HAFF Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Procedure and House Affairs

EVIDENCE

CONTENTS

Thursday, November 28, 2002

Á

1105

The Chair (Mr. Peter Adams (Peterborough, Lib.))

Mr. Rick Borotsik (Brandon—Souris, PC)

The Chair

Mr. Rick Borotsik

The Chair

Mr. James Robertson (Committee Researcher)

The Chair

Mr. James Robertson

The Chair

Á

1110

Mr. Jacques Saada (Brossard—La Prairie, Lib.)

Mr. John Reynolds (West Vancouver—Sunshine Coast, Canadian Alliance)

The Chair

Mr. John Reynolds

The Chair

Mr. Pierre Brien (Témiscamingue, BQ)

The Clerk of the Committee

Mr. Pierre Brien

The Clerk

Mr. Pierre Brien

The Chair

Mr. Rob Walsh (Law Clerk and Parliamentary Counsel, House of Commons)

Á

1115

Á

1120

The Chair

Mr. Dale Johnston (Wetaskiwin, Canadian Alliance)

Mr. Rob Walsh

Mr. Dale Johnston

Á

1125

The Chair

Mr. Dale Johnston

Mr. Rob Walsh

Mr. Dale Johnston

The Chair

Mr. Joe Jordan (Leeds—Grenville, Lib.)

Mr. Rob Walsh

Mr. Rob Walsh

Mr. Joe Jordan

Mr. Rob Walsh

Mr. Joe Jordan

Mr. Rob Walsh

Á

1130

The Chair

Mr. Pierre Brien

Mr. Rob Walsh

Mr. Pierre Brien

Mr. Rob Walsh

The Chair

Mr. Jacques Saada

The Chair

Mr. Jacques Saada

Á

1135

Mr. Rob Walsh

Mr. Jacques Saada

Mr. Rob Walsh

Mr. Jacques Saada

The Chair

Mr. Rob Walsh

Á

1140

Mr. Jacques Saada

The Chair

Mr. Jacques Saada

The Chair

Mr. Jacques Saada

The Chair

Mr. Peter Stoffer (Sackville—Musquodoboit Valley—Eastern Shore, NDP)

Mr. Rob Walsh

Mr. Peter Stoffer

Mr. Rob Walsh

Mr. Peter Stoffer

Mr. Joe Jordan

Mr. Peter Stoffer

Mr. Rob Walsh

Á

1145

Mr. Peter Stoffer

The Chair

Mr. Peter Stoffer

Mr. Rob Walsh

Mr. Peter Stoffer

Mr. Rob Walsh

Mr. Peter Stoffer

Mr. Rob Walsh

The Chair

Ms. Marlene Catterall (Ottawa West—Nepean, Lib.)

Mr. Rob Walsh

Ms. Marlene Catterall

Mr. Rob Walsh

The Chair

Mr. Dale Johnston

The Chair

Ms. Marlene Catterall

Mr. Rob Walsh

Á

1150

Ms. Marlene Catterall

The Chair

Mr. Rick Borotsik

Mr. Rob Walsh

Mr. Rick Borotsik

Mr. Rob Walsh

Mr. Rick Borotsik

Á

1155

Mr. Rob Walsh

Mr. Rick Borotsik

Mr. Rob Walsh

Mr. Rick Borotsik

The Chair

Mr. Rick Borotsik

Mr. Rob Walsh

The Chair

Mr. Derek Lee (Scarborough—Rouge River, Lib.)

The Chair

Mr. Derek Lee

The Chair

Mr. Derek Lee

Â

1200

Mr. Rob Walsh

Mr. Derek Lee

Mr. Rob Walsh

Mr. Derek Lee

The Chair

Mr. Rob Walsh

The Chair

Mr. Rob Walsh

Â

1205

The Chair

Mr. Rob Walsh

The Chair

Mr. Dale Johnston

The Chair

The Chair

Ms. Audrey O'Brien (Deputy Clerk, House of Commons)

The Chair

Ms. Audrey O'Brien

Â

1220

Ms. Marie-Andrée Lajoie (Principal Clerk, House Proceedings, House of Commons)

Ms. Audrey O'Brien

Mme Marie-Andrée Lajoie

Â

1225

The Chair

Mme Marie-Andrée Lajoie

The Chair

Mr. Jacques Saada

The Chair

Mr. Jacques Saada

The Chair

Ms. Audrey O'Brien

The Chair

Mr. Jacques Saada

Mr. Pierre Brien

The Chair

Â

1230

Mr. Jacques Saada

The Chair

Ms. Marie-Andrée Lajoie

The Chair

Ms. Marie-Andrée Lajoie

The Chair

Ms. Marie-Andrée Lajoie

Mr. Rick Borotsik

Â

1235

The Chair

Mr. Pierre Brien

Ms. Marie-Andrée Lajoie

The Chair

Ms. Marie-Andrée Lajoie

The Chair

Mr. Garry Breitkreuz (Yorkton—Melville, Canadian Alliance)

Ms. Marie-Andrée Lajoie

Mr. Garry Breitkreuz

Ms. Marie-Andrée Lajoie

Mr. Garry Breitkreuz

The Chair

Mr. Jacques Saada

Ms. Marie-Andrée Lajoie

Mr. Jacques Saada

Ms. Marie-Andrée Lajoie

Mr. Jacques Saada

Ms. Marie-Andrée Lajoie

Mr. Jacques Saada

Â

1240

The Chair

Mr. Rick Borotsik

Ms. Marie-Andrée Lajoie

Mr. Rick Borotsik

Ms. Marie-Andrée Lajoie

The Chair

Ms. Marie-Andrée Lajoie

The Chair

Mr. Rick Borotsik

The Chair

Ms. Audrey O'Brien

The Chair

Ms. Audrey O'Brien

The Chair

Mr. Jacques Saada

The Chair

Ms. Audrey O'Brien

Â

1245

The Chair

Mr. Jacques Saada

The Chair

Mr. Jacques Saada

The Chair

Ms. Audrey O'Brien

Mr. Jacques Saada

The Chair

Mr. Pierre Brien

The Chair

Mr. Garry Breitkreuz

Mr. Jacques Saada

The Chair

Mr. Jacques Saada

Â

1250

The Chair

Ms. Audrey O'Brien

The Chair

Mr. Jacques Saada

The Chair

Mr. Jacques Saada

The Chair

Ms. Marie-Andrée Lajoie

The Chair

Mrs. Carolyn Parrish (Mississauga Centre, Lib.)

The Chair

Mrs. Carolyn Parrish

The Chair

Mrs. Carolyn Parrish

Â

1255

The Chair

Mrs. Carolyn Parrish

The Chair

Mr. James Robertson

Mrs. Carolyn Parrish

The Chair

Mrs. Carolyn Parrish

The Chair

Mr. James Robertson

The Chair

Mr. James Robertson

The Chair

Mrs. Carolyn Parrish

The Chair

Mrs. Carolyn Parrish

The Chair

Mrs. Carolyn Parrish

The Chair

Mr. Jacques Saada

The Chair

Ms. Marie-Andrée Lajoie

The Chair

·

1300

Mr. Jacques Saada

The Chair

Mr. Jacques Saada

The Chair

Mr. Jacques Saada

Mr. James Robertson

The Chair

Mrs. Carolyn Parrish

The Chair

Mrs. Carolyn Parrish

Mr. Jacques Saada

The Chair

Mr. Rick Borotsik

The Chair

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CANADA

Standing Committee on Procedure and House Affairs

---

NUMBER 010

l

2nd SESSION

l

37th PARLIAMENT

---

EVIDENCE

Thursday, November 28, 2002

[Recorded by Electronic Apparatus]

Á  (1105)  

[English]

    The Chair (Mr. Peter Adams (Peterborough, Lib.)): Colleagues, if we could begin, I have a few housekeeping things.

    As you realize, we have a lunch with the Speaker, which is the second half of our meeting next Thursday. Senator Oliver will also be there. You understand what I'm saying. I just want to be sure.

    Rick, you're listening?

    Mr. Rick Borotsik (Brandon—Souris, PC): No, I'm listening to Michel. I'm just trying to figure out if this is housekeeping or not.

    The Chair: Yes, okay. Listen.

    Next Thursday, at the Speaker's lunch, both the Speaker and Senator Oliver will be there. You understand that this lunch is a working lunch, from our point of view.

    Mr. Rick Borotsik: Where will it be?

    The Chair: In the Speaker's quarters somewhere. We'll let you know that.

    Secondly, on the security matter, we've received advice from the Sergeant-at-Arms that information on security is coming.

    In terms of the schedule, you know that today we're dealing with ethics first and then the private members' business items second. We're going to spend an hour on this.

    The round table was last evening. I want to thank those members who were there. It was not well attended, but I think those who were there would agree that it was very successful in its own way. We'll think about that again later on.

    We have some documentation that has gone to your offices. This has to do with the private members' business, and I'll mention it again. If you haven't seen it yet, you should look--

    Mr. James Robertson (Committee Researcher): This is on the rules regarding conflict of interest.

    The Chair: I'm sorry; it is for today. Thank you very much. And it's here?

    Mr. James Robertson: Yes.

    The Chair: Okay. That's response documentation following our meeting with Minister Manley.

    The last thing I have here.... I do regret this very much, but it's something we have to do today. I'm going to read this statement to you:

On Friday of last week (November 22), the House commenced consideration of the motion to give second reading to Bill C-202, entitled An Act to amend the Canada Health Act (linguistic duality), and to refer it to a legislative committee.

Pursuant to Standing Order 113(1), this Committee must, within five sitting days from last Tuesday--that is, no later than Friday, November 29--meet to prepare a list of no more than 15 Members to serve on the legislative committee on Bill C-202.

    We are meeting to do that now. Our committee, this committee, must meet.

The committee must report the list of names to the House by Thursday, December 5. The report will be deemed adopted when it is presented.

Since the legislative committee constituted under this Standing Order must meet within two sitting days of the adoption of the second-reading motion, it is desirable to name the members of the legislative committee as soon as possible.

    I'm asking each party to nominate members quickly to this new legislative committee. That's to say seven Liberals, three Alliance, two from the Bloc, one from the NDP, and one from the PCs. The chair is named by the Speaker.

    That is our action on this, which we have to do today. I have now done it. Everybody understands? Any questions on that? No. The whips have heard.

    Jacques, you will explain that to Marlene when she's here?

Á  (1110)  

    Mr. Jacques Saada (Brossard—La Prairie, Lib.): Yes.

    Mr. John Reynolds (West Vancouver—Sunshine Coast, Canadian Alliance): Could you explain it again?

    The Chair: Okay. This is the legislative committee on Bill C-202. By next Thursday--

    Mr. John Reynolds: Let's have it home before.

    The Chair: It was done last week. On Friday, November 22, the House began consideration of the motion to give second reading to this bill.

[Translation]

    Mr. Pierre Brien (Témiscamingue, BQ): We have not voted; we began the study in the House.

