Proceedings of the Committee on
Rules, Procedures and the Rights of Parliament
Issue 16 - Evidence, June 9, 2003
OTTAWA, Monday, June 9, 2003
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 4:03 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: Honourable senators, I see a quorum. We are fortunate to have with us today Lord Williams of Mostyn. With him are Mr. Chris Jacobs, Principal Private Secretary to the Lord Privy Seal and Leader of the House of Lords, and Mr. Brendan Keith, Principal Clerk of the Judicial Office and Registrar of Lords' Interests, House of Lords.
Lord Williams, please proceed.
Lord Williams of Mostyn, QC, Lord Privy Seal and Leader of the House of Lords: Honourable senators, there is an idea whose time has come. That idea is that all parliamentarians in both our jurisdictions should subscribe to a code of ethical conduct that is clear, simple, transparent and itself part of a culture of openness.
It is very interesting that the topicality of this question has gone beyond Canada and the United Kingdom. I was with Speaker Hays in Buenos Aires recently for the installation of their new president. We were discussing a few ideas about codes of conduct. It was remarkable and heartening, to me anyway, to see what an extraordinary interest there was in Argentina, with a new president, with a history, unfortunately, of institutionalized corruption, in the ideas that we were taking forward together. Other representatives of other states invited me to send a copy of our code to them. Since I think the only purpose of human existence is to cause mischief and trouble as far as one possibly can, I am sending it to a large number of colleagues in different countries. I hope we will have a useful outcome.
Because I am a minister in the government at the moment — although I am told there is a reshuffle this week — I have to subscribe to a ministerial code of conduct — but I will not touch upon that today.
Barely more than a year ago, we introduced our own code. I set up and chaired a working party on code of practice. That working party consisted of about half a dozen representatives of all parties and the cross-benchers. We worked for some months to produce a code.
What I tried to do was to produce something that was absolutely transparent; if there were any question or margin of doubt, we ought to go for more disclosure rather than less. It caused some anxiety because it had to be fully debated and approved or otherwise by the full chamber. In the end, it only passed by three votes, quite a narrow margin.
We agreed that it would come into effect in March 2002 and that we would review it after about a year and a half or so. I have to say that it has worked immaculately well. I have not heard any criticisms about it. My guess would be that we would continue with it in its present form.
We tried to set down certain ethical principles, which are selflessness, integrity, objectivity, accountability, openness, honesty and leadership. They are all trite, but so are all declarations of principle. Any declaration of human rights, for instance, is bound to be trite; nevertheless, it is a useful starting point.
Thereafter, we introduced, essentially for the first time, the requirement that interests would have to be registered where they are relevant financial interests and also are possible financial interests.
One of the matters that particularly caused controversy was that to be found in paragraph 13(c), which is that relevant financial interests may also include not only my personal financial interests but those of a spouse or relative or friend. That caused a great deal of querying. I think it has worked well. Most people, virtually without exception, do register. Brendan Keith as the registrar will probably say that we are wearingly and wearisomely over-conscientious, down to one colleague of mine who declared a stick of rock that he had received from Blackpool. He put its value down as 20 pence, and in brackets ``unfortunately broken.'' Putting down this cheap item of confectionery was, perhaps, being a shade over-scrupulous.
Brendan Keith is the registrar. What we wrote in, as I think we discussed briefly on the last occasion, was that in the case of ambiguity or doubt any member can go to Brendan Keith and ask for advice. Mr. Keith always gives immaculate advice and is incapable of error; but if he were to fall into error, it is a perfect defence for any of my colleagues to say, ``I went to the registrar, took advice, and he advised me that I need not declare.'' That would be a perfect answer to any criticism.
It has worked extremely well. In some ways, it is more open than the House of Commons. I hope it is among the most open systems there is in the world because, fundamentally, as I said right at the beginning, it is much better to be over-transparent than not, in my opinion and experience. Much of the odium that attaches itself to politics is because of suspicion, often not well-based. It seems to me in our case that if you wish the benefit and the great privilege of public service then you ought to disclose as fully as possible, because if there is nothing to hide, then it should not be hidden.
Senator Stratton: Thank you very much for coming all this way. You raise a curiosity. You said ``relative'' or ``friend.'' Under our current system, it is children under 18 who are dependent. What does ``relative'' or ``friend'' mean? That is all encompassing, by definition.
Mr. Williams: I think it is. This is one of the particular queries that my colleagues raised. I do not know if I shared my experience with those around the table, but I do not see my relatives, fortunately, from one year-end to the next. It may well be that it would be more important that my friends had interests. For instance, if a close friend of mine had an interest in BP and we were discussing an oil concession or something of that sort, it seems to me I ought to declare that, because it may be more influential or be perceived to be influential on my vote or contribution than perhaps an interest of a relative. People were persuaded in the end, I think. One has to be sensible. One has to be proportionate, which is the other underlying theme behind our code. If you know of your friends' interests, they should be declared, if they are potentially relevant. If you do not know about them, they cannot be relevant because they could not be influential.
Senator Stratton: Is that in your rules?
Mr. Williams: Yes.
Senator Andreychuk: Perhaps I can follow up on this. If you make a declaration about a particular friend, obviously the debate does not stop there. The press will pick it up, and perhaps the opposition, et cetera. You are saying that openness is what drives your code. Does that stop the debate? Do you feel that is sufficient?
In Canada, just as an aside, we are not just concerned about openness; there are certain standards that the public seems to think they want from their parliamentarians. That sometimes is at variance with what the parliamentarians think they should declare and be bound to say. In your case, how do you get around the perception? You may be open, and you may have disclosed according to the code, but the public may deem to have a different standard than your code.
Mr. Williams: I think that is true. What we do logistically, before I come to the question of principle, is that the registrar updates the register every week on the Internet, so it is absolutely available. Curiously, that makes people not want to bother. I do not know if your experience mirrors mine, but I find that the best way to hide embarrassing documents is to put them in the library of the House of Lords, because no one then goes and looks for them.
We have had not that culture of cynicism attaching to the House of Lords. The normal criticism applies to the House of Commons. It is all there. Any investigative journalist can look it up. We have had not any difficulties, though I do accept that we have only been running this scheme for just over a year, 15 months or so. I think it is the case that only two out of 700 have not put in a proper entry.
Senator Andreychuk: To follow up on that, the expectations of some Canadians are such that they do not wish their senators to be involved in certain kinds of business activities and certain kinds of charitable activities. Is that the case in Britain?
Mr. Williams: No. We are required to declare trusteeships. I am the trustee of the government houses, for instance, because of my position. I declare that. I am the pro-chancellor of the University of Wales. I declare that. No one suggested I should not be doing it, partly because I got the permission of the cabinet secretary in writing before I was allowed to continue those activities. No one has suggested, in my experience, that you should not be a trustee of a particular body. I gave up being a trustee of the National Society for the Prevention of Cruelty to Children because there might be a conflict in terms of government policy, but that is a different conflict, of course. We have not discovered that, so far. I think most people were surprised at the fact that we agreed on such an open document. Perhaps rather than waiting for our reward in the hereafter, we are having our reward in this world, an unusual experience.
Senator Andreychuk: We have debated whether we should have the same code as the House of Commons. Yours is different. Could you give us a little history as to why yours is somewhat different?
Mr. Williams: The House of Commons was subject in the last 10 years to various allegations of sleaze. I am putting this quite neutrally, because I think it is much too important for political partisanship, but it is a fact that some ministers in the Major government had difficulties. One was sent to prison, and another lost his seat because of taking gifts and favours. Mr. Major set up, then, an inquiry in the House of Commons, which was rather unpopular. They were obliged to it.
Before we had our code, essentially, peers were required to act on their honour. I do not think that is sufficient. It was my initiative to set up this small cross-party group. We wanted to demonstrate that not all politicians are in it for selfish reasons. It is much better, and, curiously, it is a safeguard to individuals to have the code. If anyone challenges me, I can say: ``Look, I registered my interests, and my wife's interests as a legal director of a big company and a barrister. If you want to look at it, look it up every Friday, because Brendan Keith updates it every week.'' It is an enormous safeguard if we have the confidence to believe in the virtue and validity of the way we work.
