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]

Thursday, March 30, 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're continuing with our study of a reference from the House dealing with confidentiality of the work of the legislative counsel.

We have with us today two witnesses, Louis-Philippe Côté and Diane McMurray, both legislative counsel in the legal and legislative services branch. We heard earlier in the week from Mr. Marleau and Mr. Walsh.

We'll go just about right away to questions, but I would ask either of the witnesses if they have any statement they might wish to make before we get into questions.

Mr. Côté or Ms. McMurray.

Mr. Louis-Philippe Côté (Legislative Counsel, Legal and Legislative Services, House of Commons): Thank you, Mr. Chairman.

Mr. Chairman, we are respectful of the invitation of the committee to appear before it today and are prepared to go on record and to respond fully and in a forthright manner to any questions committee members wish to put to us. However, we are mindful that after our last appearance before this same committee on 26 November 1996 to answer questions in camera about our duties and functions as legislative counsel, we were chastised by our superior for attending and subsequently subject to harassment for our testimony.

Mr. Chairman, is the committee in a position to offer any safeguards against any future reprisals for our wish to fully assist the committee in its deliberations with respect to the rights and privileges of members of Parliament as they relate to solicitor-client confidentiality?

The Chair: Could I ask you to repeat the final sentence or question for us?

Mr. Louis-Philippe Côté: Is the committee in a position to offer any safeguards against any future reprisals for our wish to fully assist the committee in its deliberations with respect to the rights and privileges of members of Parliament as they relate to solicitor-client confidentiality?

The Chair: In your opening statement, Mr. Côté, you've asked a question I'm sure we would like to answer relatively quickly. For the record, the general state of the parliamentary law is that a committee would protect its witnesses, the committee has the power to protect its witnesses, and the accordance of protection to witnesses in our parliamentary system is virtually automatic now.

In terms of what might ensue after the giving of evidence, if some eventuality ensued that the witness might perceive to be a response entailing some negativity, a response after the giving of evidence and because the evidence was given, or the taking and use of the evidence in a way that did not accord to the witnesses and Parliament the privilege that Parliament attaches to the evidence, then the witnesses of course would have to bring that back to the committee or the House through a member. I assume a witness would do that.

So having said that, the general answer is yes, the committee and the House are in a position to protect the witnesses in the giving of the testimony and in anything that would ensue from the giving of the testimony.

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I would add that this immunity, to use a practical word—if I can use the term “immunity”—this privilege and immunity attached to witnesses and their testimony would not protect a witness from something that had happened earlier for which a witness would be normally accountable. So if a witness had slandered somebody five years ago and then came to the committee and said “I slandered somebody, and here's how I slandered them”, the very fact that that happened in a committee wouldn't protect the witness from what had happened five years ago, but the witness would be protected from the use of that evidence at committee in any subsequent proceeding.

Having said that, this is a procedural issue. The general answer is yes, and if members have comments or questions, we can go to that.

The first hand up was Mr. MacKay's, so I'll recognize him first, and then I'll go to Mr. Strahl.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair.

I say this with the greatest respect. It's a good thing the witnesses are lawyers so that they can understand those instructions you've just given them.

What I've heard basically—and correct me if I'm wrong, please—is they're asking for the ability to tell the truth without reprisals. I read from the opening statement that they were chastised and subject to harassment because of a previous occasion when they were before this committee.

If we can't give these witnesses, employees of the House of Commons, assurance that they are going to be protected for telling the truth, we may as well all pack up and leave this room right now. This is a startling revelation, to hear that counsel, who are supposed to work for all members of the House, not the government—backbench members of the government equally, and for the opposition.... I can't wait for the round of questioning to hear what types of sanctions and what type of treatment they've been receiving. If that is in fact the case, we have a lot of work to do at this committee.

On this point, Mr. Chair, I would strongly urge you to give them certainly the assurance that if they tell the truth, which I fully expect they will, there is going to be no backlash or effect on their jobs or any sort of sanction or any sort of interference with their careers by virtue of coming before this committee and sharing the truth about what they do and what may be happening that is interfering with their ability to do their job.

The Chair: Do members agree with that? Okay.

Mr. Strahl.

Mr. Chuck Strahl (Fraser Valley, Canadian Alliance): I totally agree with what Mr. MacKay said. I just almost don't know where to go with this, given what's been said in the short statement so far, except to say my understanding is that if witnesses are bringing testimony before a standing committee of the House of Commons and are subsequently harassed, or if their testimony is brought into question or they are subject to some sorts of sanctions because of testimony they brought before a standing committee, that is a contempt of Parliament.

I don't know where this will go, and perhaps we'll have to see, but I do think we should give them our absolute assurance that, as Mr. MacKay said, testimony that is true and without guile will be treated as testimony from any witness, and if anybody steps in to try to use that testimony in the evaluation of their job or in their subsequent handling of relationships with their superiors and so on, that will not be tolerated, and we will treat it as a very serious thing if it does happen.

The Chair: Are we still all agreed? Okay.

I recognize Mr. Kilger, then Ms. Parrish, and then Mr. Hill.

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Mr. Jay Hill (Prince George—Peace River, Canadian Alliance): I had my name on the list quite a while ago.

The Chair: I'm sorry. You make a good point. I was using my own eyes making the list.

So I'll go first to Mr. Kilger, then to Mr. Hill, then to Ms. Parrish.

An hon. member: [Inaudible—Editor].

The Chair: The list is to assist the chair, and the chair has made his decision.

Mr. Kilger.

Mr. Bob Kilger (Stormont—Dundas—Charlottenburgh, Lib.): Thank you, Mr. Chairman and colleagues.

I apologize to our witnesses for arriving two minutes late.

I don't have any disagreement with the interventions I've heard thus far. I don't know where to start. This is more than surprising. If in fact there has been this alleged harassment, I just want us to be mindful that these issues can be raised with the employer. I'm sure there's a mechanism for these situations, as regrettable as they might be for any one individual or group of individuals, with the Board of Internal Economy. But we haven't been seized with that matter yet, so I guess we'll proceed with caution.

I understand the chair's intervention and my colleagues' support for making certain everyone can come to the committee and speak—nothing less than we would expect from one another—honestly. That's all.

The Chair: Mr. Hill and then Ms. Parrish.

Mr. Jay Hill: I'll be very brief, Mr. Chairman.

The revelation before us is quite simply appalling, I think, for all of us. As my colleague, Mr. Strahl, indicated, if it's true, it certainly constitutes, in my mind at least, a very serious contempt of Parliament. I would suggest to the witnesses, from I believe all the members who sit around this table, that should anything like this happen in the future again, it should be immediately brought to our attention, and it will be very quickly dealt with.

The question that arises from the statement by Mr. Côté is how in heaven's name did their superiors even find out what they said if it was in camera? Doesn't “in camera” mean anything around this place?

The Chair: Ms. Parrish and Ms. Catterall, then we'll get to our main issue.

Ms. Carolyn Parrish (Mississauga Centre, Lib.): Thank you, Mr. Speaker.

I'm just a little concerned that the opening statement has really prejudiced a lot of what's going to go on in the next hour. Harassment is really a matter of interpretation, as the whip has pointed out, with all respect to the presenters. If you ask my daughter on any given day, she could say I'm harassing her, when in actual fact I'm not. So the whole issue of harassment has to go before the Board of Internal Economy and to the Speaker. That's your avenue as an employee.

I would hope we can get on with the business of asking questions and getting honest answers, without having it coloured with the cloak-and-dagger aspect that everything that's going to happen after is going to be harassment. I really do hope the clerks and the lawyers and all employees of the House of Commons know everybody has an avenue to go and complain about any harassment that happens in the workplace.

I think the opening statement, if we're not careful, is going to take over the committee, and I'd like to get on with the business.

The Chair: Ms. Catterall, then Mr. Gallaway, and then we'll get to our issue.

Ms. Marlene Catterall (Ottawa West—Nepean, Lib.): Mr. Kilger and Ms. Parrish have made my points.

The Chair: Thank you.

Mr. Gallaway.

Mr. Roger Gallaway (Sarnia—Lambton, Lib.): Thanks.

I think there's some confusion here. We're talking about people who have told us there were repercussions and there was harassment as a result of an appearance before a parliamentary committee. This is not a question of exercising rights through a collective agreement or whatever their employer-employee relationship might be. This is a question of privilege of Parliament.

