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Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament

Issue 16 - Evidence - December 4, 2018


OTTAWA, Tuesday, December 4, 2018

The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:31 a.m. to examine the possibility of amending the Rules of the Senate to expressly give the Standing Committee on Internal Economy, Budgets and Administration the necessary discretion to meet in camera when required.

Senator Leo Housakos (Chair) in the chair.

[Translation]

The Chair: Good morning, colleagues, and welcome, everyone, including the members of the general public who are here today, on site or online, attending the proceedings of the Standing Committee on Rules, Procedures and the Rights of Parliament. I would like to ask honourable senators to introduce themselves, starting on my left.

[English]

Senator Sinclair: Murray Sinclair, Manitoba.

Senator Greene: Stephen Greene, Nova Scotia.

[Translation]

Senator Gold: Marc Gold from Quebec.

[English]

Senator Joyal: Serge Joyal, Quebec.

Senator Wells: David Wells, Newfoundland and Labrador.

Senator Woo: Yuen Pau Woo, British Columbia.

Senator McCoy: Elaine McCoy, Alberta.

[Translation]

Senator Maltais: Ghislain Maltais from Quebec.

[English]

The Chair: I am the chair, Leo Housakos, from Quebec.

We are here as a result of the adoption by the Senate on Thursday, October 4, 2018, of the twenty-ninth report of the Standing Senate Committee on Internal Economy, Budgets and Administration, which we know as CIBA.

This is our first meeting on this order of reference. Pursuant to the report, the committee is to examine the possibility of amending the Rules of the Senate to expressly give the Standing Committee on Internal Economy, Budgets and Administration the necessary discretion to meet in camera when required.

To provide us with more context in regard to our study and this request, we have Senator Marwah with us, the chair of Internal Economy, Budgets and Administration. With him is Pascale Legault, Chief Corporate Services Officer.

I remind colleagues that this committee is broadcast so we should be on our best behaviour. I turn the floor over to Senator Marwah to make his opening comments.

Hon. Sabi Marwah, Chair, Standing Committee on Internal Economy, Budgets and Administration: Honourable senators, thank you for inviting me to discuss the twenty-ninth report of the Standing Committee on Internal Economy, Budgets and Administration, dealing with the committee’s authority to proceed in camera to consider matters of a sensitive nature. This report was adopted by CIBA on June 21, 2018, presented in the Senate on September 18, and adopted on October 4.

As background, historically almost all meetings of CIBA used to be held in camera. There is no specific rule that allowed the committee to proceed in this fashion. Rather, it was a well-established practice in the Senate that when CIBA met it would be in camera.

However, this practice has changed. In recent years, as part of the institution’s commitment to transparency and accountability, the committee has decided to open its meetings to the public. Today the committee conducts most of its business in public. However, from time to time it is required as part of its mandate to consider sensitive matters. In such cases, the committee has chosen to deliver it in camera.

The current Rules are quite clear. According to rule 12-16(1), a committee may meet in camera only for the purposes of discussing the following:

(a) wages, salaries and other employee benefits;

(b) contracts and contract negotiations;

(c) labour relations and personnel matters; and

(d) a draft agenda or draft report.

This rule, which also applies to most other Senate committees, does not explicitly include all situations in which CIBA should be able to meet in camera. For instance, during its recent meeting, CIBA has discussed issues relating to security, litigation, long-term vision and plan of the parliamentary precinct, among others.

These discussions were held during the in-camera portion of the committee’s meetings to ensure that an open and frank discussion could take place, but also to protect the sensitive nature of the information being discussed.

Rule 12-16(1), as currently worded, is very restrictive as to when committees are authorized to meet in camera, particularly in the case of CIBA.

As you are aware, discussions in CIBA cover a wide range of issues. Therefore, CIBA is seeking to be granted the necessary discretion to meet in camera when required and not be limited by the matters specified in rule 12-16(1).

In the twenty-ninth report, CIBA adopted a recommendation requesting the Standing Committee on Rules, Procedures and the Rights of Parliament to examine the possibility of amending the Rules of the Senate to include additional criteria specifically for CIBA.

