Procedure and House Affairs Committee on Nov. 7th, 2013

[Rob Walsh]

No. It was to diminish the partisanship, in the sense of allowing the public view that's not attached to a partisan interest being expressed. The elected office idea—and it could be school board, city, provincial, territorial, federal—was to sensitize the public lay representative to the context in which members of Parliament work.

[Blake Richards, Conservative, Wild Rose, AB]

Okay.

You may have addressed what I was getting at there. I wondered about them having elected office. You were indicating that it could have been a municipal office or a school board. I wondered. Obviously, with anyone who has sat in this parliament or in any of the provincial legislatures, there'd most likely be some level of partisanship.

[Rob Walsh]

I did suggest they be appointed by the Speaker, from applications, without consultation with the House leaders. So there's no input to the Speaker from the House party as to which ones should be selected. He makes his judgment.

[Blake Richards, Conservative, Wild Rose, AB]

I appreciate your clarifying that.

I understand that when you were law clerk from, I believe, 1999 to 2012—I do remember that you appeared before some committees that I sat on during my time in Parliament, certainly—you did sit in on meetings of the Board of Internal Economy during that time. Would you have regularly attended the Board of Internal Economy? Would your appearance there have been when there were specific legal matters, in that role of providing legal advice on legal matters? Would that have been the reason for you attending, or did you regularly attend?

[Rob Walsh]

I attended when there was a matter that had legal applications—certainly legal matters, but also other matters that had legal dimensions. As it turned out, I was there quite often.

[Blake Richards, Conservative, Wild Rose, AB]

So you were quite often at the meetings. In terms of the meetings the board would have held in that time, what would you say the percentage of the meetings you would have attended would have been on those types of matters, roughly?

[Rob Walsh]

It varied from one season to another.

[Blake Richards, Conservative, Wild Rose, AB]

If you averaged it out over that 13-year span, what would you say it was?

[Rob Walsh]

Fifty per cent.

[Blake Richards, Conservative, Wild Rose, AB]

Fifty per cent of the time...?

Often when you were there, I assume those would have been matters that then likely would not have been able to be dealt with in public meetings, that they would have been in camera types of meetings. You're suggesting that with the two subcommittees, they would probably be matters that would generally be held in camera in those subcommittee meetings, if it were to move to that model. Am I understanding that?

[Rob Walsh]

As you know, Mr. Richards, clients don't take their legal advice publicly. But I have on occasion given legal advice publicly at committees like this when I was law clerk. So yes, it depends on the matter in respect of which the advice is being given, and it might be something that's better given to the subcommittee in private rather than publicly. There could be matters on which the board is comfortable in receiving legal advice publicly. It all depends on the matter that's the subject of the advice.

[The Chair, Conservative, Joe Preston]

Thank you.

We go to Mr. Opitz, and we'll finish with Mr. Scott after that.

Mr. Opitz.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Thank you, Mr. Chair. I'm going to split my time with Mr. Butt because he had a question he wanted answered now. I'll just take the last two minutes.

Go ahead.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

Mr. Thomas, did you want to answer that earlier question I had about the level of transparency, what you're not getting now that you think you should be getting in the disclosure of MPs' expenses, no matter what the item happens to be?

[Gregory Thomas]

Yes. Our view is that MPs should not be policed or supervised in the way they allocate their budgets. What may work for Mr. Richards in a humongous rural riding in Alberta might not work for you in Mississauga. And if Mr. Goodale wants to ride in the front of the plane or what have you, that's his prerogative. As long as those plane tickets are public and his political opponents can point out that he's spending almost triple what Mr. Lukiwski is spending to get the same job done and he can get re-elected, more power to him.

As I outlined with the example of Mr. Rathgebar's phone bill, the constituents are fully capable of parsing all the data that Parliament can throw at them. We just want all the documents there: the leases, the employment contracts, how the member spends the money. Let the member be accountable for his or her decisions.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Mr. Walsh, just in terms of the in camera versus in public on the board, the issue of liabilities is what I want to talk about right now, just quickly. If MP “A”, for example, appears before the board in public and accuses MP “B” of improprieties and improper spending, and he's wrong, what liabilities do you think that individual would then face? Is he immune from any form of prosecution, lawsuits or anything, for appearing before a board and giving testimony in that respect?