On that date in 1996, they appeared before a committee. It's a well-understood principle that witnesses who appear before committees are extended, subject to a couple of exceptions, which you talked about—slander and that sort of thing—the protection of the committee and in fact are entitled to claim the same privileges as the members of that committee.

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Therefore to talk about complaining to the Board of Internal Economy or to talk about exercising certain rights that may exist under their contract of employment is absurd, because this is about reprisals or consequences following on not some occurrence in the workplace, but in fact as a result of their appearance before a committee.

So we should state unequivocally that they have the rights, and that any complaints or repercussions that ensue as a result of an appearance before this committee are not to be exercised through a complaint lodged with the Board of Internal Economy or pursuant to their contract of employment, but are to be in fact dealt with in this committee and dealt with in the House.

The Chair: Thank you.

I certainly see a consensus to support all of the questions that attempted to address the issue raised by the witnesses and the question they've left with us. I do thank them for carefully wording their opening intervention. I think we understand where we are on that.

If there is an issue out there, then I suggest the witnesses may wish to share that with a member of the committee. If the witnesses wish to, they are at liberty to share that with a member of the committee, not now, but at a time of their choosing. It may or may not be an issue this committee or another committee would be concerned with.

Let us now get to our main item of business here, which is the consideration of the reference from the House dealing with confidentiality of the work of the legislative counsel. We'll open with questions, starting with Mr. Strahl.

Mr. Chuck Strahl: Thank you. We'll see how this goes.

I have a list of questions specifically about the role of legislative counsel and specifically about some of the changes we've seen over the years. I would like, if I could, to hear the witnesses describe what the practices were regarding confidentiality, say when they started in their positions, what the practices are now, and when they changed. Because there does seem to have been a change.

Mr. Louis-Philippe Côté: Thank you.

I've been employed at the House since 1985. When I first started in 1985, there was solicitor-client confidentiality. It was a very important issue in the office. We were at the time and for many years to come an office of lawyers. There were no clerks in our office.

The product we were doing was private members' bills and amendments, which is what I'm still doing now. We were doing all of these amendments and private members' bills in strict confidentiality, and they were sent to the client. There was never any doubt in our minds that at that time a solicitor-client privilege existed in our office, and the person who hired me, Marcel Pelletier, reminded me of that several times.

A very important shift in our office occurred on 17 October 1996. We had a meeting at the time with our supervisor, our superior, and he informed us that the solicitor-client relationship that had existed was now to be replaced. It was replaced with a sharing of information with the clerks who had joined our office a few years before. We were told we had to make ourselves available to the clerks in order to share the product we were doing, mainly amendments, and that there was no longer a solicitor-client issue in the office. That situation still exists today.

So the change occurred on 17 October 1996.

Mr. Chuck Strahl: You mentioned that you had a meeting with your supervisor. Who's that?

Mr. Louis-Philippe Côté: Mr. Rob Walsh.

Mr. Chuck Strahl: Okay. Was anything written down, or was it just a meeting? Were any memos or directives given to you, or was this just a meeting that took place?

Mr. Louis-Philippe Côté: It was a meeting that took place with the entire office, which was followed by a memo. Yes, we received a memo at that point.

Mr. Chuck Strahl: What was the rationale from that? What was the rationale given to you that made this change necessary? This is a pretty profound profound change from your perspective, I would think. What was the rationale given to you?

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Mr. Louis-Philippe Côté: The rationale was that since we were in an office that was combining clerks and lawyers under the same roof, it was important to share the information. It was a question of sharing the information that supposedly would have expedited matters and allowed each group to have a better understanding of what was going on.

Ms. Diane L. McMurray (Legislative Counsel, Legal and Legislative Services, House of Commons): Perhaps I could just clarify, Mr. Strahl, Mr. Chairman. I don't know who I'm supposed to address here, as I don't go to these meetings very often.

At that meeting, as lawyers knowing what our jobs were supposed to be and certainly what we were hired for, we had serious concerns. We said to Mr. Walsh, “We have some serious concerns about this, in a public meeting with no notice. This is just going to be changed all of a sudden. I think it should be discussed. We have serious concerns about simply being told that we now have to basically toe the party line.” At that point, we were told at the meeting by Mr. Walsh that if we didn't like the rule we could leave the employ of the House of Commons.

Mr. Chuck Strahl: You're talking specifically about private members' bills and amendments. By sharing those amendments with what I think the Speaker calls the team, which involves clerks and others, what advantages or disadvantages do you see in that new system, from your perspective as legislative counsel?

Ms. Diane McMurray: If I'm going to be candid, I see very few advantages for the members. There are various reasons for that. One might think being able to consult a clerk before you draft the amendment so you know ahead of time whether it is procedurally acceptable is a very attractive argument. The problem is it simply doesn't work that way.

Number one, there's never time. I don't have to tell you how the system operates in the House; you're members of the House, so you know how it operates. Things go very quickly. They come in volume, even more volume now. There is simply no time to consult a clerk ahead of time to talk about the procedural acceptability of it. It rarely ever happens that you can discuss it.

On a few occasions my colleague and I have had an opportunity to go to a clerk and ask, “Can I hear the instructions? Can you give me a sense, before I draft it and spend three or four hours, two days, or whatever it takes, of what the procedural acceptability will be? What are you going to advise the committee, or what are you going to advise your superiors?” The answer has been, and I can understand this, “We can't give you a ruling until you have actually drafted the amendment. We have to see the amendment. We can't really do it from the instructions.” The whole purpose then is undermined. It becomes academic at that point.

Mr. Chuck Strahl: If it's not useful, why do you suppose the change was made?

Ms. Diane McMurray: I didn't say it wasn't useful; I just don't think it's useful for members.

Mr. Chuck Strahl: I see.

Ms. Diane McMurray: I think it's very useful for government. The whole process is moved along expeditiously if they can have the amendments.... If they have a thousand amendments three or four days ahead of time, they can go over all the rulings and decide whether they're acceptable or not. It's not like a doctor and a nurse. A doctor wants to know what he's going to do. The analogy used yesterday was it's like a doctor—you have to share with the nurse. Yes, he shares with the nurse because they're both doing exactly the same thing. They're working to get the patient better.

The clerk has a different culture from that of a lawyer. He does different things. It's not the same culture. He essentially has to rule on these thousands of amendments. Hopefully you don't want 3,000 amendments in the House. You have to weed some out. Some are acceptable, some are not. Weed out the ones that are not. Give them lots of time to do that, so the process moves relatively efficiently and quickly through the House. In whose interest is that? I don't work for the government; I work for the House, I work for the members of the House.

The Chair: Sorry, I have to clarify this—

Mr. Chuck Strahl: I just have one more.

The Chair: —and I hope members will find it useful.

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Ms. McMurray said just a little earlier that she believed it would be useful to the government. I'm wondering what she meant by the government—whether she meant the governance of the House, the government of the House....

Ms. Diane McMurray: I meant the executive, the cabinet, the minister.

The Chair: Okay. So you did mean “Government”, with a capital G.

Ms. Diane McMurray: Absolutely. I meant the executive branch of government, as opposed to the legislative branch of government.

The Chair: Okay. That's fine. Thank you.

Mr. Chuck Strahl: I think I'm going to get cut off here, but I have a last question.

When I first arrived here in 1993—perhaps you could expand on this idea—we came to you for both legal opinions and advice on amendments, not about the political ramifications of them, as that's our business, but whether they were in order, the consequential amendments that would flow in legal opinions. Has that remained consistent over the last seven to ten years, or is that also different now from what it was?

Ms. Diane McMurray: I'm not quite sure what you're....

Mr. Chuck Strahl: When we first came here, I'm thinking of the number of amendments that were drafted, for example, on Bill C-68, the gun control bill. There were, of course, a lot of questions on the legality of the amendments, whether they would pass muster, whether they were sound constitutionally, and all those sorts of things. It was not just a case of helping me draft an amendment on barrel length; your department also gave me legal advice, as in a client-solicitor relationship.

Ms. Diane McMurray: We acted as your lawyer.

Mr. Chuck Strahl: Right.

