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

[The Chair, Conservative, Joe Preston]

Let's get started, please. This is the meeting of the Standing Committee on Procedure and House Affairs. We are meeting in public today with video recording.

We have with us today Mr. Rob Walsh, former Law Clerk of Parliament. Mr. Walsh, I haven't been with you in a long time. It's great to have you back before our committee.

Mr. Gregory Thomas is also here today.

We'll give you each a chance for an opening statement.

Mr. Walsh, would you like to go first, and then we'll ask questions after that?

[Rob Walsh, Former Law Clerk and Parliamentary Counsel of the House of Commons, As an Individual]

Thank you, Mr. Chairman.

In my time at the House as law clerk, I worked with and for the Board of Internal Economy. I saw it in its good times and in its bad times.

I'm pleased to see the House take on this review of how its internal financial and administrative affairs are managed. In the course of its study, I would hope the committee would keep in mind two important considerations about the House of Commons. First, the House is where our democracy plays itself out between elections. Partisan politics is an inherent feature of the House and must be accommodated in any administrative restructuring. Second, administrative independence is essential to the constitutional function of the House and to its political credibility as a parliamentary institution.

I expect what drove the House to launch this review is the recognition that Canadians generally are increasingly concerned about the spending practices of parliamentarians and want to see more transparency and accountability in the management of the internal financial and administrative affairs of both the House of Commons and the Senate.

In my time at the House I found the board generally acted responsibly in its management of the financial and administrative business of the House. I attribute this to the fact that the House, as an elected body, is hard-wired, as it were, for serving the public interest and for accountability, though partisan interests or collective self-interest sometimes seem to influence the business outcome.

From time to time, it seemed to me that a party's political agenda, some current political conflict, or the government's political agenda were allowed to interfere with the business of the board, and that caused matters to be unnecessarily delayed or left unresolved for protracted periods of time or simply not addressed. To some extent, this is understandable and unavoidable, but it should not be allowed to cause the board to become dysfunctional and the internal affairs of the House, as an institution, poorly managed.

In my view, the public interest of greater transparency and the House's interest in more efficiency in its internal governance will be better served by establishing a more arm's-length relationship between the House and the board, but not by establishing an outside body as the governing administrative authority for the House. To this end, I would make the following suggestions, which in the interests of time I can only itemize here in point form; there are six of them: one, that the name of the board be changed to reflect its function in contemporary language—this is an obvious one; two, that the composition of the board not reflect party standings in the House but that the recognized parties in the House be represented equally on the board; three, that ministers and other House leaders, other than whips, not sit on the board, and that appointments to the board by made by each caucus; four, that board meetings be held in public, with its agendas made public the day before, subject to the usual limitations for privacy, but that the board establish two permanent subcommittees on financial and administrative matters respectively that would meet in private but present their reports publicly to the board for consideration and approval; five, that the board table its minutes in the House no later than the first sitting day immediately following the next board meeting; and finally, six, that at the end of each Parliament, other than those of less than a year, the Auditor General audit, or in some manner review, the financial decisions of the board and the spending of House leaders, members of Parliament, and each caucus, with enforcement measures in place to recover any funds found to have been wrongly spent.

Thank you, Mr. Chairman.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Walsh.

Mr. Thomas, we'll hear your opening statement, please.

[Gregory Thomas, Federal Director, Canadian Taxpayers Federation]

Thank you, Mr. Chair.

We thank the committee for inviting us, and we're grateful to the House of Commons for undertaking this very worthy initiative. We appreciate the initiative of the official opposition for moving this comprehensive motion and the initiative of the Liberal Party leader in coming forward with suggestions for more transparency.

We also hearken back to the Federal Accountability Act of 2006, which we think provides a template. We think this is the most important scandal-fighting initiative ever adopted in Canada, and we think it provides a strong template for future reform.

We applauded in 2006 the initiatives taken by the government in the wake of the sponsorship scandal, and our 84,000 supporters, who very regularly communicate with all of your offices, have a keen interest in seeing the practices of both houses of Parliament updated, modernized, and reformed. We'd like to play a constructive role with all of you in making this happen, and we have a few suggestions that follow on the initiatives of the Accountability Act.

