Evidence of meeting #46 for Procedure and House Affairs in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was documents.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Marc Bosc  Deputy Clerk of the House of Commons, House of Commons
Richard Denis  Deputy Law Clerk and Parliamentary Counsel, House of Commons

11:05 a.m.

Conservative

The Chair Conservative Joe Preston

We will call our meeting to order. We are in public this morning.

I would like to discuss some committee business at the end of our meeting today. We will set aside some time to talk about where we're going further on this review of the standing order on access to information requests and parliamentary privilege. We also want to talk about our witness lists for the study of Bill C-21 and how we're planning our time for that.

Perhaps we could leave a little bit of time for that, and for a couple of budgetary requests, too, at the end of the meeting.

Monsieur Bosc, Monsieur Denis, it's good to have you both here today. Hopefully you can help us with this. The Speaker has referred this issue to us. We're looking to you for a little knowledge this morning.

Monsieur Bosc, will you be going first?

11:05 a.m.

Marc Bosc Deputy Clerk of the House of Commons, House of Commons

I will.

11:05 a.m.

Conservative

The Chair Conservative Joe Preston

Great. Let's get started.

11:05 a.m.

Deputy Clerk of the House of Commons, House of Commons

Marc Bosc

I do have a statement to make, which I think has been distributed.

11:05 a.m.

Conservative

The Chair Conservative Joe Preston

Pardon me, Mr. Toone?

11:05 a.m.

NDP

Philip Toone NDP Gaspésie—Îles-de-la-Madeleine, QC

[Inaudible--Editor]

11:05 a.m.

Voices

Oh, oh!

11:05 a.m.

Conservative

The Chair Conservative Joe Preston

Perhaps Mr. Toone has not gotten the notice about crossing the floor.

11:05 a.m.

Voices

Oh, oh!

11:05 a.m.

Conservative

The Chair Conservative Joe Preston

Let's see if we can fix that right now. It's a far-sighted thing; you can see your name better if it's across the way.

Sorry, Monsieur Bosc. Please go ahead.

11:05 a.m.

Deputy Clerk of the House of Commons, House of Commons

Marc Bosc

On behalf of the Clerk of the House, Audrey O'Brien, who is unable to be here, I would like to thank the committee for inviting me to appear today regarding parliamentary privilege and access to information requests made to other parties. I am accompanied by Richard Denis, Deputy Law Clerk and Parliamentary Counsel.

Our purpose in appearing before you is to review some of the basic concepts of parliamentary privilege, with a particular emphasis on what has traditionally been considered to constitute a “proceeding in Parliament”, the key concept of interest in the matter before the committee.

I would also like to outline a series of broad considerations that the committee may wish to take into account in pursuing its study.

Let me begin by returning to the statement made by the Speaker to the House on September 17, after the House, by unanimous consent, had passed a motion to waive its privileges in a particular access to information case. He described the facts of the case and the series of events that have led us here this morning.

Let me turn first to the outline of certain fundamental tenets of parliamentary privilege.

The Speaker states at page 10005 of Debates:

The privileges, powers and immunities of the House of Commons [...] include freedom of speech and debate as set out, among other places, in article 7 of the Bill of Rights, 1689, which provides that: The freedom of speech and debates of proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament.

As Erskine May's 24th edition, at page 227, states: —underlying the Bill of Rights is the privilege of both Houses to the exclusive cognizance of their own proceedings. Both Houses retain the right to be sole judge of the lawfulness of their own proceedings and to settle—or depart from—their own codes of procedure.

House of Commons Procedure and Practice, at pages 91 and 92, explains that proceedings in Parliament include the giving of evidence before the House of Commons or its committees; the presentation of a document to either the House of Commons or its committees; the preparation of a document for purposes of or incidental to the transacting of any such business; and the formulation, making or publication of a document, including a report, by or pursuant to an order of the House. This has been seen to extend to all evidence, submissions and preparation for the participation by all persons participating in the proceedings of the House of Commons or its committees, all of which are protected by all the privileges and immunities of the House.

