Proceedings of the Committee on
Rules, Procedures and the Rights of Parliament
Issue 11 - Evidence
OTTAWA, Monday, April 7, 2003
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 1:17 p.m. to examine proposals to amend the Parliament of Canada Act (Ethics Commissioner) and other acts as a consequence and proposals to amend the Rules of the Senate and the Standing Orders of the House of Commons to implement the 1997 Milliken-Oliver report, tabled in the Senate on October 23, 2002.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: We have before us, by video conference, Lord Williams of Mostyn, QC, Lord Privy Seal and Leader of the House of Lords; and Brendan Keith, Principal Clerk of the Judicial Office and Registrar of Lords' Interests, House of Lords.
We will begin with a statement by Lord Williams.
Lord Williams of Mostyn, QC, Lord Privy Seal and Leader of the House of Lords: I will keep my statement short. The background is that after I became leader here about two years ago, we thought there were at least three things at which we should look. One was a comprehensive, transparent code of conduct; the second was adequate financial resources for the opposition parties; and the third was some sort of attack on the rather archaic, not to say Neanderthal, working practices that we actually enjoy. We have made good steps forward on all three, and I will concentrate for our present purposes, if I may, on the code of conduct.
We wanted something absolutely transparent, absolutely clear, so that there would be no opportunity for suspicion that members might be behaving improperly or dishonourably. I do not think they do, but I am a great believer, as I think Felix Frankfurt said, that sunshine is the best disinfectant. I think it is much better to be over-transparent and over-open rather than grudging in the information one hands over.
Therefore we have had our code up and running for about a year. It is generally running extremely well and we will review it in about six months' time, which is the promise I gave to the House at the time, namely, we would give it an opportunity to settle in for about a year and a half and then return to it.
I am more than happy to have Mr. Keith answer any questions or reply to any observations that you or your colleagues have.
Senator Grafstein: Lord Williams, some of us on this committee have carefully examined your code and your approach and it commends itself to us. Let me go back for a moment, if I might. In your experience now of six months' operation, what criticism has been directed toward your code, or what problems have there been?
Mr. Williams: We have not had any criticisms or problems. We wanted to try for a light touch but allied to absolute transparency, and there was a certain amount of reluctance, of hesitation, particularly when we invited our colleagues to register not only their own interests, but also those of family, relatives, spouses and friends. We thought that was critically important. I cannot say that I detected any difficulty at all. Most people have settled into it and I think it is working well.
Senator Grafstein: Perhaps for the edification of all members of the committee here who have not read your code, could you describe briefly the public disclosure rules and the rationale for that disclosure?
Mr. Williams: The public disclosure required is to register in a document that is publicly available, maintained by my colleague, Mr. Keith, all relevant interests. Some interests will be plainly relevant, for instance, if you are paid by a parliamentary consultancy or if you have remunerated employment. Others are a matter of finer judgment, for instance, if you are in remunerated employment that has no particular bearing on your parliamentary duties but might well have a bearing on a specific question, piece of legislation or order.
The test we put to ourselves was not whether this would affect our conduct as individuals, but whether a reasonable member of the public might think that our conduct had been affected. That was the rationale behind saying that you must not only register your own interests, but also those of your family, relatives, friends and so forth.
There are also some absolute obligations of registration; namely, if you are a member of a public body, for instance, on the court of a university council, as I am, or a pro-chancellor, as I am, you have to declare that. You also are obliged to declare land holdings other than your own home. The key to it was — and we carefully wrote this in the code, which I hope would commend itself for your consideration — that if you are in any doubt, you seek advice from the registrar. This is very important in my judgment, because even if the registrar's advice is mistaken, that is a total defence, as it were, to any suggestion that you had not registered appropriately.
In addition to the registration, which of course not everyone will know about, we require all members to declare their interest when they are asking a question or speaking about legislation. They do not have to declare it in full, obviously. A shorthand reference is sufficient because anyone can find it in the register, which, critically, is brought up to date every week. It is available on the Internet to all members of the public. The last full bound volume was produced almost a year ago. The work that Mr. Keith and his office do makes sure that it is up to date.
Those are the reasons and the general rationale.
Senator Grafstein: Perhaps others will get into the word ``relevant,'' but I notice that you do not detail the quantum of economic interest. You highlight interest, but you do not give quantum of interests.
Mr. Williams: That is so.
Senator Grafstein: What is the rationale?
Mr. Williams: Interestingly, I looked through the register today. There are some wealthy industrialists who simply register controlling shareholdings; some of them actually particularize the number of shares that they hold in a company. In fact, if you include your shareholding in our register, it is very easy to discover the actual quantum in the company's house registers or annual reports, depending on the information sought. It is not really so much the quantum that affected us; rather it was the fact of having an interest. Once declared, I believe, the interest is sanitized because it is open.
Mr. Brendan Keith, Principal Clerk of the Judicial Office and Registrar of Lords' Interests, House of Lords: I should like to add something to what Lord Williams has said. You will appreciate that a register of this sort has at least two sides: There is the political side and the administrative side. It is fair to say that on the political side, the register has been fairly uncontroversial and has not caused any problems for members of the House.
It is equally fair to say that the register has created more work for the registrar than we were expecting at the time we formulated the code of conduct. Lord Williams and I were responsible for drafting the code of conduct, and at that time I had no idea that I would end up being the registrar.
It is fair to say that keeping the register up to date and publishing the up-to-date electronic version every Monday in term time is quite a burden. I am not saying it is a huge burden of work that we cannot cope with, but it certainly is more than we were expecting. I can give you a short example.
We probably make a couple of dozen, perhaps more, changes or amendments each week to the register and I see, on average, half a dozen members of the House in my office each week, sometimes for 5 or 10 minutes, sometimes for much longer, to discuss their problems and advise them on what they need to register.
Senator Joyal: Lord Williams, I should like to ask you to explain a little more about transparency and clearness, if I can use that word. In other words, your objective was to make the interests of members of the House of Lords plainly available to the public. Could you describe essentially what you imply by ``transparency''? Do you mean that previously, the rules were not clear or appropriate and there was a history whereby some complaints from the public highlighted the need for an additional initiative? Can you explain further about the origin and the nature of the transparency you are talking about?
Mr. Williams: My own approach is this: If you are in public life, you should be alert to possible elephant traps. It is better for a legislature not to wait until criticism falls upon it because of apparent secrecy. One of the curses of British society is obsessive secrecy for no useful purpose.
It seemed to us that it would be much better to have a voluntary register, for us to take the initiative. Members of the public have a high regard for the House of Lords. We are not powerful legislatively, but we are extremely powerful in terms of influence. I thought it would be much better, and still believe, if any member of the public who thinks so- and-so is only feathering his or her nest can be reassured that their suspicions are unfounded, or maybe partially justified, by looking at the register and noticing whether that individual declares the interest orally in a debate on a piece of legislation.
I think we have a duty to be proactive in opening all relevant matters to the public who, after all, we serve. We are enormously privileged here to do so, as is anyone who is a member of any legislature.