    The Clerk of the Committee: Unfortunately, the standing order provides that the committee must be named once the debate is started, not at the end. That is what is causing the problem.

    Mr. Pierre Brien: And the motion is not passed?

    The Clerk: Then we do not need the committee.

    Mr. Pierre Brien: That's what I would call “putting the cart before the horse”.

[English]

    The Chair: It's not for me to wonder why. This is the rule. Do the parties understand that we are required to have members for that?

    Colleagues, we will proceed to our item for the day, consideration of matters related to the inclusion of a code of conduct in the Standing Orders of the House. Our witness for the first hour is Rob Walsh, law clerk and parliamentary counsel.

    Rob, we appreciate your being here.

    Colleagues, we have two fact sheets, “Notes on Proposed Ethics Package” and “Conflict of Interest”. Everyone should have those.

    Rob, we're in your hands. I understand you have a statement, and then we'll proceed from there.

    Mr. Rob Walsh (Law Clerk and Parliamentary Counsel, House of Commons): Thank you, Mr. Chairman.

    I am pleased to be here today, of course, to assist the committee in any way I can in its consideration of the ethics package introduced in the House on October 23 and referred to this committee for study.

    As you indicated, I have provided two handouts to the clerk of the committee for distribution to committee members. One is a compilation of the statutory provisions that currently apply to members of Parliament, and the other is a series of notes I have made pertaining to the content of the ethics package. I thought prior distribution of this material would help shorten my opening statement, which would, no doubt, please committee members and, more importantly, leave more time for members to ask questions on the issues of interest to them.

[Translation]

    There are a few general comments that I would like to make at this time which might serve to explain and put in context the issue I have raised in the second handout.

    Let me first briefly explain my role as Law Clerk and Parliamentary Counsel. It is one of providing legal advice to the Board of Internal Economy and House senior managers and, as well, to individual members of Parliament. For the latter, advice is given on a variety of matters, including conflicts of interest of the kind addressed by the proposed Ethics Code.

[English]

    Being asked to comment on the proposed ethics package, as law clerk, is not unlike a business client coming into a lawyer's office and asking the lawyer to look over a proposed contract that the other side to a business deal wants the client to sign. The lawyer's job is to review the document and advise the client of the problems or issues that might arise with some of the clauses in the proposed contract. It is then the client's decision whether to accept the contract document or to renegotiate its terms. This is essentially what I am doing today when I provide my comments on the proposed ethics package. I take no position on whether the committee should accept or reject the package. This is a decision for the committee. It would be inappropriate for me to enter that debate.

[Translation]

    As I said, legal counsel in my office are already in the business of advising members of Parliament on conflicts of interest. This is not a large part of our practice, you might be pleased to know, but a recurring one. Standing order 21 prohibits members from voting on any matter in which the member has a “direct pecuniary interest”. This is rarely the problem. More often, it is one of the conflict provisions in the Parliament of Canada Act that must be considered.

Á  (1115)  

[English]

    My focus today, Mr. Chairman, is on the proposed amendments to the Parliament of Canada Act, and the ethics code, in respect of members of Parliament.

    As law clerk, my clients are 301 individual members of Parliament, primarily those who are not also ministers or parliamentary secretaries—although I assume that ministers and parliamentary secretaries will be governed by the ethics code in their role as members of Parliament. I am not speaking to the interests of the approximately 3,000 public office-holders who are to be governed by the Prime Minister's rules, which will also be administered by the proposed ethics commissioner.

    Members of Parliament cannot avoid conflicts of interest in their work. The issue is whether they rise above these private interests and faithfully serve the public interest in the performance of their duties. Conflicts can arise where you might least expect them. For example, one might argue that the members of Parliament sitting on this committee, charged with reviewing the proposed ethics package, are faced with a conflict. A member might suppose that opposition to, or criticism of, the proposed code will suggest an unwillingness to be held accountable. At the same time, the member might accept accountability but honestly feel that the proposal before the committee is not the best approach or that it brings more problems with it.

    Is the member serving the public interest if the member votes in favour of the package with these misgivings? Conversely, is it right to suppose that a member voting against the package does so out of professional self-interest? Damned if you do, damned if you don't.

[Translation]

    It seems to me that someone needs to speak in defence of the interests of members of Parliament as parliamentarians when their ability to do so is compromised by the nature of the subject matter before them, as is the case here.

[English]

    The process contemplated under the proposed code could, in some instances, put a member's parliamentary career at risk, even where there is no mala fides or malfeasance on the member's part. A member's prospects for re-election could be seriously compromised if the process under the proposed code were to be used to take the member down, as it were. Whether or not this is the intent, this could be the effect.

    For this reason, members might want to consider closely how the ethics code would be applied against them. In my view, to do so is not to act contrary to the public interest. I think it is a legitimate consideration by members of Parliament, because it's not simply for these members of Parliament, but it's for your successors in office, to which the code may subsequently apply.

Á  (1120)  

[Translation]

    It seems to me only fair that the legitimate personal interests of members here be respected and that the process put in place ensure that innocent members will not be unjustly tarred where complaints acquire credibility because they are able to persist over time because the process has not dealt with them in a timely and effective manner.

[English]

    Members of Parliament may be public officials accountable to their electorate, to the House, and to their colleagues. But through all this, they are entitled to be treated fairly and with respect, and they should be sure to treat each other fairly and with respect. An American presidential candidate once famously said, “Extremism in the pursuit of justice is no vice”. In my view, extremism in the pursuit of ethics is a vice, as it tends to bring into disrepute the object of the exercise and often leaves no one the better for it.

    As a lawyer on the staff of the House serving members in legal and legislative matters for over 10 years now, I have not found members inclined to further their private interests at the expense of the public interest. As parliamentarians, they have limited opportunity to further their private interests. In my view, it can, and must, be said that members of Parliament are honourable persons. They do put the public interest first.

[Translation]

    In closing, Mr. Chairman, I would add only that the issues identified in the second handout may not all deserve the same consideration. Some might draw more concern than others. Moreover, I do not mean to tell committee members what should concern them. This is for them to decide. I have simply identified possible issues. For example, the independence of the legislative branch of government.

    How might the independence of the legislative branch from the executive branch be affected where an administrative or regulatory process is applied to both branches?

    As well, there is the independence of the legislative branch from the judicial branch where recourse to court actions against members of Parliament could compromise this independence. Legal or quasi-legal proceedings ought not to be available against members of Parliament to where their parliamentary independence is threatened.

    It is in the public interest that members have this independence and that they be allowed to perform their parliamentary function free of intimidation by threat of legal or quasi-legal process or from actions by the executive.

[English]

    Members should be careful that, in the interests of assuring the public they are watching their ethics, they don't install a superhero ethics person whose judgment they come to fear, not respect. An ethics commissioner, however well qualified for the role established under the act or the code, is not a member of Parliament and is not accountable as members of Parliament are. Also, members of Parliament should not think they can delegate to someone else their responsibility for their conduct as members.

    My own and other professions are self-regulating, allowed to police themselves, on the principle that a professional is best judged by professional peers. In a parliamentary context, ethics should be seen as a professional matter, not a partisan political matter, and should at all times be treated as such and not be brought into the partisan political domain.

    Thank you, Mr. Chairman. I should be pleased to answer any questions committee members may have.

    The Chair: Thank you very much, Robert.

    Colleagues, Rob mentioned a few changes to the Parliament of Canada Act. The material we received as a supplement to John Manley's testimony is sort of a breakdown. For example, the first part says, “Parliament of Canada Act provisions which would be repealed as recommended by the Milliken-Oliver Report”. There's another section that refers to provisions to be partially covered by the proposed code--that is the Parliament of Canada Act--and provisions that would not be affected by the changes. I say this just so you know that's the notation we already have.

    Dale Johnston, then Joe Jordan, Pierre Brien, and Jacques Saada.

    Mr. Dale Johnston (Wetaskiwin, Canadian Alliance): When I was first elected here, Rob, quite a few of our caucus members were farmers. We were participating in the NISA plan. We decided arbitrarily, I guess, that we would get out of that plan, because we thought that, as legislators, we were making or voting on decisions that would affect that plan, its funding, and so forth. Looking back on that, I don't know if it was the right thing to do; I actually never did know. But our position was that it is better to err on the side of caution.

    I wonder if you could just remark on something like this, which would affect the whole of agriculture and us as individuals because we're all still involved in agriculture.

    Mr. Rob Walsh: Mr. Chairman, the proposed ethics code defines a private interest by indicating three categories that are excluded. One of these is where the interests affect the parliamentarian as one of a broad class of the public. You might almost call this the farmer clause, or the lawyer clause. In my view, it means that any member of Parliament who is a farmer is not prohibited from voting on agricultural issues, even when the proposal being considered may have a beneficial effect, if adopted, on the farming industry generally, including the member who is a farmer. If this were not the case, many members who are lawyers might have trouble voting on a variety of legal provisions. So as a broad class, farmers, lawyers, and whoever are not prohibited, as members, from participating in debate on matters that affect their field of professional interest.

    Mr. Dale Johnston: More specifically, though, what about participating in a scheme like NISA, the Net Income Stabilization Account? Roughly, it is a plan in which farmers can put in some money in good years, which they can then take out in bad years. I don't know if you're familiar with how it works.

Á  (1125)  

    The Chair: Or they can now take it out at retirement.

    Mr. Dale Johnston: Or at retirement. It's matched by the government of the province. We were rather fuzzy on this particular issue. It wasn't as much that we were voting on agricultural policy, but participating in a plan that would be subject to change according to the way we voted in the House.

    Mr. Rob Walsh: Mr. Chairman, being a farmer who may well have available to him or her programs that bring benefits does not, in my view, prohibit your participating in consideration of that very program were it brought before the House for further consideration. You have to appreciate that if this were not the case, we'd have a variety of members absenting themselves from considerations in committee or in the House. In some cases this could very much affect the outcome of the deliberations.

    Mr. Dale Johnston: Thank you.

    The Chair: Joe Jordan, then Pierre Brien, Jacques Saada, and Peter Stoffer.

    Mr. Joe Jordan (Leeds—Grenville, Lib.): Dale highlights one of the issues, as did Mr. Manley, which is that there seems to be a lot of confusion or misunderstanding. If I look at the handout on conflict, it says, “no person who enters into a contract with the Government of Canada, for which public money is paid, is eligible to be a Member of the House of Commons”. But when I hear Dale's explanation, you could argue that NISA is a contract and public money is used. So if this process does nothing else beyond bringing some clarity to the rules, it is helpful.

    But Mr. Walsh, you picked up on something that seems to be emerging as one of the issues, which is the use of the complaint process for partisan reasons and how we can prevent this. In your document here, one of the solutions you're proposing is to “prohibit Members from raising in the House any matter under consideration under the Code”, and “prohibit Members disclosing, whether in the House or elsewhere, a complaint made under clause 31”.

