Good afternoon, ladies and gentlemen. I will call the meeting to order.
This is the legislative committee on Bill C-2, meeting number 19. The orders of the day, pursuant to the order of reference of Thursday, April 27, 2006, are Bill C-2, an act providing for conflict of interest rules, restrictions on election financing, and measures respecting administrative transparency, oversight, and accountability.
Before we proceed, we have a point of order from Monsieur Petit.
We have with us today representatives from the Law Clerk's office. We have the Law Clerk and Parliamentary Counsel, R.R. Walsh, and the Deputy Law Clerk and Parliamentary Counsel, Richard Denis.
Gentlemen, we have the document that's been prepared by you. There was a motion that you come to the committee so that members of the committee could ask you some questions. You spoke to me before the meeting and indicated that if there were any comments, you would like to get right into questions, and perhaps there might be a concluding statement at the end.
So we will do that, Mr. Walsh.
Madam Clerk, I need your assistance. Do we have the seven-minute rule here? Yes, we do.
Mr. Owen, go ahead, please.
Thank you, Chair and Clerks.
Thank you for being before us today and providing this very useful advice on our deliberations. I have two questions. The first is for Mr. Walsh.
With regard to the constitutional difficulties you've identified with respect to the privileges of members of Parliament in particular, is it your opinion that it is within the powers of this committee to amend this bill so that it can cure any of these constitutional difficulties that you raise? That's my first general question. In some points it's quite clear that it can be. I'm interested in, and will be considering, if we follow that advice, whether that will impair the more general objectives or specific objectives of the bill to the extent that it's not worth it. I'm interested in knowing to what extent this is curable.
Second, I'm interested in knowing whether, as a normal course or in this situation, when there are issues of legislative drafting that do touch upon the business and the privileges of Parliament, and particularly the House of Commons, it is appropriate and common, or appropriate but uncommon, that you are consulted by the counsel at the Department of Justice who is drafting legislation. Did this happen in the case of bill C-2?
I'll answer the first of the two questions: are the problems described in this report curable by way of amendment? For the most part, yes, they are, in the sense that making the text of the bill reflect an intention to subordinate the powers, immunities, and privileges of the House to the provisions of the Conflict of Interest Act can be done by way of amendment.
A good part of the report, however, also touches on the consequences that may flow from that by virtue of legal processes that attach to the provisions of the Conflict of Interest Act and the possibility, by virtue of those processes, of the courts becoming involved in the business of members and the business of the House.
In terms of legislative process, amendments to the bill could be made of a kind that, with one exception, enable this to be a proper piece of legislation that goes through. But it would entail either perfecting the bill, so as to make the Conflict of Interest Act prevail over privilege, or the reverse, making amendments to make sure it does not prevail over privilege.
The one exception, of course, is section 49 of the Constitution Act, 1867. It would require a constitutional amendment, in my view, to get around the terms of that provision.
On the second point, regarding consultations with the Department of Justice, no, there were no consultations that I'm aware of between my office and the Department of Justice. And it is not commonly the case that there would be any consultations between the lawyers in the Department of Justice and our office prior to a government bill being introduced in the House.
Did that count as my time? I'm just kidding.
Thank you, Mr. Chairman.
I want to, if I may, Mr. Walsh, cut to what I think is the crux of this matter, which is that you have written that Parliament has its own set or sets of privileges and its own customs, which have evolved over time, and legislating away parliamentary privilege or autonomy, to use a word you haven't used, is done sparingly. Obviously, it was done when the country was created, and it was amended in 1868, and you say on page 10 of your brief that, “Since that time there have been no legislated provisions, that we are aware of, that have affected the privileges of the House”. I'm going to take it that you're absolutely correct on that, because it's not a hobby of mine to read 19th-century and early 20th-century parliamentary privilege history.
My question is this. We have the Minister of Justice, who today in the House did not refer to that part of your brief, but to the part immediately before that, which is where you write that you feel that “some of the proposals of Bill C-2 are contrary to the Constitution”, and then, “but it is not unconstitutional to enact legislation that limits the constitutional privileges of the House”. Somewhere else you write that at least Parliament should have their heads up when they do this, when they legislate away privileges.
I guess this is the crux of it. The Minister of Justice and, I can only assume, the government side feel it is within Parliament's power, by a majority vote, to legislate away privileges. But you say that it hasn't been done, basically, since 1868.
Am I summarizing the crux of your opinion correctly with respect to privileges?
Mr. Chairman, just as the member was speaking, I was looking for where on page 10 I had said that, and I couldn't find it on page 10, but I think I'm finding it on page 8.
