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, April 4, 2000

• 1105

[English]

The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): I see a quorum.

Welcome back, colleagues.

Welcome back to our two witnesses, Ms. McMurray and Louis-Philippe Côté, legislative counsel.

Colleagues, we had asked the witnesses to come back because there were apparently some issues still to be canvassed by members on the committee. Before we begin, I thought it would be useful to recap, from the view of the chair, what we covered at the last meeting. I hope it will be helpful. I hope I'm not editing as I recap. If I am unfairly editing, I hope you'll simply indicate that and we can move on.

From what we understood at the last meeting—and I hope the witnesses are listening—what has been called “solicitor-client confidentiality” was accorded to all members of Parliament served by counsel, whether they were in opposition or in government, and that existed previous to October 1996. That's what we've heard from the witnesses.

Secondly, it's not clear to us whether at that time, that is, before October 1996, there was what may be called a complete solicitor-client relationship existing. But for our purposes here, I don't believe it's necessary to actually address that issue before October 1996. We don't have to reach a conclusion on that, so we don't need, really, any evidence on it.

But it is clear that after October 1996 what we called solicitor-client confidentiality ended with the House management decision to combine the clerks and legislative counsel in one office, to combine their functions—a kind of a one-stop shopping for that legal service for members of the House of Commons.

It is also clear, from all our witnesses, that before and after and throughout, that confidentiality was accorded by the office of the legislative counsel and clerks, including our witnesses, to all the business of members who brought their business there. That is our evidence up to now, and there's no evidence to the contrary: that confidentiality was accorded to all members' business at that office.

Now, what we don't have, as the chair sees it, is whether or not the change in that, from what we called “solicitor-client confidentiality” to what I will call “office confidentiality”, in 1996 has any practical implications for members. We're not sure. There may or may not be. We just don't have a lot of evidence on it.

And if there were to be practical implications, we don't have any evidence yet of whether any notice was given to members of the change or whether there should be notice given now, an explanation to members now. That's something committee colleagues will have to address.

We also will address whether or not there are perhaps any changes needed in the modus operandi dealing with confidentiality.

Having said that, the chair does have another issue, which, if not raised by colleagues here this morning, I will take up near the end of the meeting myself; members may well ask questions on it and dispose of it.

Having said that, because this is the second meeting on the subject I thought we would go to five-minute rounds, with the exception of Madam Tremblay. She was interested in asking some questions at the last meeting and we didn't get around to her. If she is in attendance here today and wishes to make use of a ten-minute round, the chair will allow that to her.

• 1110

Unless there is strong objection, I'd like to keep the rounds at five minutes, since this is the second kick at the cat. Having said that, then—

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): On a point of order, if by chance we finish with the witnesses early I'd like the committee to consider a draft report. Let's kick some ideas around as to what we might conclude from all of this.

The Chair: Mr. Bergeron.

[Translation]

Mr. Stéphane Bergeron (Verchères—Les-Patriotes, BQ): First of all, I greatly appreciate the comment by Mr. Knutson; however, I am not at all certain that today's meeting will be enough. I do not think we need to ask legislative advisors to appear here again, but we could perhaps invite Mr. Walsh and Mr. Marleau, so that we can get more information. I believe that all parties implicitly agreed to this at the conclusion of Thursday's meeting.

Moreover, Mr. Chairman, I may submit to your attention the names of one or two other witnesses, in light of what happened last week and what may happen today.

I really do mean one or two witnesses, Mr. Chairman. I have no intention of putting forward more names than that.

[English]

The Chair: Well, we'll consider that later. Let's get to our own witnesses.

Now I'm going to recognize members for continued questioning of our witnesses. Mr. Blaikie.

Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Mr. Chairman, I wonder if the witnesses could just address the question that you put at the end of your summary of what has happened so far—that is, what are the practical implications for members of the switch from what was called “solicitor-client confidentiality” to “office confidentiality”? And what do they think, not just in terms of some principle of the lawyer-client relationship? In their view, what are the real consequences of that change that members should be concerned about?

Ms. Diane L. McMurray (Legislative Counsel, Legal and Legislative Services, House of Commons): To just repeat more or less what we said last Thursday, I think basically we feel that by sharing these amendments with the clerks well ahead of time—in some cases it could be weeks ahead of time, depending on the amendments—it gives the clerks ample opportunity to consider those amendments in terms of whether they should be ruled out of order or in order.

That means that if, for example, you were to introduce a thousand amendments and the clerks had two to three weeks to look at these amendments, a lot of time to consider them, that would give them much more of an opportunity to weed out, if you will, those amendments that should not be moved. That means, in effect, that if you had a thousand then they could weed out 650 or 700, let's say. It means there are fewer amendments moved in the House, fewer opportunities for members to air their concerns about a particular piece of legislation.

In essence, it certainly advantages the process, in that things get moved more quickly through the House, which, to my way of thinking, is all well and good as far as the House is concerned. I don't see what particular advantage that holds for a member to push a piece of legislation more quickly through the House because there are fewer amendments to consider, fewer amendments that perhaps will hold the government's feet to the fire in a more credible way than might otherwise be the case. That's the essence of it.

Mr. Bill Blaikie: I understand that argument well, but on the other hand, what is the...? I guess the question we have to ask ourselves—I'm not really asking you—is whether the ability to determine, unless amendments are being determined to be out of order when they are not out of order.... I mean, are you suggesting that this gives people more time to come up with reasons to rule things out of order when they aren't in fact out of order?

• 1115

If in fact this lead time you've talked about actually creates a situation in which amendments that might otherwise not be ruled out of order, because there isn't the time to study them, are ruled out of order, at one level that seems a good thing, but at another level it's not.

Your argument is that the government's amendments don't get that same kind of scrutiny, and that's where the imbalance comes. It's not so much that amendments that should be ruled out of order are ruled out of order. It's that because the government's amendments are prepared at the Department of Justice and because you only become aware of them at the last minute, the government amendments aren't subject to the same scrutiny. Is that the argument?

Mr. Louis-Philippe Côté (Legislative Counsel, Legal and Legislative Services, House of Commons): That is correct. May I give an example? If I were to prepare five amendments for you for committee stage, they would be scrutinized by clerks in our office ahead of time. Let's assume two of them are out of order because they should be out of order. On the other hand, if the government introduces five amendments at the last minute in committee, I'm simply saying that because those amendments of the government being introduced at the last minute may not get enough scrutiny from the House administration, those amendments are likely going to be, due to the sheer question of time, ruled in order. Whereas the two amendments I had prepared for you would have been ruled out of order.

So you're right in saying yes, there's a difference in the way amendments are treated.

Mr. Bill Blaikie: Is a possible solution to have some kind of requirement that government amendments be guided by the House as well, in order that the same kind of scrutiny would be available, as opposed to eliminating the scrutiny? You either have equal scrutiny or you have to restore the balance somewhere. How would that work if we were to look in that direction? How do you see that working, or do you think it could?

Mr. Louis-Philippe Côté: Essentially that's—

Mr. Bill Blaikie: Regardless of whether the government would like it or not. I'm not asking for your opinion on that.

Ms. Diane McMurray: My comment on that is that generally backbenchers move many, many more amendments than government moves. They obviously have a particular job to do, and government has a different job to do. Normally government has its drafters draft the amendments so that while they may move some amendments, they're certainly not going to move the number of amendments that are moved by private members.

Addressing the issue by simply equalizing the playing field, so to speak, I'm not sure will necessarily address that, because we're being placed in a situation where on one hand we're beavering away to try every possible way to get this thing through to be able to be raised by the members. We're bending over backwards to find every possible strategy we can use on his behalf so that he can get to say what he wants to say in the House or in a committee. Then we have to turn around, five minutes later or half an hour later or whatever it may be, to the clerk who's going to decide whether or not it will be ruled in order, and essentially give them an opportunity to spend more time ruling it in or out of order.

At the same time, we may well be called upon to explain that amendment to him to enable him to do so in a better way. While that may be very attractive in terms of helping the clerk in the process in the House, as a lawyer working for the member, feeling I work for the member and believing I do, I find that a real conflict there. On one hand I'm trying to advantage the member, but I'm being undermined by having to share those amendments ahead of time. I'm not sure that goes to the best interest of the member.

When hundreds of amendments are moved by backbenchers, very few, as you all know, very few of those amendments are ever adopted—very few. Government amendments are almost always adopted. That's just the nature of our system. That being the case, one would have to ask oneself, as I asked myself when I came here, why bother having procedural rules at all? They're not going to be passed anyway in all probability. Let them all be discussed.

Well, the answer to that is that underlying the whole idea of procedure is an unstated principle or an unstated rationale that if you were to do that, you could have thousands and thousands and thousands of amendments in the House, and simply there would be such congestion that government legislation would never move ahead at all. You'd have one bill, and god knows how long you'd be discussing it if you were allowed to move 7,000 or 8,000 amendments.

So underlying the principle or practice of procedural rules is the idea of somehow weeding out so that you don't have that tremendous congestion in the House. An unstated or perhaps an unconscious attempt has to be made to somehow weed them out. That goes with the territory. And I'm just giving those clerks a better advantage to do that.

• 1120

But at the same time, I'm trying to give you the advantage of getting them through the House. My concern cannot be with whether or not they're procedurally acceptable. My concern with you is to try to get you to be able to air those amendments. Their job is to try to weed a certain number of them out so that you don't have mass pandemonium in the House. When I have to share them ahead of time and I have to basically help them understand what I've drafted, it seems to me that essentially is limiting your ability to air as many concerns as you want via your amendments.

The government doesn't have that problem. It's the government. It can air or ventilate whatever it wants to as much as it wants to, because it has every opportunity, and it knows those amendments in all likelihood are going to be adopted once introduced in the House. You're not in the same position.

The Chair: Thank you.

Mr. Gallaway, five minutes.

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

Mr. Côté or Ms. McMurray, I want to follow up what Mr. Blaikie was talking about, but I want to come at it from a different perspective.

Your relationship with members of Parliament is a matter of parliamentary privilege. That is, your office or your position exists in order to allow members, regardless of political stripe.... It has nothing to do with political parties; it arises from the position of members of Parliament. You are there to in fact facilitate their work.

The interesting point is that your office is intended to allow or to give to members of Parliament, once again regardless of political stripe, a counterbalance to the ministerial system. That is, the minister has all of the resources—the lawyers, the departments, whatever—at their disposal. Members should be given the same kinds of tools, perhaps not exactly, but the same access to the same types of services.

So when you say in fact an amendment prepared by you is vetted by clerks and they know they're ruled out of order before they're out of your computer, would you not regard that as a breach of privilege, because members are treated differently from ministers—not departments, but ministers, because it's the minister who tables those amendments? Allowing these clerks or other personnel to see these and to make a decision with respect to these amendments is in fact a breach of privilege of members of Parliament, regardless of political persuasion.

