Subcommittee on Disclosure Forms under the Conflict of Interest Code Committee on May 10th, 2007

[The Chair, Conservative, Scott Reid]

Order, please.

I'll start by greeting our witnesses, Rob Walsh, the law clerk, and Melanie Mortensen.

I might just mention I had a chat with Mr. Walsh beforehand and we had a brief discussion about how he could make his presentation. He will outline how he'd like to go about it, and maybe members could just listen and see if his suggestion seems appropriate. It probably will, and we can just carry on.

Mr. Walsh, please.

[Rob Walsh, Law Clerk and Parliamentary Counsel, House of Commons]

Thank you, Mr. Chair.

Ms. Melanie Mortensen, a lawyer in my office, has been working with me on this file, so I asked, with your indulgence, to be accompanied before the committee today by Ms. Mortensen.

I notice you announced the purpose of this meeting as being to do with disclosure forms, but I had the impression, from what we received from the clerk of the committee, that our mandate was a bit larger than simply disclosure forms. It's an e-mail that I received on May 4 that talked about Bill C-2, the Federal Accountability Act, and the draft letter that's been proposed to go to the government House leader, and there are other general comments and perhaps some specific comments about the code.

Now, we are prepared to go forward on that basis. I would talk about Bill C-2 and the problems that remain, in our view, with Bill C-2. Then on the code, we have the benefit of the report of the Library of Parliament researchers. I don't know whether this is a report that's been distributed to members of the subcommittee yet, but in any event, it's a convenient tool because it sets out all the sections of the code. We went through it and we have some issues, and Ms. Mortensen will take the subcommittee through that piece by piece. I will talk about trusts in there, and I'll have some comments about the draft letter to the government House leader, as well.

I have asked the clerk to distribute copies of the relevant sections of Bill C-2 to members of the committee. I hope you have them there--there are the French and English versions. There are only the four sections I want to talk about, and they all interrelate, but I should take you through them one at a time, to begin with.

What you have there is subsection 6(1) and 6(2). The marginal note in subsection 6(1) in English is “Decision-making”; in French it's Prise de décision. In subsection 6(2), “Abstention from voting”; abstention de voter. It's subsection 6(2) that is of concern here. I'll come back to that.

The next section is section 21, which requires public office holders to recuse from debates or votes.

The next one of interest is section 30, which gives the Ethics Commissioner powers to make a compliance order against a public office holder, and includes recusal.

Then subsection 64(2) is the subsection dealing with whether certain activities would or would not be acceptable where they're done on behalf of constituents.

Now, just to set the context, these provisions were addressed by my office when I appeared before this committee in respect of Bill C-2. Again, the submissions made--

[Pauline Picard, Bloc, Drummond, QC]

Excuse me, Mr. Walsh.

The interpreters cannot follow you because they do not have the translated text. They have no documents at all. They have no idea of what we are talking about. This makes their work more difficult.

[The Chair, Conservative, Scott Reid]

Thank you, Ms. Picard.

[Rob Walsh]

Do you want me to continue, Mr. Chair?

[The Chair, Conservative, Scott Reid]

If you don't mind waiting just a moment, we're keeping our eye on the translation booth, and.... Okay, we have the high sign.

Please continue, Mr. Walsh.

[Rob Walsh]

The theme of our presentation to the committee back in late May 2006 was that there are privileges that apply to the House of Commons and its members that ought to be kept in mind when legislation is going through Parliament, and there were provisions in the bill that we thought were incursions into those privileges.

I don't propose to remake that presentation now by any means, but the gist of it was that on behalf of the House and in my role as law clerk I brought to the committee's attention where we thought those incursions occurred, including subsection 6(2) and sections 21, 30, and 64. I'll take you now to those sections in particular.

I think the committee actually did amend section 6 so as to remove subsection 6(2), but then it was put back into the bill by a motion at report stage in the House. Subsection 6(2) applies to a minister of the Crown, minister of state, and parliamentary secretary, but of course it applies to them as members of the House.

The fundamental and difficult problem here, Mr. Chair, is this confusion of the role of a member of Parliament and the role of a minister or parliamentary secretary. Obviously we all know that some members of Parliament have both roles. Other members of Parliament don't; they have only one role, that of a member. With one exception, there is no minister who is not a member.