Senator Andreychuk: There are issues of self-interest, and there are issues on conflict of public policy where you may have been vocal and adamant on one point of view before you become a Lord. How do you then determine which things you resign from? Is it only through consultation with the people in the office, or is there some other mechanism that triggers it?
Mr. Williams: I was in a different position, because in 1997 I became a minister in the Home Office. I was patron or trustee of a large number of bodies — for example, the Commonwealth and Ethnic Bar Association, as well as an organization related to prisoners' rights. Since I was soon to become the minister responsible for prisons, I thought it injudicious to continue being the patron of a body on prisoners' rights. Most of those I discharged myself from, and the others two I got specific advice from the cabinet secretary, the senior civil servant, and he authorized in writing that I could continue because they were not likely to be in conflict with government policy. On the university, I told them specifically that I would only continue on the basis that I had nothing to do with policy and that I would not sit on the remuneration committee, and that is the way we deal with it.
Mr. Brendan Keith, Principal Clerk of the Judicial Office and Registrar of Lords' Interests, House of Lords: I wish to add one or two points to the various questions you have put. The code of conduct requires members of our house to register all relevant interests. Until this code of conduct came into force, the test for a relevant interest was a subjective one — that is to say, the member had to ask himself or herself this question: ``Is this the kind of interest that I need to declare?'' This code of conduct changes that significantly, by imposing an objective test, and this will help you to meet the concerns of your constituents. You have an objective test, a neutral test, which is to be applied, rather than a subjective test that members would apply for themselves and on which they might give quite different answers.
I am summarizing, but the objective test boils down to this: Would a reasonable member of the public take the view that this particular interest could influence the way in which a member of the house discharged his or her parliamentary duties?
That is an objective test, and the bottom line there, I am afraid, is someone like me. The advantage of having a registrar — someone like me — is that I see all members of the house, and therefore there is some element of consistency.
Instead of each member deciding for himself and coming up with different answers, theoretically, if I am giving the advice, and if I am the soul source of that advice, over time I should be giving consistent advice that builds up into case law. That ought to answer any concern that your constituents have about your interests. Relevant interests, however, can consist of two kinds of interest, and this is the other big step forward in the code of conduct, the Williams code. Relevant interests can be financial — the obvious ones — but they can also be non-financial interests.
The trusteeships and the other good works and charity work that Lord Williams mentioned obviously fall into that category. The code of conduct regulates in fairly comprehensive detail the disclosure and the registration of relevant, financial and non-financial interests. It is not up to you as the member to decide what is relevant; it is up to someone like me.
Senator Fraser: Let me come back to the point Senator Stratton raised about friendship, because I must say that when I first looked at your code it was that that really made my jaw drop. It seems to me that it would be a grave test of friendship to be declaring some non-politician's private interests on the Internet, updated every week. If that rule were to apply, I would think I would rapidly cease to have any friends at all. How does that rule work in practice? Do people register friend's interests, and how do you police it? The reason I ask this is not just out of petty interests, because it seems to go to the credibility of the registry.
Mr. Williams: I do not think there is a qualitative difference between — let us be careful here — between your spouse and your friend. The relevant question is this: Are they capable of being in a position to bring about a perception that you might be influenced in the way that you speak or vote? It seems to me that spouses are perfectly innocent creatures that are not responsible for their spouses descending into political life. There is no difference in quality, I believe, between that and a friend. Let me take a relative, a brother. If my brother had a large interest in a particular contract that I spoke to or voted on, that would be quite wrong, and the public is entitled to know. I think the same applies to friends. I do think they are capable of being influential and therefore ought to be declared.
Senator Fraser: Are friends declared?
Mr. Williams: In my recollection of the register, I have not seen anyone declaring friends' interests. I have seen them declaring relatives and spouses' interests.
Mr. Keith: In general, members of the house have not found it necessary to register those kinds of interests. One reason for that is that when the code was introduced, the subcommittee, which governs the whole operation of this register and this code of conduct — the subcommittee consisting of members of the house — set down some guiding principles for members. We have not got this codified yet. In the meantime, the subcommittee set down some general guiding principles.
Let me paraphrase the guiding principle on this. The financial interests of a person other than a member of the house will only in very rare circumstances be suitable for inclusion in the register, even in cases where declaration on the floor of the house would be desirable. Hence, immediately they are making a distinction between registration, which is on the public record, updated once a week, and a declaration, which is an ad hoc one-off event, only heard by those who happen to be in the chamber at the time. The principle goes on to say: An entry in the register might be made in a case where an interest was so significant and held by a person whose relationship to the member was so close that its existence might reasonably be thought to have a bearing on his or her action.
Perhaps that puts this in context, and to some extent may allay the fears you had about the whole reason of the code. However, the punch line is the last short sentence in this section. It states: ``The advice of the registrar should be sought in all cases.''
The Chairman: Where is the line drawn between what a member discloses to you and what goes on the public register? Is everything that is disclosed to you on this public register?
Mr. Keith: No.
The Chairman: How do you decide what is on the public register and what is not?
Mr. Keith: Sometimes with difficulty and after a great deal of work. A member will come to me, and he may stay five minutes or several hours, and we will go through the whole thing in some detail. He will give me his point of view, and I will consider it in the light of precedents and any similar problems that have arisen before.
Only I know what kind of problems have arisen before that do not get on the register, because everything said to me is confidential, except that which gets published. We have extensive files for each member of the house. Those files contain all the material submitted to us by a member, not all of which is published. How do I decide? Well, the leader of the house in the debate on this when the code was adopted by the three-vote majority said that he thought the code would be enforced with a light touch. That is one of the underlying philosophies. We do not want to be onerous or burdensome on members. We do not want to pry or force disclosures of things that have nothing to do with me.
At the end of the day, the member will state his worries, concerns or his desire to put something on the record, and I have to take a view. It is fair to say that the subcommittee is not keen to have the register cluttered up with insignificant disclosures, which will prevent people seeing at a glance what are the significant ones. There is the danger — what the commissioner of standards in the commons has called ``registration creep'' — of members being so keen to disclose, because they want to get it on the record and therefore get the strength of that alibi behind them, that they will almost insist on telling you things. A stick of rock is a good example. They will insist on recording and publishing material, which frankly they do not need to have in the register. They like to have that measure of guarantee that someone objectively has decided that, yes, you need to register this or no you do not.
I have to say that the Internet edition of the register is a bulky document. It is 300-plus pages. A lot of the stuff that is there is probably not necessary. The leader of the house mentioned the review in the autumn, and one of the things the review group must look at in the autumn is the extent to which, in order to keep members happy, never mind their obligations under the code, we register items of information that do not need to be there.
Senator Fraser: I have a question following directly in this line.
I have been struck by the sections in your code about items that must be registered, not automatically, but depending on their significance. This word significance is also one proposed for use in our code. How do you decide what is significant?
Let me explain what I mean. It seems to me that significance of a given asset would vary greatly depending on who held that asset. If it were a person of very great wealth, it may be a small portion of that person's assets. If the person were of modest resources — maybe a university professor, I think there are some in the Lords — the same asset might represent a very large proportion of that person's wealth. Who decides at what point that asset is significant? Are there principles or guidelines, or do you go by your instincts?
Mr. Keith: I think the short answer is that I go by my instincts, but not just my instincts. If someone comes to me in the first place — do not forget, people come to me, I do not seek them out. If someone comes to me and says, ``I have a problem; I am worried about something,'' there is no smoke without fire, basically. Prima facie, there is a potential problem there. That is where you start. That individual will then state his point of view. If he has a 1 per cent holding in a tiny company, it may or may not be significant. If he has a 1 per cent holding in BP or Microsoft, it answers itself. However, in between, in the grey area, he will have an answer in his own mind, and he will have a doubt as to whether or not he should register that interest. I am supposed to be the averagely reasonable person. He will use me as a sounding board and we will come to a view.
However, it is early days; we have been doing this for just over a year. I would tend at the moment to say disclose, err on the side of caution. That way, as the leader of the house said, nobody will be interested. If the information is there, people will not come full of suspicions. For the moment, I would say be cautious, and if you have doubts, register.