    When you start this, I guess there are ripples. I guess we have to be very careful. What would be the repercussions if you did this? If somebody does say it in the House, they do have a certain legal protection. I guess it's a little more complicated...and we are messing around with some serious things, which brings me to my question. Do you have a sense of what problem we're trying to solve here? As the legal counsel, how big an issue is this?

    Mr. Rob Walsh: Mr. Chairman, let me first address Mr. Jordan's comment in response to Mr. Johnston's comments on NISA. I'm not closely familiar with the provisions of NISA. Everything I said in response to Mr. Johnston must be taken subject to the fact that under the present law, as Mr. Jordan points out, a member of Parliament can't have a contract with the Government of Canada. If NISA were to constitute that, then that member might well have a problem. I'm not so sure that's the case, but nonetheless, were that to be the case, the member may well have a problem.

    Do I have a sense of what the problem is we're trying to get at? I can't directly answer that question and keep my job.

    Some hon. members: Oh, oh!

    Mr. Rob Walsh: Basically, as my notes and introductory remarks indicate to you, I don't see members of Parliament as an unethical bunch of people for whom we need a bunch of rules.

    Mr. Joe Jordan: I think that with the confusion issue and the fact that there are overlapping rules in jurisdictions, there may very well be some benefit to a careful examination and clarification. But rather than a code of conduct, would it not be possible to address that simply by amending the Parliament of Canada Act? My concern is that as soon as we say we now have a code, we're sending a signal that we need a code and that government wasn't functioning properly prior to having a code. Maybe it would be better to fix the problems within the existing structures.

    Mr. Rob Walsh: Mr. Chairman, Mr. Jordan used the word “government”. I'm not addressing the suitability of an ethics code in respect of government. In saying that, I'm not suggesting there is a need for one, either. I'm talking about it in terms of the members of Parliament.

    Mr. Joe Jordan: That's what I meant.

    Mr. Rob Walsh: You could well have an ethics code for members of Parliament simply as a guideline to reflect the consensus of parliamentarians about the appropriate conduct for parliamentarians. However, if you put it in the Parliament of Canada Act, you run the risk that you're inviting the courts to get involved in whether or not the code is being respected by the actions charged against a member.

    The idea of putting it as part of the Standing Orders of the House is a very good one. It stays within the purview of the House to control, manage, and comment on. As I indicated in my introductory remarks, I think it's important that members see themselves as a profession in respect of which they need to exercise some discipline, but they should exercise it themselves.

Á  (1130)  

    The Chair: The object here is to get the questions and ideas on the record. With regard to Dale's point, the Ontario conflicts commissioner ruled that MPPs who were teachers or married to teachers could participate, vote, and so on on legislation affecting teachers. So I just put that on the record.

    Next is Pierre Brien, followed by Jacques Saada, Peter Stoffer, Marlene Catterall, and Rick Borotsik.

[Translation]

    Mr. Pierre Brien: I have one question that is more technical in nature, and a general comment to make as well. Under the heading, disclosure of interests and assets, you ask the following question:

...might a sworn statement from the member be sufficient as “adequate disclosure” [...] with repercussions for misrepresentation?

    What exactly are you suggesting in the question? I am having trouble understanding what it means.

    Mr. Rob Walsh: The idea, Mr. Chairman, is that if we assume that members of Parliament are honourable people and that if they make a declaration, whether under oath or not, we should accept this declaration as being accurate, valid and honest, unless we get information later that would call the declaration into question.

    We ask questions of the member, but, in my opinion, we should work from the following premise. We ask you what your assets and interests are, and we ask you to report them in a declaration. At the outset, we would accept the declaration as being truthful, unless another member of Parliament raises questions that present a challenge for you. In such a case, you would be responsible for answering these questions, to explain why this other asset or interest was not disclosed in the document.

    It may also be the case that the interest alleged by the other member of Parliament is not accurate. In that case, it would be up to the member of Parliament to reply as an honourable person. That is the idea. It is simpler as well.

    Mr. Pierre Brien: I think you have raised a number of interesting issues in your paper which deserve our consideration. I imagine that you would be available at a later date to answer our questions.

    Something of interest to me is how you see your role. I think we're going to have to provide members of Parliament with a great deal of training from the very beginning, so that they will know how this works. In the past, we got no training on this when we arrived here, not even with respect to existing provisions, with the exception of the administrative regulations, which relate more to provisions of the Criminal Code. This is a subject that receives very little coverage in the training provided for new members of Parliament.

    For your part, do you think significant improvement will be required in this regard?

    Mr. Rob Walsh: Yes, Mr. Chairman. We intend to add a presentation on these rules to the orientation program. The deputy clerk has now arrived; she could discuss this matter on another occasion, but she is responsible for preparations required for the forthcoming election. We will also be making a presentation on the legal aspects involved in the work of a member of Parliament. However, that is a good idea, and we accept the responsibility for providing such training.

[English]

    The Chair: Jacques Saada and Peter Stoffer.

[Translation]

    Mr. Jacques Saada: Mr. Chairman, I would like to start by saying, if I might, that I may not have enough time on the first round, so I would like my name added to the list for the second round.

[English]

    The Chair: Bear in mind, colleagues, we've one hour for this.

[Translation]

    Mr. Jacques Saada: I did not say today.

    Thank you very much for being here, Mr. Walsh. I think my colleague, Joe Jordan, asked the most fundamental question: “To what need are we responding with the project we are involved in at the moment?” Are we not creating a “monster” in an effort to solve a non-existent problem? I would like to hear what you think about that.

    I have some other comments I would like to make. First, you refer to a sort of internal discipline that we should impose on ourselves. You therefore refer to a committee of peers, as exists in other professions, such as the legal profession.

    Is it not true that in our case, there is an additional dimension, namely political partisanship, which is virtually inevitable? Whether we are talking about a committee such as ours or multipartite organizations in the House of Commons, we realize that there are always political considerations that may come into play. How can we prevent such things from happening in the context of such an important office, which may ultimately decide on a member of Parliament's political future?

    Second, if I understand correctly, the idea is to dissociate the role of adviser from that of investigator. Should the adviser be appointed following a vote in the House, or in your opinion, would his or her role be solely as an adviser? We would have to consider another appointment process.

    Third, in the text we have here, which summarizes current practice regarding conflicts of interest, there is particular reference to the by-laws of the Board of Internal Economy. We know that at the moment, some by-laws are not implemented, because we do not have the technical means to do so. For example, the text states:

No funds or goods provided to a member for the carrying out of parliamentary functions may be donated to any person, cause or organization.

    We know very well that some members of Parliament use their member's right to free postage to send out documents on behalf of local community groups, and the Board of Internal Economy has no way of controlling that. In other words, it has no way of implementing the sanctions that could result from a violation of this provision. My question is much broader.

    Do you not think, before we set up a code that would be much broader and more complex, that it might be advisable to check whether what we already have can be implemented? If not, would it not be advisable to determine how to correct it?

Á  (1135)  

    Mr. Rob Walsh: Thank you.

    I count four points in the question, Mr. Chairman.

    Mr. Jacques Saada: I feel inspired when I see you, Mr. Walsh.

    Mr. Rob Walsh: I think I would prefer to avoid the question about a monster, because I have difficulty with that image.

    Mr. Jacques Saada: I cannot use quotation marks when I speak, but I meant it to be in quotation marks.

[English]

    The Chair: We have about a minute and a half.

    Mr. Rob Walsh: All right.

[Translation]

    It is the process applicable to an issue that might give rise to a monster, if you will. If we create a complicated monster, there will be problems.

    As regards the political aspect, if we had a subcommittee, perhaps a subcommittee of this committee, there would be an equal number of representatives from the various parties—namely, two per party—and if this subcommittee made recommendations to the committee, which, in turn would make recommendations to the House, given that there would be the same number of members from each party on the subcommittee, we might perhaps avoid political problems in this area.

    As far as the process for appointing this official goes, I think it depends on the degree of confidence people have in this individual. If he or she has a confidential responsibility as an adviser, the individual must be someone members trust. For that reason, we could perhaps have someone appointed by the House of Commons, perhaps through a vote, but in my opinion, an appointment by Privy Council does not mean much. If the individual is appointed by the House, before the legal steps are followed, it doesn't change much if the appointment is made by Order in Council. The important thing is whether the individual selected is chosen by the members of Parliament and whether he or she is someone members trust.

    As far as the by-laws of the Board of Internal Economy go, clause 8 of the Code of Conduct states that nothing in the code affects the jurisdiction of the Board of Internal Economy. All problems such as the one you mentioned, Mr. Saada, remain under the jurisdiction of the Board of Internal Economy; they are not affected by this provision.

Á  (1140)  

    Mr. Jacques Saada: That was not my question. I would just like to clarify.

[English]

    The Chair: Okay, we're already a minute over.

[Translation]

    Mr. Jacques Saada: That is not the question I asked.

[English]

    The Chair: Perhaps we can discuss it later, or whenever. I am concerned, Jacques, that members get a kick at the can.

[Translation]

    Mr. Jacques Saada: All right.

[English]

    The Chair: Peter Stoffer, Marlene Catterall, Rick Borotsik, then Derek Lee.

    By the way, to me, that would be a full round, and then we'll see where we go from there.

    Mr. Peter Stoffer (Sackville—Musquodoboit Valley—Eastern Shore, NDP): Thank you, Mr. Chairman, and thank you, Mr. Walsh, for appearing today.

    Sir, if an ethics counsellor or commissioner were, say, reporting to Parliament, would that assist your department or your office or would it hinder your office, or what responsibilities would either be enhanced or diminished in your office if we had an ethics commissioner who reported to Parliament? How do we see your role if that indeed happened?

    Mr. Rob Walsh: If the ethics commissioner as contemplated by the ethics code before the committee were to be reporting to the House, in my view, I would get out of the business of advising on conflicts of interest, for a start.

    Members may still want to draw us into that if they're not terribly comfortable talking to the ethics commissioner under the present regime, who might later be investigating them. But basically we'd try to minimize our role in that domain because you already have someone doing that. The fact that he's reporting to the House doesn't make any difference. It's the ambit of his or her responsibility.

    Mr. Peter Stoffer: Secondly, ministers are on a different level from ordinary members of Parliament, not only in terms of salary but in terms of responsibility and accountability. I just want to have clarification. Should ministers be treated in terms of the code of ethics the exact same as, say, someone like me or someone in the back bench, or should there be higher ethical standards for someone who is in the cabinet?

    Mr. Rob Walsh: Mr. Chairman, this is a difficult question in a domain of ethics, quite apart from the parliamentary culture. Clearly ministers of the Crown are in different circumstances in the discharge of their duties as ministers than members of Parliament are in the discharge of their duties. Accordingly, one might suggest that there should be rules applicable to that situation--the ministerial situation--that are different from the rules applicable to members of Parliament.