It's important, in our view, that these two roles be treated and dealt with differently, in the sense that there are different places for them to be dealt with. Since it is the privilege of the House to have exclusive control of the internal affairs of the House, including discipline of its members, rules regulating the conduct of members should, in our view, speaking as legal counsel to the House, be dealt with by the House in its code as appended to the Standing Orders. Indeed, that's why that code is appended to the Standing Orders. It's for that very reason. It's in recognition of the fact that this is not a matter for the courts to get involved in, which they could do if it were a statute; it's a matter for the House to regulate in its good judgment.

So it is that we thought it inappropriate here in this act for ministers to be constrained in respect of their parliamentary function. I need say no more. I think that point is pretty evident from looking at subsection 6(2).

If you then look at section 21, again a public officer holder is required to not participate in debates or to vote. Public office holders, of course, include the minister or parliamentary secretary. In our view, that's an incursion into his or her parliamentary role. Although it doesn't mention the House of Commons, we assume debate or vote means to say a debate or vote in the House of Commons or in a committee, as opposed to a debate or vote in cabinet, let's say.

Section 30 then gives to the Ethics Commissioner the power to make an order against a public officer holder--again we're talking about a minister or parliamentary secretary--to comply with any measure, including recusal. So if it were the case that under section 21 or subsection 6(2) a minister or parliamentary secretary did not or would not recuse when the act would appear to say that he should, the Ethics Commissioner can make an order that he do so.

This power being in a statute, there is always the possibility of going to court to get the court involved in the legitimacy of the vote by the member or the parliamentary secretary on the occasion when he should have recused.

As you know, in the last Parliament we had one vote that was very close, to say the least, if not two. I may sound a bit alarmist in saying this, but in a way I foresee a situation in which a vote carries by one vote, or fails to carry by one, and off someone goes to court to challenge the fact that three ministers voted who shouldn't have voted. Now we have a court action going on and invalidating that vote. Of course, by the time the court hears the matter, other matters have taken place in the House, perhaps dependent upon that earlier vote; does that then invalidate all the subsequent things?

My own view is that the courts just would not want to go there with a 10-foot pole. They would probably say this is a matter of internal House business, and the courts would wisely stay out. However, the fact that it's in the statute gives standing to someone to go to the courts and put the courts to the test, if you like, regarding a statutory provision that arguably is meant to be enforced.

This is the essence of our concern about this type of provision with respect to the parliamentary capacity being found in a statute.

Section 64 means to protect these privileges. The trouble for us is that the “subject to” clause was brought in. We had suggested, if my memory serves, that these sections not be made subject to the other provisions. If they were not subject to subsection 6(2), section 21, and section 30, and they affirmed the privileges and affirmed that members of the House and the Senate can carry on their duties as they normally would, we would, as it were, accept that and face the battle we might have to face, say, later, in a different context, about the priority of section 64 over the provisions subsection 6(2), section 21, and section 30.

We would rather that we didn't have to face that challenge, if you like, or that ambiguity, and that section 64 not be made subject to, as it is there, and that subsection 6(2) and sections 21 and 30 not be made applicable, or that they be clearly made inapplicable to public office holders, ministers, and parliamentary secretaries when carrying out their duties in the House.

That is not to say that you wouldn't have that provision. You could well have that provision, but you'd put it in the code, attached to the Standing Orders. And the House might make the rule that no member who is a minister or a parliamentary secretary shall vote on a matter in which he or she has a conflict of interest. And that would be the place for it.

I might also suggest that one of the advantages of this sort of two-tracking is that the view of the day may change with regard to ministers on the one hand and members of Parliament on the other. If both are covered, as they are now, in the legislation, you could not take ministers as members out of this legislation without amending it. Or it could be that the House wants to, at some future point, not include ministers in this restriction, but the House couldn't do it. It would have to go to legislation.

If it's in the code, the House could deal with the matter as it sees fit relative to all its members, all 308 members, and in particular with reference to members who are ministers or parliamentary secretaries, as it sees fit. But when it's in the act, of course, it has to be dealt with as a legislative amendment.