I do not think there was an enormous demand from the public to know about the interests of the Lords. There was significant public disquiet some years ago about allegations of corrupt practices in the Commons. I simply thought, let us be open and transparent. If you are in public life — and I do not mean to sound pompous — you should not have anything that you wish to hide. If you disclose everything, it implies to me that you can sleep well at night with a clear conscience.
Senator Joyal: My second question is in relation to the structure you decided to implement. Why did you choose to have your own code and registrar in the Lords and not share the same registrar or the same system with the Commons? Why did you decide in the Lords to remain totally autonomous and separate from the Commons?
Mr. Williams: Partly because our history is one of being very different. For instance, no member of the House of Lords is remunerated, apart from ministers. They are simply given expenses. The Commons has a much more direct opportunity to lobby ministers, and certainly to affect legislation. We are influential, but not powerful in that sense. It seemed to us that we needed a light-touch regime that would be acceptable to members here but that would do the work that we wished it to do. Certainly on the experience of the past year, I think it has been successful. The Commons needed a different structure. They are much more partisan and more aggressive in party terms than we are. We tend to think that people are likely to be trustworthy, and we have given them the opportunity to demonstrate that.
When we have the 18-month review, which will be in the autumn of this year, if we have used too light a touch, I am sure we will be told that. My guess is that we will not and that by and large — and I do not want to be unduly complacent — people are satisfied with the way it works.
Mr. Keith: Lord Williams has said that there are significant differences in the history of the two Houses here. However, of course, there are also significant differences in the way they work now.
Essentially, the House of Lords is a largely appointed, part-time body. It is not a house of professional politicians and they do not receive a salary.
This makes the House of Lords sufficiently different from the House of Commons to put questions into one's mind as to whether a code of conduct would be applicable to both Houses as constituted at present. Of course, if there were to be changes in the composition of the House of Lords, or if the House of Lords were to become a different sort of legislative body, there might well be a stronger case for a common code of conduct.
It is also fair to say — and I would like to emphasize the point Lord Williams made — that our code of conduct was not made in response to any perceptions or allegations of wrongdoing by members. There have been no suggestions at all in the relevant years that members of the House of Lords have not been behaving properly. The whole point of the code of conduct is partly, as Lord Williams said, to anticipate any such suggestions, partly to be transparent, and just partly to — am I allowed to use the word? — modernize the system. It is partly to bring the House up to date, because every other public body, be they legal, medical or others, have codes of conduct.
Senator Joyal: Can you explain to us why you decided to go the rules route, that is, to adopt the code of conduct and the procedure through the rules of the Lords, and not through the statutory enactment of legislation?
Mr. Williams: I think partly because, conceptually, of the sovereignty of Parliament. We did want, as I said earlier, a light touch. We wanted to make the remedy appropriate to what might have been the ill. We thought — if we thought of it at all — that a statute would be too much of a sledgehammer to crack a nut, partly because of the reasons Mr. Keith has given. If it does not work, we will have to reconsider. The great advantage we have is that Mr. Keith, as the registrar, and his office administer this; if there are complaints, they will be considered, if there is any virtue in them, by a subcommittee, and the House does pride itself on being self-regulatory. As you know, we do not actually have a speaker. We do regulate ourselves, by and large successfully.
I repeat, if anything seems to be insufficiently rigorous, then we shall return to this in the autumn of this year. We never really contemplated the statutory route.
Mr. Keith: There is another reason, I think, why we did not contemplate the statutory route. That is to say, any code of conduct has to take account of the constitutional position. As you know, we have a doctrine at Westminster of parliamentary privilege, a doctrine known as ``exclusive cognizance,'' which means essentially that the House is responsible for its own internal affairs, free from interference by the executive and the judiciary. If you were to take the statutory route, there is the possibility, shall we say, that you might find yourselves being subjected to judicial review in a way that was not anticipated.
Parliamentary privilege has never been a big issue in the House of Lords. However, it has been a significant issue over the years in the House of Commons. I cannot honestly speak for them, but I am sure they do have some fears about the possibility of judicial review, were statute law to be involved in the appointment, for example, of the Parliamentary Commissioner for Standards.
Senator Stratton: Gentlemen, could you tell us how a complaint is brought forward? When it is, what is the process for the investigation of that complaint? If possible, and as briefly as you can, can you give us the reasons why the particular process was selected as you go through each step?
Mr. Williams: We have actually written that into paragraph 19 of the code, which deals with enforcement.
It is suggested that, if there is an allegation or a complaint, it should be raised with the member involved initially, although there are circumstances where you could raise it with the party leader or the chief whip.
The allegation is then taken forward privately to the subcommittee on Lord's interests. The subcommittee can decide either to investigate it further or to dismiss it. We wrote in specifically that members should have the same protections and safeguards as those applied in the courts and professional disciplinary bodies. If the subcommittee finds the allegation proved, there is a right of appeal to the full committee of privileges.
I say that is in the code. We have not actually had a complaint that was proceeded with, so we are very much in uncharted waters.
The safeguard, as I mentioned earlier, was that if you can say, ``I asked the registrar for his advice and he said this was fine,'' that is a complete defence. Personally, I think that complaints are likely to be relatively few.
Mr. Keith: May I add, please, that we have not yet had a complaint. When we were drafting the code of conduct, we were very conscious of making the procedures fair to any member of the House who might be accused of non- compliance with the code.
Some years ago, I was Clerk to the Joint Committee on Parliamentary Privilege at Westminster, which sat under Lord Nicholls. That report set out a new, modern doctrine of parliamentary privilege and how it should be applied in modern conditions. Lord Nicholls emphasized the importance of fair procedures for the accused person, so this code of conduct is very scrupulous in ensuring that the accused member has every opportunity to answer the allegations in a way that, while not as rigorous as a court, is similar.
Mr. Williams: We also were particularly conscious of the fact that in the House of Commons there is a feeling that complaints are raised for improper party political purposes. There is always that danger, and that is why we said originally the complaints should be made in private. There is the capability of doing enormous damage to someone with a malicious or mischievous complaint.
Senator Stratton: I would imagine that public pressure, meaning media pressure, would bring about a complaint; I believe it would take that kind of pressure for a complaint to be filed. It would then take the will of one or two members to actually file that complaint.
That, in itself, is something of which one must be particularly certain before proceeding.
The worry we have is if that likely were the process, there would be a high degree of reluctance on the part of a senator to bring a complaint.
Mr. Williams: I feel very strongly that the complaint should not be limited to members of the House of Lords. Mine is a minority voice, but it seems to me that if a member of the public or a Member of Parliament in the House of Commons has a complaint, it should not be excluded because of the reluctance of one colleague to make a complaint against another.
I am in the minority on that, but I hope to return to this in the autumn because you do need protection for individuals. If this is to be a public document for the benefit of the public, then the public ought to have an opportunity to raise a complaint. That is my opinion, and I am a minority of one at the moment.
Senator Smith: Gentlemen, I want to return briefly to the point that emerged at the end of Senator Joyal's questions regarding the mechanism for implementing what I think there is a consensus on in terms of a code, and that is going the route of resolution as opposed to statute.
We use the words ``privilege'' and ``justiciable'' all the time. The phrase ``exclusive cognizance `` is not yet in our lexicon.
Some Hon Senators: Oh! Oh!
Senator Grafstein: You have just not read deeply or long enough about the history of the Senate.
