Committees / Mandate

Report: admissibility questioned for committee exceeding mandate

May 15, 2008

Debates, pp. 5924-5

On May 14, 2008, Jay Hill (Minister of State and Chief Government Whip) rose on a point of order with regard to the admissibility of the Seventh Report of the Standing Committee on Access to Information, Privacy and Ethics, presented in the House earlier that day. The Report had recommended amendments to the Conflict of Interest Code of Members of the House of Commons.^[1] Citing Standing Order 108, the Government Whip argued that the Code fell under the mandate of the Standing Committee on Procedure and House Affairs, and that the Report was therefore out of order. He added that at the meeting of the Committee, at which the Report was adopted, the Chair, Paul Szabo (Mississauga South), had initially ruled out of order the motion proposing that the Committee do so but that his ruling had been appealed, overturned and the motion adopted.^[2] Mr. Szabo, in turn, argued that the Committee had knowingly adopted a report on a subject matter that fell within the mandate of the Standing Committee on Procedure and House Affairs only because that Committee was not in a position to discharge its duties and because of the urgency of the subject matter of the Report. (Editor’s Note: The Standing Committee on Procedure and House Affairs did not have a duly elected Chair at the time and, therefore, could not conduct business.) After hearing from other Members, the Speaker stated that the particular circumstances of the Standing Committee on Procedure and House Affairs did not justify a committee’s exceeding the scope of its mandate pursuant to the Standing Orders. The Speaker then took the matter under advisement.^[3]

On May 15, 2008, the Speaker delivered his ruling. He affirmed that, as provided in the Standing Orders, the Standing Committee on Procedure and House Affairs was empowered to review the Conflict of Interest Code of Members of the House of Commons and recommend amendments to the relevant Standing Orders whereas the Standing Committee on Access to Information, Privacy and Ethics had a different mandate focussed on the operations of the Office of the Conflict of Interest and Ethics Commissioner. The Speaker emphasized that the fact that the Standing Committee on Procedure and House Affairs was not functioning did not justify another committee usurping its mandate. Noting that there were other mechanisms available to debate and resolve the matter at hand, he stated that the subject matter of the Seventh Report was not within the mandate of the Standing Committee on Access to Information, Privacy and Ethics and was therefore out of order. For this reason, he ruled that it be deemed withdrawn and that no subsequent proceedings be taken in relation to it. Accordingly, the two notices of motion for concurrence in the Report on the Notice Paper were also deemed withdrawn.

Decision of the Chair

The Speaker: I am now prepared to rule on the point of order raised on May 14, 2008, by the hon. Secretary of State and Chief Government Whip concerning the admissibility of the Seventh Report of the Standing Committee on Access to Information, Privacy and Ethics, which was presented to the House that day.

I would like to thank the hon. Secretary of State and Chief Government Whip for bringing this matter to the attention of the House. I also wish to thank the hon. Member for Mississauga South, the hon. Member for Acadie–Bathurst, the hon. Member for Scarborough–Rouge River, and the hon. Parliamentary Secretary to the Minister of Intergovernmental Affairs and Minister of Western Economic Diversification for their interventions.

In his detailed remarks on this matter, the hon. Chief Government Whip argued that the recommendations contained in the Seventh Report of the Standing Committee on Access to Information, Privacy and Ethics, which seeks to amend the Conflict of Interest Code for Members of the House of Commons, went beyond the mandate of the Committee and therefore should be ruled inadmissible. He pointed out that even the Chair of the Ethics Committee had ruled that the matter was beyond the Committee’s mandate, but that this decision was appealed and overturned by Committee members.

In his remarks, the hon. Member for Mississauga South acknowledged that the Standing Committee on Access to Information, Privacy and Ethics was well aware that the matter was outside of its mandate when it adopted its Seventh Report to recommend amendments to the Conflict of Interest Code. However, the hon. Member argued that the Committee was justified in doing so because the Standing Committee on Procedure and House Affairs, which has the responsibility to propose such amendments, was currently unable to discharge its duties in this respect. Furthermore, he stressed the urgency of the subject matter of the Report, contending that any delay in addressing those issues might unfairly restrict Members’ rights and privileges. In summary, he argued that there was no other possibility available to Members of the House to deal with this fundamental matter in a timely fashion.