So there is that process issue. But there is also, in our view, the more substantive issue of putting into legislation what is tantamount to a limitation on or an incursion into the privilege of the House that all its members, on behalf of their constituents, are free to participate in debates and to vote. You could go one step further and argue that it's an incursion into the democratic system of government we have where, in various constituencies, a member is elected to go to Parliament and represent his or her constituents. By virtue of a private interest that may exist--I am not saying that isn't worthy of consideration; I'm just saying that by virtue of a private interest that the member has or acquires--under this legislation, he or she cannot then participate in debate representing his or her constituents or vote on behalf of the constituents for that reason. So those constituents are deprived of representation in Parliament for so long as that conflict is there.

Obviously there's a balancing issue here for the members of Parliament, in this case legislators. The point really is, from our point of view, that it should be in the code and it shouldn't be in the act, so the House has control of its members.

There isn't much more that I need to say or want to say about that. I would move on to the question of trusts for a moment, but that is what I wanted to say about those four provisions.

Clause 99 of this bill puts, I think, five new sections in the Parliament of Canada Act pertaining to trusts. This is the subject of this draft letter I've seen. I assume that it is just a draft. Has the letter actually gone to Minister Van Loan, or is it simply a draft at this stage?

[The Chair, Conservative, Scott Reid]

At this point it is still a draft.

[Rob Walsh]

It's a draft. Okay.

It is proposed in this letter that the inconsistency or anomaly that's identified, and properly so, where an exemption or an exception is given to ministers but not to members of Parliament, could be corrected by simply making reference to its provision in the code in subsection 41.3(3) of what will become a provision in the Parliament of Canada Act.

Again, our concern is that this is something that should be dealt with in the code. And it could be dealt with in the code, in which case the members would enjoy the same exemption as ministers, but there again, as I said earlier, it may be at some future point that the House decides it doesn't want its members to have this exemption, or the government decides it doesn't want its ministers to have this exemption but the House wants its members to have exemption. It isn't, in my view, to be assumed that both regimes will always want to have the same for both categories of individuals. Again, we're talking about those individuals who happen to wear two hats as opposed to being distinctly in two separate domains.

Our view basically is that it is a problem. And fair enough, if the committee is of the view that it should be addressed so that the same regime applies to both, I would suggest that the better way to do it is that it be done by way of an amendment to the code so as to make that a requirement upon all members of Parliament, or an exception debatable rather, to all members of Parliament, including ministers.

The other concern we have with regard to clause 99 relates to the powers that are there to the Ethics Commissioner in respect of trusts, but those are not powers that he exercises or enjoys as part of his mandate under the new section, I think currently it's section 86 in the Parliament of Canada Act, and it'll become, I think, section 72.05, when it's incorporated into the Parliament of Canada Act. I've got it backwards, do I? It'll become section 86.

The danger there is that if you give the Ethics Commissioner these powers you are running the risk that he won't be protected by parliamentary privilege in carrying out these duties in respect of trusts applicable to members of Parliament, nor will he be constrained in some respects by parliamentary privilege.

You get to the question of judicial review. As it is now, there's no provision for judicial review of the Ethics Commissioner's actions, so if the Ethics Commissioner is going to have this authority in respect to members of Parliament now.... We're not concerned about the authority he may be given under the act relative to public office holders--that is, ministers and parliamentary secretaries--but if he's to have this authority with regard to members and be protected in that function, parliamentary privilege, and through that members of Parliament themselves who enjoy the protections of parliamentary privilege, it might be something that should be dealt with in section 72.05 or 86, whichever it was, in the mandate of the Ethics Commissioner in the act rather than in a stand-alone provision, as they are now intended to be in Bill C-2.

These are not straightforward matters, Mr. Chairman, and it may be that the committee will want to have an opportunity to look at this further. We can certainly come back with a more thorough treatment in writing, if that's of aid to the committee. But we were asked just a week ago to appear here, and so we have not had an opportunity to prepare this whole matter in writing, which would perhaps be of more convenience to the committee.

That's basically what I wanted to say about Bill C-2. I do believe it's important. I do believe that privileges of members of Parliament and of the House are important, and I urge the committee to dwell on that for a while and think about it, and think about the longer-run interests of the institution. Remember that members of Parliament are in one domain and public office holders are in another, and you don't want situations where the powers, for example, of the Ethics Commissioner under the public office holder's code could be used on a matter pertaining to a member because the member is a public office holder.