Would you like to comment?

Mr. Louis-Philippe Côté: I think the issue of breach of privilege I'll leave to the members to decide.

I could simply say we see a certain amount of conflict in the way we are asked to deal with amendments. On one hand we are asked to do the very best we can to help the MP. And may I remind you, Mr. Gallaway and all MPs here, when you come to me for an amendment, you don't have a lot of resources available. So we as lawyers and drafters try to do our very best to give you our very best amendment. At the same time, as my colleague explained, we also have to share the product of our knowledge and explain how the amendment works and also give a copy of our amendment.

I would simply want to limit my comment to the issue that we see there is a certain amount of conflict in our office in the way we do our job.

Mr. Roger Gallaway: Okay. Let's take a different tack then.

Let me go back a bit. At one point in the past there were two and a half legislative counsel. You're up to five now, as I understand it. Is that correct? Are all five in this city?

Mr. Louis-Philippe Côté: Yes.

Mr. Roger Gallaway: All right, because at one time I think one of them was on the west coast or somewhere.

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

Mr. Roger Gallaway: All right.

Let's assume a decision was made by the clerks who are your bosses to cut your numbers to one. That in itself could be a breach of privilege, because the tools would not exist then to give to members the type of assistance they need to carry out their job. So that by definition may be a breach of privilege. The people who made that decision to downsize you to one are responsible.

• 1125

If one raised that with the Speaker in the House and said my privileges have been shattered by this decision, who would then make the decision as to whether or not that was a breach of privilege?

Mr. Louis-Philippe Côté: My understanding is that it would be the Speaker of the House.

Mr. Roger Gallaway: Who gives the Speaker of the House that advice?

Ms. Diane McMurray: We work in the office of legislative drafters. As you may or may not know, there's another office that deals with members' services, and that's the legal counsel office. I would assume that they deal with things such as employment issues and parliamentary privilege. I would imagine that advice would come to the Speaker from legal counsel from that office. It would certainly not come from me.

Mr. Roger Gallaway: Okay.

I have one final question. I think there has been this confusion about solicitor-client privilege as opposed to parliamentary privilege. When you deal with an individual, it is not solicitor-client privilege, although you may think it is, but in fact it is parliamentary privilege. When you do work for a member of Parliament, the confidentiality to which we've referred here today is in fact a parliamentary privilege, as opposed to a solicitor-client privilege. There is a distinction, I think. A member has the right to know that when that amendment is tabled, either in committee or in the House, only you and the member know of it, and no intermediaries in between. What you're telling us is that is not at all the case. It could not be construed as a breach of solicitor-client privilege. I don't think it exists here. I think it's actually a case of parliamentary privilege that has been breached or could be breached.

Mr. Louis-Philippe Côté: Once again, I will only comment on the issue of solicitor-client privilege as it existed between 1985 and 1996. That's how we were hired. We were hired to do that type of job on a solicitor-client privilege basis. Once it has been broken, it is true that we do share the product of our work. That's how we view our job. That's the only comment I'd like to make at this point.

Mr. Roger Gallaway: I have one addendum to that question. I believe in 1996 a directive was issued that clerks would also draft amendments, and that was called a pilot project.

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

Mr. Roger Gallaway: Is that ongoing, or has that ended?

Mr. Louis-Philippe Côté: It ended. It was a project that lasted for four months, if I remember correctly. It occurred in the fall of 1997. As drafters, we were asked not to be part of the legislative team. We were in fact removed from that unit, and the clerks in our office were asked to draft amendments. It's very important to point out that when they were asked to draft amendments, they were not supposed to give legal advice on either the amendment or the bill. They were simply supposed to translate the amendments in terms that would be compatible with the bill. You may remember that at that time there was a question of privilege in the House by a Reform MP, and a few weeks afterwards the pilot project ended.

Mr. Roger Gallaway: Thank you.

The Chair: Thank you.

I will go now to Madam Dalphond-Guiral for five minutes.

[Translation]

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): I was unable to attend the two meetings before this one. However, I did read the blues carefully; if I understand correctly, there is now an umbrella committee working in the best interests of the State—the State being ourselves, of course.

I have some very simple questions that you will be able to answer. I imagine you have an accurate log of all requests you receive from members, both in their capacity as private members or as members involved in a minister's bill.

I have a question about that log. Somewhere, saved in memory or in writing, do you have the date on which the request is received, the nature of the request, the date on which amendments requested by the client are submitted to the client, and the date on which other members of your umbrella committee, specifically clerks, are informed of the amendments as drafted and of their intent.

• 1130

This whole issue today is related to Bill C-20. On December 13, the Bloc Québécois stated that it intended to have a number of amendments drafted in a way that insured they meant what we wanted them to mean. This was in mid-December. We were talking about some 300 amendments, which is of course a very large number.

Is there any chance that, at the time, the government was informed of the Bloc Québécois' intention? If so, I imagine that clerks examined the amendments to determine which were in order and which were not. I imagine there are objective criteria, in the interest of the State.

Here is my question: what the Bloc Québécois wishes to accomplish here, the reason we are here, is to determine whether clerks were informed, whether they knew how some amendments could be drafted so that they were in order and some so that they were out of order, and informed you promptly. Working is all very well, but when you know you are working for nothing, it is very frustrating. Everyone knows that.

That is my question. I would like to hear your answer.

Mr. Louis-Philippe Côté: I assume there is no objection to discussing Bill C-20 specifically, if I understand your question correctly.

Ms. Madeleine Dalphond-Guiral: I believe we are here because of a specific case. Each of us around this table is a parliamentarian. I am persuaded that each and everyone of us wants to ensure that elected parliamentarians maintain their privilege of receiving top-notch professional service. So, go ahead.

Mr. Louis-Philippe Côté: I may be able to answer your question in general terms....

[English]

The Chair: If I may interrupt, Mr. Côté has suggested to Madame Dalphond-Guiral that in replying to her question he might be expected to provide information that up to now would have been confidential between either Madame Dalphond-Guiral or her party and the counsel. Ordinarily, one would not make public something that had been confidential unless the party who had the benefit of the confidentiality agreed that it would be made public.

As chair, I would prefer not to have to deal with things that were previously confidential. But if Madame Dalphond-Guiral and her party—and she would have to purport to represent all of her colleagues in her party—wished to waive explicitly the confidentiality and to allow the witness to reply and if the witness agreed to allow the confidentiality to be waived, then I'd be happy to allow the questioning to go on. But I don't want to do that unless there is a clear indication from Madame Dalphond-Guiral on her own behalf and on behalf of every single one of her colleagues in the Bloc Québécois that the confidentiality previously accorded to her business with Mr. Côté or Ms. McMurray is expressly waived, at least for the purpose of this meeting. Once it's made public in this meeting, Canadians will know about it. I would invite Madame Dalphond-Guiral to address that.

[Translation]

Ms. Madeleine Dalphond-Guiral: I believe that the goal of the House in accepting the motion before us, a motion which puts forward this notion, is to shed light on the issue. We all have good reason to believe that confidentiality—at least in the past few years—is not what it once was. If you are worried, Mr. Chairman, we can do this in camera. Then everything will remain confidential, but we will have the tools to know exactly what is going on.

• 1135

[English]

The Chair: Madame Dalphond-Guiral, the call is yours. I've placed the ball in your court. If you wish to expressly waive, on your own behalf and that of your colleagues, the confidentiality that's been accorded your business, then do it. Otherwise, we will avoid the issues you've put to the witness.

[Translation]

Ms. Madeleine Dalphond-Guiral: My colleague is much less difficult than I. He says that, in the end, we don't really need to go in camera. It is very clear that, when Ms. Tremblay submitted her question of privilege to the House, she did it for the whole party, as well as for all parliamentarians. I think that the witnesses can certainly answer the questions that I asked them without my being excommunicated by my party.

[English]

The Chair: All right. I'm going to ask you a leading question. Are you now expressly, on your own behalf and that of every one of your colleagues in the Bloc Québécois, waiving the confidentiality that was accorded your business with the legislative counsel? Yes or no?

[Translation]

Ms. Madeleine Dalphond-Guiral: That's nice. Absolutely, Mr. Chairman.

[English]

The Chair: But do we have an answer?

Mr. Stéphane Bergeron: The answer is tout à fait, monsieur le président.

The Chair: Yes.

[Translation]

Ms. Madeleine Dalphond-Guiral: Absolutely.

[English]

You understand that, I'm sure.

[Translation]

The Chair: OK.

Mr. Côté.

Mr. Louis-Philippe Côté: A general answer could perhaps go a long way in explaining things. In our office, Ms. Dalphond-Guiral, when we receive a request, it is immediately transmitted to the office's legislative clerks, either by me or by the person who receives the faxes. A photocopy is made and it is given to a clerk in our office.

Once I have finished drafting an amendment, we give a copy to the client—the member of Parliament—and immediately, at the same time, we give a copy to the clerks in our office. Therefore, what would have happened in the case of the Bill C-20 is what usually happens for all the amendments that we draft.

You asked me whether the government was informed of the fact that we receive requests. As far as I know, it is not. We receive the requests and we make a copy for our clerk colleagues. Is the clerk informed when we receive the request? Yes, definitely. We immediately provide a copy to the clerks in our office.

You asked me when the clerks tell us whether or not the amendment is in order. I would say that there are several ways that events can unfold in our office. We are not always informed of the fact that an amendment is deemed to be in order or out of order. There are several reasons for this, but the result is that we are not always informed.

Ms. Madeleine Dalphond-Guiral: If you had a suggestion to make, would you ask that, as soon as the clerk is convinced that an amendment is out of order, he would let you know quickly? In the case of the amendments in question, at one point, there was talk of replacing "separation" with “secession”, or with something similar, and that is what was done. We know that the amendments, even with the changes that were expressly recommended by the clerk, were still ruled out of order. Consequently, there were probably other good reasons that occurred to the clerk after he had studied them.

As far as close collaboration is concerned, what you are telling me leads me to think that close collaboration tends to go in one direction without there necessarily being any feedback. Am I mistaken, Mr. Côté?

Mr. Louis-Philippe Côté: We could say that, insofar as we receive a response that I would describe as procedural as soon as possible, we would perhaps, in some cases, be able to redraft the amendment.

• 1140

However, I must point out that, in many cases, things happen at such a phenomenal speed that it is far from certain that we would be able to redraft the amendment, even if we received this procedural opinion. In some cases, however, this may be useful.

Ms. Madeleine Dalphond-Guiral: Thank you.