Writing of parliamentary privilege and what constitutes proceedings in Parliament, Joseph Maingot's Parliamentary Privilege in Canada, second edition, at page 80 states:

Privilege of Parliament is founded on necessity, and is...those rights that are “absolutely necessary for the due execution of its powers.” Arguably, necessity should be a basis for any claim that an event was part of a “proceeding in Parliament,” i.e. what is claimed to be part of a “proceeding in Parliament” and thus protected should be necessarily incidental to a “proceeding in Parliament.”

Maingot goes on to emphasize that:

As a technical parliamentary term, “proceedings” are the events and the steps leading up to some formal action, including a decision, taken by the House in its collective capacity. All of those steps and events, the whole process by which the House reaches a decision (the principal part of which is called debate), are “proceedings”.

As members of the committee are aware, although House of Commons committees are not subject to the Access to Information Act, they are sometimes given third party notice under section 27 of the act in relation to access to information requests made of government departments or other agencies that are subject to the provisions of the act. What has traditionally happened is that the department or agency is informed that the information in question, because it forms part of a parliamentary proceeding, is protected by parliamentary privilege and thus should not be released by them under the act. That is where the matter usually ends.

What the House did in adopting its resolution on September 17, 2012, was to agree to withdraw its objection to the release of information in one case. In other words, the House chose not to invoke its privileges in this instance. Speaker Scheer reminded members:

—this decision applies only to this case at hand and it is not precedent setting. The House's rights and privileges have not been jeopardized by the House's resolution, nor has the House ceded any of its traditional rights or privileges, particularly as they relate to parliamentary committees.

The Speaker's statement confirms that the resolution does nothing to diminish the scope of its privileges, as the House understands them, in similar cases that may arise in the future but, as well, that the privileges and immunities of the House of Commons must be affirmed and protected. The House remains free and unfettered to exercise its privilege to insist that certain documents and communications not be disclosed or published by another party.

However, as the Speaker indicated, House committees and their officials will most likely continue to be confronted with this kind of third party request. At the same time, we know that only the House can decide whether it will not insist on its privileges or whether it will enforce them. Accordingly, one way to examine the issue before you is to ask: Is there a different, simpler way for parliamentarians, particularly those sitting on committees, to consider such third party requests?

I need to point out that we are referring here only to documents that are requested of departments and agencies, where these departments and agencies have the documents in their possession. We are not talking about the full range of committee documents.

I said earlier that House administration officials have regularly responded to such requests, first by determining if the material requested was part of a parliamentary proceeding, and if so, explaining that the material was covered by parliamentary privilege and could not be released. This was widely accepted by departments and agencies and posed no difficulties. I need to stress that the material requested in many of these cases was already publicly available, so it is not confidentiality that is the concern, it is the privileged nature of the proceedings.

Should the committee want to modify what has been the traditional approach, it may want to recommend a process that would allow expeditious handling of ATIP requests of this nature. However, I would caution the committee to remain mindful of the potential risks to House committees with respect to such access to information requests.

Let me outline a few potential areas of concern.

First, regarding confidential procedural advice, correspondence between the committee clerk and the chair, parliamentary secretary, committee members or departmental officials could reveal the content of procedural advice regarding the discussions or negotiations relating to the admissibility or the disposal of a motion or amendment to a bill.

Second would be witnesses. Correspondence between the committee clerk and the chair, the parliamentary secretary, department officials, or the witness could reveal the content of discussions on plans, questions, intentions or decisions of the committee regarding the selection of witnesses.

Correspondence containing various iterations of a witness's speaking notes, brief or documentation before his or her appearance before a committee could cause harm to his or her reputation or reveal information that would otherwise have remained private. Witnesses could be reluctant to share this information ahead of time if there was a fear that it could become public later on.

Third, regarding privacy issues, correspondence between the committee clerk and a witness who refuses to or cannot appear—for example, for health reasons—and gives the reason in the said correspondence could reveal personal information about the witness.

Fourth would be the disclosure of elements of a committee report. Correspondence between the committee clerk and/or the chair with a witness regarding the content or potential recommendations of a report could reveal elements of the report that were considered but not adopted by the committee or discussed during an in camera meeting.

