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.