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

[Rob Walsh]

The important thing, to me, as an employee of the House of Commons, is to make a distinction between employees like Mr. Bard, the Chief Information Officer, and the others, the clerk and you. We don't have the authority to disclose things that are the property of the member.

[Thomas Mulcair, NDP, Outremont, QC]

No. We must not breach one privilege while trying to restore another. That's well said.

Thank you, Mr. Chair.

[The Chair, Conservative, Joe Preston]

We have finished that round. Now we'll do some one-offs, the same as we did the last time, until we use up a couple more minutes. We'll then move on to Mr. Bard.

Madame Ratansi, do you have a 30-minute question--sorry, I mean a 30-second question.

[Some hon. members]

Oh, oh!

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Thank you.

Everybody has been talking about the breach of privilege and the information, and you mentioned lobbyists. If you look at what the information was, it could have economic implications if it possibly ended up in businesses and businesses took advantage of that economic information because it was pre-budget.

They do not come under the Lobbying Act, so how would you suggest that we deal with information that's been leaked to businesses?

[Rob Walsh]

Are you concerned about how you could deal with the businesses that get the information?

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Yes, what happens? If Mr. Ullyatt may have given it directly to certain businesses for their advantage, how do you deal with it?

[Rob Walsh]

Leaving aside the Lobbying Act for a moment, whether it's a lobbyist who receives the information or a business person who receives the information, in both cases, in my view, they are responsible for governing themselves according to the circumstances in which they received the information.

As an example, a businessman cannot just say, “This brown envelope has landed on my desk. It contains all this confidential information. How very interesting. Off I go to the market and use this information.”

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Is that coded the same thing?

[Rob Walsh]

The fact that it's marked “confidential” from the start imposes an obligation on them to address that question. They would say to themselves, “I didn't ask for this information. It may have been accidentally dropped here. It doesn't belong to me. I didn't ask for it. I'm not really privy to what all this is about, but it sure is interesting, and it's marked secret/confidential.”

I would say the first obligation on the businessman is to find out who it does belong to, and to return it. But if he chooses not to do that and he chooses to use it for his own commercial benefit, then you get into the trouble of how do you police that. How are you going to actually bring back that commercial action by that businessman to that document? The fingerprints just aren't there. Do you know what I mean?

In the case of a lobbyist, you have the Lobbying Act. And don't forget, members are public office holders, as are their staff. So there may be avenues where the former employee, as a public office holder, could be subject to some action for his conduct here if it's outside the authority of the employer member. If he was acting without the authority of the employer member in what he did, he may have problems as a public office holder.

And the lobbyists themselves.... The problem is, if you go to the code--and that's what she's responsible for enforcing.... I'm not a lobbyist, I can assure you, and I must not understand lobbyists very well, but one of the provisions of the code--and it may not surprise you that it's not a very long code, it only has eight articles, and each of them is very short--the fifth one, is called “insider information”. And it reads as follows:

Lobbyists shall not use any confidential or other insider information obtained in the course of their lobbying activities to the disadvantage of their client, employer or organization.

Then under “confidential information” it says:

Lobbyists shall not divulge confidential information unless they have obtained the informed consent of their client, employer or organization, or disclosure is required by law.

This is the code now. It's a creation of the commissioner of lobbying; it's not a statute. But she is charged with looking into breaches of the code as well as the act itself. So if a lobbyist gets this information somehow.... If the lobbyist pursued this information and got it, that's a little more culpable. If the lobbyist was just having his lunch one day and it landed in front of him, okay, he has not done anything wrong so far. But then you look at what he's doing with that information. So maybe there is something here that has to be examined by the commissioner of lobbying as to what these lobbyists did relative to this code.

The problem here, of course, is that it's like the whistleblower commissioner, and there is not a great track record of effective policing of lobbyists that I am aware of by the commissioner of lobbying. But this committee might meet with the commissioner of lobbying and might call upon the commissioner to examine this matter and express an interest in receiving a report delivered to the House by her on this matter, and in due course take up the matter at that point.

[The Chair, Conservative, Joe Preston]

Great.

Mr. Albrecht, next. And Mr. Mulcair, I'll put you on the list.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you, Mr. Chair.