[English]

The Chair: I have Monsieur Bergeron and Mr. Pickard. I think I'll go to Mr. Pickard first, then come back to Mr. Bergeron.

Mr. Jerry Pickard (Chatham—Kent Essex, Lib.): Thank you, Mr. Chairman.

In looking at this, I'm gathering a sense of real frustration from legal counsel over the role that's going on. Maybe I'm misinterpreting, but you seemed to mention there are many government amendments and they all seem to go through, but far more private members' amendments, and one way or another they get sidetracked. That may well be a problem that's visualized by you and visualized by many people in the system.

I guess there's a balance that has to be maintained. The balance is that when the government's putting forth an amendment or a member's putting forth an amendment, the real goal is to improve the bill, improve the legislation so that it serves the Canadian public in a much better way. I think the reason we're at this juncture is oftentimes amendments don't necessarily get put forth by people. We don't put motivation on why amendments are put forward, but it has become a case in the last short while that many amendments are put forward and I really have difficulty grasping how they improve the structure.

When you're dealing with amendments, I know you can't judge the reasoning why amendments are put forth. But as you previously mentioned, 300, 500, 2,000 amendments can well be used to slow down the process of the House rather than allow free flow of information. Quite frankly, I would suggest that if those kinds of blockages occur, it is my judgment that it's not in the best interests of Canadians, it's not in the best interests of individual members of Parliament, it's not in the best interests of the government or anyone else I'm aware of.

What is your solution to this very difficult problem? Do you have ideas by which you can look very fairly at private members moving amendments, parties moving amendments, government moving amendments, making certain that the best interest is served by the Canadian public and at the same time the best interest is served to Parliament to make sure that Parliament will not have its hands tied and be handcuffed through an inordinate use of putting amendments forward to curtail business?

Ms. Diane McMurray: Mr. Pickard, I think my response to that would have to be the following. While all Canadians can be sympathetic, business must get done in the House at some point, obviously, or we don't have government. As a person working for an MP, I can't be sympathetic to that. However, it is a reality of life: legislation eventually has to be gotten through the House if we're going to have various problems addressed in this country.

The problem I'm having is if there is a problem with the process, if for some reason the process is breaking down—I'm not saying it is, but if it is—and if there's a problem in the House, it seems to me the appropriate way for the government to address it is up front, forthrightly, in the House, change the Standing Orders, whatever it takes. But do it up front, in front of all members, and not try to use an administrative system to basically limit, if you want to put it as Mr. Gallaway called it, the privilege of the member behind closed doors in order to address a problem that should more appropriately be addressed in the House through, for example, a change in the Standing Orders. That's the problem I'm having. We're sort of being used in this, in a sense.

• 1145

Mr. Jerry Pickard: I see the function of this committee—and maybe I'm wrong—to bring out the concerns to the public, deal with the issue up front, and put forth recommendations that would change the system to facilitate both needs we've talked of here today.

Ms. Diane McMurray: I agree, but I don't think it should be done to the detriment of the few powers that members have in the House or in committee. That's my feeling.

Mr. Jerry Pickard: What would be your recommendation to make sure we safeguard members' privileges or support and still facilitate reasonable functioning of Parliament?

Ms. Diane McMurray: That's what the Standing Orders are there for. The government is the executive. It's the majority; it controls the House. It can decide what the Standing Orders will be. If it has a problem of process, with too many amendments, let it address it through the Standing Orders. Then they have to do it in the House. It has to be discussed in the House. All Canadians get a chance to find out how you should be limited, if indeed you should be limited, in the number of amendments you move. That can be addressed by the government through the process of changing the Standing Orders.

I think what's happening is they're trying to address the problem of process by limiting the few powers the members have, by forcing us to share amendments in hopes that the process will somehow be facilitated through an administrative.... I think that's inappropriate, because I think members are suffering in order for the government to move the process more quickly through the House. If the government wants to do that, it has every tool at its disposal to do that. Do it up front; do it in the House. Change the Standing Orders. There can be an open debate. The government can decide what will be done.

The way it's functioning now, it's being done, as I see it, behind closed doors, so to speak. I think that's inappropriate, and I don't think it goes to serving the members at all. I think they're being sacrificed in this, to be perfectly candid.

Mr. Jerry Pickard: Thank you very much.

The Chair: Thank you.

Monsieur Bergeron, then Mr. Strahl.

[Translation]

Mr. Stéphane Bergeron: The Clerk, Mr. Marleau, and Mr. Walsh told last week that they were unable to find, anywhere, any trace of the existence of a quality of privileged confidentiality in the solicitor-client relationship, in the relations surrounding the professional work of a legislative council for a member of Parliament.

You indicated that the person who had hired you stated clearly that the client was the member who had made the request and that consequently, you were required to respect confidentiality. Is that right? Is that correct?

Mr. Louis-Philippe Côté: Yes, precisely.

Mr. Stéphane Bergeron: Who is the person that hired you?

Mr. Louis-Philippe Côté: Mr. Marcel Pelletier, who was the law clerk at the time.

Mr. Stéphane Bergeron: Where is Mr. Pelletier today? Do you not know?

Mr. Louis-Philippe Côté: He no longer works for the House of Commons.

Mr. Stéphane Bergeron: He no longer works for the House of Commons. When did Mr. Pelletier leave?

Mr. Louis-Philippe Côté: If my memory serves me well, around 1989 or 1990.

Mr. Stéphane Bergeron: Very well. Do you know the reasons surrounding his departure?

[English]

Ms. Diane McMurray: Are you asking if I personally know why he left?

[Translation]

Mr. Stéphane Bergeron: Yes.

[English]

Ms. Diane McMurray: Yes.

[Translation]

Mr. Stéphane Bergeron: According to you, why did he leave?

[English]

The Chair: Mr. Bergeron, you've asked a witness to answer here, and whatever she says is going to be hearsay of the issue you've asked about. In other words, the reasons why somebody left the employ of the House ten years ago we could always find out from the person who left, rather than asking somebody else what the person's motivation was ten years ago.

Secondly, on the reason why somebody left, I'm looking for relevance here on the issue of confidentiality. If there's a connection, I'm sure you'll make it quickly. But it may be unfair to ask the witness to give that kind of an answer.

[Translation]

Mr. Stéphane Bergeron: Mr. Chairman, I understand your concerns very well and I respect them. However, we know that these legal counsellors were hired and that their job was described in a certain way. The law clerk in charge of the service has since left, and the way things are done have since changed. There may be no link between these two changes, but there may well be a link, Mr. Chairman.

• 1150

That leads me to say that if we cannot ask parliamentary counsel about this issue, then perhaps we should ask the person in question, Mr. Pelletier. We could ask him to come and explain how he perceived the work of parliamentary counsel, and the reasons why he left, if he is willing to share this with us, and if his departure is linked, in any way whatsoever, to the issue that we are currently discussing. It is my hunch that there may be a link, Mr. Chairman.

That being said, since I understand that you will not allow the witnesses to answer the question, I can only conclude that the witnesses do have an opinion on the subject, and this confirms my intention, Mr. Chairman, to ask that we call Mr. Pelletier to testify and shed some light on this aspect of the problem.

There may be no official traces of this lawyer-client relationship. However, we have found, completely by accident, in a document prepared by the Library of Parliament entitled "Drafting Private Members' Bills", dating back to 1988, the following innocuous comment on page 4:

Legislative services are offered by lawyers from the Office of the Law Clerk and Parliamentary Counsel, who are well-informed legislative counsel.

I'll go on. This is where it becomes important.

The provision of their services is based on a lawyer-client relationship.

This is from a House of Commons document, prepared by the Library of Parliament.

Thus there may be no legal or regulatory trace, but the House officially recognized the existence of a relationship of confidentiality similar to the lawyer-client confidentiality, at least up until 1988. This is recognized in a Library of Parliament document.

Can you tell us why this relationship which, until then, was recognized, would have been changed? What was the justification used to change this when this was done?

Mr. Louis-Philippe Côté: In 1996, when the change was made, if memory serves me well, we were told that it was to streamline resources and to share information in order to allow better teamwork at the House of Commons.

Mr. Stéphane Bergeron: With respect to information sharing, I would like to come back to what I've called this umbrella of confidentiality, since Mr. Walsh testified, because it is not exactly clear who is covered by this umbrella and in what circumstances. You will remember that I already asked you a question about this last week, but I'd like to pursue this a little further still. Is Mr. Walsh himself covered by this umbrella?

Mr. Louis-Philippe Côté: The umbrella of confidentiality?

Mr. Stéphane Bergeron: Yes.

Mr. Louis-Philippe Côté: I presume so, yes.

Mr. Stéphane Bergeron: You presume so. So, we don't know if Mr. Walsh himself is informed of the nature of the amendments.

Mr. Louis-Philippe Côté: Personally informed, of each of the amendments?

Mr. Stéphane Bergeron: Maybe not each of the amendments, but is he authorized to receive information regarding the amendments?

Mr. Louis-Philippe Côté: Since he is the director of the office, I presume so.

Mr. Stéphane Bergeron: Is Mr. Marleau informed of the amendments?

[English]

Ms. Diane McMurray: Well, to the extent, for example, that once an amendment is drafted and given to the clerk in our office, that clerk often acts in an advisory capacity only. If that clerk has problems, he or she will take it to a superior clerk, and if that clerk has problems, Mr. Marleau is the ultimate authority in terms of sorting out the problem procedurally. In that sense, I suppose he could certainly know of amendments. Other than that, I'm not aware of anything else.

[Translation]

Mr. Stéphane Bergeron: So, ultimately, there are many people here at the house, who may be informed of the nature of the amendments.

Mr. Louis-Philippe Côté: My understanding of the work of the clerks of our office and of the clerks in general, if I'm not mistaken, is the following. The clerks from our office always give advice, either to the Speaker, or to a committee chair. However, they may have their advice revised by their superior and so on. Thus, there may be a number of people involved.

• 1155

Mr. Stéphane Bergeron: Who could be informed.

The Chair: Thank you, Mr. Bergeron.

Mr. Stéphane Bergeron: Thank you.

[English]

The Chair: Now Mr. Strahl, then Ms. Parrish.

Mr. Chuck Strahl (Fraser Valley, Canadian Alliance): Thank you.

I just have a few questions I don't think we answered last week, and it would be useful for me in order to understand how the system works, perhaps.

Prior to 1996, who was your boss—not the individual, but what was the position you answered to?

Mr. Louis-Philippe Côté: Would you repeat your question?

Mr. Chuck Strahl: Prior to 1996, prior to the change in the October 1996 directive, who did you answer to? Who was your boss?

Mr. Louis-Philippe Côté: Mr. Walsh.

Mr. Chuck Strahl: Mr. Walsh—and that stayed the same after...?

