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

[The Chair, Conservative, Joe Preston]

I'll call our meeting to order. Good morning, all.

We are here pursuant to the order of reference regarding a question of privilege relating to the premature disclosure on November 18, 2010, of the confidential draft report on the pre-budget consultations of the Standing Committee on Finance.

We will have the Speaker and the Clerk of the House here for the first bit of our meeting today, Mr. Walsh for a piece of our meeting, and we have Louis Bard from IT here today. We're going to try to do quick rounds with each of them.

I have a quick question for the group, which we forgot to deal with at the last meeting. The chair had asked you all to give him input on a certain survey that you were handed so that we can distribute it. I've heard nothing from anyone. If I've heard nothing by the end of the day, I'll take it that the survey is okay to release.

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

Yes, you had given us a survey, but we've been so busy with other things.

[The Chair, Conservative, Joe Preston]

I know you were so busy with other things.

I'll just leave that with you, and if you haven't seen it, we'll make sure that you do get it. But we would like to get it out before we recess.

Mr. Speaker, with that little bit of business done, we'll go to you, please. You have a few opening comments, and then we'll ask you some questions.

[Peter Milliken, Liberal, Speaker of the House of Commons]

Thank you, Mr. Chairman.

I want to thank the committee for inviting me to appear today as it undertakes consideration of the question of privilege referred to it by the House on November 29, 2010, regarding the premature disclosure of the draft pre-budget consultation report of the Standing Committee on Finance.

As I indicated in my ruling on this matter, it is unusual for the chair to involve itself in committee proceedings. However, the Standing Committee on Finance felt so strongly about the leak of its draft report that it took the rare step of reporting it to the House as a possible breach of privilege, unanimously believing that it merited further investigation.

As honourable members of the committee will know, the role of the Speaker when questions of privilege are raised is narrowly defined. As House of Commons Procedure and Practice, second edition, states at page 141:

The function of the Speaker is limited to deciding whether the matter is of such a character as to entitle the Member who has raised the question to move a motion which will have priority over Orders of the Day; that is, in the Speaker's opinion, there is a prima facie question of privilege. If there is, the House must take the matter into immediate consideration. Ultimately, it is the House which decides whether a breach of privilege or a contempt has been committed.

This is precisely what has happened in this case. The Member for Outremont raised the question, I made a ruling, the House debated and agreed with the motion that was moved, and here we are with this committee seized of the matter.

I referred in my ruling to House of Commons Procedure and Practice, second edition, which is very clear about the confidential nature of committee reports. On page 1073 it states:

Committee reports must be presented to the House before they can be released to the public. Even when a report is concurred in at a public meeting, the report itself is considered confidential until it has actually been presented to the House. In addition, any disclosure of the contents of a report prior to presentation, either by Members or non-Members, may be judged to be a breach of privilege.

I went on to state on page 6560 of the House of Commons Debates that:

It is with good reason that draft committee reports are treated as confidential. To do otherwise might well prejudice the ability of committee members to engage in candid deliberations free from outside interference. Violation of this principle of confidentiality can thus be seen as direct interference with the ability of members to discharge their duties.

Confidentiality was clearly the overarching, institutional issue and its infringement was the primary reason for finding the matter prima facie.

Not so long ago, many committees had strict processes in place to protect the confidential nature of committee reports. For example, access to the draft reports was limited, copies were numbered and distributed at meetings only, and no copies were allowed to leave the room. Today, however, we've come to rely heavily on technological tools to distribute information. And while on the one hand they can facilitate our work and make us more efficient, on the other hand, they give us the ability to disseminate confidential information quickly and widely with the mere push of a button.

I do not believe it is realistic to think that it's possible to turn back the clock and return to past practices that do not harness the power of the tools that are at our disposal. As such, the real challenge for this committee, in my view, lies in developing recommendations that will facilitate the consideration of confidential documents within the context of the evolving technological environment. Whether this could be achieved through changes to the Standing Orders or whether it requires other changes in order to achieve this remains for this committee to decide.

The order of reference now before you offers the committee an excellent opportunity to investigate the larger issue of confidentiality and perhaps to recommend changes to our rules and our practices with a view to preventing this from happening again.

I would like to commend the Committee for its prompt attention to this matter, and would be pleased to answer any questions the Committee may have.

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you so much.

We will start with Ms. Ratansi. We're doing five-minute rounds, and we'll be fairly strict because we have a lot of things to cover today.

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

Thank you.

I agree that confidentiality was indeed an issue, and we're very concerned, because that material that was released, the confidential material, was pre-budget consultation material. We were wondering whether they could have provided undue advantage to those lobbyists. It may be possible that we may find evidence that Mr. Ullyat was either induced or directed by someone to make this unauthorized disclosure, and we may even find that this may not be a one-off or a continuous, long stream of unauthorized disclosure.

So in terms of penalties, the staff in question, if it happens again, or whatever, resigned or were fired. Do you think that's enough? Is there anything that can be done or could be done or in the future, or should be done?

