Mr. Speaker, I had given the clerk notice that I wished to present a few brief comments with regard to the matter of privilege raised by the member for Kings—Hants on February 7. The finance committee tabled its 10th report on Monday, February 7, and the member for Kings—Hants, pursuant to that report, raised a privilege issue. I want to concur with the arguments raised by the member for Kings—Hants.
I also want to incorporate, by reference, the matter of the privilege argument by the member for Scarborough—Rouge River in relation to the Afghan detainee documents on March 18, 2010, as well as your ruling thereon, Mr. Speaker, delivered on April 27, 2010. Within those presentations, there are substantive relevant documents and references, as well as precedents, which have bearing on the privilege matter before the House now.
The principle here is that the committee, by a motion, agreed to do certain work and to request certain information. In fact, that information would come from a number of departments.
The request from committee, which is reported in the 10th report, was for the government to provide: five year projections on corporate profits; costing with regard to a number of justice bills; a number of pieces of information with regard to incremental cost estimates broken down by capital, operations, maintenance and other categories; baseline departmental funding requirements; total departmental annual reference levels; and detailed costing analyses and projections, including assumptions, for each of the bills and acts conducted in accordance with the Treasury Board guide to costing. These are all laid out in the 10th report of the finance committee.
The reason this matter was reported is that in all respects the government's response was that these were matters of cabinet confidence. This is the element that yet has to be examined and explored because there is a contention that it is cabinet confidence, but in my reading of some of the reference material, that is not the case.
These pieces of information being requested in fact appeared in last year's budget. They also appear in various documents by the justice department and other officials, including the Parliamentary Budget Officer, with regard to the costing of certain matters. I will deal with those at the end of my comments.
There is no question that this has to do with the privileges of Parliament to call for persons, papers and records. The delegated authority is in Standing Order 108(1)(a) of the House of Commons and in rule 91 of the Senate of Canada. I will not dwell on those as they are well explained.
I took the opportunity to examine some of the arguments and references in the book entitled The Power of Parliamentary Houses to send for Persons, Papers and Records: A Sourcebook on the Law of Precedent of Parliamentary Subpoena Powers for Canadian and other Houses, which was written by my colleague, the member for Scarborough—Rouge River, and published in 1999. In looking at some of these extracts, I felt there were a couple of relevant references to precedents.
The 21st edition of Erskine May, in reference to the enforcement by the House of its authority to send for persons, papers and records, on page 69, states:
When any of these rights and immunities is disregarded or attacked, the offence is called a breach of privilege and is punishable under the law of Parliament.
Further, Erskine May states in the 6th edition, on page 102-3:
Each House also claims the right to punish as contempts actions which, while not breaches of any specific privilege, obstruct or impede it in the performance of its functions, or are offences against its authority or dignity, such as disobedience to its legitimate commands--
It goes on to say:
Generally speaking, any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results may be treated as a contempt even though there is no precedent of the offence.
This is a matter relating to the concept or the aspect of obstruction of members of Parliament to do their job through the delegated authority to committees. Obviously, we have the authority to call for persons, papers and records. What we do not have is the authority to act, should there be a refusal or an obstruction by a party to allow us to do our work. Why would that information be necessary?
It is necessary, not only for the committee but also for all hon. members, simply from the standpoint that once we have a budget out which has, for instance, tax cuts, leading right through to 2012 and a costing of that right through to 2015. Knowing what the assumptions were, the projections on corporate profits, and the projected tax rates et cetera, these are all relevant to the determination of those numbers. That budget has been presented.
Also, with regard to the various justice bills, all of the bills referred to and for which information has been requested, they are all referred to as bills that have already been presented to the House and, in fact, are at various stages of debate.
You must ask yourself, Mr. Speaker, if members of Parliament in committees are to do their job, are to hold the government accountable, are to scrutinize legislation, how can they do that without having the fundamental information on which those bills are based and the assumptions that have been made?
I will deal with the issue of what constitutes a cabinet confidence. One of the aspects is discussion papers and I will deal with that in a moment. I wanted to also deal with another reference. Maingot's 2nd edition, on page 239-40, states:
Disobedience of rules of orders [of the House or committees] is an obvious contempt and would include...refusing to personally attend and to produce the documents requested by a committee...or otherwise disposing of them and refusing to answer questions put by the committee or by the House.
Similarly, Greenwood and Ellicott, on page 33, states:
It also follows from the wide powers which committees can exercise that, if ordered to produce a document which contains communications which were privileged before Courts of law...a person would be in contempt if he did not do so. Although these privileged communications are usually respected by committees, committees are not restricted in the same way as the Courts.
Finally, Beauchesne's sixth edition on page 236 states in part: “Committees may send for any papers that are relevant to their Orders of Reference”. The material and the matters before the committee were, in fact, relevant to its order of reference. It goes on, “Within this restriction, it appears that the power of the committee to send for papers is unlimited”.
It goes on to say:
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 their difficulties and obtaining the requested documents. It is then for the House to decide what action is to be taken.
Those are precisely the facts in this case.
In response to the request by the committee, as I had indicated, the government has stated quite simply that this information is a matter of cabinet confidence.
I would suggest to you, Mr. Speaker, that there is, and appears to be, a pattern of challenging the privileges of Parliament to call for persons, papers and records. And indeed, I want to give an example which I believe is relevant.
