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, May 1, 2001

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[English]

The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): I'll call the meeting to order, colleagues. We're pursuing our review of a reference from the House dealing with a matter of privilege and the Department of Justice.

We're very pleased to have as witnesses the Clerk of the House, William Corbett, and Deputy Clerk Audrey O'Brien. Welcome to you both. Thank you for assisting us with this issue.

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As you know, we had Mr. Toews, the member of Parliament who originally raised the matter, and the Minister of Justice here at our last meeting. There seems to be a reasonably good focus on the facts that gave rise to the incident. We now have some questions we're trying to resolve. We need answers that are locked in your minds, hopefully, dealing with procedure and the law that buttresses our procedures here in the House.

I'm making an assumption that you don't have something you want to say up front. If you do, you're certainly welcome. No? So this is a question period. Let's go to members.

There are, colleagues, questions prepared in collaboration with research and the clerk to assist us to get the essential elements. So I'll recognize members now for questions.

Mr. Saada.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): Thank you, Mr. Chairman.

Like everyone else, I have observed that when a bill is introduced, it does not yet have a number and is always marked “secret” at the top. Could you explain to me how that works? Who decides that? How does it work? What are the applicable rules?

Mr. William Corbett (Clerk of the House of Commons): Thank you, Mr. Chairman.

I will try to answer Mr. Saada. When bills or draft bills are introduced into the House, they are printed by the Department of Justice. It is the department that controls production of draft bills. They are produced by the Department of Justice and there is no action taken by the House of Commons. Because they are considered as Cabinet confidences, they are protected under section 69 of the Access to Information Act and by section 39

[English]

of the Canada Evidence Act. The Department of Justice prints a limited number of copies of these bills. A single original with the signature of the minister is sent from Privy Council through the government House leader's office to the secretariat of the Journals Branch when the bill is put on notice, and that is sent to my office and kept under lock and key.

The Department of Justice also sends along, once again through the government House leader's office, a box of copies of the bill marked “secret”.

[Translation]

These bills are not numbered, and the box is kept under lock and key in the Journals Branch Secretariat until the bill is introduced in the House. Once the bill is introduced during Routine Proceedings, the box of copies is taken out of the Journals Branch Secretariat and brought to the House. Behind the curtains, the pages cross out the word “secret” with a pen and indicate the number on the bill, in keeping with the numbering system for legislation.

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These copies are available the same day that the bill is introduced, but once the bill is read for the first time in the House, the House and the Office of the Law Clerk and Parliamentary Council, in co-operation with the Parliamentary Publications Branch, take ownership of the bill and reprint it with the number but without the word "secret," so that it can be used in the House.

That is the normal process.

Mr. Jacques Saada: When a bill has not yet been tabled in the House and therefore not yet read for the first time, it is marked as “secret”. You referred to sections of two acts, the Canada Evidence Act and the Access to Information Act. In the context of these provisions, what does the word “secret” mean in concrete terms? Who has access to these bills and who does not?

Ms. Audrey O'Brien (Deputy Clerk of the House of Commons): I believe that Ms. Fitzgerald, from the Privy Council Office, would be in a better position to answer that question, since it is the Privy Council that decides to designate bills as “secret” on the basis that, as the clerk mentioned, a bill is considered to be a Cabinet confidence until it is introduced in the House. It is the Privy Council that decides who has access to it and who does not. It is not up to the House.

What Mr. Corbett has just described is the process that begins once the Privy Council has decided that it or a minister will introduce a bill in the House.

Mr. Jacques Saada: May I take this line of thinking to its logical conclusion?

[English]

Just for me to understand exactly the procedure, when we mention “secret” and it belongs to the Privy Council, and the definition of secret entails that it belongs to the Privy Council, as you were saying, would the minister have, because he or she is a member of Privy Council, a say in the definition of what this “secret” entails, or would it be beyond her and be in Privy Council as an organization or group?

Mr. William Corbett: Once again, Mr. Saada, I think these questions are perhaps best addressed to Ms. Fitzgerald from the Privy Council. This is an area of expertise that we do not specialize in. We have documents in our files on this secret regime and how bills will be treated by the public service when they are not yet introduced into the House.

All I can say is that these are documents we have in our possession that were created by the Privy Council and the Department of Justice. I can read them, but I can't explain them. There is a whole series of considerations as to...a series of

[Translation]

guidelines set out by the Department of Justice and the Privy Council for officials undertaking consultations with the general public and interest groups when a bill is being designed or public consultations once a bill has been drafted. It is not up to us. We do not have jurisdiction to determine how the bills will be managed by the government, by the Privy Council.

Mr. Jacques Saada: Thank you very much.

[English]

The Chair: Thank you.

Colleagues, if you don't mind, the line of questioning is fairly focused here and I wanted to ask another probing question related to that.

Mr. Corbett, you've referred to this locked box, or lock and key process, for dealing with bills on notice from the government. Can I assume you do not use a similar procedure for private members' bills on notice? In other words, you don't lock them up, or do you?

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Mr. William Corbett: Basically, Mr. Lee, there are only I think three copies of a bill produced for the private member for introduction in the House—one copy to put on notice, one copy for the private member, and the third copy is—

Ms. Audrey O'Brien: We give two copies—

Mr. William Corbett: We give two copies to the member—one for introduction and one to keep—and one copy to the secretariat.

The Chair: My question is—

Mr. William Corbett: And we've done some research as to how we got the word “secret” on the front page of private members' bills. The answer back from legislative counsel is that it is a matter of confidence between the drafter and the private member. It keeps that...probably simply using the original template that came from the justice department with government bills.

The Chair: Okay, you don't use the lock and key for the private members' bills on notice, but you do for the government. I assume, if that is the case, that the House has traditionally accepted the Privy Council secrecy template in going to the lock and key procedure to protect the secrecy of those government bills before they're actually introduced. Is that right?

Mr. William Corbett: Yes, that would be a fair statement.

The Chair: Okay.

Mr. William Corbett: But also on the grounds, Mr. Lee, of the concept that the House should be the first to receive when the bill is introduced, the first to have access to the information, and not someone else. So it could not be through our inadvertence, which is why we use the “lock and key”, that when the bill has come into our possession, it comes into the possession of someone other than members of the House when it ought not to.

The Chair: Okay.

Ms. Audrey O'Brien: Mr. Chairman, just as a point of clarification on confidentiality, the status of private members' bills...I guess we use the term lock and key in terms of the government bills that are sent to us by the government House leader's office because there are a number of copies there ready for introduction eventually. It's also important to note that we do keep absolutely confidential the copy of the bill that is given to the secretariat of a private member's bill. It is up to the private member then to decide what he or she might want to do with it.