What I think I said in the report—and, again, I haven't found the exact wording—was that the privileges of the House of Commons and its members and committees, as established by the Parliament of Canada Act, have not in that act ever been curtailed or restricted by amendments to that act. However, in my view, it arguably is the case that there are provisions out there in various statutes that have, as it were, crept in, perhaps unnoticed, perhaps not, and they constitute an impairment of the powers, immunities, and privileges of the House and its members, much as the provisions in Bill C-2 do, as we indicate.
With regard to the other point you raise about the Minister of Justice, again, I was looking for that text and didn't make a note of your complete question, but I seem to recall that you had a question about a statement made by the Minister of Justice in the House.
You're going to have to wait for the second round, Mr. Murphy. We were well over.
Before we proceed with Monsieur Sauvageau, as it is now ten after five, I would like to remind members that the deadline for submitting amendments is here; it is upon us. If there are any amendments to be submitted by members, could you submit them to the clerk so that we can include them in the package? If not, we will assume that all such amendments have been received.
Do you have a question on what I just said, Mr. Walsh, or something else?
I would like to follow on from what Mr. Murphy was saying.
In the conclusion, which can be found on page 11 of the French text, you state the following:
|Notwithstanding our view that some of the proposals of Bill C-2 are contrary to the Constitution as they fail to respect the constitutional position of the House, it is not unconstitutional to enact legislation that limits the constitutional privileges of the House.
When the Minister of Justice rose in the House this afternoon, waving around your report, and saying that it confirmed that he was in the right, it made me think of what happened in 1981, when it was decided to repatriate the Constitution. It was said that to do so was not illegal, but... Perhaps you could refresh my memory?
In its current format, if a member, a minister or a parliamentary secretary were to challenge the act and to decide to seek legal advice, the matter could end up before the courts, which would generate uncertainty. In fact, the House could grind to a halt while waiting for the court to hand down a decision.
That is the problem that I see as a lawyer. Given that there is a conflict between the constitutionally guaranteed parliamentary privileges and the provisions contained in this bill, which are statutory provisions, somebody could initiate legal proceedings on the grounds that the act is contrary to the right of parliamentarians. Uncertainty would reign while you awaited the decision. It would be particularly problematic in the case of a tie vote or where the Chair had to vote in order to pass a motion. Furthermore, if somebody thought that a minister or a parliamentary secretary was a in a situation of conflict of interest, he or she could take the matter to court arguing that the vote ought to be nullified.
Clause 9 states that the courts cannot interfere in affairs of the House of Commons; however, were the Ethics Commissioner involved, the court could be asked to review his actions. That would create a situation of uncertainty. Would parliamentarians have to wait months, or even years, for a decision to determine whether a vote is to be upheld? As a lawyer, I do not like uncertainty. I want to see provisions that provide certainty as to the process to be followed.
Thank you to the House law clerks for coming forward with this report at this time dealing with these constitutional issues at this stage, so that we can deal with them at this early stage rather than waiting for problems to possibly emerge at a later date.
I was hoping your presentation today might deal with a verbal overview of what problems you've identified, and even perhaps recommendations on how we might fix them, but we jumped right into questioning. I'll try to use the time as best I can.
One of the key things you've pointed out is that the officers of Parliament or Parliament's agents, whether in the newly created offices the bill contemplates or even as existing officers of Parliament, do in fact perform executive functions. This is a thing you're trying to illustrate in your report.
Have we known about this all along? Has this been something that's grown and evolved with the expanding roles of some of the officers of Parliament, and did it simply become a “straw that broke the camel's back” sort of issue when we compounded the problem by introducing new officers?
I'm curious as to why the status quo, with our current slate of officers of Parliament, whether the Information Commissioner or the Auditor General, etc., has now become a constitutional issue that must be addressed immediately.
Correct. In the broad sense, they're not judicial and they're not legislative. So they're in the executive branch. But that doesn't mean they don't enjoy the independence that may be sufficient to the satisfaction of members of Parliament and that there's no wrongful interference by the government. So it's a judgment call on the part of this committee in the case of C-2 as to whether there is anything here that concerns you.
But if I could, Mr. Chairman, just briefly respond to Mr. Martin relative to the overall picture, there are two principal themes here. One is the constitutional position of the House, and the second is the fact that there is a lot of legal uncertainty, in my view, that develops by virtue of the legal duties placed on members and legal powers given to the Ethics Commissioner, which, when put into action, can give rise to legal processes of a kind that leave everybody in a roomful of lawyers. Then you end up with a problem where you don't know what you've decided when you decided it, because you're now into a legal process that has to work itself out.
Traditionally, the House does its business as it sees fit and the courts stay out of it. You want to minimize the intrusion of any outside officers into that business or you run the risk of being dragged into court proceedings pertaining to the propriety of the actions taken under the authorizing statute.
