Bill C-2 (39th Parliament, 1st Session) Committee on June 5th, 2006

[Rob Walsh]

Mr. Chairman, the statutes would govern public office-holders and the provisions of the House of Commons would govern members of Parliament. It might be that the same official would have responsibilities for inquiring into alleged conflicts with respect to either members or to public officer-holders, meaning ministers or a parliamentary secretary.

The problem, in my view, is that we have a situation in which there is an attempt by legislation to deal with ministers and parliamentary secretaries when they are acting as members voting and participating in debates. It's oil and water; you've crossed over, using statute, into the domain of the House. You crossed over and made provisions prohibiting members from voting or participating in debates if they would be in conflict were they to do so. The minister doesn't rise as a minister in the House; he rises as a member and votes as a member. The problem here is that putting it in statute means he can't vote in the House, because, as I said earlier, you've got this confusion that can emerge as to what the standing of the minister's vote is when he voted as a member and there's some allegation of a conflict.

It's a question of separation of the two branches, as we say in our paper. The House, constitutionally and traditionally, has control of its members, and the Prime Minister has control of his ministers--and of course the civil service as well. In mixing them up, you're creating confusion--process confusion, role confusion, and legal confusion. I'm not suggesting politically--politically it's very simple--but in a legal constitutional sense, it's confusing and could become problematic by virtue of the processes that could flow from it as a member tried to defend his or her position.

[The Chair, Conservative, David Tilson]

Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Let me get back to fixing it, but I want to say that I'm absolutely shocked that the Minister of Justice would get up in the House and quote your report as a means of shrugging it off, saying we can change this if it's unconstitutional, while at the same time refusing.... His parliamentary secretary is here today and could have said so, but didn't either. You, the government, could have proved that they have a constitutional opinion that disagrees with Mr. Walsh's. We haven't got that opinion, and I think the intention of the government, from the cavalier attitude of both the parliamentary secretary and the Minister of Justice in the House today, is to put this legislation over parliamentary privileges.

I take you to page 10--I think the numbers are off--and the third-last paragraph of your brief. Let's be clear. You would accept a request for an amendment put by a member, but I think you'd want some direction as to whether they want you to do A or B, and you put A or B in the third-last paragraph. You're saying that if we want the parliamentary privileges, which I take it haven't really been touched since 1868, to be subject to the conflict of interest code, you've set out the proposed amendment; if not, you've set out the other amendment.

I think it's imperative for this committee or for a member of the committee supporting the subjugation of parliamentary privileges to the new Conflict of Interest Act--which doesn't happen every day--to ask for that. It may be the debate of the committee. I think we have to have one or the other. The reference you made in your previous answer was that to have the secret ballot remain, however--if it is to remain--might require an amendment to the Constitution. That's a little more than an hour and a half clause-by-clause procedure, if I remember. Amending the Constitution--our attempts to do that are not met with great success in this country, but we're willing to do it here if we want to keep the secret ballot. Is that right?

[Rob Walsh]

Section 49 of the Constitution Act, 1867, requires that all questions be determined by a majority of voices. There might be some who think that's not terribly important.

Section 48 of the Constitution Act, 1867, requires that the House have a quorum of 20 before it starts its business. Every day in the morning, if any of you have been in there first thing--and I'm sure many of you have--the Speaker waits until he has a quorum. That's because the Constitution requires it. Also, there's a five-year limit for each House of Commons. Also, money bills can't be introduced in the Senate first; they have to be introduced in the House. That is respected, and you can be sure the House will insist that it be respected. And of course you have the royal recommendation. On Wednesday of last week the Speaker gave a ruling or a statement in the House on royal recommendations, and twice in his statement he referred to observing the Constitution. The next day, June 1, he revisited that subject at the invitation of a member who rose on a point of privilege and suggested that the matter could be taken to a committee and the committee could consider the matter and perhaps change the practices that the House currently has on private members' bills, subject to the Constitution.

