Evidence of meeting #18 for Procedure and House Affairs in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was clerk.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Clerk of the Committee  Ms. Joann Garbig
Andre Barnes  Committee Researcher

May 3rd, 2016 / 11:05 a.m.

Liberal

The Chair Liberal Larry Bagnell

Good morning. This is meeting number 18 of the Standing Committee on Procedure and House Affairs for the first session of the 42nd Parliament. This meeting is being held in public.

Our business today is the order of reference from the House, of April 19, 2016, concerning premature disclosure of the contents of Bill C-14. At the last meeting, the committee decided to invite the law clerk and parliamentary counsel to appear. As it turns out, he's willing to appear, but he's not available this week.

The Library of Parliament and the clerk in the House of Commons procedural services agreed to do a report for us on the background and history, the types of things the law clerk would have provided. We can look at that and determine what, if any, further action we need on the privilege.

Members using their iPad will find the briefing note with the documents for today's meeting. There are a few paper copies for anyone who didn't bring it. The clerk and the analyst are prepared to speak to this briefing note and answer questions. During the second hour we'll do committee business, including any follow up from that. We can also confirm the items we have on the upcoming agenda.

Just before we start, everyone's seen this paper we're discussing. Does anyone have any objections to us giving this to Kady O'Malley? It seems like most of this stuff is public anyway. It's just historical.

Does anyone want to make friends or enemies with Kady O'Malley?

11:05 a.m.

Voices

Oh, oh!

11:05 a.m.

Liberal

The Chair Liberal Larry Bagnell

So there are no objections?

Okay. We'll give it to the fancy sunglasses back there in the corner.

Does the clerk want to make any introductory statements on this report?

11:05 a.m.

The Clerk of the Committee Ms. Joann Garbig

Thank you, Chair.

If the committee would like, we can begin with a short chronology of the events in the House that gave rise to the order of reference to the committee, go on to a brief explanation of the specific privilege in question, do a brief summary of two similar cases that came before the committee some years ago, and then perhaps give members a sense of options going forward.

When a public bill is going to be introduced in the House, it has to be put on notice. On April 12 notice was given for the introduction of Bill C-14, the assisted-dying legislation. That same day The Globe and Mail published an article containing specific elements about the bill, and referenced a source familiar with the legislation, a person who was not authorized to speak publicly about it.

The next night, April 13, The National on CBC TV had similar details about the bill, and the source again was not identified. On April 14 the bill was introduced in the House, given first reading, and became a public document at that point.

On that same day, April 14, the official opposition House leader rose on a question of privilege regarding the premature disclosure of the contents of Bill C-14. In his intervention, he stated that the details about the bill that had been disclosed in The Globe and Mail article went beyond journalistic speculation, and that they matched the contents of the bill.

Following his intervention, the chief government whip rose and stated that the government takes any breach of privilege very seriously, and that no person had been authorized to discuss the contents of the bill prior to its introduction. He gave an unreserved apology, and committed to ensuring that no further such incidents would occur in the future.

The Speaker ruled on the question of privilege on April 19, and decided that the question raised by the opposition House leader constituted a prima facie, or at first sight, breach of privilege.

As per the standard practice, the member who had raised the question of privilege was then invited to move a motion to send the matter to this committee for further study and consideration.

The House adopted the motion on April 19, and this then became the order of reference before the committee today.

11:05 a.m.

Andre Barnes Committee Researcher

Thank you, Mr. Chair.

The parliamentary privilege in this particular case that has been infringed upon is that essentially there's a well-established practice and accepted convention that the House of Commons has the right of first access to the text of bills it will consider.

What does that mean? Precise legislative information cannot be distributed to the public before being made accessible to members. Members have a right to this information in order to perform their parliamentary functions. It also reflects the practice that the House plays a pre-eminent role in the legislative affairs of the country. So in practice that means, once notice of a bill is given, the text of that bill is confidential.