Mr. Martin, if you didn't build a house right and there was an ability to take you to court and have you demonstrate that you built a house wrong, I don't think as a carpenter you would like that. I'm not sure if you are a carpenter, Mr. Martin, but if you're a builder and you don't build right, and you can be taken to court to demonstrate how you did build right, you'd lose a lot of money spending time in court and not building.
In the same manner, if parliamentarians or the Ethics Commissioner have to spend a lot of time in court to explain why they did what they did and it was all kosher, then you're not doing your day job. That's all I'm saying. And you have the uncertainty of what it is we decided when we had that vote. We don't know any more because we have a challenge to some of the people who voted on one side. We don't know whether their vote was valid. What did we decide, and what does that mean to the consequences of that vote?
Subsequent actions were taken based on something being adopted in the House, but we don't know whether that vote is valid because the process is in the court. So we've got to wait until that's sorted out. And then we find out whether that minister's or that parliamentary secretary's vote stands or doesn't stand.
I don't know. It's just the uncertainty that comes to me as a lawyer, saying, come on, let's clean this up. This is a recipe for a lot of confusion and uncertainty, which shouldn't bother me as a lawyer because it's a job for life, but at the same time, it's not good parliamentary practice.
Thank you, Mr. Chair, and thank you for being here. We certainly appreciate the advice you've provided, Mr. Law Clerk.
We've heard some of the conversation over the last little while from the committee, and some members have been a bit alarmist. You've heard that there is some sort of constitutional crisis or that this is somehow immoral. I just want to put it a bit into perspective.
When the Minister of Justice and Attorney General of Canada deals with any piece of justice legislation, for example, there will always be witnesses who appear saying that this provision or that may or may not be constitutional, that there may or may not be a challenge at some point in the future, that there may be some hypothetical court case. We take that advice, and as parliamentarians it's our job to enact legislation. That's something we're used to. Anyone who has ever sat on any committee dealing with any subject matter knows there is always the possibility that some piece of that legislation could end up in court.
Also, there's been a great deal made about your particular office and your not being consulted, but I guess from the evidence I've heard from you today, it wouldn't be the normal practice with any piece of legislation that a department would call you up to say it was thinking about a piece of legislation and to ask what you thought about it.
Nonetheless, we hear members say “immoral” as though there's some constitutional crisis. From the evidence I've seen you provide, I don't think that's the case. For one thing—this has already been quoted a number of times—you say:
||Notwithstanding our view that some of the proposals of Bill C-2 are contrary to the Constitution as they fail to respect the constitutional position of the House, it is not unconstitutional to enact legislation that limits the constitutional privileges of the House.
Also, today you've mentioned that of any potential flaws you see, most are curable. To get to the specifics, in the interests of working to have a bill that's a good piece of legislation and a House that stands, how many amendments would you be talking about? What specifically would you like to see changed, and what are we talking about, as far as time goes, to make those few amendments?
Well, it's more than that.
There are procedural rules about how you draft bills, so I can't draft as I would like to, cutting from whole cloth. You have to draft based on the bill you have in front of you, so you have to go where the procedural rules allow you to go. That doesn't always have us going to our preferred spot. But there are ways of doing it so as to enable it to happen.
But, Mr. Chairman, I wish to point out, since I think it is implied in the member's question, that I'm not crying fire here—or wolf, or whatever the expression is—but I feel duty bound on behalf of my client, which is the House of Commons, its committees, and the members of Parliament, to apprise them of what I see happening that they may not otherwise be aware of. This is what we've done by this report.
It's certainly up to the committee to choose whether it will do anything at all, or how much it will do, or whether it will do everything we're suggesting. That's entirely a matter within the committee's discretion. But I felt professionally and legally obliged to bring to your attention those matters that concern me as the legal adviser to the House and its committees and to members of Parliament.
The Chair: Mr. Poilievre.
Notwithstanding the eagerness of our colleagues on the other side of the House, on the government side, to simply sweep aside parliamentary privilege and the constitutional autonomy of Parliament that has existed for over a century, going into two centuries.... You are in fact the parliamentary counsel and the law clerk. You have clearly made the point in your brief that some aspects of Bill C-2 would in fact impede on parliamentary privilege and the constitutional position of the House and its members. You then state that if the House wishes its parliamentary privilege and constitutional position to be subject to Bill C-2 as it now stands, it needs a clarification, and you can show us or provide us with an amendment.
On the other hand, if the House and its members decide they do not wish to throw close to 200 years of tradition out the window, there's a different amendment that can be put into place. My question to you, as the legal adviser to Parliament, specifically to the House of Commons, is what advice do you give to the members of this committee as to which option we should choose?