Senator Smith: I defer to the wisdom of my elder.
In any event, there have been a few British cases in which there were excursions into the sphere of privilege. Perhaps you can enlarge a little on whether the decision to go that route was unanimous. Tell us a little more about how you came to embrace this route as opposed to the route of statute.
Mr. Williams: This was, in many ways, a significant change for the House of Lords. As with all reverent bodies, most change is viewed with suspicion. I set up a leaders' working group of about half a dozen people, which I chaired, and we produced a minority report. When it came to the chamber itself, the recommendations of my committee were accepted by only about three votes, so there was a good deal of caution at that time.
There are two things here. First, we thought that this was an appropriate series of remedies. Second, if there had been any suggestion that the courts would be interfering, or that it were to be justiciable, I think probably the motion would have failed.
We want to have an apt series of remedies for what we are able to define as possible problems. Certainly at the moment the corruption laws in this country will be clarified so that members of Parliament will be liable to criminal prosecution for corruption. That is, of course, off the spectrum of what we are discussing.
At the moment I think that this is a workable, manageable scheme, and we have not needed to go any further. However, it is always necessary to go cautiously to get colleagues who are used to a different regime or no regime at all to embrace progress.
Mr. Keith: May I say that I am not surprised that you do not have the words ``exclusive cognizance'' on your lips every day of the week. Not many people, even at Westminster, go about using that expression. A more modern way of saying it would be ``self-regulation.'' You would be much more familiar with the concept of self-regulation. The basic idea is that Parliament is special, and that in order to do their job, members of Parliament need special privileges. Now, we cannot think of a better word than ``privilege,'' even though it has connotations that tend to upset some people because they think privilege is unfair and something that people ought not to have.
Parliamentary privilege is designed simply to enable members of Parliament to do their job. Self-regulation is something with which we are very familiar in the House of Lords because, as Lord Williams said, we do not have a speaker who gives rulings. The House itself decides most of its procedures and if the House wants to change them, it can.
Self-regulation is very important in many ways. For example, unless expressly stated, statute law does not apply to Parliament. For example, licensing laws do not apply within the Palace of Westminster unless the House chooses to apply them to itself. Self-regulation is the way that the House has chosen to deal with complaints against the behaviour of members.
Now, if self-regulation is at one end of the rainbow and at the other end is legislation, or regulation by outside forces, between those two extremes you can find various positions that will suit your legislature, depending on your local circumstances. Our resting place for the moment is closer to self-regulation than, say, the House of Commons at Westminster, but the House of Commons in turn is much closer to self-regulation than the devolved assemblies that we have set up in the United Kingdom in the past four or five years.
You must decide for yourselves, taking account of your circumstances, the degree to which you are willing to sacrifice self-regulation in order to achieve the end of convincing the public that members of your house are beyond reproach in their behaviour.
Mr. Williams: Would you excuse me, senators? I have to go and vote, but Mr. Keith will remain as a sacrificial lamb.
Senator Smith: I was going to ask this question of His Lordship, but perhaps you know the answer, Mr. Keith.
I believe you said that the motion passed by three votes. Did the debate deal with whether it would be by resolution, statute or some other means?
Mr. Keith: The short answer is no. I will take you back into some recent history. In the mid 1990s, there were serious allegations against members of the House of Commons at Westminster in an affair called ``cash for questions.''
The details do not matter, but one of the results of this business was that the Prime Minister of the day set up a body called the Committee on Standards in Public Life.
The first task of the Committee on Standards in Public Life was to examine the conduct of the members of the House of Commons and recommend ways to achieve greater public confidence in that conduct.
At that time, the Committee on Standards in Public Life was intending to look at the House of Lords also, as part of Parliament. However, they did not, because the House was engaging in its own review under Lord Griffiths at the time. The Griffiths committee produced a regime that lasted from 1995 to 2002, when it was replaced by the present regime and code of conduct.
As I said earlier, we did not come up with our code of conduct in response to any allegations of wrongdoing. The debate in the group chaired by Lord Williams was not so much over whether there should be a code of conduct — everybody at that time accepted that because the Committee on Standards in Public Life had recommended that we should have a code of conduct. Indeed, the terms of reference of Lord Williams's group was to find ways to implement the recommendations of the Committee on Standards in Public Life.
Thus, the debate was not on whether there should be a code of conduct. The controversy and the vote in the House were essentially on what kind of code. How much detail did you need to have? Which particular interests should be spelt out in the code as needing to be regulated and registered? The split was between those on Lord Williams's side of the argument, who wanted a more demanding code, and others wanted a less comprehensive and less demanding code. The majority of three was in favour of a more demanding code, which is the one that we have at the moment, as opposed to one that would have been, in some ways, less of a burden on members of the House.
Senator Smith: Would it be fair to say that there was never any serious thought given to pursuing the statute route?
Mr. Keith: Yes. There was no serious thought given to pursuing the statute route for the reasons that I have indicated. Our House has a long tradition of self-regulation. Therefore, the statutory route would not have been the first thing to occur to us. Also, I was very conscious, having been Clerk to the Joint Committee on Parliamentary Privilege, of the constitutional position and the need to protect members of the House against the possibility of encroachment by the courts.
Senator Smith: Thank you.
Senator Fraser: My question is for you, Mr. Keith. I was interested in the description of your role, because it is significantly more than that of a simple recorder of fact. You give advice frequently, and your advice, if followed, provides an absolute defence.
Mr. Keith: Yes.
Senator Fraser: You play a very important role in this system. It is a rule of thumb that one of the ways that one can build public confidence in a regulatory regime of this nature is to ensure the independence of the people who are administering it. However, you are basically, as I understand it, a creature of the House of Lords. You are an employee of the House of Lords.
Mr. Keith: Yes.
Senator Fraser: Does this create an actual or perceived conflict? I am not impugning you personally. I am talking about structure. Is it a potential difficulty?
When a question is difficult, and you are giving advice to someone who may have something to say about your future employment, how do you cope with that?
Mr. Keith: The Committee on Standards in Public Life, when looking at the House of Lords and making its recommendations for the code of conduct, decided that it was not necessary for the House of Lords to appoint a parliamentary commissioner for standards, which is the model of the House of Commons.
We did not really look at the question of appointing a parliamentary commissioner in the House of Lords, because the Neill committee — the Committee on Standards in Public Life — had decided that we did not need a commissioner.
My position is somewhere between the position in the House of Commons at Westminster of the Registrar of Members' Interests and the Parliamentary Commissioner for Standards. I do give advice, and the code of conduct was expressly drafted by Lord Williams to give significant power to the Registrar of Lords' Interests because we wanted to encourage members to be open.
The group of which Lord Williams was chairman took the view that one way to encourage members to be open would be to say that, if they took the advice of the registrar, they had a complete defence against allegations of underhandedness, lack of openness or wrongdoing.
Do not forget that at the time that we were doing this, I was clerk of the journals. I had nothing to do with this registrar business. Another individual was registrar. The only reason I am registrar is because he retired last July, and I found myself appointed to succeed him. Therefore, at the time that we were creating this position, I had no idea that I would fill it.
