HAFF Committee Meeting

STANDING COMMITTEE ON PROCEDURE AND HOUSE AFFAIRS

COMITÉ PERMANENT DE LA PROCÉDURE ET DES AFFAIRES DE LA CHAMBRE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, March 28, 2000

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[English]

The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): I call the meeting to order. I see a quorum.

Colleagues, we first want to deal with one procedural item, to adopt the report from our steering committee. A copy is in front of you.

I'm advised by the clerk that there is one little change having to do with the date of that steering committee meeting. It's shown as February 28 but should read March 8.

Subject to that change, I would look for a motion to adopt the report as presented.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): I so move.

The Chair: Thank you.

Is there any discussion?

(Motion agreed to—See Minutes of Proceedings)

The Chair: We now will go to our main business for the day, which is consideration of the reference from the House on the matter of confidentiality in the work of the legislative counsel.

We have with us today Mr. Marleau, Clerk of the House, and Mr. Walsh. I'm going to offer them the opportunity to open the discussion. I'm sure their remarks will allow us to properly frame the issues we will be considering. We'll go to questions after that.

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I'd ask Mr. Marleau to open with his best efforts at organizing the subject for us.

Mr. Robert Marleau (Clerk of the House of Commons): Mr. Chairman, thank you. It's a pleasure, as usual, to be here with members of the committee.

I'm not sure I can rise to the challenge of framing this adequately, but I will at least attempt to circumscribe the issue for you as I see it.

It's not a new issue. It crops up from time to time, usually at the beginning of parliaments. Certain components of the issue are resource-based, coming out of the downsizing. In the mid-1990s we did lose some drafting expertise and personnel. There is a recurring problem every fall and every spring whereby members who are expecting private members' bills to be drafted quite often complain that there are delays. Usually the delays are due to the fact that we're also drafting, on behalf of members, amendments at report stage. The two items peak in November-December and May-June, causing the members to get some delay in services.

That's the general context, but I think what you have before you is the question of what is the fundamental role of the legal drafting function and the relationship those employees of the House have with members of Parliament.

Historically, over time, this function was done by one individual in the sixties. They performed the two functions—that is, the one of drafting private members' bills and motions and the one of providing legal advice to the Speaker and the Clerk, and to members from time to time.

In the early nineties the office was split in two when the legal component grew tremendously—that is, when the Board of Internal Economy was expanded and made a statutory body, the parliamentary staff relations act was introduced, unions, and those kinds of issues. The board needed more legal work.

So the same individuals who were both drafting and then providing legal advice were often in conflict in terms of priorities. The offices were split into legislative counsel and legal counsel. That's roughly where we are today.

After the downsizing of 1994, 1995, and 1996 and the essential abandonment—that's my word—of legislative committees, we rolled procedural clerks with legislative training into the legislative counsel in the hope of transferring some of the resources and support of the services expected by members.

Of late, there has been a tremendous growth in requests for amendments at report stage. We have fostered an approach of teamwork to try to deal with these unprecedented numbers of amendments, both on the drafting side and on the procedural analysis side for the Speaker, given that normally the Speaker has 24 hours to turn around groupings and rulings.

That is generally the context. I believe the motion before you, sent to you by the House, talks about solutions or potential solutions in the context of the use of those resources.

The Board of Internal Economy has looked at this more than once. A subcommittee was struck to look at not only the resources but also what these individuals did. A series of options were laid before the board at that time, but no particular decisions were taken on changing the approach. The board chose to stay roughly with the status quo, following the flattening out of the bulge of requests for private members' bills at the beginning of the first session of this Parliament.

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[Translation]

I will not list all of the potential solutions we have considered and you could undoubtedly suggest some new ones. I will describe three or four of them in order to get the discussion going. I would be happy to comment on other suggestions and other approaches.

We could hire on more drafters. Last fall, we hired four additional lawyers for a specified period, because we were expecting an increase in demand for such services.

We could transfer funds to members' budgets so that they can sign their own contracts with drafters, as is done in Great Britain, for example.

We could transfer funds to the caucus research bureaus and entrust them with the responsibility for private members' business or amendments at report stage, or both, as most Canadian provinces do.

In 1998, the Board of Internal Economy studied the possibility of transferring these responsibilities to another unit, the Parliamentary Research Branch at the Library of Parliament. During downtime, when Parliament is dissolved or during adjournment, lawyers assigned to drafting bills could be asked to carry out other duties to support members' work.

[English]

Those are some of the options, but the fundamental issue, I think, is that in the opinion of some, but not all, the drafting role, which used to be strictly a function of drafting amendments or legislation for MPs, seems to have evolved into a counsel role. It's no longer so much drafting as per instructed but also drafting in a context of advice, which, at inception, lay with the legal side of that office, the law clerk.

I don't know if I've come anywhere near framing this in your language, but those are the issues as I've heard them and seen them, and those are some of the options that have been considered in the past.

The Chair: Thank you, Mr. Marleau.

Mr. Walsh, you had indicated to me earlier that you felt it would be most useful if you could comment near the beginning, after members have asked their questions and raised issues.

Mr. Rob Walsh (Law Clerk and Parliamentary Counsel, Legal Services, House of Commons): Yes, Mr. Chairman, I would concur with that, except to say at this time, if I may, very briefly, that I'm indeed pleased to be here and to have this opportunity to speak to members of Parliament in this committee about legislative services.

This is the first occasion, notwithstanding my being here for ten years, that I've been asked anything about legislative services, notwithstanding the frequency with which this subject comes up. But it is a matter of some sensitivity and importance, obviously, to members, and I respect that.

So I'm very pleased to be here to offer whatever I can in the way of information or guidance, if I should be so bold to say that, as to what the issues might be with respect to the use of legislative counsel at the House.

The Chair: Thank you, Mr. Walsh. I was remiss earlier in not properly introducing you. We certainly do recognize you. You're appearing here today as the law clerk and parliamentary counsel.

Having said that, we'll now proceed in roughly this order—Mr. Hill, Mr. Knutson, Ms. Parrish, and Mr. Bergeron. We'll start with Mr. Hill.

Mr. Jay Hill (Prince George—Peace River, Canadian Alliance): Thank you, Mr. Chairman.

Welcome, gentlemen, to the committee. I have a number of questions I guess you can just indicate to me. If I run out of time, then perhaps I'll have to get another round.

Do you have a copy of the document that's been provided to us, “House of Commons Debates Regarding Legislative Counsel Services, 36th Parliament”? It would be helpful if you could refer to that. It's dated March 23, 2000.

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The Chair: For the record, this was a document prepared by Mr. Niemczak and Mr. Robertson for our use today. It's dated March 23, 2000. It should be in front of all the members.

Mr. Jay Hill: It's not easy to follow, because each page is not in numerical order, but about a third of the way through you get to a page that has “Item 4” on it. I'm referring to the page that faces it. It's the Speaker's ruling in regard to Madame Tremblay's question of privilege. If you'll notice, right at the top of the page there he states “They are part of an operational team”, referring to the legislative counsel, “that supports the legislative work of the Chamber.”

Mr. Marleau, I wonder if you could explain to me the detail of how that team operates, because it might be helpful in understanding. With the Speaker referring to “an operational team”, there should be some rules that govern how the team interacts and operates.

Mr. Robert Marleau: I'll ask Mr. Walsh this question, which is on the operational side.

Mr. Rob Walsh: I'll try to give you details, but I don't want to bore you with such detail that you lose interest in the subject.

Basically, the idea is—and I'm speaking for the moment with respect to amendments to government bills, as opposed to private members' bills—that with respect to amendments to government bills, a member, typically the critic of the party on that particular bill, will phone in and indicate to a legislative counsel who has been assigned to that bill that there are amendments that he or she would like to have drafted, and counsel proceeds to do that.

If it's before second reading or before committee stage, one might have assumed in the past that those amendments were for committee stage. We can no longer assume that as, frequently, amendments drafted earlier in the process may in fact not be used for committee stage; they could be used for report stage after committee stage.

In any event, in the course of drafting those amendments, which one tries to do as quickly as one can and depending on the instructions one receives, legislative clerks are available to legislative counsel for consultation if legislative counsel wish to avail themselves of that expertise so that they might draft amendments in a way that won't run into procedural problems at a later stage.

We had problems in the past where legislative counsel, operating in isolation from the clerks, would draft the amendment according to drafting conventions, which aren't necessarily consistent with procedural conventions, and the member takes the motion and, very happy with it, goes to committee stage to find it's ruled out of order, and the member is taken by surprise. Given that legislative counsel work under the procedural services umbrella, he would have thought they would have done whatever was appropriate to see that the amendment would not have procedural problems—as much as one can, anyway. So the idea was to give them the benefit of that consultation.

I should say it's not always the case that consultation can happen or does happen, if only because there are so many amendments that have to be drafted in a relatively short space of time that one is dancing as fast as one can to get the amendments to the member so that the member will have use of them at committee stage or at report stage, as the case may be.

But once the amendment is drafted by the lawyer—this is now getting into more operational detail—it then goes for translation, either from French to English or English to French, depending on the language in which it is first drafted. There are parliamentary publications technicians who are what you might call “text treatment operators”, who have the job of putting the text, English and French, into a dual-column format of a motion, which I'm sure all of you have seen from time to time, and then the final motion is sent to the member for the member to do with as he or she sees fit. It may show up at committee stage if we're heading towards committee stage; it may not. Or it may be put on notice at report stage at a later point.

Is that enough about the detail of the operations?

Mr. Jay Hill: Yes.

What I understand is that the proposed amendments that are submitted by an individual, either as an individual or as a critic for his or her party, come in contact with quite a number of people. Is that fair to say?

Mr. Rob Walsh: There are drafters—

Mr. Jay Hill: Drafters, translators—

Mr. Rob Walsh: —there may or may not be a proceduralist there—a translator, possibly an editor, depending on the complexity of the amendment, and text treatment operators.

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Mr. Jay Hill: What I was getting at is trying to get a handle on how many people have access to those amendments before they're even tabled, actually, before they're used.

Mr. Rob Walsh: Are you talking generally now?

Mr. Jay Hill: Yes.