It's important to quickly review a couple of those important initiatives: the creation of the office of the Parliamentary Budget Officer; the establishment of the office of the Director of Public Prosecutions; beefing up of the powers of the Auditor General and the Ethics Commissioner; and the expanded protections for whistle-blowers.

I know it's all the way back to 2006, but it's important to remember that these key reforms that we take for granted today were initiated by this government as its first act in office. So what we're calling on the government now to do, and all parties in the House, is to continue to embrace the spirit of those reforms and bring some of those reforms home to the House of Commons. Perhaps, through your initiative, you can set a good example for your colleagues in the Senate as well.

[The Chair, Conservative, Joe Preston]

Thank you very much. We'll go to questions.

Mr. Lukiwski, you're up first, for seven minutes, please.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you, Chair, and my thanks to Mr. Walsh and Mr. Thomas for being here.

I'll start with Mr. Walsh. I have a couple of questions. One will connect to one of the six recommendations you made. I'd asked this question of Madam O'Brien when she was here. She rendered an opinion, but she was a little uncertain of the legal ramifications.

My question was this: if the Board of Internal Economy, BOIE, held its meetings in public, would the members of that committee have the same privileges as members on a standing committee or members speaking in the House? In other words, would they have the immunity provided to most members? If not, it might be somewhat restrictive on members if all the discussions were held in public.

You've identified a couple of ways to get around that by having subcommittees of financial and legal matters, and others that might be required to have meetings in camera. But first things first. From a legal perspective, would public pronouncements by members of the Board of Internal Economy be covered by parliamentary privilege or immunity?

[Rob Walsh]

Let me approach that question this way: the answer is partially yes. The committees of the House, such as this committee, are fully covered by privilege, regardless of what they're talking about.

With the board, it would enjoy the protections and privilege according to what it's talking about. The privilege it would have the protection of is the privilege the House enjoys to administer its own internal affairs. It can administer its internal affairs publicly or privately, but if it's a matter within the ambit of that privilege of managing its internal affairs, then it would have privilege.

I can only remind you of the decision in 2005 of the Supreme Court of Canada, where the House took the position that administering all its employees was within its internal affairs. The court said no, it didn't go that far. In other words, how the House might deal with the clerk as an employee is one thing, but how it might deal with somebody working outside on the grounds might be another. The court didn't really draw the line as to where the line is, but somewhere in there is a line.

In a similar fashion, the board would have to address its mind to what is the ambit of internal affairs. My own hunch would be that, by and large, most of the business discussed by the board would be within that privilege.

I would just add, if I may, that the absence of privilege, in my view, should not discourage the board from meeting publicly, insofar as the board is a body created by statute. It's not a parliamentary committee. Its responsibilities relate to the financial and administrative affairs of the House, which is a public institution. So, arguably, the matters it's discussing are not ones that need to have the protection of privilege, such as free speech, which of course is designed to enable members in debates to be able to speak freely and not to be impeded in doing so by legal considerations about defamation. The same, arguably, wouldn't apply to the board, so there may be less need for concern about privilege in a public meeting of the Board of Internal Economy.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you. That's helpful.

One of the things that I was somewhat concerned about is that even though, you're right, all members have the ability for free speech and debate in the House or in debate, we are still governed by the sub judice convention, and I assume that same spirit would be reflected in any discussions held at the board.

[Rob Walsh]

That's correct.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Let's go into what dealings these subcommittees that you're recommending would have. In your experience with the board over the many years that you were law clerk of this Parliament, given that you're suggesting that the subcommittees deal with in camera discussions on matters that should be in camera, what percentage...? I don't want to make an unfair question for you, but I'm trying to get a sense of what you experienced over the many years dealing with the Board of Internal Economy. What percentage of the discussions and the substance of the board's discussions would be required to go in camera? How much would be in public? There's a perception that so much of what is done by the board is completely in camera. It's a secret, behind closed doors operation.

