Evidence of meeting #9 for Subcommittee on Disclosure Forms under the Conflict of Interest Code in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was code.
A recording is available from Parliament.
Law Clerk and Parliamentary Counsel, House of Commons
Yes, but is there some part of part 4 that you are specifically interested in?
Bloc
Pauline Picard Bloc Drummond, QC
In our review of the code, we are currently studying sections 17, 18 and 19, that deal with trusts. Now we have some questions about what you said.
Do we apply Bill C-2, or the code? You said that Bill C-2 could “create a number of difficulties related to the constitutional autonomy of the House of Commons and its members”. And then, “given that questions arising in respect of members' trusts would be determined under a statutory regime, actions taken under the act in respect of members' trusts may be subject to judicial review”.
Should we amend our code? We would like you to explain what you said in your text about the code.
Law Clerk and Parliamentary Counsel, House of Commons
A moment ago, I suggested that the four or five sections that deal with members and not with ministers should be included in the code, and not in the act.
As I said, including the sections in the act creates a problem. It enables courts to deal with issues concerning members of Parliament. In my opinion, basically, everything that has to do with confidential matters involving MPs should be included in the code appended to the Standing Orders of the House of Commons.
Law Clerk and Parliamentary Counsel, House of Commons
It would give to the House of Commons ultimate authority with regard to such issues. That is the idea.
Bloc
Pauline Picard Bloc Drummond, QC
Could you write down for us some more details about what you just said regarding the legislation and the fact that the behaviour of MPs should be under the control of the House of Commons and not subject to legislation that could hand such matters over to courts? Do I understand this correctly?
Law Clerk and Parliamentary Counsel, House of Commons
This is the first and most basic principle.
Law Clerk and Parliamentary Counsel, House of Commons
The remaining issues are in the hands of the Ethics Commissioner who enforces both codes: the act and the Conflict of Interest Code for Members of the House of Commons. Thus, the Ethics Commissioner has a mixture of obligations and legal powers. It is difficult to make sure that both these things are kept separate, and that the rights and privileges of MPs are respected.
Bloc
Pauline Picard Bloc Drummond, QC
As it stands, things are not sufficiently clear. The act infringes on the code, and the code sometimes infringes on the act.
Law Clerk and Parliamentary Counsel, House of Commons
That is where the problem lies.
Conservative
The Chair Conservative Scott Reid
We've just done a round of questions. Every member has now had the chance to ask Mr. Walsh something. We can continue on with that, or we can give him the opportunity to return to his presentation and move on to a different topic. Would that course be preferable, or does anyone want to pursue the questions?
Okay, let's continue on.
Mr. Walsh, there was one thing I didn't hear you say in response to Madame Picard. She did actually ask about making a written presentation. That was something I had hoped for as well. If you could follow through on the offer you made earlier about putting your thoughts in writing, I think that would be helpful for all of us.
Law Clerk and Parliamentary Counsel, House of Commons
Certainly, Mr. Chair, we can do that. If time had been available, we would have done it for today. But we can do that, certainly.
Conservative
The Chair Conservative Scott Reid
Fine, thank you.
Why don't you carry on, then, with the rest of your presentation?
Law Clerk and Parliamentary Counsel, House of Commons
At this point, do the members have the draft of the Library of Parliament document? It may not be circulated. Is that it?
Conservative
Law Clerk and Parliamentary Counsel, House of Commons
Ms. Mortensen will proceed through that, but in terms of questions and what not, it may be that when we're on a certain article it might be the best time for members to ask their questions rather than waiting until the end. It's up to you, of course.
Conservative
The Chair Conservative Scott Reid
If that's your advice, Mr. Walsh, we're likely to take it. I'll just encourage members to not be shrinking violets, that they make sure they are seen and heard by the chair.
That's less significant for you, Mr. Goodyear, than the rest of us.
All right, Mr. Walsh, please.
Law Clerk and Parliamentary Counsel, House of Commons
Ms. Mortensen is going to proceed with going through the code, based on the Library of Parliament researchers' report.
Melanie Mortensen Parliamentary Counsel (Legal), House of Commons
Thank you, Mr. Walsh; and thank you, Mr. Chair and all of the members.
I haven't prepared anything formal, so I'm just going to proceed, identifying at each section where we wish to comment on anything that we saw in the code as it presently is or in the amendments that have been proposed, perhaps responding to the comments that are also identified on the side there.
We'll start with subsection 3(3), and if you don't mind, I'll just go through it quickly, because there are many.
Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chair, I can assure you that we'll put this in writing, if the committee would like to have this presentation in writing.
Conservative
The Chair Conservative Scott Reid
I think you can be sure we'd like that very much.
Carry on, Ms. Mortensen, please.
Parliamentary Counsel (Legal), House of Commons
Before I begin, one of the things I should mention is that for some sections in which we have identified some vagueness or ambiguity--I think Mr. Walsh would agree--certainly we would be able to assist, if necessary, with any review by the legislative drafters, or with advice that they be given in that regard. The ambiguities that may be identified aren't meant to take up a lot of time, so I may just mention them and move on to more substantive issues.
The other overall issue is that we've looked at these comments and the sections and the amendments with regard to, as we had discussed earlier, the power of the House of Commons, and the power and the right to discipline members, and the role of the commissioner in advising the House, and how that functions. We've had the benefit of a few years now of seeing how it's worked and seeing how the code is interpreted. So it is with that benefit of experience that we've tried to examine how the code may be interpreted in a way that may go beyond what was intended. It's with that view that I'm going to make these comments.
The first section I'll address is subsection 3(2). This is the subsection that identifies what is furthering a private interest of the member. We would suggest that it be made subject to subsection 3(3), just to be a bit more clear, so that furthering of private interests is subject to the exceptions of subsection 3(3).