Procedure and House Affairs Committee on June 20th, 2023

[The Chair, Liberal, Bardish Chagger]

Good morning, everyone. I call the meeting to order.

Welcome to meeting number 85 of the Standing Committee on Procedure and House Affairs. The committee is meeting today to study the question of privilege related to the member for Wellington—Halton Hills and other members.

I see Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you very much, Madam Chair.

Before we begin with the witness, I want to note that I had put on notice a motion that I believe will be taken up during committee business. It has been circulated. I presume that all members have copies with them, and I would just ask, through you, Madam Chair, that before we go in camera, to read into the record the motion. I will also be putting forward a motion that the committee business for the third hour of this meeting and the meeting scheduled for this evening be in public.

[The Chair, Liberal, Bardish Chagger]

Thank you, Mr. Cooper.

Just to clarify, we're going to have our first and second panels, and then, when we return from a quick pause for the third hour of today's meeting, you would like the floor in public to put your motion on the record, and you would also like members to consider whether we can not be in camera for the business portion of it.

Maybe we don't have to put forward a motion on that part. We can just get to agreement by the third hour. Is that okay?

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I would hope we could reach agreement.

[The Chair, Liberal, Bardish Chagger]

Mr. Cooper, I hope we can reach agreement, too, but you've already signalled that you would like to meet tonight. I will maintain my optimism.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I hope we don't have to meet tonight, but if we do, it should be in public.

[The Chair, Liberal, Bardish Chagger]

I'd accept that if your motion is that we not meet tonight, I would be seconding that, but we're not there yet.

Mr. Cooper, you will have the floor at the top of the third hour.

With that, we have with us today, from the United Kingdom House of Commons, Eve Samson, clerk of the journals, who is joining us by video conference.

Ms. Samson, welcome to the procedure and House affairs committee. Thank you for taking us up on this offer. We are really excited to be with you today.

I believe you have an opening statement. The floor is yours.

[Eve Samson, Clerk of the Journals]

Thank you, Madam Chair.

Thank you for inviting me to appear. As the Clerk of the Journals in the United Kingdom House of Commons, I'm the House's expert on parliamentary privilege. I do also know something about our administrative practices, but other witnesses may be better able to speak about them.

I think I would start by saying that the privileges of the Canadian House are of course very closely linked to the privileges of the House of Commons here, but it's important to remember that your privileges will have evolved in subtly different ways. One thing I find surprising is that the Canadian House of Commons has waived its privilege of freedom of speech to allow courts and inquiries to look at proceedings. We consider that, as article IX of the Bill of Rights is enshrined in statute, it cannot be waived.

I understand from your proceedings that various matters have arisen, namely, whether intimidation of a member is a contempt; committee powers to demand confidential papers; and the power to summon witnesses. Here, if I understand it correctly, the committee is considering such matters as powers against those outside the Canadian jurisdiction. I can go into more detail in answer to questions, but I'll turn to each in turn.

In paragraph 15.2, Erskine May states the following:

any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member or officer of such House in the discharge of their duty, or which has a tendency, directly or indirectly, to produce such results, may be treated as a contempt even though there is no precedent of the offence.

So, intimidating a member is certainly capable of being treated as a contempt. Erskine May gives numerous examples of when it has been treated as such.

Most committees in the United Kingdom House of Commons have power to call for persons, papers and records. In practice, they do not need to use these powers. They discuss matters with particular witnesses and agree consensually. When this does not work, the committee can agree an order to attend or to produce papers.

If the order is not obeyed, the committee itself has no power to enforce it. It must report to the House, which itself may then make an order. It is, however, difficult for the House to enforce its orders against anyone other than a member of the House. In theory, it has powers to imprison, but as has been explored by our Committee of Privileges quite recently, its procedures do not meet modern expectations of the way in which such punishments should be inflicted. In practice it has confined itself to admonishment. Our Committee of Privileges has made proposals for such contempts to be handled by the courts, but there isn't much progress on that matter.

The House's powers to order documents are, however, effective against government. In recent years, on several occasions the House has agreed motions for returns to force the government to release documents by either laying them before the House, or, when papers were sensitive, laying them before a committee. In 2018 the House found ministers in contempt for their failure to comply with the requirements of the motion for return, passed on November 13 that year, to publish the final and full legal advice provided by the Attorney General to the cabinet concerning the EU withdrawal agreement and the framework for the future relationship. When they passed that motion, the legal advice was provided.

It's notable that one order provided for papers to be made available to committees or members on a confidential basis, and another anticipated that redactions might be made “solely for the purposes of national security”. Another set of papers was provided with redactions made to protect the identity of officials in email chains. This was not challenged.

To sum up, yes, intimidation could be considered a contempt. Committees and the House have power to call for papers, but there can be practical barriers to enforcing their orders. The House itself can decide to call for papers in ways that allow for limited access to those papers.

[The Chair, Liberal, Bardish Chagger]

Thank you.

With that, we'll get into our six-minute round of questions. We'll start with Mr. Cooper, followed by Mr. Fergus, Madame Gaudreau and Mrs. Blaney, who will end the first round.