Mr. Rob Walsh: By the way, the lawyer may have consulted one of the other lawyers as well to talk about how this particular amendment might be drafted, if it was presenting difficulties. So there's at least one lawyer, at least one translator, probably not an editor because time doesn't permit for an editor's services to be used in the preparation of the motions, a text treatment operator would be the third, and then it would go out to the member. So I would say there's at least three, if not a fourth procedural clerk, involved—but that may not happen because there isn't time—to get the amendment out.

Mr. Robert Marleau: If I might add to this, that's in the context of the drafting process. But those same amendments could be filed, and often are, in the journals branch before the 6 o'clock cutoff time, and members return before 6 o'clock and withdraw them. They remain confidential in that context, but they may have been seen by a whole other group of procedural clerks as well, inputting the Order Paper.

Mr. Jay Hill: Further down this page in the Speaker's ruling in connection with Madame Tremblay's question of privilege, we see in the third paragraph from the bottom:

All staff of the House working in support of members in their legislative function are governed by strict confidentiality....

How is that assured? Is that part of the training that staff in those positions receive? Is it recorded anywhere in a manual, for example? Do they take an oath to remain strictly confidential when they're dealing with these things? Could you explain what the Speaker is basing that on?

Mr. Robert Marleau: It's based on two things. There is an oath of allegiance that every employee at the House of Commons takes, similar to the oath of allegiance that members take. There is also an oath of secrecy in certain cases, such as for me with the Board of Internal Economy, and most of the procedural clerks have taken an oath of secrecy.

Obviously the training for procedural clerks and the lawyers includes the fact that confidentiality is the core function for any procedural or legal staff at the House. You cannot build a relationship of advice and confidence if you cannot guarantee that. It's part of the culture, if I can put it that way, beyond what the legal requirements might be or what the legal profession might have as its own code of conduct as well.

Mr. Jay Hill: Do I have any time left?

The Chair: You're at eight and a half minutes.

Mr. Jay Hill: Okay. I have one more question, and I'll let other people have a chance.

Flip over that item 4 to the page following, which refers to a colleague of mine, Mr. Chuck Cadman, and his question of privilege. In the third paragraph from the bottom, Mr. Cadman states that he was informed that “it has now been decided that solicitor-client privilege does not attach itself to work completed by our legislative drafters...”.

Do you think it would be reasonable, given the expectations of opposition members of secrecy that should be attached to their amendments, that at a minimum they should be notified before the clerks would be apprised of what those amendments are?

Mr. Robert Marleau: It's certainly reasonable in the sense that that's the question.

Mr. Jay Hill: That's the question I was asking.

Mr. Robert Marleau: In terms of guaranteeing confidentiality, there probably are systems and methodology that you could put in place. You could segregate databases and offices. You could build firewalls, if you want, in the current lingo of high technology, but each one of those steps slows down the process. That's the only downside I would see in terms of service to the members. The more checks there are, the slower the service would be.

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Mr. Rob Walsh: I'll also respond briefly in saying that what is reasonable—as any of us, I suppose, around the table knows—differs according to the person who's being asked to determine what's reasonable. It is the case that many members are quite happy to have the benefit of whatever advice the lawyer can obtain relative to their amendments—not just the procedural rules, but actually the handling and prospects, etc., for them.

Amendments for committee stage are not routinely sent over to the committee clerk once they're drafted. The incident like the one Mr. Cadman raises and others have to be considered in the context within which they occur, in terms of that particular member's experience with that particular committee in respect of that particular bill. One has to really appreciate that the practice can vary from one occasion to the next.

So as to what is reasonable, I'm reluctant to endorse, as you might think.... Yes, it's reasonable to have confidentiality. Of course it is. But it's also reasonable...and I would urge the committee to keep in mind that there's a lot to be said for flexibility, so that members have an opportunity themselves, as individuals, to define how much confidentiality they want, whether it's strict or less than strict, rather than to straitjacket the process.

Mr. Jay Hill: Thank you. How would you ensure uniformity, then? What I hear you saying is that it varies tremendously from committee to committee, clerk to clerk, and member to member.

Mr. Rob Walsh: It varies to some degree. All I'm saying is that you can't just assume that one hard rule applies in all cases. But generally speaking, I suppose the simplest way to do it is that there's no release of amendments under any circumstances to anyone without clear authorization from the member who gave the instructions. That's obviously one straightforward way of doing it.

I'm concerned that would introduce, however, a degree of inflexibility to the process, where later a member might realize that a certain avenue was not pursued when it could have been, and that therefore the member's at a disadvantage, and then it's “Well, we couldn't, because you didn't give us permission to....” So there can be circumstances where that might be working to the detriment of the member rather than facilitating the interest of the member, but that's for the members to assess, not us.

The Chair: Mr. Knutson, then Mr. Bergeron.

Mr. Gar Knutson: Perhaps you could just stay on that line for a second. I take it that it wouldn't be that technically difficult to just declare that when you're dealing with a legislative counsel, it's done in strict confidence and they can't forward your motions to the journals branch or consult with a colleague without your permission, and have two separate databases. That firewall wouldn't incur a lot of extra expense.

Mr. Rob Walsh: I wouldn't think it would incur extra expense. It may bring on operational inefficiencies, if you like, of the kind I alluded to in addressing the previous question. But no, technically it could certainly be done.

Mr. Gar Knutson: So if the committee decided they wanted you to do that, it wouldn't be a huge problem.

So we can move from there and talk a little bit more about the downside, if we can itemize those. You're saying one is that you would prevent.... There are only a few people working in the legislative counsel branch or division—I'm not sure what you call it—and they have a certain expertise. If they wanted to consult with a colleague who might work in the journals branch or consult with Mr. Marleau, you're saying that would no longer happen, and it can happen now.

Mr. Rob Walsh: In my experience, we don't consult with anyone outside the immediate group. There's no need for Mr. Marleau, for example, or any other clerk at the House to be consulted with respect to amendments, outside of this immediate group called the legislative services unit.

Mr. Gar Knutson: The immediate group includes the journals branch?

Mr. Rob Walsh: No, the immediate group is the legislative clerks, legislative counsel, translators, editors, and text treatment operators who form a part of that group. It's our administrative assistance.

Mr. Gar Knutson: So what would be the downside if we isolated that group and said they would—

Mr. Rob Walsh: It's purely an operational one, okay? It is that the lawyers might draft amendments that are ignorant of the procedural rules application to that amendment, with the result that the member goes to journals office, in the case of report stage, or to the committee clerk, in the case of committee stage, and finds that the amendments are not acceptable, whereas if the lawyer had had some procedural advice, some corrections could have happened and the amendment could have been altered in some manner to prevent that from happening. When the member shows up at the last minute with his amendment at the committee stage or report stage, it's perhaps too late, in many cases, to make that correction to enable the amendment to be acceptable.

The other—

Mr. Gar Knutson: That's fixable just by getting permission up front.

Mr. Rob Walsh: Indeed, but you never know, going into a drafting, whether you'll see yourself with a problem. You don't know what you don't know.

Mr. Gar Knutson: Right.

Mr. Rob Walsh: You tend to want to have a blanket authorization: if I have a problem here and the opportunity presents itself, may I consult a procedural clerk? Yes, we could routinely ask that question of members, and they could give us their instructions accordingly.

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The other downside is during report stage and journals. It's just a matter of volume, dealing with the volume of amendments in terms of the Order Paper and so on. If they are not able to take preparatory steps prior to the arrival of the amendments at the deadline, it just slows down the operations.

Mr. Gar Knutson: Is that an issue routinely or is that a particular issue because of the clarity bill or Nisga'a?

Mr. Rob Walsh: It comes to a critical point, certainly, where there's a bill like the Nisga'a bill or the clarity bill, where there's a large number of amendments. Obviously it becomes very critical where there's a large number of amendments.

Mr. Gar Knutson: But my question is, is it an issue in other cases?

Mr. Rob Walsh: It may not be. If we go back to former times, when the numbers of amendments were not what they are today, this strict confidentiality suggestion you have might not present any significant problem.

Mr. Gar Knutson: Okay, that's all I have.

The Chair: Okay, you've used about four minutes.

Mr. Kilger, did you have an item that would take less than—

Mr. Bob Kilger (Stormont—Dundas—Charlottenburgh, Lib.): We can follow the order on this.

The Chair: Okay, that's fine.

Mr. Bergeron.

[Translation]

Mr. Stéphane Bergeron (Verchères—Les-Patriotes, BQ): I would like to thank Mr. Marleau and Mr. Walsh for joining us today. I greatly appreciated Mr. Marleau's presentation. We also greatly appreciate Mr. Walsh's loquaciousness. I hope that it is in the context of his duty to remain reserved.

Having said that, I noticed that during his presentation, Mr. Marleau reminded us, rightly so, that the issue of legislative counsel had occasionally been raised in the House and that it had been discussed by the Board of Internal Economy, obviously from the perspective of resources that are available to members.

Although we cannot make a categorical distinction between resources and the issue of confidentiality, I think nevertheless that the topic we are currently studying goes beyond the issue of resources and deals specifically with the issue of confidentiality and trust that must exist between legislative counsel and members, in other words between solicitors and clients.

I refer you to the bottom of page 920, in chapter 21 of the work by Montpetit and Marleau, where the responsibilities of legislative counsel are explained. Footnote 159 refers back to the 13th report of the Standing Committee on Procedure and House Affairs that was presented in the House on November 26, 1997, and adopted on November 4, 1998. The duties of legislative counsel are relatively clear, and members have been made aware of them. A debate and discussions on that topic were held.

As for the issue of confidentiality and trust, which was raised as a question of privilege by my colleague from Rimouski- Mitis and our colleague from the Reform Party at the time, which has become the Canadian Alliance, it seemed to be quite new. In his response, the Speaker said that there was no database for legislative counsel as the honourable member seems to believe there was. Having said that, the Speaker implied that it was a situation that had always existed.

Mr. Chairman, we were however told that it had not always been like that. Changes were allegedly made some time ago with respect to confidentiality, and it seems that none of us were informed. Although I am a member of the Board of Internal Economy, I was not informed. Of course, there were discussions with respect to resources, but we were never informed of changes with respect to confidentiality.