We wanted to give the registrar considerable power so that members would be open and the purpose of the code of conduct would be fulfilled. We might have given him too much of a burden, in one sense.
Lord Nolan was the previous chairman of the subcommittee on Lords' interests. His name may be familiar to you because he was the first chairman of the Committee on Standards in Public Life. He was in at the beginning of the debate on standards in the U.K. Lord Nolan thought that the registrar had, perhaps, too heavy a burden imposed by the code of conduct.
That could be debated. As we are having a review of the code in six months' time, that will be one of the many questions to be examined.
However, the placing of responsibility on the position of the registrar was deliberate for the basic purpose of persuading members that it was in their interests to comply with the code of conduct.
Senator Fraser: Could you tell us why the Neill committee did not think an independent commissioner was the appropriate way to go for the House of Lords?
Mr. Keith: Any code of conduct must be proportionate to the degree of mischief that it is aiming to regulate. The degree of mischief in the House of Lords was not great enough — indeed, there was no perceived mischief at all — to merit the appointment of an official such as a parliamentary commissioner for standards.
Senator Fairbairn: My question is somewhat ``offside,'' but nonetheless perhaps relevant to the overall subject with which we are dealing today.
Do your procedures under the registration of interests affect the lobby journalists, who would be similar to the parliamentary press gallery here in Canada? Do they have any obligations under the procedures that you have in place?
Mr. Keith: No. The House of Commons has more than one register of interests. There is a register of interests for members, research assistants and other people; but the House of Lords only has one register, and that is for members of the House.
Senator Fairbairn: Is there no obligation on those who are not members of the House?
Mr. Keith: No.
Senator Fairbairn: Then it is strictly members of the House.
Mr. Keith: Yes, and it is fair to say that, in so far as we can ensure it, it is strictly in pursuit of their parliamentary duties. The code of conduct is not interested in people's private affairs or private life. Sometimes, knowing where to draw the boundary causes a difficulty for me; but in general, the code of conduct is all about members' interests in pursuance of their parliamentary duties in public life.
The Chairman: I should have pointed this out before. If anyone wishes to speak in French or ask questions in French, the translation is going directly to London, too.
Senator Beaudoin: I am tempted.
Senator Grafstein: Try and see if it works.
[Translation]
Senator Beaudoin: It is a great pleasure to be able to speak with you.
[English]
My question is about lex parliamenti and the control of constitutionality of laws. We have, in our country, a strong control of constitutionality of laws because we are a federation. However, from time to time, the courts distinguish between what they call the lex in the system that we have inherited from you — the parliamentary system — and the statutory system that exists in the United Kingdom and in Canada.
[Translation]
Do you make a distinction between lex parliamenti, which dates way back in history, and the control of constitutionality of laws? If a code of conduct is included in a law, you have an ipso facto control of constitutionality and interpretation by courts of justice.
If, on the other hand, you include a code of conduct in your strictly parliamentary rules or rights, then I believe the courts of justice will not interpret the meaning of the code of conduct.
To me, this is fundamental. If we follow the procedure of law, judiciary control is absolute, because section 52 says ``law,'' and ``law'' is any statute, and even any principle of law if it is part of lex parliamenti. Here, courts have distinguished between the two, lex parliamenti and ``statute.'' Do you make the same distinction as the House of Lords?
[English]
Mr. Williams: By and large, I must say that I agree with your analysis. As you said, ours is not a federal system. Therefore, the code that we have introduced is designed not to be justiciable by the courts.
The two minor tangential points are, since we have had a devolved Parliament in Scotland and a devolved assembly in Northern Ireland and Wales, where there are differences about legislative competence, they are justiciable. There is that slight echo of your experience, but it is very limited. Second, with the Human Rights Act, we introduced a new legal remedy for the judiciary, which is to make a declaration of incompatibility. It is quite a subtle weaving of the different strands that you identified.
I forgot to remind you of what Oscar Wilde said about temptation, which is that the best thing to do with temptation is always to succumb.
[Translation]
Senator Beaudoin: We are different. It is also true that you have laws in England, at Westminster, which have delegated powers to Scotland, Wales and Northern Ireland. In this sense, you have a control of constitutionality of laws. My question goes a little further. If we adopt laws for the conduct of senators, members, and so on, the interpretation will always be judiciary. It will always have to be interpreted by the courts. We ask ourselves the question: we do not know if the Charter of Rights regulates lex parliamenti; it is a controversy here. However, we are certain that laws and statutes are subject to interpretation by courts. This is why my reaction to a code of conduct is to include it in our strictly parliamentary regulations and not in our Canadian laws.
[English]
Mr. Williams: I agree with that approach. It is fair to say, in neutral terms, that the Supreme Court of Canada has taken quite an activist approach to your Charter. I think historically, and almost psychologically, the courts here would prefer not to become engaged in these matters, which are essentially parliamentary. If we can make things work to the reasonable satisfaction of those who participate, and the public whom we hope to serve, I do not think there is any particular benefit in making these questions justiciable. I can say this because my old friend, Justice Binnie, is on the Supreme Court. I am a lawyer myself, but lawyers are not famed for being speedy, are they?
Senator Beaudoin: Yes, but you said that the courts are not quite ready to intervene in that field anyway, even if it is a statute. This may be; but in Canada, it is the reverse.
Senator Cools: Yes, they are ready.
Senator Beaudoin: They are ready. By the way, I agree with the Supreme Court. I have great admiration for that court. They would intervene, there is no doubt. Since they have made a distinction between lex parliamenti and ordinary laws, I would prefer that we follow the system of lex parliamenti. That is a Latin phrase, of course. Perhaps you do not have to tackle it in the United Kingdom; but I think, in Canada, we must solve that question right from the beginning.
Mr. Williams: Yes. We will go for the more moderate, underplayed approach. I think it will work to the reasonable satisfaction of everyone who has an interest.
Mr. Keith: May I add that to some extent in the United Kingdom we have solved that dilemma you mentioned, because we have on the statute book here an act that dates from 1688. It may be familiar to some of you. It is article 9 of the Bill of Rights.
Article 9 of the Bill of Rights is part of the law and custom that underpins Parliament. It has been partly at least because of article 9 that Parliament is sovereign — a sovereign body, a sovereign legislature. Because of that, Parliament has these special privileges that I mentioned earlier.
A sovereign body will not be minded, initially anyway, to encroach on its own independence, its own exclusive jurisdiction over its internal affairs, by handing over to the courts the question of whether the code of conduct is fair or just or onerous or whatever. As Lord Williams said, we have gone down that road partly because self-regulation is second nature to us and partly because the courts have not, with one small exception, shown much interest in encroaching on Parliament's own jurisdiction. The system works in the U.K. because on the whole, the three branches, the executive, the legislature and judiciary, try to keep out of each other's way.
Senator Beaudoin: I must say that I like your Bill of Rights of 1688.
Senator Rompkey: Lord Williams, I wanted to put before you the proposal that we have in front of us and ask you to comment on it. The proposal is that there be a commissioner, established by statute. We have had some discussions, and I think there is a consensus around this table that there should be more than one commissioner, and that there certainly should be a commissioner for the Senate.
I do not think that any of us ever thought the code would be established by statute. It was always considered that that would be a creature of the Senate.