Mr. Cooper, through the chair, the floor is yours.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you very much, Madam Chair.

Thank you to the witness.

I'm going to ask some questions that may be slightly outside your realm; however, I presume that you, as a clerk of the House of Commons, would be able to answer in general terms to provide this committee with an understanding of how the U.K.'s Intelligence and Security Committee of Parliament works. Would you be able to do that?

[Eve Samson]

I can give you some very high-level indications.

The first thing to—

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

My questions would be high level.

[Eve Samson]

Let us try. If I can't answer, I will say so.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Okay.

I raise this because the member for Wellington—Halton Hills, who was targeted by the Beijing regime, when he came before this committee, cited the U.K.'s Intelligence and Security Committee of Parliament as a committee that is—I don't want to put words in his mouth—essentially a gold standard, at least in comparison to what we have in Canada. It was one of his recommendations to this committee that such a committee modelled on the U.K. be established here in Canada.

We have the National Security and Intelligence Committee of Parliamentarians. Unlike the U.K.'s committee, it is not a standing committee of Parliament and therefore does not have the power to compel witnesses or the power to produce papers. It also does not set its own agenda.

Perhaps as a starting point, could you explain how the committee in the U.K. works, including whether the committee has a right to set its own agenda; who sits on that committee; how they are vetted before they sit on that committee; what powers the committee has; and who is responsible for redactions having regard for national security considerations?

[Eve Samson]

The first thing to say is that the Intelligence and Security Committee isn't all hybrid. It is a statutory committee. It is not a normal parliamentary committee. Irritatingly, I've been hastily looking for the statute under which it's set up and that gives it powers. It isn't like an ordinary parliamentary committee where the powers are derived from parliamentary privilege. They are powers derived from statute.

The other thing that should be said is that there is a great deal of government control over the committee. When I say “government control”, I don't mean that in any—how shall I put it?—pejorative way. What I mean is that, because the committee has access to very confidential material, it has limitations. It publishes matters only with the consent of the prime minister.

I have found it. Excuse me. I'm sorry about this. I will refresh my memory.

It can request information that does not relate to a particular operational matter or to something the ISC is considering under the act. The person for whom it is requested has power to inform the ISC that the information cannot be disclosed, because the secretary of state has decided it would not be disclosed. Its disclosure powers are not unlimited.

If it receives information in private, it can only publish information by way of reports under section 3 of the act, which sets.... Forgive me, I'm having to dart around a little. It has to be sent to the prime minister first. The prime minister must exclude any matter from any reports to Parliament if the prime minister, after consultation with the Intelligence and Security Committee, considers the matter to be prejudicial to the continued discharge of the functions of the security service. The transparency in there is this: If such material is removed, the ISC report will indicate whether it has been so removed. If things are redacted, the ISC may report on them to the prime minister.

It's an excellent committee and it makes matters public. It has access to a large degree of sensitive information, but it does so within a statutory framework. Its remit is to examine or otherwise oversee the expenditure, administration, policy and operations of the security service, the secret intelligence service, the government communications headquarters and other activities of His Majesty's government in relation to intelligence or security matters, as set out in a memorandum of understanding.

[The Chair, Liberal, Bardish Chagger]

Thank you.

We have six-minute rounds, and about 24 seconds ago—

[Eve Samson]

I'm sorry.

[The Chair, Liberal, Bardish Chagger]

Don't be sorry. We appreciate your being here.

Before I go to Mr. Fergus, we have 25 minutes left in the bells. I believe we have agreement to continue with our committee up until five minutes before the bells. Anyone who wants to go and vote in the House may go. When we have everyone back 10 minutes after the vote is determined, we will continue. We can get through the six-minute rounds for sure. We might be able to get the first five-minute round in. If not, we will adjust accordingly. The next session will still commence at noon.

Is there agreement?

[Some hon. members]

Agreed.

[The Chair, Liberal, Bardish Chagger]

Excellent.

Go ahead, Mr. Fergus. You have six minutes.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Thank you very much, Madam Chair.

I'd also like to thank Ms. Samson for being here today.

I listened to your answer to my colleague Mr. Cooper. It sounds as if there's a great similarity between your ISC and our National Security and Intelligence Committee of Parliamentarians.

Ms. Samson, I'm wondering whether you could walk us through, in a relatively brief time, the current process regarding how you inform members of Parliament about foreign interference or their being a subject of foreign interference.

Would you be able to walk us through that?

[Eve Samson]

I'm afraid that's outside my area of expertise. It would be something done by the director of security, whom I understand your committee wishes to see.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Indeed. Does the House of Commons play a role, then, in ensuring the protection of members of Parliament and Lords against foreign interference?

[Eve Samson]

Our security team would doubtless do such things.

There are scales of foreign interference that you might think of. It is well known, for example, that when China sanctioned certain members of Parliament, the Chinese ambassador was told he was no longer permitted to enter the precincts.

Other matters are not something I have operational sight of. I think it would be sensible for me to not to try to speculate.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Ms. Samson, does the House offer any specific training to detect any foreign interference? Do they offer this training to members of Parliament, Lords or their staff?