Ms. Diane McMurray: I acted as a lawyer when I was hired; that's what I was hired to do. That's what I do, and that's what I will continue to do until I am advised by the representatives of the members of the House that I should not be working for them to the very best of my ability, finding every single way to give them the maximum advantage in the House of Commons.

Personally, I know it to be a fact, and I know my colleague agrees with me, that is exactly what the issue is. That is the problem in our office. The manager of our office has taken it upon himself, without putting it in writing or telling us directly, to merge us with clerks, who have a totally different culture from us. He is essentially trying to colonize our minds to make us acquire the same culture as clerks. I'm not being pejorative. That's their culture; they do different things from what we do.

You may come to me and say “Here's an amendment I want. This is the issue I want to ventilate. How can I best do it?” I can sometimes—and have done it, because it's my job to do it—out of that one amendment give you 15 different opportunities to say the same thing. That may generate many more amendments for the system, but I can't be concerned about the system. I have to be concerned about you.

Mr. Chuck Strahl: I have appreciated that service in times past, and so on, but since the October 17, 1996 meeting—you say there may not be anything written down—what has changed in your ability to provide that solicitor-client relationship, legal opinions and advice, since you have been merged with the clerks? Has that affected our ability, as members of Parliament, to come to your department and get access to that advice in the same way?

Mr. Louis-Philippe Côté: We continue to serve MPs to the best of our ability, so I don't think it has changed.

Mr. Chuck Strahl: Okay.

The Chair: We will go to Mr. Bergeron for ten minutes.

[Translation]

Mr. Stéphane Bergeron (Verchères—Les-Patriotes, BQ): Mr. Chairman, I am particularly concerned about what is being said here this morning.

On Tuesday, I asked Mr. Marleau and Mr. Walsh about the present status of the solicitor-client relationship, about the confidentiality that must mark the relationship between a Member of Parliament and a legislative counsel in matters relating to the drafting of a bill, of an amendment, and so forth. They said to me at the time that they were unable to find any legal, statutory or administrative basis for this confidentiality.

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You, on the other hand, have just stated that this solicitor- client confidentiality did exist prior to October 17, 1996. If, according to the clerks, there never was any such thing, how could such a change have been brought about? How might we explain the changes that were introduced in that regard?

Mr. Louis-Philippe Côté: I am not sure that I can explain it. I can only speak of what happened on October 17, 1996. As I have said before, in Marcel Pelletier's time, the Office of the Legislative Counsel was a department unto itself working for Members of Parliament. Naturally, we always served the House.

A change was introduced in 1996 and we went along with it. We were very clearly told: "You either go along with this or leave the employ of the House of Commons."

Mr. Stéphane Bergeron: I was going to ask you about that because, this week, we heard that the presence of the procedural clerks improves the acceptability of the amendments. I think that today we have managed to find out what is what in that regard.

I am, on the other hand, quite concerned, as is our Chairman, by something said by Ms. McMurray. You stated that this procedure was helpful to the government. I would have expected it to be beneficial to the administration of the House, by accelerating the processing of amendments, by simplifying the administration's work in one way or another. I thought that they had modified the procedure in this respect simply to make things easier for themselves. That is the way I had understood the matter since Tuesday. Today, you are saying that the current practice benefits the government. Could you tell us more specifically how, according to you, this helps the government?

Mr. Louis-Philippe Côté: What you must understand about the system put into place on October 17, 1996, and which may have partly existed before that, is that, as a rule, the administration receives the amendments as soon as I send them off to our client- Members of Parliament. I have been instructed to give them at the same time to the administration, that is to say to the clerks in our office.

Let me add that the government does not deal with its own amendments in this fashion. The draftsman, at the Justice Department, working for a department, hands the amendment to the Minister and then, I imagine, the Minister or the Parliamentary Secretary tables the amendment at a time of his or her own choosing, subject of course to the 24 hour notice requirement at the report stage, and so on.

Mr. Stéphane Bergeron: For all intents and purposes, it does not have to be submitted to a procedural clerk who would verify its acceptability ahead of time in order to assist the Department.

Mr. Louis-Philippe Côté: That is correct, not ahead of time. The amendment will eventually be tabled before the House and then, of course, examined by the clerks. Please note that within our office, as soon as an amendment is drafted, we hand it to a clerk. When the government has an amendment drawn up by one of the draftsmen from the Department of Justice, the draftsmen do not have to immediately hand over their work to the clerks in our office or to the House of Commons' administration. I am simply drawing your attention to the fact that there are two different systems at work here.

Mr. Stéphane Bergeron: When, on Tuesday, we spoke of the solicitor-client relationship, we were given quite a surprising interpretation of what is meant by client in this case. We were told that the client was in fact the House of Commons. Mr. Marleau went even further, saying that the client was the House of Commons' Board of Internal Economy. I reacted to that by saying that everyone knew full well that bills, amendments and motions are not drafted by the Board of Internal Economy or, more generally, by the House of Commons. I believe that if we have hired a legislative counsel, it is in response to the needs of Members of Parliament who are, in fact, the ones who draft amendments, bills, and motions.

That is what gave rise to a certain number of contradictions in Mr. Walsh's interpretation, particularly concerning solicitor- client confidentiality. Those contradictions were noted by the Chairman of the Committee. How would you define this solicitor- client relationship? According to you, who is the client?

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Mr. Louis-Philippe Côté: Between 1985 and 1996, the answer to that question was relatively clear. Obviously we are still employees of the House of Commons. Through the agency of the Board of Internal Economy, the clients, that is to say those for whom our work was intended, were, obviously, the members. That was very clear. Indeed, we never sent a copy of our work to anyone else within the administration. The client, that is to say the member, would ask us to draft an amendment or a bill. We would do it and then give it to him or her.

Since 1996, in my own mind at least, I still continue to provide a service to a client, a Member of Parliament, but I must at the same time share the result of my work with my colleagues, that is to say the clerks. We are still obviously part of the House of Commons and our employer is still the House of Commons, through the agency of the Board of Internal Economy.

Mr. Stéphane Bergeron: Yes,.. Of course. On the other hand, from the standpoint of a lawyer working in private practice... I mentioned the example of the owner of a shoe store, but that example didn't seem to convince Mr. Walsh. Let us then take the example of a law firm. You can have, in a law firm, an associate or an employee of the firm tasked by his or her employer, the one who is paying the salary, with taking care of an outside client's business. In that type of relationship, and to that lawyer's way of thinking, would the client be the employer, that is to say the one who signs the paycheck, or would it be the one to whom the service is being provided?

[English]

Ms. Diane McMurray: I think it's totally inappropriate to compare what's happening in the House of Commons with private practice, because we are dealing here with a very fundamental principle of our Constitution, which is democracy. It does not function, and nor should it, in a utilitarian or practical way in the way it functions outside the House, in a private practice setting.

How else are you going to have lawyers unless the House pays for them? Somebody public has to pay for those lawyers, be it the House of Commons or be it.... It all comes out of the consolidated revenue fund. That's the bottom line. It's public money.

You're not going to pay out of your own pocket, as members, to get your lawyers. Of course it's going to have to be paid by the public. The fact that it's coming from the House of Commons is irrelevant. It's all coming out of the same kitty. It's all coming out of the consolidated revenue fund, which are taxes paid by your constituents.

Now, having said that, when people start talking about.... And I have real problems with this, major problems. I think it's extremely dangerous to say this to a member of the House of Commons. The institution of the House of Commons is your employer. So your principal loyalty is to that chamber. It's by the grace and favour of that chamber, that institution, that you get your services from its lawyers. In other words, they let us work for you.

Well, I would remind everybody here—and I don't think I need to, but I will—that the fact of the matter is, that institution is run by a Liberal at the moment. Another time it might be Alliance with the majority, but at the moment it's a Liberal majority. Most governments since Confederation have been majority governments.

That institution, the House of Commons, is in fact run by the executive, as you very well know. They control bills—when they come down, when they go out, how much time you get, how you vote. It's an executive-driven democracy.

So if you start talking about me having to first serve the institution and not its members, what you're really saying to me is to take the money, be an employee of the House of Commons, but in fact give your primary loyalty to the executive, because that's who's running the House.

It's absolutely imperative that this argument not be adopted. You are the members of the House. Where does that leave you? You have nothing.

That's not democracy. That's just a sham.