Mr. Louis-Philippe Côté: I believe Mr. Walsh—and once again, please excuse me if my answer is perhaps not exactly correct—came to the House in 1991. Mr. Walsh came to the House in 1991, so from 1991 to 1996, and still today, it is Mr. Walsh who was and is my director.

Mr. Chuck Strahl: Okay. So none of that changed.

Who chooses how you prioritize your time in the office, and did it change in 1996? You have a busy load on your shoulders, I think, but who chooses? If there are a thousand amendment ideas that come in, or a private member's bill or something else, who chooses which is the priority? Do you just choose, or does Mr. Walsh choose? How does that work?

Mr. Louis-Philippe Côté: As far as the general orientation of the office is concerned, it is set up by Mr. Walsh and then we are assigned files in the office and it goes from there.

Mr. Chuck Strahl: So normally you get an assignment from Mr. Walsh.

Mr. Louis-Philippe Côté: Yes, but also at times, like currently, the five lawyers assign among themselves the private members' bills. We've found that it has been a system that has worked well so far.

Mr. Chuck Strahl: Okay. There have been changes, like the additional staff in your office. More people have been added. Why was that? Was there any explanation made? It's quite an addition, because you were expected to do a certain amount of work before and then they added a bunch more resources. Why is that? Do you know?

Mr. Louis-Philippe Côté: Well, actually, no explanation was given to us. The three persons who joined the office just arrived.

Am I pleased with this? Absolutely. Before their arrival we were two on-site lawyers to draft a lot of private members' bills and all amendments. We were helped by a person from the justice department at one point, who was also an assistant manager in our office, so at one point we were 2.5 lawyers drafting amendments.

Mr. Chuck Strahl: So what I'm kind of wondering about is if Mr. Walsh and the other clerks were reading the tea leaves a little bit already, and did they make the change...? I guess we'll have to ask Mr. Walsh. You wonder if the change was made because they could see that there had been numerous points of order in the House and so on. Were they responding to that? Were they trying to get more resources for legislative counsel so that the clerks could back off from it? Do you have any idea?

Ms. Diane McMurray: Mr. Strahl, all I can say is that when I came here in 1989 our mandate was to draft private members' bills, to draft amendments, and to go to committee to serve members, and we did all of those things. On a continuum, the last big committee I can remember being at—both my colleague and I—was the gun control legislation, with Bill C-68. After that we were taken out of committee and we just did private members' bills and amendments.

We continuously, continuously...almost a day didn't go by that we didn't say to Mr. Walsh, “We need more legal resources in this office. We are inundated.” Even with Mr. Clegg, who worked out of B.C. and was a contract lawyer, and a few other contract lawyers helping us, it was just incredible the amount of work that was coming down. We felt we had to do as good a job as we possibly could. It wasn't a question of just turning out any piece of garbage; that just wouldn't do. So we asked for more and more resources. We didn't get more resources.

• 1200

We ended up with essentially two on-site lawyers in the premises basically carrying all of the amendments, because contract lawyers essentially didn't do amendments—it just didn't work. So we had to do all of the amendments for several years, a good portion of the private members' bills, and go to committee. Then we were taken out of committee because we were told that we just couldn't resource those committees.

We now have more lawyers. As far as I know, those committees are still not being resourced, even with the more lawyers we have. And we were not told; we were simply introduced to the lawyers on the day they arrived here.

Mr. Chuck Strahl: Again, just so I'm clear on this, has there been...? First of all, on the fact that you no longer go to committees, was there a memo or a directive, or just a discussion? How was that decision made? Was it just an organizational “this is how you'll spend your time” thing? Was there anything formal on that?

Ms. Diane McMurray: I'll allow my colleague to answer, because he has a better sense of these things than I do.

Mr. Louis-Philippe Côté: The issue of committees has been a long process in our office. I would say that between 1994 to the end of 1995 we were gradually removed from committees. We received several memos to that effect—that at the end of the process we were no longer going to committees. The last committee I remember having participated in was the gun control one. The process took place over two years and several memos were issued.

The Chair: Thank you, Mr. Strahl.

Mr. Chuck Strahl: If I could just ask this one last....

The Chair: It has to be short.

Mr. Chuck Strahl: It will be.

There have been some changes, obviously, with the addition of the new people on staff. Are you aware of any other organizational changes that are going to affect this issue we're dealing with today as far as both your ability to broaden your work, including the work in committees, or any other organizational changes coming with the increase in staff are concerned?

Mr. Louis-Philippe Côté: There has been a very important change in our office. The two legal offices of the House—i.e., the legislative office, and the legal office that used to be under the supervision of Mrs. Davidson—were sort of joined very recently. Our manager invited us to acquire competence so that we could work in both offices. One deals with legislation while the other one deals with general legal work. But in the course of that meeting we had, we were informed that the solicitor-client privilege that existed under the management of Mrs. Davidson was no longer going to be upheld.

The Chair: Thank you.

I go to Ms. Parrish, then to Mr. MacKay.

Ms. Carolyn Parrish (Mississauga Centre, Lib.): I hope you're going to give me a little bit of leeway, because given that this is a two-meeting question period.... I was on the first list and didn't get to ask questions, and you're into second rounds with some, so if you could give me a teeny bit of leeway here, I'm trying to pack all my questions into one.

First of all, I'd just like to make a comment. I think we have two distinct issues going on before us. One is the reference on confidentiality, which is what we're supposed to be doing. The second is the operation of the department represented by the two solicitors here, which I think we're on very shaky grounds.... But since you've opened it and you're allowing it to go on, I'd like to make some comments there as well.

I'd like to shed some light on Mr. Strahl's question and perhaps assist the two solicitors to know that something didn't just come flying out of the blue. When we were elected in 1993—this Parliament—you had over 200 new MPs. Many Reform members, many Bloc members, and many Liberals were new. A lot of us came in not knowing that private members' bills didn't have a great track record of success, so many came in keen to do private members' bills. As I was chairing the private members' committee in 1996, we had a huge uprising on our hands because people were not getting their bills drafted in time.

So we did a series of round tables. Mr. Langlois was the Bloc representative. We did them through the spring and the fall of 1996. I have asked Jamie to find me the minutes, and he brought me the wrong set. It's not his fault—I wasn't clear enough. But we will find them. Mr. Marleau appeared in front of us, and part of his testimony was this: We have hundreds of new MPs drafting legislation, and my department—that's you people—is just inundated, they're drowning, so we're going to try to come up with a couple of solutions that might work.

One solution he suggested at the round table was to have the clerks work with the lawyers so that they could get rid of some of the extraneous stuff much more quickly before it came back to the members with explanation.

• 1205

I would assume—I'm not asking for a comment yet—I would assume this magical date of May 17, 1996, is when he tried to implement that. We've all agreed this is a very important date to you, and I think that's where it came from. I will pursue it with Jamie and the minutes.

Some of those meetings were in committee and some were in the open, but just in case there's any doubt, I want to review that 200 new MPs from various parties all came to do private members' bills, and your department really was drowning. You were in very bad shape, and Mr. Marleau recognized that. So when he appeared before us, one of three suggestions he made was to have clerks work with you. That is just my recollection of it, and I will get the minutes that demonstrate that.

In case there's a feeling that there was some sinister, from-on-high decision to freak everybody out and throw clerks in there so that we could monitor you, it was really intended to help. It was coming out of that private members' committee, and the minutes I have here show 15 people from various parties—some of the meetings had 26 and 28 people—who were very keen on private members' legislation and were really being stymied, as you were, in not having enough time to get their stuff through quickly. So that's my explanation for May 17, 1996.

The second question I want to—

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Well, Mr. Chair, with the greatest respect, are we hearing from a witness, or is this a line of questioning?

Ms. Marlene Catterall (Ottawa West—Nepean, Lib.): It's a preamble to a question.

Ms. Carolyn Parrish: I'm doing a preamble to questioning, just as you did last week when you said “I'm leading you with my question”. Okay?

Mr. Peter MacKay: Okay, ask a question.

Ms. Carolyn Parrish: Don't interrupt me. I didn't interrupt you.

Mr. Peter MacKay: I asked the Speaker, on a point of order—

The Chair: Okay, okay, let's—

Ms. Carolyn Parrish: Mr. Chair, could I do my questioning without interruption?

The Chair: I was hoping the intervention by Mr. MacKay would be brief, and fortunately it was.

Ms. Carolyn Parrish: I would prefer Mr. MacKay not interrupt at all.

The Chair: Carry on. Carry on, Ms. Parrish.

Ms. Carolyn Parrish: Thank you. I'm going to try.

When I got on this committee many years ago, I was at first reluctant, because I'm not a lawyer, and this is a committee made up of lawyers.

I have found the questions somewhat leading at times, but what is coming through very clearly is you are feeling, because you are in the midst of a grievance, a little bit under siege. I think you've used the terms “under siege” and “stab in the back”. Is it fair to say that because you're in the middle of a grievance, you feel very nervous being here and you feel a bit under siege generally in your day-to-day existence?

Ms. Diane McMurray: I feel under siege not because I'm at a grievance; I feel under siege for the reasons I have to be there at the grievance.

Ms. Carolyn Parrish: But the grievance does have something to do with your outlook.

Ms. Diane McMurray: No, I don't think it does. The grievance is just an outward sign of what we've been forced to do. We're under siege because, in my opinion, what's been happening over.... Documentation has flown back and forth and discussions have taken place over a period of five to six years here. This is not a period of a week. A lot of things have happened.

Essentially what's under attack to a great extent here is not just your solicitor-client confidentiality. As I said on Thursday, this is simply the tip of the iceberg. What's going on here is basically what our role should be vis-à-vis you as a—

Ms. Carolyn Parrish: Let me interrupt you for a moment. Is the answer yes or no to whether you, over the last twelve months, for whatever reason, have felt under a lot of stress?

Ms. Diane McMurray: I don't think “stress” is the right word. I'd say I feel under siege, because I'm trying to work for you, maintain your privileges, and I feel I'm under attack.

Ms. Carolyn Parrish: Okay. I just wanted a yes or a no.

Ms. Diane McMurray: Yes.

Ms. Carolyn Parrish: Thank you.

When you are drafting amendments and private members' bills, do you have a rough tally in your head, percentage-wise, of how many are for our Liberal backbenchers and how many are for opposition? You don't keep those two separate in your head?

Mr. Louis-Philippe Côté: We don't. We have some people in our office who do.

May I offer a comment?

Ms. Carolyn Parrish: Yes, please.

Mr. Louis-Philippe Côté: Clerks in our office have nothing to do with private members' bills. We receive the requests for private members' bills ourselves. We draft the bills. We don't show them to clerks, and they don't give procedural advice on private members' bills, because they are private members' bills.

