquiry into Allegations of Infractions of the Elections Act and the Elections Finances Act during the 1995 Manitoba General Election,” March 29, 1999.
   3. Bruce Owen, “Opposition pounds NDP as session ends: Tories, Liberals try to make hay over 1999 election,” Winnipeg Free Press, June 12, 2009. Available online at http://www.winnipegfreepress.com/local/opposition-pounds-ndp-as-session-ends-47912392.html.
   4. Ibid.
   5. Crocus was a Labour Sponsored Venture Capital Corporation. Investments in it were subsidized by govern-ment tax breaks. It went ito receivership admidst controversy about how it was managed, including ques-tions about whether shareholders were informed in a timely manner about losses in the value of its assets.
   6. The Taman Inquiry was a public inquiry into the conduct of the police, independent Crown prosecutors and victim supports services in the aftermath of an incident where an off-duty police officer was responsible for
a fatal car accident.
After five year old Phoenix Sinclair was murdered after child and family services returned her to the custody of her birth mother, the NDP government promised to commission a public inquiry. That was in in 2006. Citing concerns over prejudicing criminal proceedings, the government still has not carried through. Opposition critics have alleged that the government wants to stall the inquiry long enough to ensure that it does not affect the government’s prospects in the next election.
   7. For a more detailed description of these ideas see Bryan Schwartz and Andrew Buck, “Articles on Democratic Reform: Inquiries,” Underneath the Golden Boy (2008) Volume 5, p. 13.
   8. See Bryan Schwartz and Andrew Buck, “Minimum Sitting Dates,” Underneath the Golden Boy (2008), Vol. 5, p 39.