Honourable senators, this recommendation does not diminish CIBA’s commitment to be open, transparent and accountable. Rather, it seeks to find the proper balance of being able to conduct certain sensitive and confidential discussions in camera while maintaining the highest standards of openness, accountability and transparency.

I would like to thank you for your time this morning. I would be happy to take any questions.

Senator Sinclair: Curiosity begs me to ask: Other than security matters and litigation, what other areas do you think CIBA might need to have in-camera authority?

Senator Marwah: Senator Sinclair, that is hard to predict, but I could see things where the Ethics Officer comes to us looking for items that need to be discussed or passed by CIBA. I have heard that but it hasn’t happened to date. There could be long-term vision and planning pertaining to the parliamentary precinct and moves that take place that we don’t necessarily want public before they actually occur.

It’s very hard to predict given that CIBA covers all issues pertaining to the Senate. It is very difficult to predict the nature of each request that comes.

Senator Sinclair: The difficulty I have is the open-endedness of the request.

Senator Marwah: I will leave it to your discretion as to how you want to restrict it, but it’s very difficult to predict all the circumstances under which things come to CIBA.

Senator Housakos was previously the chair of CIBA, and many of you have experience in matters that come to CIBA, so we shall leave that to your discretion.

Senator Joyal: Senator Marwah, when we read rule 12-16 of the Rules of the Senate, the way I understand the Rules is that in principle a committee sits in public, and only for exceptional purposes will a committee be authorized to sit in camera.

Senator Marwah: That’s correct.

Senator Joyal: To follow on Senator Sinclair’s point, when you read the spirit of the Rules it would be contrary to rule 12-16 if we authorized CIBA to sit in camera for any purpose.

Senator Marwah: It’s not any purpose. We mentioned three instances whereby we have held meetings in camera. We can always do that, but we don’t want someone to raise a point of order saying that we have four reasons for which you can sit in camera. Then, we sit in camera with Security where we discuss cybersecurity, IT issues, weaknesses and fixes that take place. We don’t want those discussions given in a confidential nature to be held in public.

We don’t want to be offside of the Rules either. We could go with a laundry list and say it could include security, litigation and long-term vision and planning. We could go on and on in terms of a laundry list, but we figured we would leave it to your judgment as to whether there is a better way to do that rather than give you a longer laundry list of issues that come before CIBA.

Senator Joyal: You understand how we face the spirit of the Rules and the letter of the Rules to maintain the principle that we sit in public.

Senator Marwah: I fully understand the dilemma. If you prefer and want the laundry list, I leave it up to you to decide. You know the range of issues that come before CIBA. We could specifically itemize them if that is your preference.

Senator Joyal: Instead of going into all the details of cybersecurity, security on the Hill or personal security of senators, we might have a concept of security that could cover a wide range of issues.

It might be helpful if you would provide the committee with the items on which you feel it would be proper for CIBA to sit in camera. Then we could try to find concepts that are very general and would allow you to decide.

Senator Marwah: The issues that have come up in my short term as chair have been security pertaining to cybersecurity and vulnerabilities in that regard, what remedies we should put in place, the litigation aspects whereby we have to discuss litigation or the long-term vision and planning, and the move to the GCC building.

Those three issues have come up in my short term as chair. Those are the examples that I can think of.

Senator Joyal: We want to help you in a way that we maintain the spirit of the Rules, not to constrain you but to adopt concepts that could be used.

Senator Marwah: If you prefer, we could come up with a draft wording and send it to you and then leave it for you to pass judgment on whether it would be appropriate or not. That’s fine with me.

Senator Joyal: That might be helpful.

Senator Marwah: That is what I asked our corporate services officer this morning, and she said, “It was our understanding it was your preference not to be prescriptive.”

If you would like me to give some recommendations, I would be glad to do that.

The Chair: I have a couple of questions before we go down the list, pursuant to the questions of Senator Joyal and Senator Sinclair.