When I go to a lawyer and I pay a lawyer, I expect the lawyer to put out all of the various options, with the pros and the negatives. Then I expect my lawyer, whom I'm paying, to come up with a recommendation. You have option one: here are the pros, here are the cons; option two: pros and cons; option three: pros and cons. I recommend you go with option two.
Do you recommend to the members of this committee that we throw parliamentary privilege and the constitutional position of the House and its members out the window, subject to the Conflict of Interest Act, as it is now stipulated, or do you recommend that we maintain parliamentary privilege and the constitutional position of the House and its members as it now stands, in which case it would require a different amendment?
Mr. Chairman, as the lawyer for the House of Commons, members of Parliament, and committees, naturally my view would be in favour of the interests of that institution. The short answer to the member's question is that I don't think you should play around with your privileges, and you should sustain them.
Over the weekend, I had occasion to read a definition, if I can share it with the committee, of “ecology”. It said in this definition that it's a branch of biological science that studies organisms' relations to one another and to their surroundings. Planet Earth is a type of community of life characterized by interdependence and delicate balance; a deeper understanding of this has been accelerated by environmental deterioration.
I was struck by the parallel. That statement, with a few artful substitutions of words, gives a description, in my view, of what this committee is facing. I will read it to you with the changes.
Parliamentary powers, privileges, and immunities is a branch of political science and law that studies the constitutional relations of the three branches of government--executive, legislative, and judicial--to one another and to their surroundings. The House of Commons is part of a constitutional community of life, characterized by interdependence and delicate balance. A deeper understanding of this has been accelerated by environmental deterioration.
What we have here, Mr. Chairman, in my view, is the danger that over time and going into the future the parliamentary environment may deteriorate. They say a fish doesn't see the water it swims in. Members of Parliament come to a committee like this one. They're looking at conflict of interest. They're looking at members' trust. They're looking at a director of public prosecutions. They're looking at the substantive matters relative to public policy. They're not thinking about their privileges; they're not thinking about the institution. That's why I had to get off my hands and come to the committee as I have done.
I don't know if this is an answer to the member's question, but I'm talking about your working environment; I'm talking about the air that you breathe. You can neglect it and carry on and adopt provisions without regard to privilege, and some day one or two or several of you might find that you haven't got the privilege that you thought you had in some circumstances.
In the last Parliament, we had, under the current ethics regime, as some of you will remember, some very serious difficulties between a couple of members and the regime as it was applied against them. We had in one case a minister who, in my view, suffered a political assassination when charges were made and she lost her cabinet position, and later the allegation made against her was proven to be bogus. We had another member whose family suffered as a result of the process.
This is serious business when you're talking about legal proceedings that can be brought against a member of Parliament on some allegation about a possible conflict. It's important, I feel, on your behalf as your lawyer, to say to you, think twice about what you're doing here. You're here, in my view, to serve--and God forgive me, because now I'm talking like I'm lecturing and it's not my place to be doing that--in the constitutional environment that's been provided to you, in the interests of the people of Canada, and they want you here freely to do it.
I noticed the other day, that section 463 of the Canada Elections Act says that if a certain form isn't filed, a certain document, the member can't sit or vote. The constitutional panoply of electing someone to come to this House to represent his electors, to speak and address the major issues of the day--that's all subordinated by filing a certain document? Somehow, filing a certain document--a regulatory requirement--can't be enforced except by denying that member his participation in the democratic institution he was elected to and for which he represents his people? To me there's a confusion of priorities there.
I'm speaking with the bias of parliamentary counsel. I'm not speaking against this bill. I'm speaking about issues relating to your working environment; I'm speaking about the air that you breathe, the water that you swim in, and I'm asking that you have your eyes open as you swim through it. If you want to compromise your privileges, you're perfectly entitled to do so.
I will be very cautious.
I will also remind Mr. Walsh that I have great respect for both him and his office. This is just a good clash of ideas.
I think what we're really talking about here are the constitutional rights of politicians. I've never had that issue come up on the doorstep of my constituency. That's not to say it's not important.
I would conclude by saying this.
Mr. Walsh, I'm glad that you brought these issues forward. If there are 15 or so amendments that we can look at and vote on over the course of roughly an hour and a half, on the route to passing the Accountability Act, then I think it might be worthwhile.
Thank you, Mr. Chairman.
I am staggered by what I am hearing. I find it thoroughly unacceptable to try to downplay the importance of somebody's work.
Mr. Walsh, I have a great deal of respect for your work. I think that you are trying to warn us to proceed cautiously because the bill comprises provisions that could undermine our rights as parliamentarians. That is something that's extremely important to me. I have been a parliamentarian for more than 13 years, and if there is one thing that is important to me in the House of Commons, it is to preserve the rights that I have as a parliamentarian. It is a lot harder to rebuild a reputation than to destroy one.