Fifth, regarding committee decisions and plans, decisions that are made by the committee during an in camera meeting or that do not appear in the minutes of the committee meeting could be traced through correspondence—for instance, emails between department officials, the parliamentary secretary and the committee clerk before or after the meeting.

Correspondence between departmental officials and the committee clerk could reveal sensitive information regarding a committee's travel plans, subjects it is studying or matters it is interested in pursuing. In certain cases, this could involve issues dealing with national security or compromise the security of members—for example, travel to a military base in Afghanistan.

These are very general concerns that I am putting before you. They are not insurmountable and I'm confident that substantive discussions among members of this committee could lead to helpful recommendations on a proposed course of action.

I will close by suggesting to the committee that any proposed approach to deal with this issue should include, as an underlying principle, the protection of the privileges of the House and its members, and by extension, of those of its committees and its witnesses. In fact, I believe that in so doing the committee could make a significant contribution to House of Commons practice, allowing it to evolve to meet expectations on transparency, while protecting its fundamental rights and privileges.

Our role as House officials is to support you in this process and to ensure that you have available to you all the relevant information necessary to make the appropriate recommendations.

Thank you for your attention. The Deputy Law Clerk and I are now ready to answer any questions you may have.

11:15 a.m.

Conservative

The Chair Conservative Joe Preston

Thank you, Mr. Bosc.

We will go to questions and answers.

Mr. Lukiwski, you're up first.

11:15 a.m.

Conservative

Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK

Thank you, Chair.

Did we determine how much time we've got in each round?

11:15 a.m.

Conservative

The Chair Conservative Joe Preston

Yes. I think we'll do a seven-minute round and then we'll do a shorter round.

11:15 a.m.

Conservative

Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK

Thank you very much, Mr. Bosc and Mr. Denis, for being here.

Even though the issue at hand has been widely discussed, for the record, Mr. Bosc, perhaps you could relate the particular access to information case that led us to be here this morning and the one, of course, on which the House waived its privilege. Let's set the framework here and talk about this particular case.

If you could, please remind the committee members of the case in question.

11:15 a.m.

Deputy Clerk of the House of Commons, House of Commons

Marc Bosc

The case in question has to do with a request that came from the Office of the Auditor General to a number of committees. I'll quote the request and then I'll ask Richard to describe the particulars.

The request was for all emails pertaining to the Auditor General appearing in front of a parliamentary committee from 17 January 2012 to 17 April 2012. That was the nature of the request.

11:15 a.m.

Conservative

Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK

Okay. Mr. Denis.

11:15 a.m.

Richard Denis Deputy Law Clerk and Parliamentary Counsel, House of Commons

I will give a bit more detail about what the emails were referring to specifically: agendas of the committees; discussions between the clerks of the committees and the officials in the departments; appearances of witnesses; answers to questions posed by the committees and potential questions that may be asked; draft opening statements of witnesses; and other related committee business.

Generally, when we analyzed the documents, that's pretty much what they were talking about: appearances, how to prepare for them, and opening statements.

11:15 a.m.

Conservative

Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK

Correct me if I'm wrong, but was the Auditor General requesting this information because he felt this information would be able to assist him in his duties?

11:15 a.m.

Deputy Clerk of the House of Commons, House of Commons

Marc Bosc

No. This is a third party request. The Auditor General received a request under the Access to Information Act to release this information that involved the House.

In those circumstances the House, in this case these committees, are the target. They are a party to it.

11:15 a.m.

Conservative

Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK

The Auditor General received this third party request from whom?

11:15 a.m.

Deputy Clerk of the House of Commons, House of Commons

Marc Bosc

We're not normally advised of where it comes from.

11:15 a.m.

Conservative

Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK

All right. I don't think that really matters.

Was Parliament sitting at the time this request was made?

11:15 a.m.

Deputy Clerk of the House of Commons, House of Commons

Marc Bosc

No, it was not.

11:15 a.m.

Conservative

Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK

Would that have made a difference?