Procedure and House Affairs Committee on March 16th, 2011

[The Chair, Conservative, Joe Preston]

It being 10:30, let's go ahead and have a start to this meeting. This part of the meeting is televised and in public.

We're here today pursuant to the order of reference of Wednesday, March 9, on a question of privilege from the finance committee.

We do have Mr. Walsh with us today, but I want to do a little bit of chair business before we get started.

As many of you know, we have three issues before this committee right now. We did just have an in camera session on one of the reports. We're not finished it yet, so we'll be back to it. We also have a motion of privilege from the finance committee. Then we have a motion of privilege pertaining to CIDA.

To the committee, it will take all of our full cooperation to get through the next two or three days. We have a full agenda. You've asked your chair and the clerk to work hard on putting together a witness list, and we've done so. We've filled your days, so it will take all of you....

The first order of business for the committee after the Speaker refers motions of privilege to us in the sense of prima facie--that on the surface there is a case, and it comes to this committee--is to determine if there's significant reason to move forward. That is one of the first jobs of this committee. We will ask some of those questions of Mr. Walsh.

Convention has been, of late, that the Speaker would be the first witness we would have. The Speaker was not available to attend this week to be our first witness and to talk to us about his determining of each of these rulings.

As your chair, I did take it upon myself to have a quick conversation with him last Thursday. He shared with me that certainly in the case of the finance committee, the ruling speaks for itself and we should move forward. On the motion of privilege from CIDA, I questioned him on the prima facie case there, as we may have done if we'd had him as a witness. He suggested that he wasn't sure it wasn't just a prima facie case, but that the committee would move forward on it also and make its own determining there.

This committee tends to work in a very congenial and friendly manner, and your chair takes those liberties in order to keep us there.

[A voice]

[Inaudible--Editor]

[The Chair, Conservative, Joe Preston]

I know; I'm disappointed from this morning, but no....

[A voice]

[Inaudible--Editor]

[The Chair, Conservative, Joe Preston]

I just said I was disappointed; I didn't say why.

It will take all of us...and in good time, and good help, with the witnesses. We'll stick to our usual practices here of doing two different rounds of questions and then trying to get those who haven't yet asked a question of the witness a chance to ask questions in the last little bits of each of the hours of witnesses.

Without the Speaker here to lead this study, we have asked Mr. Walsh to come forward.

Mr. Walsh, perhaps you could just help out your chair. I know you don't have an opening statement--I'll get to you in just a second, Mr. Paquette--but I'm just looking to you to perhaps help the chair out a little bit with the definition of “prima facie”. Then we'll move forward to questions.

Mr. Paquette, did you want to go before the witness?

[Pierre Paquette, Bloc, Joliette, QC]

I see that two ministers are accompanied this afternoon by 10 senior officials. And yet we only have one hour to question them. I wanted to be sure that each one's opening presentation will be limited to five minutes.

[The Chair, Conservative, Joe Preston]

Your chair has asked each of the witnesses he's spoken to--he's not yet had a chance to speak to some of the witnesses--to keep themselves to five minutes. Everybody's going to live on a tight timeline today, and we're going to see if we can move forward. All right?

Mr. Walsh, I know you don't have an opening statement, but let's go ahead. Then we'll go to rounds of questioning.

[Rob Walsh, Law Clerk and Parliamentary Counsel, House of Commons]

Thank you, Mr. Chair.

I don't have an opening statement because it wasn't clear to me what specifically it was that I was being asked to address today. In the circumstances, I feared I would waste the committee's time going on a tangent that wasn't of interest to the committee.

Your question particularly relates to the status or the meaning of “prima facie” as a ruling by the Speaker. Well, prima facie is one of those nice Latin expressions that can be used for a variety of purposes. I suppose for a close translation, or a rough translation, in English we might say “at first blush”, on a reading through, do you see anything here that could, upon further examination, perhaps constitute a breach of privilege?

Don't forget, part of what's going on here with this practice is for the Speaker to rule out those points of privilege that may at first blush simply give no indication of any merit. So rather than take up the time of this committee or the House, he would not find prima facie.

But prima facie is not to be taken as conclusive of the question. It's simply saying “at first blush, it would appear”. This committee's job now is to examine the question in greater depth and to make a report to the House on whether, in its view, there is or is not a breach of privilege here.

[The Chair, Conservative, Joe Preston]

Great. Then we'll move to the first rounds of questioning from the official opposition.

Mr. Brison, are you going first?

[Scott Brison, Liberal, Kings—Hants, NS]

Yes.