Mr. Marleau, have there been changes in recent years with respect to solicitor-client privilege and the confidentiality that must exist in these situations, and if yes, when?

Mr. Robert Marleau: I must start by saying that when I was preparing for this meeting, as well as prior to and after the debate that was held in the House, I was unable to find any decision by the Board of Internal Economy or the House stating that the relationship between members and legislative drafters was a solicitor-client relationship.

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So I will give you my perspective. Whether you ask a procedural clerk to draft an amendment—which was common practice before and is still done on many occasions, or whether you ask a legislative drafter who has four years of legal training and has done two years of legislative drafting, the same confidentiality applies in my opinion. The relationship with the member is the same. Neither one can violate this confidentiality, nor give the impression of having done so.

Now, the debate on the solicitor-client relationship is in your hands. If it were the wish of the committee and if the recommendation were made to the House, we would act accordingly, taking into account the necessary elements to guarantee and implement that relationship. But to date, it has not been established that the relationship between legislative drafters and members of Parliament has the same status as a relationship with a lawyer who provides legal council and who, ultimately, could end up involved in a legal process.

Mr. Stéphane Bergeron: You were unable to determine if any decision anywhere, from the Board of Internal Economy or any other body sets guidelines and identifies the confidential nature of the relationship between the solicitor and the client.

Moreover, can you confirm that a directive was issued by House administration some time ago to clarify, for legislative counsel, that confidentiality regarding this solicitor-client relationship did not exist?

Mr. Robert Marleau: I am not in a position to say yes or no. I have never heard that said. Perhaps Mr. Walsh can respond.

Mr. Rob Walsh: It has happened from time to time that we have discussed confidentiality as it relates to the solicitor-client relationship, Mr. Bergeron, within the group of legislative counsel at legislative services. Perhaps I wrote to a service, in the past, on some topic where I had to address the solicitor-client relationship. But if I remember correctly, there was never an official announcement issued by the House of Commons administration or internal economy to the effect that the confidential nature of the solicitor-client relationship no longer existed.

I would like to add a comment, sir. Since I arrived in 1991, there have been relationships between lawyers and members, both in the area of legislative and legal services. But I would say, as a lawyer having worked in the private sector in a lawyer's office, that some professionals in the office were protected by the umbrella of confidentiality for dealings with their clients. Here, the same is true for procedural clerks, administrative assistants, and translators, etc.

In my opinion, for operational requirements, in other words requirements of members and the House of Commons, the group covered by this umbrella includes more than legislative counsel. It also includes clerks. As a result, in my opinion, the confidentiality that applies to members' amendments applies to more people than just legislative counsel. In the past, in my opinion, it was not a solicitor-client relationship.

I am saying that there could not have been an official announcement stating that there was no longer a solicitor-client relationship with members, because such a relationship did not exist, in my opinion. It was instead a question of providing legislative services in keeping with the operational requirements of committees, the House of Commons or members.

Mr. Stéphane Bergeron: I would perhaps be interested in more information on the discussions you had and on the memo that you wrote regarding this confidential solicitor-client relationship, because it is probably at the heart of the discussion we are having here today, around this table.

In light of the decision rendered by the Speaker, do you consider Journals clerks covered by the umbrella of confidentiality you alluded to earlier, or does it only protect procedural clerks, legislative counsel, word-processing services, and legal translators, etc.? Are those the only people who are covered or does it also include the clerks and Journals?

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Mr. Rob Walsh: That is always an interesting question. The clerks at Journals are a separate group, although at report stage, they are part of the operational group that supports the process.

Mr. Stéphane Bergeron: So at report stage, to your mind there is a kind of distinction and the clerks at Journals are covered, if I may put it that way, by this umbrella and can use legislative counsels' database.

Mr. Rob Walsh: Yes, in preparing the Order Paper for the next day.

Mr. Stéphane Bergeron: Okay. I would like to ask you a question on the double standard that can be perceived with regard to this way of doing things. Do amendments prepared by the Department of Justice for the government—and I am not talking about government members here, because they follow exactly the same process as we do—go through procedural clerks before going to Journals or do they go directly to Journals?

Mr. Robert Marleau: It depends on the circumstances. In the case of proposed amendments, whether they make it on the Order Paper or not, it is common to consult the committee clerk, the table clerk or the drafter, using one's contacts at the Department of Justice.

Mr. Stéphane Bergeron: I'm not talking about consultation. Once they have been drafted, do these amendments go through another stage before ending up at Journals?

Mr. Robert Marleau: These amendments are given to Journals in full confidentiality so that they can appear on the Order Paper, according to the day and time deadline for the Order Paper. As I said earlier, although they are sometimes withdrawn, they always receive the same confidentiality. The requirements are just as strict as they are for amendments introduced by members or government backbenchers.

Mr. Stéphane Bergeron: Are the clerks...

[English]

The Chair: We've gone over the eleven-minute mark, so I think we'd better conclude here. We'll come back to you.

Mr. Stéphane Bergeron: Excellent.

The Chair: If I may just clarify what I'm hearing then, among the relationships we've outlined here between members of the House and the legislative drafters and the procedural clerks, there is no solicitor-client relationship, but there is office or institutional confidentiality. Do I have that right?

Mr. Rob Walsh: “Solicitor-client relationship” is a label that is used in discussions such as this one, as it was used in the House. As you know, Mr. Chairman, because you are a lawyer yourself, it's not an easily defined or easily applied concept. One has to look at the situation in each case.

To say there's no solicitor-client relationship in the case of legislative counsel and members of Parliament is half right and half wrong, in the sense that an important part of the solicitor-client relationship is confidentiality. There is confidentiality, and that part of the solicitor-client relationship is there, subject to the fact that some members don't like the fact that it's shared with clerks. But in terms of other members of Parliament knowing about a given member's legislative business, that confidentiality is maintained.

But the other part of the solicitor-client relationship is conflict of interest. Clearly legislative counsel act in conflict of interest.

If you begin to apply the concept of the solicitor-client relationship to the parliamentary context, arguably it doesn't apply at all. Let's suppose we take that concept from the outside world and bring it into the parliamentary context. There are two components here at the very least: one is conflict of interest and the other is confidentiality.

Legislative counsel will draft an amendment for a member of one party and then draft an amendment for a member of another party and another party, and then may end up having to advise the clerk of the committee, who in turn advises the chair, about the amendment. So conflict of interest is flying all around here. As a lawyer, I can tell you it leaves us somewhat uncomfortable on occasion, because as you know yourself, as a lawyer, of course, when things go wrong, the lawyer is thought to be the one that's caused the problem.

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The Chair: I had thought I could get a really quick answer. I didn't want to interrupt the flow.

I'll go to Mr. Kilger.

Mr. Bob Kilger: Mr. Chairman, maybe Mr. Walsh has his second wind. His introductory remarks were so brief, but maybe now he's beginning to feel more at ease with us.

I don't want to take up too much time of the committee just to go back to some of the comments I made in the debate we had last week in the House, but again, I had that unique perspective for three years of working very closely with the clerks, and

[Translation]

this umbrella of confidentiality that Mr. Walsh so clearly described. I have been working on the team for almost three years, and I know that this confidentiality is a very important and essential issue for the House. For all members in all parties, trust is of the utmost importance. I am going to repeat myself, but I want to tell you about my experience as a member of the team that manages House proceedings. There is no doubt that preparations for the daily proceedings in the House were conducted with confidentiality and integrity that met all of our expectations.

To conclude on this topic, I would say that even if the various groups under this umbrella share information, I never got wind of any situation where information belonging to a member of one political party, and I stress the belonging to, that was in the hands of this professional group that works with us and for us, ending up in the hands of another political party.

Perhaps today, as Chief Government Whip, I am not the most credible person, but my integrity is important to me. That is why I wanted to share that comment with you in light of another experience I had at the House, when I was one of the members in the Speaker's chair.

Regarding today's issue directly, if I stick to the comment made by the Speaker in his decision, I hope, and I believe, that we can all accept that the House's legislative counsel do not work in a vacuum. I know that we must all accept that staff in legislative services, committee clerks and staff at the Journals branch work together.

In light of these fact, I would ask Mr. Marleau and Mr. Walsh if they are confident that the principle of confidentiality is respected for all members who contact legislative counsel or seek to obtain their assistance.

Mr. Robert Marleau: Personally, for the entire team, generally speaking, the answer must be yes. But my answer is based on the fact that I have never found a breach of confidentiality where information belonging to one member has been shared with another member, nor with a member from the same political party. In other words, the airtight situation you are looking for already exists in my opinion. Information is not even shared within the same caucus, unless caucus staff comes looking for a draft or advice, or caucus staff submits the final documents to Journals.

In my 13 years as a clerk, I have never found an incident where such a leak could be attributed to a clerk or legal counsels.

Mr. Bob Kilger: Mr. Chairman, I would like to ask another question, if I may.

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If I understand you correctly, and correct me if I am wrong, Mr. Chairman, our next witnesses will be legislative counsels. Is that correct?

[English]

The Chair: Yes

[Translation]

Mr. Bob Kilger: Mr. Marleau and Mr. Walsh, are you confident that legislative counsel working with this team truly share the same values with respect to the principle of confidentiality that we already call our own? This principle will perhaps be different later on, after our discussions.

[English]

In other words, I would expect that they have the same understanding of the terms under which they work with us as expressed by you today.

Mr. Rob Walsh: I would affirm that it is my understanding that both legislative clerks and legislative counsel understand that this confidentiality applies in the manner I've described it. But I hesitate to address the question Mr. Kilger posed a moment ago, in the sense that I don't feel I'm the one, as a servant of the House, to define what the confidentiality should or should not be that applies between members and legislative counsel.

I can only explain to you, with apologies, I suppose, that my understanding has been that confidentiality was to be maintained vis-à-vis other members of Parliament. It never occurred to me that I was expected to maintain confidentiality within the narrow group of lawyers and not even trust procedural clerks to have knowledge of this confidential information. I stand to be corrected, obviously. If the wish of this committee and the House is to limit access to that confidential information so that procedural clerks do not have access to it, fine; I'll take those instructions and we'll proceed on that basis.

