:
Thank you very much, Mr. Chairman.
I'd like to introduce my small, high-powered team, composed of Marie-Andrée Lajoie, who's the clerk assistant of committees. She is actually representative of the team of people who are working over in the committees directorate and is familiar with the various situations and she has a better hands-on grasp of the situations that have occurred in the various committees, so I have her here for important backup and as a security blanket of some dimension.
If I may, Mr. Chairman, I'd like to start with a brief opening statement, and then we can go straight to questions.
I'd like to thank the committee for inviting me to appear before you today concerning these two procedural issues—namely, rendering public in camera committee proceedings, and committees continuing to sit during divisions in the House. I'll take these one after the other.
First, let me look at the question of rendering public in camera committee proceedings.
It should be noted from the outset that when committees decide to receive evidence in camera, it's usually because they're dealing with sensitive issues: personnel matters, issues that are or may one day be before the courts, matters of national security, issues dealing with commercially sensitive information, or very often simply issues dealing with how the committee intends to proceed on a particular matter or issue itself. To allow people the freedom to speak absolutely openly, those meetings are often held in camera.
[Translation]
Consequently, committees may wish to exercise caution when deciding later to disclose sensitive information, especially when witnesses had been assured that their testimony would not be made public.
[English]
Over the years, evidence received in camera by parliamentary committees has been made public on several occasions. I can provide the committee with a list of various examples, going back as far as 1978. The reasons for rendering public in camera proceedings usually falls into three categories: first of all, to correct situations where the committee had inadvertently continued to sit in camera when it thought it had come out into public session; secondly, where the committee considered it important that a debate held in camera among members be made public; and thirdly, when the committee felt that evidence heard from witnesses in camera should be made public.
[Translation]
On all occasions, with one exception, motions to release transcripts of in camera meetings, made in committee, were passed with majority vote.
Here are more details about the 1978 case. The only exception is when the House ordered a committee to disclose evidence heard in camera. This was in 1978. Through unanimous consent, the House passed a motion ordering the Standing Committee on Justice and Legal Affairs to provide a commission of inquiry with the transcripts of two in camera committee meetings held during a previous session.
[English]
The order of reference stipulated that the terms and conditions under which these documents would be made available were to be established by the committee. A motion was adopted by the committee, by a majority vote, requiring that the transcripts be examined by representatives of the commission in camera and that they be returned to the committee immediately after the examination.
There is also a more recent case, in 2004, of evidence taken by the public accounts committee. On April 1, 2004, the Speaker delivered a ruling concerning a decision made that same day by the Standing Committee on Public Accounts to release in camera testimony taken during a previous session, specifically on July 9, 2002. The committee had adopted a motion in June 2002 agreeing that the transcript of that meeting would be made public three years from the date of the meeting if criminal charges had not been laid relating to the issues discussed; or if criminal charges had been laid, after all court proceedings, including appeals, were completed. But the witness in question agreed to waive the confidentiality of his 2002 testimony before the committee, and after a long debate and a number of challenges made to the committee chair's rulings, the committee adopted a motion on a recorded division to immediately render his testimony public.
In response to a question of privilege raised in the House, the Speaker ruled that in keeping with all rulings concerning the internal proceedings of a committee, he could not intervene. He also indicated that if the House had concerns about how the committee was conducting its work, it could direct the committee by way of a motion of instruction, moved either under private members' business or by unanimous consent.
In preparing for my appearance today, some research was undertaken regarding practices in other jurisdictions. The result of this research has been distributed to you.
[Translation]
I would point out that the document outlining the rules and practices of various authorities in other jurisdictions is not complete. We are currently updating it; we have appealed to members of the Commonwealth and other jurisdictions in Canada.
[English]
This includes major jurisdictions and is correct as far as it goes, but we have some other interesting information that's coming from a number of the states in Australia, for example, and we'll be happy to give you a revised sheet that includes those practices.
[Translation]
This leads us to the items that must be considered in relation to this issue. When the committee considers the possibility of releasing evidence heard during an in camera meeting, it may take into consideration the six following important points.
To start,
[English]
who is present? Should a distinction be made between an in camera meeting where only committee members are present, such as the housekeeping and internal discussions that I referred to earlier, and an in camera meeting where witnesses are appearing and giving evidence?
Second, there is the quality of the testimony. Will witnesses refuse to appear or be less forthcoming even in camera, knowing that their testimony might one day be made public? Should witnesses be warned of this possibility prior to testifying in camera? By the same token, will members feel more constrained in their comments if they know these may not remain in camera?
