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.
Parliamentary Counsel (Legal), House of Commons
I don't think it is. With all respect to the drafters who changed it, of course, I think it is what was intended at proposed subsection 30(1). I know guidelines have been published. It doesn't seem to have stopped that.
Conservative
The Chair Conservative Scott Reid
This stuff isn't in the code right now. It's a suggested provision. We'd add it. It's not yet in effect.
Parliamentary Counsel (Legal), House of Commons
Yes, I know. But it says “shall submit any proposed rules for the administration”, and so on. It would imply “for approval”, but neither of these sections as drafted restricts the commissioner from doing it.
Further, if you go on to section 32, it indicates: “The Ethics Commissioner may undertake educational activities for Members and the general public regarding this Code and the role of the Ethics Commissioner.”
Earlier on in the code, you know there's the section that indicates that the commissioner can basically render generic or render non-personal any opinion for the benefit of members. Those also may be published. There are a lot of ways the commissioner has the power to issue interpretive guidelines, rules, or what have you. In my view, the way this is drafted for approval doesn't necessarily stop him from making it public. It depends on what the committee's role is in terms of guiding the commissioner.
Law Clerk and Parliamentary Counsel, House of Commons
If I could add to this, I would remind the committee that he operates under the general direction of the Standing Committee on Procedure and House Affairs. How do you want to look at his guidelines? After he's put them on his website and they have all kinds of publicity, do you then want to come along and say you don't like them, or do you want to have a chance to talk to him about his proposed guidelines before they get that kind of public attention?
It's essentially what we're saying. He gives the committee an opportunity to have input before they're out there in the world. Everyone's satisfied, but the committee isn't.
Conservative
The Chair Conservative Scott Reid
I take your point. I had a bit of a battle with the former commissioner on this very point.
Conservative
Gary Goodyear Conservative Cambridge, ON
Mr. Chair, it's only a tightening of the wording. It makes it clear that he can't publish anything until we basically authorize that it's approved, and we authorize him through a separate vote or something that it can now be published.
Liberal
Stephen Owen Liberal Vancouver Quadra, BC
I have an observation on the type of oversight role for a committee to play. This is exactly the way it should be distinguished from getting into fact finding and reviewing and approving his substantive reports. This is the very type of procedural oversight we should have.
Law Clerk and Parliamentary Counsel, House of Commons
You want to have it in a context that's fair, where you're able to have input without being in the position where you look like you're trying to sabotage or interfere with it.
Those are the items we think are of particular interest.
Parliamentary Counsel (Legal), House of Commons
This is a clarification, and it's also for your attention.
With respect to the matter that Mr. Walsh addressed on section 29, if you look at proposed section 31: The Commissioner shall retain all documents relating to a Member for a period of 12 months after he or she ceases to be a Member, after which the documents shall be destroyed unless there is an inquiry in progress under this Code concerning them or a charge has been laid against the Member under an Act of Parliament and the documents may relate to that matter.
It isn't necessarily clear, because of this section, that documents aren't indeed meant to be handed over if there is a referral of the matter. It may be that because the commissioner has the obligation to suspend the inquiry, for instance, but then may resume it if the investigation by the police is dropped, he can then continue with his inquiry. In that event, he still has the documents, even if over 12 months have passed.
It's not clear which of these is intended from this. The lack of clarity makes it difficult to interpret section 29.
Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chairman, I think that's all we have about the code.
I have one last thing. We briefly talked earlier about Mr. Van Loan's letter. In terms of the e-mail of May 4, we've covered the three bullets indicated there.
If I may reiterate, the underlying principle here is that members are in one regime and public office holders, including ministers and parliamentary secretaries, should be in another regime. The challenge is to see that they're both dealt with effectively, consistent with the fundamental principles of our parliamentary system of government, which is that the executive is one regime and the legislative is another.
As Mr. Owen was saying earlier, he is from that distinguished class of '71.
Law Clerk and Parliamentary Counsel, House of Commons
That's right. You aged by a year there.
That regime Mr. Owen described relative to the objective administrative decisions and the conflicts of interest is very much affected by the fact that it's an executive power that's being exercised. You're spending money. You're issuing contracts. You're doing all kinds of things that are administrative in nature, but they are very tangible in many contexts.
A member of Parliament in the legislative function is into a broader debate about a matter of public interest. He or she is voting as one of 308 on a matter of broad application to the public. In my view, it's very much the exception that the member would have some conflict for that reason. It could happen, but it's like saying farmers can't vote on agriculture or lawyers can't vote on justice bills, and so on it goes--members who are fishers can't vote on fisheries legislation.
You have to work hard, in my view, to get the matter before the House narrowed down to the point where you really have something a member should recuse from. But who's better to judge that than the members themselves, in keeping with their control of their own proceedings?
Conservative
The Chair Conservative Scott Reid
Members of the committee, we have a number of items to deal with before we leave. It's not too bad; we have about 10 minutes to deal with these things.
I've got several things to run through. Mr. Walsh, you indicated you'd be able to get material back to us. We appreciate the fact that we called you on quite short notice; we are, however, working towards a bit of a deadline. The House does not always sit to the very end of June, much as we all would like it to do so, so with that in mind, could I inquire as to when you anticipate you'd be able to get a written submission to us? We could then plan around that.
Law Clerk and Parliamentary Counsel, House of Commons
I'd love to answer your question with another question. What is your timeframe for getting back to the House?
Conservative
The Chair Conservative Scott Reid
Perhaps Jamie, our head researcher here, can talk a little bit about our anticipated schedule.
James Robertson Committee Researcher
I can, or not. The original plan had been to try to consider a draft report at the meeting next Thursday. A number of issues have arisen today, and the subcommittee will want to look at the proposals and comments from Mr. Walsh's office. Perhaps if we had another meeting next week to try to consider all the outstanding issues, we could then have a draft report for the week after the break, which would mean that with any luck, the report could go to procedure and House affairs by the first week of June.
That would mean that, as you say, depending on when the House rises for its summer recess, there would be a chance for procedure and House affairs to make its report to the House and get the House to concur in that report before the summer recess.
Conservative
The Chair Conservative Scott Reid
Effectively, it would be very helpful to us if we had that report by a week today in order to distribute it. We tend to meet on Thursday afternoons. Does that seem realistic from your point of view?
We have a further restriction. In order to distribute it, the clerk has to have it in both official languages. If not, it has to get in earlier, so that it can be translated. You know about these things.
Law Clerk and Parliamentary Counsel, House of Commons
We usually provide them in both languages, and that is part of the burden of meeting a deadline. I heard Mr. Robertson very clearly, I think. That pause of a week creates a problem for all of us in terms of the eventual adjournment.
May 29 is the first Tuesday after that break. Would that be sufficient for the timelines you were describing?
Committee Researcher
The difficulty is that the subcommittee has to finish its preliminary determinations before the draft report can be prepared. We were thinking of having the draft report prepared over that one-week period, so that when the House returned after that one-week recess, they would be able to finalize what they want to put before procedure and House affairs.
Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chairman, it's a struggle between the Library of Parliament and my office as to who gets the week off to do their homework. We'll get it for you for next Thursday. We'll do what we can, both as to the Bill C-2 issues I raised and also in terms of the code. It may to some extent be in point form, just to enable it to be a useful tool for you, but we'll have it to the clerk of the committee for...the meeting of a week from today? Do you want to discuss it at the meeting a week from now?
Law Clerk and Parliamentary Counsel, House of Commons
Okay. By the end of the day on Wednesday, hopefully, the clerk will have it.
Conservative
The Chair Conservative Scott Reid
I realize that you're putting yourselves out there, and we do appreciate that.