Speakers have ruled, and this committee has reported, that when precise legislative information is made available to the public and not to members, it impedes, obstructs, and disadvantages members. So this is what the Speaker would have ruled most recently.

I would note, though, that a practice does exist of a courtesy copy being given to opposition critics of the bill just so they are able to study it before it's introduced in the House.

11:05 a.m.

Conservative

Scott Reid Conservative Lanark—Frontenac—Kingston, ON

This is on the understanding that they themselves are now bound by the same secrecy as the minister.

11:05 a.m.

Committee Researcher

Andre Barnes

Yes. Precisely.

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.

11:15 a.m.

Liberal

The Chair Liberal Larry Bagnell

Are there any questions?

Oh, do you have more?

11:15 a.m.

The Clerk

Yes, briefly.

11:15 a.m.

Liberal

The Chair Liberal Larry Bagnell

Go ahead.

11:15 a.m.

The Clerk

This is the final part as far as the presentation goes this morning.

Moving forward now, the committee has an order of reference from the House to investigate this privilege matter. When the committee does so, it approaches it in the same way as it does any other study that it may choose to undertake. It may look at its schedule and decide what priority to assign to this matter, how many meetings it wishes to devote to it, if it wishes to call witnesses, and which witnesses they should be. The members have heard what was done in past similar cases, and it's open to the committee to do likewise or to do it differently.

If the committee is going to report to the House on the matter, it can indicate whether or not it believes that a breach of privilege has occurred. The report can include recommendations or not. It's important to note that the committee itself does not have any power to punish. Only the House can do this.

The report, like any other committee report, may have dissenting or supplementary opinions appended to it. The report may be sufficient to put an end to the matter, and no further action may be recommended to the House by the committee. On the other hand, the committee may recommend that the Speaker take some action or that some administrative action be taken.

Finally, as with other committee reports, it's open to any member of the House to move a motion of concurrence in the committee report.

That's about all I have.

11:15 a.m.

Liberal

The Chair Liberal Larry Bagnell

Does the committee have to do a report?

11:15 a.m.

The Clerk

No. It's a decision of the committee, but I have to say that the practice has been that reports have been made to the House following an order of reference.

11:15 a.m.

Liberal

The Chair Liberal Larry Bagnell

Mr. Reid.

11:15 a.m.

Conservative

Scott Reid Conservative Lanark—Frontenac—Kingston, ON

I would like to ask a question relating to your very helpful summary. The report would be numbered in the usual way. It would be the xth report of the Standing Committee on Procedure and House Affairs. Concurrence would occur in the usual way. You could have concurrence if there were all-party consent by means of a unanimous motion, I'm assuming. Or is it always done by means of a vote?

11:15 a.m.

The Clerk

Well—

11:15 a.m.

Conservative

Scott Reid Conservative Lanark—Frontenac—Kingston, ON

As I say, it has no meaning unless it's concurred in. Am I right? There is no power unless....

11:15 a.m.

The Clerk

Well, recommendations can still be followed up on. It's not a requirement.

11:15 a.m.

Conservative

Scott Reid Conservative Lanark—Frontenac—Kingston, ON

But only followed up on informally with advice to the Speaker as to how he ought to act? Any actual sanction would require concurrence. Am I not correct?

11:15 a.m.

The Clerk

Well, for a committee's recommendation to the Speaker, or wherever it has power to make recommendations, ordinarily they are taken seriously.

11:15 a.m.

Conservative

Scott Reid Conservative Lanark—Frontenac—Kingston, ON

Sure.

11:15 a.m.

The Clerk

A concurrence motion is a debatable motion, if that's the channel it's going through, yes.

11:15 a.m.

Conservative

Scott Reid Conservative Lanark—Frontenac—Kingston, ON

Right.

11:15 a.m.

Liberal

The Chair Liberal Larry Bagnell

I think Scott is asking whether we need to do the concurrence for the Speaker to take action.

11:15 a.m.

The Clerk

I don't think it has been a feature of many of the reports on privilege matters.