    On the other hand, ethics by nature is not something where the rules should bend to suit the situation. That's what some people derisively call situation ethics. There are others of a more catholic viewpoint who think that's an odious concept and that there should be black letter ethical rules that apply in every situation. That's for this committee and parliamentarians generally to assess.

    But the difficult part here is that we have to acknowledge that ministers of the Crown are in circumstances in the discharge of their duties that are different from the circumstances of members of Parliament, and that must inevitably lead to some degree to the application of different rules.

    Mr. Peter Stoffer: My next question, sir, is about not only the reality of ethics conflicts, but also the perception in the public's eyes or the media's eyes. One of the concerns I've always had is about when a minister is part of a government that is, say, about to fail in the next election and that minister may or may not try to assist a private company or enterprise in contractual agreements with the government. There's an election, that individual is defeated, that individual then joins the private company and benefits from a previous contract that this minister's department had a role to play in. How can you see an ethics package, or your role, in order to prevent that?

    Once the person leaves Parliament, they're out of the auspices of Parliament, and it's very difficult to either prove or check to see.... For example, take a minister of transport helping a private company get a huge paving contract. The minister has an election, is defeated, and the minister then joins the board of directors of that particular paving company.

    Mr. Joe Jordan: You have to wait two years before you could do that.

    Mr. Peter Stoffer: Maybe two years for that individual, but a family member of that individual could be part of the company. It could be, for example, that my wife joins the board of directors of that company, and the family unit will benefit from that. How do we prevent this from happening in this regard? It's a loaded question, right?

    Mr. Rob Walsh: Indeed, loaded and leading.

    Some hon. members: Oh, oh.

    Mr. Rob Walsh: There are rules the government can make with regard to ministers and the kinds of contracts they can enter into when they leave government. You're in part talking about the accountability of government to Parliament, and this individual is no longer part of government. If it's a different government you might think it's all history, and how could the present government be held accountable for the conduct of members of the previous government?

    Ultimately, Mr. Chairman, you get to the point where this is a matter of democratic response to the behaviour of public office-holders. There gets to be a point when you can't regulate the behaviour of public officials through laws or through ethics in every context. There comes a point when a scoundrel is a scoundrel, perhaps, and he goes into history with that reputation and there isn't much you can do about it, except to not vote for that person's party if that's the way you respond.

    But there are limits, Mr. Chairman, to what can be done under an ethics code in the enforcement of ethical standards.

Á  (1145)  

    Mr. Peter Stoffer: And the last question, Mr. Chairman, if I may--

    The Chair: Briefly, if you will, please.

    Mr. Peter Stoffer: Sir, I'm on leave from Air Canada right now--it was Canadian--and when the big debate in 1997-98 came out about the airline mergers, I purposely stepped out of it just to let the Air Canada folks, because I came from the Canadian world, know that I was not in the perceived conflict of interest. But if I was on the transportation committee and a situation came up that would benefit Air Canada, even though I'm on leave from Air Canada, and if were to be defeated in the next election I would then go back to that airline, could I not be perceived to be in a conflict of interest if I vote on something that benefits the company that I may end up going back to after the next election?

    Mr. Rob Walsh: Mr. Stoffer, you know better than I that politics is often all about perception--

    Mr. Peter Stoffer: Yes, sir.

    Mr. Rob Walsh: --and I can't do anything about that, nor can any ethics code do much about that.

    Mr. Peter Stoffer: In reality, am I in a conflict?

    Mr. Rob Walsh: In the current rules, no.

    The Chair: Marlene Catterall, then Rick Borotsik, then Derek Lee.

    Ms. Marlene Catterall (Ottawa West—Nepean, Lib.): You mentioned in one of these that interest is defined as “only when private interests benefit”. I've always understood that you have an interest the minute your private matters and public matters overlap. It doesn't matter whether the outcome is to your benefit or not to your benefit. The conflict exists the minute there's that overlap. So is that the point you're trying to make here in subclause 4(2)?

    I'd ask the witness to comment, Mr. Chair.

    Mr. Rob Walsh: Mr. Chairman, interests may be in conflict. The question is whether the conflicts are the kind to which this code applies. This code seems to be limiting its application to those conflicts where the interests are actually benefiting. If you look at subclause 4(2), it says in English, “A parliamentarian is considered to further a person's private interests, including his own or her own,” when, as a result of the parliamentarian's actions, certain things happen, like an increase in the value.

    The prohibition, under clauses 11 through 13, is that you're not to further your own private interests or the interests of someone else. So you go from clause 11 to 13, back to subclause 4(2), and you see that you're only in trouble if you actually win. If you do your best to win and you lose, and you don't gain anything, it looks like you don't have a problem.

    Ms. Marlene Catterall: Do you have any idea how that compares to other codes in effect in other legislatures?

    It seems to me that's totally the wrong approach. In fact, the minute there is an overlap of those interests there's a conflict, and it doesn't depend on what the outcome is. If that were the case, you would never have a conflict because you would never know at the time you were lobbying or voting what the outcome would be.

    Mr. Rob Walsh: Or worse, you could be liable later on because you unexpectedly had a benefit come to you that you didn't foresee but that is consistent with furthering your private interests, although you never had that in mind.

    I can't comment, by the way, regarding other codes in provincial jurisdictions. I will look into that issue if the committee wishes me to do so.

    The only way you can deal with the problem I'm addressing is to go with subclause 4(2) and say any attempt to bring these results constitutes furthering your private interests. That presents a problem of what constitutes an attempt. If you're talking about investigations, that could be quite some investigation.

    The Chair: Marlene, could Dale just make a direct comment on that?

    Ms. Marlene Catterall: Yes.

    Mr. Dale Johnston: I think what should be there, Marlene and Rob both, is when the potential for your benefit is there. Whether you win or lose doesn't matter.

    The Chair: Thank you.

    Ms. Marlene Catterall: That is related to my next point. To me it's not just a matter of voting. It's other actions you can take and other influence you can exert as a member of Parliament. Would you say that this code is strictly confined to voting on those matters where you might have an interest?

    Mr. Rob Walsh: Actually, no. Mr. Chairman, clause 14 goes so far as to say that you can't attend a debate or a discussion where you might have an interest. I think, Mr. Chair, as my notes indicate, there might be some operational problems with regard to clause 14, where you're about to get involved in a discussion and you find that you have a conflict in respect of the matter that's before the committee or the House.

Á  (1150)  

    Ms. Marlene Catterall: That's what the whip's office is for, to get somebody else there, then.

    This will take a little bit longer, and I'm sure we'll be exploring it more. I was also interested in the conflict between the need to maintain confidentiality and to report publicly. You pointed out in several places in the bill the need to report publicly and to report to responsible authorities but to still retain confidentiality. As we proceed though this, Mr. Chair, I'm certainly going to be looking for some advice on how we resolve those conflicts. I don't think they can continue to exist. Going through the legislation, I noticed that the clauses do not seem to mesh in the sense that they don't resolve the apparent conflict between those two roles.

    The Chair: Are you okay with that?

    Next is Rick Borotsik, then Derek Lee.

    Mr. Rick Borotsik: Thank you Mr. Chairman.

    I appreciate Mr. Walsh's comments and opinions. By the way, I also applaud your loyalty. Your comments with regard to parliamentarians may not be shared by the public out there, Mr. Walsh. You see all of us, as you should, as honourable individuals. That is not something that's shared by the public, unfortunately.

    Mr. Rob Walsh: Mr. Chairman, not as I should, but as I do.

    Mr. Rick Borotsik: I appreciate that. I really do. I mean that sincerely.

    You live in this environment. There are others out there who don't live in this environment and don't share your enthusiasm. That's why I believe very strongly that a code of conduct and a code of ethics are necessary, if not for the realities of it, then for the perception of it, so that people out there can say, our elected representatives are following a code that is put down.

    The reason for that preamble is that we do have a code of conduct in every provincial legislature and territory. We had some of those commissioners here, and they spoke very highly of that code and of the people it applies to.

    In your suggestion, however, what I got was that we're better off not having the code, that we simply live our lives as parliamentarians as we should and perhaps we're better off not having the code. Did I get your interpretation properly, Mr. Walsh?

    Mr. Rob Walsh: No, Mr. Chairman. You took from my comments suggesting that I have difficulty with what's proposed and suggested that therefore I think we don't need a code. I have no problem with there being a code.

    I read quickly through the testimony of Tuesday. I urge the committee members to be very cautious about drawing any direct comparisons between the situation you're dealing with here at the federal level and what may apply at the various provincial levels. I have worked briefly with a provincial legislative assembly, in the province of Manitoba, and as for my own home province of British Columbia, I know how that place works as well in terms of political culture. This, coming here, is entirely a different political culture, in my view.

    I'll give you one example. The example in one of the testimonies, I think, was the idea, in Saskatchewan or maybe one of the other provinces, that members are slow to make frivolous complaints against each other. You know, they watch this very carefully. This is no particular comment on Saskatchewan, but let's take Saskatchewan. You have to pick one. It's a smaller political community. It's a smaller political culture. There could be repercussions to a member who makes a frivolous or vexatious or malicious complaint that's proven unfounded against him or her, and his or her party. In most provinces, this is a two-party system.

    When you get to the federal level, a British Columbia MP can complain against a Nova Scotia MP maliciously, if you like, with very little downside. They're so far apart, it's not going to get back to people.

    Mr. Rick Borotsik: I'd like to jump in here, because I don't accept that argument. I believe they can be just as vexatious in the province of Saskatchewan, as we've seen in the past with respect to some of the conflicts.

Á  (1155)  

    Mr. Rob Walsh: I didn't mean to say that.

    Mr. Rick Borotsik: Sometimes we analyze and over-analyze things too much, and put too many what-ifs into a particular process. I guess I'm not that skeptical that something of this nature can't work, because I believe it can.

    What we also heard was that most of the process is that of advice and prevention. Your office is used in that fashion right now. I come from another jurisdiction where we were administered by conflict and I had to depend on people for advice.

    By the way, the advice given to me in a lot of cases would be, “No, this does not constitute a conflict”. But perception-wise, you make that decision as the individual, and perception-wise, I made a decision not to do something, not because it was illegal, but because it would be seen to be not the right thing to do. I think that's really what a lot of our members are actually asking for. Give us that advice. Let us make the final decisions, but now here are the rules. You can tell us it's not illegal to do that, but you have to decide yourself, member of Parliament, whether you want to do it yourself. I would like to have an individual to call on to be able to do that for me.

    That's how I see this particular conflict legislation as well as the commissioner. Am I off on the wrong track there, Mr. Walsh?

    Mr. Rob Walsh: Not at all. Mr. Chairman, the member has it quite right.

    In our letters to members on conflicts, it's a standard provision to point out that we are addressing the issue as a legal matter. Members should be apprised that there is a political dimension to these questions that only the member can assess. We draw that to the attention of members every time we advise them.

    Mr. Rick Borotsik: I have a last question, if I may.

    The Chair: It has to be very quick.

