The Nova Scotia government's attack on accountability and transparency

A new bill would neuter the provincial auditor general

The Conservative government of Nova Scotia has introduced a bill that would destroy the independence of the auditor general and reduce access and transparency for one of the most important, impartial accountability institutions in modern government.

The auditor general is one of the most important and visible of the officers of Parliament in Canada’s political system. Officers of Parliament are actors that perform crucial oversight functions over key areas like public spending, privacy, freedom of information, and conflict of interest and ethics. Importantly, these actors assist the legislature in performing its role of holding the government of the day accountable.

One of the key features of officers of Parliament is that they are independent of the government. Instead of reporting to government, they report directly to the legislature, usually in a public and transparent manner. Reports of the federal and provincial auditors general are among the most widely reported on in the media because they often provide evidence about whether public spending has been responsible or effective. On occasion, AG reports expose corruption or scandal.

The Nova Scotia bill would make serious detrimental changes to the legislation governing the auditor general that, if passed, would mean the AG would no longer be a true officer of Parliament.

Among a litany of important changes, the bill would allow the government to remove an auditor general for any reason, on the passing of a two-thirds vote of the House of Assembly. The existing legislation only permits removal for cause or incapacity on the passing of a two-thirds vote. Under the present situation, the retention of the two-thirds vote requirement does little to ensure the independence of the AG because the Conservative government possesses 43 of the 55 seats in the legislature. Thus, the removal of the ‘good behaviour’ protection afforded the AG should be seen as nothing short of the removal of the AG’s independence from government.

The bill also requires that the AG submit all reports (except those concerning annual consolidated financial statements) to the relevant cabinet minister(s) instead of to the legislative assembly! The AG is restricted from submitting reports to the assembly or otherwise making the public for 14 days or for however long the government wishes to set out in regulations. Cabinet members will be empowered to make reports ‘confidential’ if they determine it may be in the “interests of public safety or otherwise in the public interest”, the latter part of that clause a gaping loophole against transparency.

These provisions of the bill, coupled together, are plainly designed to prevent the release of incriminating or embarrassing reports entirely. This is an appalling attack on the very role of the AG, seeking to neuter the office’s effectiveness in providing transparency and aiding the legislature in its accountability role.

Other provisions are designed to make it more difficult for the AG to access government records. Under the existing legislation, if the AG and an audited government entity disagree about whether specific information is subject to privilege, either party can go to court for a determination. The government’s bill removes these provisions and replaces them with provisions empowering the attorney general (a member of the cabinet) to designate any record or information as subject to solicitor-client privilege, litigation privilege, settlement privilege, or public interest immunity. The bill includes a clause that states that such orders by the attorney general are, “for the purpose of this Act, conclusive proof that the record or information described therein is subject” to privilege. The bill also sets out that any judicial review of such determinations must be on a standard of reasonableness.

The effect of these provisions will be to strengthen the government’s ability to hide records, thereby weakening the AG’s ability to access them and further eroding transparency in governance. As I’ve written before, Canada is already one of the most opaque democracies in the world.

The bill also repeals a requirement that the AG conduct reviews of the revenue estimates, further weakening accountability and damaging the legislature’s ability to hold government to account in one of its most important budgetary functions.

In short, the government of Nova Scotia is seeking to destroy one of the oldest and most important institutions relating to transparency and accountability. In an age where the news media is in a shambles and we’ve eroded the public’s ability to identify fact from fiction, any erosion of checks on executive power in contemporary politics should be seen as completely unacceptable.

This is no minor story. The AG is no mere technical or arcane office of the state. This is a government launching nothing short of a full-on assault on an officer of Parliament and, indeed, the legislature itself.