I think it's quite evident that when you have something in the Constitution that directly applies to the House, it has to be taken seriously. As my paper indicates, the majority of voices is yea or nay. Someone said to me, what about electronic voting? With electronic voting, you still have to vote yea or nay, and then when you vote electronically, if you're sitting there, Mr. Murphy, in your chair, and you press a button and it goes up electronically to indicate what your vote is, that's fine, it's a way of recording your vote. Or you stand in the House and record your vote. But to go to a ballot, and no one knows how you voted.... The point isn't just that we like the sound of your voice on the yea or nay, but the point is, in my view, that the public is entitled to know how their representatives vote. Secret ballot votes go against that. I'm assuming here that this is the thinking behind section 49. It's a longstanding tradition that votes are done, yea or nay, and if you record, you rise in your place and you indicate how you voted. The second recording vote is not the vote. The vote took place earlier and then the members rise to confirm.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you for that answer.

I want to split my time with Ms. Jennings.

[The Chair, Conservative, David Tilson]

I'm sorry, you don't have much to split. You have another minute.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I just want to say that outdoors we can hear the voice of Sir John A. Macdonald in a Scottish reel opposing the taking away of the privileges of Parliament.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Is there any time left on Mr. Murphy's round?

[The Chair, Conservative, David Tilson]

No.

Mr. Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Mr. Walsh, I won't be asking you any questions, but I will make a comment. You can respond, if you wish.

To begin, I would like to distance myself from what certain committee members said and apologize for the lack of respect they showed you and the Constitution.

It is understandable that a member, due to a lack of experience, would ask who ordered a document and then demand that the official appear before the committee because he is paid to do so, and so on. That might be understandable. However, when a parliamentary secretary as much as says: “Hey, buddy, send me your 15 amendments, we'll take a look at them for an hour and then flush them down the toilet”, that is, in my opinion, inexcusable and unacceptable. I feel it shows an utter disregard for basic politeness. So I would like to distance myself from those remarks, because unfortunately I am a member of the committee even when such things are said.

Further, I never said that your document referred to a constitutional crisis. I simply said that your document referred to the Constitution. Unfortunately, though we are trying to conduct a rigorous study of Bill C-2—which was drafted in six weeks and which we are being asked to pass in three weeks—we are being accused of partisanship. As far as I know, you are not a member of any political party; you are the legal advisor for members of the House of Commons, and you are their protector. We have been accused, you—who raised the alarm—and I—while trying to do my job with rigour—of being guilty of partisanship and of being obstructive. In 13 years I have never witnessed anything like this and I find it unthinkable.

I would like to quote a passage from your document which is on page 5. It says:

Bill C-2 overlooks the necessary constitutional divide that gives exclusive authority to discipline members of the House of Commons to the House of Commons and authority to discipline public office holders (ministers and parliamentary secretaries) to the government.

This is merely one passage which underscores the fact that we must study your document closely and seriously, because it is highly relevant. We must also, in the same manner, consider Bill C-2. As well, as Mr. Murphy said a little earlier, it is possible that the intent is for the Constitution and constitutional rights acquired since 1867 not be respected anymore. If the government prefers one approach over another, it should do so openly. But that is not what is happening.

I would like to thank you for having written this document. I would like to thank you for having raised the alarm. I apologize for the irreverent and disrespectful things which have been directed at you. I certainly hope that your message will be heard. Unfortunately, it seems that the government still wishes to push this bill through for base political reasons, such as the fact that they want to make the Liberals pay for their previous low blows. I think that if we push the bill through too quickly, all members of Parliament, all officials and indeed all Canadians will pay the price for these petty political games.

That's all I had to say. I would be pleased to hear you respond, but if you don't do so, I'll understand.

[The Chair, Conservative, David Tilson]

Ms. Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Walsh, I would ask that when you sit down with your drafters, you draft an amendment to Bill C-2 that will clearly indicate that it is not the preference of this committee to allow the proposed Conflict of Interest Act to override the traditional and longstanding constitutional position and parliamentary privileges of the House and its members. Thus a provision should be, through amendment, inserted into the proposed Conflict of Interest Act to show that very clearly.