If this bill contains elements that could damage the reputation of parliamentarians because it has been badly drafted, and if it could result in a lawsuit free-for-all, I think we should go back to the drawing board. The Conservative Party is trying to downplay the importance of the amendments that you are suggesting. I believe we should go through them with a fine-tooth comb. We should study them thoroughly...
Some Hon. Members: Oh, oh!
Ms. Monique Guay: I am sorry, but I have the floor. You can speak when it is your turn. That is what it means to be responsible and to have some respect!
Thank you. Mr. Chairman, I listen when others speak.
I would like you to present us with your amendments. In fact, the document you gave us contains several amendments. I think it is extremely important to study them one by one.
Mr. Walsh, we spent 41 hours studying a bill of this scope, whereas we normally should have spent at least 200 hours doing so. But we have to be realistic. My party never opposed this bill, but we want it to be well done. You have told us in so many words that we should be careful since we are on the point of affecting other legislation in a way which would curtail the rights of parliamentarians. This causes us great concern. Can you give us other examples where our rights as parliamentarians could be affected, and can you explain them to us?
Thank you very much, Mr. Walsh, for being here.
I want to make sure we're all singing from the same song sheet here. I'm not sure if anyone has actually made an official request to take you up on your offer to have you and your legal team present to us the proposed amendments you would suggest that would strengthen and clarify this bill; if not, I would make that request. I'm not sure if we've actually put it on the table.
When you say you would be willing to assist political parties or members to present amendments, I'm asking you the very same thing. Could you and your team prepare a package of amendments that would, in your opinion, clarify this bill and make it constitutionally doable?
Mr. Chairman, I'd certainly be pleased to do that. However, please understand that we only draft in response to instructions received from members of the committee, so there has to be that event: the member has to request them. You can forward requests for amendments, but then we need to seek instructions from the member as to what he or she wishes to do.
There are two avenues one might go with this bill. Some members might say, let's make privilege prevail over the Conflict of Interest Act. Another member might say, let's not, and let's go the reverse. Or they might say, for this, yes, we should keep our privileges, but for that over there, no.
We're ready to go in any direction the members request; we are ready to provide amendments to members of this committee, according to what they want to have from us, including all private members, and private members on the government side, too. Obviously we don't prepare amendments for the government; they have their own, and the parliamentary secretary, presumably, will bring those forward. But for the members on the governing side, as well as the members on the opposition side, we need their individual instructions. That's why I asked my lawyers to be here to take their instructions in the break, or at the end of the evening, and we can get to work on them right away.
This is all very helpful and very interesting, but it's very complex too. My understanding is that it's really quite simple to fix the deal about the secret ballot vote. It's a matter of going through one by one, and where you find the reference to the conflict commissioner, you fix that clause; where you find the commissioner of lobbying, you fix that clause, simply by eliminating reference to secret ballot vote. That seems simple and straightforward.
I don't know what we would replace that process with, but the point is that the officers of Parliament should be selected by, or appointed by, Parliament--you've made that point--but also shouldn't be governed by statute. Is that a point you were making, that we as Parliament are governed by standing orders of Parliament, but officers of Parliament shouldn't be governed by the statutes that govern governments?
Mr. Chairman, the statutes would govern public office-holders and the provisions of the House of Commons would govern members of Parliament. It might be that the same official would have responsibilities for inquiring into alleged conflicts with respect to either members or to public officer-holders, meaning ministers or a parliamentary secretary.
The problem, in my view, is that we have a situation in which there is an attempt by legislation to deal with ministers and parliamentary secretaries when they are acting as members voting and participating in debates. It's oil and water; you've crossed over, using statute, into the domain of the House. You crossed over and made provisions prohibiting members from voting or participating in debates if they would be in conflict were they to do so. The minister doesn't rise as a minister in the House; he rises as a member and votes as a member. The problem here is that putting it in statute means he can't vote in the House, because, as I said earlier, you've got this confusion that can emerge as to what the standing of the minister's vote is when he voted as a member and there's some allegation of a conflict.
It's a question of separation of the two branches, as we say in our paper. The House, constitutionally and traditionally, has control of its members, and the Prime Minister has control of his ministers--and of course the civil service as well. In mixing them up, you're creating confusion--process confusion, role confusion, and legal confusion. I'm not suggesting politically--politically it's very simple--but in a legal constitutional sense, it's confusing and could become problematic by virtue of the processes that could flow from it as a member tried to defend his or her position.
Let me get back to fixing it, but I want to say that I'm absolutely shocked that the Minister of Justice would get up in the House and quote your report as a means of shrugging it off, saying we can change this if it's unconstitutional, while at the same time refusing.... His parliamentary secretary is here today and could have said so, but didn't either. You, the government, could have proved that they have a constitutional opinion that disagrees with Mr. Walsh's. We haven't got that opinion, and I think the intention of the government, from the cavalier attitude of both the parliamentary secretary and the Minister of Justice in the House today, is to put this legislation over parliamentary privileges.
