Thank you very much, Mr. Chairman.
I'd like to introduce my small, high-powered team, composed of Marie-Andrée Lajoie, who's the clerk assistant of committees. She is actually representative of the team of people who are working over in the committees directorate and is familiar with the various situations and she has a better hands-on grasp of the situations that have occurred in the various committees, so I have her here for important backup and as a security blanket of some dimension.
If I may, Mr. Chairman, I'd like to start with a brief opening statement, and then we can go straight to questions.
I'd like to thank the committee for inviting me to appear before you today concerning these two procedural issues—namely, rendering public in camera committee proceedings, and committees continuing to sit during divisions in the House. I'll take these one after the other.
First, let me look at the question of rendering public in camera committee proceedings.
It should be noted from the outset that when committees decide to receive evidence in camera, it's usually because they're dealing with sensitive issues: personnel matters, issues that are or may one day be before the courts, matters of national security, issues dealing with commercially sensitive information, or very often simply issues dealing with how the committee intends to proceed on a particular matter or issue itself. To allow people the freedom to speak absolutely openly, those meetings are often held in camera.
Consequently, committees may wish to exercise caution when deciding later to disclose sensitive information, especially when witnesses had been assured that their testimony would not be made public.
Over the years, evidence received in camera by parliamentary committees has been made public on several occasions. I can provide the committee with a list of various examples, going back as far as 1978. The reasons for rendering public in camera proceedings usually falls into three categories: first of all, to correct situations where the committee had inadvertently continued to sit in camera when it thought it had come out into public session; secondly, where the committee considered it important that a debate held in camera among members be made public; and thirdly, when the committee felt that evidence heard from witnesses in camera should be made public.
On all occasions, with one exception, motions to release transcripts of in camera meetings, made in committee, were passed with majority vote.
Here are more details about the 1978 case. The only exception is when the House ordered a committee to disclose evidence heard in camera. This was in 1978. Through unanimous consent, the House passed a motion ordering the Standing Committee on Justice and Legal Affairs to provide a commission of inquiry with the transcripts of two in camera committee meetings held during a previous session.
The order of reference stipulated that the terms and conditions under which these documents would be made available were to be established by the committee. A motion was adopted by the committee, by a majority vote, requiring that the transcripts be examined by representatives of the commission in camera and that they be returned to the committee immediately after the examination.
There is also a more recent case, in 2004, of evidence taken by the public accounts committee. On April 1, 2004, the Speaker delivered a ruling concerning a decision made that same day by the Standing Committee on Public Accounts to release in camera testimony taken during a previous session, specifically on July 9, 2002. The committee had adopted a motion in June 2002 agreeing that the transcript of that meeting would be made public three years from the date of the meeting if criminal charges had not been laid relating to the issues discussed; or if criminal charges had been laid, after all court proceedings, including appeals, were completed. But the witness in question agreed to waive the confidentiality of his 2002 testimony before the committee, and after a long debate and a number of challenges made to the committee chair's rulings, the committee adopted a motion on a recorded division to immediately render his testimony public.
In response to a question of privilege raised in the House, the Speaker ruled that in keeping with all rulings concerning the internal proceedings of a committee, he could not intervene. He also indicated that if the House had concerns about how the committee was conducting its work, it could direct the committee by way of a motion of instruction, moved either under private members' business or by unanimous consent.
In preparing for my appearance today, some research was undertaken regarding practices in other jurisdictions. The result of this research has been distributed to you.
I would point out that the document outlining the rules and practices of various authorities in other jurisdictions is not complete. We are currently updating it; we have appealed to members of the Commonwealth and other jurisdictions in Canada.
This includes major jurisdictions and is correct as far as it goes, but we have some other interesting information that's coming from a number of the states in Australia, for example, and we'll be happy to give you a revised sheet that includes those practices.
This leads us to the items that must be considered in relation to this issue. When the committee considers the possibility of releasing evidence heard during an in camera meeting, it may take into consideration the six following important points.