Every committee has the right to go in camera at any give time if the majority deems it necessary. From my experience, and I think most of our experience in Internal Economy, I don’t ever recall a case of there being a situation where a majority voted down a request to go in camera.

Specifically, and you brought them up quite appropriately, there are four issues that always took us in camera: security, litigation issues, labour issues and procurement issues.

You mentioned the SEO issue in passing earlier. The SEO would never come before Internal Economy to begin with because, as we all know, with our ethics code, it’s an arm’s-length officer of parliament from all committees. The only committee the SEO would come before would be the Standing Committee on Ethics. If there would be a request for actual documentation from the SEO, it would come to steering of Internal Economy. It wouldn’t come to Internal Economy as a whole.

Other than the four obvious issues for in camera, have you ever come across either the CCSO or the chair? Never in my two and a half years have I seen an issue other than those four that would require going in camera.

Senator Marwah: As I mentioned, the two that have happened in my short term as chair have been security and litigation. Though I have heard references where requests came from the ethics officer, they did come to steering. You are correct.

Senator Gold: In addition to whatever specifics you might recommend to us, I wonder if you could also include the principle or principles that you think underline the current rule and the additions that you would recommend.

One of the ways in which we could structure decision making around going in camera is specific examples. Another is the principle that would guide decisions, whether it is to protect privacy or some other such matter. That could be helpful to us when we try to figure out the right language to use to assist you in this.

Senator Marwah: Senator, when we provide you with additional categories, so to speak, we’ll provide you with the rationale as well.

[Translation]

Senator Maltais: I will leave the issue of security to the security experts, but let me raise another point. The Standing Committee on Internal Economy, Budgets and Administration represents the Senate. Do we agree on that? The Senate is made up of senators. Do we agree on that? When a senator has a dispute with the Standing Committee on Internal Economy, Budgets and Administration — and I am in no way disputing the idea that its deliberations can be held in camera — why is it that the decision you make in camera is made public and that the senator concerned cannot receive the minutes of those decisions?

[English]

Senator Marwah: I think it’s a matter of balancing the need for privacy and transparency. As far as I understand, at times we have made reports public even though the discussions were held in camera; but the reports that have been made in public have been of a more general nature rather than specifics.

[Translation]

Senator Maltais: That’s fine, but in the spirit of justice, if the person wants to appeal the decision, they have no basis to do so, because they cannot receive the minutes of the proceedings. In a court, you can receive the judges’ deliberations and the evidence provided by the prosecutors. In this case, you cannot receive the minutes. I am not asking that they be made public, but I am saying that the person concerned should have the right to receive those minutes if they wish to appeal the decision.

[English]

Senator Marwah: Senator, I shall take that under advisement. I see no reason. Your question seems simple in principle.

[Translation]

Senator Maltais: It is not very simple.

[English]

Senator Marwah: I didn’t mean simple, sorry.

[Translation]

Senator Maltais: I’m telling you, it’s not very simple. Personally, I have made a request five times and I am referred from one section to another, from one public servant to another. I want a record of a decision that has been made in a specific case that concerns me, but I cannot get it. You represent the senators, take the necessary steps to ensure that this does not happen again and that evidence is provided. Thank you.

[English]

Senator Marwah: I apologize. “Simple” was a bad choice of words. I meant your request seemed appropriate. That was my intent. It seems a reasonable request, and I shall look into it.

Senator Wells: A couple of things come to mind. Aside from the security, labour, procurement and litigation topics, there are other times when committees would go in camera. Maybe they are not CIBA because it doesn’t generate a lot of these types of reports. One would be consideration of a draft report where we have some back and forth. It is a little more informal but not necessarily confidential.

I would caution on providing a list because lists are exclusive. They remove the flexibility that we all enjoy, whether on steering, in the chair or with a professional clerk advising. There is a necessity that the decisions about whether to go in camera should not necessarily be exclusive to security, labour, procurement, litigation or any part of a specific list when we have always enjoyed the ability to have a discussion through steering, through advice from the clerk.