I take you to page 10--I think the numbers are off--and the third-last paragraph of your brief. Let's be clear. You would accept a request for an amendment put by a member, but I think you'd want some direction as to whether they want you to do A or B, and you put A or B in the third-last paragraph. You're saying that if we want the parliamentary privileges, which I take it haven't really been touched since 1868, to be subject to the conflict of interest code, you've set out the proposed amendment; if not, you've set out the other amendment.
I think it's imperative for this committee or for a member of the committee supporting the subjugation of parliamentary privileges to the new Conflict of Interest Act--which doesn't happen every day--to ask for that. It may be the debate of the committee. I think we have to have one or the other. The reference you made in your previous answer was that to have the secret ballot remain, however--if it is to remain--might require an amendment to the Constitution. That's a little more than an hour and a half clause-by-clause procedure, if I remember. Amending the Constitution--our attempts to do that are not met with great success in this country, but we're willing to do it here if we want to keep the secret ballot. Is that right?
Section 49 of the Constitution Act, 1867, requires that all questions be determined by a majority of voices. There might be some who think that's not terribly important.
Section 48 of the Constitution Act, 1867, requires that the House have a quorum of 20 before it starts its business. Every day in the morning, if any of you have been in there first thing--and I'm sure many of you have--the Speaker waits until he has a quorum. That's because the Constitution requires it. Also, there's a five-year limit for each House of Commons. Also, money bills can't be introduced in the Senate first; they have to be introduced in the House. That is respected, and you can be sure the House will insist that it be respected. And of course you have the royal recommendation. On Wednesday of last week the Speaker gave a ruling or a statement in the House on royal recommendations, and twice in his statement he referred to observing the Constitution. The next day, June 1, he revisited that subject at the invitation of a member who rose on a point of privilege and suggested that the matter could be taken to a committee and the committee could consider the matter and perhaps change the practices that the House currently has on private members' bills, subject to the Constitution.
I think it's quite evident that when you have something in the Constitution that directly applies to the House, it has to be taken seriously. As my paper indicates, the majority of voices is yea or nay. Someone said to me, what about electronic voting? With electronic voting, you still have to vote yea or nay, and then when you vote electronically, if you're sitting there, Mr. Murphy, in your chair, and you press a button and it goes up electronically to indicate what your vote is, that's fine, it's a way of recording your vote. Or you stand in the House and record your vote. But to go to a ballot, and no one knows how you voted.... The point isn't just that we like the sound of your voice on the yea or nay, but the point is, in my view, that the public is entitled to know how their representatives vote. Secret ballot votes go against that. I'm assuming here that this is the thinking behind section 49. It's a longstanding tradition that votes are done, yea or nay, and if you record, you rise in your place and you indicate how you voted. The second recording vote is not the vote. The vote took place earlier and then the members rise to confirm.
Mr. Walsh, I won't be asking you any questions, but I will make a comment. You can respond, if you wish.
To begin, I would like to distance myself from what certain committee members said and apologize for the lack of respect they showed you and the Constitution.
It is understandable that a member, due to a lack of experience, would ask who ordered a document and then demand that the official appear before the committee because he is paid to do so, and so on. That might be understandable. However, when a parliamentary secretary as much as says: “Hey, buddy, send me your 15 amendments, we'll take a look at them for an hour and then flush them down the toilet”, that is, in my opinion, inexcusable and unacceptable. I feel it shows an utter disregard for basic politeness. So I would like to distance myself from those remarks, because unfortunately I am a member of the committee even when such things are said.
Further, I never said that your document referred to a constitutional crisis. I simply said that your document referred to the Constitution. Unfortunately, though we are trying to conduct a rigorous study of Bill C-2—which was drafted in six weeks and which we are being asked to pass in three weeks—we are being accused of partisanship. As far as I know, you are not a member of any political party; you are the legal advisor for members of the House of Commons, and you are their protector. We have been accused, you—who raised the alarm—and I—while trying to do my job with rigour—of being guilty of partisanship and of being obstructive. In 13 years I have never witnessed anything like this and I find it unthinkable.
I would like to quote a passage from your document which is on page 5. It says:
|Bill C-2 overlooks the necessary constitutional divide that gives exclusive authority to discipline members of the House of Commons to the House of Commons and authority to discipline public office holders (ministers and parliamentary secretaries) to the government.
This is merely one passage which underscores the fact that we must study your document closely and seriously, because it is highly relevant. We must also, in the same manner, consider Bill C-2. As well, as Mr. Murphy said a little earlier, it is possible that the intent is for the Constitution and constitutional rights acquired since 1867 not be respected anymore. If the government prefers one approach over another, it should do so openly. But that is not what is happening.