To start,
who is present? Should a distinction be made between an in camera meeting where only committee members are present, such as the housekeeping and internal discussions that I referred to earlier, and an in camera meeting where witnesses are appearing and giving evidence?
Second, there is the quality of the testimony. Will witnesses refuse to appear or be less forthcoming even in camera, knowing that their testimony might one day be made public? Should witnesses be warned of this possibility prior to testifying in camera? By the same token, will members feel more constrained in their comments if they know these may not remain in camera?
Third, there is the important issue of advising witnesses. Should witnesses be warned of this possibility prior to testifying in camera? The example I gave you earlier, of the public accounts committee, suggests that there was an agreement reached with the witness about the terms under which he was testifying.
Then there is the matter of evidence taken in previous sessions or Parliaments. Should a committee make public in camera evidence received by a committee in a previous session or Parliament? Should the consent of the members who were part of the committee at that time be required? That raises other questions, of course. What if members of the previous committee are no longer members of Parliament? In this regard, it should be noted that committees have adopted, in the past, motions whereby transcripts of in camera meetings are to be destroyed at the end of a session, thereby putting paid to that particular difficulty.
There is also the issue of instructions from the House. If the House orders a committee to release evidence, should it first consult the committee? There is also the issue of substitutes and witnesses.
Finally, Mr. Chairman, in either case, must the consent of members replacing the regular committee members or that of witnesses at the meeting be obtained?
So those are some of the questions that need to be addressed as you deliberate on the way of proceeding in such very serious cases.
Briefly then, Mr. Chairman, if I may return to the second issue that brings me here today, which is to say the question of committees continuing to sit during divisions in the House, the matter was raised in the House on March 1, 2007, by the chair of the Standing Committee on Industry, Science and Technology. He raised the question of whether committees may continue to sit while members are being summoned to the House for a vote.
The Speaker, in his ruling on the matter on March 22, noted that Standing Orders 108(1)(a) and 113(5) clearly confer upon standing and legislative committees the power to sit while the House is sitting.
Page 840 of the House of Commons Procedure and Practice reads as follows, and I quote:
While committees usually adjourn or suspend their proceedings when the division bells summon members to the Chamber for a vote, committees may continue to sit while a vote is being held.
Finally, Speaker Milliken noted that his predecessors had consistently ruled in support of this view; that is to say that committees were the master of their own procedures. He did, however, invite this committee to examine the issue and report back to the House.
A review of recent committee practice reveals that most committees do indeed suspend or adjourn when the division bells sound, although there are examples of committees continuing to sit. In most of these cases the committee makes a conscious decision to continue its proceedings or, as in the case of the Standing Committee on Industry, Science and Technology, it defeats a motion to adjourn. In one instance, the chair agreed to suspend only if there was unanimous consent to do so.
Some members have raised the issue of whether or not a committee chair could unilaterally suspend or adjourn a meeting when the division bells begin to sound. There is nothing we could find in the Standing Orders or in our procedural authorities that would confer such a power upon the chair. Indeed, the powers of the chair in this regard are limited to cases of serious and persistent disorder. I refer you to Marleau and Montpetit, at page 857.
So, there are at least two options that you may consider. First, the committee may consider the possibility introduced by Speaker Milliken in his March 22nd ruling, meaning that each committee adopts a routine motion at the beginning of each session, in order to establish how it will react if the division bell summons members during the committee's deliberations. I would be pleased to provide committees with an example of the wording of a similar motion.
This routine motion could also set out the procedure to be followed to adjourn a meeting if the committee does not have quorum following a recorded division in the House.
Alternatively, if the committee is of the view that committees should never continue to sit while divisions are occurring, it may wish to recommend changes to the Standing Orders limiting the powers of committees in this regard. Again, I would be pleased to suggest wording for such a change to the committee, if it so desires, but I should point out that traditionally it has been the way of the House to be very leery of limiting or in any way interfering in the notion that committees are masters of their own procedures.
I thank you for your attention.
I would pleased to answer any questions you may have
on either of these two issues.