One other thing comes to mind. It is not a specific item, but very often, especially when I was on CIBA, there would be a request for senators only. Obviously, that’s in camera and may not have anything to do with the short list provided.

I want to have, for the record, my recommendation to have as much flexibility for the process we normally have in considering when a portion of a meeting should be in camera.

In my discussions with Senator Tkachuk when I was looking at the structure of another proposed committee, and maybe a bit to correct the record, he brought CIBA on camera, not in camera, about seven or eight years ago when he was chair. There was little uptake. It wasn’t televised. Reporters generally didn’t show up, but I know when Senator Tkachuk was chair of CIBA some years ago he began that practice.

Senator McCoy: This deserves some deep thought. First, let me say that the word “litigation,” to my mind, is too broad. It needs to be a little more specific. Litigation is in public, so what is the point of us discussing it in camera?

I imagine that something akin to solicitor-client conversations should be held in confidence because they are privileged. It is that sort of analogy I might try to draw.

If we are discussing a Senate position on a case in which we are involved and we have counsel with us, then I think that should be confidential because that conversation is privileged. To say that any time litigation comes up is in camera is, to my mind, too broad.

Although I am sympathetic to the flexibility rule, I am more inclined to agree with Senator Maltais. I think it’s one of the elephants in the room. It continues to be in the room. It is one of the structural faults that we still haven’t addressed fully. I am continuing to hope the modern Senate will take an in-depth look at how decisions are made that affect individual senators on the expense side, on the ethics side and on the conflict of interest side.

There is a specific process. It’s very good. It’s not perfect. I think the confidentiality that is imposed on that process is possibly too much as well because it leads to mistrust of the public. The public mistrusts anything done in secret. So do senators, come to think of it.

However, on the expense side, in the Senate Administrative Rules there is no such process. We have been known to make decisions affecting individual senators arbitrarily and in the dark, some of them in camera and in the dark and many of them arbitrary. I saw that last year, for example.

This antedates as well as predates the last election. I have seen all senators participate in that, regardless of when they were appointed. It is obviously a structural problem and is one of the priorities we should be addressing in moving forward on modernizing the Senate. It takes some careful thought because again there are conflicting interests, private and institutional.

I leave those thoughts with you because I think we have to carve around them. It would be very helpful if you could come back with some suggestions in terms of a process to make that those decisions. If you were to ask Senator Joyal, Senator Andreychuk and me, for that matter, we have one or two suggestions in our back pocket because we have been trying to persuade people to take a serious look at this issue.

How long have you been trying, Senator Joyal? Is it eight or nine years? Senator Andreychuk has been trying as well.

I would start with one principle, the biggest principle of all, and that is the public interest, not our interest or not even the institution’s interest. Certainly it’s not a senator’s interest. The public interest should be the guiding star. Even though the in-camera pieces we have in rule 12-16 may deserve a bit of polishing, I think they were crafted many years ago. They haven’t been changed since I don’t know when. The public interest in 2018 demands much more transparency and much more public transaction of business than was the case in 1991 when these rules were last revised in any major way.

Senator Marwah: Senator McCoy, perhaps I could briefly respond to that. It is fair to say that the decision to go in camera is never taken lightly. It is often deliberated by steering and by the committee, but we only do so to balance the needs between transparency, accountability and public interest, as you rightfully point out. There are some things of a sensitive and confidential nature that we need a decision on. It’s the reality of the nature of CIBA. We balance these conflicting needs continually.

I understand that there are times when we have made a decision in camera and a report on the decision is made public wherever possible. To the extent we want to increase transparency, we are doing that wherever possible. The fact is that CIBA deals with confidential and sensitive issues, and we need some flexibility to deal with them.

[Translation]

Senator Dupuis: Good morning, Senator Marwah and Ms. Legault. It seems to me that the issue of the in camera meetings of the Standing Committee on Internal Economy, Budgets and Administration is not an isolated issue in itself. The Internal Economy Committee operates with a very specific mandate and authority, and other committees operate with their own mandate and authority.