So what are we talking about if, on a normal basis, we say it's going to be public except...? How much of the discussions on, say, a normal board meeting would be held in public as opposed to how much, in your experience, would be necessitated to be held in camera?

[Rob Walsh]

Mr. Chairman, perhaps I could just back up on that question a little bit and explain what I said here. There is some talk out there that everything should be public, and then there's the other extreme, if you want to call it an extreme, which you have now, where everything is private. I'm proposing something in between. It is to have the subcommittees meet in private, all business, on all matters. That's to allow the members of the board sitting on the subcommittee to have a free and full and frank discussion without the glare of publicity upon them. In a sense, it's like talking about the House's administrative and financial dirty laundry, if you like. It's just not necessarily something the public is well served to hear about, and indeed wouldn't hear about, even if they were to go public.

The report to the board, however, would be public and the discussion by the board about that report would be public, and a decision of the board, obviously, would be public.

Now, I'll go back to your question about how much of the board business would be in camera. Frankly, it's virtually little, in the sense that you can use the same criterion for what goes in camera as you might use in a House committee, and that is, privacy concerns. Maybe the House committee sometimes wants to have an in camera business meeting to talk about their agenda, and the board might have usually gone in camera in the past to talk about its business agenda. But basically the point about public board meetings is that the financial and administrative business of the House as a public institution is arguably something the public should be able to watch being administered, short of all the nitty-gritty detail that goes into a lot of the considerations the board has to deal with, in which case, I think, leave it to a subcommittee to sort that out, and then they publicly report to the board and the board deals with it publicly.

[The Chair, Conservative, Joe Preston]

Mr. Lukiwski, you have 30 seconds left.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Only 30 seconds? Then perhaps we'll get back to it in a subsequent round.

Thank you, sir.

[The Chair, Conservative, Joe Preston]

Thank you.

Mr. Julian, seven minutes, sir.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Thank you very much.

Thank you, Mr. Walsh, and thank you, Mr. Thomas.

I'm very interested, Mr. Walsh, in your proposal where you're talking about a more arm's-length relationship for the BOIE but still looking at it being internal.

I'll come back to the issue of caucus representation, but I'd like you to take a moment to look at the possibility of something being independent...which is certainly what I think the public would demand. They don't expect that MPs will be policing themselves. That's something I hear about regularly in my riding.

If you're willing to make the move to an arm's-length relationship, would it not be better to have in place an independent body that is policing MPs' expenses, for the simple reason that, for the public, they would get a sense that you have that independent, autonomous look at MPs' expenses, and it's not a group of MPs policing themselves?

[Rob Walsh]

Mr. Chairman, if I may, I hear the member expressing a point of view that is sensitive to public expectations about the House—and presumably the Senate these days as well—but I think one has to look at this, frankly, in terms of what's best for the institution as a public institution and not simply to serve public expectations.

That's what I've tried to do here by suggesting that some greater distance be between the board and the House. Right now the board, in its composition and structure, too closely parallels and mirrors the House; you know, it is the House in another hat. I think if other members had a role there, it might be helpful to give that distance.

But I also suggest that the Auditor General, at the end of each Parliament, look at the spending practice of members, caucuses, House leaders, and in some manner give each Parliament a review that would be of interest to the public.

More directly to the point...and this is hard to express, okay? I'm very jealous—if I may, not being a member of Parliament, still say that—about the democratic or political function of the House of Commons. As I said in my presentation, the House is where our democratic politics play out between elections. You have to be careful that you don't so regulate the House in financial administrative matters—and, as you are suggesting, Mr. Julian, an outside body—that you are in fact creating impediments to our politics being free to exercise itself in a robust fashion.

Politics, as you well know—better than I, certainly—is an unpredictable activity, but it serves the public interest writ large. There is no public interest writ larger, arguably, than the political life of the country. I'd be very nervous of an outside body.

Having said that, there's an intermediate suggestion that you have the board as I'm proposing it—I didn't include it in here because I wasn't sure there would be an opportunity or if it would be a welcome idea—but you have lay members, something that other boards have, as you know. They have a certain number of positions available for persons from the public to sit on the board.