Third, there is the important issue of advising witnesses. Should witnesses be warned of this possibility prior to testifying in camera? The example I gave you earlier, of the public accounts committee, suggests that there was an agreement reached with the witness about the terms under which he was testifying.
Then there is the matter of evidence taken in previous sessions or Parliaments. Should a committee make public in camera evidence received by a committee in a previous session or Parliament? Should the consent of the members who were part of the committee at that time be required? That raises other questions, of course. What if members of the previous committee are no longer members of Parliament? In this regard, it should be noted that committees have adopted, in the past, motions whereby transcripts of in camera meetings are to be destroyed at the end of a session, thereby putting paid to that particular difficulty.
[Translation]
There is also the issue of instructions from the House. If the House orders a committee to release evidence, should it first consult the committee? There is also the issue of substitutes and witnesses.
Finally, Mr. Chairman, in either case, must the consent of members replacing the regular committee members or that of witnesses at the meeting be obtained?
[English]
So those are some of the questions that need to be addressed as you deliberate on the way of proceeding in such very serious cases.
Briefly then, Mr. Chairman, if I may return to the second issue that brings me here today, which is to say the question of committees continuing to sit during divisions in the House, the matter was raised in the House on March 1, 2007, by the chair of the Standing Committee on Industry, Science and Technology. He raised the question of whether committees may continue to sit while members are being summoned to the House for a vote.
The Speaker, in his ruling on the matter on March 22, noted that Standing Orders 108(1)(a) and 113(5) clearly confer upon standing and legislative committees the power to sit while the House is sitting.
[Translation]
Page 840 of the House of Commons Procedure and Practice reads as follows, and I quote:
While committees usually adjourn or suspend their proceedings when the division bells summon members to the Chamber for a vote, committees may continue to sit while a vote is being held.
[English]
Finally, Speaker Milliken noted that his predecessors had consistently ruled in support of this view; that is to say that committees were the master of their own procedures. He did, however, invite this committee to examine the issue and report back to the House.
A review of recent committee practice reveals that most committees do indeed suspend or adjourn when the division bells sound, although there are examples of committees continuing to sit. In most of these cases the committee makes a conscious decision to continue its proceedings or, as in the case of the Standing Committee on Industry, Science and Technology, it defeats a motion to adjourn. In one instance, the chair agreed to suspend only if there was unanimous consent to do so.
Some members have raised the issue of whether or not a committee chair could unilaterally suspend or adjourn a meeting when the division bells begin to sound. There is nothing we could find in the Standing Orders or in our procedural authorities that would confer such a power upon the chair. Indeed, the powers of the chair in this regard are limited to cases of serious and persistent disorder. I refer you to Marleau and Montpetit, at page 857.
[Translation]
So, there are at least two options that you may consider. First, the committee may consider the possibility introduced by Speaker Milliken in his March 22nd ruling, meaning that each committee adopts a routine motion at the beginning of each session, in order to establish how it will react if the division bell summons members during the committee's deliberations. I would be pleased to provide committees with an example of the wording of a similar motion.
This routine motion could also set out the procedure to be followed to adjourn a meeting if the committee does not have quorum following a recorded division in the House.
[English]
Alternatively, if the committee is of the view that committees should never continue to sit while divisions are occurring, it may wish to recommend changes to the Standing Orders limiting the powers of committees in this regard. Again, I would be pleased to suggest wording for such a change to the committee, if it so desires, but I should point out that traditionally it has been the way of the House to be very leery of limiting or in any way interfering in the notion that committees are masters of their own procedures.
I thank you for your attention.
[Translation]
I would pleased to answer any questions you may have
[English]
on either of these two issues.
I think I'll leave it largely to my colleagues to deal with the issue of the whole debate about whether there is a significantly appropriate process and sufficient sanction in place to prevent premature release of committee reports and sensitive in camera discussion or information.
I want to give a whip's perspective on the other issue that you addressed, which is the whole business about whether the committees—standing committees, legislative committees—if they're within the parliamentary precinct, should be required to suspend their meeting, their session, to allow their members to attend the House and vote on a recorded division in the chamber. This particular example, although it has arisen in previous Parliaments, arose, as you noted, with the industry committee.
As one of the four whips in the House, I would say that part of our responsibility as whips is the requirement that we do everything possible to ensure that our members are present for votes. Obviously our respective leaders look to us to ensure that happens.
