Procedure and House Affairs Committee on Dec. 9th, 2010

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

Thank you.

And thank you, Mr. Walsh.

Picking up on what you just mentioned, Mr. Walsh, are you saying that a private individual could be called before the bar to apologize to the House, or are you talking about the member?

[Rob Walsh]

Well, you perhaps get into different considerations for the member. An individual, by order of the House, could be summoned to appear at the bar. With respect to a member, I understand the tradition is that a member is called upon to rise in his place.

It did happen once that a member was called upon to stand behind the bar, but I believe that in hindsight it was thought to have been inappropriate. I think that generally members are called upon to rise in their place, and the Speaker will then speak on behalf of the House to the member.

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

Again, I go back to the point that I've mentioned a number of times before. I think one of the primary functions of this committee and its examination is to try to hopefully develop some procedural protocols to ensure that this type of event does not happen again. There's no question that in the opinion of the committee members their privileges were breached, and that's why we're here today. Yes, we can talk about sanctions, and that may be appropriate. It may be a direction that this committee wants to pursue. But I also think we want to ensure that future incidents like this do not occur, so that in other committees members do not have their privileges breached.

You've been in your current capacity for a while. You're obviously intimately aware of some of the procedures that have gone on in past years. Do you have any advice primarily? We'll be getting into this with IT people and other security experts later on in our examinations, but just off the top of your head, do you have any observations you might be able to share with this committee from the security side of things as to what avenues we should perhaps be looking at in terms of trying to prevent this course of action from occurring in the future?

[Rob Walsh]

Mr. Chairman, Mr. Lukiwski talks in terms of preventive action, and I think there's something fundamentally problematic with that notion in this context. It arises from the fact that members of Parliament are here and to a large extent operate independently of each other and have rights as members, if you like, such that the House cannot set rules down. It would constrain them in carrying out their duty as members of Parliament. For example, you should copy every letter you send to your whip or you should copy every phone call you make—these sorts of things I think would be inconsistent with the independence of a member of Parliament in carrying out his or her parliamentary duties.

In terms of introducing some regime to prevent that, it's kind of hard to imagine what that might be. It's a policing regime of a kind that might be—

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

I'm speaking more about the employee side of things, rather than the individual member.

[Rob Walsh]

On the employee side of things, again, the independence of the member comes in here, because the employee operates under the direction of the employer, the member. So whatever rules you might want to impose on employees of members generally you are indirectly imposing on members as well in how they conduct their business in their offices and how they carry out their duties. That can be problematic as well.

I'd like to add a further consideration here, which may come up. You mentioned you're going to be talking to IT people of the House later this morning. Again, the independence of the member comes in here too. Documents, e-mails, and whatever a member sends out or receives are the property of the member, in my view. It's not open, in my view, to a committee to call upon House employees to produce a member's documents without the member's consent. That's not to say the House itself couldn't order such a thing, but it's problematic if it is contemplating opening a regime that would impose upon the chief information officer, let's say, on demand of a committee to produce all the e-mails of a member of Parliament. That would present problems for the independence of the member. I'm not saying the House, by order, couldn't do that, but it would be a departure that would be difficult to reconcile with the independence of members and the carrying out of their parliamentary functions.

[The Chair, Conservative, Joe Preston]

Thank you.

Monsieur Paquette.

[Pierre Paquette, Bloc, Joliette, QC]

Thank you for coming before the Standing Committee on Procedure and House Affairs to give us the benefit of your knowledge again, Mr. Walsh.

At the beginning, when you defined what a privilege is, I understood that privilege and breach of privilege are not so much defined by a legal standard as by how the House looks at something. That would mean it is virtually a political matter. But there is still a standard. For example, in this case, House of Commons Procedure and Practice says that committee reports must be confidential until they are tabled in the House.

Here, a standard for breach of privilege is set out in documents. Do you think there are other components of the standard for privilege and breach of privilege?

[Rob Walsh]

The question that arises here, before the committee, is another example of the interface between politics and law, both of them together. It's a problem because here, we have the Standing Orders of the House of Commons relating to confidentiality, but it is not a legal rule. I'm speaking as parliamentary counsel concerning the legal principles that apply to parliamentary matters, for example contempt or privilege.

But when it comes to the practice or actions of this committee and the decision of the House of Commons, that is a judgment call on the part of the committee, the members present and the House of Commons. There is no court that will consider this question, that will make a rule or take action against the House of Commons. That will never happen, because it is independent of the court. In that sense, it is not a legal question that can be considered by the court.

[Pierre Paquette, Bloc, Joliette, QC]

Everyone acknowledges that there was a breach of privilege. That helps to give us a better idea of what a privilege is. It is often invoked in our debates.

Let's talk about sanctions for breach of privilege. On that point, the only consequence has been that the member apologized to the House. In the past, to your knowledge, what kinds of sanctions have resulted from a breach of privilege?

[Rob Walsh]

It depends on the privilege. Often, an apology is sufficient to resolve a situation. There has been no imprisonment since 1913. There are not many examples we can use to answer the question.