I wanted you to be clear on the proposal that we have in front of us and ask you to comment on it. I think I know what your answer will be, in view of what you have said previously, but my job is to ask the questions.
Mr. Williams: To be perfectly frank, we did not give any consideration to having a commissioner. Plainly, however, if a commissioner is set up as a creature of statute, or commissioners, then the commissioner's decisions will be susceptible to judicial review, even if only on the basis of their rationality.
The time might come, as Mr. Keith said, if the House of Lords here is reformed — the necessary implication there being not in your lifetime or mine, I am afraid — if it were to be wholly elected and there were serious criticism or complaint, we might have to consider a commissioner. The system has been running for a year, and there has been no complaint.
The danger of having a commissioner is that one has disputes about the commissioner's decisions, which tends to obfuscate and obliterate what the chamber of Parliament wants, namely, a resolution of the dispute or complaint in fairness, as Mr. Keith said earlier, to the member and to the complainant. If you have the opportunity for judicial review and appeal, then the whole nature of the complaint system, which is meant to be fair and reasonably expeditious, changes utterly. It may change for the better, and it may have benefits, but I am not so sure.
I am sorry again, senator. The bell is calling me. That is not because your question was utterly difficult, although it was.
Senator Hubley: My question is on the work undertaken by the registrar in recording all relevant interests of spouses, family members and friends. Could you indicate to us which area is creating the biggest workload for the registrar at this time? Also, have you had to acquire additional staff? If so, did you experience any criticism from either the members or the public of any increase in cost?
Mr. Keith: There is no significant increase in cost because being registrar is just an extra task on top of the job that I have at the moment, judicial clerk.
Perhaps it might help if I explained that the post of registrar only dates from 1995. In 1995, Lord Griffiths, whom I mentioned earlier, recommended that there should be a sort of register of members' interests. It was an optional register. It was not comprehensive, and it certainly did not adapt to a code of conduct as we would envisage it today. In 1995 the job of registrar was given to the person who happened to be judicial clerk at the time.
I do not want to give you a lecture on the U.K. Constitution, but you probably do realize that the House of Lords has a judicial function as the supreme court of the United Kingdom. This function is exercised, obviously, by professional judges, and not by parliamentarians or the other members of the House. Nevertheless, the House has that judicial function, and I am the judicial clerk because I am the clerk in the House of Lords who happens to be doing the judicial work at the moment. However, the Law Lords, or the judges in the House of Lords, are slightly above the routine work of the House. They do take part and are entitled to take part in it, but they do so cautiously. That means that the judicial clerk has a slightly different relationship to the House than, say, the clerk of the journals or the clerk of legislation.
I suspect that in 1995 it was thought a good idea to give the job of registrar to the judicial clerk because he shared this aura of the Law Lords and the judges, helping to distance him, to some extent, from the politicians. To that extent, he might be less open to influence or less worried about his career prospects than someone who was very much, say, a table officer or someone who was meeting the political members of the House on a day-to-day basis.
We have not taken on any more staff. There is me, and there is my secretary. We do that work in addition to our judicial functions. The balance of work at the moment is probably 60 per cent to 70 per cent judicial work, and perhaps 30 per cent registrar work. It was not envisaged to be such a large proportion when it was set up. People thought the registration work might be 20 per cent of the workload. It has turned out to be much more.
You asked what kinds of questions take up my time. It is actually across the board. Members are very keen to be open and not break the rules. They come to me as much as anything for reassurance that what they had done is proper, in order and will not open them to criticism. Of course, once they accept my advice, they have a complete alibi against any allegations of non-compliance.
The registration of wives' interests, family members' interests and friends' interests does not take up a lot of my time. Funnily enough, it was one of the most controversial aspects of the debate and the vote that we talked about earlier. However, in practice, it is not a big issue.
The difficulties are more in the relationship between conduct in Parliament and the members' financial interests. Let me give you one example. A couple of weeks ago we had a debate on the crisis in the pensions industry. A member of the House who is the chairman of a pensions company walked in wanting to know whether he could initiate a debate about the industry in which his company was a leading member.
In both Houses at Westminster we have a rule that distinguishes between initiating a proceeding and taking part in a proceeding. You are allowed to do some things as a participant but not as an initiator. For example, you cannot move a motion, but you could speak to the motion moved by someone else. That is the practical impact of the code on a member's behaviour in the House and the kind of question that takes a lot of my time.
The Chairman: Mr. Keith, I wish to follow through on that.
I would like you to clarify the reasoning behind friends, relatives and family's interests also being listed on this register. Is it actually used very much? Does this go into the public register? Does this go onto your Web site?
Concerning your advice to the lords, in order for it to be a complete exoneration for something that they may or may not take part in, does it have to be written?
Mr. Keith: No, the advice does not have to be written, but to develop the body of case law and to be consistent, just in case I forget what I said four or five weeks ago, as soon as I have had an interview with a member I write the whole thing down so that my files contain a record of every conversation I have had with everyone about anything to do with the code of conduct.
Perhaps I could make a slight detour here to say this: A couple of weeks ago things were getting to the stage that I could not safely walk down the corridor in the House without someone coming up to me and wanting to have a brief word, a quick conversation about some aspect of his interests or the code of conduct. I was finding that quite burdensome because I did not have a notepad to record what we had said to each other. However, I do have a record of every conversation I have had with a member of the House in order to build up case law and consistency.
The category ``wife, spouse, friend'' was not invented by us. When I say ``by us,'' that is shorthand for Lord Williams and me. That phrase was already in the previous code of conduct, and all we did was borrow from that. I have no idea what the thinking was behind it in 1995, except perhaps to say that it would be significant, particularly in the old House of Lords, the House of Lords that existed up to 1999, where the majority of members were the great hereditary landowners and it would not have been impossible for a member's wife to owned half of Scotland or a substantial portion of Wales or Yorkshire or something.
The Chairman: Mr. Keith, before we go to a second round, I should, perhaps, point out to you that there are eight women sitting around this table in Canada entirely due to a decision of the House of Lords, the Law Lords in England. We were declared to be persons so that we would be eligible to sit in the Senate of Canada. We are well aware of that.
Senator Grafstein: Article 9 of 1688, to which Lord Williams referred, is part of the Constitution of Canada, under section 18 of the Constitution Act. Just as a reminder, section 18 in effect says that we in the Senate have the same privileges as the House of Commons in 1867. Therefore, by direct reference, article 9 applies to Canada.
When you talk about exclusive cognizance, I should like to point out that that is a principle embedded in our written Constitution, as it is in your unwritten Constitution.
Having said that, I should like to turn to a subtle distinction that has been made between relevant interests that must be registered and those, such as spouses' financial interests and landholdings, which may be registered. The key word appears to be ``relevant.''
Could you give us some assistance as to what is deemed to be relevant? There is a ``must'' and a ``may'' between articles 12 and 13. Again, it is clear that you have been subtle and sophisticated in differentiating between various interests. What are the tests for ``may'' and ``must'' under the definition of ``relevant''? In other words, financial interests are always relevant and a mandatory requirement for registration; under paragraph 13 it says, ``the list is not exhaustive,'' and then you set out interests that ``may'' be registered.
