‘Open, Transparent and Accountable’

First in a three-part series

During the spring of 2001 election campaign, advocates of open government had every reason to be confident.

We would have “the most open, transparent and accountable government in Canada,” according to a brochure issued by the B.C. Liberals in 2000, A New Era in Public Service.

The Liberals didn’t stop there: “If government followed this approach, you may not always agree with its decisions, but you would always know how those decisions were made.”

To advocates of open government, these words were pure music. The Liberals even acknowledged in the brochure that an open-government policy could prove annoying at times. “We know this transparency would not be without political embarrassments. But we believe government should not shirk from making tough decisions in public . . . It’s time to put the public interest ahead of partisan interests.”

So how well did the Liberals live up to their promise?

Though the record is mixed, unfortunately the promise has been honoured more in the breach than the observance. To their credit, the Liberals now require lobbyists to register their spin agendas on a list made public. And finding out top salaries of officials is a lot easier.

But the Liberals have cut the Information and Privacy Commissioner’s budget and made getting freedom of information (FOI) request results slower. They’ve been caught formally tracking FOI requesters, the better to “handle” potential bad news. They’ve made something of a charade of their vaunted “open” cabinet meetings. And immediately upon taking power, they moved to deny opposition status to the NDP’s two representatives in the Legislature, undercutting a powerful check on the sitting government’s accountability.

The Lobbyists Registry

To be sure, since forming the government, the Liberals have taken several steps in the direction of openness and accountability.

Perhaps one of the most useful for government-watchers is the lobbyists registration act, which requires anyone lobbying the provincial government on behalf of a corporation or non-profit organization to place their names on a publicly-accessible registry.

In 1992, the then-government of the NDP’s Mike Harcourt took a significant step in curbing the power of lobbyists by banning them from the speaker’s corridor in the legislature. But for reasons unknown, the New Democrats failed to take the next step by requiring them to register — something that Ottawa had done as far back as 1988. When I asked then-attorney-general Andrew Petter about the idea in 2000, he replied: “I haven’t thought about it.”

Fortunately, the Liberals not only thought about it; they acted. For that, advocates of open government should be truly grateful.

The registry is far from perfect, as The Tyee’s Scott Deveau pointed out But it’s a lot better than what we had before: zilch.

Disclosing Top Public Salaries

I once asked the University of Victoria for the contract of its then-president, David Strong. The university declined to provide one informally, instead insisting that I file a formal FOI request. Despite there being precedent for the full release of senior public-sector contracts, the university provided me with only an edited copy: Three sections of Strong’s contract were deleted. Naturally, I appealed the deletions, and with the help of the information commissioner’s office, I was eventually given the contract in its entirety. (As it turned out, there was nothing particularly scandalous about the severed sections.) Thanks to the B.C. Liberals, that rigmarole is no longer required.

On October 21, 2002, skills development and labour minister Graham Bruce introduced Bill 66, the public sector employers amendment act 2002. The bill moved quickly through all three stages in the house, and was given Royal Assent just 10 days later. Though the measure received little public attention, one section of the bill constitutes an important step forward in government openness.

According to section 14.8 of the bill, contracts of senior public-sector employees are officially public documents. The provision applies to all excluded public-sector staff earning over a certain amount, though the cabinet has the right to exclude particular positions. The cabinet has since fixed the threshold for disclosure at the $125,000 salary level.

What is particularly welcome about the disclosure provision is its strength: Any public sector contract that includes a section guaranteeing the contract’s confidentiality is “null and void.” As well, the law applies retroactively: Any contract that was in force when the act took effect is covered, along with newer ones.

From the viewpoint of open government, 2002’s Bill 66 is one of the most praiseworthy — if unheralded — of all measures implemented by the Liberal government.

Stiffing the Opposition

If only the Liberal record were so consistently enlightened. Instead, within six weeks of being sworn in, the Liberal government made a move that arguably took the province back to the dark ages in accountability.

The issue was the status of the two-person opposition caucus, made up of New Democrats Jenny Kwan and Joy MacPhail. According to public statements by premier Gordon Campbell, the two seats were insufficient to qualify the New Democrats as the official opposition. If so, the consequences would be far fewer resources for the opposition to research the activity of the government.

Why should the Liberals care? Because the less scrutiny there is of a governing body, the more prone it is to performing badly. But that’s not the way Campbell and his associates saw it in those early days of their government.

The premier had claimed publicly that B.C.’s constitution act specifies that two seats are insufficient to form the official opposition. In fact, it does no such thing: the legislation contains no definition of the term.

When there’s a question of parliamentary law in B.C., the primary authority is the text written by the legislature’s own clerk, George MacMinn, Parliamentary Practice in British Columbia, 3rd Edition (1997).

In the alternative, the British book by Thomas Erskine May, Treatise on the Law, Privileges, Proceedings and Usage of Parliament, is used. The latest, 23rd edition, was published in 2004.

As it turns out, MacMinn’s book is silent on the issue of the requirements for forming an official opposition. May states plainly that the official opposition “is the largest minority party which is prepared, in the event of the resignation of the government, to assume office.” In fact, May couldn’t have been much clearer: The two-member NDP caucus should be the official opposition. Indeed, under this definition, even one seat would have been sufficient.

But Liberal speaker Claude Richmond was having none of it. The New Democrats would be known as merely the opposition, and would not be entitled to the status of “official opposition.”

Decision denied NDP nearly $2 million

In a July 12, 2001, statement justifying his ruling, Richmond cited just one text: An Encyclopedia of Parliament. Completed more than 40 years earlier, the obscure work was written by two Rhodesians (as they were then known), Norman Wilding and Philip Laundy.

According to Wilding and Laundy, the parliamentary opposition consists of “the party in the house for the time being in the minority, organized as a unit and officially recognized, which has had experience of office and is prepared to form a government with its leader as prime minister, when the existing ministry has lost the confidence of the government.”

However, this definition is of “the opposition” — and not of “the official opposition,” which is what is at stake here.

Wilding and Laundy’s book contains no definition of the term “official opposition.” In other words, Richmond misquoted an obscure text in relying on it to back up his ruling that the NDP did not form the official opposition.

The cost to the NDP of Richmond’s ruling is in excess of $450,000 per year, which is the additional funding the caucus would have received as the province’s official opposition. Though, with the help of a handful of very talented staff, Kwan and MacPhail have done a commendable job in holding the government to account, even New Democrats admit they likely missed some issues as a result of losing the “official opposition” entitlement.

“The impact of what we could have had done [with the extra revenue], I don’t think can be overstated,” Clay Suddaby, the executive director of the NDP caucus, told The Tyee.

The Liberals may well have felt comforted by the whack Richmond landed on the New Democrats by means of his ruling, but a government without the strongest-possible opposition is at risk of becoming overconfident and apt to make mistakes.

Tomorrow: Part II - The Liberals and Freedom of Information Requests

Russ Francis is a veteran legislative reporter based in Victoria. He writes for Monday magazine and a variety of other publications. This article is adapted from his chapter in Liberalized: The Tyee Report on British Columbia under Gordon Campbell’s Liberals.