    Mr. Rick Borotsik: It talks about the political aspects of it.

    In our last discussions, they said that, yes, in fact it is political. If there is a perceived conflict there, usually an opposition member can be found to bring that issue forward. I don't think that's to be unexpected. There may well be frivolous attempts to try to impale other members of Parliament. However, do you not believe that with the right individual there as the commissioner, those frivolous complaints can well be dealt with without having to go through a whole political machination?

    Mr. Rob Walsh: There's no question, Mr. Chairman, that a commissioner, or any official, could deal effectively with many of these frivolous ones, although the member might not think it frivolous. Then he's frustrated and brings it up publicly when he finds it's treated that way.

    From the testimony you have from the officials from the provinces--they didn't say this that I saw, but it seemed to be inferred--most of the cases they deal with are brought by members against ministers. I mean, what gives the game its play is against ministers. You're not going to get the front page of the papers jumping on some backbencher for something he did, even when it really smells.

    Let's just be realistic here. You're talking about perhaps the ethics code in respect to parliamentarians being brought against a minister to embarrass the minister as a member, or a complaint under the Prime Minister's rules. That's not to say the other couldn't happen. Sure, it could between members, but in reality it's probably going to be targeted toward ministers.

    That raises further the question raised earlier. How much attention needs to be paid to rules pertaining to members of Parliament in a sort of quasi-legal way? God forbid the lawyers might get involved here.

    The Chair: Derek Lee, and then I'm going to wind it up.

    Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you.

    Mr. Borotsik just had the good fortune, or misfortune, to raise a paradigm I want to take great exception to. It's contained in the opening sentence of this document. I think, Mr. Walsh, you prepared that for us.

    The Chair: Rick, could you just table it for the rest of us before--

    Mr. Derek Lee: It's called, “Fact-Sheet: Conflict of Interest”.

    The Chair: It's one sheet, two-sided copy.

    Mr. Derek Lee: Yes.

    If you read the first line it says:

On being elected, Members of the House of Commons must ensure that their private interests are not in conflict with their official duties and responsibilities.

    Mr. Borotsik just raised the scenario, or paradigm, in the House where an opposition member will look across the floor at a government member or minister and say, ah, you have a conflict; you're corrupt. Now, I reject this fuzzy thinking. I reject it patently, and I'm going to ask Mr. Walsh if he agrees or not. I'm going to ask him to admit he may be wrong in the way this has been characterized in the first sentence--but he's not the first; I think that same paradigm and wording may be contained in the Milliken-Oliver report--that conflicts are not wrong.

    How can a member ensure that their interests are not in conflict? Conflicts exist and mature and arise all the time. Mr. Stoffer had one. Mr. Johnson had one. Mr. Lee has one, many maybe. They happen. The issue isn't the existence of the conflict as a bad thing. It's a neutral thing. The issue is how one manages the conflict.

    I'm sick and tired of having this inept paradigm repeated and repeated, and now it comes from you. You have taken it from somewhere else. I reject it totally. Someone is going to have to get a handle on the words we're using and the concepts we're dealing with. A conflict is okay. It happens all the time. We can't ensure that we don't have conflicts. That raises the bar so damn high nobody could ensure it.

    We have to change our thinking, and you do too, very respectfully, Mr. Walsh. I'd like your comment on that. I'm not taking sides here for the next six months if we don't change our thinking on it.

  (1200)  

    Mr. Rob Walsh: May I remind you that in my opening statement I acknowledged that conflicts do happen for members all the time. The issue is whether they allow their conflicts to take priority over public interests.

    Mr. Derek Lee: So what about that first sentence, “We must ensure....”

    Mr. Rob Walsh: You've taken it a bit out of context. You've read the sentence by itself. It is there as an intro to what follows in terms of how conflicts are dealt with in legislation.

    But you're quite right, Mr. Lee. There's no question that often this concept of conflict of interest is used in a fuzzy manner to try to tar somebody with some dishonourable conduct, when in fact all they find themselves in is a conflict, not of their own making, but it comes up by virtue of circumstance, and they never had an intention to act dishonourably or to use the private interest for themselves at the expense of the public interest.

    The fundamental issue is whether private interests are allowed to take priority over the public interest. That's the issue, and it's a matter of fact. But as someone said earlier, there's a perception issue and there's this whole domain of how are these conflicts, when they're presented.... And a complaint does that. A complaint basically will say, this member has this interest; this is in conflict with this function. All right, so there's a conflict. But the question fundamentally is, was that private interest allowed to be advanced, or furthered, at the expense of the public interest? But the public may never get to the second issue, having heard the first issue. That's the problem I think some members feel with regard to the whole question of ethics and the complaint process being brought in.

    Mr. Derek Lee: I thank you for that.

    The Chair: Rob, in your statement you say, “Members of Parliament cannot easily avoid conflicts of interest in their work”. In the sense that Dale defined it, there's potential conflict of interest. In our particular profession it's impossible to avoid conflict of interest, is it not?

    A tax bill, for the sake of argument, or almost anything that we do, potentially, either immediately or down the road has conflict of interest in it. That's the difference between us and, say, physicians. With physicians, once they've moved out of their professional area--it has nothing to do with medicine, it's confined in that area--they can function in an ordinary way. We actually can't.

    In buying a home, for example, we have changed the tax structure so it's easier to buy a home. There's potential for conflict. Is this not so?

    Mr. Rob Walsh: Mr. Chairman, this is very much so. All of our members of Parliament, unlike my profession.... As a lawyer, if I have a conflict, it's because my interests are in conflict with the interest of the client whose interest I'm supposed to represent. Well, fine, I don't act for the client. Easy solution. The client finds another lawyer.

    The problem here is that you can't just resign your seat every time a conflict comes around. You can, as Mr. Stoffer said and Mr. Johnston may have suggested, withdraw from a debate. But that's addressing the appearances. That's fine to instill confidence in the public that you're mindful of your public duties and not allowing your private interest to prevail. But at the same time, you've denied your constituents of representation on that issue.

    Now, what's the larger public interest here--that those constituents have their representative there playing the part, representing their interest, or that he or she look after their own little personal problem as a priority? Is he serving the public interest by withdrawing from the debate? Arguably, he's not.

    The Chair: No, and I believe, by the way, the general arguments here are very important for what we're doing.

    The other thing I'd like to comment on--Rick mentioned this and you did--is this question of scale. Again, this happens to be my opinion, but I think it's also important that we bear the scale factor in mind. I listened to the commissioners the other day, and it's not simply a fact that there might be 50 of them and 301 of us. I think the scale is much greater. I think for the officer-holders--and as you mentioned, there are thousands of office-holders--it is a much larger financial operation than it is for many of the others. I think it's roughly a $1-billion-per-working-day operation that we're dealing with. And it's worth bearing that in mind, if you think about it that way.

    The other one is, Rick, I think the spotlight is much brighter, so the perception matters that you, and Peter, and others have discussed become that much more important. And I think we have to bear that in mind. We can't simply take something from the provinces and just apply it here and think it would automatically work.

    Rob, I want to thank you.

    Mr. Rob Walsh: Could I make a closing statement?

  (1205)  

    The Chair: If you would, by all means.

    Mr. Rob Walsh: Some numbers...we're all attracted to numbers. They can be as misleading as they are informative, but here they are. In the last eight years my office has had 80 consultations on conflicts of interest. Many of you have already made the calculation, but I'll help out those of you who haven't. That's 10 a year. That's less than one a month. That's just those who choose to walk in the door and talk about it. There may be others who have serious problems who didn't walk in the door, but there are these. And 29% were related to business interests; 14% were related to the member's former profession.

    Mr. Johnston may be pleased to know that of those the largest category were farmers. They're a very conscientious professional group. I am embarrassed to say that the lawyers were second behind farmers. We didn't quite make it. And then issues relating to spouses' activities were down to about 6%.

    In any event, those are numbers that indicate in the last eight years it's 80. Would it be more under this code? Is that at all an accurate indication of the scale of the problem here that this code attempts to address? I'm not sure. But it offers something by way of a dimension in that over eight years it's 80, which is less than one a month.

    I have to be frank with you and say, in my experience in dealing in this field, I don't see members of Parliament as a problem relative to ethical behaviour.

    The Chair: Rob, again, thank you very much indeed. It's been very useful.

    Colleagues, I'm going to suspend for about three or four minutes before we proceed with--

    Dale.

    Mr. Dale Johnston: Mr. Chairman, our time seemed to be very inadequate to be able to question Rob Walsh. I would hope that we get another opportunity.

    The Chair: I'll take that under advisement. I heard it also from Jacques Saada, and we'll certainly see how it fits in with our schedule.

    Thank you very much. I'll suspend for three or four minutes.

  (1206)  

---

  (1215)  

    The Chair: Audrey, please proceed.

    Ms. Audrey O'Brien (Deputy Clerk, House of Commons): Thank you, Mr. Chairman.

    May I ask whether or not the members of the committee also have this flow chart?

    The Chair: I do, but do members have the flow chart?

    An hon. member: No, we don't.

    The Chair: Colleagues, it's this thing here. Members of the steering committee likely have it.

    Ms. Audrey O'Brien: My colleague Marie-Andrée Lajoie will see to the distribution of that chart, simply because it contains, in visual form, the efforts we have made to execute the fourth report, as found in the document entitled “Chapter XI, Private Members' Business”. This document contains the proposed provisional Standing Orders that would be in place during the pilot experiment with this new approach to private members' business.

    If I may segue back,

[Translation]

I would just like to say that I am pleased to be with you this morning to review the work we have been doing in the last few weeks to implement, as I was saying earlier, the fourth report of the committee, which was passed on November 4.

[English]

Considerable work has been done by the committee and many members in contributing to this analysis of private members' business in both this session and the last session. This culminated in the tabling of the sixty-sixth report of this committee.

    We're now at a kind of penultimate step, which is the discussion of the draft Standing Orders and the recommendations that will contain the elements of the special order that will govern the transition from the existing system through to the new provisional system, which will be the experiment in place until the end of this Parliament.

    The general principle you will find contained in the new Standing Orders is the notion that one item per member per Parliament will be voted upon. There will still be the draw to determine the order of precedence. There will be no limit to the number of items an MP can put on the order of precedence, and every item will be votable unless it's deemed inadmissible.

    My understanding is that the document you have, entitled “Draft Report” and dated November 28, contains various elements about the transition that will take place. In order to shepherd this whole process to its next step, we will be most anxious to see the report of this committee tabled, so there can be, before the Christmas adjournment, if it's the will of the House, the adoption of the report and of the special order putting into place this provisional regime. Then, as soon as the House resumes on the January 27, we can start operating with the new Standing Orders.

    With that kind of timing in mind, we suggest--Marie-Andrée will be telling you more about this in a moment--that for the transition period, the items that are already on the order of precedence be dealt with through the existing Standing Orders. An analysis of what's on the order of precedence now shows us that the items there that are non-votable under the current system will have been dealt with by the time the House adjourns. The other items that are votable will have moved into their second hour, after which time the old regime and the new provisional regime will be the same, so they can easily and seamlessly move into that new environment.