Right now, it seems to me that this is not consistent from one committee to another when it comes to overlapping issues that can lead both the ethics committee and the Internal Economy Committee to consider an issue. How do we harmonize everything, whether it is processes, discussions or in camera or public sessions?

Two minutes ago, Senator Wells said that Senator Tkachuk — In terms of time periods, we have the Tkachuk era, the Marwah era. If the principles are not clear, there is a problem with transparency and enforcement of the rule with respect to in camera sessions.

One principle that seems to me to be very high up in the hierarchy is accountability. The Internal Economy Committee makes decisions about public resources, and people no longer put up with those decisions being made behind closed doors. What does accountability mean to the Committee on Internal Economy and what does it do, beyond the public interest and the balance between the rights of senators affected by a decision or deliberations and their right to the rule of law? It seems to me that these principles must be examined from the point of view of the institution and the senators, not just from the point of view of the senators. The Standing Committee on Internal Economy is a committee of the Senate. So the question of the committee’s accountability is also a question of the Senate’s accountability. There is a link with parliamentary privilege. We have to determine how much leeway we have, one way or another, with respect to in camera sessions.

I think the current situation is harmful, because we often hear extremely negative comments internally about the Standing Committee on Internal Economy. I sat on the committee for one year, and I don’t think we made decisions that made no sense, but I think people need to understand the principles and rules, and why we make those rules, knowing that there is something more consistent with the other processes outside the Standing Committee on Internal Economy. Thank you.

[English]

Senator Woo: Thank you, Senator Marwah. Wherever we land on the question of a detailed list of permissible issues to go in camera on, or a more generalized authority giving you more discretion, it will be up to the committee at the time of the topic in question to make the decision to go in camera or not. We should remember that this majority decision point of the committee is an important check on any abuse of the in-camera possibility.

That is to say that, in some sense we have to trust our colleagues on CIBA. It’s a large-ish committee. They share the principles we have articulated about the need for transparency and accountability. They will have to make the decision at a point in time on a discussion at hand relative to the circumstances they are facing, which we cannot predict at this table.

For that reason, given my faith in the ability of our colleagues in that committee to uphold the underlying principles of this discussion, we should lean toward a relatively generous allowance of going in camera. In other words, we should allow some measure of discretion.

Even if we were to come up with six issue areas we might consider permissible for going in camera, the fact is that it will be at a point in time when members have to decide, for example on the question of litigation, what kind of litigation we are talking about. It will be up to the members at that time to decide if going in camera is permissible or not. Therefore that gives a false sense of security and, hence, I would lean toward relatively permissive decision rule.

Senator Marwah: If I could respond to that, Senator Woo. I don’t think there has ever been a situation whereby we have gone in camera without the full support of the committee at that time.

Senator Batters: I wanted to respond to a point that Senator Dupuis made. There can be no doubt for those of us who have been members of CIBA for the last several years that one of our very highest priorities has always been transparency and accountability to the Canadian public. That was emphasized after the troubles of several years ago. We did everything we could and we continue to do that to make changes to the Senate as a whole and to make the issues we deal with at CIBA transparent and accountable.

Most of our meetings and deliberations at CIBA have been in public for several years, as Senator Wells was indicating, dating back to the time that Senator Tkachuk and Senator Housakos were the chairs. Also, we have televised them. For the vast majority of the deliberations we hold at CIBA, this is no longer some closed-door private meeting. Despite the fact that sometimes the media continues to portray it like that, it is not.

There are certain limited circumstances. We are trying to do our best to prescribe what those are, but transparency and accountability have been a hallmark of that particular committee.

The Chair: I will lead the way in round two by adding a bit more context to further reiterate with Senator Wells and Senator Batters said. Our number one priority has always been transparency and accountability. We have gone to the ends of the earth to prove it.

Senator Wells is absolutely right that Senator Tkachuk, many years ago, had taken the first steps to make Internal Economy public. We went even further by having entire meetings in public. It was not just having entire meetings in public. We also broadcast for the first time a few years ago.