[Rob Walsh]

I don't think the privilege of free speech that protects members from lawsuits or defamation would apply in most contexts in a board meeting. I've never heard a member do that in a board meeting, by the way. But to take your example hypothetically, were it to happen, no, I would not expect that the member in doing that would be legally protected under parliamentary privilege.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

So if it were in the public, it would be in the public interest even if that did happen? I know it's never happened.

[Rob Walsh]

Every time a member of Parliament steps out of the House and talks to the media, he faces the same sorts of concerns, and presumably he or she is speaking to the media in the public interest but accepting that restraint. So it would apply at a board meeting as well.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Thank you.

[The Chair, Conservative, Joe Preston]

You have a minute left. We'll save the time. We'll put it into next week, where I'm already short of time.

Mr. Scott, you have four minutes.

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Walsh, I was just wondering if you could give us the benefit of your insight into how the process of consensus worked or maybe changed over the time you were law clerk.

I think people might have gone away from the last session with the false impression that consensus means unanimity, whereas consensus can mean different things. In some forums, it simply means that those who've kind of lost out in the discussion don't object and they don't force a vote.

My understanding is that in the Board of Internal Economy a fair bit depends on the chair, who is the Speaker, about how consensus is determined. Is that correct? Has it changed over different periods of time?

[Rob Walsh]

Mr. Chairman, I've seen three Speakers playing the role of chair of the board. They were each quite different from the others, and arguably some were more effective than the others. I don't want to go into comments about the various Speakers and their effectiveness. Obviously the chair of any meeting is in a position to bring a meeting to a consensus. Some are better skilled at that than others.

To go back to your earlier point that consensus may just mean that a decision is taken with some people losing out and not actually having a vote, that is true. But what you're doing with that consensus regime is preventing anyone from having a veto, in effect—as in the House, where unanimous consent is required and one member can prevent that piece of business going forward.

It's in the interest of every member of the board, in the consensus regime, not to act as if they have a veto and frustrate the finding of a consensus by the chair, because it will work against them as much as it will work for them. Even though some members might express objections to what's proposed, a consensus is found and the board moves forward without a vote. To use your phrase, that member would have lost out, but on other occasions the member manages to see a piece of business go through over the expressed objections of another member.

It's the old saying: you pick the hill you want to fight on. I think Mr. Lukiwski referred to Clerk O'Brien mentioning one occasion where a vote was taken, and it may be the same occasion I recall being at a board when that happened once. It was recognizably exceptional at the time. I'm not saying there weren't others, but I remember one time when it happened. Generally, the board worked well with consensus.

The problem, however, is that if they bring their political conflicts into the room, that makes life more difficult for the board in getting on with business.

[Craig Scott, NDP, Toronto—Danforth, ON]

I was just wondering if I could ask a question of Mr. Thomas.

Mr. Thomas, last session the chief financial officer indicated that he felt that the proposal that MPs emulate the current ministerial disclosure approach would actually be a regression. He felt that we had evolved to the point that we had more sharply tuned and appropriate categories here in the House, so far.

Then you proceeded to tell us something that I think is very important, which is that if one uses that regime, at the moment we don't have the same rules in the House that apply to ministers in terms of people being able to go and make access to information requests. There's nothing about the regime proposing to use ministers that includes the full disclosure you cited as part of that regime.

I just want to make sure that we're on the same point here, that the proposal coming from the Liberal Party ended up producing line items with not the same level of disclosure that you get with ministers.

[Gregory Thomas]

That's right. The guts and the really effective element of proactive disclosure at the ministerial level is the ability under the Access to Information Act to get the documents. A refinement on the Liberal proposal would be proactive disclosure of the source documents, as it's done in other jurisdictions now.