Evidence of meeting #55 for Procedure and House Affairs in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was parliamentary.
A recording is available from Parliament.
12:15 p.m.
NDP
12:15 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
No, no, I just wanted to get it clarified, because there was then a discussion. There was then kind of a cascade of other comments all going back to it, and I just wanted to make sure we're talking about—
12:15 p.m.
NDP
Craig Scott NDP Toronto—Danforth, ON
It is about the fundamental principle being reflected in the act itself having some kind of a constitutional basis, and the way the courts talk about that particular act, themselves choosing to use the word “quasi-constitutional”, tells us something about the importance of the values and thereby the procedures giving effect to the values.
So whether or not it has this added dimension of prevailing over other acts in direct conflict situations, that's not what I'm talking about.
12:15 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
Okay. I just wanted to clarify that point.
That was my intervention. Thank you.
12:15 p.m.
Conservative
The Chair Conservative Joe Preston
Thank you.
Thank you, Professor Reid, Professor Scott. What time is the paper due?
12:15 p.m.
Voices
Oh, oh!
12:15 p.m.
Conservative
12:15 p.m.
Deputy Law Clerk and Parliamentary Counsel, House of Commons
I have a very quick comment. I would just comment that if you're faced with “quasi-constitutional” provisions and “constitutional” provisions, which is what parliamentary privilege is, you would have to argue that the fully constitutional provisions would prevail in a situation like this.
Thank you.
12:15 p.m.
Conservative
12:15 p.m.
Conservative
John Williamson Conservative New Brunswick Southwest, NB
Thank you.
I want to follow up on some of the thoughts Mr. Martin had. I'm going to disagree with him, I think, but I do first want to say that I agree with his thoughts on access to information, and I would actually look favourably on suggestions that we consider extending that law to cover the House of Commons.
But the point I want to make—and I'm curious to get your comments. Is that issue not a different issue than that of privilege? We ought not to surrender that privilege unless we choose to do so—sorry, we ought not to surrender our privilege unless we choose to do so in order to achieve the access to information.
I'm not sure I'm asking this correctly. I think we're two planes trying to go in the same direction; we're just flying at different altitudes. By that I mean we can applaud what Mr. Martin is suggesting here and the need to open up the Access to Information Act, but this is not the way to do it.
12:15 p.m.
Deputy Law Clerk and Parliamentary Counsel, House of Commons
No, and in fact it's really up to the House, and members in the House, ultimately, to decide what they want to do with the documents in question being covered by privilege and how they are to be released. On the question that we're dealing with documents that are privileged or covered by parliamentary privilege, it is only for the House to decide how they can be released. Certainly transparency might be a way for the committee to encourage and deal with it in a manner...but it's for the members and then ultimately the House to make that decision. It cannot be surrendered in any other fashion.
The clerk is just mentioning that you have to make that distinction between what is confidential and what is privileged, and again that distinction has to be kept in mind. That's why, through a process where types of documents can be identified, the release could be done to the satisfaction of most requesters. But ultimately, though, it's for the House itself to make that decision, because documents, in our opinion, would have to remain privileged, be covered by privilege, even though they're released.
December 6th, 2012 / 12:15 p.m.
Clerk of the House of Commons, House of Commons
Mr. Chairman, if I may, one of the things that we found especially frustrating, particularly about all of the kind of outside chatter when this Auditor General case came up, was the idea that somehow or other it made equivalent the idea that something was covered by parliamentary privilege, meaning it was something that we wanted to sort of keep hidden in some way, when in fact a lot of the material that's privileged is actually fully accessible. It's the transcripts of committee hearings; it's anything related to proceedings particularly. There are all kinds of other ways to get it.
We don't want to be ceding the privilege, that not being something that we ourselves or the Speaker can do. It rests with the House. We were trying to protect that sort of technical, although very important key point, but at the same time, there was an enormous amount of misunderstanding attaching to that, partly I think because of the semantics of it—“parliamentary privilege” sounds as if you're putting somebody off into some enthroned room and therefore inaccessible. That's not it at all. I think what the fundamental principle is, what you're trying to protect, is the idea that the House controls its own work and its own proceedings and its own deliberations, and that is what's ultimately sacrosanct.
The other stuff is available in all kinds of fashions. It's up on our website and whatnot. It's getting at it through access to information that raises the privilege flag.
12:20 p.m.
Conservative
John Williamson Conservative New Brunswick Southwest, NB
Right, and it would be a bit unusual—perverse, perhaps—for that power to be turned over to an officer of Parliament.
12:20 p.m.
Conservative
John Williamson Conservative New Brunswick Southwest, NB
Thank you.
I have one other question. You suggested—
12:20 p.m.
Conservative
John Williamson Conservative New Brunswick Southwest, NB
Okay.
You suggest an amendment to this document in front of you.
What is it?
12:20 p.m.
Deputy Law Clerk and Parliamentary Counsel, House of Commons
It's the Parliament of Canada Act.
12:20 p.m.
Conservative
John Williamson Conservative New Brunswick Southwest, NB
Thank you.
What impact would a change to that document have? What would it cover? Perhaps as a new parliamentarian I should know this, but I don't, so I'd like a little more light on it, please.
12:20 p.m.
Deputy Law Clerk and Parliamentary Counsel, House of Commons
In general terms, an amendment would be to the effect that no legislation could operate so as to infringe parliamentary privilege unless expressly provided for in a specific statute. So the constitutional status of privilege would be clearly stated.
In practical terms, if you applied that concept to the Access to Information Act, without an amendment a request would come to the House as a third party, but as part of the process, the Information Commissioner would have to consider the documents, and privilege would be considered. That would be clearly stated in the law, which is not the case right now.
12:20 p.m.
Conservative
The Chair Conservative Joe Preston
Thank you.
I'll go to Mr. Toone next, for four minutes—or thereabouts.
12:20 p.m.
NDP
Philip Toone NDP Gaspésie—Îles-de-la-Madeleine, QC
All right. Thank you, Mr. Chair. So we'll go for an even 10 minutes.
12:20 p.m.
Some hon. members
Oh, oh!