I would like to thank you for having written this document. I would like to thank you for having raised the alarm. I apologize for the irreverent and disrespectful things which have been directed at you. I certainly hope that your message will be heard. Unfortunately, it seems that the government still wishes to push this bill through for base political reasons, such as the fact that they want to make the Liberals pay for their previous low blows. I think that if we push the bill through too quickly, all members of Parliament, all officials and indeed all Canadians will pay the price for these petty political games.
That's all I had to say. I would be pleased to hear you respond, but if you don't do so, I'll understand.
Mr. Walsh, I would ask that when you sit down with your drafters, you draft an amendment to Bill C-2 that will clearly indicate that it is not the preference of this committee to allow the proposed Conflict of Interest Act to override the traditional and longstanding constitutional position and parliamentary privileges of the House and its members. Thus a provision should be, through amendment, inserted into the proposed Conflict of Interest Act to show that very clearly.
I believe--and I'm speaking for myself--that this House and its members, through this committee, should reflect long and hard before subjugating our privileges and the traditional position of the House and its members to any statute.
I would hope that the government, now that it is aware of the consequences of Bill C-2 as it is now written, if it wishes to proceed in like manner, would mount a convincing argument and debate on the issue before taking that ultimate step. I would hope as well that each member of this committee, regardless of which political party they belong to, before casting their vote to reject or adopt an amendment to the Conflict of Interest Act...which would state clearly that it does not override the constitutional position and parliamentary privileges of the House and its members.
Now for my second question. I decided to ask it in committee, because our offices are not very close to each other.
Mr. Joe Wild, from the Department of Justice, who regularly appears before this committee, told us that he was going to provide us with legal advice. I would ask you to ask him to provide the committee with the Department of Justice's legal opinion on this bill—or rather, on this report—because when he appeared before the committee, he said that he had been involved with the bill since its beginnings.
I would like him, through you, to provide the committee with legal advice. Thank you very much.
Just to move the ball forward a little bit, I'm hoping the government members here might want to get rid of the provisions with respect to secret ballot, which would get us out of this constitutional amendment aspect.
Secondly, I'm hoping they will choose to keep parliamentary privileges, which in your second suggestion means that this committee could propose an amendment to the proposed Conflict of Interest Act.
What I'm asking you as counsel to Parliament is how that would work. It exists at other levels of law, where certain boards, agencies, commissions, law societies, etc., give certain rights, but they're inferior to the rights of the Charter of Rights, for instance.
Am I correct in thinking that the proposed conflict of interest subordinate to members' privileges would still be in effect for public office-holders, but that the public office-holder, if he were so impugned or needed the reach, if you like, of the age-old parliamentary privileges, could invoke them?
Is that an understanding?
I'm concerned by some comments made earlier that since there haven't been many instances of a problem under section 463, there is therefore nothing to be concerned about. As far as that goes, that's true. Again, some may feel I'm overstating the case, but I would like members of this committee to consider what their reaction would be to this bill, and I'm going through a hypothetical just because I don't want to get into the debate about this bill. If the bill had a provision that no private member could introduce a private member's bill without first having confirmation from the parliamentary budget officer that the bill would not require the spending of any public funds, I can assure you that would stop dead in their tracks a certain number of private members' bills. It would give to an appointed officer the ability to stop a member of Parliament from getting a private member's bill onto the floor of the House for debate.
You might say it's one of the sacrosanct rights and privileges of a member of Parliament to propose to the House what he or she thinks is worthy of consideration by the House. Such a provision would give to an appointed official the ability to say “You're not going anywhere; that bill's not going to get into the House.” I would think private members would be concerned about this.
On the other side, suppose amendments were made to this bill, in the interest of accountability, conflict of interest, and transparency, that require that 24 hours before the start of a cabinet meeting the agenda of the items that are going to be discussed at the cabinet meeting be posted on the Government of Canada's website, and that 24 hours after the cabinet meeting that agenda must be modified to indicate if there were any additional items taken up at that cabinet meeting. It also must be provided who attended the meeting, who didn't, so that there could be information provided to the Ethics Commissioner about a possible conflict. Understandably, I would fully support opposition to such suggestions relative to the constitutional convention of cabinet confidentiality. But you can see how you start to slide down the road when you start setting aside well-established principles respecting the autonomy and the independence of the executive branch and the legislative branch. These may be relatively minor, although arguably they're more major than the one that you don't sit if you don't file a form with the electoral officer. These might not be so dramatic today, although in some cases I think they are, but they could get more dramatic later.