Mr. Williams: I have an analogy, if I may. I used to be chairman of the professional conduct committee, the Bar Council, and when I would receive a telephone call from someone about a problem, I would respond as follows: ``You know the answer, don't you? That is why you have rung me up.''
It is true that at the moment we must not be complacent, because the code has not been tested, let alone tested to destruction. However, people are settling down now. They want to make it work. They take a pride in the integrity and the reputation of the house, and that is something that could be very fragile and burn with the wind. As Mr. Keith said, err on the side of safety and over-declare rather than under-declare. Civilization, as we know it, has not come to an end in Westminster yet.
Senator Joyal: It is a pleasure to see you again in Canada, especially Mr. Keith and Mr. Jacob. My questions relate first to the nature of the code of conduct itself, and second to the legal status of the registrar in the code, in comparison with the ethics officer that is proposed in the Canadian code.
First, with the elements of the arguments generally of transparency, you stated quite emphatically that it is better to be over-transparent than not. The House of Lords, as I understand, has adopted a rule of the Lords to implement the code of conduct. In your opinion, is there, in terms of transparency, a major difference between rules and legislation? In other words, in your opinion, is the system in Britain as effective and as transparent now as it would be if it were legislated?
Mr. Williams: The House of Lords is a self-regulating body. We do not really even have a Speaker. We did not need any legislation at all to introduce this code. I set up the working party. We produced a report. I should have said earlier, senator, it was not a unanimous report. There were two who dissented. We had a full debate, a well-attended debate, and a big vote at the end carried by three votes.
Had I proposed a statutory code, it probably would have failed because people would have felt unduly invaded. Speaking as a former lawyer, I should not say this, but the difficulty about statutory codes is that you get lawyers and judges involved — always something to be avoided.
The ethos of the Lords is so self-regulatory that, if this code is able to work, and I believe it is, we shall not need a statutory scheme. If we need a statutory scheme, I think quite profoundly we shall have failed. However, if the scheme did not work, or if it were abused, we would have to think again — but we did not need to look for a statutory scheme.
We prefer to have the registrar, remembering that Mr. Keith is utterly independent of me. He never consults me, nor would I expect him to — and he would be outraged if I tried to interfere with his duties. We have never discussed any particular case, and at the moment, I think it is capable of working. When it all goes disastrously wrong next year, you will remind me that we should have had a statutory scheme and I shall allow you to use the happiest words in the English language — not the French, perhaps — ``I told you so.'' That is the ethos that we have at the moment. Remember that none of the Lords, except the ministers, is paid. They are only paid expenses; they do not have salaries. Most are activated by a sense of duty and public service. I think this will work.
Senator Joyal: In other words, the legal format or nature of the code — the fact that it is a rule, rather than a statute — and the status of Mr. Keith in implementing the code in relation to the Lords had no bearing in your opinion on the transparency nature and on the objective that you had to make a system that was fully credible by the public?
Mr. Williams: I have not heard that criticism at all, that they would not find it credible on the basis that you have identified. I think, insofar as the public is interested — question mark, because nothing has gone wrong yet — they will get interested when something does go wrong. I think most objective people will look at it and say, ``Actually, he has declared everything.'' I have declared my wife's occupation, the fact that she is a barrister and the company she works for; I would not be expected to declare her salary, even if I knew it. That is a reasonable balance. The trouble with statute is that you sometimes do get over-legalism, and that is sometimes capable of hindering an effective system.
The Chairman: Before we go on to another question, perhaps we should make absolutely clear that the situation that is proposed to us right now is that the code would be within the Rules of the Senate of Canada. It would not be by statute, but the position of ethics officer would be created by statute. That is a bill that will be coming before the Senate fairly shortly. How would this work in your own situation, if Mr. Keith's position were created by statute but the code he was administering and registering for was not?
Mr. Keith: That is a tough question. The constitutional basis for our code of conduct is two resolutions of the house of last year.
The status of the registrar is simply the fact that he is an officer of the house. I am an officer of the house like any other clerk. As it happens, I work with the judges, the law Lords who form the Supreme Court of the U.K. Nevertheless, like any other clerk, I am an officer of the house and, therefore, my loyalties are essentially to the house.
In the House of Commons, there is a registrar who does a great deal of mechanical work, perhaps more than I do. In addition to the registrar, there is the parliamentary commissioner for standards, who is an official of the House of Commons as well. He deals with many high-level issues that are not necessarily mechanical but are, rather, matters of judgment.
The House of Commons at Westminster have expressed the fear very deeply that, if the parliamentary commissioner for standards, or the individual in my position, were to be appointed by statute, the way would open for the courts and the judges to interfere with the workings of Parliament. The method whereby judges are thought to interfere — judges outside Parliament and not the House of Lords in its judicial capacity — is through judicial review. Judicial review is adoption that has been rapidly developed in the U.K. Members of the House of Commons — not the House of Lords — at Westminster have expressed in quite dramatic terms that they fear any statutory appointment would lead to much more interference by the judges and by the courts.
The expression that the recently retired clerk of the House of Commons used dramatically conveys the danger he perceives. He said that statutory appointment would be yet another judicial tank on the parliamentary gardens — on the parliamentary lawns. The image of course is of the tanks pointing towards the building and the people in the tanks dictating what goes on inside the building.
Privilege has never been an issue for the House of Lords but it always has been for the Commons. I gather it is the other way around in Canada. The House of Commons is much more relaxed about these matters than is the Senate. That is, perhaps, the long answer to your question, but that is it.
Senator Joyal: The House of Commons is seeking leave to appeal to the Supreme Court on a decision of the Federal Court of Appeal to determine the scope of privileges in Parliament. We, as a house, must make up our minds soon on whether to join in that appeal. The issue is currently pending.
I want to comment on the format of the rules, which you have decided on rather than bylaws.
Mr. Keith: Yes, and we call them ``standing orders.''
Senator Joyal: There is a difference between standing orders and rules.
Mr. Keith: The constitutional basis is the same because they are both adopted by resolution of the house. The force of the whole house is behind each of the standing orders.
Senator Joyal: You have adopted the rules, and it is my understanding that it has been printed as an appendix to your standing orders.
Mr. Keith: No, this is the current form that they take. It is a printed document that is given to each new member as he arrives, as well as any other member who wants it.
Senator Joyal: The code of conduct is not the information found in rules 98 and on. Rather, it is a specific publication that can be handed to anyone who makes the request. A special edition of the code of conduct is published so that the public has easy access. It seems to be easy to read because it is not written in convoluted legal terms that the average person could not easily understand.
Mr. Keith: We have a manual of procedure that is a miniature version of Erskine May, which is similar to our rules.
Senator Joyal: It is similar to our Rules of the Senate.
Mr. Keith: Lord Williams was insistent that we use plain language that ordinary people could understand. The whole purpose of the code is to reassure ordinary people that all is well. The code is on the Internet and amounts to only three pages. Anybody could access it quickly.
Senator Joyal: The following question is about an important element in your code — your status as a registrar. It seems clear that, as registrar, you develop a solicitor-client relationship with the Lord; and you always remain at that level. Therefore, when a Lord meets with you to declare, discuss and attempt to settle his assets in conformity with the criteria that you have outlined in your presentation, he is fully under the trust of a solicitor-client relationship.
Mr. Keith: Yes.
Senator Joyal: From the section of your code entitled, ``Enforcement of the Code of Conduct,'' section 19 and following, I understand that you do not act as an ``investigator'' on behalf of the House of Lords if a complaint arises against an individual.
Mr. Keith: No, absolutely not.
Senator Joyal: You are not an advisor and a prosecutor at the same time.
Mr. Keith: I am not. That would be to violate one of the basic principles of the joint committee on privilege, which reported in 1999 and said that procedural fairness was absolutely essential when in the application of matters of privilege. If a member and I are able to agree on the matter, that then is the end of it. It gets either filed away or published. In rare cases, and I have not had one since last October when I took this on, if the member and I could not agree I can consult the subcommittee that oversees the whole exercise. The chairman is a recently retired judge — a law Lord and member of the house. I consult him and, if necessary, a member of the subcommittee. I would only do that if we truly faced a difficult issue over a fundamental disagreement. We have not had any of that since I took on the position last October. Perhaps we have been lucky.