There are many bills that have been drafted, for example, that have not seen the light of day in terms of being introduced in the House or given first reading, but members might want to have with a view to further consultation with their constituents or their specific interest groups and so forth. We respect that confidentiality between legislative counsel and the private member. We may term it slightly differently.

The Chair: Okay. I see the minds turning.

Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair. Welcome to the witnesses. I know they're intimately familiar with this place.

I have a follow-up question to that of the chair. Whose responsibility is it to oversee this confidentiality and enforce it? What, if any, sanctions are you aware of that apply? Do they apply equally to government bills and private members' bills?

Mr. William Corbett: I'm not sure I understand the nature of the question, Mr. MacKay.

Mr. Peter MacKay: I mean if the confidentiality is breached.

Mr. William Corbett: If the confidentiality is breached, but elsewhere, we are in essence responsible for the safekeeping of the copies that are put into our hands, but we are not, at least in any way that I know of, responsible for any other copies that may be floating around in the possession of the government before the bill is actually introduced and given first reading in the House.

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I'm not aware of any instance in the 21 years I've been here that a bill that was in our possession was leaked from our possession before it was introduced into the House. The text of the bill may have been leaked in other ways, but I don't think there's ever been a case where those copies sent to us for the introduction of a bill had been leaked, that it had ever been asserted that it had been done by staff of the House.

Mr. Peter MacKay: I appreciate that answer, but my question is, regardless of the source of the leak—the sources are usually indeterminable—who has the responsibility for reacting, or who, in essence, imposes sanctions? Do sanctions exist for breaches of confidentiality? Is it the department? Is it the House of Commons? Is it a committee of the House of Commons? I'm getting at the accountability element to all of this for future reference. Who, at the end of the day, says, this can't happen and here's the cost for doing so?

Mr. William Corbett: Presumably the House itself, if the House feels such a leak was in contempt of the House.

Mr. Peter MacKay: So it would be through a committee or it would be direct accountability on the floor of the House. We've seen the Speaker's ruling, but who metes out the sanctions when a breach of confidentiality has been found?

Mr. William Corbett: The matter is referred by motion of the House to this committee.

Ms. Audrey O'Brien: I think one of the things you put your finger on is that actually laying the specific responsibility for leaks that have caused some frustration in the past is pretty well impossible to do, to lay it at the feet of one individual. I think that has, in a sense, made it difficult for any committee to exert sanctions.

In terms of our practice and our precedents, there are no sanctions per se except to censure the person, if it were, for instance, found to be a member of the committee who leaked a report. Then there would be a censure and the individual would be expected to apologize. Beyond that—

Mr. William Corbett: There's no table of sanctions, in essence.

Mr. Peter MacKay: So short of ministerial accountability, and his or her response to the committee and to Parliament as a whole, there are no.... I'm not expecting that there is any schedule of sanctions, but what I'm getting at is where do we go from here, if there were to be assignment of responsibility? I think in this case that's sort of beyond us now, but for future reference, what is the procedure you're aware of in terms of meting out a sanction, if any exists? You've mentioned censure. Are there any others?

Ms. Audrey O'Brien: I think beyond reporting that one has found a particular accountability, a particular individual accountable, liable for a breach, and censuring that person for dereliction of duty vis-à-vis Parliament, I can't think of anything.

Mr. Peter MacKay: The minister is ultimately responsible then, and I suppose the Prime Minister then has it within his power to react accordingly. Would you agree with that?

Mr. William Corbett: I don't know down what road you're trying to lead us here with this line of questioning, but ultimately, if this committee after investigation is able to establish some kind of fact trail, the committee has it within its power to make a recommendation to the House. Really, there's nothing that confines the committee in terms of those recommendations as a report to the House, but then it would be up to the House to accept or reject the report of the committee.

Mr. Peter MacKay: Okay.

Mr. William Corbett: But that's not something we have any clear pattern of precedent on from the past.

Mr. Peter MacKay: There's no defined, clear precedent.

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It's not that I'm trying to lead you anywhere. I may be asking you leading questions, but this is what I'm trying to find out. Short of the Prime Minister holding the minister to account, there really is no formal process. There was a time when ministers lost their job for leaks or things that happened in their departments.

My final question to you is, having been a clerk and having worked in the system for many years here on Parliament Hill and being familiar with the annals of this House, wouldn't you agree that there was a time when ministers routinely made statements of importance and statements relating to the introduction of bills solely in the House? Is that not a fair statement to make, that there was time in years past when the introduction of all substantive legislation and important policy announcements occurred here in this House? Is that not the case?

Mr. William Corbett: That's a very difficult thing for the Clerk of the House to comment on in the sense that I am responsible for and know what goes on within the House, but I am not responsible for, nor necessarily steadily and consistently monitoring, what goes on outside the House.

Over a period of years there has been a much more open process adopted in terms of how legislation gets from the concept of an idea to the final product that is agreed to by cabinet for introduction in the House. That is true. It's a much more open process than it used to be. Whether or not that is what you're driving at, I can't really comment beyond that, Mr. MacKay.

Mr. Peter MacKay: I'm not trying to be partisan about it or to assign blame to any particular government.

What I'm asking you is, as a person who has observed the House intimately for a number of years, has the culture not changed? Are we not underutilizing the chamber as a place of first introduction, a place where ministers come to make announcements and to present legislation in the first instance? I think that is an underlying question to all of what has occurred in this specific case, that ministers no longer feel that their responsibility is to come to the House of Commons first to present it to other members, to their own caucus, and to their own cabinet. That appears to be sliding. I'm asking you, as a person who has observed the chamber for a number of years, if you agree with that assessment.

Mr. William Corbett: It's an assessment that I probably could agree with as an observer of the process.

Mr. Peter MacKay: Thank you.

The Chair: Ms. Gallant.

Ms. Cheryl Gallant (Renfrew—Nipissing—Pembroke, Canadian Alliance): You explained that a bill is the property of the Privy Council until it's tabled and that the House is to be the first to receive it. Specifically on Bill C-15, there was no authorization whatsoever from the Privy Council to release it prior to its being tabled. Is that correct?

Mr. William Corbett: I simply cannot comment on that, Mr. Chairman. This is outside my scope. What the Privy Council does or does not do is not something the Clerk of the House of Commons is necessarily privy to, if I may put it that way, without intentionally making a pun.

It would be best to address those kinds of questions to the representatives of the Privy Council when they're before you.

Ms. Cheryl Gallant: Do you believe that members of Parliament, such as opposition critics, should have access to the legislation prior to its being tabled?