[Translation]

Mr. Stéphane Bergeron: Mr. Chairman, one last question please.

Among the contradictions that we were able to note in Mr. Walsh's presentation, there was one concerning who, exactly, came under the umbrella. I spoke of a "variable umbrella" because it seems that, depending on circumstances, other clerks join the team while, in other circumstances again, certain clerks do not come under the umbrella.

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Could you explain to us why there is a need to add other clerks to the team at certain times but not at others? Is it functionally useful for the administration or for the members to have this umbrella expand or contract according to circumstances?

Mr. Louis-Philippe Côté: I believe that this functional utility especially benefits the House of Commons. The fact that I share the result of my work with a legislative clerk or a committee clerk, since we have also been asked to hand a copy of our drafts to the committee clerks, enables these clerks to gauge the acceptability of our drafts within the shortest time frame.

This is not to deny the importance of that aspect of things, but there is another side to it since by having clerks and lawyers under one roof, on the same floor, you facilitate the exchange of ideas and, from time to time, as my colleague has said, this does make for a better product. I believe that, fundamentally, this exchange of information mainly benefits the functional requirements of the House of Commons.

Mr. Stéphane Bergeron: Thank you, Mr. Chairman.

[English]

The Chair: Thank you.

I'm going to recognize someone on the government side now. Any takers? Mr. Kilger.

Mr. Bob Kilger: Thank you very much, Mr. Chairman.

I'll begin by saying that while I don't believe I've had any opportunity to draft either a private member's bill or an amendment, I know that the work of our drafters, our lawyers, and our clerks has always been held in very high esteem by the members of the House, notwithstanding the political parties. While Mr. Côté reflects on some changes since 1985, I suppose we could also say that the Standing Orders have evolved somewhat since 1985, and that whatever those Standing Orders are, we all have to live by them and work within them.

[Translation]

Mr. Stéphane Bergeron: We did have a part in that.

Mr. Bob Kilger: Mr. Côté spoke of the evolution of this self-contained unit. I also believe that the changes have led to a larger outfit, and that information, instead of being kept within a small group, is now shared among members of a larger group. Opinions may of course differ on that since there may be several ways of bringing about an improvement of the situation. We shall see. That is why we are here today.

Speaking of confidentiality, I believe that we should not limit our discussion to the sole confidentiality between clerk and lawyer. One thing concerns me, and I have already said this twice to my colleagues, once in the House and, again, the other day before the committee. In another life, between 1993 and 1996, I was assistant vice-president and assistant to the assistant. My experience with these clerks and other members of the team taught me that information is shared in order to prepare the day-to-day work of the House. Never once, however, were we asked to reveal to a member or to a party information belonging to another member or to another party.

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I would, in that regard, ask our two witnesses if they have ever experienced a situation where information would have been revealed to a person outside the umbrella of confidentiality. People may disagree. The umbrella may be too large. Membership in the group may be too broad. Should it be restricted? What should be done? We shall see about all that. Within the process described to us the other day, and within which you presently carry out your work, has any information ever been revealed to another member or to another political party? That is the issue. Is information exchanged within the umbrella of confidentiality or does it go beyond it? I have nothing further to say, Mr. Chairman.

[English]

The Chair: That's a question for either or both of the witnesses.

[Translation]

Mr. Louis-Philippe Côté: To my knowledge, the answer is no. I wish to stress that by what I said a few minutes ago, I simply meant to comment on the consequences of information-sharing and the expansion of the umbrella.

Mr. Bob Kilger: Is there anything that Ms. McMurray would like to add? Has this also been her experience during her stay with us?

[English]

Ms. Diane McMurray: No, not to my knowledge.

I don't see the connection. I don't think that's the issue, at least not for me, before the committee.

Mr. Bob Kilger: Well, for me, it's a very important issue. There's a connotation, or there could be a perception, that somehow or other....

Yes, our views might differ about this umbrella of confidentiality having evolved since 1986 to the year 2000, and we want to review that structure, that process. In the end, we're all driven by the same objective—that is, to arrive at whatever improvements might allow you, to the best of your ability, to continue to serve the members of the House and by extension the institution. But I think it's very important to state categorically, if you can, that let there be no doubt—if I understood it correctly, without putting words in anyone's mouth, from either Mrs. McMurray or Monsieur Côté—that confidentiality within the umbrella—and there are different views in there—is intact. That's an integral part of our parliamentary institution.

Ms. Diane McMurray: I guess my answer to you, Mr. Kilger, would be that there's nothing new in that. That's always been the case. Even since 1989, when I came here, everybody who works for the House has to take an oath, as I understand it, of confidentiality. That's never been an issue. It's not changed, as far as I know. I would certainly expect that nobody in the House who takes an oath of confidentiality would break it, for whatever reason. I don't think that's ever been the issue.

Mr. Bob Kilger: I'm sorry, Mr. Chairman, but the witness continues to give me the opportunity....

I respect her views, and those of Maître Côté, but we deal in perception around here—daily—and I don't want there to be any perception that any clerk or any lawyer transferred information from within the confines of that umbrella of confidentiality to any member or political party. That is very important for me, as a member of Parliament.

The Chair: Mr. Kilger, you're certainly entitled to elicit an answer from both of the witnesses as clearly as they can answer.

If either of the witnesses wishes to clarify or supplement their previous answer, you could do it now. Otherwise, we can move on to another question.

Mr. Louis-Philippe Côté: I have nothing to add, Mr. Chair.

The Chair: Okay. I'll go to Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair.

I very much agree that this is the fundamental issue, but it also occurs to me that there is also an issue of procedural fairness or advantage that flows to a government member as opposed to an opposition member.

• 1205

I've been here a short time relative to some members, but it occurs to me almost daily that some of the parliamentary practices here are in shambles, and that the farther and farther we go down this road, the more the corporate memory appears to be lost.

You are lawyers for the House of Commons, and I've heard Ms. McMurray's description of what that means in terms of the executive. I tend to agree that we're getting more and more autocratic in this country. However, in terms of your ability to serve individual members, then we get into perhaps an intangible or some sense of you as lawyers serving justice.

I think there's an analogy with a legal aid lawyer, who's hired by the state to defend the general public against the powers of the state, a person who is paid for and works for the state yet doesn't serve the state. I think there's an element of that—and please feel free to correct me—in what you do.

But what I've heard quite clearly is that opposition members are treated differently. Our amendments are treated differently. Our ability to interact on the legislative scale is done differently.

How many government amendments have you seen ruled out of order, if ever?

Mr. Louis-Philippe Côté: I don't have that information, I'm sorry.

[Translation]

Mr. Stéphane Bergeron: There are presently two different ways of dealing with amendments.

[English]

Mr. Peter MacKay: But you draft amendments for government members.

Mr. Louis-Philippe Côté: I never draft amendments for the government. I draft amendments for backbenchers, essentially.

An hon. member: [Inaudible—Editor].

Mr. Peter MacKay: Let the witness answer the question, with all due respect.

Mr. Louis-Philippe Côté: The justice department has 50 or 60 lawyers to draft their own laws and amendments. So there is a strict wall, so to speak, between the two branches.

Mr. Peter MacKay: Is this a watertight compartment? When you say a strict wall, tell us, please, about the confidential database for legal services and how it was that amendments drafted by one party—in this instance I'm thinking of the Bloc Québécois—wound up before the House, amendments they hadn't even put before the House. How did that happen?

Mr. Louis-Philippe Côté: In order to explain that, Mr. Chair, I will just explain how I do my work.

Mr. Peter MacKay: I'm not accusing you of anything.

Mr. Louis-Philippe Côté: No.

Mr. Peter MacKay: I want to understand how that happened if these watertight compartments are supposed to exist.

Mr. Louis-Philippe Côté: When I do my work, I draft an amendment at the request of an MP, and then it's edited, translated, and put into a bilingual format. The people who are responsible for doing that job operate a data bank, which is accessible to a lot of people. Whether or not it's accessible doesn't matter, because at the end of the process I take my physical copy of the amendment, and once I give it to the MP, I am mandated also to give a copy to my colleagues who are clerks.

Mr. Peter MacKay: Do you think that's proper?

Mr. Louis-Philippe Côté: I'm just saying that's what I do.