Could you give us some examples, for instance, of landholdings that may not be relevant to be registered?
Mr. Williams: I have a small landholding of scrubby land in West Wales, which I had forgotten about until Mr. Keith sent me the questionnaire. It was 10 acres of scrubby land that will never really be determinative. I registered it because it might be relevant.
My wife is a barrister. She is legal director of a diamond-trading corporation. It is very unlikely that it would be relevant in the sense that I would be affected by it, but I thought it wiser to put it in.
Part of it is proportionality. In other words, if you have one per cent of a small family company with an annual turnover of Can. $100,000, it is rather different from having one per cent of the issued share capital of BP, for instance. It is proportionality, essentially. It might well be relevant, and what we have urged people to do, and what they are doing, is if it tips over into more likely to be relevant than not they should register because that is easier.
However, we did not want to make it too draconian. We did not want to hound people in an obsessively puritanical way. We left that to our brothers and sisters in New England.
Senator Grafstein: There was a huge controversy in Canada recently when the advice of an officer to a cabinet minister was publicly disclosed by whatever means. We do not really know how it was disclosed, but it has caused a huge debate in the country.
I take it that when members seek the advice of Mr. Keith, that that is based on a solicitor and client relationship, and although he keeps a record, it is not disclosed unless it is necessary for a defence or an alibi. Am I correct in that assumption?
Mr. Williams: It is generally correct in principle, I think. If I told Mr. Keith about X and Y, and his office said that I did not have to disclose that, I actually might disclose it of my own volition, even though no complaints had been made. I might prefer to do that. In a debate, I might like to say, ``I have this interest. The registrar has advised me that I do not have to mention it, nevertheless, I want to mention it.'' That is the way I understand it to be working, but Mr. Keith sees it from the inside.
Mr. Keith: There is a difficulty with the way the register has been working up to now and it is certainly something we will look at when we come to review it. It is this: Members are keen to be open, to be seen to be open and to be seen to be complying with the code of conduct. It does happen that sometimes I say to them, ``There is no need to register this interest,'' but they would feel happier if they did. Sometimes I let them do it.
The subcommittee has said that it is concerned about registration ``creep.'' In other words, the register will be inflated with lots of interests that, on a strict interpretation of the code, do not need to be in there. The argument is that if the register contains that kind of material, eventually you will not be able to see the wood for the trees. Therefore, to some extent, the basic purpose of the register will be thwarted.
That is a problem at the moment because members, as I say, are keen to put things down; and I must say that I do not have a rule of thumb. However, if in doubt, sometimes it is better to say, ``Okay, register it.'' There is a danger in taking that approach, however.
I know the danger is there because the Committee on Standards in Public Life produced, only a couple of months ago, another report about the House of Commons. One of the criticisms in that report about the way the Commons is doing things is just that, that there is the impression that the commissioner is tending to play it safe and is advising members to put into the register more things than, strictly speaking, they need to. A member of the government made that criticism on the record in the committee's report published a few months ago.
Senator Grafstein: You did not quite answer my question, and perhaps I did not put it clearly.
When members seek your advice, they can choose to disclose that, as the client can disclose solicitor-client privilege. However, is that information given to you on a solicitor-client basis, or can you be compelled to disclose it if there is a dispute?
Mr. Keith: No. I do not disclose the information given to me as registrar to anyone. It is locked away in my files, as I say, to help establish the case law, and for the sake of consistency. I have never been asked, and I would never, even if I were to be asked, disclose any information on which a member of the House had come to seek my advice.
Senator Grafstein: I take it the member's privacy is protected in the form of a solicitor-client relationship, subject to the client waiving that privilege?
Mr. Keith: Yes.
The Chairman: Except for what is in the public register and on the Internet.
Mr. Keith: What is on the register and on the Internet is what the member wishes to disclose, and which I think he ought to disclose in order to comply with the code of conduct.
Senator Stratton: I would like to return to the issue of the commissioner, the process that you use in the House of Lords and compare it to ours. We are looking at a statutory/non-statutory commissioner, followed by an investigation to be brought by the commissioner to a committee of the Senate, that being the Rules Committee, where a decision would be made. I am concerned about the potential for political interference. If you have a statutory commissioner, that is, one appointed by the government of the day, it is fine when you have a majority in the Senate of the same political stripe.
Where you would run into a problem is if there were a change in government and the commissioner were appointed by a Prime Minister of a different political stripe. That would create the potential for political conflict at a high level. The potential for mischief is there.
There is another problem that needs to be discussed. Currently, there are 10 government members and 5 opposition members on our Rules Committee, and again, the potential for mischief is there. I am not suggesting for a moment that it is likely to occur, but the potential is there.
Would you care to comment on either of those points? I would much appreciate it if you would.
Mr. Williams: I think those are real problems, senator. I think you could look at it in one of two ways — and this is only my personal response. The first would be to make these appointments not prime ministerial but through a public appointments committee or commission in the same way that one may have, perhaps, a judicial appointments commission. Therefore, there is no prime ministerial input at all. I am saying that without consulting your Prime Minister.
The second practical proposal that I put forward appeals to me in the context of the Commons, where we have an overwhelming Labour government majority at the moment. One way of doing it, if you have a 10/5 split, or whatever, is to ensure that the chair of the committee is always from the minority group. Times change and the pendulum swings. If the minority group behaves oppressively, then one day they may be the majority group.
That is a practical way of dealing with it. It does not commend itself to an overly powerful executive — I am not specifying any country that I have in mind — but it is one way of managing it.
The Chairman: Another way would be to have an internal all-party recommendation in each House.
Mr. Williams: Yes. However, taking into account the senator's earlier point concerning the large government majority, I am not sure that an all-party approach would therefore be successful.
I think we ought to be able to achieve these quite subtle solutions, bearing in mind that the real purpose of this is to serve the public and not short-term party advantage. I do not think it benefits any political party if the public believes that they have fiddled with the rules.
The Chairman: You are right.
Senator Joyal: I have two questions. One is on a follow-up to the answers given by Mr. Keith concerning the protection of the information about every Lord in your files. I understand that in the rules you have adopted, there is no such protection. In other words, there is no section or clause in the rules that clearly establishes that the information is out of reach, for instance, of a privacy commissioner, or in the context of any legal proceedings or other initiative that might be taken. Therefore, if the registrar is called to appear as a witness before the subcommittee, or at the committee, where will he find the protection to refuse to answer questions about the information that he has in relation to a member of the Lords?
Mr. Williams: There is no such protection to be found in the rules. I am not sure what Mr. Keith's position would be if he were required to give the evidence to the committee or the subcommittee.
I think what his answer was directed to earlier — and I am sure he will correct me if I am wrong — was any form of inquiry from outside Parliament. He will have the position in mind.
Mr. Keith: Lord Williams is quite right. There is no formal protection. However, the chairman of the subcommittee is a recently retired Law Lord. Therefore, I have the protection, if you like, of one of the country's top judges. It is extremely unlikely that he would make me disclose information that I have promised to keep confidential.
At the same time, I think there is a false antithesis between me, as registrar, and the subcommittee, because essentially, the job of the subcommittee is to advise me on cases of difficulty or where we are about to create precedents. Therefore, I have an identity of interest, to some extent, with the subcommittee and its chairman. We are on the same side.
