Committees / Witnesses

Evidence: extension of parliamentary privilege; termination of House staff following appearance before a committee

February 13, 2001

Debates, pp. 608-10

On February 6, 2001, Roger Gallaway (Sarnia–Lambton) rose on a question of privilege with regard to the termination of two employees of the Office of the Law Clerk and Parliamentary Counsel of the House of Commons some time after their appearance before the Standing Committee on Procedure and House Affairs in connection with its study on the confidentiality of the work of the Legislative Counsel. At that meeting, the Committee had adopted a motion assuring the witnesses that their testimony would be protected by parliamentary privilege.^[1] Mr. Gallaway argued that the termination of the two employees was a direct result of their appearance before the Committee and thus raised concerns regarding the immunity accorded to witnesses appearing before committees of the House; this, he suggested, could result in the reluctance of employees to appear before committees. Chuck Strahl (Fraser Valley) spoke to the need for the Board of Internal Economy of the House to address the issue of increased funding for Legislative Counsel. In addition, he contended that the matter was a staff relations dispute and therefore should not be debated on the floor of the House or in a committee. After hearing from other Members, the Speaker took the matter under advisement.^[2]

On February 13, 2001, the Speaker delivered his ruling. He stated that at the time at which the two employees had appeared before the Committee there was already a long-standing, ongoing dispute between them and management and that relations between the parties had already deteriorated considerably. Given this deterioration, the Speaker declared that he could not conclude that termination was a direct result of their appearance before committee and ruled that there was no prima facie breach of privilege. With respect to staff relation, he said that in conjunction with the statutory requirement for confidentiality of Board of Internal Economy discussions and as its Chair, he had a particular responsibility to uphold the integrity of the staff relations’ system created by a decision of Parliament and that this risked being compromised by ad hoc hearings in the Chamber or in committee. In addition, he stated that the need for increased resources for legislative services was an administrative matter and, as such, should be dealt with by the Board. The Speaker cautioned Members to be wary of situations in which they were asked to step into the role of ad hoc arbiters.

Decision of the Chair

The Speaker: The Chair will now deal with the question of privilege raised by the hon. Member for Sarnia–Lambton on February 6, 2001. The question of privilege concerned the departure from the House of Commons of two Legislative Counsel who had appeared last spring as witnesses before the Standing Committee on Procedure and House Affairs.

The hon. Member argued that the witnesses had sought, and had received, the assurance of the Committee that their testimony would be privileged and that there would be no reprisals for their testifying. He alleged that the departure of the two counsel was a direct result of their testimony and so constituted a prima facie case of privilege.

Before proceeding further, I would like to thank the hon. Member for Sarnia–Lambton and all Members who contributed to the discussion. In particular, I would like to draw attention to the comments of the Opposition House Leader (the hon. Member for Fraser Valley), the Whip of the Bloc Québécois (the hon. Member for Verchères–Les Patriotes), the House Leader for the Progressive Conservative Party (the hon. Member for Pictou–Antigonish–Guysborough), and the hon. Member for Pickering–Ajax–Uxbridge.

In his presentation, the hon. Member for Sarnia–Lambton provided a chronology of events that occurred subsequent to the Committee appearance of these two individuals and suggested that this chronology represented evidence that what he termed their “shotgun firing” from the House of Commons was a direct consequence of their appearance before the Committee. Thus, the hon. Member argued that this action constituted a prima facie case of privilege.

First, let me say that this is a matter that I take very seriously. The allegation, if it is founded, carries serious repercussions not only for the two individuals directly concerned but for the integrity of the committee system of the House as well as for the House’s reputation as a fair and just employer.

Furthermore, for my part as I render this decision, I am aware that I play two different roles in this situation. As the Speaker presiding over this Chamber, I must determine whether or not the hon. Member for Sarnia–Lambton has made a persuasive argument for this matter being judged a prima facie case of privilege. As the Speaker chairing the Board of Internal Economy, which is the employer, I am duty bound to preserve the confidentiality of Board discussions, particularly as they concern matters of staff relations which are, by their very nature, completely confidential.

The case before us is especially complex for it intertwines the issue of privilege with a complicated staff relations situation that predates any invitation to appear before the Standing Committee on Procedure and House Affairs. Added to this already difficult situation is the whole matter of resourcing of the legislative drafting function, an issue on which many hon. Members have strong opinions. Let me try to settle the differences of view in this situation.

As Presiding Officer in the House, it is my duty to act as the guardian of the rights and privileges of Members and of the House as an institution. Insofar as parliamentary privilege extends to witnesses, I have also to protect their rights and privileges.

So first I would like to deal with the issue of the intimidation of witnesses before parliamentary committees. It is clearly stated at pages 862 and 863 of Marleau-Montpetit’s House of Commons Procedure and Practice that the principles of parliamentary privilege are extended to witnesses when they appear before a parliamentary committee. I quote:

Witnesses appearing before committees enjoy the same freedom of speech and protection from arrest and molestation as do Members of Parliament… Tampering with a witness or in any way attempting to deter a witness from giving evidence at a committee meeting may constitute a breach of privilege. Similarly, any interference with or threats against witnesses who have already testified may be treated as a breach of privilege by the House.

In the present case, the hon. Member for Sarnia–Lambton has recounted a chronology of events and, based on this chronology, alleges a cause and effect connection between the appearance of two counsel before the Standing Committee on Procedure and House Affairs and their subsequent departure from the House. The hon. Member points out that the witnesses had asked for and had received assurances from the Committee that they would be protected by parliamentary privilege in the event of reprisals arising out of their testimony. He contends that this protection appears to have been ignored and argues that a prima facie case of privilege exists.

