Proceed with caution on cutting watchdogs, Legislature told

The New Brunswick Legislature is being warned to proceed with caution on a review of independent 'watchdogs' such as the auditor-general, the ombudsman, and the official languages commissioner.

Critics say the fast-track review, which could merge or cut some of the nine positions, threatens one of the few checks and balances in the political system.

Legislative officers represent "the little bit of power left" outside the executive branch of government, according to Progressive Conservative MLA Brian Macdonald.

But others say it's possible to cut without endangering that oversight.

Former ombudsman Bernard Richard, who authored a 2011 report that called for cutting the number of posts from eight to six, says his recommendations would have little or no effect "on the independence and the ability of the officers to play their roles."

Richard also recommended saving money by having the legislative officers share office space and staffs.

Speaker Chris Collins said Tuesday Richard's 2011 report is being "dusted off" as the basis for the new review.

It's to be completed by Jan. 15 so any changes can be the provincial budget in March.

Eight officers are appointed by the Legislature: the auditor-general, the chief electoral officer and supervisor of political financing, the ombudsman, the access to information and privacy commissioner, the conflict of interest commissioner, the commissioner of official languages, the consumer advocate for insurance, and the child and youth advocate.

A ninth position, the lobbyist registrar, has been created by new legislation but hasn't been filled.

Donald Savoie, a leading expert on governance, says he'd cut the number to four:

• The auditor-general, "because it's become part of our democracy," he says.
• The chief electoral officer and supervisor of political financing, who ensures elections are run fairly.
• The official languages commissioner. "Good luck to anybody trying to tear it down," Savoie says.

• The ombudsman, who would absorb the remaining positions. "Grab everything else and leave it at that," he says.

Clearconsensus needed

When Richard was ombudsman, he was also the child and youth advocate. And in the ombudsman job, he handled right-to-information and conflict-of-interest complaints.

His 2011 review recommended combining the consumer advocate for insurance and conflict commissioner roles with the ombudsman's job.

Macdonald, who sits on the committee of MLAs that ordered the review, says merging or eliminating officers could erode one of the few mechanisms for independent oversight of the government.

With political decision-making centralized in the premier's office at the expense of the Legislature, legislative officers represent one of the few ways of scrutinizing the government, he says.

"When I see the executive branch turn around and question them under the mantle of cost savings, I'm concerned, especially when it's initiated in secret," Macdonald says.

Savoie says as long as the remaining officers have the same powers, that's not an issue. "Sure, there's a concentration of power, but we're not saying abolish all independent officers."

But Savoie says the Liberals could address that by giving legislative committees a more independent role.

"That's where democracy should start," he says, "with elected MLAs we elect, not with people we appoint."

On Tuesday, Speaker Chris Collins said the all-party Legislative Administration Committee, which meets behind closed doors, reached "a clear consensus" on the need for a review.

Macdonald says because the rules require LAC's discussion remain secret, he's not allowed to comment on how Collins described the meeting.

But "I don't think everyone understands the meaning of the word 'consensus,'" he adds.

"The timing couldn't be worse."

The legislative officers are scheduled to meet Thursday with the Legislature's Standing Committee on Procedures, Privileges, and Legislative Officers. That public hearing would have been a better place to propose the review, Macdonald says.

"It calls into question: what is the motivation for the timing?" he says, suggesting "it's possible" the Liberal government is trying to rein in the officers, warning them to "watch what you say."

Richard, while he supports the review, says "the timing couldn't be worse" after two weeks of controversy over an investigation by Official Languages Commissioner Katherine d'Entremont.

Her decision to look at bilingual commissionaire services after her own encounter with a unilingual commissionaire has prompted calls for her removal. Premier Brian Gallant said she should focus more on "positive" issues.

With the Liberals now asking for the review, "obviously some people will draw inferences there," Richard says. "I think that's a major issue, and a concern on my part, certainly."

Macdonald says while there's a debate over d'Entremont's "individual actions as an individual in that position," questioning the role itself "is a different discussion.

"To conflate the two is risky," he says. "I believe the role of language commissioner is important to our province."

The elimination or merging of the language commissioner position would even provoke a constitutional challenge, according to Universite de Moncton law professor Michel Doucet.

While the role isn't in the Constitution, Doucet says there's an argument it's protected under Section 16(3) of the Charter of Rights and Freedoms, which says Parliament and legislatures can "advance the equality or status or use of English and French."

That section, along with existing court rulings, might require the government to justify how eliminating or diminishing the commissioner's role advances linguistic equality, Doucet says.

With no commissioner, "there'd be no mechanism for people to protect their rights other than going to court," Doucet says.

Collins said on Tuesday that linguistic rights "will be an important point" during the review and "will be protected in the same way.

"There won't be any change. We're trying to find efficiencies in delivering these protections."