Evidence of meeting #46 for Procedure and House Affairs in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was mailings.
A video is available from Parliament.
Conservative
Conservative
Conservative
NDP
Peter Julian NDP Burnaby—New Westminster, BC
Actually, Mr. Chair, I think I may take the spot this time, and then we can go to Mr. Scott.
I'm sorry about that; we're all eager to ask questions.
Just following up on Mr. Lukiwski's questions, which actually were extremely helpful, I have in front of me a mailing that was done by the Conservatives. I'm getting a lot of complaints, actually, about very vicious partisan mailings coming out from the Conservative Party.
This one talks about Mulcair's NDP proposing “billions in reckless additional spending, to be paid for”, and it talks about “new taxes and higher debt”. It say that we “can't afford Mulcair's risky economic theories”, and talks about the Conservative government being “focused” on things. It actually asks the question of “who's on the right track”, including Conservatives, Greens, NDP, and Liberals. That's the type of vicious partisan mailing that we're getting a lot of complaints about. I know there was a complaint sent to the board and the House administration about this.
I gather from your answer, Mr. Denis, that the Board of Internal Economy is the one that makes the decisions, so I guess you may not be able to answer this, but has something like this, this very partisan Conservative mailing, been analyzed in any way?
If you can't answer that, I guess my follow-up question would be this. Is it not the Board of Internal Economy, which has a Conservative majority, that ultimately makes the decision as to what mailings are evaluated by the House administration or not?
Deputy Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chair, every mailing that is brought to the attention of the board is looked at by it and a decision is made. If it's properly brought to the board, it's the board, ultimately, that makes the decision.
I cannot comment specifically on this one, Mr. Julian, but I can assure you that the material that's brought to the board is in front of the whole board for them to make the decision.
NDP
Peter Julian NDP Burnaby—New Westminster, BC
Thank you. That answers my question. So it's the Board of Internal Economy, which is composed of a Conservative majority, that makes that decision.
I'll pass my speaking spot over to Mr. Scott.
NDP
Craig Scott NDP Toronto—Danforth, ON
Thank you very much.
Mr. Denis, the House of Commons is certainly not a rule-of-law-free zone, correct? So I'm wondering if there is some sort of presumption that you and your staff, and your colleagues, actually...some sort of presumption that House institutions should respect fundamental legal principles that would otherwise apply in Canada's legal system unless there are clear reasons related to the nature of Parliament to depart from them or unless there's sort of clear internal legal authority not to abide by them.
I'm thinking particularly of rules of procedural justice and that kind of stuff. In any kind of a House context, if there was nothing precluding those rules applying, would the House institutions, as a matter of the rule of law, be asked or expected to conform to those kinds of principles?
Deputy Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chair, the rules that apply to the board, similar to the rules that apply to parliamentary committees, are the rules these two groups give themselves. There is no set of rules that specifically apply. There are mostly self-made rules.
If you look at the bylaws of the Board of Internal Economy, specifically at the bylaw that deals with the rules of practice and procedure of the board, you will not find anything about how it conducts its own proceedings. It's all internal.
NDP
Craig Scott NDP Toronto—Danforth, ON
Thank you.
So we're dealing with self-made rules that may or may not conform with broader fundamental principles of justice.
How much time do I have, Mr. Chair?
NDP
Craig Scott NDP Toronto—Danforth, ON
Mr. Denis, think about maybe the members of Parliament involved here. Assume someone's accused of not following rules, whether contractual or regulatory, whether important or less important, and then a House body, the BOIE here, meets to decide whether this is actually so and what the consequences are.
Now, the person—just assume it's an MP—is never informed of the meetings discussing his case, never asked to answer regarding the case, never shown the evidence or legal arguments against him, and never invited to present arguments or to be heard. Then assume a member of that body comes out of a meeting and gives a press conference saying this person has broken the rules and must make amends. There's no written decision of any consequence—just an annotation, so to speak, from almost minutes—let alone one that sets out reasons that can be assessed for validity or coherence. Then the person might receive a letter from an official that might or might not actually use the same language as the applicable rules the member was seeking to abide by. To top it all off, within this internal system, there's no avenue for appeal.
If that were to take place, quite apart from whether those were the facts, as a lawyer, would you say that accords with principles of fundamental justice or natural justice? Are MPs actually being treated in accordance with the norms that we would normally expect to apply outside of the context of the BOIE?
Deputy Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chair, I don't want to answer this question specifically. However, I just want to remind members that the board is composed of members from all the recognized parties. Board members are all provided with the same material when material goes to the board. Each member is aware of the agenda, the material that's presented, and has an equal opportunity to assess the evidence and present more evidence if necessary, and arguments can at least be made at the board. So there is a process.
However, if a member is not satisfied with the decision or feels not enough information was provided, I just want to point out to members that section 9 of the Rules of Practice and Procedure of the Board of Internal Economy provides that a member or the House administration may make requests to the board for “direction on the interpretation or application of the By-laws”.
So for someone who feels they don't have enough information about a decision, there is an existing process for them to go through. Subsection 9(2) tells us the request referred must be made in writing, in the case of a member, through the whip—so the whips are there as well—and an answer must be provided by the board within 20 sitting days. So there is a process further to a decision of the board.
Conservative
The Chair Conservative Joe Preston
Thank you, Mr. Denis.
Thank you, Mr. Scott.
We'll go to Mr. Lamoureux, for seven minutes.
Liberal
Kevin Lamoureux Liberal Winnipeg North, MB
Thank you, Mr. Chair.