Ms. Carolyn Parrish: So they give procedural advice on amendments?

Mr. Louis-Philippe Côté: On amendments.

Ms. Carolyn Parrish: But both sets of legislation we're drafting go into the same department? Amendments go to you as well as private members' bills?

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

Ms. Carolyn Parrish: You deal with two problems.

Just yes or no, do you feel it's unprofessional for lawyers in your department to be combined, working with clerks? Yes or no?

Mr. Louis-Philippe Côté: The answer is not just a yes or a no, so I cannot answer this one.

• 1210

Ms. Carolyn Parrish: Ms. McMurray, can you answer that one?

Ms. Diane McMurray: I'd have to say the same thing.

Ms. Carolyn Parrish: Can you give a very brief answer? Because the chairman is going to cut me off at some point, and I really have a couple of more questions. Briefly, can you tell me how you feel about it?

Mr. Louis-Philippe Côté: It simply creates a conflict in the sense that we do the very best we can for MPs, and on the other hand we also have to share the information with our colleagues.

Ms. Carolyn Parrish: Okay. Of the private members' bills and the amendments you draft, let's say over the past five years, what is your rate of success in the House? What percentage are successful?

Mr. Louis-Philippe Côté: Roughly, it's low.

Ms. Carolyn Parrish: Very low?

Mr. Louise-Philippe Côté: I would say it's very low.

Mr. Chuck Strahl: I'd like to make a point of order, if I could. You can't ask a procedural lawyer to say whether an amendment has been successful. Whether it's been defeated or accepted is not the issue. The issue is, was it put forward and did you get your day in court? If by “successful” you mean it passed, that's a different thing. “Successful” from an opposition point of view is often that it wasn't passed, but it got debated.

So I don't know if you should say it wasn't successful. The work was successful.

The Chair: All right. I don't want to have a—

Ms. Carolyn Parrish: I concede the point, so we can go on.

The Chair: Maybe we should conclude, because we've—

Ms. Carolyn Parrish: Well, I'm sorry, Mr. Chairman; I've been interrupted a couple of times and lost my train of thought, and I would like to continue.

The Chair: Do you want to put one more question?

Ms. Carolyn Parrish: I have a couple of more questions.

The Chair: We'll let you put one more, Ms. Parrish, and then we have to.... Try to compress two into one. How's that?

Ms. Carolyn Parrish: Can I get a second round?

The Chair: If we move quickly, you probably will have a second round.

Mr. Peter MacKay: Hold this for the second round.

Ms. Carolyn Parrish: You're on your third or fourth.

Mr. Peter MacKay: No.

Ms. Carolyn Parrish: Very quickly, what I've heard over the last two days is you don't believe there's favouritism and you don't believe there's lack of confidentiality between parties. Is that accurate?

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

Ms. Carolyn Parrish: Do you believe that if we restored the practice from before the magical day of May 17, 1996—i.e., the confidentiality you practised before that—the system would work well and you'd be much happier?

Mr. Louis-Philippe Côté: It's not a question of us being happy. I'm simply saying if you were to restore the system, there would no longer be two levels of speed at which amendments are ruled in or out of order, the government amendments versus the backbenchers' amendments.

Ms. Carolyn Parrish: Okay, thank you.

I'd like a second round.

The Chair: Thank you, Ms. Parrish.

Mr. MacKay, then Ms. Catterall.

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

I believe Ms. Parrish has framed the issue quite nicely, because she has stated there are two issues here: confidentiality and the operation of the process. But what I'm hearing through your evidence is these two are very much intertwined. For the system to work as it should, confidentiality has to be an aspect of that, and it was, prior to...I think Ms. Parrish may have referred to it mistakenly as May, but I believe the date was October 17, 1996. That was the day solicitor-client privilege died.

Ms. Diane McMurray: That's correct.

Mr. Peter MacKay: And that came to you as a direct order from Mr. Walsh.

Ms. Diane McMurray: That's correct.

Mr. Peter MacKay: And it's fair to say that, keeping in mind what you've just told us, Mr. Côté, with respect to confidentiality, once you've shared the information with the clerks, you cannot guarantee what the clerks do. We have to ask the clerks.

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

Mr. Peter MacKay: So essentially you can't speak as to what the clerks do with that information.

Mr. Louis-Philippe Côté: That's correct. May I just add, however, that as has been pointed out a few times in previous testimony, clerks and lawyers and essentially everybody working on the Hill have to treat matters in a confidential manner.

Mr. Peter MacKay: Sure, but as far as confidentiality goes, if there is no solicitor-client privilege between you and a member, you certainly can't speak to any interaction the clerks might have with, for example, clerks of committees or those who are sitting as chairs of committees. So once it's out of your hands, you can't control that information. That's what I'm suggesting to you. Do you agree with that?

Ms. Diane McMurray: Of course we can't control the information.

Mr. Peter MacKay: And you said, I believe in your previous testimony, you feel there is very much a different culture between clerks and lawyers on the Hill, or there was prior to 1996. Now you're very much intertwined in your office.

Ms. Diane McMurray: Yes, that's correct.

• 1215

Mr. Peter MacKay: So your role has.... Well, there's no other way to put it: the role you played prior to 1996 has changed significantly with regard to your ability to give assurances as to confidentiality. Is that correct?

Ms. Diane McMurray: Yes.

Mr. Peter MacKay: Further to that, if there is no separate and confidential database for legal services, which are the services you work with, that is a potential breaking down of the system. If you get information from a member and you put it in a data bank and somebody else who is not within your control and who is outside of your operation and your duties has access to that, again that's a breach of confidentiality.

Mr. Louis-Philippe Coté: As lawyers, we do not control the data bank. The data bank is used by our office and by the people who operate the data bank. However, it is on a shared drive, so some people have access to it. We don't control that.

Mr. Peter MacKay: So it's not watertight. Information is not confidential.

Ms. Diane McMurray: No. It's a shared drive, so it couldn't be.

The Chair: Mr. MacKay, I hope you'll agree that you are to some extent leading a little bit here. Twice you've asked the witnesses to confirm that there's no confidentiality, so you can't guarantee the confidentiality. This is in the face of evidence we already have from both witnesses that there is no instance of a breach of confidentiality.

Mr. Peter MacKay: But they can't make assurances—

The Chair: So you're urging upon them a kind of conceptual breach of confidentiality, when they've already given evidence that there has been no breach of confidentiality. I hope you'll allow that. Provided you acknowledge that, we can continue.

Mr. Peter MacKay: I appreciate you qualifying that on the record, Mr. Chair.

Ms. Diane McMurray: Mr. Chairman, a point of clarification. We wouldn't ever want to mislead this committee. When you say we testified that there was no breach of confidentiality, indeed we did testify to that in the context of amendments.

Mr. Peter MacKay: Let's explore that. What other areas do you feel—

Ms. Diane McMurray: We also draw up private members' bills.

Ms. Marlene Catterall: Do you share those with the clerks?

Sorry, Mr. Chairman.

The Chair: Mr. MacKay, you have the floor.

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

That's a good question. Do you share with the clerks information with regard to the drafting of private members' bills?

Mr. Louis-Philippe Coté: There's no need for sharing this information.

Mr. Peter MacKay: Do they have access to what you've drafted in terms of private members' bills?

Ms. Diane McMurray: I suppose they could. It's a shared drive.

Mr. Peter MacKay: So if you enter into the drive something you've drafted for a private member, clerks could potentially access that.

Mr. Louis-Philippe Coté: The technicality of the system might be such that I don't think....

Ms. Diane McMurray: Perhaps I can make this clear.

The question that was put to us on Thursday by Mr. Kilger, I think, was with regard to whether or not there had ever been a breach. I believe you put it in that way, Mr. Kilger. At that time we were speaking in the context of the amendments, not private members' bills. We answered that to our knowledge there had never been a breach in terms of amendments.

Mr. Bob Kilger (Stormont—Dundas—Charlottenburgh, Lib.): If I were given the liberty by the chair on the basis of Mr. MacKay's intervention, I would ask the same question on private members' bills.

The Chair: Mr. MacKay, go ahead.

Mr. Peter MacKay: Thank you.

Do you want to answer that question?

Ms. Diane McMurray: Yes. I'll start, but perhaps I'll let my colleague pick up, because he has more intimate knowledge of this.

I shared Mr. Kilger's concern that he wanted to make sure the perception was that vis-à-vis amendments, the confidentiality did not go outside the office. In fact there was an occasion when several files were sent to drafting students at the University of Ottawa, who were under the tutelage of one of the senior drafters over at the Department of Justice. He taught the drafting course. They were not in the employ of the House of Commons.

Perhaps I'll let my colleague take it from there, because he has more intimate knowledge of what happened.

Mr. Louis-Philippe Coté: My understanding is that the MPs were not advised of that change. You may recall that there was a point of privilege on this issue in the House that was brought by Mr. Gallaway. Eventually we were given back those files. They were taken away from, as Mr. Gallaway suggested, the public domain, and we were given back those files. That perhaps may have been a breach of confidentiality.

• 1220

Ms. Diane McMurray: There was no perhaps; it was a breach of confidentiality, because these people did not work for the House, they were not contract lawyers, and they were not permanent lawyers. And in essence they did not waive their privilege. As you know, solicitor-client privilege can be waived by the client. The client never waived it because the client was never told that this was being done.

The Chair: Just for the record, would you please put a year on that occurrence?

Mr. Louis-Philippe Côté: It was perhaps in October 1997. I could check my files.

The Chair: That's good enough. Thank you.

Mr. MacKay, we've just gone over seven minutes.

Mr. Peter MacKay: With the greatest respect—

The Chair: We've had a few interventions. I'll allow you another question.

Mr. Peter MacKay: Thank you.

I want to go back to something very basic here. You would agree that there's a big difference between solicitor-client privilege and confidentiality. With regard to solicitor-client privilege, I know of recent instances when not you personally but members of the legal counsel office have offered opinions and services based on the fact that it was to be solicitor-client privilege.

I'm hearing that there's a different mentality, that there is no longer this solicitor-client privilege or it cannot be extended to members. A change occurred on October 17, 1996, and, as I understand, members were not advised of that change. You are now operating outside the parameters of solicitor-client privilege when you interact with members of Parliament. Is that correct?

Ms. Diane McMurray: Yes.

Mr. Peter MacKay: Please disagree with me if you feel it's necessary, but you're telling us that under the current system you feel—and this is my word—compromised in your ability to do your job effectively when you cannot extend to members of Parliament, both government and opposition, this solicitor-client privilege. It's compromised in that you now have to share that information with clerks, and you can no longer guarantee that they will not share that information with someone else. That's my speculative question.

