Two similar questions of privilege arose, both of them in 2001: one in the spring of 2001, one in the fall of 2001. I can give a brief summary of the matters, the rulings, and how the committee dealt with those particular cases of privilege.
In spring of 2001 the member from Provencher rose on a question of privilege regarding a departmental briefing on a justice bill. The department was going to give a confidential briefing to members of the press only, which is contrary to the practice of members being invited to these lock-ups. The bill had not been introduced at the time but was on notice. The other issue was that the lock-up that was supposed to occur did not occur, and that members of the media left the confidential lock-up and began phoning the member from Provencher to ask him about his opinion on a bill that he had not been briefed on and had not seen.
The Speaker ruled that this was a prima facie contempt of the House, and stated that once a bill is placed on notice, confidentiality about its contents was necessary—as I spoke about before—because of the pre-eminent role “which the House plays and must play in the legislative affairs of the nation”. The Speaker further stated that, “to deny to members information concerning business that is about to come before the House, while at the same time providing such information to media that will likely be questioning members about that business, is a situation that the Chair cannot condone”.
That matter was referred to a predecessor version of procedure and House affairs. The committee held four meetings on the matter. For witnesses, the committee heard from the member who raised the question of privilege, the minister who sponsored the bill, and departmental officials about departmental policies regarding pre-introduction of bills. The committee also heard from the Clerk and the Deputy Clerk of the House regarding the House's processes for government bills prior to introduction, and it heard from a representative of PCO concerning policies regarding the preparation and introduction of government bills.
The committee did report back to the House on the matter. The report concluded that a breach of privilege had occurred, but did not recommend any sanctions because the minister had apologized for the incident and had taken corrective actions. The committee did have one main recommendation, and that was that all government departments follow the lead of the Department of Justice and adopt a standard policy that no briefings or briefing materials be provided with respect to a bill on notice until it is introduced in the House, with the notable exception of the lock-down held for the budget and other major parliamentary announcements. The committee also requested that by the fall, the Privy Council Office table, through a minister, revised guidelines on dealing with bills prior to their introduction.
That is the case that occurred in the spring.
There was later a case in the fall, which was fairly similar to the one that occurred recently. Notice was given for Bill C-36, an anti-terrorism act. Notice was given on Friday. The bill was introduced on Monday. On Saturday, an article that mentioned the contents of the bill appeared in the National Post. The Speaker ruled that this, again, constituted a prima facie breach of privilege of the House, and noted that this was very similar to the incident that had occurred in the spring.
Again the matter was referred to this committee. For witnesses, the committee heard from the member who raised the question of privilege, the minister sponsoring the bill, departmental officials about the preparation of the bill, and representatives from the Privy Council Office concerning the process and policies regarding the preparation and introduction of government bills and security reviews of information leaks. In the report, the committee concluded that, based on the available evidence, it could not find that a contempt had been committed.
The PCO hired Deloitte &Touche to do a study to find out who had committed the leak, and they interviewed some several hundred staff members to find out who had, in fact, spoken with reporters. Nine admitted to speaking to reporters but indicated that they had not divulged any confidential material to the reporters.
The report did note that the official from the Privy Council Office had indicated that for the most part the details that were divulged in the National Post article were public information, with the exception of a few bits of information.
When the committee decided that no contempt had occurred, the members of the opposition did add a dissenting opinion to the report, and the basis of it was those few pieces of information that could potentially have been confidential, but there was no way to know, and the staff at the department at the time had said that they had not divulged any confidential information. They concluded that it might have been journalistic speculation that allowed the journalist to come up with those few missing pieces of information.
Those are the two most relevant cases of privilege similar to the one that was ruled on most recently.