Or say the member isn't a public office holder but he's involved in the same scenario where public office holders are involved--we had one of those--and exercising those powers in respect to public office holders, which are greater than the powers he has regarding members. The Ethics Commissioner then makes confidential reports to the Prime Minister in respect of what may be the parliamentary business of a member and, if I want to take the low road here, an opposition member's activities find their way in a confidential report to the Prime Minister because the Ethics Commissioner is looking at public office holders.

I'm thinking of the incident a year or so ago where a representative of the Prime Minister of the day, a minister, was in meetings with a private member regarding the possibility of the private member crossing the floor. I think the Ethics Commissioner decided he didn't have jurisdiction to look into that. But you have there a mix of public office holders and members of Parliament. The issue is, is this governed by the public office holders' code, or is it governed by the members' code? Is it parliamentary business, or is it governmental business?

You have this mélange on the facts, and you have one Ethics Commissioner, two categories of individuals that I believe should be kept distinct. The question is, which code applies? Does a different code apply to this player and another code apply to this player in the same set of facts, and so on? You can see the complexities that could arise for the Ethics Commissioner, as well as for the individuals involved, the less there is of this distinction maintained between the code that applies to members and the code that applies to public office holders--that is, ministers and parliamentary secretaries.

Now, if it's your wish, Mr. Chairman, I could ask Ms. Mortensen to go through the code provisions that I think warrant some attention, based on this report that sets out the code, and possible amendments and reports on some discussions this committee has had. We can address those items ad seriatim, if you would like at this time, or if you prefer, we can pause and have questions on Bill C-2 before we go to the code. It is whatever you prefer.

[The Chair, Conservative, Scott Reid]

Let's find out what the committee prefers. I did see two hands, Mr. Owen's and Mr. Goodyear's. Obviously their questions, by necessity, would have related to what you've said so far, so why don't we allow them to ask those questions? Then if it looks like the discussion makes sense to keep going, we can keep it going. If not, we can wrap it up and continue with the rest of your presentation.

Mr. Owen, please.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you, both of you, for being here. During our discussions of Bill C-2 and otherwise, your advice was very precise and very helpful, even if it was not always followed.

Now, the two regimes and the complexity you describe are inherent in our particular exercise of parliamentary democracy. At this stage--but not always--in our parliamentary history, a minister is also a member of Parliament. I think at one stage in our history if people were to join the cabinet they had to resign their seat. Perhaps some of this complexity was meant to be overcome by that practice.

The complexity goes far beyond what we're talking about in having separate codes. I often refer to ministers as “administers”, because they straddle that line between the political or partisan and the administrative. One has a partisan aspect to it, whether you're putting forward your platform in an election or putting forward legislation and debating it or appropriating funds or whatever. Once you've done all that, you cross a line and you have a duty of fairness. That's the administrative side. Ministers are bound by that. As public office holders, they and the others are bound to treat everyone equally, not in a partisan way.

The confusion about the distinct roles on either side is increased by the fact that people play the same role. It's often not obvious to people when they're playing one role or the other.

But in this situation--and I understand the theoretical problem you're posing--I'm having difficulty playing it out in a practical way. If a public office holder, as a member of Parliament, is going to have a conflict of interest, they will have had it, as well, as a public office holder, and they would have been recused of the decision-making around that. But when they step into Parliament, already having recused themselves, or having been recused of the role, as a public office holder, are they already immunized from the conflict of interest because they've recused themselves there? If not, are they part of that general duty of a parliamentarian that speaks to legislation in general? Certainly in British Columbia's conflict of interest code, with people who have private interests, it is seen to be more of a general responsibility than a specific one.

There was the case in B.C., which was a leading case in the conflict of interest jurisprudence, about spouses of members of the legislature, many of whom were teachers, when the legislature was dealing with, for instance, a back to work order or a salary increase or something very specific. They would have a personal interest as a member of a general class of “spouse of a teacher”.

I'm wondering whether, as a practical matter, the theoretical problem you correctly pose will be screened out in most, if not all, cases. I'm trying to think of a case where it wouldn't, but--

[Rob Walsh]

Mr. Chair, to go from the theoretical to the practical is not easy in this domain. I dare say that ought not diminish the importance of the theoretical here. These principles have served the system well, over centuries.