Mr. Peter MacKay: But do you think that is proper? Is that impartial? Is that fair to the member who has asked you to draft it?

Mr. Louis-Philippe Côté: Sometimes it will help the process because the clerk can discuss the amendment with me and say, on occasion, this is probably out of order. But as my colleague mentioned earlier, it doesn't happen often for various reasons, one of which is time, and one of which is the fact that my colleagues the clerks must wait till they see my amendments. They have their own agenda as well. Is it proper? It's not for me to decide. I'm just pointing—

Mr. Peter MacKay: Let me go back, then, to something that's maybe more esoteric. Is it ethical? You're a lawyer. You were hired, and we know the definition of solicitor-client privilege, which is something we're hearing about. I'm surprised to hear that this doesn't exist.

If you work for a law firm and a client comes to you and you draft a contract or do legal work for them, it's not expected that you're going to share that with other members of the same law firm or even the partner. Is that correct?

Mr. Louis-Philippe Côté: I maintain that between 1985 and 1996 it would have been unethical to do such a thing.

• 1210

Mr. Peter MacKay: So there has been a significant change since 1996.

Mr. Louis-Philippe Côté: Since 1996 my job description has changed. The way we do business has changed. Since we are no longer responsible to ensure the solicitor-client privilege, I simply give the results of my work, when we're talking about amendments, to my colleagues, yes.

Mr. Peter MacKay: So when you give it to your colleagues the clerks, you can no longer give assurances to me or any member, backbench or opposition, that there is strict confidentiality because it's no longer in your hands.

Mr. Louis-Philippe Côté: In fact I have not given that assurance on confidentiality since October 17, 1996.

Mr. Peter MacKay: Do you believe, Mr. Côté, that opposition members are aware that there is not a solicitor-client privilege? In your opinion, are opposition members aware, or is there any implicit attempt to make them aware, that this is not solicitor-client confidential correspondence or conversation?

Ms. Diane McMurray: To my knowledge there has never been any memo sent by our superior to you or to the Board of Internal Economy to advise you of the fact that the change was made. It was an ad hoc administrative change based on someone's belief—whatever you want to call it—that this was the best thing for you. You were not advised, to my knowledge.

The reason I say that is because on several occasions when I was dealing directly with members to discuss their amendments and what they wanted, I was asked—just because of the nature of the conversation—whether or not they would be shared with anybody. The only thing a lawyer has going for him or her as a lawyer is his or her credibility. I will not impugn that. I had to say “I'm very sorry, you don't have”. “I didn't know that”, I was told on those occasions.

Mr. Peter MacKay: You work directly or indirectly under the supervision of Robert Walsh.

Ms. Diane McMurray: I work directly under his supervision.

Mr. Peter MacKay: He works under Mr. Marleau.

Ms. Diane McMurray: It's my understanding that Mr. Marleau is his superior, yes.

Mr. Peter MacKay: Both of those individuals are Order-in-Council appointments by the executive.

Ms. Diane McMurray: That is my understanding, yes.

Mr. Peter MacKay: All right. I'm going to ask you a very direct question, because I heard in your opening remarks that you felt—these are my words—intimidated coming here today and have felt intimidated in the past about testimony that might be given before this committee. Is that correct?

Ms. Diane McMurray: Yes.

Mr. Peter MacKay: Do you feel that intimidation not only to come before this committee but also in the workplace impedes your ability to be impartial and serve members of the opposition as well as government members in their task as individual members of Parliament? Do you believe that affects your ability to do your job in assisting us?

Ms. Diane McMurray: Absolutely.

Mr. Peter MacKay: I'm really seething when I hear that.

An hon. member: In what ways?

Mr. Peter MacKay: How are you intimidated? Yes, that's a good question. Give us instances, please, if you would.

Ms. Diane McMurray: This meeting is happening against a background of an abuse-of-power complaint we laid against Mr. Walsh, which has been outstanding since last June. Out of that has come a further grievance. I feel very uncomfortable talking about those things.

Mr. Peter MacKay: Have you been threatened with any form of discipline?

Ms. Diane McMurray: Yes, in a way. You and I both know that if you're a political prisoner in a third world country and they want to beat you up and not leave any bruises, they use a rubber hose. Very often it's very difficult to prove categorically that what's happening to you is directly related to what's going on, but you know full well that is what is happening. We have both been summoned to a meeting since the grievance was laid, the harassment, and basically accused of things, but not told the details. When we asked, we were refused the details. When we said we felt this was unfair and we asked for an independent witness, we were refused. We were threatened with a disciplinary hearing. This has not been a fun time, trust me.

Mr. Peter MacKay: Do you think it would be—

Ms. Marlene Catterall: I have a point of order.

• 1215

The Chair: Ms. Catterall wants to make the point that if a grievance procedure is going on elsewhere in relation to the employment of either of our witnesses, that should be allowed to take its course, and we wouldn't want to get into details here. As far as the chair sees, there's no need to get into details of that. The general topic has been broached here, but I don't think we need to go any deeper into it.

Mr. Peter MacKay: I think what we've gotten into is the last bastion of any semblance of power that might remain in the hands of opposition members when it comes to effectively drafting and interacting with the government on legislation. I would suggest we seriously consider calling in someone from the Law Society to oversee what's taken place here.

I would similarly suggest that we have Mr. Marleau and Mr. Walsh back before this committee to answer some of these charges.

The Chair: Here you are drawing into the study of the confidentiality issue issues related to the employment of lawyers by the House and the whole House management structure. We don't need to do that. We're not even, in our reference, lined up to do it.

I accept that these issues can be mentioned here. They could be, arguably, in some collateral way, relevant to what we're discussing. But at this point, let's just deal with the confidentiality issue, and if members wish to take up something else at another time, then they and we will do so.

Mr. MacKay, I suggest you carry on with your questioning. We're near the end of the time slot, but you still have time for another question.

Mr. Peter MacKay: Thank you, Mr. Chair, for that ruling.

Ms. McMurray and Mr. Côté, can you tell us, with respect to your ability to perform in an impartial fashion...? These are my words. I'm leading you in this question. Do you feel opposition members are on equal footing with government members, backbench or otherwise, in the current system, which you are not to blame for, the current system you work under?

Mr. Louis-Philippe Côté: As I explained earlier, I was pointing out to this committee that the way the amendments I draft for backbenchers are treated, they have a chance to be ruled out of order in a better fashion, because the persons responsible for doing the job are given more time and they have access to me as a drafter. I drafted the amendment. I can therefore give them the explanation for what this amendment means.

When it comes to a government amendment, the clerks in our office and the House administration also have to decide whether they are in or out of order. But to my understanding, they do not have access to justice department drafters.

I'm just pointing out there is a difference in the way government amendments and backbenchers' amendments are treated in this House.

Mr. Peter MacKay: You work with four other counsel—is that correct? There are six of you in total working in this capacity?

Mr. Louis-Philippe Côté: Right now in our office we are five legislative counsel.

Mr. Peter MacKay: Serving essentially everyone outside the cabinet—is that correct?

Mr. Louis-Philippe Côté: That's correct.

Mr. Peter MacKay: With respect to the workload you're currently labouring under, do you feel...? Again, I guess it's a question of the working conditions and the amount of legislation. I know, just from my own office, how many bills we send to you for drafting.

I have two questions, finally. Do you feel the workload you have is something you can adequately, professionally, and responsibly handle? Secondly, having worked under the 1996 regime, for lack of a better word, and post-1996, when you received your marching orders that you were to be merged with the clerks, which system works better? To that end, which system is better suited to serve parliamentarians, and by virtue of that, Canadians?

• 1220

Ms. Diane McMurray: Well, for so many years Mr. Côté and I have worked as the only two permanent on-site lawyers. We've done this for the last how many years?

Mr. Louis-Philippe Côté: Three years at least.

Ms. Diane McMurray: For the last three years we've been by ourselves, doing everything that's being done now by five lawyers essentially. So obviously any help is welcome, and it helps the burden in terms of the actual volume.

That's not to suggest I have time to go play golf in the afternoon by any means. There are always many, many things to do. Now that we have more lawyers, hopefully we can turn out a better product and give a little more time to some things that perhaps we had to do in a hurried fashion before. So from that point of view, certainly just getting more lawyers is going to help.