Senator Joyal: This is a key element of difference between your code and the proposal of the Canadian government, which gives the ethics officer the mandate to determine whether an investigation should take place and to lead that investigation. That is in sections 31 and 32 of the proposed draft code of the government. Your section 19 states:
Allegations of non-compliance with this Code are dealt with as follows:
(a) Any allegation should normally be raised first with the Member complained against. However, there may be circumstances when it is more appropriate to raise the matter with a party Leader or Chief Whip...
(b) If the complainant chooses to pursue the matter, he or she should refer the allegation in private directly to the Subcommittee on Lords' Interests....
Your code does not confuse the role of advice with the role of investigation. In one sense, you have maintained the honour system in your code that does not flow from the same basis as the proposal of the Government of Canada. In your system, a person meets with you, opens his drawers, pockets, purse, et cetera, so that you may properly advise the individual. When the person leaves, he or she has a clear conscience. However, in our government proposal, your role might one day be perceived as the investigator. Therefore, your relationship with that individual would completely change because he or she would be required to defend himself or herself before you. The person has to defend himself or herself with the whip of his party, with the leader of the party or with the subcommittee of the party. That is my perception of the function in your system. That is a fundamental difference in the design of the code.
As a registrar, you help the members of the House of Lords to maintain the honour system. There is more of a police approach in this code. I do not say that in a negative way. It is somebody who has the role to receive the complaints and check whether the complaint is valid and to go on with the procedure.
This is a fundamental difference between the two codes. The Lords are protected, and you are protected in a solicitor-client relationship, which means that if the subcommittee summons you there are things that you can say and things you cannot say.
If you lose that relationship, you could be summoned to appear at the committee hearings. You could be compelled to disclose some private information. There is a very key difference in dealing with this matter in the way that you function in your code and the proposal we have in front of us.
Mr. Williams: I agree with your analysis, Senator Joyal. This starts in paragraph 18 of our code: ``A Member who acts on the advice of the Registrar in determining what is a relevant interest satisfies fully the requirements of the Code of Conduct.''
That is a perfect defence. That encourages openness, I believe.
Paragraph 19 is worded the way it is because some complaints against members of the House of Commons were raised out of malice and to get up in headlines. Hence, we have built in safeguards here, not the least of which is the provision under (d), which states in part that ``members of the House have the right to safeguards as rigorous as to those applied in the courts and professional disciplinary bodies.''
We think that if Mr. Keith's position were to be investigator, then his position as advisor would be intolerable; they are two different functions and ought to be kept distinct.
Again, we wanted a light touch. We did not want the spirit of Savonarola to be prowling the corridors. I believe that we have avoided that.
We recognize that one size does not fit all. We perhaps catered to circumstances that may never arise.
Mr. Keith: May I just add that, in the situation you have described, the analysis is impeccably logical, but we are not likely to get to that end position in the House of Lords because, as Lord Williams has said, if the member comes and takes the advice, whatever the advice is, I then know about it and that member has a complete defence. There could be no subsequent prosecution. He is home and dry.
The only time that there could be subsequent proceedings is if somebody accused the member of non-disclosure and I did not know about the issue at all. The member could then not point to the registrar and say: ``That is my defence. I have disclosed, and I took his advice. Never mind he got it wrong, I complied with the code.''
In logic, you are right, but in practice, we will not get that far.
Senator Joyal: The reason being that you are in a solicitor-client relationship, essentially.
Mr. Keith: Yes.
The Chairman: As a point of information for our guests, the committees of the Senate are not allowed to sit when the Senate is sitting. The Senate is sitting at 6:00 p.m. this evening. That is our absolute deadline.
Senator Kroft: I am feeling a powerful aura coming down the table. I have identified it as good sense.
I want to focus on a word that seems to be recurring both in use and in the underlying theme of your work. The word is ``relevance.'' It relates to lightness of touch. It relates to not trying to deal with more than the mischief that is there, which I think we heard on your video presentation.
I was struck, in passing, where you had been talking about spousal disclosure. You said that the salary of the spouse would not be disclosed anyway.
There seems to be a fundamental difference in your approach and our approach that I would like to explore a bit with you. The disclosures required may be holdings, activities or interests, but they are something that would be relevant to the conduct of the member in the pursuit of his or her work, be it a speech, in committee, or a position on a bill. The test is this: What is there about this person that might be relevant and that the public might find interesting to know?
You, if I am correct, place no real focus on the issue of quantum. Your approach is not an accounting approach. Relevance is whether somebody has a directorship or an interest in something rather than determining what they own and their monetary worth. The accounting or balance-sheet type of approach is not central to your system, as I understand it. Is that correct?
Mr. Keith: The short answer is that it depends, I am afraid. Quantum matters insofar as members of the house may have involvement with a lobbying organization or members of the house might have a contract to provide parliamentary services and advice to an organization. In those circumstances, the member must declare the amount. Indeed, the he or she must deposit a copy of the agreement with the organization. That is on the record. We are not interested in quantum other than those two areas.
When the first House of Lords codes began in the 1970s, people in those days were much more concerned about lobbyists' activities, consultancy and paid advocacy work. We still are, to the extent that we require disclosure of the amount of money involved.
However, other than that, you are quite right. Quantum is not central to the code, no.
Senator Kroft: Those issues are not really our issues. In the general terms of the reporting, amounts of income or value of assets in themselves have no meaning because I presume that you feel that they are not relevant, other than if they add up to 1 per cent of Microsoft. That is the fact that is relevant and not the fact that it may be worth $2 billion.
Mr. Williams: If I can assist, senator, with an aspect of that. In paragraph 13(a) of the code on financial interests, there is a note for guidance of the sort that Mr. Keith was mentioning about the glossies. We speak of 5 per cent or more of the issued share capital of a company or body or that what has a nominal value of over $50,000 pounds. Thus quantum does sometimes come into consideration.
One thing struck me when you were asking questions or making observations about activities in the chamber. We particularly reminded ourselves that members of the Lords have a very privileged position in terms of correspondence with ministers. Therefore, it is not only activity in the chamber. You get a reply promptly if you are a member in our house, or you should. My office receives replies 94 per cent on target, but that that is because it is an immaculately run office. You get the attention of a minister in a way that you would as a private individual.
Senator Kroft: This would suggest that we stand in a privileged place vis-à-vis the government and therefore have a commensurate duty.
You have confirmed the important part of my preoccupation. Your judgments are framed in how this will affect the way in which a member conducts his or her work. Will the public know where they are coming from on an issue? Whether that person in the narrow sense is a billionaire or a pauper is not relevant in and of itself.
Senator Smith: You mentioned that two members of your committee dissented. Can you tell us if there was a primary reason why they dissented? What was the gist of that?
Mr. Williams: They thought that relatives and friends was too all-embracing. That was their major dissent, if I remember it right.
Mr. Keith: Yes.
Mr. Williams: When we produced the report of my working group, that dissent was recorded. It does strike people's minds as a particular intrusion, but I believe that it is a rationally justified intrusion on exactly the equation that Senator Kroft offered — that is, if you are privileged, then you have corresponding responsibilities and you give up a degree of your privacy.
Mr. Keith: The basic dispute was how to define a relevant interest. We had to put into the code of conduct a whole list of interests that we thought were relevant. Different people will take a different view as to what is a relevant interest in the code. There was some disagreement. Part of the source of the disagreement was what should go into that list of relevant interests.
The Chairman: What you are telling us, I believe, is that you have this report that we can download off the Internet, four and a half pages, but that there is actually a much broader listing of things that you can and cannot do, and things that you must and must not list; correct?
Mr. Keith: No.
Mr. Williams: No, senator. In paragraph 9, the rubric there is, ``What is a relevant interest?'' In paragraph 12, we define relevant interests. We then continue in paragraph 13 to say that ``relevant financial interests may also include'' and there is a list that follows.
The Chairman: Nowhere here do I see 5 per cent or more.