I note that when Mr. rose in the chamber to raise this as a question of privilege, he talked about the conflict that would exist for each individual member of a committee where the majority is denying the minority the right to suspend and go to the chamber to vote, because obviously one of our primary responsibilities, if not the primary responsibility as a member of Parliament, is to represent our constituents in the chamber for votes. It's a responsibility that I would allege, regardless of party, all members take extremely seriously. Obviously you want to be in the chamber to cast your vote on behalf of your constituents. It's a fundamental tenet of our democracy.
On the other hand, because of the uniqueness of a minority government situation where, in this particular instance, the government could not withdraw quorum by walking out en masse and going to vote, they were faced with a dilemma and were torn between two conflicting responsibilities: one, to represent their constituents in the House of Commons at the vote; and the second, to perform their parliamentary duty of continuing to sit at the committee and ensure that their votes, if any, would be recorded there.
The committee was dealing with a sensitive issue at the time as well, and if the government members left, they were left with the difficult choice that they didn't know what would transpire at that committee. In this particular instance it was the government, but it could have been some other party that was faced with some similar dilemma. If they were into a process, for example, it's not unheard of at committee where even one of the smaller parties would be filibustering to try to prevent that committee from achieving some aim that was contrary to that party's position.
So I believe this is an extremely serious issue, and I personally believe, both as a whip and as a member of Parliament, that the Standing Orders should be adjusted, such as it is, I understand, in Britain, where they must adjourn at least temporarily to allow the members of any committee within the precinct to attend the vote. As way of background, that's where I'm coming from on it.
There are two potential courses of action that you've suggested to committee. One is that each committee at the beginning of a Parliament could adopt their own specific motion on how to deal with this potential conflict. In my view, that's a bit cumbersome. I think we'd be better off to adjust the Standing Orders themselves—which was your second point—so that all committees are uniform in how they approach this potential conflict for their members.
That said, you did raise this issue and I wrote it down. You said that traditionally the House has been leery of restricting the power of committees to be complete masters of their own proceedings. While I think all of us have some sympathy for that and we want to proceed very carefully, I wonder if you could indicate specifically what your concerns would be in that regard, why we wouldn't want to proceed with a standing order in this specific issue.
In my opinion, we're not taking a lot of power away. To suggest that we respect the fact that individual members of Parliament, especially in a minority situation, could be in a real dilemma, it actually could, as I pointed out to colleagues, result in the fall of the government if it were a confidence vote and some committee is denying those members the right to go and cast their ballot. It's possible, depending on how the members of that specific committee were going to vote on a specific division in the House.
So given the seriousness of it, Madam Clerk, I wonder if you could give us any more insight into what your sense is on whether we want to respect the traditions of the House, which is not to impose any restrictions on the committees, versus this particular move to have some temporary adjournment put into the Standing Orders.
:
Thank you, Mr. Chairman, through you to Mr. Hill.
I think what prompted me to kind of deviate from my script and throw in the business of the House being leery of imposing restrictions on anything that would lessen a committee being master of its own proceedings is really my ongoing fear of the law of unintended consequences. I agree with the way you describe the dilemma. I had discussions with my colleagues, and certainly my colleagues from committees, who understandably enough are committee crusaders and are sort of whacking me over the head to explain that committees are masters of their own procedures. That's always been the case, and so it should remain.
My difficulty, philosophically, is that you can't have a creature of the House that somehow or other.... It seems to me that a member's duty to the House as a whole to vote in the chamber has to supersede his duty as a committee member. When those two are in conflict, as they were in the case that Mr. Rajotte brought before the House, it really does create quite a dilemma.
Again, fast forwarding, I can foresee a situation such as you were describing, where you have a potentially very divisive or very controversial issue before a committee, and the way to get the committee to shut down is to provoke a vote in the House on something like, “That the member be now heard”, so the tail is wagging the dog and you are handling what's going on in committee by provoking something in the House. It's that kind of disequilibrium that I would be worried about.
Now, that being said, we were suggesting that there might be a way--and the reason we are suggesting it at the beginning of a Parliament, when the committee sets down its housekeeping rules, is that this is really before controversy tends to engulf committees and when people are planning their work, in perhaps a more cool-headed moment--to say this committee will suspend its hearings to answer any division bells and then will resume sitting. But if, from the whips' perspective, they feel it's a bit chaotic to have every committee looking to do that as a housekeeping measure, that could be put into the Standing Orders, and there what you're saying is that you'll suspend hearings so as to avoid that particular unintended consequence.