Mr. William Corbett: I'm not sure that's a fair question. That is not one I should really comment on.

The principle we are establishing here is that the bill ought not to be in the hands of third parties before it is introduced in the House. Whether or not it's a recommended practice, I know that on occasion ministers will share with critics copies of legislation before it's introduced. I know also that as a practice, ministers often share ministerial statements before they make them so that critics can respond accordingly. It's an area of what we call the courtesies of the place, which assist the good functioning. But it's really between members, critics, and ministers to determine.

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The Chair: Mr. Harris.

Mr. Richard Harris (Prince George—Bulkley Valley, Canadian Alliance): Thank you, Mr. Chairman.

Mr. Corbett, I'm not sure I heard a response to Mr. MacKay's earlier question concerning a leak from a member of the clerk's office. Ultimately, where would the responsibility for dealing with that fall? Would it fall on yourself? Would it come to this committee for recommendation? Would it then go to the government and then come back to you? What's the chain of command, getting down to someone sitting down with this person and saying, listen, this is a very serious thing and here are the consequences of it? I didn't quite hear the response to that.

Mr. William Corbett: I wasn't aware that was precisely how Mr. MacKay was phrasing his question.

But you've added an element of clarity to it by referring to a leak from the clerk's department. The answer is that we would of course treat that with extreme seriousness. Depending on the nature, we would consider it a serious breach of the oath of office taken by employees of the House of Commons were they to have leaked a draft bill that was in our possession. It would be a matter for discipline. Depending on the nature of the offence and the record of the employee, there's a whole scale of discipline that would be available to management of the House. But it's certainly something we would be responsible for.

Mr. Richard Harris: Just to follow up, so there is an oath of confidentiality similar to the one in the public service.

Mr. William Corbett: Yes, there is.

Mr. Richard Harris: Can the House define “secret until tabled in the House” as anything it wanted it to be? Would the cabinet and the bureaucracy have to abide by it? Would it be contempt of the House if they disobeyed or ignored the determination?

Mr. William Corbett: We're in a difficult area here because we're kind of mixing concepts. If the government puts the word “secret” on a draft bill, in their terms it is to protect a cabinet confidence. Those are things that are governed by law. Whether or not the bill were ever introduced into the House would be immaterial. If there were a leak, the government might decide to deal with the leak of what they had deemed to be a cabinet confidence under the law. How the House chooses to deal with what in essence could constitute contempt of the House is the House's business. There's no clear set of sanctions laid out in advance. If the leak of a draft bill is deemed by the House to represent contempt of the House, the House can then recommend the taking of an action in whatever way it chooses.

Mr. Richard Harris: Thank you, Mr. Corbett.

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The Chair: I'm trying to recap this so that we all understand. Going back to this rubric “secret”, as you've explained it, Mr. Corbett, the term is originally used by the Privy Council when its government bills are printed at the Department of Justice. It's placed on the document. I would have to assume that if the Privy Council uses the word “secret”, it means the same thing as the security classifications they use “secret” for, such as “confidential” and “top secret”, along with all the other classifications. If they put “secret” on it, it must mean secret.

You've also said that the House prints the word “secret” on private members' bills. From that I would infer that the House has adopted some kind of convention to reuse the word “secret” without necessarily the same Privy Council meanings or classification implications. The House could also use the word “confidential” on private members' bills with the same impact. This convention continues, and it's applied during the period when the bill is sent to you on notice and when the bill is introduced. That might be two days; it might be a week. For private members' bills it might be forever, the whole Parliament, with the bill not having been ultimately introduced. Have I recapped that fairly?

Mr. William Corbett: That's a fair recap of what we had to say on this, Mr. Chair.

The Chair: In theory, then, if a bill that emanated from the Privy Council were to be conspicuously leaked, that might be a breach of government security policy or one of the statutes you mentioned earlier. But if a private member's bill were leaked, it would be simply a matter for the House, which might be taken up on the floor.

In this particular factual circumstance we're dealing with a government bill. I'm getting into hypotheticals here because members will decide themselves what did or didn't happen. Even though the word “secret” on that particular bill was a Privy Council construct, we're not looking at enforcement of the Official Secrets Act, the Canada Evidence Act, or the Access to Information Act. We're simply looking at it from the parliamentary perspective, much as we would with a private member's bill.

The minister's staff might have a different view of it, and the minister herself might have a different view of it. But we're following the House paradigm, which essentially says that bill is confidential until introduced.

I hope that was helpful. It was helpful to me.

Are there any other questions for the clerk or Ms. O'Brien? Then we'll let our witnesses go. Thank you very much.

We'll suspend for two minutes while we rotate our witnesses.

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The Chair: Colleagues, we'll call the meeting back to order.

Our next witness is Dr. Oonagh Fitzgerald, who is the assistant secretary with the cabinet for legislation and House planning.

Welcome, Dr. Fitzgerald. We are pursuing an issue involving secrecy or confidentiality of government bills prior to their actual introduction into the House.

You don't have an opening statement, do you?

Ms. Oonagh Fitzgerald (Assistant Secretary, Cabinet, Legislation and House Planning, Privy Council Office): Yes, I do.

The Chair: Oh, you do. Please go ahead with it.

Ms. Oonagh Fitzgerald: I thought it might be helpful if I did it that way, and then if there are subsequent questions, people might wish to pose them.

The Chair: Okay.

Ms. Oonagh Fitzgerald: As I understand it, I'm here to answer some questions that were posed to Morris Rosenberg from the Department of Justice. They were issues that involved the Privy Council Office, so it was thought appropriate that I would come and give some comments.

I'm going to talk to you a little bit about the law-making process up to the point of introduction in the House or in the Senate, then explain to you what the phrase “Secret until introduced in Parliament” means when it's marked on a bill, and then talk very briefly about what Privy Council Office views are on this whole issue of pre-introduction briefings.

First of all, I want to mention that there's a directive of cabinet called the cabinet directive on law-making, which was passed in March 1999. This is a directive that is public. In fact, you can find it on the Privy Council Office website. It provides a general framework for how departments are supposed to proceed when they're preparing draft legislation.

The first step is to prepare a memorandum to cabinet to seek policy approval and authorization for the legislation section of the Department of Justice to draft the bill. If cabinet approves the policy and the drafting instructions, then the bill is drafted in both official languages by the legislation section of Justice.

When the bill is drafted satisfactorily, copies are sent to my group, which is the Legislation and House Planning Secretariat at Privy Council Office. At that point, the individual bill will be reviewed by the leader of the government in the House of Commons, who will be verifying the consistency of the draft bill with the decision that cabinet had taken on the general policy.