Confidentiality is a function of how one might expect it to apply in terms of who is the group that has an interest in the confidentiality. I thought it was members of Parliament.

Mr. Bob Kilger: Thank you. That's all.

[Translation]

The Chairman: Mr. Godin, and then Ms. Parrish.

Mr. Yvon Godin (Acadie—Bathurst, NDP): First of all, I would like to welcome you to the committee.

You said earlier on that there was a shortage of staff to draft bills. I am forced to say that I agree with you, because I presented one last week and they only foresee my having it at the end of the fall, and perhaps even after the election. That is quite a delay. I can go into greater detail if you want, Mr. Kilger, but I am forced to agree with you.

My problem is that when you arrived here, Mr. Marleau, you said that you had some suggestions to make. For example, you suggested more money for members' offices, or perhaps more money for caucus research bureaus, or transferring responsibility to the Library of Parliament. It is as if you were recognizing that there are enough people to do the work. Moreover, we are dealing with the problem of confidentiality today.

So do we have a problem, yes or no? It is as simple as that. In the case of the 700 amendments—I think there were 700—that were not retained, was it a problem of lack of confidentiality? I think that is what is at the heart of the debate, and it is along those lines that I am asking my question. There are not 2,000 questions. There are not 50,000. The issue is not whether you are trustworthy or not. Can you do your job or are you forced to turn elsewhere? That is where the problem originated. I think that we as committee members need to know that in order to be able to try and resolve the problem.

There is a comment I would like to make: I don't think you'll settle the problem by giving more money to members' offices. If there is one amendment a year, why shouldn't there be extra money? We don't know how many there are. I think the House must assume its responsibility. The money must be given to the House of Commons for it to be able to give us what we need as members to do our work.

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If you want to send your work elsewhere, you have all kinds of places you can send it to. I for one, if I send it elsewhere, I am going to send it to the Acadian Peninsula. That is not what you want. So I think we really have to examine the House's responsibility and see if there was really a problem during the last votes we held. If there was one, we have to see how it can be corrected and what the suggestions are for that. But we can't beat about the bush. That doesn't work. I think we have to go directly to the target, see if we have a problem or not and what suggestions are made to correct it. That is what I would like to hear.

Mr. Robert Marleau: To answer your first question, as to whether there was a confidentiality problem, my answer was no before. No information was divulged to any party, nor to any deputy other than those who had authored the requests. The umbrella of confidentiality was maintained and that is what the Speaker handed down as his decision.

Is there not enough staff? I can tell you that if the trend continues, as I was mentioning before, and that for four or five pieces of controversial legislation per session there is a request for 1,000 or 1,200 amendments every time, on top of all the demands made by the other committees, yes, there will be insufficient staff. If this trend goes on, it's a matter of resources that the Board of Internal Economy will have to look at. It is quite a new trend.

As for confidentiality, there was no breach of confidentiality.

As for the solutions I mentioned in my presentation, I said these were options the Board had already looked at and that the House motion that is being examined in this committee mentioned possible alternatives. That's why I told you about them. I didn't necessarily present them as being mine. But if, because of this perception that there was a breach of confidentiality or because of the fact that confidentiality is too loose, if, then, the members are not comfortable with this operational method, you can tell us to do things otherwise and to tighten up confidentiality. That is feasible and reasonable. That's what I answered Mr. Hill.

Also, if you are still concerned—you talked about trust—as to this umbrella of confidentiality, one of the options you have is to have the work done elsewhere, either on contract, either within the framework of an individual agreement between the member and a lawyer whose services would be retained either by the House, the member, the Board, or Mr. Walsh who pays out a certain amount to lawyers on contract. So I've addressed the alternatives you have if the present way of doing things is not satisfactory to you.

Mr. Yvon Godin: I thought this had come from a group, that it had been given to the clerk of the House for him to give the information to the Speaker and that the problem had occurred there. It was not transmitted from one member to another. You are repeating that the information did not go from one member to another. That is not the point. It is internal and the Speaker is mixed up in this a little. You know where we are at with that. I would like to hear you on that.

Mr. Robert Marleau: When the Journals Branch gets the amendments, the Speaker has to examine them and hand down a decision, normally within 24 hours; it is not really 24 hours, but more like 18 hours which is from 6 p.m. the previous day to 10 o'clock the next day, most of the time. He must render a decision on the admissibility of amendments as far as procedure goes.

When you have a volume of 1,000 or 1,200 amendments, a procedural clerk starts analyzing those amendments sooner. But the work was not done externally. It was done internally. Is amendment X, A, B or C admissible or not and why? That is the formulation that is sent to the Speaker. We tell him about the work we did: the amendments which, in our opinion, should be rejected, how they should be grouped and, within that grouping, how the voting process should happen. When the Speaker has been informed of all that, we then contact the members concerned to tell them if the amendment was accepted or rejected and what group it is in if it was accepted.

• 1200

[English]

The Chair: Thank you.

Ms. Parrish, Ms. Tremblay, Mr. Harvey.

Ms. Carolyn Parrish (Mississauga Centre, Lib.): First of all, because you're here to defend your department, I just want to point out that the two lawyers in the whole blanket of the department I've had dealings with have both been first class. I've dealt with Diane Davidson—fabulous. I've dealt with Diane Davidson in legal services, and each time I've presented her with a problem she has said “Do you mind if I consult with colleagues?” So she's been very meticulous and very careful and her advice has been excellent. She's been wonderful.

And Jamie as well. When I was chairman of the private members' business committee we had some tricky stuff to go through, and he was incredibly fine.

I think we have to first of all recognize, everyone in this room, all parliamentarians, that the intent of your staff, both clerks and counsel, has always been to do the best they can. They're not in there to try to breach confidentiality or play games or be partisan. I don't think that exists. I think you have to look at intent.

The second problem that evolves when I listen to this is if you separate the clerks and the counsel so that they don't talk to each other because of confidentiality, it's almost like going to the doctor's office and saying “I'm going to tell the doctor what my symptoms are, but I don't want the nurse to see the records and I don't want the nurse to record it.” It makes it very difficult. When I go for medical treatment, I expect them to work as a team. When I go into a hospital, I expect all the staff to work as a team. I don't expect them to go and talk about my pancreas to somebody out on the street, but I do expect them to work together and I do expect them to consult.

To use a simple analogy, I think the system isn't broken. So before we get into contemplating our navels at great length over this thing for weeks on end, I think we have to recognize that the intent of the people who work for us is excellent. It's good, it's first class. Nobody intends to hurt anybody here.

The second thing I want to mention is I like Gar's direction, because I'm one of those people who likes to send things out to people who can spend hours looking at chicken entrails. If Gar's direction to you is to just tell them for the next couple of weeks that we're going to be really careful with this and we're going to stress that these are confidential things and we're going to be really careful, I think that solves our current problem.

The second thing I want to comment on is the changes that are happening—with all due respect to the parties opposite. I used to watch the House of Commons when I was a new mom and I had nothing better to do. It was an old boys club, and everybody sat around contemplating their navels and making very glorious speeches for the people back home. It wasn't as confrontational as it is now. You'll recognize that. And this is with respect. You guys are pulling tricks that, if we were in opposition, we'd be pulling too. It's a far more exciting place to be. I think a lot of the changes are a by-product of.... We are no longer a gentlemen's debating society here. We are in here for the kill.

Watching the ways the parties work, I respect the fact that they are coming up with new tricks all the time, because I'd be doing the same thing in opposition. So I think the by-product is your staff is getting killed in the middle of this. The crunch is happening in the middle.

So my third suggestion—and it's my favourite suggestion always, Mr. Chair.... When I chaired the Sub-Committee on Private Members' Business, this was an issue that was already surfacing. The recommendations that you made, the four or five different alternatives you've put up in the air—before we look at that, I'd like to send that to a committee of people who will make a study of how much service is being used, which parties are using it the most, what is the cost of it, and then come back with the alternatives and tell us how these alternatives are going to affect the overall budget of the government.

We have householders—we're given four a year—and those don't come out of our budgets; they come out of a circular budget that disappears somewhere. But before I would agree that legal services by party should go into that same sort of category, I'd like to know what it's going to cost, who's using it the most, and who's going to benefit the most. To get that kind of information, we could sit here for weeks, and it's not going to help anybody.

So I would like to reinforce what Gar said, and for the next couple of weeks stress the confidentiality aspect.

Secondly, I'd like to recognize that the problems are not a creation of your department people. They're in fact our creation.

Thirdly, I'd like to send it to a subcommittee to look at all these alternatives, what the costs are, and who's benefiting and who's using them. We may come back with a system we like very much—you get to do x number of bills a year, and it doesn't even come out of your budget. Right now, if I wanted to, I could hire a lawyer separate and above all this and take that out of my budget. So if I were really paranoid, and I wanted to be super-confidential and I wanted to surprise the world with something, I'd hire my own lawyer and it would come out of my office budget.

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I really would like to see this sub-issue, because of the changing condition of government and parties, sent off somewhere and looked at thoroughly. I don't think we can make an intelligent decision based on no research here. I'd like you to put your heads together with your departments and find out alternate ways of doing this that will guarantee party confidentiality, at least. Then we'd go on about our business.

I would again like to stress—I think Gar's suggestion is perfect—reinforce it, leave it at that, and send it off somewhere.

That's my speech for the day.

The Chair: That's a rhetorical question, not requiring an answer.

Ms. Carolyn Parrish: If I were to move, though, that the question of legal services and the review of legal services go to the committee for private members' business, would that at some point be in order?

The Chair: We could get to that in due course. Certainly we could.

I'm going to go to Mr. Harvey and then Ms. Tremblay. Mr. Harvey, please.

[Translation]

Mr. Yvon Godin: On a point of order, Mr. Chairman.

[English]

The Chair: Mr. Godin.

[Translation]

Mr. Yvon Godin: Here, we hear the witnesses and put questions to them so that the committee can pursue its work later on. Now is not the time to start making decisions. We'll get information on the problems that are in the House and when we're done with that, then the committee will make its decisions.

[English]

The Chair: Okay. Thank you.

Mr. Harvey and then Madame Tremblay.