That's really all I'm flagging, because one of the things I've found over the years here is that you really have to be very cautious of producing rules to deal with specific irritants, because if you press down here, it pops up there.
:
Thank you, Mr. Chairman.
I too want to talk more about the second part of the issue that the clerk dealt with, meaning committees that sit while there are votes in the House.
With regard to the in camera meetings, I only want to make a brief comment. We mustn't forget that in camera meetings—and it's the same thing in the courts—seek above all to protect sensitive information. We must ask ourselves what would happen if we retroactively agreed to release in camera testimony. This would have a direct impact on the quality of evidence provided to committees. We could promise a witness coming to testify about national security that the meeting will be in camera, that the individual is completely protected, and that their comments will not be made public outside the room, and nevertheless that individual will ask himself whether it might be possible, in light of a motion passed by the majority of committee members, for the committee to later decide to release the in camera evidence. This would jeopardize the entire committee process and seriousness of committee work. I hope that we, as members of this committee, will seriously consider this.
That was my comment on the in camera question.
I would like to make a second comment, along the same lines as those made by my colleague, Jay Hill. It's probably because, like him, I am my party whip.
I am not in favour of having each committee adopt a motion, I will tell you that right away, because I put more faith in the House, as an entity, than in the chairmanship of each committee. I am not pointing fingers; there are committee chairs representing each party. I think that we should establish a rule and amend the standing orders accordingly.
I will illustrate my opinion with an example. You know that Tuesday is the day when the most committees meet. Today, 22 committees and subcommittees of the House are meeting. We know that there are often votes on Tuesdays. If we agree to allow committees to continue to sit during votes, I believe that this would alter the very make-up of this minority government. In fact, opposition members who would represent the majority on committees and would be obliged to continue their work—because important motions can also be introduced in committee—so they could not take part in votes in the House. We can't be in two places at the same time.
I agree with Jay Hill that our primary responsibility is to go and vote on behalf of the constituents we represent. When we stand up in the House, democracy speaks, the people who elected us expect their representatives to vote for or against various motions. When the public does not like the position taken by its representative, that individual is kicked out. That is democracy.
We would wind up in a situation where we would be literally torn, tortured between adopting a motion in committee and our duty to go and vote in the House. There are more representatives of the opposition than of the government on the majority of the 22 committees and subcommittees sitting today. Consequently, during a vote, this situation would work in the government's favour, which, numerically, would become a majority, although people voted in a minority government.
For all those reasons, I believe that we should amend the standing orders in order to prohibit committees from sitting during a division. I agree with Jay Hill. Furthermore, we must ensure that it would not be possible, through a motion, to allow a majority of committee members to decide, based on a vote, to continue to sit. This must be made very clear, because we know that chairs sometimes try to get ahead.
We need to write in the standing orders that committees may not sit during a vote.
:
Thank you, Mr. Chairman.
With regard to in camera meetings, I say unequivocally that when we sit in camera, we cannot change the rules, we remain in camera. I don't want to say the wrong person's name, but I remember that, during the sponsorship investigation—if I'm not mistaken, it was during Mr. Charles Guité's testimony—there was talk of lifting the in camera condition, and I... It doesn't matter, even if it could have cost us the battle. It's a matter of honour. When we invite people here to an in camera meeting, we must respect that confidentiality, unless everyone concerned agrees unanimously, without hesitation, to lift the in camera condition. In this case, that's different.
However, let's suppose that we ask someone to testify—and I agree with Michel on this—and they are told that it will be an in camera meeting and then, later, the evidence is released. Personally, I would no longer want to invite anyone to come and testify before us and speak freely at an in camera meeting. I will never agree to this. I am unequivocal: in camera means in camera.
With regard to committees, I would like Parliament to adopt a standing order. Without wanting to criticize anyone, people in my riding do not know about what I do in committee, they know about my work in the House of Commons because a vote is important. There is no reason...