I should just mention a technical point. The legislation section at Justice is comprised of three groups. One is the drafting group, which is called the legislation section; the second is the legislative revising and publishing service, which does all the work of ensuring consistency between French and English, the editorial work, and so on; and then there's the automation services unit, which I believe has a direct link with Parliament in terms of transmitting the documents. Actually, they transmit the documents to St. Joseph Printing, which does the actual printing of the documents.

When the leader of the government is satisfied on the bill review, he reports back to cabinet on his review, and he seeks delegated authority to arrange for the introduction of the bill in either the House of Commons or the Senate. Once he has approval from cabinet for that, the bill is printed in its final form, forwarded to the Legislation and House Planning Secretariat, and then submitted either to the Prime Minister or to the leader of the government in the House of Commons for signature. In the case of a bill involving expenditure, you need also a royal recommendation, and that would accompany it.

Bills are generally introduced by the sponsoring minister. The timing and place of introduction will be determined by cabinet, or in the case of a delegation, to the leader of the government in the House. He will exercise that decision.

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Notice of introduction in the House of Commons is given to the clerk of the House by me, once the leader of the government in the House has given the instruction to do so, and then a signed copy of the bill is forwarded to the clerk of the House along with a notice. Sometimes notice of introduction in the House is provided on the title only. So those are the two ways.

Next, what is the meaning of the term “Secret until introduced in Parliament”, which is marked on draft bills? This is written on the bills by the automation services unit of legislative services at the Department of Justice.

I didn't hear all of the testimony of the last speaker, but I got the impression that he had referred to the three acts of Parliament that specifically protect cabinet confidences.

Those are the Canada Evidence Act, paragraph 39(2)(f); the Access to Information Act, paragraph 69(1)(f); and the Privacy Act, paragraph 70(1)(f). These all refer to confidences of the Queen's Privy Council of Canada and provide very special protections for them. I won't go into a lot of detail on that, because not all of it is relevant. I think the Canada Evidence Act is probably the best one to focus on for the purposes of this discussion.

Section 39 provides that where a minister or the clerk of the Privy Council objects to the disclosure of the information before a court, person, or body with jurisdiction to compel the production of information, by certifying in writing that the information constitutes a cabinet confidence, the disclosure of the information shall be refused without examination or hearing.

That is a quite exceptional provision in law. It means that if a trial is going on and somebody tries to introduce cabinet confidences in the trial, the clerk can certify that the particular document is a cabinet confidence. By doing that, it precludes that information being put to the court. It can also preclude a witness from speaking about those matters.

These cabinet confidences are also specifically excluded from the access regimes of the Access to Information Act and the Privacy Act. So it's different from the ordinary exemptions you see in the Access to Information Act. They're right outside the act. The only exception to that is if a cabinet confidence is 20 years old. So you can see that a very wide protection is conferred by these three acts.

It precludes release of cabinet confidences outside the circle of the executive and those who support the executive—that is, the Privy Council Office and public servants who are directly involved in, for example, drafting a bill or preparing the policy for that bill. Of course, all those public servants would have had appropriate security screening to be able to have access to those kinds of documents.

Cabinet confidence is a fundamental principle of the Canadian constitutional system of government. It's recognized that even the House of Commons does not assert a right of access to cabinet confidences. This was stated by the former Speaker of the House of Commons, the Honourable Roland Michener, on November 6, 1957:

...the decision of the government is one and indivisible. Inquiry into how it is arrived at and particularly inquiry into the cabinet process is not permitted in the house.

The Chair: I have to interrupt. I have to disagree vehemently with the statement you're going to quote.

Ms. Oonagh Fitzgerald: I just finished the quote.

The Chair: That's fine.

I view it as an incorrect view of the law by a Speaker who may not have had the benefit of full discussion. In any event, it is your characterization of a then prevailing circumstance, and I'm not so sure it binds the House or members around this table. But feel free to continue with that.

Ms. Oonagh Fitzgerald: Okay, thank you.

On the issue of budget secrecy—and that again is a cabinet confidence; that's one of the principles there—Speakers of the House have maintained that secrecy is an issue of parliamentary convention rather than one of privilege, and I believe this point was made by the previous witness. Therefore, the issue of lock-ups in relation to budget releases was considered not to be a matter for the chair to decide. That's from Marleau and Montpetit. So this issue has obviously arisen before.

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As the current Speaker of the House, the Hon. Peter Milliken, ruled on March 19 of this year, embargoed briefings of the media or informal briefings of members of Parliament are not a breach of privilege as long as measures are taken to protect the secrecy of the bill.

The protection that's given to cabinet confidences is consistent with the constitutional principle of the separation of powers, where each of the three branches must show the appropriate deference for the legitimate sphere of activity of the others.

There have been recent cases that address this issue. One was the case of Singh versus Canada in the Federal Court of Appeal. The other was the case of the New Brunswick Broadcasting Company and Nova Scotia, involving the Speaker in the House of Assembly there, in the Supreme Court.

The confidentiality is also fundamental to the Canadian system of representative parliamentary democracy based on both rule of law and responsible government.

I'll give you an explanation on the issue of responsibility. Ministers are responsible in two ways: one is individually for their portfolios, and the other is collectively for the decisions of cabinet. The idea of cabinet confidentiality is that for effective government there has to be cabinet solidarity and therefore you need to have a space for confidentiality for the cabinet.

Draft bills go through many iterations, and of course draft legislation is specifically mentioned in those three statutes as protected as a cabinet confidence. The rationale would be that if there are differences in different drafts, you could have a breakdown in cabinet solidarity if different people were advocating different drafts.

Cabinet is itself the master of its confidences and may in certain circumstances waive the protection. The cabinet directive on law-making, to which I referred a few moments ago, specifically provides that in the interests of openness and consultation there should be some ability to have consultation on draft legislation.

It says this should be done in a way that does not pre-empt Parliament's role in passing bills, and it should be done in a way that does not give unfair advantage, such as economic advantage, to anybody. It provides that if a draft bill is intended to be used in consultation before it is tabled in Parliament, the memorandum of cabinet should state that intention and ask for cabinet's agreement so that cabinet will agree to that kind of a waiver. But the general rule is that draft legislation is secret until introduction.

So that's an explanation of why that phrase is put on a bill as a warning to everybody who sees it. As soon as it's introduced of course it ceases to be a matter of executive policy development and is within the ambit of the legislative branch.

I mentioned a while ago Treasury Board policies on security. These are relevant because the classification of secret comes from those Treasury Board policies, and it has the meaning of anything that could reasonably be expected to cause serious injury to national interest. That's the notion of secret. There is an effort to bring together a dovetailing of the Privacy Act, the Access to Information Act, concepts of cabinet confidence, and the security policy.