Until you made the point, I did not see any potential for conflict between the registrar and members of the subcommittee.
Mr. Williams: Senator, was your question based not on the early stage about which Mr. Keith is speaking, but on when a complaint has actually been launched?
Senator Joyal: Yes, exactly.
Mr. Williams: Following your theme, I could understand that if evidence given by a ``defendant'' is significantly different factually from the information he had given to Mr. Keith as the registrar, that would be a more intricate question, and I thought that that was what your question was about.
Senator Joyal: Exactly, and it is in relation to my second question, on section 19(d) of your rules, which states clearly — and you have alluded to it — that in the investigation and adjudication of complaints against them, members of the House have the right to safeguards as rigorous as those applied in the courts and professional disciplinary bodies.
It seems to me that you have included in your rules the principles of fundamental justice to ensure that the Lords do not project an image of being too cosy or of using the weight of the majority against a Lord, especially when there is mounting public pressure on an individual — and we know the media can be very effective in doing that.
You have five members on that subcommittee and mentioned the name of the retired Lord Justice. Could you give us the names or titles of the other members? Why did you put the safeguards of fundamental justice specifically in the rules?
Mr. Williams: We did that because we did not want to run the risk of partisan allegations being made simply to destroy a reputation on the basis that there is no smoke without fire. I had the experience of being chairman of the bar professional conduct committee for some years. We want the ordinary proprieties to be observed so that you would have the particulars of the complaint against you. If you wanted an adjournment, in appropriate circumstances, you would get it. If you wanted to be represented by counsel, you would get it. That is the sort of thing we wanted.
I do not know the identities of the members of the subcommittee.
Mr. Keith: I do, but I am not sure the names would mean anything to you. They are all very senior members, one from each of the political parties or groups in the House of Lords, and they have all been members of the House for more than 30 years, perhaps.
Senator Joyal: It is not so much their names as their backgrounds in terms of professional experience. You mentioned the retired Law Lord.
Mr. Keith: The chairman is a retired Law Lord, another is a retired government minister and another is a retired judge. One is a retired local government member and one is a former cabinet minister who became a very successful businessman.
Mr. Williams: But the point is that it is cross-party, is it not?
Mr. Keith: It is cross-party, and they have all been members of the House for a long time.
Senator Joyal: Could you expand on the reason why you have made the safeguards as rigorous as those applied in the courts? Is that a signal to the courts that they need not worry about the way that the power or the function is exercised because there exists an awareness of and intention to apply the principles of natural justice? In other words, when the court realizes that the procedure in Parliament is similar to the one in the courts, they will be less tempted to interfere because those principles are followed.
Mr. Williams: That was not our intention or our motive, although I agree with you, senator, that would be a happy consequence.
We were concerned about these procedures not being transparent and in accordance with natural justice in the way that we paraphrased it. An attack on someone's reputation can be devastating and he or she is entitled to all proper natural justice safeguards, including representation, knowledge of the charges and an opportunity to prepare a defence. The destruction of reputation ought to be protected against in exactly the same way as when someone is charged with travelling 40 miles per hour in a 30-mile-per-hour zone. We think that a complaint against a member of a legislature is an important step to take and ought to be dealt with in a way that is not only fair but is seen and approved as fair.
Keeping the courts out never entered our discussions.
Mr. Keith: It was with a view to having a procedural process that was at least as good and as fair as those to be found in professions outside Parliament. Lord Williams mentioned the bar council. The general medical council is another example. We wanted to ensure that what we were putting into the code was at least as fair to the accused person as you would find in the codes of conduct governing those bodies.
Mr. Williams: Not least because we had to carry our fellow members of the House with us, and these safeguards, apart from being virtuous in themselves, do persuade people who might be doubtful that this is a legitimate, proper and fair system.
Senator Joyal: I asked that question because we had a recent case in Canada where the court had to evaluate the criteria of maintaining the integrity and dignity of Parliament. One of the criteria at the root of the dignity and integrity of Parliament is that Parliament itself follows the rules of natural justice. As you said in your opening remarks, privileges do not exist to put parliamentarians in a particular class above other people. Privileges are needed to serve specific roles. However, in doing that, they must maintain the principles of natural justice. It is important to maintain the integrity and dignity of Parliament in exercising the disciplinary function.
Senator Beaudoin: I want to return to the question of the Bill of Rights of 1688. It is part of the Constitution, as Senator Grafstein said, and it is, of course, the same thing in the United Kingdom. However, my impression is that in spite of this, our courts would be more ready to intervene in the interpretation of statutes than they are in the United Kingdom. They perhaps respect more the division between the legislature and the judiciary. I believe that in the U.K., judges intervene less on day-to-day parliamentary work.
Mr. Williams: The judges are rightfully scrupulous about not seeking to intervene in day-to-day parliamentary work. My comment about the Canadian Supreme Court would be similar to my comment — as a lawyer and not as a politician — on the Indian Supreme Court. They have both, in the past 10 years or so, been extremely proactive, because of your Charter in Canada, and for other reasons in India.
They are probably more proactive than the House of Lords, as the supreme court of appeal, would want to be here.
All judges are extremely cautious about staying on their own patch and not crossing over the parliamentary line.
Recently, there was an attempt to get the courts to make a declaration that the conflict in Iraq was unlawful. The court quite plainly said, ``That is a matter for Parliament and the executive. It is not justiciable by the courts.''
Senator Beaudoin: They said that clearly?
Mr. Williams: Yes.
Senator Fairbairn: Lord Williams, the subject with which we are engaged, and on which you have a head start, is of considerable interest within our parliamentary precinct or the two chambers.
You said previously that the real purpose of all this is to serve the public. You are in the early days of implementing that which has been decided. To what degree have you seen a reflection of interest from the public on this particular issue and the changes you have made, which would be considered revolutionary in some places?
To what degree has the public that we are all trying to serve been caught up with what the Parliament at Westminster has been doing? What kind of reaction have you seen? Will it take a significant incident to galvanize interest?
Mr. Williams: Senator, I regard ``revolutionary'' as a term of approval, of course.
I have detected no change in perception. You are absolutely right. If there were a disaster of the sort to which you alluded, they would be interested. I have detected something very subtle.
Our House is so much larger than yours. There are nearly 700 members. It is a full-time House staffed by part- timers. Not all of the 700 come every day. There is no room for all of them, apart from everything else.
I have noticed that people are more scrupulous when asking a question. When the time is limited, they declare their interest, perhaps not in full, but it is registered as an interest. People have become more alert to it. It has been a benefit to the way we do our business.
However, I cannot say that it has had a great effect on the public at large. That would come, as you gloomily suggested, when a disaster occurs.
Senator Fairbairn: It was not necessarily gloomily suggested, but in both our countries these things pop up from time to time. That will be the test.
The significant and positive things that we do in our Parliament are the hardest to communicate and gain the interest and understanding of the people.
Mr. Williams: Mr. Keith and I very much hope that we can reinstate our aborted visit for May. It might be helpful if we bring you some copies of the original code, together with the update that Mr. Keith's office produces every week. It is quite illustrative of the sort of problems that might have existed and which have been addressed by the way in which we have handled it.