Mr. Williams: No, that is quite right. That is found in the questionnaire given to all new members. And there is a gloss there introduced by the subcommittee, which is the 5 per cent or the 50,000 pounds. That is an illustration of how they tried to be proportionate in the running of the scheme. These values will alter with inflation and time.
Mr. Keith: The group chaired by Lord Williams took the view that they had the duty to list relevant interests. We were able to categorize that by saying that some interests will always be relevant, because virtually everyone can agree that a particular interest is relevant and must be registered. Other interests may be relevant, but not all the time, and it depends on the circumstances. That is where you get into the areas where individuals will have different views. That is the source of the disagreement, basically — that is, what should go into the list. In addition, they felt it was intrusive to invite the disclosure of the interests of spouses and friends.
Senator Smith: It seemed significant to me that the locus of the registry was attached to the judicial office of the House of Lords. I sort of mused myself — and I might be wrong — that some believed that whatever sanctity attaches itself to the supreme arbitrators or our equivalent of the Supreme Court of the land might rub off on us a little more than, with due respect to the clerk, the clerk's office. However, it also occurred to me that, perhaps advertently or inadvertently, you put yourself in a position where, given that they are the ultimate arbitrators of any statutory interpretation, that might mean that you could not go the statute route even if you wanted to.
Mr. Williams: That is a deeply unworthy and cynical thought. It is also much too intelligent because we did not think of it in that way.
Senator Smith: I want to go back to this issue of sitting on corporate boards — and I acknowledge that this is a matter of some interest to me. It has always been my sense, and maybe this is true of Tory Lords and Labour Lords, that it was almost the exception that was not on a couple of good boards. If I think of our great expatriate Canadians, Lord Beaverbrook, Lord Thomson and my lifelong friend Conrad Black, for which friendship I do receive considerable razzing from the Prime Minister, I suppose it would not be too attractive a place if they could not sit on corporate boards. I can understand the difference between a charitable or a non-profit group and a private-sector one.
I cannot help but be reminded of an occasion where I was asked to sit on a board that I knew nothing about. I asked this chap whether this was a non-profit corporation. The answer was yes but it was not meant to be, and that is why they wanted me on it. Needless to say, I declined that one.
It is sort of the culture, I sense, of the Lords. I can understand if someone is a minister, or even over here, a parliamentary secretary, that that is verboten, but if you are the equivalent of a private member this has never really been an issue as long as everything is disclosed, is in the open and on the record. Is that a fair comment?
Mr. Williams: As a remunerated director, you would be obliged to put that in the register. You do not have to disclose the amount of your remuneration unless you are actually carrying out parliamentary work on behalf of that company. You simply put in that you are a director of Hollinger, or Ravelston, or whatever Conrad Black company it might be.
Senator Smith: And not vote wherever it was appropriate, presumably? That does not matter; correct?
Mr. Williams: The question about voting is a little —
Senator Smith: A little greyer?
Mr. Williams: It remains unresolved. You can vote if you wish.
The Chairman: After declaring, then there are no sanctions or comeback, as a conflict of interest?
Mr. Williams: That is an area that we never actually went into.
Senator Stratton: I am curious as to why. You would think that if you were listing yourself as a member of a board of directors and there was a vote being held there would be something said as to that. I would be surprised if it were not asked.
Mr. Williams: That is a perfectly fair point, to which I have no answer that satisfies me. It is true that Lords are expected to act on their honour, but if that were so there would be no need for a code whatsoever. I think it is actually just pragmatism, as Senator Kroft was referring to. It does not seem to arise, partly because the house is not really organized on rigid party lines. I think people would have the sense, perhaps, not to vote, though they might well make a contribution.
For instance, we had a peer who was on the board of Times newspapers and frequently made a contribution on debates, which people might have thought were in the interests of Mr. Murdock. There is very rarely the opportunity to vote on matters of that sort.
However, I agree this is not an answer that satisfies me and is unlikely to be satisfying you either.
Senator Stratton: Thank you. It does not.
Senator Joyal: We have two rules in our standing orders. Rule 65(4) reads as follows:
A senator is not entitled to vote on any question in which the Senator has pecuniary interest not available to the general public. The vote of any Senator so interested shall be disallowed.
Do you have a similar standing order?
Mr. Keith: We do not have a standing order but it is tantamount to that. That predates the code of conduct. That has been the case for a very long time.
Senator Murray: Surely that would cover the corporate director who was about to vote on a bill or an amendment to a bill that affected the interests of the corporation?
Mr. Keith: Well, not necessarily. It would have to be a direct personal interest. If it were a direct personal interest, he ought not to vote. However, he is acting on his honour, fundamentally, and the house is a self-regulating chamber so it would have to deal with it. However, it would be dealing with it in light of the fact that he declared or it was well known because he had registered the interest in question.
As Lord Williams says, it is difficult to imagine the circumstances. You do not often get a bill, in which, for example, someone who is a member of the house and who owns a piece of land is directly affected. However, if there were a bill whereby a piece of land owned by a member of the house was to be acquired and he was to receive a significant amount of money thereby, he would not be expected to participate in any of the proceedings in respect to that.
Mr. Williams: It is a linked question, and I repeat candidly that there is not a perfect answer, except that it has not been a problem, and so that is pure pragmatism or impure pragmatism. There is no way, subject to Mr. Keith's correction, that that vote would be disallowed. The member might be censured by the rest of the house, but then, as you would say, too late. It has not arisen. If it did arise, we would have to look carefully at whether the code is sufficient.
The Chairman: I am not sure it has ever arisen in Canada. It is in the Rules of the Senate of Canada, but I cannot think of an instance where that rule was used.
Senator Di Nino: Perhaps this is an appropriate time to ask a question of Lord Williams. The discussion that just preceded my comments would reflect the fact that the Canadian Senate is somewhat different than the House of Lords. We are much more political. We are certainly much more partisan. We do receive remuneration as well as expenses. I am not sure that you had an opportunity to reflect on that when you were kindly coming to visit us.
Are there components to the House of Lords' code of conduct that, in your opinion, would not apply? During your discussion, would you have come across certain aspects of a potential code of conduct that would be more appropriate to the Canadian Senate?
Mr. Williams: I am always extremely cautious about other people's experience. I have only had the process described to me; I have not actually lived it. That is quite important.
What we wanted to do was to avoid any partisan aspect of having the code or policing the code, operating the code. By and large, people do try to behave in a non-partisan and honourable way. We have very few sanctions. ``The noble Lord be no longer heard'' is one of them. That has only happened once in the time I have been there. I have never known anyone to vote on a matter of personal financial interest. If you have a system that is much more politicized, then the opportunity for using complaints in an ignoble way is much more significant.
Senator Di Nino: That is a serious concern that myself and some of our colleagues have been discussing.
Mr. Keith referred to a duty to list or a duty to declare. We are not looking at including — at least not yet — relatives other than immediate family and friends. Even in the question of spouses, et cetera, is there a test on this duty to declare? Should one know, or is the test ``ought to have known''?
Mr. Keith: You have a duty under the code of conduct to declare any relevant interests, financial and non-financial. The member takes a view, and he may come and discuss with me what constitutes a relevant financial or non-financial interest. He has that duty, whether or not he is aware of it, by virtue of being a member of the house. That duty goes with being a member of the house.
Senator Di Nino: I understand that. However, the duty is only applicable if the member is aware of a circumstance. If the member is not aware of a circumstance, and this is when I talk about the test — that has to be some safeguard in the rules that would not catch this person, particularly in the case of the House of Lords. When you talk about friends, that is a huge, deep hole, as far as I am concerned. Even in regard to relatives, say, a brother-in-law who happens to own a piece of land the government wants to buy to build a new airport or something — there must be some additional definition of what it means to know, rather than just generally that it happened.
Mr. Williams: If you did not know of that interest, then it would not be a relevant interest, by definition, because it would not be capable of affecting your judgment or your cast of thought. Accepting your sub-theme, if it came to the fact that you never bothered to ask your spouse what he or she did for a living, people would probably say, ``Pull the other one.''
Incidentally, in the interests of transparency and openness, some kind soul has actually produced Senator Smith's friend's register, and it is quite large. However, I do not think he had any trouble remembering his directorships, and I do not think he had any trouble declaring them.
