In its current format, if a member, a minister or a parliamentary secretary were to challenge the act and to decide to seek legal advice, the matter could end up before the courts, which would generate uncertainty. In fact, the House could grind to a halt while waiting for the court to hand down a decision.
That is the problem that I see as a lawyer. Given that there is a conflict between the constitutionally guaranteed parliamentary privileges and the provisions contained in this bill, which are statutory provisions, somebody could initiate legal proceedings on the grounds that the act is contrary to the right of parliamentarians. Uncertainty would reign while you awaited the decision. It would be particularly problematic in the case of a tie vote or where the Chair had to vote in order to pass a motion. Furthermore, if somebody thought that a minister or a parliamentary secretary was a in a situation of conflict of interest, he or she could take the matter to court arguing that the vote ought to be nullified.
Clause 9 states that the courts cannot interfere in affairs of the House of Commons; however, were the Ethics Commissioner involved, the court could be asked to review his actions. That would create a situation of uncertainty. Would parliamentarians have to wait months, or even years, for a decision to determine whether a vote is to be upheld? As a lawyer, I do not like uncertainty. I want to see provisions that provide certainty as to the process to be followed.