Mr. André Harvey (Chicoutimi, PC): It was Ms. Tremblay before me, Mr. Chairman.

The Chair: Okay. Madame Tremblay.

[Translation]

Ms. Suzanne Tremblay (Rimouski—Mitis, BQ): I'll follow-up on Mr. Godin's intervention. I have a few brief questions in order to understand things better.

There are committee clerks, clerks of the House of Commons and procedural clerks. Are these people interchangeable? Can you be assigned to committees, procedure and the House all at the same time or are the roles more specialized?

Mr. Robert Marleau: There is a career path. Those people are called procedural clerks. There is a rotation they all go through. They are all called upon in turn to serve either at committees, at Journals, at research for the Bureau, at parliamentary exchanges or at associations. Over an eight to ten-year period, we try to give the clerks exposure to all the dimensions of the services required by members.

Ms. Suzanne Tremblay: Is the clerk as you describe him or her first and foremost at the service of the House or of the member?

Mr. Robert Marleau: You mean the clerk?

Ms. Suzanne Tremblay: I mean the clerk under the umbrella. I'm not talking about the committee clerk.

Mr. Robert Marleau: He is an employee of the House and his employer is the Board, but he serves the member. If you communicate with the clerk, either the committee clerk or a clerk at Journals Branch, to get advice on procedure, he will be at your service and it will be confidential according to your instructions.

Ms. Suzanne Tremblay: Could one say that the legislative counsel and the clerk both have the same ties with the members, or is the legislative counsel closer to the member than the clerk, who would have a bit more of a small bias towards members-House, whereas the other one only serves the members? What is the difference between the two?

Mr. Robert Marleau: I will give you a clerk's answer, and then perhaps the lawyer may comment.

The clerk's answer is that for me they are both employees who have been assigned tasks and who serve the members. For me, the link is the same. However, in the context where legal advice is being given, there is the lawyerly dimension that comes up. That's why I mentioned in my preface that I had witnessed—this is more than a perception—some evolution: what used to be a mandate for legislative writing is evolving towards a role of legal counsel. That's not the same thing.

If I give you advice and I examine a government bill to suggest a legally strategic way of amending it, we're no longer talking about drafting an amendment. There is a whole other dimension to it. When that happens, the relationship between you and the person from whom you are requesting legal advice is more privileged. Mr. Walsh will contradict me if I'm wrong.

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Mr. Rob Walsh: Mr. Chairman, Ms. Tremblay's question is the main issue of this great controversy. What is the nature of the relationship between lawyers, who are employees of the House of Commons, and members? In my opinion, the lawyer-client relationship is a legal relationship. The lawyer-client relationship, with lawyer-client privilege, is a legal concept. The lawyers' client is the House of Commons. Why? Because it is the House of Commons who employs the lawyer. If a lawyer is hired by a company or an institution, then that lawyer's client is in theory the company or the institution.

The legislative aspect and the legal aspect, with lawyers who specialize in law and in legislation, present different problems. The legislative side is somewhat simpler than the legal side. On the legislative side, despite the fact that, as I mentioned, the House of Commons is the lawyers' main client, the House of Commons allows the lawyers to provide services to members. Thus the House has created a type of professional relationship between the legislative counsel and the members. This could be described as a counsellor-client relationship, but there is a conflict of interest because there are different groups of clients who are members of different political parties. So, in my opinion, lawyers are in a situation of conflict, because they must serve the House of Commons, as an institution and as an employer, and its committees, and the members as individuals. That is a problem.

However, if this committee or if the Board of Internal Economy define these relationships, this could solve these lawyers' problems. What is the nature of the relationship between the lawyers and the members? It is not clear. It has never been clear, in the legal sense, if you will. The issue has been left in abeyance and everyone takes for granted that everything is working well. Normally in the drafting of bills and amendments, there are no problems. However, sometimes you run into a problem, such as now. Some of the members believe that the legislative counsel is basically their lawyer. I'm sorry, but the lawyer is first and foremost a lawyer for the House of Commons. That is the problem.

Ms. Suzanne Tremblay: There is something that I want to make sure I understand properly. I am a member. I go to see a legislative counsel and I have him draft 40 amendments to a bill. Earlier you said, Mr. Marleau, that the procedural clerk would begin assessing these beforehand, because there would be a great deal to look at in 24 hours. So, the legislative counsel and the clerk have a shared database. Both provide service to the members. If the clerk realizes, when beginning his or her work, that the amendment that was drafted doesn't make sense and will be rejected, why not tell us in advance? The clerks are supposed to be working for us. Why do they leave us in the dark if the work was not properly done? Why? It's a waste of everybody's time.

Mr. Robert Marleau: That is precisely the reason why we put forward this idea of teamwork, to prevent the lawyer from working in a vacuum and from making drafts that will ultimately be rejected. I can assure you this is not new complaint. Oftentimes members come to my office to tell me that they had an amendment drafted by a lawyer and that the Speaker then rejected it. What is happening? The right hand doesn't know what the left hand is doing? This is what you have underscored.

Some counsel, in the past, have maintained this client- solicitor confidentiality on their own initiative, either because of their professional zeal or for reasons of perception, and we got the amendments at the last minute. In these cases, the client is vulnerable. However if there is sharing and a dialogue throughout the process, we have much more time to go to see the member and tell him or her that there is a problem. Sometimes the legislative counsel, who becomes quite experienced with time, tells members that the amendment will be ruled out of order by the Speaker, but the members want to move the amendment nevertheless.

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Sometimes the instructions come from the caucus offices, from members of your staff. I could ask Mr. Walsh to comment on the ambiguities that occur sometimes, depending on the instructions we receive. It often happens that members come and tell me that they requested a bill on a particular subject and got something totally different from what they wanted. This type of ambiguity happens sometimes. The more the clerks and the drafters of the amendments work as a team, the less we will have situations of this type.

Ms. Suzanne Tremblay: Let us come back to the case that caused our problem. The clerk told us that a number of amendments were ruled out of order because of one word and that if we replaced this word by another, the amendments would be in order. The clerk told us that. We did everything he told us to do, and the amendments were still ruled out of order. Why were we given this information and why did we do all that work for nothing, if it was known that the amendments would ultimately be ruled out of order?

Mr. Robert Marleau: In this particular case, following your intervention in the House, and Mr. Turp's intervention specifically, I checked and found that there were two aspects to the amendment. There was a new concept, terminology that was not contained in the bill, and this made it out of order. In addition, the whole series of amendments ran counter to the principle of the bill as passed at second reading. So there were two reasons why the amendments were out of order. Were these two reasons passed on to you? I could not say.

Ms. Suzanne Tremblay: When the clerk starts doing the preliminary work, I imagine he must be working with paper copies. This is how we hit the jackpot—we found out that amendments that we had not even tabled had been ruled out of order. If there are paper copies of amendments that have not been tabled floating around, we are entitled to think that there may have been a breach of confidentiality. The amendments had not been tabled. No member of Parliament had signed them. They were supposed to be in the legislative counsel's data bank only, but they turned up on paper.

Mr. Robert Marleau: That is correct... No, I don't think you found them on paper.

Ms. Suzanne Tremblay: Yes, I have them in my office on paper, as an appendix to the letter sent to us by the assistant to the chief clerk, or something like that.

Mr. Robert Marleau: In other words...

Ms. Suzanne Tremblay: So they are on paper; they are not virtual.

Mr. Robert Marleau: No, no. This exchange took place between the clerk who analyzed the amendments and the member of your caucus staff. Did he work on paper? Did he work on the database? I cannot answer that today. I will be able to give you a specific answer later. Either way, you were sent two amendments whose drafting had been requested and two reference numbers from the database. But it did not go out of your circle. The amendments were already in the hands of the team. You did not table them with the Order Paper staff at 6 p.m. to make them public, and they were not made public.

The clerk made a mistake in his analysis of the 1,200 amendments by including two amendments that were already in the database. He told you they would be ruled out of order by the Speaker. They were never printed in the Order Paper. They are still in the database, but no one knows the wording of these amendments except you, Ms. Tremblay.

[English]

The Chair: Thank you.

Now we go to Mr. Harvey, then Mr. Hill.

[Translation]

Mr. André Harvey: I would like to make a brief comment, Mr. Chairman.

It may seem incidental, but we never waste our time when we are trying to improve the way the legislative process works. I'm a little bit circumspect, because it is not every day that hundreds of amendments are tabled. I want us to remain balanced in our approach, because Mr. Marleau easily referred to the hiring of new staff, of contract employees, and so on.

Sometimes we go through very emotional times, when the debates are rather touchy. I would not say that at such times there's an abuse of parliamentary procedure, but the opposition parties do want to make themselves heard. It is not something that happens every week. I would like to ask Mr. Marleau whether, when things are normal, we can function with the resources we have. If we start hiring more people, the cost will be high. These people do not work for the minimum wage.

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Various scenarios have been presented. I see no point in transferring more money to members' budgets, for example. I think that what happened is very serious, but it does not happen very often. I have been in touch with a few members of Parliament who have worked on amendments, and I have never heard any complaints about the professional work of our clerks and legislative counsel. That is something I have not seen very often. It happened in this case, and I respect that. Can Mr. Marleau confirm that no additional staff will be hired? Can he also tell us whether, normally, 99.9% of the time, everyone is satisfied with the work that is done and deadlines are met?

Mr. Robert Marleau: When I argued for increased resources, I did specify that this would be necessary if the trend continued. There has been a 120% increase in the number of requests for amendments compared to the last session, during which there had been an increase of almost 50%, compared to the preceding session.

Mr. André Harvey: [Editor's Note: Inaudible]

Mr. Robert Marleau: The report stage is heading in a direction we have never seen before. I don't want to get involved in your debate at this point, and I am trying to choose my words carefully. In the 1980s, I can remember only three bills for which there were 150 amendments: Bill S-9, on the creation of CSIS, when the RCMP and the Security Service were separated; the bill on the Crow's Nest Pass rate, which you probably remember, and which had about 100 amendments; and the bill on free trade, which had 150 amendments. But it is unprecedented to have 500 amendments, 1,000 amendments, 1,200 amendments or 3,000 amendments.