We're dealing with two aspects of this: one dealing with sanctions in a specific case, and in the other we're trying to find out how we can implement some procedures to minimize the likelihood of this sort of thing reoccurring.

I just want to clarify something I think I heard you say earlier. You said that it would be difficult for the committee or the House to direct the actions of its members in regard to something like this. And yet all of us here have a thick binder that directs our actions. We have the code. We have multiple layers of things that indicate what we can and can't do. So I'm having difficulty understanding where you were coming from with that statement. If you could clarify that for me it would help.

[Rob Walsh]

That's a fair question. Perhaps I wasn't clear enough earlier.

Yes, you do have a thick manual of directions. They emanate from the Board of Internal Economy, which has statutory responsibility under the Parliament of Canada Act for the financial and administrative affairs of the House.

This is not a matter within that domain. This is a matter of procedure, parliamentary practice. It's a matter with respect to which the House, not the board, could discipline a member, but typically it's a discipline that's imposed after the fact.

Earlier, Mr. Lukiwski was asking what preventive action could be taken, so that contemplates a set of rules being put in place as to how members shall carry out their parliamentary functions. I was having difficulty anticipating how that could be done effectively. But after the fact the House could decide that was contrary to best practices and impose some discipline on the member if the House thought that was appropriate.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

I understand that it may not be able to be incorporated into the current manual, but similarly in the way that the code has been adopted, setting a number of guidelines, you don't think it would be possible for us to set procedural guidelines as to how we can or cannot deal with information?

The Speaker was saying that not long ago committees had numbered copies and so on. What would keep us from indicating to committees that this is what they may do with those copies, this is what they may not do with those copies, whether that's in electronic form or in written form?

[Rob Walsh]

Nothing. The House could set that down in its procedural rules, or in its code attached to the Standing Orders, that with regard to committee reports, draft reports, they shall be this or they shall be that. You're right, this could be regulated in that fashion. Then, if this is infracted, it's not treated so much as a breach of privilege, it's treated as a procedural irregularity, and the House could then choose to impose some discipline on members who don't respect that rule. It's the House that has control of its procedure.

I'm just saying that in the absence of a procedural rule, put into the Standing Orders that you can't mess around with members as freely as you might like in a given case. For example, you couldn't take this case and go after the member without having the support of some well-established rule that the member would have.... I mean, privilege is well established, but it's not of a nature of a procedural rule that, if breached, could give rise to discipline.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Albrecht.

Madame DeBellefeuille.

[Claude DeBellefeuille, Bloc, Beauharnois—Salaberry, QC]

Thank you, Mr. Chair.

Mr. Walsh, earlier, you encouraged us to invite the Commissioner of Lobbying so we could get a better understanding of the connections, the sanctions, and so on, relating to lobbyists. I am not perfectly familiar with the Lobbying Act, but I know that a registered lobbyist has to file a report every three months and declare the names of the public office holders they have met with. Ministers and members, among others, are considered to be public office holders.

If the Commissioner wanted to ask the member in question whether she met with the lobbyists who received the document, would she be entitled to demand evidence from the member, to review her emails or determine whether there had been a lobbying relationship between her office, her assistant, herself and the lobbyist in question? Would the Act allow that?

[Rob Walsh]

I think it would, but the Act is not completely clear as to the methods available to the Commissioner of Lobbying. In any event, she conducts an investigation, and then submits a report to the House of Commons. If the House thinks that the report was not sufficient, it can ask the Commissioner to submit a supplementary report. In general, she is able to conduct an investigation.

[Claude DeBellefeuille, Bloc, Beauharnois—Salaberry, QC]

Into members?

[Rob Walsh]

No, into lobbyists.

[Claude DeBellefeuille, Bloc, Beauharnois—Salaberry, QC]

Right.

[Rob Walsh]

With respect to this case, it is possible that the Commissioner would be facing a roadblock. The question of privilege might be one. That is a legal question. However, I imagine that the member is going to cooperate with the Commissioner and disclose everything necessary to help her...

[Claude DeBellefeuille, Bloc, Beauharnois—Salaberry, QC]

...conduct her investigation.

[Rob Walsh]

That's right.

With respect to the lobbyists, that is another matter. There may be a problem in that regard.