[Peter Milliken, Liberal, Kingston and the Islands, ON]

The committee is master of its own procedure. In that respect, the committee can decide if it wants to recommend that more be done. The committee can look into the affair. It can decide whether more happened than what has been revealed or less than what has been revealed. It can decide if there's something else that should be done in respect of a possible contempt of the House in this case and make recommendations accordingly.

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

Fair enough.

At the moment, Mr. Speaker, there's no prohibition of the member or any other member hiring Mr. Ullyat. There's no rule in place that would prohibit Mr. Ullyat from taking advantage of his leaks or being hired by any lobby firms. If it is found that one of the lobby firms induced Mr. Ullyat's action, and there seem to be no sanctions that could be applied, do you have any thoughts on how these aspects could be addressed?

[Peter Milliken, Liberal, Kingston and the Islands, ON]

You can certainly approach the lobbying commissioner, who is somewhat expert in this and is aware of the rules that govern lobbyists in our country, which are enacted by law. I think your question might be better directed at someone like that, if you're looking at what else to do in terms of sanctions or “punishment”, if I can use that expression.

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

I know you have to manoeuvre around a lot of things. When secret documents are leaked, for example, like the one that was the Afghan ambassador's cable leak to Ivison at the National Post, and the 2007 leak of the climate change documents, the RCMP were called. In the latter case, the employee was removed with handcuffs. What happens when secret documents are leaked? How should Parliament treat it? Should it treat it less seriously than what happened with the climate change documents and the Afghan documents? What happens? How do we do that?

[Peter Milliken, Liberal, Kingston and the Islands, ON]

I don't pretend to be an expert on the various ways these things have been enforced in the past. Certainly when I was first elected there were prison cells down the hall there that they could use to lock people up who weren't connected to the House. I don't know that they were ever used for any length of time. They were there. Now they're full of files and things, I think. They're used as a space for that purpose.

Imprisonment has become a little less popular until more recently in this country. Maybe that's the reason. There are lots of prisons in my constituency. I always recommend sending somebody there if necessary, I guess. That's up to the committee, not to me.

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

Fair enough.

The committee was debating whether the scope should be institutional, limited, etc., and I don't think the scope, from what you're telling us, should be limited to anything. Yes, we are the master of our own destiny and we are the master of how this study should go. As we move along, I guess we can expand the scope so that we can ensure that these things probably don't happen. I guess we've also asked the analysts to tell us.... The analysts may be taking a long time to find it, but have you any idea whether other jurisdictions have had a similar experience and have had problems?

[Peter Milliken, Liberal, Kingston and the Islands, ON]

I haven't inquired into that myself. No, I'm unaware, I'm sorry. I haven't looked at it, but certainly again you would be free to examine what other parliaments are doing as part of your inquiry, and the clerk could get some information from other clerks too.

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

Thank you.

[The Chair, Conservative, Joe Preston]

Mr. Lukiwski.

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

Thanks, Chair.

And thank you, Mr. Speaker, and Ms. O'Brien, for being here.

My first question is more to satisfy my curiosity from a procedural standpoint than anything else, Speaker. In looking at definitions of privilege versus contempt, it appeared to me that this issue leans a little closer to the contempt side of things than privilege. I wanted to get your opinion on that and whether one could have both and be found in violation of privilege and contempt at the same time.

[Peter Milliken, Liberal, Kingston and the Islands, ON]

Well, I think so, because if you're in contempt of Parliament, you're breaching its privileges. That's my....

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

Why is there the distinction, though, between the two in procedure and practices?

[Peter Milliken, Liberal, Kingston and the Islands, ON]

I don't know how much of a distinction there is in practice. If someone is found in contempt of Parliament, they can be treated as though they had breached the privileges of Parliament. I don't think there's a huge difference.

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

All right. Well, that's good.

[Peter Milliken, Liberal, Kingston and the Islands, ON]

Do you know what I mean?

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

Sure.

I didn't know if there were different sanctions or different ways of dealing with contempt versus privilege. Apparently there are not.

[Peter Milliken, Liberal, Kingston and the Islands, ON]

I don't think so, but most of the questions of privilege we deal with are ones that arise in the House because of something that happened in the chamber, or something that's happened to some member dealing with their ability to act in the chamber. So we don't normally have a contempt issue mixed in with it.

This case had nothing to do with the chamber itself. It had to do with a committee.

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

Okay, thank you for that.

I just have another question. There have been cases in the past where there have been leaks of committee documents. In those cases, some were found to be issues of privilege and some were not.

You mentioned in your ruling a couple of things. Number one, the committee itself had unanimously passed a report asking the House to look at this as perhaps being a potential breach of privilege. Also, you paid some attention to what you called, I think, the “institutional dimension”. And that factored into your decision.

On the institutional side of things, I wonder if you could clarify a little bit for the committee why you felt it would be more of an issue of privilege dealing with the institution, as opposed to perhaps individual members.

[Peter Milliken, Liberal, Kingston and the Islands, ON]

Because of the leak of the draft report, I felt that it affected the institution more if we were unable to maintain confidentiality of documents in our committees. I think it's important that committees be able to function. Let's say a committee has an in camera hearing, for example, and certain things are said in camera: it's for the committee to decide what is made public, not for someone who was sitting in there listening to it to trot it out.