Is this simply a crisis the House is going through that will cause it to take charge, and review its standing orders? I hope so. However, if this trend continues, you will have to ask yourselves some serious questions. For how many days are you physically able to stand up to vote 800 or 900 times? You have some physical limitations, and I must tell you that my staff has the same limitations. So far, we have managed, in that we did the work we had to do within the time required under the Standing Orders. However, if the trend continues, notice of 24 hours and 48 hours will no longer be enough for the Speaker to do his work seriously and properly.

Mr. André Harvey: Mr. Chairman, before we proceed with hiring additional staff, we will have to have a careful look amongst ourselves at the whole issue of reviewing the Standing Orders. I hope that we will wait until this is done, because the issue of staffing is related to parliamentary procedure. Therefore they should be reviewed together. I hope that we will wait before hiring too many people. Thank you.

[English]

The Chair: Thank you.

Mr. Hill, for a second round, and then Ms. Catterall.

Mr. Jay Hill: Thank you, Mr. Chairman.

I want to follow up on a couple of issues that were raised by colleagues across the way. The first is Ms. Parrish's recommendation, I guess I'll call it—not the one about her pancreas, but the one concerning further study.

If my memory serves me well, Mr. Marleau, during your comments you referred to a study. Without betraying confidentiality, which is the reason we're all here, was a study undertaken of the ramifications of downsizing on the legislative counsel work?

Mr. Robert Marleau: No specific study was done on legislative counsel work.

The entire reduction in personnel was voluntary across the House. Managers had to react against the hiring freeze—react to the losses where they took them, re-engineer, and redesign. To some degree, the downsizing impacted. Two lawyers took a voluntary package to leave. But in that particular area, because of the pressures, the Board of Internal Economy authorized legislative counsel to contract work for a period of carryover.

• 1225

We recruited also from the Department of Justice a senior legal counsel for one year on attachment. She's gone back now, and we have four terms who have been hired anticipating the bulge into the last phase of this Parliament. But none of those terms will go longer than the year 2001, because we're not quite sure where you're going to go with report stage, and it's not the time for us to make long-term commitments on those kinds of resources.

But the board, in one of its subcommittees, did analyse in depth the usage of those services in terms of who uses them, what percentage of MPs, which side of the House. All of those statistics are available. They can be updated.

On the private members' bills drafting side, they're updated weekly. We've decided to do it weekly, because we don't know where the next complaint is going to come from—and it's going to come. We have to be able to show the data that we are attempting, with the resources we now have, to meet the demands of MPs. Those figures are available and normally would go to the board, but I suppose if the committee requested them in terms of—

Mrs. Carolyn Parrish: Can we have those statistics, Mr. Chair?

The Chair: Irrespective of whether they're readily available or not, certainly if they exist, Ms. Parrish wishes to have them. Is that possible?

Mr. Robert Marleau: I want to come back to Mr. Hill's point. I'm not so sure I want to say how many we've drafted for one party or another. I think we're getting into a realm of that confidentiality.

The Chair: Confidentiality, yes.

Mr. Robert Marleau: We could do party number one, two, three, four, or five, or something like that, to give you an idea of the dimensions. We could certainly give you global figures about how many amendments have been drafted, how many bills, but I'm in your hands on that one.

The Chair: Perhaps what we could do is.... Let's be clear about what we'd like to receive in terms of information. We don't have to do it right here on the floor of the meeting; we could collaborate a little later.

Mr. Walsh.

Mr. Rob Walsh: I wanted to say that perhaps I might get into consultations with the researcher for the committee, Mr. Robertson, and we can sort out what statistics we can make available to you that don't offend the confidentiality about the source.

The Chair: Mr. Kilger, on the same issue.

Mr. Bob Kilger: Mr. Chairman, if you will allow me—maybe it would be helpful—I would like to have the global figures and then the figures that apply to our party in that spirit of respecting confidentiality. If we could start with that, then each party could get their own numbers and the global figures.

The Chair: Mr. Walsh.

Mr. Rob Walsh: You might think that wouldn't be a problem. When you get into confidentiality, you get into an area of problems.

There can be members of a party whose legislative initiatives, whether in the form of a private member's bill or amendments, are not done with the blessing of the party, and it may well be that the individual member doesn't want himself or herself identified. I can give you numbers, however.

Mr. Bob Kilger: I don't want them, Mr. Chairman, to be more specific. I'm not interested in names, simply data, figures, because I can assure you in terms of those very same concerns that are being espoused by the members of the opposition, we have the same ones on the government side, and it's in this spirit of transparency that we want to arrive at a solution whereby the House will in fact deal with the matter in such a way that it will give it, if that's what we arrive at, new direction and within the sphere of confidentiality and the area all of you work in.

The Chair: Along the lines suggested by Mr. Kilger then, let's see how far Mr. Walsh and Mr. Robertson can go without risking confidentiality. Is that okay? Yes, okay. Back to Mr. Hill.

Mr. Jay Hill: Mr. Chairman, why I started down that track is that I didn't want to see us reinvent the wheel, that's all. I didn't want to see us shuffle this issue off to some subcommittee, as suggested, with all due respect, by Madam Parrish, and end up reinventing the wheel. As I said, if the work has already been done and whatever is available to the committee...I think that would be a positive step forward.

The only other issue I have is in connection with downsizing, and I want some clarification. You used the terms, in reply to a question by Mr. Kilger, that generally speaking—I wrote it down—there hasn't been a problem, and then you went on to say later on that there will be a problem, and I think you're referring to the uniqueness of this large number of amendments that have flooded in the last while, over the last few months. Why would you be projecting that there will be a problem unless you're projecting ahead to 2001, when these contracts expire? Why would there be a problem in the future if you're saying, with a certain amount of confidence, that there hasn't been a problem in the immediate past?

• 1230

Mr. Robert Marleau: Maybe I wasn't clear enough about what I see as the problem. The problem I referred to is the following: It occurs in the fall, November-December, depending on the legislative priorities of the government, and May-June. It occurs at report stage. It occurs when the five parties wish to have amendments drafted in a hurry for a specific deadline in the context of the bills being taken up in the House. There might be a draw that week and members are rushing to get their private members' bills in. To get into the draw, they need to have them read a first time, and the pressure builds.

That's the problem I was referring to. There are probably not enough resources to throw at that peak to make everyone happy. We've not yet found a way of flattening that bulge.

The other bulge occurs at the beginning of a session, particularly the first session of a Parliament. We have new members coming in, you have returning members, they know the game on the draw, when to get in, and they want those bills in the House mighty fast. That's what happened in 1997. We went about 60 days with several complaints from members: “Where's my bill? I asked for it last July.” So in that kind of context, we had a problem.

That flattens out as the Parliament advances. Plus, from one session to the next, you get what we call repeat bills. The one that died on the Order Paper comes back, which is not a great drafting challenge. Some of the legislation may have changed; it has to be verified and come back and be redone, but usually that service and that turnaround is fairly quick.

So the bulge is at the beginning of a session and the coincidence of...pick any bill. Let's take gun control, which was a big issue in the last Parliament, which concurrently was competing for drafting resources for private members. We had several complaints about that one on both sides. Some members didn't get their amendments and some members got their bills delayed. That will continue I think to be something we have to manage. I don't believe in hiring for peaks. That's never been my philosophy as a manager. You try to flatten those peaks as much as you can. But to satisfy the client by saying “You won't hear about this again if I throw in enough resources” would be an overstatement.

Mr. Jay Hill: Then, in summary, I gather from what you're saying that we've been through quite a unique situation in the past, and although there have been complaints, you are comfortable in the fact that there have been no breaches of confidentiality, to your knowledge, that there hasn't been a problem with conflict of interest, other than that described by Mr. Walsh. If we've gone through that, do you project that it's going to be a worse situation? If so, then obviously something needs to be done. But if you're not projecting it to be any worse than what's been in the immediate past, then allowing for the fact that you're probably going to have some complaints no matter what you do, we'll probably get through it with the present resources.

Mr. Robert Marleau: If the occasional controversial bill that requires 150 to 300 amendments.... And let's not forget they're not all drafted by us; a lot of amendments are drafted in the party caucus research. They come to Journals at 5:55 p.m. and it's the first time we've ever seen them. But if the tendency, the increase of 120% over the last session, continues, there is a resource issue and it goes beyond legislative drafting.

The Chair: Mr. Walsh.

Mr. Rob Walsh: Mr. Chairman, if I could make a brief comment in connection with this, it's important that we don't confuse or treat in the same manner, or consider equivalent, amendments on the one hand and private members' bills on the other. They're quite a different process.

Mr. Clerk has spoken—and I have as well, I expect—about the increase in the number of amendments, and all that brings along, relative to report stage. On the private members' bills side—and I can't go back as far as the Clerk can—we have an awful lot of private members' bills requested, and an increasing number that are really quite complex and are of the nature of government bills. Earlier the question was raised, what's reasonable? I just threw that back and said what's reasonable is whatever you think is reasonable. What's a problem is whatever you think is a problem.

If the members are saying they're not getting their private members' bills quickly enough, or they're not getting the comprehensive consideration, research, whatever, from their private members' bills, then for those individual members it's a problem. And I'm not so sure—and you'd know better than I—whether members feel they are getting the service they should be getting relative to the private members' bills, given the increasing demand of private members' bills, both in number and in the complexity of the bills themselves.

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The Chair: Thank you.

Ms. Catterall for a first round, then Mr. Bergeron and Mr. Godin for second rounds.

Ms. Marlene Catterall (Ottawa West—Nepean, Lib.): First, Mr. Chair, I come at this from the point of view of being concerned about the institution as well as about the individuals involved in it. If I go to a lawyer, I don't expect only my lawyer to know what we're talking about, what we're dealing with. I expect that his or her law clerk will probably be involved. If the firm has a researcher, that person would probably be involved. Certainly whoever is the secretary, whoever does the word processing for that lawyer, will be involved and will know what I'm dealing with. I would expect my lawyer to consult with others in the firm who have expertise in a particular area. That's all part of my dealings with that lawyer, as far as I'm concerned.

I speak as one who has been in opposition as well as in government. I don't have a huge problem with the fact that the institution works for the member and in confidentiality for the member.

