Procedure and House Affairs Committee on March 17th, 2011

[The Chair, Conservative, Joe Preston]

Thank you.

Monsieur Godin, two minutes, please.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

I'll pass it to Mr. Martin.

[The Chair, Conservative, Joe Preston]

Mr. Martin, you have two minutes, please.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you.

Mr. Chairman, to bring it back down to earth, the government is asking our permission to spend $6 billion on corporate tax cuts, and that's the reality of it. They come to us asking us to buy a $6 billion pig in a poke and they won't even do us the courtesy of showing us the financial justification, the rationale behind their proposal to buy this pig in a poke. That, Mr. Chairman, sums up our irritation, which led to the point of privilege that is rapidly going to find them in contempt of Parliament.

We don't accept that projections of corporate profits before taxes and effective corporate income tax rates are a cabinet confidence. Wouldn't we all benefit from having the same base level of information? Wouldn't it elevate the political discourse if we could actually vote on something we understood, on your reasoning and your argument?

I remember being told when I first got here that the Library of Parliament used to be the exclusive purview of cabinet ministers. It was Pierre Trudeau who said that political discourse in the country would benefit if all MPs had full access to the Library of Parliament so that we could all start with the same base level of information, and I think it did elevate the quality of debate. Does that same reasoning not apply here when you're asking our permission to spend that amount of money, and we're supposed to just take your word for it that it's a good idea?

[The Chair, Conservative, Joe Preston]

Give the minister a chance. He's got 15 seconds to answer that long question.

[Ted Menzies, Conservative, Macleod, AB]

Thank you. I wish I had more time to answer that question.

In fact, as I said in my opening remarks, it was in 2007 that the House of Commons approved this tax reduction plan, the beginning of our low-tax plan. We continue with that plan, Mr. Chair.

I and many Canadians--especially the 480,000 Canadians who now have a job, but who didn't in July of 2009, in the midst of the worst recession we have ever seen, and hopefully that we'll ever all see--would argue that reducing costs to employers is a good thing. We'll let those people be the judge of whether reducing costs for Canadian employers is a good thing or not. It passed this House of Commons, and I'm not sure....

Mr. Martin has been here--

[Pat Martin, NDP, Winnipeg Centre, MB]

They'll be able to pass judgment on you very soon, Mr. Menzies.

[Ted Menzies, Conservative, Macleod, AB]

--probably longer than I have. Even if he didn't actually stand in his place and vote for this, it was approved by the House of Commons. There were no secrets; Canadians watched us vote and approve our low-tax plan in 2007, and we continue on that.

[The Chair, Conservative, Joe Preston]

Thank you, Minister.

I'd also like to thank your officials, who've been very helpful here today.

We will suspend now until two o'clock.

[The Chair, Conservative, Joe Preston]

I'm going to call this afternoon's meeting to order.

Professor Franks is here today.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Mr. Chair, I have a point of order. May I, before we get going?

[The Chair, Conservative, Joe Preston]

Sure:

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Just a quick one, because before we broke for lunch Mr. Martin had made some comments that really tweaked my interest, to say the least, because I didn't think they were quite correct. He and other members of the opposition seem to be talking a lot about trust, facts, and the truth. But I think maybe this principle, if they're sincere about that, should be applied to everyone around the table.

I say that because Mr. Martin stated just before lunch that the Library of Parliament used to be only open for use by cabinet ministers and it was the Trudeau government that opened it up for all MPs. Well, we had a little time over lunch, so we did a little research and found that the statement of Mr. Martin was far from being true.

In fact, Mr. Chair, I have here—which I can certainly table if it interests the committee—the Statutes of Canada from 1871, an act in relation to the Library of Parliament, which clearly states:

All books, paintings, maps and other effects...shall vest in the Queen's Majesty for the use of the two Houses of Parliament...

I also have copies of the Revised Statutes of 1970, which state the same thing.

So, Mr. Chair, I thought that since we were talking about trust and accountability and the facts, perhaps we should have the record set straight. Perhaps if Mr. Martin does show up this afternoon he can recognize that, withdraw his statements, and if he cares to apologize for misleading the committee, he can do so as well.

[The Chair, Conservative, Joe Preston]

I will leave it then to that happening this afternoon. I thought when it was said that we might be a little incorrect there. I haven't been here that long to know it, actually, but we'll leave it at that.

Professor Franks, it's great to have you back. We've had you at committee before. I understand we're getting a double dose this week anyway, so we get to see you tomorrow morning as well.

If you have an opening statement, we've been trying to keep our opening statements to about five minutes, and then we'll do rounds of questioning.

[Dr. Ned Franks, Professor Emeritus, Department of Political Studies, Queen's University, As an Individual]

My opening statement is a bit longer, but I'll cut it.

First of all, I'll define “contempt”. To be found in contempt of Parliament, a person must be found guilty by the House of Commons of actions that obstruct or impede the House in the performance of its functions. And that's not the same as privilege.

