Mr. Speaker, I am pleased to rise today in respect to the debate on the motion that has been raised by the member for Scarborough—Rouge River.
I believe that the motion would reaffirm our privileges and immunities. It would amend the conflict of interest code for members of the House of Commons. It would refer the report of the Conflict of Interest and Ethics Commissioner concerning the member forWest Novaback to the commissioner for reconsideration. The motion would affirm the confidence of the House in the Conflict of Interest and Ethics Commissioner.
My concern with respect to the motion is the amendment of the conflict of interest code. I really do object to the process which the member has chosen to take place in the House with respect to his attempt to change the conflict of interest code. I am concerned that members will not have had adequate time to consider whether the proposed change is necessary and whether it has been properly drafted.
The conflict of interest code has been the subject of careful review by parliamentarians dating back over 35 years when the Trudeau government tabled a green paper on this subject in 1973. Since then, parliamentarians have studied numerous initiatives to develop a code of conduct.
For example, in 1978 the Trudeau government introduced the independence of Parliament act. In 1988 the Mulroney government introduced the members of the Senate and House of Commons conflict of interest act. In 1993 the Mulroney government introduced the conflict of interest and public office-holders act.
In 1995 a special joint committee chaired by the current Speaker and by Senator Oliver was established to develop a code of conduct. The special joint committee recommended a code of conduct for parliamentarians in its 1997 report.
The Chrétien government tabled a draft code for parliamentarians in 2002 based on the joint committee's 1997 report. This draft code was referred to the procedure committee through a careful study by parliamentarians.
The procedure committee examined the code and held extensive consultations with members of Parliament. The committee tabled a report with a code which reflected the comments of the members of the committee as well as input from members of the House.
In its report, the procedure and House affairs committee stated:
The result of our consultations and intensive study is, we believe, a document in which all Members of the House can have confidence. We are convinced that it is a very credible step forward in the self-regulation of this House.
This report was adopted in 2004 and forms the basis for today's conflict of interest code.
The reason that I have gone through this brief history lesson is to remind members that the drafting of the code involved careful consideration and consultation by members over a great number of years. Its provisions should not be taken lightly. The code needs to be effective to ensure Canadians have the highest level of confidence in Parliament and its members. At the same time, care must be taken to ensure that the code does not unduly restrict the privileges of members of the House.
Given the importance of the code, it is not surprising that extensive deliberations took place by parliamentarians before the code was finalized. It therefore follows that changes to the code should not be done in haste without any proper consideration or consultations.
Even minor changes can have unforeseen consequences. Given the implications the code may have for members of Parliament, any changes should be carefully considered before it is adopted by the House.
Instead, the member for Scarborough—Rouge River is proposing that a change be made to the code after only a few hours of debate in the House. In my view, it would be more appropriate for the procedure and House affairs committee to hear from experts on this issue, including the Ethics Commissioner herself.
One of the issues that I think should be explored by the procedure committee is whether the proposed change achieves the member's objectives. For example, the proposed amendment refers to “actions of the member as a member of Parliament”. This begs the question, what are the actions of a member as a member of Parliament?
I do not believe that the member for Scarborough—Rouge River intends to refer to proceedings in Parliament, as parliamentary privilege adequately protects members of Parliament in this regard. For example, a member cannot be subject to a lawsuit for his or her statements in the House or in committee. He said that. I must therefore conclude that the member for Scarborough—Rouge River is referring to actions by members of Parliament outside the House.
What actions outside the House constitute actions as a member of Parliament? How do we distinguish between the actions of a member of Parliament as a private citizen versus actions as a member of Parliament? What statements that members of Parliament make to the media constitute actions as a member of Parliament?
In this regard, it is not clear whether this amendment would actually achieve the objectives the member for Scarborough—Rouge River is seeking. In the case of the member for West Nova, the lawsuit that he faces is a result of statements that he made to the media outside the House. It is not clear to me that the member for West Nova was acting as a member of Parliament in making those statements to the media as any activity outside the House is not a parliamentary proceedings. There is a distinguishing factor.
In fact, very little of the functions of a member of Parliament outside the House or committee can be considered a parliamentary function. For example, in the second edition of Parliamentary Privilege in Canada, Joseph Maingot states at page 84:
A clear distinction should be drawn between those things a Member does in the exercise of his capacity as a Member, only one of which is to take part in a “proceeding in Parliament,” and those he does because he is a Member: the latter are much wider and are not necessarily protected.
He further states at page 102:
The uttering of slanderous words by a Member of Parliament to a journalist outside the floor of the House is not protected by absolute privilege.
It will be ultimately up to the Conflict of Interest and Ethics Commissioner to interpret the proposed change. We cannot predict how she would apply this provision. On the other hand, the procedure committee would have to have been able to ask the commissioner's view on this change and receive her advice of what changes, if any, should be made to the code.
Instead, members are being asked to make a change to the code today without the benefit of such consultation. I would also note that the member for Winnipeg Centre put forward at the ethics committee different wording to change the Conflict of Interest Code.
In his motion at the ethics committee he made reference to excluding, as a private interest under the code, being named as a defendant in a lawsuit regarding a matter then before Parliament or a committee of Parliament. That was, at least, a lot more precise than the motion before the House today.
The motion before us would exclude where a member is a party to a legal action. This could include a situation where a member has commenced the lawsuit as a plaintiff, and plaintiffs of course are parties to a lawsuit. Therefore, this would allow a member to commence an action in the courts and then be allowed to participate in parliamentary proceedings dealing with the subject of the suit and be allowed to participate in those proceedings and use them to advance the member's court case, and even intimidate the party the member was suing.