On August 26, 2010, the Leader of the Government in the House of Commons wrote to the Standing Committee on Access to Information, Privacy and Ethics. The committee had been working on a matter related to allegations of government interference on access to information requests.
There were three points laid out in the letter, but the one that is relevant to this is the third point. This is a quotation from the letter from the Leader of the Government in the House of Commons, dated August 26, 2010, to the Standing Committee on Access to Information, Privacy and Ethics:
Third, Parliament's power to call for persons and papers has never been exercised to give a parliamentary majority access to such records and the internal communication of a parliamentary minority. Such interference would be unprecedented and abusive. We take the position that the power to call for persons and papers does not extend this far.
In response, I asked the Law Clerk of Parliament to advise the committee on the arguments raised by the House leader in his letter. For the record, this is the letter of response from the Law Clerk, dated September 16, 2010, to myself as chair of the standing committee.
In specific reference to the last point about the power to call for persons, papers and records, the Parliamentary Law Clerk opined as follows:
Whenever the House or a committee adopts a resolution to require the production of documents, the resolution is always adopted by vote of a majority of the Members present. Thus, it has always been the case that a parliamentary majority can, by a resolution, demand access to records of the Government or a Minister. Secondly, a resolution for the production of documents by the Government or a Minister is not made against the minority present at the vote on the resolution but rather is directed at the Government or the Minister, as the case may be.
Referring to the government House leader:
It would seem that the Minister is invoking the circumstances of a minority Government to say that a parliamentary majority, demanding by a resolution the production of documents, cannot make this demand against the Government that has only a parliamentary minority. If this were the case, it would then mean that the House or any of its committees can never seek the production of documents from a minority Government. I am unable to find any authority for this proposition.
I refer to a pattern with this government, certainly with regard to the ethics committee, in refusing to allow the staff members of a minister's office to appear before committee. Ultimately, they admitted in committee that the government, in fact, interfered. Some are under investigation and some have been fired.
We had the case of the in-and-out investigation by Elections Canada that looked into the practice of the government. We had the government actually advise witnesses to ignore the subpoenas issued by the committee to them, and we had testimony that the government interfered with those witnesses; tampering with witnesses. Also, there are a number of other examples on the access to information side.
I want to turn to the issue of cabinet confidence. I looked at the Department of Justice's website under the title “A Comprehensive Framework for Access to Information Reform”. I printed out the second page where it says:
The privilege associated with Cabinet confidentiality finds its expression in three statutes: section 69 of the Access to Information Act, section 70 of the Privacy Act, and section 39 of the Canada Evidence Act (CEA).
It goes on to say:
All three Acts describe a subset of Cabinet confidences called “discussion papers”. These are documents whose purpose is to present to Cabinet background explanations, analyses of problems or policy options.
And this is important. It continues:
If Cabinet has made a decision on the issue to which a discussion paper pertains, that discussion paper may no longer be protected once the decision has been made public, or after four years, if the decision has not been made public.
The information in the discussion papers includes the information that has been requested by the committee. It has the information, the forecast, the rationalization, all the information that the cabinet would require to make decisions. In fact, last year's budget was tabled. The decisions were taken, whether it be on tax cuts or the government's agenda with regard to justice bills and to all the other matters that the committee had requested.
There is a court reference. In the Ethyl case, the Federal Court of Appeal held that form could not prevail over substance. It ruled that legislation not having been amended, the discussion paper provisions must continue to have effect.
The issue and the point to be raised is that the bills in question had been presented to the House and were in the public domain. Therefore, the discussion papers related to each and every one of those bills, to the budget information requested and to the Treasury Board information requested and all the items listed in the 10th report of the Standing Committee on Finance are not cabinet confidences, even according to the Department of Justice.
Committee members and all members of the House need information to understand the context and the data on which budget decisions and legislative proposals are based. That is the fundamental requirement for us to be able to debate with some knowledge and an opportunity to rebut and hold the government accountable.
Accountability, therefore, is under attack by the government failing to provide the information requested. Once presented for consideration by the House, the assumptions, data and projections, et cetera must be made available to Parliament so we can make informed decisions, which is the subject matter of our prayer each and every day, that we make good laws and wise decisions. That cannot be done in the absence of information.
The final point I would like to make is there have been a number of cases where clear breaches of parliamentary privilege have not been dealt with by the House. One of the examples would be subpoenaing of witnesses such as Dimitri Soudas. A subpoena was issued and he refused to be served. That matter was never dealt with. There are several others. Other cases, where there would have been matters of privilege raised before the House, were not reported to the House because of either a prorogation of the House or the call of an election.
I wanted to make that point because it is very important since the powers of Parliament to call for persons, papers and records is based on over 300 years of Westminster practice and procedure and experience. However, it is not codified. I do not want, for one moment, anyone to think that if a particular matter was clearly a breach of the privilege of Parliament but it was not brought to the House and therefore was a precedent in itself that it need not be was never the case. I want to reaffirm that.
Those are my comments. I understand other parties will be making further submissions.
I very much appreciate your attention, Mr. Speaker, to the points I have raised and that the matter of privilege will be dealt with in expeditious fashion so both the committee and the House can do their job.