Finally, I have a few comments on this issue of pre-introduction briefings. It's generally government practice that draft legislation is under embargo until introduction, and that if a special advance briefing is to be provided to the media, it should also be offered to members of Parliament as well.

I would say that the simplest way to deal with this matter is to postpone briefings until after introduction, because that makes a nice clear demarcation between the activity of the executive and then the role of Parliament. This may not always be the advisable course, depending on the circumstances, and the approach of making sure that if there is going to be an embargoed briefing for the media, that also members of Parliament have it, is a viable way of dealing with that pre-introduction briefing. I think that would work quite well.

So those were my prepared comments on this. If you have any questions, I'd be happy to take them. Thank you.

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The Chair: Thank you very much. Those remarks have been very helpful.

I have indications from Mr. MacKay and Mr. Saada. Mr. MacKay first. I'm sorry, our clerk advises that Ms. Gallant had her name down here first, so we'll go to Ms. Gallant, then Mr. Saada, then Mr. MacKay, according to the clerk's list.

Ms. Cheryl Gallant: Thank you, Mr. Chairman.

My question is more along the lines of a solution rather than defining secrecy, but it does relate to our study and the issue of secrecy. At the last meeting Mr. Toews made reference to a resolution passed in the U.K. regarding ministerial accountability. He referred to page 63 of the 22nd edition of Erskine May. He did not read it into the record so I would like to do it; it's not that long:

That, in the opinion of this House, the following principles should govern the conduct of ministers of the Crown in relation to Parliament: ministers have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their departments and Next Steps Agencies; it is of paramount importance that ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister; ministers should be as open as possible with Parliament, refusing to provide information only when disclosure would not be in the public interest, which should be decided in accordance with relevant statute, and the government's Code of Practice on Access to Government Information (second edition, January 1997); similarly, ministers should require civil servants who give evidence before parliamentary committees on their behalf and under their directions to be as helpful as possible in providing accurate, truthful and full information, in accordance with the duties and responsibilities of civil servants as set out in the Civil Service Code (January 1996).

So it was brought up as an example of how the House could offer some guidelines to ministers. Mr. Toews pointed out that the Privy Council has guidelines for ministers, but that it was odd for the House, to which ministers are accountable, to remain silent on the topic.

So if the House were to adopt a similar motion to what I just read, and added a few other details to address this issue we're discussing today, maybe going even further and adding something such as “ministers should respect the House as much as possible when making announcements”, how would the Privy Council treat such a resolution?

The Chair: Ms. Gallant, I don't know whether Dr. Fitzgerald is in a position to speak for the Privy Council. I suspect she's not. And if you're asking for opinion, she'd probably want to avoid that as well. But she may have a comment generally in relation to what you've suggested. Is there some way you might like to reply to that question?

Ms. Oonagh Fitzgerald: The only comment I would make is that if such a resolution was passed, obviously the ministers would be taking it under advisement. But what's essential at this point is that they have to comply with the law, and that's the framework they're dealing with, the law relating to cabinet confidences. So as long as they're not in some sort of a conflictual problem with that, then I don't see why it would be a problem.

Ms. Cheryl Gallant: Thank you, Ms. Fitzgerald.

The Chair: Mr. Saada, then Mr. MacKay.

[Translation]

Mr. Jacques Saada: I will not express an opinion about whether it is a good idea or not to provide briefing notes to the media before a bill is introduced; that is not the purpose of my remarks. You mentioned several times, at least twice when you were speaking to Mr. Milliken, that an embargo distribution can be done as long as the necessary measures are taken to enforce the embargo. My question is simple. Could you give me examples of measures that could be adopted to ensure that the media respect the embargo?

Ms. Oonagh Fitzgerald: The example that I have seen, in the budget context, is a lock-up briefing session. Members of Parliament are also invited to that session.

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Mr. Jacques Saada: I will have to find out whether there are parallels with the budget briefing session. At the briefing on the budget, are there other people invited besides media representatives? For example, I assume that the opposition and other members are invited to attend.

In your view, are a bill and a budget “secret” to the same degree and in the same way? Is it the same thing? Does the term “secret” mean the same thing when it is used for the budget, for example, and for a bill?

Ms. Oonagh Fitzgerald: It depends... The simple answer is yes, since both involve confidential cabinet discussions. So the rule is the same and the same legislation applies. That means that the Canada Evidence Act and the Access to Information Act give the same protection.

Perhaps there is another aspect as well. It depends on the nature of the bill. Could the potential harm be different? I do not know. The damage with respect to confidential Cabinet discussions is the same in both cases.

The Chair: Have you finished?

[English]

Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair. And thank you, Ms. Fitzgerald, for being here and bringing forward the Privy Council perspective on this.

I am glad that the chairman has at least put on record his objections, because the Speaker's role in all this is really to rule on points of order and points of privilege. He doesn't have the authority to rule on points of law, whatever that commentary or the intention thereof may have been in 1957. He's not a judge.

However, you cited the written law and the interpretation of that—or how it's seen by the PCO. What I'm concerned about here is the responsibility to Parliament, which also has to exist for the Privy Council. Much of that is an unspoken rule of law or culture. My question to you is, in these briefings that take place in the preparation—and you've set out the process—who at any point in that process speaks for Parliament? Who says to the minister, “No, Minister, with the greatest respect, I think you should bring this to Parliament first”? Does that happen? Are there any checks and balances? Is it written anywhere? Is there anybody who speaks for Parliament at the PCO? Does that enter into the equation at any time?

Ms. Oonagh Fitzgerald: There are many aspects to that question. If one of your questions is about communication strategies in relation to a particular bill, I couldn't really answer that because I'm not a communications expert.

I can say that in the role I play, serving the leader of the government in the House, we are always very concerned about the impact of decisions on the proper functioning of Parliament. I think it's inherent in the role we play to make sure that Parliament is treated with courtesy and respect in these matters.

However, I'm not involved in the specific details of communications plans.

Mr. Peter MacKay: With the greatest respect to you and to your answer, I must say that this hasn't been happening. I'm not talking about communications or strategy in terms of how we get this information out to the public. My question is simply, does anybody at the PCO take into consideration the fact that Parliament should be afforded the opportunity to see this legislation first? That seems to be what is slipping in here, this idea that if we finesse this enough and if we are out in front of it before anybody else gets a look at it, we can put our spin on a bill with the media and therefore avoid dissent.

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Is anybody over at the PCO actively or even subtly telling the minister to bring it to the House of Commons first and then go about elaborating your communications strategy and spin? Does that happen at all?