That set such a precedent, colleagues, that today, if Internal Economy on Budgets and Administration on the house side is partially doing their meetings in public, it’s in large part because of the Senate led the way. I am proud to say we were the first Internal Economy Committee of the Commonwealth that broadcast their deliberations. That is important to highlight.

As we go forward, it’s a principle we have to maintain. We should always push back the inclination to try to do things in camera unless absolutely necessary. Currently, my understanding is that the rules provide for labour and litigation issues to be done in camera. I think procurement and security issues are also logical steps to add to those rules. I would be hard pressed to be convinced that other than those four elements there would be other elements we should specify as automatic calls for in-camera meetings.

Those are some of the comments I wanted to share. Round two is led by our deputy chair, Senator Sinclair.

Senator Sinclair: I differ slightly with the chair. There are probably lots of reasons why in-camera proceedings will be necessary. I come from a judicial background and I know there are many occasions when in-camera proceedings from a judicial perspective are required. Usually those are mandated by a specific piece of legislation, and usually they are defined circumstances and processes. There is an overall abiding authority that the judiciary has to go in camera from time to time.

Internal Economy is one of those odd committees that has its own set of authorities outside of the usual authorities that Senate committees have because you are referred to in the Parliament of Canada Act under subsection 19.2(1) where it says:

In exercising the powers and carrying out the functions conferred upon it pursuant to this Act, the Committee has the capacity of a natural person and may . . . .

(b) do all such things as are necessary or incidental to the exercising of its powers or the carrying out of its functions.

That may be an authority to go in camera, but that would require some legal research. It may be something you might want to consider pursuing.

Under subsection 19.5(1), it allows the committee to establish regulations where it says:

The Committee may make regulations . . .

(c) respecting all such things as are necessary or incidental to the exercise of its powers and the carrying out of its functions.

That again may be authority for the committee to make regulations about in-camera proceedings, so you may not even need us to change the rules. That is something about which you might want to consider speaking to the counsel that advises the committee.

One of the concerns I have is that if we amend the rule in the way that you ask, we’re not just amending it for you. We’re amending it for every other committee as well. Unless we make a specific rule for the Internal Economy Committee, then it will be an all-embracing rule or amendment over which all committees will have authority.

Finally, I want to comment that I don’t have any difficulty personally with expanding the list to include security matters and litigation if they are properly defined. It should be litigation involving either the committee or senators and the committee or senators and the Senate. I want you to know that those particular matters don’t greatly concern me, but there might be other matters over which you want to have authority as well.

Has your committee taken a look at those two sections of the Parliament of Canada Act?

Senator Marwah: To be honest, Senator Sinclair, that was not brought to my attention. I personally have not looked at it. Again, from a viewpoint of optics, it still would be better to define exactly what we could go in camera for, rather than be covered by another set of rules specifically applied for CIBA. In the process of transparency, it would still be better to redefine it here.

To your second question on having to amend the rules for all committees, that is not my understanding. We were hoping it would be applicable only for CIBA, given the fact that CIBA looks at issues in respect of security and litigation, whereas other committees do not. It is not intended to be all encompassing.

The Chair: You’re absolutely right. Internal Economy has a specific mandate to deal with these issues, and all other standing committees of the Senate would not be looking at security issues, litigation issues or administrative issues.

[Translation]

Senator Dupuis: That is what I meant earlier when I was talking about the consistency between the various regulations governing the Senate. There is section 19.2, but also section 19.1 of the Parliament of Canada Act, which states:

In exercising its functions and powers under this Act, the Committee is subject to the rules, direction and control of the Senate.

There is the technical issue of the channel through which this must be done if we want the Standing Committee on Internal Economy, Budgets and Administration to meet in camera. We have the opportunity to do so now.

When I talk about accountability, I would like to point out that, in my opinion, we must not give full responsibility to the individuals who are members of the committee. We assume good faith; everyone is acting in good faith and everyone has in the past. My position is that an institutional reality is not being addressed if we leave it up to the senators sitting on the committee. There’s a reason I mentioned that I was a member. We are talking about responsibility.