[The Chair, Conservative, Joe Preston]

All right. You have seven minutes.

[Scott Brison, Liberal, Kings—Hants, NS]

Thank you.

Thank you very much, Mr. Walsh, for being here today.

As you know, the finance committee has requested from the government the costs of 18 of its U.S.-style prison bills. The government claims that this information is covered by cabinet confidence and they have refused to comply with the House order to provide Parliament with the costs and the breakdown of these costs.

Are cost projections covered by cabinet confidence once legislation has been tabled by the government and legislation has been introduced to the House of Commons?

[Rob Walsh]

Well, I would respond, Mr. Chairman, by saying that this information, whether it ever is or is not covered by cabinet confidence, is information of a kind, as the Speaker indicates in his ruling, that the House is entitled to receive. It may well be covered by cabinet confidence in earlier stages or continuing at the same time, even if legislation were never introduced. Arguably, with the introduction of legislation, to which this information pertains, there is a more compelling reason for the House to obtain it. But the two are not, in my view, connected directly.

[Scott Brison, Liberal, Kings—Hants, NS]

Should MPs be asked to vote on legislation without being provided with the costs of that legislation?

[Rob Walsh]

I don't know that that's a question the law clerk is competent to answer. It's a judgment for every member of the House to take according to his own understanding of what the legislation is about and whether it deserves to be approved or not approved.

[Scott Brison, Liberal, Kings—Hants, NS]

Is it in the public interest, in your opinion, for the government to provide this information to the House of Commons?

[Rob Walsh]

I can only speak generally in saying that it is in the public interest that we have a responsible form of government where the government is accountable to the House and, for that purpose, the House seeks information from the government from time to time to enable it to carry out its constitutional function. To the extent that the actions of the government in the minds of some are frustrating that, the carrying out of that function, then arguably it is not acting in the public interest.

[Scott Brison, Liberal, Kings—Hants, NS]

So you would argue that Parliament does have a right to this information.

[Rob Walsh]

I think as the Speaker himself indicates in his report on this occasion and on the decision of last April pertaining to Afghan detainees, Parliament has the right to receive whatever information it requests from the government as part of its constitutional function of holding the government to account.

However, let's not forget, it's always open to the government to say, “No, you're not going to get it”, for whatever reason. And then it takes its chances with the House, because the House may not be happy with that, and it's up to the House to decide what it's going to do about that.

So I'm not saying that the government can never say no. I'm just saying that if they say no, the onus is on them to justify why they're saying no, because the basic principle is that the House should receive whatever information it seeks for it to do its function in holding the government to account or, as you mentioned, in reviewing legislation.

[Scott Brison, Liberal, Kings—Hants, NS]

In December of 2009 you sent a letter to my colleague, Ujjal Dosanjh, which read in part that “the Committee...is at all times to be seen as carrying out its constitutional function of holding the Government to account”. You said, “This is fundamental to responsible government....” You went on to say, “The law of parliamentary privilege provides that this relationship operates unencumbered by legal constraints that might otherwise seem applicable”.

In your view, are there differences between that situation then and the one we face today? If so, what are those differences?

[Rob Walsh]

Fundamentally, I don't believe there are differences, if by that you mean where in this case the element of cabinet confidentiality is being invoked, whereas on that occasion the element of national security was being invoked. That difference doesn't, in my view, affect the outcome. The outcome is the same in that the Speaker indicated in his ruling that the House is entitled to receive the information it seeks from the government.

[Scott Brison, Liberal, Kings—Hants, NS]

So you would agree with the two parts of the Speaker's ruling: one, that the government had failed to table the requested documents; and, two, that there was no explanation provided by the government for why the large majority of documents had not been tabled. You would agree with both of those parts of the Speaker's ruling?

[Rob Walsh]

First of all, I would never disagree with the Speaker's ruling, of course, but those are observations of fact by the Speaker, and I think they're correct that that is the case.

[Scott Brison, Liberal, Kings—Hants, NS]

In House of Commons Procedure and Practice, second edition, it lists types of contempt. A couple are “deliberately altering, suppressing, concealing or destroying a paper required to be produced for the House or a committee”, and “without reasonable excuse, refusing to answer a question or provide information or produce papers formally required by the House or a committee”.

Would you agree that this breach of privilege would qualify as one or both of those types of contempt?

[Rob Walsh]

Mr. Chair, that's for the judgment of the committee to make, and it's not something on which I should exercise any judgment or venture any opinion. That would be presumptuous upon the task of the committee, in my view, respectfully.