I think it was Mr. Walsh who made the point that we provide a legislative drafting service, not legal advice. I think it's really important for people to remember that. What legislative counsel does for us as members of Parliament is different from what my lawyer does for me if I'm charged with something, because my lawyer would be advising me on what course of action to take. All legislative counsel is doing for members of Parliament when it comes to amendments is providing advice on how to do what the member wants to do. I think that's a fairly significant difference in terms of how we approach the whole issue of confidentiality.

I'm not sure what we accomplish if we say that only the lawyer can know what we're doing. Who then does the word processing of the work we're doing? Does it make sense to have it done separately for legal counsel and for the clerk's office?

Even in the interim I wouldn't want legal counsel to go overboard in terms of saying that nobody else can see what they're doing. Frankly, I don't want Mr. Walsh sitting there and doing his own drafting. Maybe he does that anyway.

In the interim and in line with Mr. Knutson's comments, I think it would be wise to discuss with individual members of Parliament how they want theirs handled. I suspect most wouldn't have a problem. Frankly, I would rather see legal counsel consulting with procedural clerks so that my bill doesn't get to the end and run into a roadblock that wasn't anticipated.

I'm a little less clear as to why the committee clerk has to know about an amendment being drafted. I wonder if Mr. Walsh might explain that. That was a point made by the Speaker in his ruling.

Mr. Rob Walsh: Mr. Chairman, in most cases the committee clerk doesn't need to know and doesn't know about amendments drafted for a member at committee stage. Sometimes the committee clerk is only given a heads-up in their organizing for their committee meeting: “It's coming up in clause-by-clause”, or “We've drafted a number of amendments and you may expect to get them and you should plan your meeting accordingly—the logistics of the meeting and how much time you may need to plan for it and so on.

I don't have data on this, Ms. Catterall, but I don't think it's very often the case that the committee clerk does know about amendments before they arrive at committee stage. Now, if the committee clerk were to make inquiries, which most of them don't, they might be told that Mr. So-and-so has this amendment and Ms. So-and-so has that one. They might be told there are some amendments coming.

If we're getting close to clause-by-clause, then the legislative clerk may meet with the committee clerk and say “You might want to consider the procedural issues relative to these amendments.” In that sense there might be consultations with the committee clerk on the eve of going into clause-by-clause on a bill.

Ms. Marlene Catterall: I was rereading the submission by Mr. Cadman, and it did cause me some concern that a committee clerk would even suggest to a member that they might want to refer this to the Department of Justice.

Mr. Rob Walsh: Ms. Catterall, I'm reluctant to discuss Mr. Cadman's case in particular when the gentleman is not here.

Ms. Marlene Catterall: Of course.

Mr. Rob Walsh: There's history on that one that explains why things happened as they did.

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Ms. Marlene Catterall: Okay.

I don't want to go much further, but I hope we don't go overboard on this. I think it's a benefit to all of us and to the whole institution in the long run that there is this kind of cooperative approach. In the short term, but maybe in the longer term as well, maybe a discussion around confidentiality with each member as they approach legal counsel about doing some work is in order.

In terms of the other suggestion and the motion in the reference, Mr. Chair, the reallocation of resources to the political parties.... Again, speaking as one who's been in opposition, my suspicion is that the opposition parties make far more use of drafting amendments, certainly at the committee stage and at the House stage. It seems to me that even in private members' business they do.

Yet the only fair way we could distribute resources would be based on the needs of the different parties, as we do with other resources. We go by the number of members they have in the House. I would hope opposition parties will consider whether in fact that wouldn't put them at more of a disadvantage than an advantage. But that's for a further discussion, I guess, which we're only now just starting.

The Chair: Thank you.

Mr. Bergeron and Mr. Godin for second rounds.

[Translation]

Mr. Stéphane Bergeron: Mr. Chairman, at the outset, very quickly, I would like to reassure my colleague the Government Whip and profess my admiration for him. I wish that I could master the language of Shakespeare as much as he has mastered the language of Molière.

That being said, I must admit that over the course of the discussions that we have been having, I have been surprised by a number of the answers given by Mr. Walsh. At one point in particular, I had the distinct impression that he was using quite esoteric language when he was referring to employees of the House, more specifically the legislative counsel, the lawyers. In a broad sense, when he says that the client is the House—that is true—however this is really only in theory because the House does not produce amendments or bills on its own. While the House has traditionally and historically hired the legislative counsel, it is not to meet its own needs, but rather to meet the needs of its actual clients, who are the members of the House.

I believe that it's muddling the issue to say that the actual client is the House and not the members. I'm sorry, but the way I see things, the legislative counsels' clients are in fact the members and, thus, they are the ones who must benefit from this privileged relationship of confidentiality with respect to the services that they use.

However, while the answers were quite clear when it came to whether or not the client was the House or the member, the answers were somewhat more vague as to whether or not this confidentiality applied to the legislative counsel as an individual or to the umbrella group, which is not very well defined. This umbrella group seems to include more people at the report stage than at other stages. Obviously it would help each and everyone of us if you could specify precisely how the membership of this group changes.

Mr. Walsh referred to discussions that had taken place and obviously he cannot reveal the content of them here. However I would like it if he could at least table, for the benefit of all of the members of this committee, this memorandum to which he referred earlier on the issue of confidentiality.

Ms. Parrish, in her address, speech or monologue, said that the opposition parties had a greater tendency of using the services of the legislative counsel for a whole host of reasons. I would invite her to stop and think about the reasons why we propose more amendments at the report stage. It may well be because the government is using the gag order more often and is not allowing the opposition to express itself at other stages. This is something that she may want to think about.

I would like to underscore right away the extent to which she said she was confident in their services. She referred to the very professional service that she had received, and I agree 100% with her, with reference to Ms. Davidson, who was the General Legal Counsel of the House until quite recently.

• 1245

I would also like to reiterate my confidence, in general, in the quality service, which is very professional, provided by the staff of the House of Commons. However, I would invite Ms. Parrish to think about the reasons which motivated Ms. Davidson's departure, over the last few weeks.

Having said this, before I ask my last question, I would like to make a comment. I'd like to come back to what my colleague from Rimouski—Mitis said with respect to the appropriateness of the relationship between the procedural clerks and legislative counsel. If the goal is to enable the legislative counsel to provide a better service to members by allowing the procedural clerks to study the procedural aspect in order to increase the chances that their amendments be deemed admissible, then I am in favour. But experience has shown that this is not at all what happens. Involving the procedural clerks has not increased or improved the admissibility of amendments. Consequently, I doubt, and I'm sorry to have to say this, that that was the real objective that the House administration had in mind when they decided to include the procedural clerks under this umbrella in order to increase the admissibility of the amendments proposed by members.

Now I will come to my question. Since you said that there has never really been in the past any rules or decisions clearly establishing the exclusive relationship of confidentiality between solicitor and client, and in my opinion the client would be the member, you never really answered my question. The memorandum may well answer it.

When were the legislative counsel told that this relationship did not actually exist? Is Mr. Walsh able to tell us if it is true that the House legal services were also told that this solicitor- client privilege did not really exist either and should be considered a more general condition involving the whole umbrella group, and not simply restricted to the privileged relationship of confidentiality between myself, as a member, and the General Legal Counsel of the House, or with her assistant with whom I sometimes deal?

Mr. Rob Walsh: I have just recently taken on responsibilities in the legal field, Mr. Bergeron, and this is a question that requires urgent attention. I believe that the General Legal Counsel who preceded me reassured members that there was a privileged lawyer-client relationship between herself and the members for the reasons that I have described. However I myself have doubts when it comes to such a relationship between legal counsel and members, on the legal front. I do not think that we can actually describe it as a lawyer-client relationship from a legal perspective between lawyers, who are employees of the House of Commons, and members of Parliament. It is a question that has been brought up and I am in the process of studying it with the clerk. We will likely consult with the Board of Internal Economy in order to specify the precise nature of the relationship that should exist between legal counsel and members of Parliament.

On the legislative side, it is much easier to maintain a lawyer-client relationship with members because the services are centred around legislative activities. The Board of Internal Economy and the clerk are not involved in this aspect. Bills and amendments are solely the business of members of Parliament. Legislative counsel work for the House of Commons and meet the operational needs of the House of Commons and its committees. We assess these needs when we assign staff. We are employees of the House of Commons, and not employees of one member directly or exclusively. We need to remember this, and it is for this reason that we have established this organizational structure.

Mr. Stéphane Bergeron: Excuse me, Mr. Marleau.

Mr. Robert Marleau: May I intervene to clarify some points? Mr. Walsh spoke of employees who work for the House of Commons. As much as I would hate to go legal here—this is not my place—I would like to clarify, in response to Ms. Tremblay, that the Act of Parliament of Canada stipulates that it is the Board of Internal Economy who is the employer. It is the Board that determines the mandates and the responsibilities and it's the Board that pays. It provides its employees to serve the members under certain conditions.

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Now I'm going to go out on a limb and talk about the relationship of the legal counsel or of the General Legal Counsel of the House. It was always my impression that Ms. Davidson—like others—maintained a lawyer-client relationship as long as the interests of the Board of Internal Economy allowed her to do so, and that in some instances, she was obliged, as a lawyer, to draw the line. Either she would ask the member to free her from this so that she might consult with her superiors, or else she would ask the member to retain the services of his or her own lawyer in order to close the file. The employer places the lawyer at the disposal of the member, but under very clear conditions.

In the case of legislative counsel, it's far from clear. The Board of Internal Economy and this committee have the opportunity to define this relationship. We really hope that this will happen. However the employer is the Board of Internal Economy.

Mr. Stéphane Bergeron: You are probably in the best position to tell us whether or not the following scenario is possible in operational terms. I fully agree with Ms. Catterall when she says that the legislative counsel does not operate in a vacuum. This is one of the reasons why I would oppose transferring resources to the various political parties, because we would be the losers should this happen. There are, of course, specialized word-processing operators and specialized translators; the legislative counsel is surrounded by specialized staff who are absolutely essential to him in the performance of his duties. We are fully aware of that. However, would it not be possible, in strictly operational terms, to maintain the privileged lawyer-client relationship of confidentiality between the member of Parliament and the legislative counsel and his team and that, at the request of the member of Parliament, but only at the request of the member of Parliament, the procedural aspect be filed with the procedural clerk to ensure that the amendment has every chance of being adopted?