Mr. Louis-Philippe Côté: Since 1996 it's no longer a compromise, because it has been removed.

Mr. Peter MacKay: But were members advised?

Mr. Louis-Philippe Côté: I'm sorry....

Mr. Peter MacKay: Are members advised that it does not exist?

Mr. Louis-Philippe Côté: I don't believe that at the time there was any general memo sent to members of Parliament. I recall an answer by my colleague.... The reason is that from time to time, when I'm dealing with either members themselves or their employees and they ask me if it's solicitor-client privilege, I have to disabuse them of that. In fact we were asked to mention that.

Mr. Peter MacKay: So you were told not to.

My final question, Mr. Chair, has to do with Suzanne H. Foy. Is she a new member of this team?

Ms. Diane McMurray: She's one of the new lawyers, yes.

Mr. Peter MacKay: She's a legal counsel.

Ms. Diane McMurray: Yes.

Mr. Peter MacKay: Would it surprise you to know that I have a letter dated 17 February 2000 wherein she extends to a member of the House of Commons solicitor-client privilege on the guarantee that the information provided will be confidential? Does that surprise you?

Ms. Diane McMurray: What's the date of that letter, Mr. MacKay?

Mr. Peter MacKay: It's February 17.

Ms. Diane McMurray: No, it wouldn't surprise me at all, because it wasn't until February 18 that we had the meeting where we were told that solicitor-client privilege as practised in that office under Ms. Davidson would no longer prevail. The exact words used by Mr. Walsh at that time were:

We work for the Board of Internal Economy, but it tolerates a degree of privacy between members and lawyers.

Those were the words that came out of that meeting.

One of the senior lawyers in that office expressed quite a few concerns. He said that under Ms. Davidson members had been advised.... It's my understanding that when everybody came back following the last election, the 200 new members or whatever, Ms. Davidson sent a letter to each member telling them that her office did indeed practise solicitor-client privilege and that everything that would be discussed would be on that basis. I understand that she sent a letter to members saying that. And he was concerned, because he said “I have guaranteed personally that this prevails, and now you're telling us that it no longer prevails”. So he had some serious concerns.

• 1225

The Chair: Mr. MacKay, your questioning has been helpful, and I just wanted to confirm as we close off that line of questioning that when we talk about this solicitor-client privilege we're talking about the relationship involving parliamentary counsel, as opposed to the legislative counsel.

Is that accurate, Ms. McMurray?

Ms. Diane McMurray: I'm sorry, I....

The Chair: The lawyer referred to by Mr. MacKay was a parliamentary counsel, as opposed to a legislative counsel—is that correct?

Mr. Louis-Philippe Côté: That's correct. Well, legal counsel.

Ms. Diane McMurray: Legal counsel.

The Chair: Legal counsel. That's correct.

So she does not perform the same function as you are now performing—is that correct?

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

The Chair: Okay. I think Mr. MacKay grasps the difference there. Thank you.

I think we'll go to Ms. Catterall for five minutes.

Ms. Marlene Catterall: Yes.

Look, I understand that you have felt inundated. I don't think there's an office in the public service or any agency of government, and certainly not in Parliament, that hasn't been seriously affected in terms of workload and pressure on people of budget cuts starting in 1993, 1994. We only have to look at what we hear about the armed forces regularly to know that you are not unique. I'm glad there's finally some relief on that.

I want to focus on two main things. There seems to be a suggestion here that the clerks cannot be relied on to maintain their oath of confidentiality. There seems to be a suggestion—and I'm quoting here—that their job is to “weed out” your amendments. I asked before and I ask again: Do you have any evidence whatsoever that the procedural clerks cannot be trusted to respect the confidentiality of the information given to them?

Mr. Louis-Philippe Côté: We gave assurance at our last testimony that to our knowledge the clerks have not broken their oath of confidentiality.

Ms. Marlene Catterall: On the second point, to say that their job is to try to weed out your amendments suggests that in fact they are trying to find amendments out of order for backbenchers from all parties. Are you suggesting that they are doing anything other than applying the rules of the House, whether it's a backbencher's amendment on either side of the House or a government amendment—that they are doing anything other than applying the rules and determining whether those amendments are in order and taking the time to do their job properly, whether it's a backbencher's or a government amendment?

Mr. Louis-Philippe Côté: My understanding is that they do apply the rules as they understand them. As we have said quite a few times, it's a question of the speed at which the rule is applied. When they receive government amendments at the last minute, they do their very best. I know that because I work with them. Similarly, when they receive our amendments they also do their very best, but they also have more time to do it.

Ms. Marlene Catterall: But they would not rule an amendment in order if it were not in order, government or backbencher?

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

Ms. Marlene Catterall: Thank you.

Now, Ms. McMurray said that the way you are operating limits the privileges of a member. That's a very serious suggestion. I put that against the fact that you both told us that the advice you give is impartial, that your working conditions have not changed that. I put that against the information you gave that there is no breach of confidentiality. I put that against the fact that only the member can decide what that member is tabling in the House of Commons, whether and when. So I ask you, in light of no breach of confidentiality, no lack of impartiality, no control on what the member may or may not table, how are the privileges of a member limited by your working conditions?

Ms. Diane McMurray: If you're speaking vis-à-vis the amendments, I think we've already explained that we think that it disadvantages the members in terms of the fact that they're given ahead of time and they may be in fact entitled to an explanation of how they work.

• 1230

Ms. Marlene Catterall: Then, Ms. McMurray, you're back to suggesting that government amendments don't get the same careful scrutiny as backbenchers' amendments and that clerks will rule government amendments in order and not take the time to determine whether they truly are or are not.

Ms. Diane McMurray: No, Ms. Catterall. The reality of the situation is it's like any situation in life: the more time I have to consider something, obviously the easier it's going to be for me to do my job. If, on the other hand, I get fifty amendments that I have to make a ruling on, and each of those fifty amendments is five pages long, nobody in his right mind would suggest that a clerk would be able to competently make a ruling in one minute on a five-page amendment.

Ms. Marlene Catterall: They're never asked to do it in a minute, I don't believe.

So do you withdraw your statement that the clerks' job is to try to weed out your amendments?

Ms. Diane McMurray: I don't believe I said that. I'm not saying it's done deliberately. I never said that. What I said was if you take the philosophy or the rationale underlying thousands of amendments that are being introduced by members—since they're not going anywhere anyway, why not just allow them—there would be complete congestion in the House. So there has to be some way of trying to weed out those amendments. Now, if every one happened to be in order, obviously all 5,000 would have to be moved. But certainly underlying the whole process, the practices of the House, if you want to put it that way, are designed to try to move the process ahead. That's what they're designed to do.

Ms. Marlene Catterall: I have to ask the question again, Mr. Chair.

There's no lack of impartiality. Impartial advice is given. There's no breach of confidentiality. There's no limit on what a member may or may not table or when, other than the rules of the House. What is the limit on the privileges of a member that you've referred to?

The Chair: Do the witnesses have an answer they wish to provide to that question? I realize the question was asked a little earlier.

Ms. Marlene Catterall: But I didn't get an answer.

Mr. Louis-Philippe Côté: Simply to state once again that we perceive, in fact, that the system is a two-speed system. Once again, as I said earlier—

Ms. Marlene Catterall: That's not answering the question, with all respect, Mr. Chair.

The Chair: The witnesses may have difficulty answering, but—

Ms. Marlene Catterall: Well, they made the statement.

The Chair: —if that's the best they can....

Ms. Diane McMurray: I think we've expressed our position vis-à-vis amendments. As far as the other part of our role is concerned, what our role should be, I think that when you are working for members, if you feel and if you're constantly made to feel and you are told outright by your manager that you are undermining the role of management because you are essentially working for the members to the best of your ability and not supporting management in its efforts to find solutions to what they call the effective operation within the office, and that effective operation takes the form, for example, of capping the number of hours that members should be given in order for us to do their private members' bills, if I'm going to agree with that, I am in fact not working for members. That puts me at odds with management, who has a very different view of the role of members of legislative counsel in this office.

I know what I was hired to do, and I'm trying to defend what I'm hired to do. If my manager is telling me that there's an expectation that you won't do that, it puts a great deal of pressure on legislative counsel to cave in to what management perceives should be the role of counsel in this office, when both my colleague and I were hired to do something totally different. That means that it puts us under a great deal of stress. It leaves us open to all kinds of attacks. I don't like the word “attacks” because it sounds paranoid, and I don't mean it to sound that way, but it puts us under a great deal of stress.

At the same time, we must carry on a high-quality service for our members. That puts us in a very unenviable position. I don't think it puts me in a position where I can do the very best job that I was hired to do for the members.

This is why I said back on Thursday that the issue of confidentiality is simply the tip of the iceberg. There is a lot more going on here than what appears at first blush.

I hope that answers your question, Ms. Catterall.

Ms. Marlene Catterall: The issue of confidentiality is the one this committee is dealing with.

The Chair: I'm glad we got an answer there, because I was about to ask if that was your final answer.

Now I want Mr. Kilger and Mr. Bergeron to decide who deals with the next round.

Mr. Chuck Strahl: Point of order.

The Chair: Mr. Strahl.

• 1235

Mr. Chuck Strahl: I hate to be the killjoy again this week, but once again we are pushing into.... I have to leave for question period practice as we speak—

The Chair: And you need it.

Mr. Chuck Strahl: I need all the help I can get.

The trouble is that once we get past the scheduled time we start to run into other meetings. I'm not sure what we want to do with this. All this testimony has been very useful, but I'm not sure, to come to this meeting.... I think we're scheduled until 12:30, and after that I schedule other things. So I'm not sure if the committee would like to sit again with these witnesses or just continue. I don't know how much longer you've got now.

The Chair: I would prefer to see a consensus. That way we can wrap this up today. I think we might be able to deal with this in another quarter of an hour—

Mr. Stéphane Bergeron: With these witnesses.

The Chair: —if members are relatively efficient with their questions. And you'll recall that your chair wanted to take up a matter. I feel I have to do it.

It was Mr. Kilger and Mr. Bergeron who were going to sort this out.

[Translation]

Mr. Stéphane Bergeron: I have yet to speak.

The Chair: After you, my dear Alphonse.

Mr. Stéphane Bergeron: Mr. Chairman, for the record I would like to clarify, that after Mr. Bonin's untimely intervention, I have only intervened once in this debate during another colleague's turn because I believed that he was harassing the witness with his question, since he had already answered the question. I reacted in....

Mr. Raymond Bonin (Nickel Belt, Lib.): Point of order.

Mr. Stéphane Bergeron: ... the way that Mr. Kilger....

Mr. Raymond Bonin: I have a point of order.

Mr. Stéphane Bergeron: ... and some other colleagues....