The Chairman: I have noted that Lord Williams has offered to come in person to consult with us on a code later in our deliberations. We will take him up on his offer.
Senator Grafstein: I hope, My Lord, I have not tried your patience or that of Mr. Keith. I am fascinated by your rules and the comparison to our existing regulation and the proposals for fresh regulation.
We are already self-regulated under our rules. There is a tangential matter that is important in comparing your regime to our existing regime. I am speaking of government contracts.
We have a statute that says that parliamentarians cannot hold a direct contract. It is not a matter of declaration, but a matter of law and prohibition. Is that the case in the U.K.? How does it apply to these particular rules?
Mr. Williams: It is not the case in the U.K. There is no statutory prohibition in that area. There are laws against corrupt practices that will be extended to the House of Commons.
I can personally, and I underline personally, see a great deal of virtue in it. Perhaps Mr. Keith has a comment on that.
Mr. Keith: No, I have nothing to add, other than that particular problem has not crossed my desk.
Senator Grafstein: This is a problem not only for members of Parliament, but for their spouses or significant others. That is the law of Canada. It is obviously a question with which we must grapple.
As I understand your rules, a member can have an interest in a government contract, direct or indirect, provided it is declared at the appropriate point.
Mr. Williams: That would notionally be so. I have not come across it, but if someone had a significant other who was perhaps working in a commercial field, then that is certainly possible. It is not a problem that we have noticed, which may be rather more dangerous.
Senator Grafstein: The question of volunteerism arises. There may be a case of someone serving on a board of directors being caught by that particular provision, which I do not think was the intent.
Mr. Williams: There is a danger in being overly obsessive and believing that everyone who has anything to do with public life is polluted by greed and self-interest. That is not always the case.
Senator Cools: I would like to echo some previous remarks about the Bill of Rights of 1689 and the Constitution of Canada in respect of the lex parliamenti, the privileges of Parliament, and I would essentially repeat that everything that you have, we have here. The Constitution here is a replica of yours.
You made some comments that were especially of interest to me. I would like to discuss the sources and the origins of your initiatives to create and institute your code of ethics.
Both of you have essentially said that the initiative to create the code was that of the Lords. It was a proactive effort to anticipate future problems. It was a show of being decisive before problems emerged. Am I correct on that?
Mr. Williams: Absolutely.
Senator Cools: Both of you laid out three sets of well-established principles, here and in the U.K. You noted the principle of Parliament's exclusive cognizance of its own proceedings, or self-regulation.
Another principle underpins that, which you did not articulate expressly. That principle is that Parliament, in respect of its proceedings, has control over its members. For example, the expulsion of members by Parliament has been regarded as a serious action for centuries.
I understood you to say that part of your success in establishing this code of ethics and the reasons for its workability — because it seems to be working — rests on the fact that it was the House's initiative to respond to a growing need for transparency and modernization.
The situation in Canada is different. The initiative is not coming from either of the two Houses. This initiative, and the drafting and articulation of it, originated in the Prime Minister's Office.
Is my conclusion accurate? I also wonder if you and your colleagues would have been so successful if the initiative had not come from the House of Lords, but rather from the Prime Minister's Office?
Mr. Keith: A number of tides came together. First, there was the Committee on Standards in Public Life, essentially dealing with scandals in the House of Commons. They identified the principles of public life, which are set out in paragraph 5. We were fortunate in a sense, because as you say, we came to it on a consensual basis. We were volunteers; we were not bullied into it. I would suggest that I would rather be pre-Enron than post-Enron, and we had the great good fortune of being pre-Enron in the House of Lords.
Senator Cools: You have answered my question quite eloquently. Many members of the Senate are of the opinion that what is required, and what would be more relevant, would be for the Senate to develop its own response to these issues, rather than be seen to be doing it on a demand from the Prime Minister.
Mr. Williams: I agree with that. I know that many of your colleagues share my shame and disgrace in being a lawyer. I always, when I was trying to settle a case when I was at the bar, offered opponents just a little more than they were expecting. I personally think that you get a much better outcome if you can persuade people to be bold and not to be bullied.
Senator Cools: I concur with you wholeheartedly — and with you as a member of the House of Lords. One does not encounter a chamber much older than that. I think it behooves the Senate to move ahead, anchored in its own history and the principles that have undergirded it for a century. I shall endeavour to continue to hold that flag, that the process of certifying or guaranteeing ethical senators should originate within the Senate itself. It should be buttressed and bound by the principles of exclusive cognizance, fair play, natural justice and all these other principles on which we declare we are based.
You gentlemen have been very insightful, and witty too. It has been a pleasure listening to you. We must understand that, politically, we are living in strange and perilous times.
I will give you an example. Some days ago, a member — not of any stripe that I subscribe to — suggested that Mr. Bush should be prosecuted over the war in Iraq. We are now into a new era of what I would call ``pronouncements'' by members. We are charting new ground. I find those kinds of statements by a member of Parliament very disturbing — beyond disturbing, absolutely distressing.
At the same time, I am mindful, as we are evolving what seems to be a complaints process, that the danger that we have to look to is not problems with proper use of the system. What we always have to look to is abuse and mischievous and vexatious complaints that will come forward, rather than in a straightforward way, for certain party reasons; or, as you were saying a few minutes ago about damaging reputations, just for the publicity appeal, the attention in the media. This is why these initiatives should be moved forward with tremendous caution, because we are certainly going into a whole new area in parliamentary relations. I wanted you to know that I have appreciated your insights and your wit.
At the same time, please say to your own Prime Minister that many of us here are deeply concerned about the state of affairs in the world, and that many of us pray for the soldiers every night. Thank you.
The Chairman: I wish to remind everyone that this draft legislation or proposal that is before us is based on the work of a parliamentary committee of both Houses in Canada, and the Milliken-Oliver Report that came out in 1997. This did not just come down from on high.
I understand that the declaration that is made in the House of Lords before the clerk ``sanitizes'' an interest, I believe you said, Mr. Keith. Does this mean that the Lords are allowed to vote on any issue where an interest is declared? Or is it the same as in Canada, where we are prohibited from voting on any matter in which we have a direct pecuniary interest?
Mr. Keith: Almost any. There are some exceptions. However, I think it is probably better not to emphasize them, but to stress what would normally happen and what the general rule is.
In the vast majority of cases, an interest that has been properly registered and declared would not inhibit a member from voting. Indeed, the code of conduct goes so far as to say that should a member wish to take part in a vote where he has not had the opportunity to declare the interest, he can, within 24 hours, register it and therefore regularize his position.
There must be some relevant interests in the register on which, if he were to ask me, I would advise a member not to vote. However, they would have to be very direct and specific to him. If you take the example I gave earlier, of the chairman of a pensions company, I would not say that he should be forbidden to take part in a vote on pension legislation affecting the whole industry, but I would advise him not to take part in a vote that directly and uniquely affected his particular company.
The Chairman: Did he initiate the debate?
Mr. Keith: No.
The Chairman: We will look forward to having you here in Canada again to speak on what should be included in a code of ethics.
Thank you for taking the time to be with us today.
The committee adjourned.