Mr. Denis, I hope to get five questions answered from you, and I'll try to be as short and concise as possible.
I would like to ask about the oath of secrecy members of the Board of Internal Economy must swear, according to subsection 50(5) of the Parliament of Canada Act, which states the following:
Every member of the Board shall, as soon as practicable after becoming a member of the Board, take before the Clerk of the House of Commons an oath or affirmation of fidelity and secrecy in the form set out in Form 3 of the schedule.
Subsection 50(6) states:
For greater certainty, the oath or affirmation referred to in subsection (5) only relates to matters of security, employment and staff relations, tenders and investigations in relation to a member of the House of Commons....
We are, in fact, in favour of open meetings of the Board of Internal Economy, and my leader, in fact, has a bill to do just that.
Can you please tell the committee if the oath of fidelity and secrecy currently contained in the Parliament of Canada Act applies to the issue we are discussing today? It seems to fall under the rubric of investigation in relation to a member of the House of Commons.
Deputy Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chair, I would answer yes, in the sense that, for the case at hand, we have a decision of the board that was made to refer documents to this committee to help it in the furtherance of its mandate. If you look at the oath that members take, it specifically says:
I will not communicate or allow to be communicated to any person without due authority in that behalf any information....
The view would be that “due authority” came from the board. The fact that we were faced at this committee with an instruction from the House meant that the board could go ahead and transmit the information.
Liberal
Kevin Lamoureux Liberal Winnipeg North, MB
On June 12, the Board of Internal Economy made a determination regarding an inappropriate use of House of Commons' resources, and directed that this money be reimbursed. It was my understanding that the decision was taken based on the recommendations of the non-partisan professional civil servants of the House of Commons. Can you comment on that?
Deputy Law Clerk and Parliamentary Counsel, House of Commons
All I can say, Mr. Chair, is that information from the House administration is provided to the board, and the board itself, looking at what is presented, makes the decision ultimately on whether or not in its opinion the resources were properly used.
Liberal
Kevin Lamoureux Liberal Winnipeg North, MB
I'm going to refer to something that you made reference to earlier, and that's section 52.6 of the Parliament of Canada Act, which states the following:
The Board has the exclusive authority to determine whether any previous, current or proposed use by a member of the House of Commons of any funds, goods, services or premises made available to that member for the carrying out of parliamentary functions is or was proper, given the discharge of the parliamentary functions of members of the House of Commons, including whether any such use is or was proper having regard to the intent and purpose of the by-laws made under subsection 52.5(1).
Parliament has decided to give this responsibility to the board and has entrenched it in legislation. Given its responsibilities contained in the Parliament of Canada Act, if the board is presented with evidence of misuse of House of Commons resources by the professional public servants of the House of Commons, officials from the House of Commons, are they not, therefore, obligated to take action to remedy the situation?
Deputy Law Clerk and Parliamentary Counsel, House of Commons
Yes, Mr. Chair, the board has the exclusive authority and makes the ultimate decision. But again, based on information that is provided by the House administration, the board itself ultimately makes the decision. Ultimately, the board, considering all the matters and facts, decides if the use was proper; so the board makes the decisions.
Liberal
Kevin Lamoureux Liberal Winnipeg North, MB
If a member of Parliament is directed by the board to repay House of Commons' resources that were used inappropriately, and they do not comply, what remedies does the House of Commons have to ensure compliance?
Deputy Law Clerk and Parliamentary Counsel, House of Commons
Certainly, subsection 12(2) of the Members By-Law tells us that:
Members are personally responsible for paying expenditures
Then we go to section 19, and you have kind of a progressive process, beginning with paragraph 19(a):
If a person fails to comply with this By-law (a) the Board or the Clerk of the House of Commons acting under the authority of the Board may give written notice to the Member responsible, requiring the Member to rectify the situation to the satisfaction of the Board or the Clerk;
That's the first step.
Then,
(b) if the situation is not rectified to the satisfaction of the Board or the Clerk, the Board may order that any amount of money necessary to rectify the situation be withheld from any budget, allowance or other payment that may be made available to the Member under this By-law or the Governance and Administration By-law;
And the next step:
the Board may order that any budget, allowance or other payment that may be made available to the Member under this By-law or the Governance and Administration By-law be frozen for such time and on such other conditions as the Board considers necessary (i) if the non-compliance continues, or (ii) if the Board considers it necessary to protect House of Commons funds.
So that's the answer. I don't know if Mr. Watters wants to explain how that would be done in practice, but there is a process in the bylaws to deal with this.
Liberal
Kevin Lamoureux Liberal Winnipeg North, MB
If I may, I have just one last question.
On November 27, 2012, a statement regarding allegations that former Bloc Québécois leader Gilles Duceppe made improper use of House of Commons' resources, the Board of Internal Economy stated:
It was never the intention of the Board to allow House of Commons resources to be used to support political party activity or party staff.
The Board is confident that the revised Members By-law, which was completed before these allegations came to light, will prevent similar events from occurring in the future.
The NDP was on the board at this time and would have been participating in these discussions, and would, therefore, have been well aware of these rules. Can you provide a summary of the changes that came into force on April 1, 2012?
Deputy Law Clerk and Parliamentary Counsel, House of Commons
All I can say, Mr. Chair, is that starting April 1, 2012, the bylaws were modernized, revised, and the definition of “parliamentary functions” was also reviewed. But it was more a modernization of the bylaws than a revamping, if you wish, so the rules were just modernized.
That's pretty much all I can say on this.