Let me give you a very specific example. Tomorrow morning, we want to make a decision at CIBA. We are bringing the Auditor General back to examine the expenditures. Operation number 2: Who will decide whether the deliberations and decisions will be in camera or in public? We have a very specific and recent example before us. I’m not trying to say that things went badly before. Things were done here and continue to be done, but institutional responsibility should not be placed on the individuals who make up a committee at any given time.

[English]

Senator Marwah: Senator Dupuis, that is a very interesting political question. I don’t know. If it were to occur, I think we would consult with all members. Something like that affects everybody. I would hope it would be a decision made by all members of the Senate rather than just CIBA.

It is not just a question for CIBA. I assume it would be done with legal advisement and with all our advisers, counsel, and other people we have. In my view something like that would not be a decision of CIBA, but of the Senate.

The Chair: If I may add to that, I concur with the answer from the chair of Internal Economy, Senator Marwah. In terms of context, I remind all newer senators who have been here a little shorter time than the rest of us that CIBA takes no decision in a vacuum. Every single decision that CIBA takes, every decision this committee takes, is brought back to the Senate of Canada. The deliberation continues there.

If the Senate of Canada does not approve and does not sign off, CIBA has no exclusive powers to bring in an auditor general. They don’t have any powers to issue a $2,000 contract. They don’t have the power to issue a $200 contract without approval.

Every report that comes up the ladder to the Senate Chamber gets approved and vetted by each and every one of us, and that happens with every committee. As the chair appropriately pointed out, decisions aren’t taken in a vacuum.

Despite the very exclusionary powers CIBA has through the Parliament of Canada Act, it’s really there. We can call for a briefing from the law clerk and our Clerk of Parliament, but that exclusive power and authority are granted in times of when the Senate rises, when there is a writ dropped or there is a recess of Parliament.Internal Economy has the authority to continue the administrative operation of the chamber. I wanted to share some of that context.

[Translation]

Senator Dalphond: I agree with you and Senator Dupuis that the Internal Economy Committee is a committee of the Senate. The Parliament of Canada Act does not seek to make it a separate identity from the Senate, but to specify, as you put it so well, that if Parliament is prorogued, all the committees are dissolved, except the Internal Economy Committee, because the house must be continue to be managed from an administrative point of view.

Second, rule 1-1(1) of the Rules of the Senate provides as follows:

The Rules of the Senate shall govern the proceedings of the Senate and its committees and shall prevail over any practice and the appendices to these Rules.

Therefore, our Rules must be the principles that guide all committees in their work, including the members of the committee when they vote on certain procedural matters.

Third, it seems to me that the principle of transparency should guide us. It is in the public interest that institutions like Parliament and its houses, including the Senate and its committees, practice transparency. Like the courts, it is in the public interest to sit in public. Courts sit in camera only in exceptional cases.

It seems to me that the same rule should apply here. The public interest requires that as many of our deliberations as possible be public and that we can only exceptionally sit in camera, under circumstances that can be justified in the public interest and can be explained to the public. Our Rules must be precise and must clearly set out the exceptions. If a case is not exceptional, the committee must, as a matter of principle, meet in public and does not have the power to deviate from that.

As for the exceptions provided for under rule 12-16, we are talking about contracts and contract negotiations. This probably covers some of the concerns mentioned earlier. The list may also be a little redundant. We could revisit it. Perhaps “labour relations and personnel matters” and “wages, salaries and other employee benefits” could be grouped together in a single paragraph, since they are the same idea. It is all about the personnel and their working conditions. Perhaps we should add a security consideration, but I would be against giving committees too broad a power to sit in camera as they see fit. This would be contrary to the principles that should guide us, namely transparency and being accountable to the public for the funds we manage.

Senator Maltais: I fully agree with Senator Dalphond and, in principle, with what Senator Sinclair said. The current Rules allow for this. The issue of security is very important. It was not essential five, six or seven years ago. It took an attack here in Parliament — many of us experienced it — for security to tighten. This has become important for the committee, which deals with the management of security.

The same is true for all parliaments. I was in the National Assembly on May 8, 1984. Subsequently, they set up a security system and did not make it public for security reasons. The guards were armed.