The Chairman: His list of friends might be enormous.
Mr. Williams: I will not say a single word.
Senator Di Nino: We will leave that one alone.
The rules contemplate that the person should know, rather than ought to have known, so that there is some safeguard there for the individual. This is something that we will be dealing with as we go forward.
Mr. Williams: That is part of the debate that we had with a number of people. The age profile in the House of Lords is quite elderly. They say, ``I have children, grandchildren, great grandchildren; I do not know what they do or what they own.'' My answer is, ``Well, if you do not know, then you cannot conceivably be influenced and, therefore, by definition, it cannot be a relevant interest.''
Senator Di Nino: Mr. Keith, does the registrar ever play any proactive role in identifying potential areas of difficulty for a member of the house, as opposed to the member going to you? Is there any opportunity for you to go to a member and suggest that he or she may wish to consider an opinion of yours?
Mr. Keith: The answer to that is no. I have only approached members to remind them of their obligations to fill in their form. From time to time, it slips members' minds that they have to fill in a form or have let it get a little bit out of date or whatever. There are over 700 members in the House of Lords. I cannot possibly and I do not want to know what all their individual interests are. I have no desire to chase them.
When I gave evidence to your video conference, it was on a particular day when I felt I could not safely walk down the corridor without members seeking me out because they wanted to have a quick word or not such a quick word.
On the whole, I do not feel it is my duty to discover their interests or catch them out or even to suggest to them that they should do that. The onus is on them to come to me. I have quite enough to do without chasing members.
The Chairman: Before I go to Senator Rompkey, what are you doing about the two of the 700 who have not declared?
Mr. Keith: I write to them frequently. We are applying this code of conduct with a light touch. We are not keen to be seen by members of the house to be oppressive or burdensome.
I know, because the leader has announced it both in the chamber and to the relevant house domestic committees, that this review is taking place after the summer recess. One of the issues to put before the review body will be this question of the two individuals who have not declared.
The Chairman: The two intransigents.
Mr. Keith: I cannot say that.
I am quite keen to put this into context. When I arrived in this position at the end of last September, there were 28 members of the house who, for one reason or another, had not complied with their obligations to register. The first thing I did was to write them all a letter.
In reply to that letter, about six people wrote, ``Oh my goodness, I am terribly sorry, I just forgot'', or ``Yes, I knew I had to do it, but I never got around to it. Thank you for reminding me.'' That got it down to a smaller figure. A second letter just before Christmas got it down to single figures. More letters got it down to the present number of two.
It is a question of plugging away quietly and calmly. At the end of the day, if I wanted to, I could go to the subcommittee and say that there are two members of the house who simply have not answered my letters or will not comply with their obligations. I will not name these members and Lord Williams, as far as I am concerned, does not even know their names, but any industrious person can work out who they are. You need only go on the Internet and compare the 708 names on one page with the 710 on the next page listing all the members of the house.
Senator Rompkey: Senator Di Nino has described very well differences between the House of Lords and the Senate. Bearing in mind the differences that he expressed, I want to go back to whether the ethics commissioner should be statute-based or resolution-based. I was interested in the comment of Mr. Keith, both previously and again today, that the British House of Commons has some fear of judicial oversight and that, therefore, a resolution-based commissioner is preferable to a statute-based one.
As Senator Milne has said, the bill that will come to us is for a statute-based commissioner. As far as we know now, unless there are some amendments we do not know about, the House of Commons will send that to us, including their statute-based commissioner. We then, as Senator Di Nino has described, paid out of the public purse, better than the average Canadian, and therefore owing some responsibility and some transparency, if we do it by resolution, as you have done, will have to explain to the Canadian people why our chamber is different, not only from the House of Commons but also from most other legislatures in the country, bearing in mind that we are the chamber not necessarily the most adored by all the people of Canada. There have been people trying to abolish us since 1867, and some are still trying to do that.
I draw that context. I know, as you said, Lord Williams, that you do not necessarily want to comment about other chambers that you have only heard about by inference. However, I should like some discussion about the situation in which we find ourselves.
Is the issue of judicial oversight of a statute-based appointment so serious that we need to have fear of it? We have heard some testimony from provincial commissioners that, in fact, while there may be some fear, it is rather remote.
Mr. Williams: I would respond by asking a question: What is the mischief, real or perceived, that the remedy is designed to meet? Perceived may well be as important as real. If the Canadian public were to feel dissatisfied with resolution rather than statute, then it seems to me that politically and pragmatically one would have to meet those concerns by going to statute rather than resolution.
There was not, in fact, a great public swell of opinion about the House of Lords. It was I who initiated it because I thought we ought to get our house in proper order. Therefore, I looked at our mischief, real or perceived, and we tried to get a proportionate remedy.
I do not think, quite candidly, that the judges would welcome a possible source of conflict or abrasion between the judiciary and the sovereign Parliament. I believe that we have a proportionate remedy and, if experience shows that it does not work, we shall have to think again, but I would very much doubt that we would need to go a statutory route with the involvement of the courts.
That is the best I can offer. If the public will not be satisfied by what they think is a half-baked measure, then politically there is no point in having the half-baked measure, because you end up with the worst of all possible worlds.
The great concern we wished to avoid was people using it as a political football to score points, which was why the complaint, in the first instance, must be made in private. There were a number of complaints made about members of the House of Commons out of pure mischief. The headlines would run for two or three days. The fact that the complaint was discharged or dismissed never features in the headlines.
Senator Rompkey: Perhaps Mr. Keith would like to comment on the attitude of the House of Commons and why they fear a statute-based commissioner.
Mr. Keith: I should like to quote briefly selected passages from a recent report on the standards of conduct in the House of Commons, conducted by what has now become a permanent body in the United Kingdom, the Committee on Standards in Public Life. This is a permanent committee that looks not only at Parliament, but also at standards across the board in public life. They have been doing some further work on standards of conduct in the House of Commons, with particular emphasis on this question of whether the commissioner of standards should be appointed externally or whether he should be an official of the house.
I earlier quoted the recently retired clerk of the house as saying that if we begin to expose some aspects of the house's self-regulation to judicial review, it will creep and the judges will, perfectly rationally, as they would see it, move further and further into the heart of parliamentary decision making. This would lead to a potential loss, in multiplying the number of judicial tanks on the parliamentary lawn. That is the first side of the coin.
The counter-argument is one that I think the people who wrote this report were more in favour of, and one which would go some way to reassuring you. They quote some academics, lawyers and others as saying that external appointment would not necessarily undermine the principle of parliamentary sovereignty. They agreed that Parliament was sovereign in the sense of being the supreme law-making body, but they suggested that the system for judging the fitness of members of Parliament to take part in the law-making process could properly be separated from the sovereignty of that law-making process and the consequent doctrine of parliamentary privilege.
They then quoted various people to the effect that, if you look at the outside world, it is now taken for granted that there is an independent element in matters of complaint and disciplinary processes. They went on to quote, as examples, British medical association and various other professional associations.
They summed all this up by saying that, even in the United Kingdom, Parliament will legislate, to a point, an external scheme of regulation for local government. They quote Peter Preston of The Guardian as saying:
...hundreds of local councillors...largely approve of the kind of disciplines that have been exerted. They feel they are working on the public behalf and that it has done them some good with their constituents.
The balance of that, I suggest, is to say that there are among clerks and people like me fears for the sovereignty of the chamber and the status of privilege, but perhaps in the real world today it is more acceptable to the general public and perhaps even to members of Parliament to have an external appointment.
Senator Rompkey: What is the evidence for those who fear judicial oversight of Parliament? Is there a wide body of evidence?
Mr. Williams: No, there never is for such things, in my experience. I think it is just a feeling. There is no real evidence. Going back to Senator Kroft's point, if you can make it work with a reasonably light touch do you need any heavy artillery?
Senator Murray: Lord Williams, is there a separate code that applies to you as a minister of the Crown?
Mr. Williams: Yes. You are given it on your first day at work. You are told what you must and must not do. It requires you to notify your permanent secretary of every shareholding, however modest. I am afraid I put down 200 shares of British Gas, which I would have been quite pleased with. In fact, they were in British Telecom, which almost became a non-profit-making Marconi. I simply made a mistake. You are not to deal in shares and things of that sort. If you have air miles, you are not to use them for personal business. You can give them to charity or use them for official business. There are all sorts of those things that bind you as a minister.