Mr. Peter MacKay: Could you address this issue, though, of clerks and lawyers—

The Chair: Mr. MacKay, we have a number of other members. We're looking at fourteen minutes. Some of your time was taken up in the discussion of that other issue, but I should get you to conclude now, and then I'll recognize other members.

Mr. Knutson, and other members who have indicated they want to ask questions are Catterall, Gallaway, Nystrom, and Tremblay, not necessarily in that order.

Mr. Knutson.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): Thanks very much, Mr. Chair.

Madame McMurray, I just want to indicate I found your evidence quite compelling.

Whether or not we want to get into Mr. Walsh's behaviour and his decisions, I feel as though we're into it now anyway, so I want to spend part of my time dealing with that issue. But the other thing is, my view is that your services primarily belong to the opposition and government backbenchers, and if those people want it treated in strict confidentiality akin to solicitor-client confidentiality, then that's the way the system should work. I'm not sure if I've heard you correctly that simply going back to the way it used to be would achieve that and would restore the lawyer culture, so simply all we have to do is turn back the clock and send a directive.

What's the best way to achieve that, in your view? Is it simply a report from this committee that's adopted by the House? Is it a change in the Standing Orders? Do we need to give your office more money? What if we just said “Fine, we got the gist. We want to restore confidentiality; we want to restore the integrity of the system; we want to make opposition members and government backbenchers feel their stuff is being kept secret if they want it kept secret”? What's the easiest way to achieve that?

Ms. Diane McMurray: The issue of solicitor-client confidentiality is simply the tip of the iceberg. There's a great deal more going on here than solicitor-client confidentiality. It goes to the very issue—and Mr. Marleau framed it very well yesterday in his testimony—of what is the fundamental role of the lawyers vis-à-vis members of Parliament. That is exactly the issue; that is the crux. What should we be doing for you? I thought I knew. Indeed I do know. That's what I was told to do. But I'm having great problems in my office, and so is he, trying to do that.

The issue of control needs to be addressed by this committee. The whole issue of this office and who controls it and how independent it is, which goes to the issue of control, needs to be addressed. Since you're asking me, I'm giving you—

Mr. Gar Knutson: I am, yes.

Ms. Diane McMurray: All right.

Mr. Gar Knutson: But tell me—

Ms. Diane McMurray: I will. I just have something to throw out at you.

Mr. Gar Knutson: Okay.

Ms. Diane McMurray: What we have here is private members' business. Private members' bills and private members' amendments, in my humble opinion, have absolutely nothing to do with the government. It's not the government's field; it's not the government's business. If the government doesn't like how you high-profile and you get a good member who's credible and make them think about it.... That's your job. That's what you should be doing. And if they don't like it, they have every tool in their little bag they can trot out to kill it. They should not also have the power to basically limit your ability to ventilate that, in my humble opinion.

• 1225

Why then is our office being controlled and run by people who are not officers of the House? They account to the executive. They're controlled.... They're appointed by the executive. I'm not going to say “controlled”. They're appointed by the executive. I'm not saying what they do or don't do. I'm simply saying they're certainly not appointed by you, the members of the House, in the way that, for example, the Commissioner of Official Languages or the Auditor General are appointed by resolution of the House. They're not. Yet they are in fact working in the institution. They are running the institution, if you want to put it that way, for you. But they're appointed by the cabinet. I don't know what that means. I'm simply throwing it out.

I have a suggestion, Mr. Knutson. Perhaps one thing this committee might want to consider is whether or not private members' things, things that deal specifically and only with private members and really have nothing to do with the government, should in fact be controlled by the members themselves, through perhaps a committee that is not executive-dominated but equally weighted. I don't mean equally weighted in the sense that every party gets the same number of members, but that it's not executive-dominated. That committee could in fact decide what the mandate of their office should be and who the manager of that office should be, as opposed to somebody else choosing who the manager of the office should be, and the body choosing them is in fact the Governor in Council, which is of course the cabinet.

There needs to be consideration of what the fundamental role should be. But more important, it's for the members to decide that, given that it is private members' business.

Mr. Gar Knutson: That's perfectly fair and legitimate, and your suggestions are tremendously valuable to me.

I just want to deal with the more personal issue of the dispute, because I can't ignore that. I can't ignore what I've heard about the dispute between you and Mr. Walsh. But I don't want to go down that road if you don't want us to. If you would rather just let that complaint take its route through the abuse-of-power complaint and if you'd rather just set that aside and not have us deal with the relations between you and your superior, then I would take your counsel on that as well. I would say fine, your choice is to let whatever procedure it is take its course. My opinion would be based on your guidance. Maybe you can help me there.

Ms. Diane McMurray: Yes, I think I can. At least I hope I can try.

Ordinarily I would say absolutely, let the process take its course. The problem is the process is not taking its course. This thing was filed in June. We were entitled to have an investigation. The mediator asked us if we would be willing to try to negotiate a solution. That sounded wonderful to me and my colleague. We said “Absolutely, we would love to negotiate a solution to this. Maybe we can find something everybody can live with here and find out what the real problem is. I believe I know what it is, but maybe if we can get it out in the open, we can sort it out.”

We negotiated for five months. At the end of that five-month period, the negotiator drafted an agreement. We exchanged ideas on it, went back and forth, and all parties said “Yes, we have an agreement.” Tickety-boo. Thumbs-up.

The key to the agreement was we were all going to have a meeting with the mediator in a non-confrontational manner to discuss outstanding evaluations that were still to be done and for the future. We were getting new lawyers. It looked wonderful. We could push the peanut ahead and have a fresh start. It sounded great to me and my colleague.

We turned up at the meeting, this marathon meeting we were supposed to have, having been advised the night before by the mediator that absolutely, Mr. Walsh was going to be there and everything was fine. We turned up at the meeting fifteen minutes early to give him our documents, because there was going to be a simultaneous exchange of cheques held in trust and various documents at the end of the meeting. We got there and said to Mr. Tassé, “Well, where's Mr. Walsh?” This agreement had actually been signed by Mr. Marleau. At least that's what we were advised by the mediator. I didn't actually see it. The agreement was signed by Mr. Marleau, according to Mr. Tassé.

• 1230

The Chair: Excuse me. The chair has already expressed the view that we should be sticking to the reference that came to us from the House. I accept that we broached the issue of the grievance, but I do not want to get into a whole display of facts that are going to be presented here as facts. I'm not questioning the veracity of it, but I don't want to get into so much detail that members are going to start considering questions in relation to these detailed facts that you're putting out. So I'd like you to keep it a little bit light and....

Ms. Diane McMurray: I will do my best.

The Chair: Thank you.

Ms. Diane McMurray: Just to wrap up, basically we had an agreement and he simply didn't wish to turn up at the meeting without another party, which turns out to be his second-in-command. That was not the agreement. That's not what we had agreed to. We had no idea why he would do that. So at that point the process broke down, and we now have a grievance. We were prepared to carry out the agreement. We had to grieve the fact that he wouldn't turn up and carry out his part of the agreement.

Our cheques have been changed to reflect what we agreed to in our salary agreements, but there's been no retroactive cheque. As for the other parts of the agreement, there has been a sort of partial performance, but we've been told it's not really partial performance because they're going to turn.... It's a mess. It has broken down entirely.

We now have the situation that we are being supervised by a manager who has acted in bad faith, and I'm still under his supervision...? He's going to be the man who's going to have to give me my evaluations for the last two years and for the future. What hope do I have in this situation? What hope does my colleague have? Fairness...? I think not.

The Chair: Thank you for enlightening us as to that background.

Have you completed?

Mr. Gar Knutson: I'm finished.

The Chair: Mr. Knutson has opened the door and has politely closed it now.

Thank you.

We'll go to the next. I think I should go back to the other side. I'll go to Mr. Nystrom, and then I'll come back to Catterall, Gallaway, and Tremblay.

Mr. Lorne Nystrom (Regina—Qu'Appelle, NDP): Thank you, Mr. Chair.

I'm not really sure where to start on this. I didn't know about the change in 1996 until I arrived here about 45 minutes ago. I'm a bit late, as I was speaking in the House. I was out of Parliament for a while, but I was here between 1968 and 1993, and I didn't know about this change until now.

