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.
12:20 p.m.
NDP
Philip Toone NDP Gaspésie—Îles-de-la-Madeleine, QC
Actually, it will be a fairly brief question to follow up on the conversations there were on quasi-constitutional laws and the hierarchy.
The Parliament of Canada Act is a constitutional act. Is that right?
12:20 p.m.
Deputy Law Clerk and Parliamentary Counsel, House of Commons
Yes, it's a statute.
12:20 p.m.
NDP
Philip Toone NDP Gaspésie—Îles-de-la-Madeleine, QC
So if there were to be statutory changes, where would be the place to put them, especially if we want this to be bulletproof, as something that isn't actually below the access...?
If I'm understanding correctly, and I'm not clear that I do, the access to information law has been interpreted as being quasi-constitutional, even though the statute itself doesn't include any reference to that effect. Is that correct?
12:20 p.m.
Deputy Law Clerk and Parliamentary Counsel, House of Commons
Yes, that's correct. This is what Mr. Scott was explaining.
12:20 p.m.
NDP
Philip Toone NDP Gaspésie—Îles-de-la-Madeleine, QC
So if we were to put in amendments to perhaps enlarge or maybe clarify the access the public has, where would be the best place to put them? Would it be in the Parliament of Canada Act? Do we want to change the access to information law itself?
Do you have any opinions on this matter?
12:20 p.m.
Deputy Law Clerk and Parliamentary Counsel, House of Commons
As I was explaining earlier, an amendment to the Access to Information Act would only deal with the situation as it relates to access to information.
To cover in a general fashion in the statutes other situations in which privilege could be invoked or dealt with, I was proposing an amendment to the Parliament of Canada Act, which is a statute, but one that recognizes the privileges of the House, just as the Constitution does itself. The link to the Constitution and the fact that privilege has that nature would still be maintained and clearly expressed: that it must supercede, if you wish, and be recognized by the operation of the different statutes or in situations when privilege was raised as an issue.
12:20 p.m.
Conservative
The Chair Conservative Joe Preston
Thank you.
Could this committee adopt rules that ask or compel government institutions to notify when privileged records are sought?
12:20 p.m.
Deputy Law Clerk and Parliamentary Counsel, House of Commons
Well, you're dealing with the separation of powers, Mr. Chair, so it would be hard for one branch to ask another to do something. However, the House—or the committee, and then the House ultimately—could highly recommend that a certain approach be taken—
12:20 p.m.
Conservative
12:20 p.m.
Deputy Law Clerk and Parliamentary Counsel, House of Commons
—because ultimately it would show that Parliament itself, at least the House of Commons, has a view about respect for its privileges. In turn, the government would have to take that into account, I suspect, but you could not force them to put in place a specific process.
We're trying to look at a practical solution that would work for both. That's the objective here.
12:25 p.m.
Conservative
The Chair Conservative Joe Preston
Yes, I know. We keep running up against little curves as we try to do that, though; that's the issue.
I have no one else on my list.
Madame Latendresse, do you have a quick one? We'll try to finish up at the bottom of the hour.
12:25 p.m.
NDP
Alexandrine Latendresse NDP Louis-Saint-Laurent, QC
I apologize for coming back to this, but I wanted to see what Ms. Legault had said specifically, which led to some confusion, as I was explaining earlier.
When Ms. Legault appeared before the committee, she said this, and I quote:
As a result, if Parliament does not want disclosure on the basis of parliamentary privilege, it certainly puts this entire self-contained scheme of disclosure under extraordinary pressure. What you will find, if you have a clear case where there's no other exemption in the act and there is an assertion of parliamentary privilege, is that there is going to be a complaint to my office. I am going to review that, and I am going to basically have to say that I think I have jurisdiction to take the matter to Federal Court if I think the claim is not appropriate. You would also have the House of Commons taking this matter to court to prevent disclosure.
She explained that she would go to court in such situations. I think we should find some mechanism to avoid this type of situation.
December 6th, 2012 / 12:25 p.m.
Clerk of the House of Commons, House of Commons
Ms. Latendresse, I must say that we were a bit disappointed by the way in which the Access to Information Act was explained when Ms. Legault appeared before the committee. Parliamentary privilege was not taken into consideration, although it is a pillar of the Constitution and a parliamentary principle that is very well recognized.
Naturally, we do not share her legal interpretation. Perhaps this is a matter of semantics, but we insist on the fact that the documents, for instance in the famous case of the Auditor General, are protected by privilege. It is not that they were confidential.