Ms. Oonagh Fitzgerald: Well, I can't speak for the whole of the Privy Council Office.

Mr. Peter MacKay: Perhaps you could just tell us whether in your role you have ever encountered anything written or unwritten. Has anybody in your presence ever said, “Minister, let's bring this matter to the House first, and then we'll go about these other media-massage efforts”.

Pardon?

The Chair: I was just whispering to one of our colleagues over here.

Mr. Peter MacKay: That I was on a tangent?

The Chair: No, I'd be happy to explain—

Mr. Peter MacKay: That's very respectful, Mr. Chair. Thank you.

Perhaps we could have the witness answer the question.

Ms. Oonagh Fitzgerald: I can't answer the question because the scenario you just described does not reflect the work I do. I can't answer the question as you gave it, but I can offer you something—hopefully.

In the cabinet directive on law-making, one of the points they specifically make is they're trying to...I'll try to interpret what they're doing in that directive. They were trying to give more scope for greater consultation and openness in the policy development process. As you can see from the rigid laws I just described to you, it's a bit of a challenge to do that when you have all these laws saying these are cabinet confidences. They have to address that and say how we can make policy more responsive to what the Canadian people would like. Therefore, they have attempted to provide more scope for consultation earlier in the process in order to improve the quality of bills.

Even in doing that, and even allowing that there could be this waiver of cabinet confidentiality to permit that kind of consultation, they've pointed out that they do not want to do this in such a way as to pre-empt Parliament's role in passing bills. None of that is intended to pre-empt Parliament's role, and Parliament's role begins upon the introduction of a bill. There are other roles, such as those of interest groups, and many other people may be involved prior to that, but Parliament's role really takes off from the moment of introduction, when the full review of the legislation is to be carried out by the elected officials.

Mr. Peter MacKay: I guess the answer is that the intention is very much that it be introduced first in Parliament, but all this other culture of how to get the message out is also in play. I can appreciate that, but does anybody at any point in the process—and is it written or is it spoken—state that it shall go to the House first before it makes it out into the public domain?

Ms. Oonagh Fitzgerald: Again, I can give you a simple answer to that. We are talking about cabinet confidences, so blatant release of a draft bill or something like that would be a problem, and it's not supposed to happen. It's quite clear to officials what cabinet confidences are and what protections exist.

I think the issue the Speaker addressed a few weeks ago related to situations where, just before the introduction of a bill, there has developed a bit of precedent and a bit of practice in that sometimes there is some effort to prepare people. The budget situation is an example: there is a lock-up where you give a briefing in advance, but the journalists are sequestered. All members of Parliament should have access to that information. There is a bit of a grey zone there, but beyond that grey zone and beyond the specific language of the cabinet directive, people are not supposed to release cabinet confidences. There is no authority for that, and it would be a matter for disciplinary action if it happened.

Mr. Peter MacKay: Are you able to table the directive, or is this—

Ms. Oonagh Fitzgerald: Yes, it's public. I have a copy of it here. Do I have a complete copy of it? Yes.

Mr. Peter MacKay: Thank you.

Thank you, Mr. Chair.

The Chair: Thank you.

Mr. MacKay, my earlier comment, which you picked up on the open microphone, was to the effect that I had understood your line of questioning to involve the introduction of bills, policy statements, policy announcements, and the broader issue of governments announcing and introducing things. Our line of inquiry here, based on the situation that was referred to us by the House, just involved the introduction of a bill—

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Mr. Peter MacKay: You characterized it as a rant, Mr. Chair, which I take offence to.

The Chair: I didn't use that word, Mr. MacKay.

Mr. Peter MacKay: Well, that's what I heard: “He's on a bit of a rant”.

Mr. Geoff Regan (Halifax West, Lib.): Peter, you said “tangent”; you didn't say “rant”.

The Chair: Mr. MacKay, you're always entitled to be on one of those.

Mr. Geoff Regan: You repeated what he said—unless I missed something. I didn't hear “rant”.

The Chair: Have we got that all cleared up?

Mr. Peter MacKay: As far as I'm concerned, yes. Thank you, Mr. Chair.

The Chair: Okay, good.

Ms. Catterall.

Ms. Marlene Catterall (Ottawa West—Nepean, Lib.): Can you tell me clearly and simply what the current PCO policy is on communicating what's in a bill?

Ms. Oonagh Fitzgerald: Do you mean at the point of introduction?

Ms. Marlene Catterall: Yes. The Minister of Justice outlined to us very clearly what the new policy of her department is. What is the PCO policy that applies to all government departments?

Ms. Oonagh Fitzgerald: As I stated at the end, there are really two options. The simplest and safest—

Ms. Marlene Catterall: No, there aren't options. What is the PCO policy?

Ms. Oonagh Fitzgerald: That's what I'm saying. In some circumstances the best thing is no release, no pre-briefing, and no sequestered briefing prior to introduction. Just introduce it, and then it becomes Parliament's bill.

The alternative is an embargoed pre-briefing close to the moment of introduction, one to which you invite members of Parliament.

Ms. Marlene Catterall: Departments have a choice between those two policies, do they?

Ms. Oonagh Fitzgerald: Yes. It would depend. They could use either because both respect the role of Parliament and both respect the cabinet directive.

The only thing I would say about the embargo situation is they may have to be careful with that. They would want to ensure that they have cabinet agreement for the pre-briefing type of scenario. But the critical thing is—

Ms. Marlene Catterall: Is that part of the policy? What's the policy?

Ms. Oonagh Fitzgerald: The cabinet directive says you have to ask for cabinet agreement if you want to give out information prior to introduction. I think that would clearly apply if you're going through a lengthy policy development process and you need to consult with various stakeholders. You'd clearly in your MC have to request that.

I don't know for sure if you're talking about whether you'd have to do this half an hour before introduction, but I think it would be prudent to request cabinet approval.

Ms. Marlene Catterall: You did say that kind of embargoed briefing session should be open to all members of Parliament. Is that what you just said?

Ms. Oonagh Fitzgerald: Yes. It seems to me that if this is an issue of courtesy to parliamentarians, the embargo is an appropriate way to go.

Ms. Marlene Catterall: I'm not asking about what it seems or doesn't seem. I'm asking for a clear answer as to what the policy is. Is the policy that any embargoed briefing should be open to members of Parliament—all members of Parliament?

Ms. Oonagh Fitzgerald: Yes. If somebody asked me how to do that, that's definitely what I would tell them.

Ms. Marlene Catterall: But is that the policy of the PCO?

Ms. Oonagh Fitzgerald: It's just that when you ask if that is the policy, I keep trying to think whether there is a document, like a Treasury Board policy, that states that. There isn't a document like that that I'm aware of.