The examples I've given you are examples of very serious suggestions, and I would hope the government would oppose any amendment of the kind I'm suggesting relative to the cabinet. I would hope no one would have the idea of limiting a member's right to introduce a private member's bills to what some appointed official says about it.
I would also like to point out as a point of information that—it came up in the House again today, and it may have come up on an earlier occasion too, that the Minister of Justice under the Department of Justice Act is bound to examine all legislation for its constitutionality before it comes to the House. I was surprised when I heard that, so I went to the act. Now it's not beyond me to take the wrong act down from the shelf, but I went to the act, and what's required is that the Minister of Justice satisfies himself or herself that a bill the government's going to propose is not inconsistent with the provisions and purposes of the Charter of Rights and Freedoms, which is only part of the Constitution of Canada. I'm unable to find in the act any obligation on the part of the minister that he must satisfy himself that the act meets all constitutional requirements.
The minister in this case may have done that, I don't know. That's not my business. I thought I would correct the point that was made that the bill wouldn't be here if there were constitutional problems in the mind of the minister. One might accept there aren't any charter problems in the mind of the minister, but under section 4.1 of the Department of Justice Act, it's limited to that.
I would like to close by saying, Mr. Chairman, that I had a lot of trouble determining what it is I should or should not do in the circumstances. I felt obliged that something had to be done because I had the feeling that if nothing was done there might be some unfortunate provisions go into statute law, the kinds of things that my office is spending time in court trying to get the House out from under. So I gave some thought to it. I was not invited to testify before this committee, so I did not think it appropriate that I should walk into the committee meeting and say, hey you, listen to this.
You may not be aware, but Standing Order 13 deals with the question of privileges of the House and where those privileges might be adversely affected by something presented to the House. It obliges the Speaker, whenever he is of the opinion that a motion offered is contrary to the rules, the privileges of Parliament, that he should apprise the House thereof. So I decided, in the spirit of Standing Order 13, that I'd do a report and deliver it to the Speaker, which is what I did. The Speaker then authorized me to bring the report to this committee, and that's when I arrived on May 31. I was dancing as fast as I could to keep ahead of the movement of this committee, as things were moving along fairly well, but fortunately I arrived before it did.
The authorization of the Speaker is not to be taken as any concurrence on his part as to the content of that report. I've had no comment from the Speaker regarding that report. He may agree with some of it; he may not agree with other parts. But I came here with the authorization of the Speaker in the spirit of Standing Order 13.
When I recognized that I might be doing this some weeks ago, I spoke with Mr. Gibson, your executive assistant, on your behalf, to advise him that I was doing this and that I did not know whether it would in fact result in a report coming to this committee; later, as it turned out, it did. I apologize to the committee, to the extent that it arrived and came as a bit of a rude surprise to some that a report was arriving unasked for, as it were. But I honestly felt that as the law clerk of the House of Commons, its committees, and members of Parliament, I was duty bound to do this as a lawyer—experienced now for over 30 years in the field. You don't sit on your hands when you see something happening that may be adverse to your client's interests; you have to intervene and tell the client what's coming down. I've done that.
I don't expect any particular action by the committee. The committee can decide for itself what it thinks is appropriate, and it would do so fully within its prerogatives as a committee of the House. But I felt that I had to deliver what I did deliver to the committee. I hope the committee members do find it useful, and I certainly did not want to impair or interfere in the processes of this committee, or in any way appear to overreach my responsibilities as law clerk. I hope that in the minds of members of this committee, you don't feel I have done so.
Thank you, Mr. Chair.
Thank you, Mr. Chairman.
I move that this committee, through its chair, request the Minister of Justice and Attorney General of Canada to appear before the committee on Tuesday, June 6, from 3:30 p.m. to 5:30 p.m.
Given the testimony of Mr. Walsh and the brief he has tabled on the issue of whether the Conflict of Interest Act should override parliamentary privilege and the constitutional position of the House, or be subjugated to the Conflict of Interest Act, and given that the Minister of Justice has a responsibility for certifying that any government legislation is in conformity with the Charter of Rights and Freedoms, I believe the minister should come before this committee and speak to us on this issue.
It's a very simple request, and I would expect that the minister would be more than happy to do so.
I fail to see the added value of having the minister appear. Frankly, I think this is an attempt to further politicize what we're doing here. The minister has given his opinion. The advice he got from his own department, as everyone on that side knows, is that there is privilege attached to that.
The law clerk delivered a document to us. We looked at his opinion, we analyzed it, and now we've had him as a witness. There's an openness now, and there's an opportunity to look at the amendments the law clerk is proposing.
So I guess I would be voting against this motion because I see no compelling reason to ask the minister to come. There's no point in getting into some debate over the law clerk's advice. He's given his advice. If members want to ask for a specific amendment from the law clerk and his team of lawyers, then they can do that.