In my opinion, what Mr. Martin was saying a few minutes ago makes an enormous difference with respect to access to information. In certain cases, you may be dealing with confidential documents, such as when you sit in camera, for example. However, in the situation that was of concern to everyone, that was not the case.
There is quite a marked difference. My colleague, who is a lawyer, may have some comments in this regard.
12:25 p.m.
Deputy Law Clerk and Parliamentary Counsel, House of Commons
I will quickly complete the answer.
It is true that this creates pressure on the system which, as it stands, allows Ms. Legault or the commissioner to look at things from the angle of the Access to Information Act. From that perspective, we understand her position.
However, there is a broader context, that of the Constitution and the effect of parliamentary privilege. We are talking here about information that affects the House of Commons or Parliament in general, and so it is very important that the House itself have the opportunity to express an opinion, and not a third party on behalf of the House. That is the solution we are trying to devise to solve this problem.
12:25 p.m.
Conservative
12:25 p.m.
NDP
Pat Martin NDP Winnipeg Centre, MB
I'll be brief.
Thank you, Mr. Chair, and thank you for the opportunity.
12:25 p.m.
NDP
Pat Martin NDP Winnipeg Centre, MB
I'm trying to be as gracious as I can. I still need your cooperation.
It strikes me that in our interest of defending the principle of parliamentary privilege, which I wholly support, we have to be cognizant of the fact that there's such a thing as too much privilege. There can be a surplus of parliamentary privilege.
I just read a book by Joseph Maingot on parliamentary privilege versus parliamentary inviolability. In the European Union, in some countries fugitives from justice hide behind being elected: they can be members of Parliament who can't be prosecuted, because they hide behind privilege.
The public has just about had it with concepts and notions like that. We live in a political environment. Guys like Berlusconi stay immune from prosecution while they're in office. The shroud of secrecy is over certain activities of Parliament because of parliamentary privilege.
These are not good things for us to run an election campaign on. I think we have to remind ourselves from time to time of the Open Government Act of John Reid, the former information commissioner.
Scott, I think you were probably aware of that in those days. The Conservative Party adopted it in its totality as a platform plank in 2006. He talked about “public interest override” having primacy over all other considerations in the administration of freedom of information, as he called it.
I see us drifting away from those laudable concepts.
I just had a conversation with Dominic here. Guys like David Dingwall ran afoul in trying to explain privilege to the public. It ain't no beach party trying to explain privilege to the general public. “Entitled”—he's still wearing that.
I think we should be really cautious. If there's a way to codify in legislation the notion that on a discretionary basis some activities of Parliament will be subject to freedom of information and some will be reserved, for good reason—such as what the Information Commissioner does on a daily basis in making that adjudication.... The notion of being excluded completely and—what's the other term?—exempted—
12:30 p.m.
NDP
Pat Martin NDP Winnipeg Centre, MB
Yes. I'm pretty well done.
I would like your comments on perhaps the former law clerk's recent book on the surplus of privilege, how privilege has to be curbed and contained or it can get out of control, Madam Clerk.
12:30 p.m.
Clerk of the House of Commons, House of Commons
If I may, Mr. Chairman, through you to Mr. Martin, Mr. Maingot's book on privilege and parliamentary inviolability uses privilege in the more global sense of that, where, as you so correctly point out, there are various rogues and miscreants who under the umbrella of privilege, because they're parliamentarians, can't be arrested, can do heaven knows what with impunity.
By contrast, sadly, the phrase “parliamentary privilege” is what we're stuck with here. But what it does is it basically attaches to the proceedings of Parliament and the independence of the House, so that we're stuck with the semantic thing. And I take your point about the fact that people tend to misuse it and misunderstand the phrase. I think one thing that would be helpful is that there have been suggestions.... And I believe the committee is looking at the possibility of setting up a way to deal with these third-party requests for documents so that committees, for example—very often it refers to committee stuff that went on, work or documents from committees—could be consulted about the documents in question, simply because they're proceedings of Parliament; that is to say, they have to do with the debate of the elected officials
If you take it back to its simplest, it allows members in the House freedom of speech that they enjoy on the floor of the House or in committee. To back away from the idea of parliamentary privilege because people don't understand it and think that it has been excessively used, which is only too true in many jurisdictions, I would strongly say that I don't think it's the case here. But certainly I think you have your work cut out for you in describing—and I think your report could play a very useful role in this—privilege in the Canadian context...and far too verbose clerks.
Mr. Chairman, I see you very kindly looking at the clock.
12:30 p.m.
Conservative