I believe--and I'm speaking for myself--that this House and its members, through this committee, should reflect long and hard before subjugating our privileges and the traditional position of the House and its members to any statute.

I would hope that the government, now that it is aware of the consequences of Bill C-2 as it is now written, if it wishes to proceed in like manner, would mount a convincing argument and debate on the issue before taking that ultimate step. I would hope as well that each member of this committee, regardless of which political party they belong to, before casting their vote to reject or adopt an amendment to the Conflict of Interest Act...which would state clearly that it does not override the constitutional position and parliamentary privileges of the House and its members.

Thank you.

[The Chair, Conservative, David Tilson]

Mr. Owen, I have your name down here. We're still on your dime.

Mr. Tonks.

[Alan Tonks, Liberal, York South—Weston, ON]

Mr. Walsh, does a committee have the flexibility to offer parliamentary privilege to the public when it appears before a committee?

[Rob Walsh]

Yes, when a member of the public sits in front of a committee, as I am here now, they enjoy all the protections of that committee meeting. It's a proceeding of the House and they are fully protected. We had to very quickly move to protect that rule when the Gomery commission wanted to use evidence of a witness before the public accounts committee in those proceedings, and we were successful.

[Alan Tonks, Liberal, York South—Weston, ON]

That leads to my second question. Is there anything in this bill on your concerns raised vis-à-vis parliamentary privilege as it relates to members of Parliament? Is there anything in the bill that would then affect the ability of the committee to offer protection to anyone appearing as a witness?

[Rob Walsh]

I'm not sure I fully appreciate your question. If you are asking whether proceedings of a committee would be adversely affected by provisions in the Conflict of Interest Act, it's only to the extent that parliamentary secretaries might not be able to participate in the debate or vote at committee where they would be in conflict. Secondly, an individual member might be concerned about their position, depending on the matter before the committee, and because of a possible process that could go on out there affecting that member, the member might prefer to withdraw from the committee just to avoid it.

So it's that avoidance strategy that starts to develop amongst people who feel they might be at the wrong end of some process. The avoidance strategy is to just not attend, and find someone else to attend instead. So that fear can give rise to an intrusion, if you like, into the proceedings of the House or a committee.

[Alan Tonks, Liberal, York South—Weston, ON]

And parliamentary secretaries, if they aren't privy councillors, wouldn't be protected—or they wouldn't have information that would be deemed to be “executive” information unless they were privy councillors.

[Rob Walsh]

I don't know what information a parliamentary secretary who is a privy councillor may have, as against that of a parliamentary secretary who's not a privy councillor. In either case, he or she is sitting on this committee and is participating as a member of Parliament.

[Alan Tonks, Liberal, York South—Weston, ON]

Right.

Thank you.

[The Chair, Conservative, David Tilson]

Mr. Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

I have two brief questions.

First, I want to make sure that everyone is clear on this. Members of the committee have the right to ask you to draft amendments. Do you realize that you were asked to do so? Do we have to make an official request?

[Rob Walsh]

No. Our lawyers are here and we will do what you ask. Just tell us exactly...

[The Chair, Conservative, David Tilson]

Mr. Sauvageau, as we've stated several times, if members want to make an amendment, only members of the committee can make the amendment. So if you have particular amendments, you can accept Mr. Walsh's offer and ask him, and you would present the amendment, not Mr. Walsh.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Now for my second question. I decided to ask it in committee, because our offices are not very close to each other.

Mr. Joe Wild, from the Department of Justice, who regularly appears before this committee, told us that he was going to provide us with legal advice. I would ask you to ask him to provide the committee with the Department of Justice's legal opinion on this bill—or rather, on this report—because when he appeared before the committee, he said that he had been involved with the bill since its beginnings.

I would like him, through you, to provide the committee with legal advice. Thank you very much.