    Basically, that's what we're here to discuss with you. That's all I have to say this morning, before passing it over to Marie-Andrée. Clearly, one of the key elements in this is going to be the work of the private members' business panel, just as a key element in the last private members' business regime was the Subcommittee on Private Members' Business of this committee. It's, I dare say, a thankless and daunting task, but one that people have really devoted considerable and energy to, and I'd like to thank you for that.

[Translation]

    So, without further ado, I would ask Marie-Andrée to go over the details of the interim proposals.

  (1220)  

    Ms. Marie-Andrée Lajoie (Principal Clerk, House Proceedings, House of Commons): Thank you.

[English]

    Thank you, Mr. Chair. I will first go through the document called “Draft Report” to give you the background on how we propose that this come into force.

    Paragraph 1 basically details the transition mechanism, as Audrey just explained. In a sense, I think two things need to be mentioned here.

    We're going to slowly transit into the new regime, while finishing the list already there, in order not to penalize any members drawn in the first round. But we're not going to call it the first round under the old rules. What's important to understand is that the members who are in that order of precedence now will not be prejudiced from being there. So when we draw for the first round under the new rule, every member who has an item on the big list in the order of precedence will be in the new regime. So in a sense, what's happening now is that there is a free round for the people who are on it. It's not going to be prejudicial to the member.

    The second paragraph talks about the creation of the panel. We recommend that, if these provisional Standing Orders are adopted, the panel could be struck as early as possible to start working on the criteria and get ready to slowly transit to the new regime, as the House comes back in January.

    Paragraph 3 is shaded. I mention this because it's the result of further discussions when we presented the package to the steering committee of this committee on Monday afternoon. The recommendation here is that decisions of the panel be unanimous, and that the panel be empowered to report to this committee when it deems an item non-admissible for a vote. So this is a new thing, which is not contemplated in the fourth report.

    Ms. Audrey O'Brien: As a result of an earlier discussion, I might just add that, because this came out of the discussion with the steering committee, the unanimity provision here is not yet reflected in the text of the Standing Orders. But if this provision is acceptable to the committee, then we'll make the draft text concur with this. The unanimity provision will then be found in the text of the Standing Orders as well as in this more global provision.

    Thank you.

    Mme Marie-Andrée Lajoie: Under the new provisional rules, the fourth paragraph fixed the first draw to Thursday, January 30, which is the first Thursday after the House comes back. This basically gives enough time for 48-hour notice when the House comes back in mid-January. As draws are traditionally held on the Tuesday or the Thursday, this was the first date that made sense.

    The fifth paragraph sets out the review this committee would be mandated to make after one year of the pilot project.

    Paragraph 6 reiterates the power that's given to the Speaker under Standing Order 94(1) to ensure the orderly conduct of private members' business. The whole process of objections, and merging a new system with the old one, may be a little tricky at times, so we'll try to make the management of exchanges and the dropping to the bottom of the list as elegant as possible. But we thought it was a good idea to reiterate the power of the Speaker for orderly conduct.

    Paragraph 7 is also the result of the discussions held last Monday. It adds to the first hour of debate a five-minute question and comment period for the mover only, and a five-minute right of reply at the end of the debate for the mover. This is a new and interesting procedure, which we need.

    Paragraph 8 basically consists of the draft Standing Orders, which I'll go through in a minute.

    Paragraph 9 amends Standing Order 35 to allow the panel to report the criteria directly to the House. It basically allows the panel to report directly to the House instead of to the committee.

    And finally, paragraph 10 suspends standing orders that empowered members to mandate a committee to come up with a bill. Under the old Standing Orders, it made sense. The old process meant two draws for the MP, but it would not be logically consistent with what we're putting in place now. So we're just suspending it for the time of the pilot project.

    If you would like to turn to the chapter on private members' business.

  (1225)  

    The Chair: Marie-Andrée, will you explain the two types of shading?

    Mme Marie-Andrée Lajoie: Absolutely.

    The Chair: Okay.

    Jacques Saada.

[Translation]

    Mr. Jacques Saada: Mr. Chairman, I apologize, perhaps I am not quite awake, but I am having difficulty understanding. We are talking about implementation procedures, are we not? And yet I thought that in our report, we had an introductory paragraph which enabled us to review all of this before we thought about implementing it. So I do not exactly understand what we are talking about here. Could you explain this for me?

[English]

    The Chair: It seems to me the report was agreed to unanimously in the House of Commons, and we, as a committee, are proceeding as best we can to implement that report.

    So we have two things in play here. One is the changed Standing Orders, and the other is the explanation of how we move from the old Standing Orders to the new.

[Translation]

    Mr. Jacques Saada: Mr. Chairman, I understand that and I respect the process. That is not the issue. The issue is that the report that was concurred in by the House provided that we still had work to do before implementing it, as stated in the introductory paragraph that we added. It mentioned a future consultation process to deal with certain problems, such as the one regarding the Senate.

    So I think this is very good; I am not criticizing the implementation, but I think that we are getting our stages out of order.

[English]

    The Chair: Audrey O'Brien.

[Translation]

    Ms. Audrey O'Brien: Mr. Chairman, perhaps I could try to respond to that. In fact, I may have been wrong in saying that we are currently at the implementation stage, that is, given that the fourth report was adopted as written, I think that when my colleague explains the proposed standing orders, you will note, for example, that the first paragraph of the fourth report mentions the problems that were raised by the senators at one point concerning the recommendations in the 66^th report.

[English]

    The Chair: I know Marie-Andrée is going to do it too, but I'd like to follow up on that explanation. The bolded areas are new material that we should look at. Where it's shaded, it's even newer, if you like, because it's what the steering committee suggested, which we discussed the other day.

    So to give you an example, on page 3, proposed Standing Order 87(3)(b) is the shaded section that refers to the Senate. Jacques, you're absolutely right that we're not in the process of transition here; we're still in the process of adapting, while thinking about the transition.

    On page 4 under Standing Order 89, “Order of bills on precedence list”, in the very last line it says, “ be placed at the bottom of the order of precedence”. That was one of the matters raised by the Senate. We have not yet addressed that, you're absolutely right, and I'm sure we will do so now.

[Translation]

    Mr. Jacques Saada: It may very well be that the decisions we make after a process could force us to review this implementation. So would it not be more logical, out of respect for everyone, to begin by holding consultations on the proposed standing orders, and once that part is finished, examine the concrete realities of what has been adopted and what people are prepared to do in order to see how this can be implemented? Are we not doing two things at once? That was my question.

    Mr. Pierre Brien: [Editor's note: inaudible]

[English]

    The Chair: I don't think there's anything particularly illogical about thinking of the two things at once. You realize the original called for implementation in October. The thing has been reintroduced in good faith in the House of Commons, so we are simply, in our best judgment, trying to make the appropriate revisions, adjust it, and at the same time think about the time line, because it originally said October.

    If the committee wants to take another route, I'm in the hands of the committee. The committee is the master of its own fate. If the committee wants to change that, it can do so.

    At the moment, Jacques, quite frankly, I accept your points about the Senate, and I just pointed out one that I realized we had not really discovered. We dealt with one of the items the other day, so I want to rule that we continue as we're doing now; that the members get up to speed; and we deliberately have the briefing of the members of the steering committee, including Joe Jordan. So I think members of the steering committee know where we're at.

    I'm thinking about what you said, but we're trying, because of the direction the committee has received, to do both things you described at once. I think it's not illogical to do that.

  (1230)  

    Mr. Jacques Saada: Perhaps I can add one last sentence. In these last comments you made you referred to the fact that I couldn't make it for the steering committee, but I had no business being in the steering committee.

    The Chair: I'm sorry. Excuse me. I do understand the history of that comment. Okay.

    Marie-Andrée, please. So we're now considering this document.

    Ms. Marie-Andrée Lajoie: That's right.

    The Chair: Colleagues, this is now chapter 11, the draft of November 26. And will you explain again the two types of shadings so members know?

    Ms. Marie-Andrée Lajoie: Absolutely. I will go through the two types of changes that have been made. What members will find in the document that is in bold are the changes that are directly related to the fourth report. That's the way we suggest implementing the fourth report. What Mr. Chair has already mentioned is in shading are further changes that are suggested by the steering committee. I'll go through all of that, but this is the nature of the change.

    So perhaps we can look on page 1, at Standing Order 86.1 under “Private Members' Business to continue”. This is a standing order basically allowing members to introduce bills or put motions on the Order Paper, and these items remain there for the length of a Parliament. There's no question of reinstatement or reintroduction. The items are put in as we go through a Parliament and there's no need at the beginning of a session to do it again.

    So the private members' business system will operate on a parliamentary basis rather than on a session-to-session basis. There's no limit to the number of motions or bills that a member can put on the Order Paper, so that basically remains the same.

    If I turn to page 2, on Standing Order 86.2, we have kept the reinstatement of bills as standing orders but only for Senate bills, because Senate bills would have to come back to the House at the beginning of a new session because they operate session-by-session. So that's the only reason we kept the reinstatement provision for Senate bills. And we actually put 60 days for the Senate to readopt a bill and bring it back at the beginning of a new session. So we hope that 60 sitting days will be a more realistic timeframe.

    Standing Order 87(1)(a) establishes the draw for private members' business. It's now a draw for 40 names and since--

    The Chair: Members' names are drawn, not their bills.

    Ms. Marie-Andrée Lajoie: Absolutely, and those who are familiar with the private members' business draw right now know that we draw 30 names and then we draw for bills and we draw for motions. Every member who is drawn will basically have an item that will come to a vote unless it's objected to. The new Standing Order 87(1)(b) gives the member a chance to put either a bill or a motion forward.

    Mr. Rick Borotsik: I have an important point of clarification, Mr. Chairman.

    A name is drawn, but you must choose a bill or motion out of the bills or motions that the member has already tabled in the House. If Tony Tirabassi's name is drawn, he can go back to the 5 or 10 or 15 bills he has filed and pick one of those to go forward as a votable motion. Now, if a member has only one filed and he has his name drawn, then he, or she, has no other choice but to take that one bill or motion that's already tabled with the House.

  (1235)  

    The Chair: And Pierre, do you want to comment now?

[Translation]

    Mr. Pierre Brien: Will the names of all MPs be in the draw, even if they don't have anything on the Order Paper?

    Ms. Marie-Andrée Lajoie: No. There is also a standing order that will specify who is eligible, but it is basically those who have an item on the list in the Order Paper.

[English]

    The Chair: Please proceed, Marie-Andrée.