Are you saying that all members are affected the same way? Or are government members affected differently? The government itself, the executive, always has all their bills drafted by the Department of Justice. That's the way it has always been. But are you saying that the government backbenchers are treated differently from opposition backbenchers?

Hypothetically, if Mr. Gallaway were to—just to take a wild idea—want drafted a private member's bill to abolish the Senate, for example—

Some hon. members: Oh, oh!

An hon. member: Never.

Mr. Lorne Nystrom: It's just a wild idea, hypothetically. And if he went to you, Ms. McMurray, to have his bill drafted, and if Mr. Strahl were to do the same thing and go to you to have a bill drafted in terms of the abolition of the Senate, would they be treated equally? Or, because one member is on the opposition side and the other is on the government side, is there any difference? I assume there is no difference. I assume that we're all treated equally from what you are saying. I just want that on the record.

Ms. Diane McMurray: Absolutely and categorically: treated equally.

Mr. Lorne Nystrom: I wanted to ask you, then, why the change in 1996? That kind of puzzles me. Maybe you mentioned why the change was made before I had arrived in the room, but why the change in terms of sharing the information with the clerks?

Mr. Louis-Philippe Côté: To my understanding, the change was brought.... We were told that it's to foster better cooperation. It's to allow drafters to draft more efficiently, to perhaps draft fewer amendments in light of the fact that perhaps the drafter would know ahead of time if some amendments were out of order. I think it was presented.... There was a colour of resources: we have to remember that in those times there were fewer resources in our office. I'm not too sure, exactly, of the real reason why it happened, but it did happen.

Mr. Lorne Nystrom: Okay. You're not sure why. Who made the decision?

Mr. Louis-Philippe Côté: The decision was presented to us by Mr. Walsh. I would assume that perhaps he would be the best person to answer this question.

[Translation]

Ms. Suzanne Tremblay (Rimouski—Mitis, BQ): He does not remember changing anything.

[English]

Mr. Lorne Nystrom: Do we know if there was any pressure from this committee in that Parliament to make that kind of a change? I wasn't here. Mr. Kilger was here and others were here. Was there any pressure from members to make that kind of change, or was it strictly...?

• 1235

Mr. Louis-Philippe Côté: In answer to that question, I wouldn't know, but I would like to perhaps add something to your question.

The Chair: Just before you answer, I'll ask Mr. Robertson to confirm that this committee had not taken up that particular issue at that time.

Mr. James Robertson (Committee Researcher): This committee was not involved in any way in that decision, before or after that fact.

The Chair: Thank you.

Mr. Louis-Philippe Côté: I would like to add that for two years before the D-Day, if I should call it that, there had been a lot of meetings in our office in order to talk about the solicitor-client confidentiality issue. Some of those meetings were passionate. It was always the same thing: the solicitor-client issue has to go down. Each time, until the very end, until that meeting, we were trying to enforce the fact that this was the way we had been hired, that this was the way we had been doing business. On that meeting on the seventeenth of October 1996, we were imposed a new regime, and we complied to it.

Mr. Lorne Nystrom: Hence the problems we have today. We wouldn't have these problems today without the new regime.

Mr. Louis-Philippe Côté: You wouldn't have the treatment of amendments in the same way.

Mr. Lorne Nystrom: I wanted to ask you a question related to workload. We've had an awful lot of amendments recently. Does that create a problem? There have been problems with delays in terms of private members' bills being drafted. Is that part of the problem? Maybe there are too many amendments. Maybe there is too much of a workload.

Mr. Louis-Philippe Côté: If you're asking me if we're working hard, yes, we are.

Some hon. members: Oh, oh!

Mr. Roger Gallaway: So are we.

Mr. Louis-Philippe Côté: I would like to point out that recently three new lawyers were added to our team, and we're very happy about this. They are new drafters. Certainly with the synergy that could come with having five lawyers in one single office, I'm hopeful of the fact that we'll be able to tackle quite a few problems.

Mr. Lorne Nystrom: I think my last point, Mr. Chair, would be maybe one thing we as a committee should consider as a recommendation: that the chief legal counsel and the Clerk of the House not be Order-in-Council appointments. They work for the House. They do not work for the government. Therefore, why should they be appointed by the government?

I remember years ago going over these same debates in terms of the Chief Electoral Officer and different commissioners that are now appointed by the House itself. The government was always very reluctant to give up that kind of power. That might be a recommendation that the chair might want to consider. After all, these people do not work for the government. They work for the House. And if they work for the House, then why shouldn't the director be appointed by the House rather than the executive?

This is no comment on any particular party, because governments come and governments go. I've seen thousands of members of Parliament over the years around here. They're here today and gone tomorrow, but the House continues, the institution continues. It seems to me that we should have the House make that appointment rather than the executive.

Anyway, that's just a thought.

The Chair: Thank you, Mr. Nystrom.

Ms. Catterall.

Ms. Marlene Catterall: The big change that occurred—and I want to be absolutely clear I understand this—is that you are now required to share the work you are doing for a member of Parliament with the clerk...?

Mr. Louis-Philippe Côté: That's correct.

Ms. Marlene Catterall: You are required to do that. And yet I think Ms. McMurray said there often isn't time to do that.

Ms. Diane McMurray: Once we draft the amendments and we give you, let's say, your 15 amendments, and simultaneously we give a copy of those amendments to the clerks. We share those amendments with the clerks. That's what I'm saying.

Ms. Marlene Catterall: And you're required to do that...?

Ms. Diane McMurray: We're required to do that. That's correct.

Ms. Marlene Catterall: That's now part of your job description, from what I heard...?

Ms. Diane McMurray: That's not what we did when I first came here, no. There was no—

Ms. Marlene Catterall: But Mr. Côté said your job description changed. In that context, he said, it changed.

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Mr. Louis-Philippe Côté: The job changed. I'm not talking about my job description. My job changed. In the past, because there were no clerks in our office, we were not sharing anything. Now when we receive a request from any member, we actually make a photocopy of the request and we give it to our colleagues, the clerks. When we finish an amendment, when the lawyer is satisfied that the amendment is the best amendment possible, he sends a copy to the client, the MP. At the same time, he also gives a copy to the clerks.

Ms. Marlene Catterall: Is this the same whether it's a request from a member for a private member's bill or a motion or an amendment to legislation before the House?

Mr. Louis-Philippe Côté: This deals with amendments in the House. For a private member's bill we receive a request and we keep it on our desk and we do—

Ms. Marlene Catterall: So it's amendments only?

Mr. Louis-Philippe Côté: That's correct.

Ms. Diane McMurray: Ms. Catterall, there would be no point in sharing a private member's bill with the clerk because there's no procedural acceptability aspect to most private members' bills.

Ms. Marlene Catterall: To most?

Ms. Diane McMurray: To most.

Ms. Marlene Catterall: Or to most amendments?

Ms. Diane McMurray: Or to most amendments. We've been here long enough that we have a pretty good sense of what the procedure is.

Ms. Marlene Catterall: Mr. Côté, when you said your job description has changed, you really meant the requirements of your job changed, not your job description, right?

Mr. Louis-Philippe Côté: That's correct. It is my job.

Ms. Marlene Catterall: Okay.

Is it your understanding that the clerk is under the same obligation that you feel to treat those amendments confidentially—i.e., not to share them with the government, with another member of Parliament?

Mr. Louis-Philippe Côté: That's correct.

Ms. Marlene Catterall: To the best of your knowledge, has that expectation of confidentiality ever been violated?

Mr. Louis-Philippe Côté: To the best of my knowledge, it has not been violated.

Ms. Marlene Catterall: So they treat amendments with the same confidentiality as you do?

Mr. Louis-Philippe Côté: As Mr. Marleau explained two days ago, most employees, if not all employees, took an oath of confidentiality, which always existed.

Ms. Marlene Catterall: Okay.

Mr. MacKay said something earlier that I wanted to clarify. He asked the question: How did two Bloc amendments end up before the House? In fact, did two Bloc amendments that were not moved by the member end up before the House?

Mr. Louis-Philippe Côté: My understanding is that they were not on the floor of the House.

Ms. Marlene Catterall: They were not on the floor of the House. I want to make sure we understand that Mr. MacKay was mistaken when he made that statement.

Mr. Peter MacKay: I asked a question.