Now, you could arguably have here three public representatives on the board who don't outnumber the number of recognized parties in the House, appointed by the Speaker without consultation with the House leaders, on application from the public. A qualifying condition is that they have at some point served in an elected public office.

I do believe, as someone who once held elected public office, there is no experience like sitting in an office to which you've been elected by the public. That teaches you something that no amount of theory can tell you. I think there's something to be said for all board members being cognizant of that.

I'm not so sure I'd give these public representatives a vote on the board, because I think the responsibility for the House has to remain with its members. They're accountable. But these lay members, if you want to call them that, would have an opportunity to represent the public and speak to board members publicly at public board meetings about those concerns that they see the board ought to address more closely on behalf of the public.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Thank you, Mr. Walsh. That's an interesting second proposal. This is a lot of meat you're giving us to chew on.

I'd like to follow up with two questions. One is that Madam O'Brien, the Clerk of the House, testified to us earlier this week that we've moved from what was a consensus at the BOIE to a situation where now there can be votes. That is disturbing to me, because of course in a majority Parliament that means the majority ends up getting its way.

I'm wondering to what extent you'd be concerned about that as perhaps not being in the public interest, where you now have a vote that determines decisions, with the vote taken in a majority.

Secondly, I'd like you to comment—just briefly, because I have only a few minutes left—around proposals like those we get from Manitoba and the United Kingdom, which are proposals that are independent. In Manitoba, of course, it's a commissioner who makes those decisions so that members aren't policing themselves.

Perhaps you could answer those two questions: your perception of those independent models and the concerns that arise from Madam O'Brien's comments.

[Rob Walsh]

Well, I obviously have enormous respect for the views expressed by Madam O'Brien, but I suspect that her suggestion arises out of the fact that she saw many times that the board wasn't able to move forward with business on a consensus model.

I would tend to go against a vote regime. It's always available theoretically, but it seems to me that what's important with the board is that it get outside of its partisan politics and look at financial and administrative matters without being governed by the partisan differences between them. That's why I suggested that political parties be equally represented. Then you have to sit down and you have to come to a consensus more forcefully, because you don't have numbers on one side versus the other, which you would have in a vote.

I would resist going to a voting system. I think consensus is the way to go. What I am proposing is with that in mind.

Your second question was about...?

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Manitoba and the United Kingdom.

[Rob Walsh]

Yes. I'm not clear on what those models are off the top of my head, but the idea.... In mentioning that, and in your earlier question, you both times used the expression “policing” members. Now, in using that expression, you're loading the question, in the sense that you're suggesting members of Parliament need policing, that they can't be trusted to look after their affairs because somebody has to be the enforcer of the law against them.

I don't share that view nearly as much. I didn't see in my time at the House a basis for taking that attitude. But I appreciate that public confidence is suffering in recent years and that some credibility has to be brought to the regime that shows that the members of Parliament are not simply serving their collective self-interest when they look at financial and administrative matters.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Walsh.

Thank you, Mr. Julian.

Mr. Lamoureux, you have seven minutes.

For others who want to put their name on the list, please let us know that you'd like to speak.

Mr. Lukiwski will go back on the list.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you, Mr. Chair.

I want to pick up on the Manitoba example. I was present as an MLA representing the Liberal caucus when in fact we adopted the principle of the commission. I think it's actually worked quite well.

The primary purpose of it was actually that we did not feel that MLAs—or in this particular case politicians—should be setting their own pay or determining what their pensions were going to be. We wanted to ensure that there was an independent appeal mechanism. There are individuals who are not a part of the recognized party system, so it was felt that it would be more independent by having a commissioner designate it.

I'm wondering if you would acknowledge that there could be value to having that independent commissioner, who is actually appointed after an election takes place. Do you see any merit to that sort of a bringing in...? It appears to be working in Manitoba.

[Rob Walsh]

Again, I don't know the Manitoba model myself, nor what the composition of that commission is. You were on it as an MLA—

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Yes.

[Rob Walsh]

I don't know whether it is made up entirely of MLAs or—