I think we have to appreciate that, because there is no limit to what might be contempt. Examples of such actions include deliberately misleading the House or a House committee; falsifying or altering papers formally submitted to a committee or to the House; failing to attend before the House or a committee after being summoned to do so; and, especially germane to the matter under consideration today, refusing to produce papers when ordered to do so by the House or a House committee.

Contempt of Parliament is the parliamentary equivalent of contempt of court; after all, a venerable name for Parliament is the “High Court of Parliament”.

The main thing I wanted to say is there is no limit to what could be contempt and there are no defined rules of acts that are contempt. It's simply things that impede the House and its business. So the list I gave is simply examples.

Cases of contempt have been rare in Canada. I found eight of them. Regardless of the number, because people don't agree on that, three striking facts about these cases where persons were found in contempt deserve mention.

First, there were only two findings of contempt between 1867 and 2001, the first 133 years of Canada's existence, compared with six in the next ten. Second, all of the recent ones occurred in majority Parliaments. Third, unlike the two presently under consideration, none of the previous eight cases involved an explicit finding of contempt against a minister or a government.

Now I want to devote my remarks to the question of the right of Parliament to call for persons, papers, and records.

This was an issue before, in the Afghan detainees discussion, when Speaker Milliken ruled that while there were no exceptions to the right of Parliament to send for papers, accepting the authority of the executive to censor information provided to Parliament would in fact jeopardize the separation of powers that's purported to lie at the heart of our parliamentary system and the independence of its constituent parts.

On the other hand, there are good reasons to keep some documents confidential. One of the first studies I did related to the right of Parliament--and this was 40-plus years ago--for a commission examining the security branch of the RCMP. I did a study on Parliament and security matters for them and wrestled with this problem. Again, as we're wrestling here today, you start off with yes, there is an unlimited right of Parliament, but what constraints should Parliament impose on itself in demanding papers and records?

Now I get on to the tricky area of the question of what the government can keep to itself because it constitutes a cabinet confidence or, more formally, a confidence of the Queen's Privy Council.

Speaker Jeanne Sauvé observed in 1981 that the expression “confidential document” had never been defined and that it would be improper for the Speaker to attempt to make such a definition. She stated that it is the government's prerogative to decide which documents are of a confidential nature.

Canada's Supreme Court has also observed that “...all governments must maintain some degree of security and confidentiality in order to function”.

On the other hand, Speaker Milliken ruled on March 9, 2011, that there was a prima facie case for a finding of contempt of Parliament against the government because it had withheld information from Parliament. I shall leave that there.

To the extent that Speaker Milliken's ruling differs from Madame Sauvé's, I side with Speaker Milliken. The government does not have an unlimited unilateral right to decide what documents it will or will not release to Parliament. If nothing else, access-to-information legislation passed by Parliament limits what a government can keep confidential.

I make an aside comment here that it should be noted that there are some systems of government, such as the Swedish, where our notions of cabinet confidence are not recognized; in other words, cabinet documents are fully public and fully available.

In our system, which recognizes cabinet confidentiality, the question becomes, where does the right of the cabinet to keep documents confidential end and where does the right of Parliament to have access to documents begin?

I favour the barrier being set so as to limit as much as possible the documents that are regarded as cabinet confidences. Certainly the actual minutes of cabinet meetings that report what individual ministers said and what else transpired should be respected as confidential, and presumably position papers showing where individual ministers and departments stood on a matter, but not much else.

There is a huge amount of background material provided for the cabinet on major decisions, including legislation, most of which could, and should, be made public. The remoter a document or study is from a record of actual cabinet deliberations, the stronger the argument against confidentiality.

A good study from a department will include both pros and cons and will provide a comprehensive analysis of the costs and other implications of proposed legislation. With rare exceptions, Parliament and the public deserve to see these studies as much as does the cabinet. Parliament and the Canadian public should know the costs and other implications of major government decisions and the bills before Parliament.

An example of talking across rather than with each other--produced by the present arrangements--is the question of the cost of just one of the government's crime bills, where the Parliamentary Budget Officer found the cost to be an order of magnitude greater than the government claimed. But no useful discussion or resolution of this contradiction emerged because the government refused to release their own studies of costs on the grounds that they were cabinet confidences.

As an immediate band-aid solution, I would suggest that this committee consider five reforms: one, that Parliament and government immediately begin to work together to define what documents are cabinet confidences and what are not; two, that the report from this committee recommend that all pieces of legislation not extend beyond first reading unless they are accompanied by an analysis of their cost implications over at least a five-year period; three, that the Parliamentary Budget Officer be provided with the resources to make his or her own independent analysis or evaluation of data provided by the government, and be instructed to do this; four, that the House itself undertake an inquiry into the proper extent of the government's right to declare unilaterally that papers and records are cabinet confidences; and five, that Parliament should review the Access to Information Act and in particular reconsider the current provisions that put the responsibility for administering the legislation in the hands of departmental ministers.