This shows the need for this matter to be studied much more closely by us as parliamentarians and not dealt with as a result of a hasty, short, one day debate. This also demonstrates there are alternative ways to accept to change the code, if that is necessary, and it would be appropriate to have the procedure committee examine these issues more carefully.
Members may respond by arguing that the procedure committee is not currently meeting and that therefore, today's opposition motion is the only way for the House to respond to the ethics committee's report. However, the procedure and House affairs committee is not meeting because of the tyranny of the majority of that committee which overturned a sound reading by the chair and ultimately removed the chair from his position. This is an example of the situation that the Speaker referred to on March 14 when he stated, “committees have found themselves in situations that verge on anarchy”.
I agree that we need to find a solution to the impasse at the procedure and House affairs committee and I believe that the solution is simple. When the chairs of the committee make a sound procedural ruling that is supported by the clerk of the committee, the committee has to uphold and respect that ruling. All members of Parliament should follow the rules and respect the Standing Orders.
If members think that the ethics committee's report is of urgent importance, then they should agree to work constructively in committee and respect the rules of Parliament. In that way the procedure committee can review the Ethics Commissioner's report and recommend any action it deems necessary.
This is not the first time the opposition has tried to circumvent our normal procedures to implement a change that has not been properly thought out to the Conflict of Interest Code. For example, opposition members on the access to information, privacy and ethics committee tried to ignore the Standing Orders by tabling a report recommending a change to the code. The Speaker rightly ruled the report was out of order as it was clearly beyond the mandate of that committee.
The member for Scarborough—Rouge River has also raised a question of privilege on this issue but has chosen to move forward with his motion without waiting for a ruling by the Speaker. The Speaker noted on May 15, “In my view, there are other mechanisms available to debate and resolve the matter at hand”. In this respect, I would remind all members that section 28(10) of the code allows a member to move a motion to concur in the report. I note that the member for Winnipeg Centre already has a motion on the order paper pursuant to this section. Presumably then, the House could amend the motion to express its opinion on the Ethics Commissioner's report.
In addition, section 28(13) of the code makes provision for the House to refer the ethics committee's report back to the commissioner for further consideration with instructions. Since the Conflict of Interest Act already contains provisions that allow the House to respond to the commissioner's report, I believe it is misguided to change the Conflict of Interest Code at this time.
I would also note that it is not an urgent need to make quick changes to the code. In her report, the commissioner states:
Concerns have been raised about the use of lawsuits, more particularly libel suits, to prevent a Member from performing his or her duties in the House of Commons. I cannot predict whether this may indeed become a problem and I hope it does not.
By stating she cannot predict whether this may become a problem in the future, the commissioner is implying that the use of lawsuits is currently not a problem or a significant barrier to the ability of members to perform their duties in the House.
I would also note that members of Parliament have legal remedies to respond to lawsuits. If a member feels that a lawsuit is frivolous or vexatious, they can ask the court to dismiss the case. The court has a wide range of remedies it can apply, including, most important, dismissal of the case, plus possible damage costs awarded, which would result even in disciplinary action against any lawyer who is acting for a party commencing in such a frivolous or vexatious lawsuit against a member, especially if it was motivated to interfere with a member of Parliament's duties and privileges.
However, the court is the best place to make that determination. If the court finds that a lawsuit is valid, members should not be able to use their parliamentary privilege to advance their legal position. There is therefore no compelling need to make immediate changes to the code. Instead, it would be worthwhile to have the procedure committee examine the issue to determine whether there is a problem that needs to be fixed, and if so, how to remedy the situation.
In fact, when the code was first adopted, the procedure committee recognized the need to periodically review the code's effectiveness. The committee report stated:
We realize that any document such as the proposed Code is, in effect, a work in progress. We fully expect that time and experience will indicate where changes need to be made, and we have provided for both ongoing oversight by this Committee, and a comprehensive review of its provisions and operations every five years.
Section 33 of the code, therefore, requires the procedure and House affairs committee to undertake a comprehensive review of its provisions and operations within five years after its coming into force. The code came into force at the beginning of the 38th Parliament on October 4, 2004, and therefore, a comprehensive review of the code is mandated to take place by October 2009. This would be an appropriate opportunity for the procedure committee to examine the implications of the commissioner's recent report.
I will sum up by saying that the Conflict of Interest Code was developed in a non-partisan fashion with the consensus of all parties. Given the importance of the code, parliamentarians undertook years of careful scrutiny and consultations before finalizing these measures. When tabling a draft code of conduct, former deputy prime minister John Manley stated in the House on October 23, 2002:
A code for members must be non-partisan and must serve all members in all parties. The Milliken-Oliver code, on which this document is based, was prepared by an all party committee.
He also went on to state:
The Prime Minister has stated that the government is open to considering changes which maintain an effective code and serve the interests of members and their constituents. That is why we have tabled these documents in a draft form to give the committee flexibility on these matters.
I am pleased to work the committee and all parliamentarians on these important matters.
The member for Scarborough—Rouge River was a member of the government that recognized the need to engage parliamentarians and build consensus in the development of the Conflict of Interest Code, so I wonder why today the opposition has changed its approach on these issues.
Given that other avenues exist to respond to the Ethics Commissioner's report, and given that there is no clear need to take any immediate action, I do not understand why the opposition members would want to use one of their few opposition days on this subject. I also do not understand why the opposition would not agree to let the procedure committee work within the Standing Orders of the House of Commons so that the Ethics Commissioner's report can be properly considered.
Instead of making changes that have not been properly thought out, I would ask members to oppose this motion and allow the procedure committee to do its work in accordance with the Standing Orders.