Senator Murray: Is that a public document?
Mr. Williams: It is a public document.
Senator Murray: It would be interesting to look at that some time, although it is not the immediate interest.
The Chairman: Who administers the code for ministers? There are ministers in the House of Lords, although we only have one minister at present in the Senate.
Mr. Williams: Essentially, it would be your permanent secretary or the cabinet secretary as the senior permanent secretary, and he might well write to you and say, ``Are you sure you have declared everything?''
Senator Murray: That is what we call the deputy minister in our system.
Mr. Williams: That would be the person administering it. If a question were raised by a member or the public, obviously the permanent secretary would come and say, ``Do you have shares in this company?'' My response would be: ``No, Williams is quite a common name in Wales, and it is another Williams.''
Senator Murray: Do you take your declaration with you when you move portfolio and give it to your new permanent secretary?
Mr. Williams: Yes, I believe so. I believe that when I went to my present job, having come from being attorney general, I reported to the permanent secretary, exactly the same. There was no change in it.
Senator Murray: There is such a revolving door of ministers here that that kind of information would be widely held.
Mr. Williams: I go on the basis that if there is nothing discreditable about it why not let everybody know, if they want to.
Senator Murray: Hypothetically, is there any possibility of conflict between the two codes, the code that governs you as a member of the Lords and the code that governs you as a minister of the Crown?
Mr. Williams: No. The ministerial code is much more rigorous.
The Chairman: Who draws it up?
Mr. Williams: It is a prime-ministerial document, a public document. I think Mr. Major published one, and then Mr. Blair published one that was brought up to date and probably more rigorous. If you are given gifts, for instance, you must declare it to your permanent secretary, even quite small ones. You cannot keep anything over 140 pounds, unless you pay the surplus yourself. It is tightly defined, even down to the class of travel you can have at public expense when you are on ministerial duties.
Senator Murray: That is in the code?
Mr. Williams: That is in the ministerial code.
Senator Murray: I will not pursue this, out of deference to sensitivities.
The Chairman: The person to keep an eye on that sort of thing in Canada would be the Clerk of the Privy Council.
Mr. Williams: I am quite happy, on the basis of my lifelong endeavour to cause mischief, to send you a copy.
Senator Murray: I may burn it.
Senator Ringuette: I was listening carefully and trying to grasp the many differences between the House of Lords and our Senate. At one point, you mentioned that you carry out activities on behalf of an industry or a sector of the economy. Would that be as a lobbyist? Am I interpreting that correctly?
Mr. Williams: Yes, you can do that. I could see eyebrows being raised around the table as Mr. Keith was talking about that. You can certainly be a parliamentary advisor and a member of the House of Lords. You can work for a lobbying company and be a member of the House of Lords also.
Senator Ringuette: In Canada, we have the Lobbyists Registration Act, and also some kind of code. Would you then also be subject to some lobbyist code within your Parliament?
Mr. Williams: We do not have a lobbyist registration act in the same way as in Canada or, I believe, in the United States, but lobbyists themselves, their own associations, have their own code of conduct.
Senator Ringuette: Is it also displayed publicly, as we do here?
Mr. Williams: It is well known and available to the public.
Mr. Keith: It is important to say that, if, for example, a member of the house were employed by a public relations company that did parliamentary work, he would not be entitled to participate in parliamentary activities relating to his own clients. He would not be prohibited from taking part in general parliamentary work that touched on the clients of the company as a whole. If his clients were, say, A, B and C, he would not be allowed to take part at all in debates and so on with relation to A, B, and C, but of course with respect to D all the way to Z he would be perfectly entitled to, provided he had properly registered his own personal clients.
If you look at our code of conduct, there may be a few dozen members who list the personal clients of the lawyers' firms or the public relations firms for which they work.
Senator Ringuette: In your complaint process, do the complaints originate from peers or from the public?
Mr. Williams: So far, there have not been any, but you have identified, I think, a point of difference. I thought myself, and made it quite plain, that anyone who made a complaint should be entitled to have that complaint looked at. The subcommittee took the view — again, against my opinion — that they wished it to be done through a peer. Now, normally, I suppose, with any complaint of any degree of seriousness, you could get a peer to make the complaint. That is not my point. My point is that if a complaint is made by anyone, it ought to be looked at. The subcommittee and I disagree on that.
Senator Stratton: Suppose someone gets angry with you or has a political point with you. How do you prevent that kind of event happening? Is there a certain bar or a level that you have to achieve with respect to that?
Mr. Williams: They always write to me, in green ink, underlined in red, and I am sure that is your experience as well. In fact, what we have said in the code is that the subcommittee will examine the allegation and may decide to investigate it further or dismiss it. If it were plainly trivial, from the Flat Earth Society, say, then we would dismiss it. However, I stress, we have not had any so far because we have only been going just over a year.
Senator Stratton: We heard from the commissioner from the Province of Ontario. He has been there for three years and has heard in the neighbourhood of 12 complaints, one of which proved to be something that he had to deal with, and he did so. The balance of the complaints was essentially dismissed. He is bringing forward amendments to the code so that there is a certain level or a bar that you must achieve.
While it is wonderful that you have not experienced a problem, the first thing we think of is that we are politicized. That may be the fundamental difference that I see, and perhaps you could comment on that. Inevitably, that would tend to arise. I do not believe it would be someone in the same chamber, but the public could say, ``You.'' The media is focused on you and, unfortunately, you are deemed guilty as a result, whether it is dismissed or not. That is the perception that tends to occur. Would you care to comment on that?
Mr. Williams: That is a real danger, not just the trivial, but the apparently serious but politically motivated and dishonest.
That certainly happened in the House of Commons. Many of the Commons members were quite bitter about it, because the allegation is what sticks in people's minds, not the fact that it was nonsense. We have not had to deal with it so far. It is easy to sift out the absurd or the trivial. It is more difficult to deal with the serious. That is why we have written in that the complaint — in the early stages anyway — should be treated confidentially. That is one way of doing it. You cannot stop the member of the public who is barking, publicizing it, and then you are left to the sanction of the law of defamation, if appropriate or if worthwhile.
The Chairman: I should point out that the committee in the other place has been talking about some of these things and is proposing to make some changes about frivolous, vexatious and bad-faith complaints, to try and rule those out.
Senator Fraser: Mr. Keith, I have been thinking about your role, and the more I think about it, the heavier the burden on your shoulders seems to me to be, because of the extraordinary importance in some cases of the discretion that you have to judge whether something is significant, whether something is relevant. I can understand that in view of the desire for a light touch all of those things would seem an important part of the system. At the same time, your decisions are assuming the importance of case law. You want them to build that kind of importance. While you are busy acting with great discretionary authority in a solicitor-client relationship, on a confidential basis you are also building case law, which would be binding on subsequent cases that may come along.
First, do you see any conflict arising now? I suspect that because the system is new it has not happened yet, but do you see as time unfolds this becoming a problem?
Mr. Keith: I do not know. Every time a member comes to me it is like going to the dentist. He expects first-class treatment, whether it is first thing in the morning or last thing at night. There is no excuse to say you have had a long day or are tired. You want to give him the right answer, but he wants a quick answer as well.
It is a burden in the sense that I do not feel able at the moment while we are building up the case law to delegate any of this to anybody else. We want consistency. We want members to get the same high-quality advice whatever the time of day or night, whoever the individual happens to be. I suppose Lord Williams and I should take the blame. When we drafted this code of contact he was not sitting in his present position and nor was I.
We thought that we needed to build up the position of the registrar, to give him this authority in order to encourage members to comply with the code. We wanted to have a strong registrar because we wanted people to comply with the code. The previous attempt to import a code of conduct into the House of Lords in 1995 largely failed because the committee looking at it at that time were far from certain that if they recommended a compulsory register of interests members of the house would pay the slightest bit of attention to it. Between 1995 and 2002, the composition of the house changed significantly, but even so, this code of conduct got through by three votes.