I don't know that I can answer your question, Mr. Owen, in terms of “as if by operation”. Lawyers would say that by operation of law or of circumstance, having recused himself as a minister, he would be cleansed, as it were, once he stepped into the chamber and addressed whatever issue might be before the House, because it's so general and he's a member of a general class in his role as a member of Parliament. In other words, in his role as a member of Parliament, he is addressing a very general issue and he's not addressing an issue that in all likelihood has any direct particular benefit to him or her as an individual.

That's a question of the facts, and it's also a question of perception. In my view, a lot of what's driving this is the perception of conflicts in terms of confidence in public officials, so they want to be pure as the driven snow to be sure there is no perception of conflicts. For many in this room who might not think there is a real conflict that ought to be given serious attention, some members of the public might think it is something that warrants serious attention.

I think the idea was that if you have a conflict that involves a private interest on a matter before the House, you should recuse yourself. But you're right, members of Parliament sitting in this committee or elsewhere might take the view that this is not an interest of a kind that warrants any recusal, but the minister might take a different view, for other valid reasons, given the different contexts the minister is in.

I guess what I'm saying is that I don't know whether you can assume that doing it for one context will necessarily be sufficient or adequate in the other context, or vice versa.

I don't know if I answered your question.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

We're getting a little circular--without diminishing returns, one hopes, although circles can be helpful--in the sense that if you then say, well, back in the..... The concerns of a public office holder just by their nature, being on the administrative side and subject to judicial review and such, are much more likely, if not exclusively likely, to put someone in a conflict in the exercise of that function, whereas the general parliamentary function is of a very different type. It's not only--

[Rob Walsh]

It's really the difference between executive and legislative.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Yes.

[Rob Walsh]

The public office holder is in an executive capacity. The member of Parliament is in a legislative capacity, a different function.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

I'm wondering if the same level of concern about the commissioner...or I'm trying to think of a situation where a commissioner would order a member of Parliament--qua MP, not qua minister--to recuse himself.

[Rob Walsh]

The commissioner may be asked to investigate a matter. He may come to the view that there is a conflict under the code. Then he may issue an order to recuse on all matters having relation to that interest.

I don't know how broad the Ethics Commissioner's definition might be of what is a relationship or relevant, or how narrow it might be. I can't predict what the commissioner of the day may feel about what's sufficient to require a recusal. My point is that it's odious to parliamentary tradition and principles for an appointed official to be telling you as an elected member of Parliament that you can or cannot vote, you can or cannot participate in debate. That to me is something that only the House should be allowed to do.

Now, the House could delegate a decision to the Ethics Commissioner on its behalf--i.e., please advise on this--and then the House might take that report, concur or not concur, and so on. But to give up power of order to an appointed official with regard to that, this is what we're saying is contrary--

[Stephen Owen, Liberal, Vancouver Quadra, BC]

And I take your point. I've argued for years that officers of Parliament should not have the power of order...that in fact weaken their power; there should be the power of reason that they would express then to, in this case, the House, which would make its own decision.

[The Chair, Conservative, Scott Reid]

Mr. Owen, we didn't set time limits here. I just assumed it would be the same as in the parent committee, as in seven minutes. You're now over that.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Excuse me, but when two members of the famous class of '71 get together, we go on forever.

[The Chair, Conservative, Scott Reid]

I think there is a special rule about that.

[Gary Goodyear, Conservative, Cambridge, ON]

I wasn't born in 1971, Mr. Chair. Could you explain it to me?

[The Chair, Conservative, Scott Reid]

I could, but that would eat into your seven minutes, Mr. Goodyear. Perhaps we'll just let you use those yourself.

[Gary Goodyear, Conservative, Cambridge, ON]

Thank you.

On what you ended off with, Mr. Walsh, this happens to be some of the problem, the lack of a clear and defined definition about what constitutes recusal.

With respect to the presentation you left with us, subsection 41.3(4) begins, “No order made under this section”, and it goes on to say that it's after the member “ceases to be a member of the House of Commons”.

I'm curious about there being a defined timeline in Bill C-2, where the code seems to imply that it does follow the member after defeat. In fact, if I'm not mistaken, there's a retroactivity of seven years in the code.

Do you have any comments on whether or not the code itself should--