Mr. Robert Marleau: This is an answer that I provided to Mr. Hill earlier. It is quite...

Mr. Stéphane Bergeron: Perhaps I misunderstood.

Mr. Robert Marleau: He asked me, in fact, whether or not this was reasonable to do. I said that it was quite reasonable. We can do this if it gives you a feeling of watertight confidentiality, if I can use those words. But in cases where we need to consult you after the fact, there will be less efficiency and effectiveness. At the outset, there should be a contract signed by the member of Parliament giving permission to do this or one which, to the contrary, specifies that the member wants to be asked every time there's a consultation, or that he would provide us with strict instructions, which we would receive... I receive some in my office, and Journals also receives some.

When you table a supply motion, we sometimes receive it at 2 or 3 o'clock. It won't appear on the Order Paper before 6 o'clock. You are saying that there should be an embargo on the motion and you provide this to the person before the prescribed hour. We follow these instructions. It is quite possible, but you have to provide us with the guidelines that you want us to follow.

[English]

The Chair: Yvon Godin is next, then I have a couple of questions myself.

[Translation]

Mr. Yvon Godin: First of all, I would just like to say that the procedures or the services that we have at the House are not that high a price to pay in order to preserve democracy in our country. That is one of the things I wanted to say.

I recall that in the past—and this perhaps did not concern amendments—one party remained outside and caused the bells to burn out. This measure did not cost much money, it didn't create a lot of work for you and everybody had a rest. These are the tactics that people sometimes use in order to have their voices heard, particularly when a gag order has been applied to a debate that should take place in the House of Commons.

I would like to go back to you, Mr. Marleau, and to what you said about staff reductions. You made a comment that I would like to go back to. It seems to me that the current trend is to have more amendments. However, staff has been reduced. If staff had not been reduced, what would the situation be like? How many people were cut? I am still worried about my bill, which may not be drafted until the fall. We're talking about more than an amendment; it's my bill that has yet to be drafted.

Mr. Robert Marleau: I will ask Mr. Walsh to give his immediate attention to your bill to determine why it will take until the fall. My first answer is that it should not take until the fall. I often go to Mr. Walsh when a member of Parliament says that he wants something and that it's urgent. So we will look into the matter.

When I talked about staff reductions, I was putting it in the historical context. We experienced the impact of the staff reductions in early 1997, at the beginning of this session. We then hired staff on contract. We now have term employees.

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I can tell you that we made arrangements and stayed within our budget. We have not increased the House of Commons budget, however, we have not filled the positions on a permanent basis because we don't know how things are going to pan out. Consequently, we are not in this situation. We did not experience the events associated with Bill C-20 or the Nisga'a Treaty while dealing with reduced staff. On the whole, we do have reduced staff at the House. As is the case everywhere throughout the public service, we work harder than we used to, but I think that we are meeting the needs of the members of Parliament with the resources that have been made available to us.

The Chairman: Mr. Rob Walsh.

Mr. Rob Walsh: Mr. Chairman, as far as the bill is concerned...

Mr. Yvon Godin: I used that as an example, but it's a good example.

Mr. Rob Walsh: The problem we face at legislative services is the problem of priorities. I believe, Mr. Godin, that this is an important and very complicated bill.

Mr. Yvon Godin: Overthrowing the government.

Mr. Rob Walsh: Yes, yes, I was worried about not respecting confidentiality, but it is Mr. Godin who has revealed himself. All kidding aside, we have an internal rule that stipulates that when we are to draft an important bill, we have to ensure that it does not monopolize everything. Such a bill will keep a lawyer busy on a full-time basis for several weeks or several months, and there are many other bills that are held up because this lawyer is not available, and that creates problems for other members of Parliament. This is a management issue at Legislative Services. Sometimes bills, such as Mr. Godin's bill, and amendments to government bills are delayed during this period. This creates problems for major bills such as the one Mr. Godin mentioned. However, this is a particular problem.

Mr. Chairman, may I add something else that deals with...

[English]

I would just like to say briefly if I may, Mr. Chairman, that the discussion we heard earlier.... Ms. Catterall, Ms. Parrish, Mr. Hill, and Madam Tremblay have left, regrettably, but our function would be greatly served—

Mr. Stéphane Bergeron: You're not supposed to say that.

Mr. Rob Walsh: Je m'excuse. I made an error. I should not have.... They all just came in. There we are.

Voices: Oh, oh!

Mr. Rob Walsh: But if legislative counsel—legal counsel as well, but that may be the responsibility of the board more than this committee—could have, in writing, practice guidelines as to how we're to do our jobs, and in writing, our mandate as to what we're supposed to do for members, it would go a long way toward obviating the need for this kind of process undertaking itself.

We've never had that, and it would greatly help us in dealing with members if this committee, the board, or a subcommittee of this committee, and ultimately the House, were to adopt a set of guidelines saying this is how you do your job, this is the service you provide—a mandate.

That's my last cri de coeur, Mr. Chairman. I just want to put that on the agenda for the committee, if they would give it some thought.

The Chair: All right. Thank you.

Mr. Bergeron has one follow-up question. He says it's very short.

But I'm going to put a statement, question, or position out there. I'll go back to what I raised earlier on the presence or absence of the solicitor-client relationship.

In the House we have members and parties who are clients. That's all agreed. In the House, we have as House employees persons who are lawyers. We have procedural clerks who may or may not be lawyers, but they provide legal services, or services that could be characterized as technically legal in nature—drafting, etc. But in my view you can't be half pregnant. I think most members will agree with that. So you either have a solicitor-client relationship or you don't. Earlier, Mr. Walsh said sometimes you do, sometimes you don't, sometimes there are other elements of it.

To be sure, there are elements of solicitor-client relationships. It looks like pieces of solicitor-client relationships that attach to these relationships between the service provider and the member. But I'm going to make an assumption, based on what you've said and described, that if you don't have the whole 100% solicitor-client relationship, you do not have a solicitor-client relationship. Yes, you have confidentiality. Yes, you have professionalism. You have a whole lot of other things. But if you don't have the full solicitor-client relationship, you haven't got it. Let's not assume it sort of exists.

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I'm going to operate on that assumption now and ask our researcher, Mr. Robertson, to keep that in mind as he pursues it. If your view differs from that which I've just articulated, you can either indicate it now or indicate it to us later in writing, if you want to consider it.

Mr. Rob Walsh: My view does not differ from what you just said, Mr. Chairman.

The Chair: Thank you.

I'll go to Mr. Bergeron for a short follow-up question.

[Translation]

Mr. Stéphane Bergeron: Mr. Chairman, I have a question about the identity of the employer and the client. I get the impression that the more we talk about this issue, the less clear the answer is. If I own a shoe company, for example, and I have an employee, I pay this employee, and yet I am not the client, because the client is the person who buys the shoes. So how can you claim that the person who pays is the client and the person who receives these services is not the client? I would like some clarification on this issue because it's not very clear. I must say that since Mr. Walsh intervened, the more we forge ahead, the more we get confused.

Mr. Rob Walsh: That raises the issue of the use of the word “client”. We referred to the buyer of the shoes as a customer instead of a client. But here, in the legal context, it is clearly the person who pays the lawyer who is really the client. This is a crucial, prima facie principle: the person who pays the lawyer's fee is the client. It's not always the case, but in principle, it generally is. But here, the employer of a lawyer, meaning the company that employs a lawyer, is the client. However, it is true that this company's client could tell the lawyer that he must be available to provide specific services to a third party. This is possible, but would result in two problems: a problem for the company, which has to decide whether it agrees to have its lawyer working in this capacity for a third party, the members of Parliament or the employee of the other employee, and a problem for the lawyer himself. Would he agree to have obligations with respect to his employer, as a lawyer, and at the same time, have professional obligations with respect to a third party: the other employees of the company, the members of Parliament or the public? Consequently, this creates a problem for both the lawyer and the company.

An Hon. Member: The people who really have to pay are the taxpayers.

[English]

The Chair: Mr. Marleau.

Mr. Robert Marleau: Briefly, the only case I was able to find and remember in my 30 years here where this was articulated on the floor of the House was in 1989—maybe Mr. Robertson can have a look at that—where the parliamentary secretary to the government House leader, then Doug Lewis of the Conservatives, on a point that had been argued by another member who had obtained legal advice on the Official Languages Act for another member, rose in the House and said “Wait a minute, Mr. Speaker. We have a problem here. This is clearly a conflict of interest. You have your law clerk who gave advice over here on a point you're now going to hear, and he gives advice to you as well. Surely that's an untenable situation”.

Speaker Fraser heard some argument, reserved, but never returned to the House with a resolution of that particular argument.

The point I'm making is it's not new. It was articulated from the point of view of one member who sought legal advice and, in his argument in the House, said “And I have legal advice from legal counsel here that says X.” Then the Speaker said “I'm hearing a point of privilege on this”, and the other side said “Wait a minute, we have a problem. How can you have the same lawyer advising the complainant and the judge?”

[Translation]

Mr. Stéphane Bergeron: I could ask for your opinion on a procedural matter, rise in the House on the basis of your opinion, and you, for your part, will then advise the Speaker on the opinion you gave me. That is exactly the same thing.

Mr. Robert Marleau: It is very similar, except that I am the Clerk of the House of Commons; I am not the clerk to the Speaker.

Mr. Stéphane Bergeron: No, but...

Mr. Robert Marleau: Technically, this could be the same type of conflict if you like, but my conflict is not legal in nature: it is procedural. I am not a lawyer. I am not in the same conflict-of- interest situation as a lawyer who has taken an oath. I was referring solely to the situation of lawyers, and this is not a new issue raised on the floor of the House. In such a case, the Board of Internal Economy would have said specifically: yes, you can give advice to this member of Parliament.

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[English]

The Chair: Okay. Thank you very much, Mr. Marleau and Mr. Walsh. Thank you, colleagues.

We're adjourned until Thursday at 11 a.m.