Mr. Speaker, I rise today further to the comments of the hon. Chief Government Whip in response to the point of order raised yesterday by the hon. member for Windsor—Tecumseh respecting proceedings in the Standing Committee on Access to Information, Privacy and Ethics, as well as the comments added by the hon. members for Winnipeg North and Saanich—Gulf Islands.
Mr. Speaker, at the conclusion of his very lengthy submissions, the official opposition House leader asked you to declare proceedings on the ethics committee study in respect to the Canadian Broadcasting Corporation to be, if I might summarize, null and void. In the alternative, he asked you to direct that the study be suspended for the time being.
From the outset, the core of my arguments will be that the request from the hon. member is premature. It is well established in the House that our committees are “masters of their own proceedings”. Following from that premise is the equally well established principle that the Speaker does not ordinarily intervene in committee proceedings.
The hon. member for Windsor—Tecumseh referred to page 1048 of O'Brien and Bosc which refers to committees as having the freedom to organize their work as they see fit and that these freedoms are not total or absolute. While I would agree that in certain situations the Speaker ought to intervene, the member did not present any argument that would meet that standard in this particular case.
That standard of intervening in the absence of the committee report might be gleaned, for instance, from the decision of Mr. Speaker Parent on November 7, 1996, at page 6225 of Debates. In that decision, a bona fide substitute member had sought to give notice of a motion at a committee meeting but had been ruled out of order because he was not a regular member of the committee. When satisfaction could not be reached at committee, a point of order was raised in the House. The Chair found that there was an evident breach of the Standing Orders in respect of the rights of substitute members.
It might also be worth noting that Mr. Parent's self-styled clarification and “statement” was made when the Standing Orders respecting associate membership in standing committees were only a couple of years old, so it was as much an effort to add clarity to what was then a relatively novel area of the House procedures than it was a decision to set aside a committee's place as the master of its own proceedings.
The bulk of the arguments made in the point of order centred on a letter from the Law Clerk and Parliamentary Counsel, Robert Walsh, to the hon. member for Timmins—James Bay. While that letter delves into the sub judice convention, it largely speaks to questions of law about potential consequences of hypothetical scenarios that are not presently before us.
I would note that page four of Mr. Walsh's letter observes that:
Subject to my comments in response to your 4th point below, if the documents are considered by ETHI at in camera meetings, the sub judice convention would not be offended.
In his arguments, the hon. member for Windsor—Tecumseh premised much of his concern around the notion that the ethics committee would not be successful in keeping its proceedings in camera. I would like to give all hon. members from all parties on the ethics committee more credit than that.
The NDP House leader cited a ruling by Mr. Speaker Fraser on March 26, 1990, which is found at pages 9756-58 of Debates and he quoted from part of it. I would also quote the following passage from that ruling:
If I am cautious in not acting now it is simply because the Chair does not supervise the standing committee chairmen. That function belongs to the members of each committee and they have obvious avenues to pursue other than invoking privilege in the House.
With respect to the facts of this particular case, the ethics committee, acting as master of its own proceedings, has passed a motion seeking production of certain documents from the Canadian Broadcasting Corporation further to a study it has commenced in relation to access to information.
I understand that the CBC has complied in part with the committee's motion. Whether the CBC's response is satisfactory to the committee will be a matter for the committee to decide, again, acting as the master of its own proceedings.
Committees of the House possess the power to send for papers and records but they do not have the power to enforce an order for production.
Paragraph 848(2) of the sixth edition of Beauchesne's Parliamentary Rules and Forms tidily articulates the process here:
The procedure for obtaining papers is for the committee to adopt a motion ordering the required person or organization to produce them. If this Order is not complied with, the committee may report the matter to the House, stating its difficulties in obtaining the requested documents. It is then for the House to decide what action is to be taken.
I will revert briefly to my comment a moment ago about the ethics committee's place to decide whether the CBC's production, a voluntary response, I would add, is satisfactory to the committee.
Should the committee decide that the documents do not sufficiently answer the request, it can make a decision to report these facts to the House or it could decide just to move on and drop it. That would be yet another instance of the committee acting as master of its own proceedings.
I do not mention all these incidents of the committee acting as master of its own proceedings just for the sake of being repetitive. It is actually key to the point that I want to make.
Should the situation with respect to the ethics committee's motion for production of documents not be resolved to the committee's satisfaction through the corporation's productions to date, the only way to, for lack of a better word, escalate the matter further is through a report to be tabled to this House. To put it another way: in the absence of a report from the committee, there would effectively be a continuation of the status quo.
A report advising of the refusal to honour an order of the committee, a contempt, in other words, would undoubtedly be accompanied by submissions to you, Mr. Speaker, seeking a finding of a prima facie contempt of Parliament and for permission to move an appropriate motion.
Alternatively, someone opposed to the proceeding might then challenge the committee report and the acceptability of a concurrence motion tabled in the ordinary course.
Therefore, I would submit that the appropriate time to be raising points about the proceedings of the ethics committee and how they may intersect with the sub judice convention would be at that time, that is to say, after any report from the ethics committee is presented.
Accordingly, I would defer making further submissions on behalf of the government respecting the sub judice convention and how it would and would not apply in the circumstances until a report from the ethics committee is presented on the circumstances, if one is even forthcoming.
To reiterate my earlier line of argument, such a report coming forward would be, I suggest, a matter for the ethics committee to decide acting as the master of its own proceedings. Whether a report will or will not be presented is not for me to say. After all, it could be possible, again, for the committee to find itself satisfied with the voluntary disclosures provided by the CBC in response to the motion.
The comments of your immediate predecessor, Mr. Speaker Milliken, in his March 14, 2008, ruling, at page 4181 of Debates, might offer some perspective here:
The hon. Parliamentary Secretary goes on to caution against presuming on the direction that the committee’s study might take and jumping to conclusions about the nature of any report it might present.
I must acknowledge the validity of that argument.
There is one additional thought I would like to add from the 1990 decision of Mr. Speaker Fraser, which both the official opposition House leader and I quoted. The passage I cited earlier made reference to the committee as the most appropriate venue respecting proceedings in committees.
Later in his ruling, Mr. Speaker Fraser added:
I remind hon. members that endless points of privilege on what goes on in committee, when they fall short of that extreme situation where a Speaker might have to intervene, take up a great deal of time in this House.
That point is instructive in that it should put a caution on the NDP House leader's invitation to the Chair to find such an “extreme situation” here.
In the circumstances, for the reasons I have just outlined, this argument is premature because the Chair could have more relevant timing down the road to entertain these issues if and when this matter evolves through a report from the ethics committee.
To borrow from a common cliché, the toothpaste is not out of the tube here yet, Mr. Speaker.
To intervene at this stage would, I suggest, move the so-called line to eliminate what are the extraordinary circumstances when committees may not be masters of their own proceedings and, in turn, possibly lead to a series of other points of order striving to seek greater definition to where that line lies, in future cases, where the majority of a committee disagrees with the studies chosen by the majority for a standing committee's focus.
Therefore, Mr. Speaker, I would conclude by asking that you find the point of order raised by the hon. member for Windsor—Tecumseh is not well taken. Given that the chair of the ethics committee has cancelled meetings on this matter until such time as you give a ruling, I would ask that you come back to the House at your earliest opportunity so that the ethics committee may take up consideration of the documents submitted by the Canadian Broadcasting Corporation.
However, should the Chair wish to make a ruling on the applicability of the sub judice convention in the current circumstances and prior to the House receiving any report from the ethics committee on point, I would ask for you to indulge me or one of my colleagues in the government an opportunity to make further submissions on those aspects.