I remember the case of Brian Masse, who was on the Industry Committee. He really wanted to take part in a vote in the House and was prevented from doing so. It's not right for a committee to make that decision for a member. We make members who are travelling come back so that they can take part in a vote, but in this case, the members were here, on the Hill, just next door, and they couldn't go and vote. Their right to vote was taken away from them. This really is about taking the members' right to vote away from them, no matter what their political party. I don't think we can allow this to happen. If we let each committee decide for itself, then some committees will let members go and vote, and others not. This would be discrimination against members. How could a member explain to his constituents that he could not go to vote, when he was in Ottawa? Could he say that it was because a group representing the majority made that decision? It's must easier to explain why, for emergency votes held the very evening, a member who was in Vancouver, for example, was unable to go and vote, than to explain why that member couldn't go and vote when he was in Ottawa. How can we explain this to our constituents? Furthermore, depending on the subject, our constituents consider some votes to be more important than others.
My question is for the clerk. Ms. O'Brien, you said that, in the past, committee members made their own decisions. Is there something that would prevent Parliament from adopting similar standing orders again?
Thank you, Ms. O'Brien, for being here.
I think what I've been hearing around the table, on the subject of adjournment or suspension of committee meetings to attend votes, is that there's some unanimity around the committee here. Perhaps at the conclusion of this meeting, we can take a motion forward. I agree with your analysis that if it's a suspension rather than an adjournment, that should take care of any particular problems of someone trying to manipulate votes to affect the committee outcomes. That's my opinion on that.
With respect to the other opinion on in camera proceedings, I tend to agree with Monsieur Godin and Monsieur Guimond that in camera means in camera. However, I think what also should be noted to all, particularly committee chairs and committee members, is that perhaps they should take extra time to view any requests by a witness to appear in camera with a little bit more due diligence. For example, if there was a demand by a potential witness to a committee that he or she would only appear under an in camera agreement, I think the committee should take a hard look at that to determine exactly why that request is being made.
In the example that we've used before, that of Mr. Guité, clearly there was a conflict between testimony in camera and testimony before the Gomery commission. That could have been very useful to Justice Gomery, but of course, he was prevented from hearing any of the in camera testimony. I think the committee originally should have had enough prescience to understand the fact that the testimony could be relevant at a later date in a more formal setting.
I think it begs the question of who determines that there should be an in camera setting. If it's the committee that determines that, then that's certainly their prerogative to do. I think that all committees would be wise to proceed with some caution if in fact there ever came a time when a witness only agreed to appear under an in camera setting.
I guess that's my only comment.
I just want to follow up on Mr. Godin's earlier comments. When the restraints of in camera sessions are not honoured, it's a reflection on the members as well as on witnesses. I think that was the point he was trying to make. I strongly agree with that. This disrespect for confidentiality is one of the very reasons we have to be able to trust one another at committees. I think most members, if not all, would agree with that. That's why I think, when there is a question of privilege raised in the House about a premature leak of a committee report or something like that, the vast majority of members, if not all, take that very seriously.
Of course, raising that it actually happened because it's in today's newspaper is quite separate from actually proving who did it. You get into the whole area of whether you can prove it and then what sanctions there are, which is one of the issues Mr. Guimond was trying to address earlier.
I wonder, Mr. Chair, if our witnesses wouldn't have some thoughts on the procedure we have to try to prevent it. And I'll just use that as an example, because it goes on quite regularly. It's not a real anomaly to have the premature release of a committee report by someone, obviously, who has access to that report, in musing with a journalist. It does show a disrespect for the institution and for the colleagues who sit around the table. I wonder if the witnesses believe that we have an adequate procedure in place.
I know that one or two of the committees have, over time, grappled with this. They have their members, after a committee report or some information considered in camera--confidential--has been leaked to a journalist and has appeared in the press, in the public domain, swear an oath that it wasn't them. They take an oath, as you would in a court of law. But of course that's in camera, and if somebody refuses to take an oath, that in itself can't be released. I'm just using that as an example.
Do the witnesses have some suggestions, not only for this committee but, by extension, for all parties and all members and for the House itself? Is there some way we can change the procedure to try to tighten it up, as it were, so that all members take this a little bit more seriously, perhaps? I think the vast majority do take it extremely seriously, and they do reflect upon it from time to time. It's incumbent on their own personal integrity that they honour that commitment to keep stuff confidential. Obviously some don't, because we're confronted with this from time to time.
I'm not pointing fingers at any one party or any one member. It happens. And I wonder if we shouldn't have some tighter rules and potentially some sanctions in terms of what would happen if you could prove who it was, or if somebody refused to take an oath, for example. I suggest that it would obviously point towards at least some suspicion of guilt if every member didn't take an oath and say, “It wasn't me. I don't know who did it, but it wasn't me who talked to the journalist.”