[English]

The Chair: Excuse me, Mr. Bergeron. I have a point of order from Mr. Bonin.

[Translation]

Mr. Raymond Bonin: Mr. Chairman, if Mr. Bergeron wishes to attack individuals, I will call attention to the fact that each time a member of this committee wishes to express their opinion after the Chair has given the floor, they are constantly interrupted by Mr. Bergeron.

Mr. Stéphane Bergeron: This was precisely the goal of my intervention, Mr. Chairman.

Mr. Raymond Bonin: Once again, he is doing it. He is trying to do it while I am calling a point of order. Mr. Bergeron should learn that it is you, Mr. Chairman, who chairs the meeting.

[English]

The Chair: Thank you, Mr. Bonin.

Mr. Bergeron, you have the floor. Let's get right to questions.

[Translation]

Mr. Stéphane Bergeron: Mr. Chairman, that's precisely the goal of my intervention. I wanted to indicate that I have only intervened once during this debate. Mr. Bonin needs to pay attention to what is happening here, instead of listening only when he feels like it.

Mr. Chairman, I am seriously concerned by this relationship of privilege that exists between lawyer and client, both from the legislative service and the legal service standpoints. We were told that there was no legal basis to this. This brings me to question the reasons that led to this change. If there was nothing that justified such a privileged relationship before, why then did they all of the sudden decide to make a change?

What concerns me even more, Ms. McMurray is that you said a few moments ago that as of the 17th of February 2000, that we have undergone the same change with respect to legal services. Is this in fact the case?

[English]

Ms. Diane McMurray: It was February 18, I believe.

[Translation]

Mr. Stéphane Bergeron: February 18. What I find particularly worrisome in this case, Mr. Chairman, is that when I put the question to Mr. Walsh last week, he said a whole slew of things to waste time. However he said that it was an issue that had been brought up and that he was in the process of studying it with the clerk and the Board of Internal Economy. First of all, I must say that up until now, the Board of Internal Economy has not discussed this issue. Even though Mr. Walsh told us that he had not made any decision, you are now telling me that such a decision was announced on February 18.

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

Mr. Stéphane Bergeron: There you are. I'd like to get back a moment to the so-called variable geometry umbrella. Last week, Mr. Walsh himself, when asked whether Mr. Marleau had been informed of the amendments or not:

[English]

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

• 1240

[Translation]

A little later, in answer to a question put to him, Mr. Marleau himself alluded to 500, 1,200 and 3,000 amendments. That was unprecedented, he said. To my knowledge, and correct me if I am wrong, there has only been a single instance of drafting 3,000 amendments and those were not tabled in the House up until now. If Mr. Walsh himself admitted that Mr. Marleau must not have been informed of that, how could Mr. Marleau have known that we were preparing 3,000 amendments?

Mr. Louis-Philippe Côté: It's somewhat difficult for witnesses to answer such questions, Mr. Bergeron, because we are not aware of the circumstances.

Mr. Stéphane Bergeron: Mr. Côté, you will understand that once we have questions about confidentiality, we don't know and we can't seem to have you or any of the clerks clarify what comes under this umbrella of confidentiality. I'm trying to find out to what extent these things are confidential and for whom.

Mr. Louis-Philippe Côté: Perhaps I could try to answer you, although the clerks in our office are obviously in a better position to answer you. To my knowledge, the clerks provide an initial opinion with regard to procedure on the motion I give them. If they have a problem or want to obtain more information, they may go to their superior who may also refer to his own superior. To my knowledge, unless I'm mistaken, Mr. Marleau may occasionally be informed of amendments, though I would point out that we are talking about amendments that present some difficulty, insofar as the clerk from our office is having problems coming to a clear and final decision. Unless I'm mistaken, such an amendment could go up the chain of command and Mr. Marleau could be involved in the process. Once again, I'm giving you this answer subject to verification, and your committee may wish to invite clerks to appear before you on this subject.

[English]

The Chair: Thank you very much.

We'll go to Mr. Kilger for five minutes.

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

To our witnesses and my colleagues, I'll be going over a few different matters here. I just want to try to pick off a few things that were raised by some of my colleagues.

I want to particularly thank my colleague Marlene Catterall for bringing to the attention of the committee the role and, more importantly, the integrity and the respect we have for our clerks. I'm thinking out loud now. We've spent a great deal of time—I think all of us have referred to clerks in one form or another during our deliberations and questions and answers here, and whether in fact they wouldn't have an opportunity to.... But I don't know who that person or persons might be. I look at our own clerk here, and we've all had the experience of working with them. I don't think any one of us would disagree in terms of the competency, the professionalism, and the integrity that goes with the position of our clerk and all the clerks in service in the House. But that's something we'll have to consider in our future deliberations in terms of witnesses.

I'd like to go back to the intervention made by my colleague Mr. MacKay with regard to solicitor-client specifically. As we know, from time to time, as regrettable as it may be and difficult for both parties, employer and employee, there are breakdowns in the relationship, where counsel is asked to work with a member through that experience...and whether in fact in that instance solicitor-client is in fact given and upheld with the member, he or she, in that particular situation at that time. I wonder if I could ask for a response to that, Mr. Chair.

Ms. Diane McMurray: I'm not really sure what you're asking, Mr. Kilger.

• 1245

Mr. Bob Kilger: Just to clarify, if Bob Kilger, as employer, as a member of Parliament, has a situation in his office that will require the termination of an employee, and he seeks guidance, assistance, from legal counsel from the House, would solicitor-client and all that that entails and means be in fact made available and upheld?

Ms. Diane McMurray: Working in a legal counsel office, all I know is that, as the member was advised by Ms. Davidson, my understanding is that that would prevail. I'm simply saying that on February 18 we were called to a meeting, because we may well be doing that kind of work in the future, and we were advised, along with legislative counsel, that we may well be called upon to do legal counsel work. That's why we were at that meeting. We were advised that solicitor-client, as it had been practised in that office under Ms. Davidson, would no longer prevail.

Mr. Bob Kilger: I think that's a matter for the committee and everyone to want to review, in terms of the specifics of that possible—

Ms. Diane McMurray: Exactly. I think you need to ask somebody else that.

Mr. Bob Kilger: Thank you for your assistance on that.

On the matter of the situation around the case affecting our colleague Roger Gallaway, the October or November 1997...in your experience, was that an isolated case?

Mr. Louis-Philippe Côté: There were several files involved, but yes, to my knowledge, it has been one single case involving several files.

Mr. Bob Kilger: There was a practice where amendments that were deemed out of order used to be printed, if my recollection serves me well. What I'm getting at is they no longer are. I'm just wondering, in our deliberations, in trying to make recommendations, whether in fact that would be a practice that should possibly be reconsidered. On the one hand, as a private member I may seek your services and ask for an amendment, being driven by the fact that I want the amendment to be procedurally correct, because obviously I want it to proceed. Then again, I may not be as serious about it being procedurally correct as long as I can have the amendment to make a political statement to suit my own purposes.

I'm just wondering if the practice of printing, if it was the case, and I thought it was—at one time we used to print these—would in fact not be a way of giving members an opportunity to at least have their amendments out there and not just being deemed out of order and disappear. In fact they would be out of order procedurally but still be printed for the person to be able to pursue the debate they wanted to on any particular issue.

Ms. Diane McMurray: That would be entirely for members to decide.

Mr. Bob Kilger: So that was never the practice under your...?

Mr. Louis-Philippe Côté: I don't remember. It may have been the case. This is a very detailed procedural matter.

Mr. Bob Kilger: Thank you.

The Chair: I'm going to put the question that I wanted to put, colleagues, and I want to direct my inquiry to Ms. McMurray.

At two points in the previous meeting, Ms. McMurray, you answered questions and made reference to the officers of the House. I don't want to be seen as cross-examining you and badgering you, but I'm going to remind you of your remarks and I'm going to ask you to comment, if you wish, because they raise issues that the chair regards as being on the relatively serious side. Perhaps in the cool light of day—or the cool light of night—we might want to have another look at them.

• 1250

In the first comment you made—and I see it on what is shown as page 12 of 33 of the transcript—in answering a question from Mr. Bergeron, you said, referring to the House of Commons, that in fact it is “...run by the executive, as you know very well. They control bills when they come down, when they go out, how much time you get, how you vote.”

Now, you're an experienced parliamentary counsel around this place. Are you certain that the executive controls how members vote? Do they control how much time members get in the House? Or is it in fact the Standing Orders that will determine how much time, through the Speaker, a member will have, and each individual member who decides how he or she will vote?

Ms. Diane McMurray: I think here we're talking about sixes and sevens.

If you pick up any book on parliamentary procedure, May's being the most comprehensive, it's very clear from that book that it is the government through its majority that controls the Standing Orders and therefore, as May says, “controls the business of the House”. That's how May says it. That's how he describes it. And I think everybody—every historian, every political scientist—knows how the system of government operates in Canada. I don't think it's a question of.... It's almost accepted, if you want to put it that way.

The Chair: Well it's certainly not accepted by the chair.

So you're saying that Erskine May says that how much time I get in the House of Commons as a member and how I vote in the House of Commons is controlled by the executive. Is that what you're saying Erskine May says?

Ms. Diane McMurray: Erskine May talks about standing orders and what they're designed to do. He says basically standing orders were an antidote. He uses the word “antidote”. He says that in England, up until 1880, the practices of the House were designed when there was not responsible government to essentially control ministers, but once responsible government came into being.... By 1880 the government in England, basically the executive, designed their standing orders not simply to limit debate, but also to limit the opportunities when you did have debate to further limit that. That's basically what he says.

The Chair: All right. So your statement that the executive controls how much time we get in the House and how we vote.... You don't want to change your position on that, then?

Ms. Diane McMurray: Certainly as far as the allocation of time is concerned, no. That's done through the Standing Orders.

The Chair: Okay. So you don't want to change your view...?

Ms. Diane McMurray: Why would I change it? I'm simply stating a fact of responsible government.

The Chair: No, that's okay.

The reason I'm pursuing this, colleagues, is that this proceeding here in the House is going to stay within the House. It's not going to go out beyond here. It will have to be dealt with here. I just wanted to make sure the record was very clear. If we've opened an issue, I'd like to open it, close it, or make sure it's clear.

The second statement you made I regard as a bit more significant. You asked a question in reply to a question by Mr. Knutson. This is at page 22 of the transcript. Here you say:

Why, then, is our office being controlled and being run by people who are not officers of the House? They account to the executive. They're controlled.

Now, as I understood your evidence, your office is responsible to the Clerk of the House.

Ms. Diane McMurray: Ultimately, yes. That's correct.

The Chair: You've said here, “Why, then, is our office being controlled or run by people who are not officers of the House?” Are you saying that the Clerk of the House is not an officer of the House?