I am not going to review the chronology of the events presented except to say, with respect, that it is incomplete. As a review of the testimony of counsel before the Committee will reveal, the relationship between the employer and these employees was already in an advanced state of deterioration by the time these individuals testified. Were the appearance before the Committee the only circumstance to be considered in examining this case, there might indeed be a persuasive argument for concluding that this is in fact a case of reprisal.

However, things are not so simple. By the time of the testimony last spring, the employer-employee relationship was already characterized by acrimony and recrimination. The dispute between these Legislative Counsel and management was longstanding and continuing. Indeed, there were several issues that were the subject of complaint at the time counsel appeared before the Committee. Given these circumstances, the Chair must conclude that there is not a prima facie case of privilege.

The Chair would commend to all hon. Members the intervention of the hon. House Leader of the Official Opposition who cautioned against judging the situation having heard only one side of the dispute. At page 309 of Debates he said:

However, I have a problem with raising personnel issues on the floor of the House of Commons… When these two employees of the House appeared before the Standing Committee and asked for protection of the House, we did not understand that there were outstanding grievances between management and the employees… We ended up hearing a kind of rehash of the ongoing problems… we did not have the background knowledge to deal with… We should not handle a grievance process, in a public forum, on the floor of a committee or on the floor of the House of Commons.

The Opposition House Leader like any other member of the Board, and I remind Members that I was also a Board member in the last Parliament when this issue was raised there, is bound by the statutory requirement for confidentiality of Board discussions on this or any other matter, but we all feel a particular responsibility with regard to staff relations issues which, by their nature, must be kept completely private and confidential.

In addressing this most unfortunate situation the Board has been guided by the usual principles of human resource management and in seeking a solution we have made every effort to reach a fair and equitable settlement with the parties. In one case happily such a settlement has been possible. In the other case it has not been possible to reach agreement and the individual is now seeking redress through a third party tribunal, the Public Service Staff Relations Board. While the matter that is before the PSSRB is not, strictly speaking, sub judice, I would suggest that we should not interfere in that process but rather allow it to reach its own conclusions in due course.

Many hon. Members have been employers in their professional lives before being elected to this House. All hon. Members are now employers in their own right of staff here in their Hill offices or at home in their constituency offices.

I know that hon. Members will appreciate from their own experience that the most difficult and often the most delicate situation an employer can face is dealing with employees with whom there are irreconcilable differences.

Parliament has set out the terms of the employer-employee relationship here at the House of Commons. Labour relations are governed by statute, that is, the Parliament of Canada Act and the Parliamentary Employment and Staff Relations Act; by collective agreements with bargaining agents; and in this instance, by practice that is parallel to the professional norms governing counsel employed in the Public Service of Canada. Under the terms of this framework employees have the right to raise complaints and follow grievance procedures up to and including bringing matters before the Public Service Staff Relations Board. Individuals also have the right to seek redress through the courts.

As the employer of record at the House, the Board of Internal Economy is always mindful of its responsibilities in dealing with employee issues generally or, in certain circumstances, with the cases of individual employees. As the Chair of the Board, I have a particular responsibility to uphold the integrity of the staff relations system and to allow the procedures that have been set in motion to reach their conclusions unhampered.

Therefore, on a close examination of all the facts, I have concluded that to interpose into the system of existing safeguards, whether they be provided by the PSSRB or the courts, ad hoc hearings by Members of Parliament in the Chamber or in committee is in my view to compromise the integrity of the labour relations framework that was created by decision of Parliament.

Finally, a word about the need for increasing resources in the Office of the Law Clerk and Parliamentary Counsel. As previous Speakers have indicated, these matters are basic administrative issues and, as such, must be dealt with by the Board of Internal Economy.

I specifically draw to your attention the ruling given on October 23, 1997, with regard to a similar question of privilege raised by the hon. Member for Sarnia–Lambton. My predecessor, Mr. Speaker Parent, stated at page 1003 of Debates the following:

When dealing with similar questions, my predecessors have repeatedly indicated that these should be brought to the attention of the Board of Internal Economy and should not be raised on the floor of the House as a point of order nor as a question of privilege.

I take very seriously the ongoing concerns many hon. Members have regarding Legislative Counsel and I must reiterate that these concerns have been brought to the attention of the Board of Internal Economy and are being dealt with.

In summary, then, the Chair finds that there is no prima facie case of privilege in this instance. I hope that I have been able to throw some light on this complex series of unfortunate circumstances while respecting the confidentiality of information entrusted to me as a member of the Board of Internal Economy.

In closing, I would entreat all hon. Members to proceed with caution when dealing with staff relations matters. If we find that the procedures for remedy and redress are inadequate, then by all means let us address what is lacking in the existing safeguards and take corrective measures, but let us be wary of situations where we are asked to step into the role of ad hoc arbiters on individual cases.

I thank all hon. Members for their contributions and assistance on this important question.

On February 14, 2001, in order to provide clarification of his ruling after some Members had indicated to him that it had led to some confusion, the Speaker delivered the following statement (which is reproduced in extenso):^[3]

The Speaker: Since a few Members have indicated to me that the ruling I delivered yesterday on the question of privilege raised by the Member for Sarnia–Lambton had led to some confusion, I wish to provide clarification immediately.

At page 609 of Debates I stated:

In addressing this most unfortunate situation the board has been guided by the usual principles of human resource management—

The text should go on to read:

—and in seeking a solution the administration of the House has made every effort to reach a fair and equitable settlement with the parties.

I thank hon. Members for their attention.