The previous chairman of the subcommittee on interests that oversees the operation of the registrar has expressed his fears for the position of the registrar. He thinks it is possibly too heavy a burden to impose on one person. He was a former judge. The fact is that this is where we are. It is working. We have got to be pragmatic.
There is a danger. Yes, I do see a danger. I will say to the review in the autumn that there is a danger that I will fall between two stools. I have got my obligations to the judges, we have our judicial duties — I have a lot of those to do. I am not always sitting at my desk when a member calls to seek advice. Equally, if I am spending a couple of hours a day giving advice on the register, I am not in the courts or with the judges or somewhere else. All I can say is that at the moment it works. Lord Williams says there are no complaints. I am happy to hear that. I think he would be first to hear them as leader of the house. We will take it forward slowly and perhaps see where we go.
Senator Fraser: Given that this case law is being built essentially in secret, in that it is confidential between you and the member concerned, if you have decided that something does not have to be registered, if it can remain a private matter, then it remains private. You may give then, building on the precedent that you have established, similar advice to a number of people.
What happens if the subcommittee then receives a complaint and goes to look at one of these cases and decides that you have been wrong? Does the subcommittee then overrule your ruling at least for the future? I understand that it is a defence for what has already occurred. Can the subcommittee then say to the member and other members, ``Go now and sin no more,'' or is the subcommittee stuck with the fact that you have decided that this is all right and nothing can change because of that decision?
Mr. Keith: In a perfect world, we would by now have managed to codify the case law. It was always envisaged by the team that produced the code of conduct that there would be codification. There would be a handbook for the use of members in which the general principles, as they had evolved up to the point of publication of that document, would be there to help members, to help the subcommittee and to help anybody who happened to be registrar. The House of Commons at Westminster have got to that stage because they have been going a bit longer than us on this. They have produced a document called the Code of Conduct, which is a short, two-page set of principles, plus the guide to the rules relating to conduct of members — roughly 80 pages. There are a lot of pages of glossary, comment and explanation. I hope that we will get to that position fairly soon. Then, if your problem arose — that the subcommittee wanted to change the position or overrule the advice given — it would change that.
Senator Fraser: Is it possible for us to have a copy of that guide, Madam Chair?
Mr. Keith: This is the House of Commons guide at Westminster, and you are very welcome to have it.
Senator Fraser: I should also like to see the questionnaire that you give to the members of the House of Commons.
Mr. Keith: Let me give you all of those now.
The Chairman: When we are finished our questioning, Mr. Keith, we will see that members get a copy.
When you are no longer the registrar and someone else takes over the job, what will happen vis-à-vis this body of case law that you have privately developed that the new registrar is not really on top of?
Mr. Keith: As I say, I hope it will be in a booklet, which will be a comprehensive statement of the law or the position to which we have arrived at when my successor takes over. That is something that the review the leader of the house has promised for the autumn will have to look at. As I say, if it were not for the fact that I am also involved in doing other things I would go away for a month and produce something like that.
Senator Joyal: You mentioned earlier on in previous questions that you are dealing with 700 peers. Is that right?
Mr. Keith: Yes.
Senator Joyal: What is the size of your clerical support?
Mr. Keith: I wish you had not asked me that question. I can tell you the answer because I have just had to produce that information for the House of Lords, and more important, public accounts, which is published each year in July. The registrar's office consists of himself and one secretary.
Senator Joyal: To deal with 700 peers, there is you and a secretary.
Mr. Keith: Essentially. I have to say that, as judicial clerk, I have a large staff, a staff of 28.
Senator Joyal: Yes, but that is for your other work.
Mr. Keith: That is for other work.
Senator Joyal: We are trying to visualize the size of your responsibility as registrar for the purpose of the code of conduct. What is the size and the amount of money that is budgeted.
Mr. Keith: It is two people, a secretary and myself.
Senator Joyal: If you were to have only 105 peers, we would understand that you could deal with that with exactly the same kind of support staff.
Mr. Keith: Yes.
Senator Joyal: Easily?
Mr. Keith: Yes.
Senator Joyal: In relation to Lord Williams' statement, you touched my curiosity when you said that if a Lord comes to see you and says that he or she does not know what their son-in-law or grandnephew owns, your response would be, ``If you do not know, do not bother with it.'' The problem I have with this approach — very politely and humbly said — is that when I read the code, there is an objective criterion to judge the relevant interest. The objective criterion, as you stated yourself in your presentation, is what a reasonable person from the public would feel to be important.
I saw you laughing. I think you see me coming. It means that you cannot plead ignorance as a defence to the objective criterion that a reasonable person, placed in the same position, would presume that you would know. How would you reconcile the criteria of the code and that light approach that you seem to suggest that you would take in such a circumstance?
Mr. Williams: Quite easily. A reasonable person is someone who has familiarized him or herself with the nature of the interest. The nature of my interest, if I do not know that my daughter has anything, is nil. If I do not know that she has stocks and shares, if I do not know she owns land, if I do not know of her interest, a reasonable member of the public would have to come to the conclusion that I could not possibly be influenced by something that I do not know.
Now, it is true that if you had a prominent politician, for instance, and his son worked for a company that had received contracts from the government — I am a keen reader of the newspapers, the Globe and Mail — some might well say, ``We simply do not accept that you did not know.'' However, if you do not know, you cannot be influenced in the nature of things.
Senator Joyal: In other words, the criterion is a subjective application in the context of determining a person's position with the same status, because it comes back to the idea that if I do not know I could not have been influenced in my voting or in my taking part in the debate and expressing views. However, since the objective of the code is transparency, as you said, with which we all agree, there has to be an element of assurance to the public that — especially when you put such a large horizon of relatives and friends — a person put in the same position would have known that that interest could have influence. It is the perception that we are dealing with here. We are not only dealing in practical terms whether that person has been influenced.
I may be wrong, but I thought the criteria would have been how a person in the public reading that would react. In other words, it is not necessary to commit the conflict of interest behaviour, it is the perception that the public would have that, in fact, he or she says they are not influenced but a person put in the same position would have known.
Mr. Williams: However, you cannot be influenced by something that you do not know. It is not a concept that is capable of existing. Assuming my wife had been given an inheritance of 5 million pounds and I do not know about it and I do not know what she has invested it in — I do not even know of its existence —
Senator Fraser: You really do not? You are asking us to assume that the public would not have difficulty believing that you did not know that.
Mr. Williams: Of course. Then the complaint would be brought forward, and the subcommittee would look at it. They would need to take evidence from me and from my wife. She might say, ``I have a blind trust in the Cayman Islands and he does not know anything about it. That is why I put it there, because I did not want him to know anything about it.''
Suspicion is not sufficient. It may be sufficient to raise the complaint; however, you then have to have an adjudication — as a matter of fact, did he know or did he not know? I do not know all my friends' interests, but I have a particular friend, for instance, who has a film company. Now, I know that. What his other shareholdings are, if any, I have not the slightest idea. I do not think it is a real difficulty.
One of the peers raised the question that she had been principal of a college in Oxford for years and, therefore, had many friends who correspond with her from all over the world. She said, ``I do not know what their interests are. They live in remote places like Australia and Ottawa.'' If she does not know, there cannot be a reasonable perception of a conflict of interest.
The Chairman: I would perhaps point out that one of the reasons that some of these questions will not arise in the proposed Senate code is that it is based on the Milliken-Oliver report. One of the things it did not do — it had a lot of discussion on whether something would be relevant or not, and they decided not to get into that, because all private interests, as defined in the report, would have to be disclosed and then everything except certain listed items would be made public. Therefore, whether it is relevant or not relevant, in the proposed code, at any rate, does not enter into it.
Senator Joyal: Your code of conduct deals essentially with the principles and, of course, the registry.
The Chairman: Senator Joyal, perhaps you could ask that question privately later. My watch says 6 o'clock exactly.
I want to thank our witnesses very much, before I have to bring down the gavel, for coming all this way to appear before us today. It has been most enjoyable.
Mr. Williams: It has been enjoyable and fascinating. We all have similar problems, but we shall not find identical solutions. I do not think we should try to straightjacket ourselves into the same solutions.
The committee adjourned.