In that regard, Senator Marwah, you are absolutely right that security must remain confidential. When you develop a security plan, whether in a courthouse or a private building, you don’t publish it in the newspaper the next morning. It is kept confidential, except under exceptional circumstances, such as providing information to the Speaker of the house.

With contract management, it is the same thing, because it is the responsibility of the senator. There are 105 of us in the Senate. Not all of us manage this contractual responsibility in the same way. It depends on our needs. You are right that this must remain confidential, but under the current Rules, nothing is preventing you from doing so.

If an exception is to be made for CIBA, it must also be made for the Standing Senate Committee on National Security and Defence, because that committee deals with very important issues. Are we going to ask the committee to sit in camera? The Standing Senate Committee on Foreign Affairs and International Trade also discusses very important issues. Are we going to ask that committee to sit in camera to discuss certain points? Should we not examine, as Senator Sinclair suggests, the current Rules and make amendments to certain sections rather than develop specific rules for the Internal Economy Committee? That’s the question we need to answer, I think.

[English]

Senator Joyal: I would like to pick up on the point where Senator Sinclair proposed a way for us to get out of the responsibility to draft the rules and send them back to CIBA to draft rules for itself.

I propose some reasoning that might come to a different conclusion. As Senator Dupuis mentioned, subsection 19.1(4) states:

In exercising its functions and powers under this Act, the Committee is subject to the rules, direction and control of the Senate.

There is no doubt that the Parliament of Canada Act recognizes that CIBA has the power to adopt its rules to perform its duty. Its duties are very well specified at section 19.5, when it states:

(1) The Committee may make regulations

(a) governing the use by senators of funds, goods, services and premises made available to them for the carrying out of their parliamentary functions;

(b) prescribing the terms and conditions of the management of, and accounting for, by senators, of funds referred to in paragraph (a);

In my opinion, there is no doubt that CIBA has the power to adopt rules in relation to those two specific terms of reference and powers. When CIBA exercises that power, it is subjected to the Rules of the Senate. That’s what section 4 states:

In exercising its function and powers under this Act, the Committee is subject to the rules, . . .

The Rules of the Senate, at subsection 12-16, I have stated, provide the very specific circumstances under which CIBA can sit in camera or not, as any other committee. You came to the proper conclusion by coming back to the chamber, and then being referred to us, to adopt rules that would give you a widened scope of discretion in determining that you could sit in camera.

I would not be tempted to send the issue back to you. In my opinion, you did the proper thing in interpreting those sections to come to the chamber and the chamber to refer the issue to us.

Senator Marwah: I will comment on that. From hearing you and Senator Dalphond speak, while one could resort to the rules that govern CIBA it strikes me a bit as self-dealing. I would much rather have specific approval under the Rules of the Senate of what we could or could not do, given the broad mandate of CIBA, rather than be governed by another set of rules, to be honest. Keep in mind that transparency is paramount for us.

The Chair: Colleagues, if there are no other questions, we will wrap it up.

We thank Internal Economy for bringing this interesting subject to our attention. I believe this is a solution looking for a problem. I also think it is imperative that the rules allow Internal Economy to operate properly and that we never take away the right of senators and their privilege to express their opinion in the chamber of the whole and in committees.

We will get back to you in a timely fashion.

Senator Sinclair: They are getting back to us.

The Chair: They are going to provide us some information, senator. We will also get back to them because I will be asking the clerk and analysts to distribute information to senators over the next few weeks so that over the holidays we will be able to do some interesting reading on the rules that apply to Internal Economy.

[Translation]

Senator Dupuis: I would like to ask a question that is related to what you just said. Would it be possible to have the clerk appear before the committee?

The Chair: Absolutely. We will start by circulating the information to all the members. Then, at the beginning of the new year, we will invite witnesses to appear.

[English]

On that note, next week’s meeting is postponed into the new year because it is the final stretch and we have a lot of legislative stuff on the agenda.

Thank you, colleagues.

(The committee adjourned.)