Ms. Marlene Catterall: So there is no PCO policy right now that guides—

Ms. Oonagh Fitzgerald: There is no written document, but clearly from the information I provided you this morning there is only a limited range of things you can do. You either provide nothing and comply with the cabinet directive for your consultations, or when you get to the final draft of your bill, are about to introduce it in the House, and want to do a pre-briefing, you should make it available to parliamentarians as well. It can't be just for the media. If not, the simplest way is simply silence until introduction.

Ms. Marlene Catterall: What happens if a department, an official, a minister, or whoever doesn't comply with those guidelines and principles? What's the accountability mechanism? I think this is partly what Mr. MacKay was trying to get at in an earlier question.

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Ms. Oonagh Fitzgerald: I think the House has quite effectively provided an accountability mechanism. It depends on the circumstances. It really would depend on what the circumstances are.

If we're talking about leaking of cabinet confidences in various circumstances, it becomes a discipline issue. It might be an offence. But if you're just talking about the issue as it was presented, I think the process that followed was...it's a matter of interest to the House.

Ms. Marlene Catterall: And finally, is there a difference in your view between releasing a bill, which is clearly not to be done, or releasing what is in the bill?

Ms. Oonagh Fitzgerald: I think if you were going to do either of those, you'd better make sure you have cabinet support, in accordance with the cabinet directive.

Ms. Marlene Catterall: Would it be reasonable to think that the Privy Council Office or cabinet should adopt a policy similar to what justice has now adopted, which would apply to all ministers? And would your advice be to have the same policy or a modification of that policy?

Ms. Oonagh Fitzgerald: I think their approach is reasonable and prudent, so I wouldn't have any concerns with other departments adopting the same policy.

Ms. Marlene Catterall: Would it be advisable to have Privy Council Office adopt a policy that would apply to all ministries? That was the question.

Ms. Oonagh Fitzgerald: To the extent that Privy Council can do that, yes, I would agree that it would be a good thing, to make sure that everyone understands this issue that's arisen.

Ms. Marlene Catterall: Thank you.

The Chair: Mr. Jordan and Mr. Richardson.

Mr. Joe Jordan (Leeds—Grenville, Lib.): Thanks, Mr. Chair.

Dr. Fitzgerald, coming back to the two options that ministries have, one option clearly is that nobody gets anything until it's tabled in the House. On the other option, though, I think we need to define some of these terms. I mean, embargoes and embargoed briefings that include a lockup are one thing, but an embargoed briefing where people are on their honour and are then released prior to tabling the bill in the House is a hybrid that Justice seems to have developed.

We're going to eventually discuss where this is going, but it would seem to me the briefing that doesn't include a lockup is what caused the problem in this particular case. And that third option is probably something we shouldn't allow. It's fraught with problems.

I have no issue at all with opposition critics—I don't know what the timelines are—getting the bill, because they're answerable to the House. We have opportunities to sanction them if there are breaches. But when you're dealing with the press, there may be legal recourse, but practically we have no way of controlling it.

So when you use the term “embargoed briefing”, are you considering that to include a lockup or not? Or are there two types now?

Ms. Oonagh Fitzgerald: Well, I tend to agree with you that the lockup is by far the most secure approach to use, given how things unfolded in this particular instance.

I'll just say that.

Mr. Joe Jordan: It would appear to me the policy would be self-policing. The issue here was that I guess it was felt—and I'm speculating—in Justice that this wasn't a bill of enough importance that the press would actually subject themselves to a three-hour lockup. If that's the case, then they can wait until it's tabled in the House, because clearly it isn't of importance.

I could live with the two options. It's this third option, without the lockup and the embargo, that is causing problems. Maybe that's the thing we need to eliminate. Those are my random thoughts. You don't need to comment on them.

Thanks, Mr. Chair.

The Chair: Right.

Your chair's random thought is that even with a lockup for journalists, that kind of locked-up briefing, the pre-introduction of a bill without providing a similar briefing to parliamentarians, might still encounter rough waters in our House. So I'm not so sure the presence or absence of lockup is the only issue we're dealing with here. The broader focus includes respect for Parliament and the legislative process.

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Ms. Oonagh Fitzgerald: Maybe I should just clarify that I was suggesting that for the lockup, you should also be providing access to the parliamentarians.

The Chair: Thank you.

Mr. Richardson, and then Ms. Gallant.

Mr. John Richardson (Perth—Middlesex, Lib.): Thank you very much, Mr. Chairman.

I think about two years ago, in a briefing similar to this one we're going through, the clerk, who was in here briefing us earlier, mentioned that on occasion the bill would be locked in his office in the safe and it would remain there until such time as he was ordered to pull it out. That was one of the things we talked about around two and a half years ago. He brought it forward here in discussions earlier that the reading of the bill and its security where it was locked up was important, and that nothing would come out of there until an action was placed to him by someone from the cabinet table asking for the bill.

The Chair: Okay. Thank you.

Ms. Gallant.

Ms. Cheryl Gallant: My question is a follow-up to Ms. Catterall's question, which was in turn a follow-up to Mr. MacKay's in relation to an accountability mechanism.

Your answer, Dr. Fitzgerald, was that it's really up to the House or cabinet to decide whether or not there is going to be any penalty for releasing a document prior to its tabling. So in reality, in the situation we are in right now, a majority government, it's up to cabinet, or really, it boils down to the whim of the Prime Minister whether or not anyone is going to be held accountable for pre-releasing documents. Would that be a correct way to state the state of affairs right now?

Mr. Oonagh Fitzgerald: I don't think I can answer that question. Sorry.

The Chair: The difficulty with the question is that the process we're embarked upon now is a House response to the pre-introduction release of information. The House is responding, and you've asked someone from the Privy Council if it is just the Privy Council that is responsible for disciplining its members or employees. The witness is unclear if she's missed something or whether you.... It's a difficult question for her to answer.

I think she would say the Privy Council takes care of its business, its employees, and its ministers, and on the other hand, the House takes care of its business. The Prime Minister does have a vote in the House. He's one of 300 who would vote.

I don't know whether that's helpful in getting a resolution, but I understand the witness's difficulty in replying.

You may have a follow-up question.

Ms. Cheryl Gallant: Not right now.

The Chair: Okay.

Mr. MacKay.

Mr. Peter MacKay: Dr. Fitzgerald, just so that we're all clear, I think Ms. Catterall's questions to you elicited the response that there are directives. There is what I would call a practice that is followed. My question is, based on what has happened in this instance, did the Department of Justice breach the directive or the practice?