Ms. Diane McMurray: No. I think all I was trying to say there, Mr. Lee.... I think you can appreciate that this is not an easy thing for my colleague and I to have to do, to come before this committee and be as honest and forthright as we've tried to be in order to assist you fully in your deliberations.

I think you can appreciate that very often things are said and simply misused or perhaps not said as clearly as they might be said. I'm not suggesting for a moment that they aren't officers of the House. What I was trying to suggest is that when I, from a lawyer's point of view, talk about an officer of the House, because I work for members, I see that officer also essentially being appointed by those members. That's all I meant by that.

The Chair: Well, I'm going to read it one more time and then I'm going to ask you to clarify if you wish. If you think it's accurate, you can stand with it. It says:

Why, then, is our office being controlled and being run by people who are not officers of the House? They account to the executive. They are controlled.

• 1255

Ms. Diane McMurray: Both Mr. Marleau and the—

The Chair: And the Speaker.

Ms. Diane McMurray: No, not the Speaker. The Speaker is not chosen by cabinet. The Speaker is chosen by the House.

The Chair: The Speaker is an officer of the House. You've said the Speaker and the clerks account to the executive and they're controlled. That's what you've said on the record. As a professional speaking to us here and replying to questions, do you wish to stand by that answer?

Ms. Diane McMurray: If you're trying to cross-question me, are you asking for clarification?

The Chair: If you feel it's necessary.

Ms. Diane McMurray: As an officer of the House, it's quite clear the Speaker is not appointed by cabinet. He's an officer of the House. He's appointed by the House. The Clerk of the House is an officer of the House. He is appointed by cabinet. The parliamentary counsel is an officer of the House. He is appointed by cabinet.

When I think of an officer of the House, I think of, for example, the Auditor General and the Commissioner of Official Languages. They are officers of the House in the sense that they are appointed by the House—not the cabinet, the House. That's all I was trying to say, nothing more, nothing less.

The Chair: Okay. You will permit me to indicate—I hope you will allow me this—that I am disturbed that you would allege here, at a public meeting, that the officers of the House, including the clerk, are controlled by the executive. I am quite surprised at that, if that is your impression. Obviously it is, and you wanted to tell us that, and I thank you for your candour. I would just indicate my great surprise.

Ms. Diane McMurray: Normally the person who appoints is the person who controls. That's all I say. That's true whether it's the House or anywhere else in the world.

The Chair: Okay. Thank you.

I go to Mr. Harvey.

[Translation]

Mr. André Harvey (Chicoutimi, PC): Mr. Chairman, unfortunately I did not attend all debates on this issue. As you may have noted, our team has become younger. That's never a bad thing, is it?

I think that we must remain moderate in our approach to problems. I'd like to put a question to Mr. Côté. Before you came to testify before the committee, were you aware that your testimony would cause quite an upheaval throughout the Legislative Service and up to the highest levels? Were you aware of the gravity of what was going on?

Mr. Louis-Philippe Côté: What do you mean by upheaval?

Mr. André Harvey: What's the atmosphere like in your section right now following last week's testimony?

Mr. Louis-Philippe Côté: Obviously, as my colleague explained, it's always somewhat difficult to appear before the committee. For my part, I did continue nevertheless to prepare amendments and bills. Generally speaking, people thank me for my frankness at the office. I did receive some calls. Some less pleasant comments were also heard.

Mr. André Harvey: Therefore, this makes the atmosphere in the workplace difficult. Did your testimony aggravate the atmosphere? It's not easy for you to come here to testify before this committee.

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

Mr. André Harvey: I have a second question, Mr. Chairman.

Here is what I perceive beyond the technical considerations, and I want to know if I am wrong. It is easy for a party that was in power for three quarters of a century and that is under the impression that it owns the country to go a bit too far in political control. You can no longer guarantee confidentiality because the privileged relationship that existed between you and the member of Parliament has been broken by the fact that you must transmit information. Even if you can't confirm this, does it mean that there is a danger of politicization of an administrative office? Is there a danger that those in the highest levels could, in an extreme case, be at the mercy of the government with regard to certain strategic parliamentary choices? Let me be even more direct. Do you think that there are currently senior officials who are at the service of government service because of the automatic transmission of any information that is sent along?

Mr. Louis-Philippe Côté: I have no comment. It is rather difficult to answer that question, and I have never had an opportunity to think about it.

• 1300

Mr. André Harvey: I'm asking you to tell me if, potentially, there is a danger of politicizing the administrative function when confidentiality can no longer be guaranteed.

Mr. Louis-Philippe Côté: I think it would be far preferable to put this question to someone who is in that field and who works outside the House of Commons, preferably a political scientist.

Mr. André Harvey: Have you had many discussions with your superiors about this new way of operating since 1996? If I understand correctly, even though I've missed a meeting, you are not comfortable with this method of operation because you cannot guarantee an exclusive confidential relationship to your clients.

Mr. Louis-Philippe Côté: So you're asking me if there were any discussions, and....

Mr. André Harvey: With your superiors, about your degree of discomfort regarding the new criteria for confidentiality.

Mr. Louis-Philippe Côté: The way things were indicated in 1996 was so clear and specific that there was no reason to discuss it at length with our director. That's the only thing I can say.

Mr. André Harvey: In your opinion, the ideal situation would be to go back to the tighter criteria for confidentiality, the criteria prevailing before 1996.

Mr. Louis-Philippe Côté: That would depend on what members want. We've made comments regarding the results that we've observed following the administrative changes. It is up to members of Parliament to indicate whether or not they want us to return to the former situation.

Mr. André Harvey: Thank you, Mr. Chairman.

[English]

The Chair: Thank you, Mr. Harvey.

Mr. Knutson, you had signalled to me earlier. We'll make this the last round.

Mr. Gar Knutson: Thanks very much, Mr. Chairman. I just want to make a few comments really.

I want to say to the witnesses I appreciate how difficult this has been and I appreciate your point of view. I'm not sure I agree that he who appoints controls. Look at the Supreme Court of Canada. They don't seem to be controlled by the executive. I understand the theoretical point....

I guess Mr. Bergeron finds that humorous. I'm not sure why.

I understand the theoretical point that if clerks are given advance notice, they're more likely to rule amendments out of order. In my six years of experience as an MP, I'm not sure I've ever seen that happen. I've presented lots of amendments. I was on the committee that dealt with CEPA. I find when we present the clerks with lots of amendments, they're just trying to get them in front of the committee in an orderly fashion so that the committee can deal with them.

I've listened to the questioning today, and I find by and large it's a repeat of last week, and I would like to ask the committee that we bring this to a close. Therefore, Mr. Chairman, I'd like to move that we have Mr. Marleau and Mr. Walsh back at the next meeting, and then after we hear from those two witnesses, that the committee direct the researcher to prepare a draft report incorporating the following recommendations: that the process of drafting and sharing information on members' amendments be clearly defined, including confidentiality requirements thereof; that all MPs be informed of the process when they request the drafting of amendments; and that members be given the option of requesting a greater degree of confidentiality, such as would exist between a lawyer and a client.

I understand there's a 24-hour notice requirement on motions, so I just want to give notice of that.

The Clerk of the Committee: Not with procedure and House affairs.

Mr. Gar Knutson: Not with the procedure and House affairs committee?

An hon. member: Let's do it then.

The Chair: Well, let's let Mr. Knutson conclude.

Have you concluded?

Mr. Gar Knutson: I have concluded, and I have my motion in writing. I'll present it to the chair so that he can rule, under the advice of the clerk, as to whether it's in order.

• 1305

The Chair: Thank you, Mr. Knutson.

Mr. Knutson has suggested that we recall Mr. Marleau and Mr. Walsh for Thursday. He has also been good enough to draft a proposal that colleagues could consider at our Thursday meeting, and that will be circulated by the clerk.

Now I'll hear Mr. Bergeron's point of order.

[Translation]

Mr. Stéphane Bergeron: Mr. Chairman, I understand that Mr. Knutson decided to proceed this way and I don't blame him, but I simply want to draw your attention and that of my colleagues to the fact that this is not the usual way of proceeding on planning future meetings and the choice of witnesses. Unless I'm mistaken, the Standing Committee on Procedure and House Affairs has never set out the timetable or the selected witnesses through a motion tabled by the party in power. This procedure seems somewhat irregular to me.

Would it be possible for Mr. Knutson to withdraw his motion and submit the question for discussion by members of the committee or at least by members of the subcommittee, so that we can work in a collegial fashion and not in this rather authoritarian manner with regard to a very fundamental issue for all parliamentarians in the House?

[English]

The Chair: Mr. Knutson isn't moving the motion now, of course. He's simply giving us notice that he intends to move this or something like this on Thursday.

The notice was not necessary, so thank you, Mr. Knutson, for the heads-up.

In terms of witnesses for this Thursday, we have no choice but to deal with this now. I'm assuming members agree that Mr. Marleau and Mr. Walsh should come back at 11 o'clock on Thursday.

Mr. Bergeron has raised with me, off the record, the possibility of another witness. I don't know whether we should take that up now or whether we can deal with each other off the record and try to reach a conclusion in that way. It might be simpler. If Mr. Bergeron wishes to make a case for a witness, he can make it among us off the record. There may of course be very short notice, depending on who the witness is, but we'll have to live with that. Can we proceed in that fashion?

I saw a hand here. Ms. Catterall.

Ms. Marlene Catterall: I think we've had a fair bit of extraneous evidence in front of the committee, Mr. Chair, and I really don't see the necessity for other witnesses, frankly. I don't want to delve into what's happened in the past. I want to deal with the current situation before us, which is how can we ensure members get the level of confidentiality they expect when they're having amendments to government legislation drafted?

The Chair: Clearly it would be useful for Mr. Bergeron, as the whip of his party, to speak with the deputy whip of the Liberal Party on that issue.

Ms. Marlene Catterall: Or he may speak with the whip, and I'm sure I'll get the message.

The Chair: Okay.

Mr. MacKay.

Mr. Peter MacKay: Thanks, Mr. Chair.

I think very much the intention of Mr. Knutson's motion is that we move on and deal with this in a proactive way. However, the only issue I take with the motion as drafted is it does sound as though it's exclusive of the possibility of calling any further witnesses, which might be necessitated after hearing from Mr. Walsh and Mr. Marleau. I would just not want to see that door closed completely.

The Chair: I'm going to stand instructed by colleagues on the committee. I'm not going to close any doors or open any. We know what we're doing Thursday morning, and if between now and then there's a consensus among sufficient members to call another witness, then we'll go ahead and do that, unless someone objects here. Seeing no objection, I will do that.

Seeing no other interventions, we stand adjourned.