In his comments, the hon. Member for Acadie–Bathurst agreed that this issue needed to be addressed as soon as possible. He also spoke of the well-recognized procedural principle that committees are masters of their own proceedings.

The hon. Member for Scarborough–Rouge River acknowledged that the Standing Committee on Access to Information, Privacy and Ethics exceeded its mandate in this matter, but suggested that it may have had sufficient procedural jurisdiction to render its Report admissible.

As noted by the hon. Secretary of State and Chief Government Whip, Standing Order 108(3)(a)(viii), which deals with the mandate of the Standing Committee on Procedure and House Affairs, states, “the review of and report on all matters relating to the Conflict of Interest Code for Members of the House of Commons”. I may add that pursuant to Standing Order 108(3)(a)(iii), the mandate to amend the Standing Orders, to which the Conflict of Interest Code is an appendix, also belongs to the Standing Committee on Procedure and House Affairs.

On the other hand, Standing Order 108(3)(h), which outlines the mandate of the Standing Committee on Access to Information, Privacy and Ethics, states at subparagraph (iii) that this mandate includes, “the review of and report on the effectiveness, management and operation together with the operational and expenditure plans relating to the Conflict of Interest and Ethics Commissioner”, while subparagraph (v) indicates, “in cooperation with other committees, the review of and report on any federal legislation, regulation or Standing Order which impacts upon the access to information or privacy of Canadians or the ethical standards of public office holders”.

Honourable Members will recall that the issue of the mandate of the Standing Committee on Access to Information, Privacy and Ethics was raised just a few weeks ago and was dealt with in a ruling that the Chair gave on March 14, 2008. I wish to quote again, as I did in that ruling, from House of Commons Procedure and Practice, at page 879:

Committees are entitled to report to the House only with respect to matters within their mandate. When reporting to the House, committees must indicate the authority under which the study was done (i.e., the Standing Order or the order of reference). If the committee’s report has exceeded or has been outside its order of reference, the Speaker has judged such a report, or the offending section, to be out of order.

As mentioned by the hon. Secretary of State and Chief Government Whip in his remarks, Mr. Speaker Parent offered clear guidance in the matter before us in his ruling given on page 5583 of the Debates of June 20, 1994:

While it is the tradition of this House that committees are masters of their own proceedings, they cannot establish procedures which go beyond the powers conferred upon them by the House.

This is a reality that continues to this day, a reality that cannot be simply set aside because of existing circumstances in another committee, or by invoking the urgent need to address a subject, or by arguing the gravity of that subject.

As hon. Members know, and as explained in House of Commons Procedure and Practice at page 857, decisions of committee Chairs may be appealed to the committee. However, as hon. Members may recall, in my ruling of March 14 last, I raised serious concerns about committees overturning procedurally sound decisions by their Chairs and the problems that may arise from such actions. I find it particularly troubling in this instance that the Committee chose to proceed as it did with the clear knowledge that what it was doing was beyond the Committee’s mandate.

Some of the arguments presented in this case suggested that the Seventh Report of the Standing Committee on Access to Information, Privacy and Ethics was the only venue possible to deal with this important and urgent matter in an expeditious fashion. In my view, there are other mechanisms available to debate and resolve the matter at hand. Furthermore, as I mentioned on May 14 when this issue was raised, the fact that the Procedure and House Affairs Committee is not functioning at the moment does not permit other committees to usurp its mandate.

I wish to remind hon. Members that the Chair can apply the rules of the House only as they are written. The subject matter of the Seventh Report of the Standing Committee on Access to Information, Privacy and Ethics is clearly not within the mandate of that Committee, as spelled out in Standing Order 108, and therefore, in my view, it is out of order.

For this reason, I rule that the Seventh Report of the Standing Committee on Access to Information, Privacy and Ethics be deemed withdrawn and that no subsequent proceedings may be taken in relation thereto. Accordingly, the two notices of motions for concurrence in this Report currently on the Notice Paper standing in the names of the hon. Member for Moncton–Riverview–Dieppe and the hon. Member for Halifax West will be withdrawn.

I thank the hon. Secretary of State and Chief Government Whip for having brought this matter to the attention of the Chair.