Ms. Marlene Catterall: No. You asked “How did two Bloc amendments end up before the House?”

Mr. Peter MacKay: That's a question, is it not?

Ms. Marlene Catterall: Yes, but the question is based on the how, not the fact that they did or didn't.

Mr. Peter MacKay: So I wasn't wrong. I asked a question.

Ms. Marlene Catterall: Yes.

An hon. member: You didn't ask if.

Ms. Marlene Catterall: You didn't ask whether—

The Chair: Colleagues, colleagues. Order.

This may be a valuable discussion, but it's not necessarily all getting down on the record.

Ms. Catterall.

Ms. Marlene Catterall: I want to reinforce the point, as I've asked the witnesses, that neither of them has any reason to believe that any confidentiality has been broken in the time since the administration changed.

I want to pursue another idea. Ms. McMurray said that this gives an advantage to the government. The only advantage I can see is if in fact amendments are being shared with the government and not treated confidentially. In fact I've heard that they are and have been treated with full confidentiality.

I wonder if she could explain how she feels this gives an advantage to the government. They have no way of knowing what the amendments are before the member chooses to table them in the House. The member has an opportunity, as Madame Tremblay knows, to get a confidential report on whether those amendments are in order. I think that's what happened. The confidential report about the admissibility of those amendments went to her. The government knew nothing about them. So how does the government have an advantage with this system?

Ms. Diane McMurray: I think it goes to what Mr. Côté talked about, which is the different treatment of amendments. If a clerk can get, let's say, 200 or 300 amendments of yours well ahead of time, if you want to put it that way, it gives them a maximum amount of time to go over those amendments to decide whether they're in or out of order. The government is not required to similarly give him or her the 300 amendments ahead of time. It makes it far more difficult for a clerk to rule something out of order in five minutes if there are 100 amendments before him than it does if he has a lot of time to go through them.

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Ms. Marlene Catterall: Are you suggesting that with government amendments a clerk would have only perhaps as little as five minutes to determine whether it's in order or not?

Ms. Diane McMurray: He may, Ms. Catterall. It depends on what the government decides to do. It's really at the grace and favour of the government. If the government decides it wants to share those amendments ahead of time for whatever reason, it does so. But if for whatever political reasons it doesn't wish to, it's not mandated to.

Ms. Marlene Catterall: Isn't the government required to table its amendments within the same timelines as a backbencher, either from the government or the opposition?

Ms. Diane McMurray: For report stage. That's not true for committee stage. At committee you can present them as you walk in with them and you can have a stack that high in committee.

Ms. Marlene Catterall: As a backbencher can?

Ms. Diane McMurray: Of course. Absolutely.

Ms. Marlene Catterall: So in that sense, in presenting amendments on the floor of committee, the backbencher and the government are in exactly the same position.

Ms. Diane McMurray: No, they're not.

Mr. Louis-Philipe Côté: Many backbenchers' amendments are drafted by us. If the MP presents that amendment in committee, it has been seen. It has been studied by the procedural realms of the House of Commons. If the government presents an amendment on the spot that has been drafted by a justice department drafter, it has not been seen by the procedural realms of the House of Commons.

In many cases some amendments are going to be ruled out of order and the procedural clerks know it in advance because they had a chance to look at it. I would submit to you that if a fairly long, technical amendment is presented in committee at the very last minute, there are chances that it will not be ruled out of order.

Ms. Marlene Catterall: Okay.

I also quoted Ms. McMurray, I think it was, as saying that opposition members are treated differently. I'd like to clarify that. I think what you meant is that backbenchers of any party are treated differently from government.

Ms. Diane McMurray: Of course. Absolutely.

Ms. Marlene Catterall: Finally, I wanted to come to Ms. McMurray's statement that the House is run by the executive. That's a very serious charge. That's in fact saying that the Speaker is the servant of the government, not the servant of the House. Is that what you meant to say?

A voice: The Speaker is elected by the House.

Ms. Marlene Catterall: I know that, but that's not what Ms. McMurray said. She said “the House...is in fact run by the executive”. That's a quote.

Ms. Diane McMurray: Correct. When I say that the House is run by the executive, Ms. Catterall, I'm not suggesting for one minute that the government controls Mr. Marleau or deputy clerks or the Speaker. I simply made the statement...by whom he was appointed. Draw your own conclusions.

Perhaps I didn't make it clear enough, but what I was trying to say was that the government, because it has a majority.... It's not a charge; it's a fact. It's a fact of responsible government.

Ms. Marlene Catterall: That's the way our democratic system works.

Ms. Diane McMurray: That's right. That's how our system works. With responsible government, the executive can push a bill through the House. It has time allocation and all those things.

Ms. Marlene Catterall: Within the rules of the House?

Ms. Diane McMurray: Of course. As the executive, it can determine what those rules will be, because they're voted on by majority. So if they want a certain rule in the Standing Orders changed, they can certainly have it. It's not done by consensus; it's done by majority, and they're the majority. That's all I was saying, nothing more.

Ms. Marlene Catterall: Well, that certainly wasn't the way I interpreted it.

Ms. Diane McMurray: I'm sorry if I wasn't clear enough. I apologize.

Ms. Marlene Catterall: I guess the only final thing was the question of your ability.... I've heard two contradictory things. I've heard that you continue to give impartial advice to members of Parliament. I've also heard that your ability to give impartial advice has been impaired. Which is the case?

Ms. Diane McMurray: I didn't think I said that.

Ms. Marlene Catterall: You didn't say which one?

Ms. Diane McMurray: I'm not sure. I guess I don't really know what your question is. I think it may appear contradictory because the latter question was “Do you feel you can do your job the way you would like to do it?” That's not the same thing as impartiality. Of course I'm going to do my job impartially. That was a fundamental tenet of what I was hired to do. It was made very clear to me that I had to do that. I continue to do that.

Is it easy to do? Absolutely not. Because of the stress factor we have been under for the last four years, where our life has been basically made hell, I do not feel I can focus in the way I should be focusing on all the work of members, backbenchers, including yourself, Ms. Catterall, or Mr. MacKay, or anybody else who's a backbencher. When you feel you're under siege and you have to wait for the next shoe to drop and you're looking for where the next stab in the back is coming from and you're also trying to do your job, it is extremely difficult.

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Ms. Marlene Catterall: But that's not an impact on your ability to give impartial advice to members of Parliament?

Ms. Diane McMurray: Of course not.

Ms. Marlene Catterall: Thank you.

The Chair: Thank you, Ms. Catterall.

Mr. Strahl, on a point of order.

Mr. Chuck Strahl: Mr. Chairman, we've opened a real can of worms here, and I do think it's important that we try to get to the bottom of the can. Normally, of course, we'd be recessed by now. I know I have other appointments I have to go to or I have to cancel, one or the other. I'm not sure what I'll do. If I had some indication from the chair on how long he thinks the meeting is going to last, I'll make some other arrangements. I have to make those. Normally we would be well on our way to something else by now.

The Chair: I was planning to say we'd wrap up at one o'clock. That would mean that if we were a few minutes away from completing questions of the witnesses, we'd probably go an extra few minutes. I was going to ask the several remaining members. I have indications from Mr. Gallaway, Ms. Tremblay, Ms. Parrish, and Mr. Kilger that they wish to ask more questions. Mr. MacKay is now indicating. It's unlikely that we can compress that into eight minutes.

Ms. Suzanne Tremblay: There is no way of having them back?

The Chair: I think we can have them come back if that is the will of the committee.

[Translation]

Ms. Suzanne Tremblay: It seems to me that it would be more simple than just rushing into this.

[English]

The Chair: There seems to be a consensus, colleagues, that the witnesses should come back. We're unable to complete within the time available today. Shall we then adjourn until Tuesday next, or should we have another round of questions? We can fit in another round of questions.

Mr. Bob Kilger: We would like to adjourn.

Some hon. members: Adjourn.

The Chair: The consensus is that we do adjourn. We'll adjourn until Tuesday.

I will just ask the witnesses now if they believe themselves to be able to come back Tuesday next at 11 a.m. Mr. Côté and Ms. McMurray?

Ms. Diane McMurray: We'll make ourselves available, Mr. Chair.

The Chair: It's agreed. We're adjourned until Tuesday at 11 a.m. Thank you.