Ms. Oonagh Fitzgerald: There isn't a directive as such. That's one of the points I was saying. There isn't a written statement. There is a clear...the imperative of the legislation that protects cabinet confidences. There are the Treasury Board guidelines on security of documents. All those elements mean that public servants know what constraints they're under in terms of draft legislation. It's highly protected until the moment of introduction, and that's why we have it marked on draft bills.

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The initiative has been brought to the attention of the Speaker in relation to how this particular bill was handled and how in fact the supposed embargo didn't work. I think this has demonstrated that there are real risks if you have some kind of embargo that is not really absolute or perfect, and that it is prudent to have people reconsider this issue. As I've said, the two options are if you can create a very controlled environment for a pre-introduction briefing and you have cabinet support for a pre-introduction briefing. If you also include parliamentarians in that pre-briefing, then it might be feasible to do it. If you don't have cabinet support for that, the appropriate thing is to simply wait until introduction of the bill for it to become public.

Mr. Peter MacKay: Well, I think you conceded either to Ms. Catterall or Mr. Jordan that it would be helpful to have a clear policy statement if it isn't there. And it doesn't appear that it is, because there is this grey area. To that end, if there is to be anything that comes out of these deliberations, perhaps that's the most we can expect—that there will be a clear policy guideline that states, this is what has to be followed, this is what is intended to prevent information from being out there pre-empting the role of parliamentarians. Because it appears to me—and I'm not suggesting that you're purposely trying to be difficult—the answers don't seem to be forthcoming as to whether there is anybody at the PCO that is mindful of the role of Parliament, outside of the role of government and the executive branch to introduce legislation.

Ms. Oonagh Fitzgerald: Thank you for the suggestion. I think it's certainly something worth considering.

The Chair: I just wanted to follow up on Mr. MacKay's line of inquiry there. In the facts giving rise to this case, I assume from what you've told us in relation to Privy Council procedures that the minister, or ministry of justice in this case, would have sought and obtained approval to give a pre-introduction briefing to the media without giving any pre-introduction briefing to MPs. Whether or not the cabinet actually adverted to that, I do not know, but something like that would have occurred. At the very least, cabinet would have acquiesced in the request by the minister to give this briefing, if the minister had requested permission to give the briefing—and this we do not know either. Perhaps we don't need to know, because those are cabinet's rules.

My suggestion to you is that the Privy Council policy on this might wish to include a notation or reference to the fact that if the minister has embarked on a legislative course, in no circumstance should briefings be provided to third parties before MPs and the House are accorded an appropriate courtesy.

I just make that suggestion because the Privy Council may wish to rework its guidelines on these things. If it doesn't, it may run into the problem again with the House. Is that fair enough?

Ms. Oonagh Fitzgerald: Thank you for the suggestion.

The Chair: Okay.

Now, just to get a little hypothetical to clarify things a bit further, you have attempted to buttress and provide a foundation for the protection of cabinet confidences, but what you have told us is that statutes make reference to protections for cabinet confidences, public statutes dealing with the public. But among the statutes you've mentioned, in no case is there anything that would allow the Privy Council to enforce its secrecy and protect Privy Council confidences in Parliament. Those statutes would not bind Parliament unless they did so specifically.

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Here's a hypothetical case: let us say the Clerk of the House—not ours, he would never do this—but some clerk in the House decided that as soon as the bill was sent on notice, before it was introduced, he would send a copy to all the members of Parliament. That would breach cabinet rules, Privy Council rules, and it might even breach the House convention. But if the House had told the clerk to distribute it, then he wouldn't be breaching a House rule at all; he would simply be doing what the House wanted.

How would the Privy Council enforce that? In my view, it couldn't; it wouldn't have the ability. There's no statute that would provide that protection, and the Privy Council isn't capable of reaching into Parliament to enforce it.

Have I got that right? In terms of enforcing secrecy and cabinet confidences, the Privy Council can only deal with its own ministers, not other members or employees of the House.

Ms. Oonagh Fitzgerald: I'm not sure I can give you a complete answer to that question. If that was or became the practice of the House, it would probably lead to some modification of the practice of the executive. One would expect they'd be more reluctant to give out the bills before introduction. They would just do it on title because of concern about the cabinet confidence.

The real reason that is written on the bill is that changes were often made up to the very last moment. So the issue is the attempt to protect the ability to keep changing it before it becomes Parliament's bill.

The Chair: That's a good point, well made.

Ms. Catterall, did you have a short question?

Ms. Marlene Catterall: I think some of us, myself included, have asked you to stray over a line in terms of what's the public service responsibility and what's ministerial responsibility and accountability. If I've done that, I apologize.

But it leads to this question. If, as Mr. MacKay has suggested, this committee were to consider or recommend a policy to apply—I presume it should not be a PCO policy, it should be a cabinet policy. Is that the case?

Ms. Oonagh Fitzgerald: So you're suggesting that if this committee were to make a recommendation, it would be a recommendation to cabinet to revise the directive?

Ms. Marlene Catterall: I'm asking you if it would be appropriate. Obviously the government would either have to act on the recommendation or not. But should it be a policy of cabinet or a policy of PCO?

Ms. Oonagh Fitzgerald: I think there are elements of both. One element is very much in the hands of cabinet, and it's something cabinet members would have to put their minds to. There is also a related element, the support provided to members of cabinet by officials, making sure they're aware of what's happened recently and ensuring that they're giving appropriate advice to ministers. So to deal with it effectively, you'd probably have to deal with it on two levels.

Ms. Marlene Catterall: Hence my opening comment in this round. Because the Clerk of the Privy Council is also head of the public service, I assume his role is maybe to give guidance to cabinet, but primarily to give direction to the public service.

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If there were any clear PCO policy, it would be policy for the public service to develop.

Ms. Oonagh Fitzgerald: Correct.

Ms. Marlene Catterall: And right now, there is no policy even to guide deputy ministers in how they should advise their ministers.

Ms. Oonagh Fitzgerald: Well, to repeat, there is no specific policy on this, but there is a very specific understanding about what their obligations are in terms of their levels of security clearance for the documents they deal with. Knowledge about this issue is widespread, and there's a high level of awareness of the significance of these kinds of documents.

Ms. Marlene Catterall: Okay, thank you.

Mr. Jacques Saada: The question was very well put.

The Chair: Thank you. That completes our questioning, and I want to thank the witness. She has been drawn into a significant and potentially problematic area of the interface between the Privy Council executive of government and Parliament. We seem to have avoided the rocky shoals, and I think we've done a good job. Thank you very much, Dr. Fitzgerald.

Colleagues, we can now adjourn until Thursday morning.