In terms of the question of privilege, the public debate is sufficient to let the people involved know that bad things have been done and that all other punishments have been ruled out. There is no very effective penalty that can be imposed on people.

For example, there are lobbyists. The Office of the Commissioner of Lobbying is responsible for lobbyists, not the House of Commons or the committee. What are we going to do with the lobbyists: are we going to talk about contempt and demand apologies to the House of Commons? It isn't up to you to impose punishment on lobbyists.

[Pierre Paquette, Bloc, Joliette, QC]

We are starting our work, and I think we have to dig into the circumstances in which it all happened. We have to know exactly what responsibility Ms. Block bears. That is the point I see in it, but for a sanction, I don't see that.

Let's assume, and this would be quite serious, that she was aware and even encouraged her employee to act as he did. Could the committee recommend to the House that the member resign? Can it go that far? Is that a line that can't be overstepped?

[Rob Walsh]

In theory, you can recommend what you like. It's possible, but will it have the desired effect, without an order of the House of Commons? I think that in theory, the House of Commons has the power to declare a member's seat vacant for any reason whatsoever. But there are others who think not, because a member is elected by the citizens in a riding. In my opinion, it is not appropriate for the House of Commons to expel a member, in the sense of declaring that the person is no longer a member of Parliament. The House of Commons has the power to expel a member from the House, that is, to limit a member's privileges. That is a form of discipline. The House of Commons has the power to discipline members, certainly, but I don't think it has the power to oust a member from office. There are people who think it does, however.

[The Chair, Conservative, Joe Preston]

Mr. Mulcair.

[Thomas Mulcair, NDP, Outremont, QC]

You have heard the Speaker and the Clerk of the House, and the IT people. You will understand that the committee is trying to organize its work this morning in such a way as to deal with the institutional aspect upstream and look at the various possibilities with you.

Have I understood correctly? Do you think we should perhaps consider meeting with the Commissioner of Lobbying?

[Rob Walsh]

I think so. In my opinion, having the Commissioner appear before the committee to talk about her powers and her options for resolving the situation is a good idea.

[Thomas Mulcair, NDP, Outremont, QC]

I will adopt that suggestion, perhaps later, when we have met with the lobbyists and have more information. I think the idea is starting to take shape for me too.

Mr. Walsh, you said that

the employee operates under the employer member.

So that is a somewhat classic example of the idea of employer-employee responsibility. Do you make a distinction between an intentional act—Mr. Paquette stated the hypothesis and I would point out that it is purely hypothetical in my case as well—and a case where someone was simply negligent by not impressing it strongly enough on the employee? Is there a distinction between that possibility and telling an employee that as soon as they receive the report they should send it to a list of specific people?

[Rob Walsh]

Yes, there is a distinction. That's true. It's a matter of the degree of culpability. But the member is still responsible, as an employer. Whether it is negligence or an express directive from the employer, they are still responsible for the results and consequences for other people. It is the member's responsibility, as an employer, as it is for other employers in general.

[Thomas Mulcair, NDP, Outremont, QC]

You have raised a subject that I would like to use the rest of my time for, because it is a very important question. You are here in an important role: you are our legal counsel.

Later, we will be meeting the IT people.

You kind of put a damper on what we are and are not entitled to examine, and explained that we do have to respect the independence of every member. That is another principle we have to stand up for, I completely agree with you on that. Do you have any techniques to propose to us that would allow us to lift the veil on this situation without violating that right?

We are going to assume, for the purposes of this discussion, that there are only these five lobbyists. On that assumption, first, is there a way to determine what other communications there were between that employee and the five lobbyists in question, without examining the content? Do you think it is a breach of the member's independence to want to know at least whether there were other communications, without asking to know the content? Can we at least know that, without asking the member to tell us the content of those communications?

[Rob Walsh]

I think it is difficult to separate the unauthorized emails from the others. If the emails were sent to the member's email account, they become the property of the member. In my opinion, the response of a committee like this one to that kind of situation is comparable to a court's response. You ask the member to provide the documents and they have the right to refuse, but the committee may draw negative inferences against a member who didn't want to provide it with the documents. The member may still keep the documents, but there is a risk in that, because the committee may draw negative inferences against the member.

[Thomas Mulcair, NDP, Outremont, QC]

So when we meet the IT people later this morning, it will be a good idea, first, to ask them what it is possible to know, what they can examine, what is left on the hard disks, the backup systems. We can ask them that. We can also look at what happened on the morning itself, to determine whether other emails exchanged with the five lobbyists were sent at the same time or not. We can ask them those questions.

Then, when we meet with the member in question, it will be a good idea to tell her that we have some information, but it is up to her to tell us whether she wants to cooperate. We have to get her permission; otherwise we will be on a dead-end street.

[Rob Walsh]

Yes, but the committee has the option of drawing negative inferences regarding the member.

[Thomas Mulcair, NDP, Outremont, QC]

Of course. We can have a negative inference regarding her, if that is the case.

[Rob Walsh]

That is the risk for the member.

[Thomas Mulcair, NDP, Outremont, QC]

Yes, that's right. It would have a negative effect on our perception of whether there was scienter in that regard.