    Ms. Marie-Andrée Lajoie: What we put as well in the same standing order is a process. If a member doesn't identify the item of choice after 48 hours, we will go by bill, motion, or motion for the production of papers in order to have some kind of a sequence. It's more a technicality at this point. The member can still decide that his or her item will be votable. That's included in Standing Order 87(1)(c). I'm on page 3 now. During a session we'll go back to drawing when we get to 20 or less. It is 15 now, so we just changed the number.

    On the middle of page 3 we have the new standing orders on eligibility. Basically, Standing Order 87(3)(a) indicates that an MP, as Mr. Brien was pointing out, who has an item on the list on the Order Paper is eligible.

    As mentioned earlier, Standing Order 87(3)(b) is shaded. It basically addresses the Senate concern of the sponsoring of Senate bills by members. Basically, the member who sponsors a Senate bill would not lose his or her spot in a round of private members' business, but he or she would be limited to sponsoring a Senate bill once in a Parliament.

    The Chair: Garry Breitkreuz.

    Mr. Garry Breitkreuz (Yorkton—Melville, Canadian Alliance): I have no problem with Standing Order 87(3)(b) but I do with Standing Order 87(3)(a). It says that “their name placed in the order of precedence once in each round of draws for Private Members' Business pursuant to Standing Order 87.” If someone has their name drawn, their name does not go back into that pool until the end of the Parliament.

    Ms. Marie-Andrée Lajoie: Until the end of the round, when everybody who wants a turn has had a turn....

    Mr. Garry Breitkreuz: So you cannot say, “My votable item has been drawn, but I want my name in there now for non-votable items”. There will be no non-votable items until everyone has had a chance to have a votable item before Parliament.

    Ms. Marie-Andrée Lajoie: That's right, unless a member is drawn under those rules and decides to have a non-votable item.

    Mr. Garry Breitkreuz: Yes, but if they use up their spot, that's it. It's their spot and their spot is used up. That isn't quite clear from Standing Order 87(3)(a). I almost think you might interpret it as this. At the end of each round of draws, once another draw is made, once they go to 20 items, they'll have another draw, but your name does not go in there.

    Ms. Marie-Andrée Lajoie: No.

    The Chair: Jacques Saada, on that same point.

[Translation]

    Mr. Jacques Saada: At the end of the whole process, in other words, after all those who want to put forward an item have given their name, etc., if I have already had a motion or a bill, will I be entitled to have my name drawn again?

    Ms. Marie-Andrée Lajoie: At the end of the process, in the second round.

    Mr. Jacques Saada: What I am concerned and confused about is the transition. I may very well have had my turn but then someone may come forward with an item who did not have one before. I may get a second item before that person has a chance at a first one.

    Could we have some clarification as to how things will work during the transition between the two systems?

    Ms. Marie-Andrée Lajoie: What we are proposing is that each round would really have a beginning and an end.

    Mr. Jacques Saada: Yes, but what I do not know is how the end of a round will be defined.

    Ms. Marie-Andrée Lajoie: I will come back to that, but it is in point 4.

    Essentially, the end of one round and the beginning of the next could take place within the same draw, that is, at the point in the first round where there are fewer than 20 members on the Order Paper who had not had an item, those remaining will appear on the Order Paper. In order to establish an order of priority, the Speaker could issue a note telling members that the first round is ending and that those who have not had a chance should take note. In order to have the full 40 items, the second round would begin as part of the same draw.

    Mr. Jacques Saada: I see.

  (1240)  

[English]

    The Chair: I think your calculation is that in a normal Parliament, if there is such a thing, members might well get two chances.

    Rick.

    Mr. Rick Borotsik: Yes, I want clarification basically on this point that we talked about in the steering committee. When you begin the round, if there are members who do not have bills that have been tabled, can they table them at a later time and then be coming back into the round?

    The reason that was brought up was because there was a potential there perhaps for some manipulation.

    If numbers of people keep their bills off the Order Paper, they go through the round and now there's only 40 or 50 potential members again going into the round. You have to table your bills at that time and then you have to be brought in through the rotation. So we don't have any protection over that.

    Ms. Marie-Andrée Lajoie: No, it's the same process now basically. Before each draw a member can put new items on the Order Paper.

    Mr. Rick Borotsik: But you can get drawn more than once, that's the thing. You only have 40 members left who have the potential of being drawn. Then they could all go in at one time.

    Ms. Marie-Andrée Lajoie: That's right.

    The Chair: I think this is very good, but we should just keep the thing moving, that's all.

    Ms. Marie-Andrée Lajoie: Basically, we explained the question about the Senate--the rounds. We have standing orders at the end of a round and the beginning of a new round. That's in Standing Orders 87(4)(a), 87(4)(b), and 87(4)(c).

    Turning to page 4, Mr. Chairman mentioned Standing Order 89. It's not highlighted, but it's the standing order that's there now. Any new business goes at the bottom of the order of precedence. That remains the same.

    The Chair: Can I interject on that now? I've been before the Senate committee, and this is one of the items they mentioned very specifically. They felt it was demeaning to be put at the bottom of the order of precedence. I tried to explain I would feel bad being put at the bottom of the order of precedence--so would Gary, even more than me--under these circumstances. To them it sounds demeaning. I think it is perception. On a one-on-one basis, we could explain it.

    I then said, why don't we just put in, “should be placed on the order of precedence”? We all know it goes on the bottom. The best advice I have received is that we cannot do that; we have to specify where it goes. This is not to change it now, but what if we said, “to be placed on the order of precedence immediately after the last item not the subject of a pending objection before the panel”?

    Mr. Rick Borotsik: What about just “placed on the order of precedence in the common rotation”?

    The Chair: I tried that one, but apparently it is not a sufficiently strong statement.

    Audrey, please.

    Ms. Audrey O'Brien: May I say, Mr. Chairman, you were a saint before the Senate committee.

    The Chair: That is true.

    Some hon. members: Oh, oh!

    The Chair: I was there for two and a half hours.

    Ms. Audrey O'Brien: I read that with some degree of distress.

    Perhaps this could be solved if we said, “shall be added to the existing order of precedence”.

    The Chair: This is why we pay these people the big bucks.

    Colleagues, we're going to come back to it. This is not being cast in stone, but that sounds better to me.

    Jacques Saada.

    Mr. Jacques Saada: Where will it be added?

    The Chair: If it's added, it will obviously be added at the bottom.

    Ms. Audrey O'Brien: If you put in, “existing order of precedence”, you have the order of precedence and you add something. You just don't specify it's at the bottom.

  (1245)  

    The Chair: Jacques.

    Mr. Jacques Saada: I don't want to dwell too much on it because we may need to do more homework, but here is an easy counter-argument. I'm playing the devil's advocate, having full respect for both Houses on the issue.

    When we have a private member's bill that is initiated by a member of Parliament, it goes through the process. This bill becomes a bill from the House of Commons; it's no longer a bill from a private member. Therefore, it goes directly to examination by the Senate as a bill coming from the House of Commons.

    It's the same thing the other way around. When a bill has gone through the Senate, it has been through the process of becoming a bill from the Senate. Why should we reverse it? A bill coming from the Senate goes to the end of whatever cycle, whatever balancing there is, whereas the other way around, they take it in priority in terms of premise.

    I'm not debating whether it's correct or not for them to argue this point, but I think there is a point here that we should listen to.

    The Chair: The point is, it shouldn't be private member's business. Is that the key point here?

    Mr. Jacques Saada: That's right.

    The Chair: I'm not saying it should or it shouldn't, but the only way out of that is to say it's not a private member's bill so we don't deal with it here. You have a separate category. So now we're outside private members' business, just for the sake of discussion here.

    Ms. Audrey O'Brien: Yes. I have to confess I'm not familiar enough with the rules of the Senate to quite understand their processes in this regard. But if we don't add it to the order of precedence, it becomes an entirely independent creature of some sort that would have to be dealt with outside of everything. Right now, for example, it requires an MP to be a sponsor of such a bill to take it in.

    Mr. Jacques Saada: If we want to maintain that, I don't think there is much objection to it. If an MP wants to take charge of a bill coming from Senate, the concern is that this member would lose his turn with his own private member's bill. This has been dealt with.

    The second issue is that a member needs to introduce it in the House--of course someone needs to introduce it somewhere--and therefore needs to be able to defend it. So it can't be an automatic mechanism by which it's going to go through a whip or through here. It has to go through a member of Parliament to be introduced.

    But this member of Parliament doesn't address this bill in the same fashion as a private member's bill. Therefore, the parallel system we should have is indeed a special treatment of bills coming from the Senate, totally distinct from the one of a regular private member.

    The Chair: Pierre Brien and then Garry Breitkreuz.

[Translation]

    Mr. Pierre Brien: I have a problem with giving the Senate equal or similar treatment, because it seems to me there is a fundamental difference between the two institutions, and that has to be recognized. I do expect a private member's bill in the Senate to be treated differently from a Senate bill in the House of Commons, because the one house is elected and the other appointed. In a way, that also explains why there are discrepancies of this kind. I can see that senators may not be happy, but there are limits to their calls for reciprocity in this type of procedure. I, for one, am not comfortable with that.

[English]

    The Chair: Garry, on the same point.

    Mr. Garry Breitkreuz: Would the wording help address this concern if we said “is added to the order of precedence on the same day as it is introduced into the House of Commons”?

[Translation]

    Mr. Jacques Saada: Mr. Chairman, I thought we were going to be meeting later to deal specifically with that, but with your permission, I think I am going to go ahead and...

[English]

    The Chair: We will, certainly on this side, but I think it's worth dealing with it for a few minutes now.

[Translation]

    Mr. Jacques Saada: I don't need convincing that since the Senate is not elected and we are, we don't necessarily have to have equality across the board; that is quite clear. But the fact remains that senators are appointed under the Constitution and there is a parliamentary process that has taken place. In other words, it's not just an idea that somebody has thrown out, a parliamentary process has taken place, with witnesses being heard, with parliamentary committees, with votes and so on. When you have a process like that, taking place before a constitutional parliamentary institution, it's not the same as simply having a private member bring forward a bill. So I'm not saying everything has to be equalized, but perhaps some special consideration should be given to that.

    I'm not saying that as soon as we have a Senate bill, it should systematically take precedence over all of our other work. That's not what I'm saying, but I am saying that lumping that in with private member's bills is a bit of a distortion of parliamentary democracy, with its hearings and decisions made by vote among people who are accountable to the public.

  (1250)  

[English]

    The Chair: Let me go back to Audrey O'Brien, Jacques.

[Translation]

    Ms. Audrey O'Brien: Perhaps I could make a helpful suggestion. I think that Mr. Saada's suggestion this morning truly leads us to consider a whole new concept of how bills coming from the Senate should be treated, taking into account parity and equity between the two Chambers, etc. If you want, what we could do is take a closer look at that and come back to you with a recommendation on how we could proceed.

[English]

    For instance, it seems to me that what's being discussed now, or at least alluded to, is the possibility of the creation of a new process altogether for dealing with bills emanating from the Senate.

    The Chair: Let me comment on it. I think it's outside the frame of reference we've been working in.