In giving this responsibility to ministers, the present legislation gives to the foxes the keys to the chicken house. Deputy ministers should have the responsibility for administering the access to information legislation, unless specifically, and in a way that is made public so there is no question of who bears the responsibility, they are overruled by their minister. That would pretty well take the ministers--and that even more suspect class, the exempt staff in ministers' offices--out of the equation.

As a final comment, I do hope—but I do not have much faith that my hope will be realized—that the procedure and House affairs committee will reach a consensus in its report on this matter of contempt, even if this consensus extends only to proposed solutions to a very real problem. Access to adequate information is a fundamental requirement for the effective functioning of Parliament and Canada's parliamentary democracy. Without accurate costs and other information, debates and committee hearings in public and political discourse in the country at large risk being debased into sloganeering, name-calling, and pigheaded obtuseness. That is not the right way to run a Parliament, let alone a country.

Both sides of the House should be concerned about this, if only because someday they're probably going to sit on the other side.

Thank you, Mr. Chairman.

[The Chair, Conservative, Joe Preston]

Thank you, Professor Franks.

Mr. Brison, questions, please, for seven minutes.

[Scott Brison, Liberal, Kings—Hants, NS]

Thank you, Mr. Chair.

Thank you, Professor Franks--through the chair, of course. It's really great to have you here, with your wealth of knowledge and experience that informs our deliberations here today and that I would like to see inform our conduct and our parliamentary reforms as we move forward.

Earlier you spoke of types of contempt. Would you say that this breach of privilege in the Speaker's ruling would qualify as one or both possible types of contempt: without reasonable excuse, refusing to answer a question or provide information or produce papers; or deliberately altering, suppressing, concealing, or...? Would you believe that this particular breach would qualify as a type of contempt?

[Dr. Ned Franks]

The Speaker found it prima facie, which means there are enough grounds for it to be looked at and for this committee to come to a conclusion on it. I have wrestled with that matter--and I'm an outsider who is not in government or Parliament--and I can say that it raises a concern with me. But the actual decision of whether it's contempt or not rests with this committee and then ultimately with the House.

I would be reluctant to advise that it is, and I would be reluctant to advise that it's not. That's an Irish answer, and you deserve it on St. Patrick's Day.

[Scott Brison, Liberal, Kings—Hants, NS]

Thank you.

In December we received from two different government departments the explanation as to why they could not provide the information to us. I'll read to you the Department of Justice, or the government's, response at the time:

The issue of whether there are any costs associated with the implementation of any of the Government’s Justice bills is a matter of Cabinet confidence and, as such, the Government is not in a position to provide such information or documents.

Do you believe that explanation is accurate, that once legislation has been tabled in the House of Commons, its costs ought to be covered under cabinet confidence?

[Dr. Ned Franks]

No, I absolutely do not. There are some costs perhaps that need to be kept private, but I believe that for a parliament to weigh, say, the value of a crime bill versus aid for immigrant children so they can assimilate better in terms of our official languages of Canada, or to understand that, you have to ask how much it is going to cost to do the one and how much it is going to cost to do the other. That balance has to be taken into account to make an informed decision.

So I firmly do not believe that the cost estimates should be kept confidential. In fact, what I've suggested here is the opposite. The House of Commons should require the government to present a cost estimate for implementation of a bill when it's introduced, or at least before second reading, and that the Parliamentary Budget Officer be asked to make an assessment of the methodology and the accuracy of the other figures in those cost estimates.

[Scott Brison, Liberal, Kings—Hants, NS]

Thank you, Professor Franks.

Our motion had called for the government to provide this costing information according to Treasury Board costing guidelines. These are the guidelines that lead to costing for cabinet before legislation is tabled, as you know. These guidelines call for all related costs to all departments of government, and to provincial governments as well. Many of the 18 bills encompassed by our motion have significant provincial government costs.

Do you believe this information ought to be provided as well to this House, since it is covered under Treasury Board guidelines and the motion was specific in that regard?

[Dr. Ned Franks]

Yes, I do. It's again the question implied by the old expression, “buying a pig in a poke”, that you don't know what you're getting. I think that Parliament and the people of Canada need to know what they're getting in terms of the cost implications, when they're looking at a significant expenditure bill. So, yes, I go that far—and probably further, actually.

[Scott Brison, Liberal, Kings—Hants, NS]

You would go further. Please elaborate on that. This is important.

[Dr. Ned Franks]

Well, cost estimates are uncertain quite often. They depend on the caseload and the sampling technique used in the evaluation. They depend on the methodology of the analysis of how those costs trickle through the stream of implications flowing from an action.

[Scott Brison, Liberal, Kings—Hants, NS]

The ministers said yesterday that some of the information was not relevant because the costs would be 10 or 15 years in the future. We make decisions here that have long-term impacts. In fact, many of our decisions will have impacts 20 or 30 years in the future. So our view was that those ought to be included. However, the ministers said that because of the fact that some of the costs were going to be borne by future governments and future taxpayers or future citizens some 15 or 20 years out, it meant that the information need not be included in the information provided to Parliament.

Would you agree with the ministers on that?