    What I'd like to suggest, colleagues, is that we do in fact change Standing Order 89 now, and it would go in as one of these shaded items. It would be changed in a way to be added to the existing order of precedence, or whatever the exact wording is that we have. It's a new item. It seems to me that's as close as we have gotten within this frame of reference to dealing with the problem. Then we would take up Audrey's offer about coming back with some other proposal.

    I want to add, though, for the record that it has been pointed out to me that in a sense we in the House of Commons have two orders of precedence. We're talking about one very specific order of precedence here, but we also have government orders. The Senate has only one order of precedence. When an item from the House of Commons goes to it, that item goes to the bottom of the Senate's order of precedence. It is in fact added to their existing order of precedence.

    Jacques, go ahead.

    Mr. Jacques Saada: Just one point of clarification, not on substance but on process. You mentioned that it is beyond the scope of the mandate we have received.

    The Chair: No, not the mandate, the frame of reference we've been working in. I think the committee can do whatever it likes.

    Mr. Jacques Saada: Okay. But I understand that since it is considered under private members' business and we are dealing with that, it is our duty to also look at that.

    The Chair: I'm trying to deal with private members' business in the House of Commons while bearing in mind the Senate concerns in the way you've articulated so well.

    Colleagues, we don't need to vote on that. That's what we're going to do with this item. Is that okay?

    Some hon. members: Agreed.

    The Chair: Marie-Andrée, please.

    Ms. Marie-Andrée Lajoie: In Standing Order 91 one line is in bold type. It provides for the suspension of private members' business the same way we do it before the order of precedence is established. It's going to be the first few days when it's the time for objections, if you want, after a draw.

    The Chair: I have Carolyn Parrish on the regular list. You can see that we've been breaking away from it. But Carolyn Parrish has a remark to make now.

    Mrs. Carolyn Parrish (Mississauga Centre, Lib.): I'm concerned about this whole section on the private members' business panel. I notice that on the flow chart you have five members. I think you'll have to look at that again. I think you have to have a non-voting chair from the government. I've chaired meetings on private members' business, and I know what goes on there. If you have one from each party, you have to have somebody keeping order. It should be a member of the government and a non-voting chair.

    The Chair: Carolyn, you should know that the report recommended what is here. It's not that we can't change it, but I'm pointing that out to you.

    Mrs. Carolyn Parrish: I'm telling you that you're going to have a problem with that.

    The second thing that I find fascinating--and I have been away, so I must apologize--is that I don't know how you can possibly get to this point without looking at the criteria they're going to be basing the evaluation of the private member's bill on. It's absolutely impossible.

    The Chair: Again, Carolyn, the report recommended this approach. I've expressed some concern about the term “panel”, and we can certainly come back to that if you wish. It said that the first thing the panel would do is come up with these very concrete criteria for--

    Mrs. Carolyn Parrish: We already have votability criteria, so one can assume that would form a basis for this.

    Will members come and present to that panel?

  (1255)  

    The Chair: No.

    Mrs. Carolyn Parrish: So it's done strictly in a vacuum. That's unbelievable.

    The Chair: They will be told that it's inadmissible according to published criteria; for example, not in the federal jurisdiction or unconstitutional.

    Perhaps Jamie could speak to that for you, because we've been through it a few times today.

    Mrs. Carolyn Parrish: Okay. I'm sorry.

    The Chair: Go ahead.

    Mr. James Robertson: The panel would not look at anything selected on the order of precedence unless an objection were raised. So if an objection were raised against two of the forty items, those two would go to the panel. The other thirty-eight would not be discussed or considered by the panel in any way. They would go forward as having two hours of debate and being votable or, if the sponsor requested, one hour of debate, non-votable. The only issues that would go before the panel would be the two objections that had been filed--

    Mrs. Carolyn Parrish: Let me give you an example of what we've already had. We had someone who was fundamentally opposed to abortion sitting on our private members' business committee. The person was fundamentally opposed to it, didn't want it discussed, didn't want it going to the House, and didn't want anything to happen to it. You have said here a unanimous vote. So that person is going to scan the.... Let me finish.

    The Chair: I'm sorry, I was talking to Jamie. I apologize.

    Mrs. Carolyn Parrish: This person can just sit there as a watchdog for abortions, scan the whole thing, or same-sex marriages, or any issue like that, scan it, and object every time that comes up, then direct the person who sits for their party on that panel to vote against it. It automatically gets removed all the time. this would be--

    The Chair: All right, Carolyn.

    Jamie, just explain, because again we have been too quiet.

    Mr. James Robertson: Everything is votable unless the panel unanimously decides that it should not be votable.

    The Chair: So one person can't stop it.

    Mr. James Robertson: All five, in the case of the five proposed, or the six that you're suggesting, on the panel would have to agree that the objection is merited in order for it not to go forward. So if only one person said no, that isn't sufficient to stop it being votable under this proposal.

    The Chair: All would have to agree that the criterion on constitutional was met.

    Mrs. Carolyn Parrish: I don't know what happened. I go away to Turkey and I come back and this thing is running along quite happily.

    The Chair: You should stay here.

    Mrs. Carolyn Parrish: I should stay here because--

    The Chair: I know that the elections didn't go very well there either.

    Mrs. Carolyn Parrish: I fundamentally disagree with all this. I don't know how you could possibly pass this as a working paper or a procedure without knowing what the criteria are. I find this baffling.

    The Chair: Again, I can only say that this is the way this proposal....

    Jacques Saada, briefly, if you could, sir.

    Mr. Jacques Saada: It seems to me that when we discussed this issue way back then, we also had the opportunity left to the panel to go back to the member and ask him to modify or amend his text to make--

    The Chair: By the way, that is still in.

    If you would, colleagues, I think we're going to have to draw a....

    Marie-Andrée, can you do anything useful in these few minutes?

    Some hon. members: Oh, oh!

    The Chair: No, I didn't mean it like that.

    Ms. Marie-Andrée Lajoie: I like it, I like it. I try to be a useful person.

    Basically, Standing Order 92(1) is the management of objections, if you want; and Standing Order 92(2) convenes the panel when there's an objection; and Standing Order 92(4) basically deals with the process for the member to either modify the item that's been objected to or to resubmit something that's different, if you want, in order to meet the criteria. On page 7, it's two hours of debate for all items--that's in Standing Order 93(1)--then it's division, if requested, deferred to the next sitting Wednesday at the latest, at the beginning of private members' business; no amendments to the motion for second reading, or to a motion unless the sponsor consents to the amendment.

    On page 8 it's basically a kind of technical amendment at the top--the amendment that is shaded is the five-minute questions and comments at the end of the sponsor's debate, and five minutes of rebuttal at the end. Then there's no dilatory motions during private members' business, and that's Standing Order 95(3), at the top of page 9; and some further clarification and questions of consent of the sponsor for amendment at third reading, which--

    The Chair: The steering committee spent two and a half hours on this and we're obviously going to have to return to it. I understand that. I want to thank our witnesses for taking us through it.

    I want to again explain what I think we're doing. A report was adopted by this committee, submitted, and was unanimously supported in the House of Commons. If that same report was reintroduced, this is an interpretation of that report. By the way, until I get instructed otherwise, that is what we're doing.

    Can I ask you all, in addition, by the way, to thinking about this very carefully and looking at the material we've been provided, to think about this matter of panel again. You should understand that's in the report too. The idea was that it would be a creature that is in some ways different from a subcommittee of this committee. But the only way it's different at the moment is that under this it can report directly to the House. On the other hand, it needs all the powers of a subcommittee to operate. Again, that's described in here. I'll ask you to think about whether it's worth doing that, whether it's worth maintaining that difference, and whether it would not be simpler, at least in the initial trial of this activity, to have a subcommittee of this committee.

    Jacques Saada.

·  (1300)  

[Translation]

    Mr. Jacques Saada: Could you help me out, Mr. Chairman, because my memory fails me. Was there any reference in the initial report to unanimous objection? Can you confirm that it was indeed in the report we were given at the outset? Or was this an idea that came up later?

[English]

    The Chair: This has not to do with what I just said. This is the unanimous objection to a bill.

    Mr. Jacques Saada: Yes, but that's the role of the panel.

    The Chair: Yes, that's right.

    Mr. Jacques Saada: Okay. That's what I'm referring to.

    Mr. James Robertson: The report did not specify whether the panel needed to be unanimous or work by consensus or by majority decision. When the steering committee considered this on Monday, it was the understanding of the members of the steering committee that what had been intended was unanimity. To prevent any problems down the road in terms of interpretation, they decided that should be the term. If there's no specification in the Standing Orders, it will lead to confusion. So the specification needs to be put in.

    The Chair: Carolyn Parrish.

    Mrs. Carolyn Parrish: All I'm telling you is that is a disaster.

    The Chair: It was to avoid disaster. It's consensual agreement.

    Mrs. Carolyn Parrish: But it will be a disaster, because at no point will you ever be able to stop a bill, and if you have four opponents there and one government member, every single thing that goes to the House will go through, so why bother with the panel? There's no way we will ever get unanimous consent at that committee to stop a bill. I'm telling you that.

    The Chair: Jacques Saada, and then Rick Borotsik.

[Translation]

    Mr. Jacques Saada: I just want to point out, Mr. Chairman, that in all of the discussions I recall us having around this issue, my contribution was never intended to mean that a panel like that would be unanimous. So I think that perhaps...

[English]

    The Chair: I understand that. We're going to make a note of it, and we will return to that as soon as we come back to this matter.

    Mr. Rick Borotsik: Just in 30 seconds, to Carolyn's concern, I don't agree with what you say. I believe if there is a bill that is seen to be offensive in some way, shape, or form, or non-constitutional, or in fact has some other criteria, doesn't follow the criteria of the panel, if one or two of those bills go to the panel, the panel then will decide as to whether it should go forward or not.

    Remember, the ultimate responsibility for that bill is the individual member's, and it's the individual member who is going to pick that bill as his or her only chance to put a votable item forward to the House of Commons. If it's on abortion, Carolyn, whether pro or against, it doesn't really matter; it's the individual member who has to take it there, debate it, and have it go to the House for a vote and support that particular bill.

    On rare occasions--and I agree with you, it will be a rare occasion that five or six members of a panel, or however many it would be, would in fact unanimously say this bill is not right for the House of Commons--it may happen.

    Mrs. Carolyn Parrish: It may happen.

    The Chair: Colleagues, we don't have to resolve this now. We're not going to vote on it or anything like that. If this thing is going to go through and there are flaws in it, we have to find them and identify them.

    By the way, one of the reasons that this thing has the bold and the shaded text is to draw members' attention to some of the problems.

    I want to thank our witnesses, Audrey and Marie-Andrée. We greatly appreciate your being here. It's very useful. We will return to this matter, and I have no doubt we'll be asking you to be here again.

    Thank you very much. The meeting is adjourned until Tuesday at 11 o'clock.