C-38: A breach of privilege?

by Aaron Wherry

NDP House leader Nathan Cullen rose after QP this afternoon on a point of privilege to argue that the Conservatives were in breach of the House for failing to disclose information about spending cuts to be carried out as a result of C-38.

Here is a copy of the letter Mr. Cullen sent to Speaker Scheer earlier today to explain his concerns.

And here is the transcript of Mr. Cullen’s comments in the House (and Peter Van Loan’s response).

Nathan Cullen: I bring forward a question of privilege after significant work and research with regard to the bill we have before us in Parliament. I bear your consideration, Mr. Speaker. A letter will be forthcoming to your office to outline and explain the specific details, but we believe we do have a prima facie case of privilege. We have looked at this with very careful consideration, and I would like to thank my team for putting this together under difficult circumstances.

There are many charges of contempt that go on within this place and not all of those are privilege, but every finding of privilege is in fact a contempt. The definition of this is that the powers of Parliament to do its job, to do three things in particular: to legislate, deliberate and hold the government to account, are paramount to all of our work. We know through the very constitution itself that the exclusive legislative authority of the Parliament of Canada extends to all matters coming within the classes of subjects hereinafter enumerated: 1(a) the public debt and property; 2(a) unemployment insurance; (8) the fixing of and providing for the salaries and allowances of civil and other officers of the Government of Canada. This will be the focus of our point with you this afternoon, Mr. Speaker.

We have also confirmed this all the way to the Supreme Court of Canada in Canada v Vaid in 2005, that the supremacy of Parliament to do its job in this regard is paramount and cannot be confined nor restricted. O’Brien and Bosc on page 59 confirm this in that this right, this privilege can be broken either individually for members or collectively for us as a group. We include very explicitly that the privileges of members of the governing side have also been infringed by the process that has been taken on through Bill C-38.

Page 61 of O’Brien and Bosc states: The privileges of Members of the House of Commons provide the absolute immunity they require to perform their parliamentary work while the collective or corporate rights of the House are the necessary means by which the House effectively discharges its functions.

Mr. Speaker, we have built our case and are confident that you will find in this that the breach of privilege conducted here is significant enough to warrant a decision from you, hastily, after other parties have had their opportunity to intervene.

In one of the last rulings by your predecessor, Speaker Milliken, on April 27, 2010, in ruling on the question of privilege surrounding the provision of information to the special committee on the Canadian mission in Afghanistan, Speaker Milliken said: “In a system of responsible government, the fundamental right of the House of Commons to hold the government to account for its actions is an indisputable privilege and in fact an obligation”.

Herein lies our privilege. We have used every available tool to the opposition through questions on the order paper, requests through the Parliamentary Budget Officer, questions at question period and at committee directly to the ministers pertaining to this issue, to understand directly and implicitly the impacts of the legislation that the government has been moving forward through its budgets and explicitly about what the cuts and implications will be for its budget measures, cuts to either services or to the number of employees who will be affected.

Allow me to say this, Mr. Speaker, and it is extremely important for your ruling, there is no dispute from the government side that the numbers in fact exist. The government is well aware of what the impacts will be on Canadians and has in fact publicly declared that the information exists. We heard from the President of the Treasury Board himself. He said in an interview with a reporter on May 9 of this year that he would like to release more information but was held “…’hostage’ to parliamentary reporting procedures and labour contracts, which require notices to affected employees going out before cuts could be made”.

Essentially, the government is requiring members of Parliament to vote blind on the legislation coming forward. In our conversations with the Parliamentary Budget Officer and in his conservations with the government, he has explicitly requested the information that has been made available to him by right under the act that the government moved as its second act, the Federal Accountability Act. Various places in the act require the government to produce, in a timely and transparent manner, information that exists.

There are two reasons why the government may withhold this information. If the information is not accessible through access to information or if the information is confidentially provided to cabinet. The Clerk of the Privy Council has provided neither of those reasons. Herein lies the case of privilege, that in citing the reasons of confidentiality because of some obligations under the collective agreement with the various unions that make up the civil service—while I may say so is a unique moment where the government has actually cared about a collective agreement with anybody under their employ—the reason given by the Privy Council, the head of the civil service, is not a valid one.

It is not a reason that he can use to block information to the Parliamentary Budget Officer. That is not an exercisable reason under the act and it impedes parliamentarians from doing our work and we vote blind on the actual budget. There is no cabinet confidentiality and these are not pieces of information that have been denied through access to information. To say that this is critical to members of Parliament to understand before they vote on the budget is an understatement.

The government has moved a number of measures, within which are contained impacts on Canadian society, through the services and programs Canadians rely upon and directly through employees of the federal government and communities across this country. I would have expected members of the government to ask this question but they have so far been mute on this point.

In breaking the Federal Accountability Act, the government would once again show that perhaps the act was not worth the paper it was written on. This is the response we got from the Clerk of the Privy Council, in a letter written to the Parliamentary Budget Officer on May 15. It states:

But as indicated in the budget document, the government is equally committed to treating its employees fairly and respecting its contractual obligations. This means that departments could provide information to affected employees and their unions in the first instance, as required, under the applicable collective agreements. Once this has happened, then they will offer up to the Parliamentary Budget Officer and, through him, to parliamentarians the information.

The unions have been contacted and have publicly said to the government and to the Privy Council that it would not break their collective agreement, thereby taking away the sole reason that the government had to deny MPs their privilege.

Allow me to run the timeline and I will finish with this. The first thing members of Parliament sought to do was to request the information from the government, as is our obligation under the Standing Orders and as members of Parliament, to find out what the impacts of their bill would be. This would apply to any bill. Certainly on a bill as broad sweeping as this, it would be important. The government denied this, either through question period or at committee. We then sought information through questions on the order paper. That too was denied. We then sought information through the Parliamentary Budget Officer who is legally obligated and enshrined with the right to seek this information unless legally denied, which he was not. That too was denied from government. We are now at a place where we are being forced in some short time to vote on a bill whose impacts the government understands, but refuses to share with members of Parliament and those people whom we seek to represent. This is, by all definitions we can find, an infringement on the rights and privileges of members of Parliament.

If the House cannot hold the government of the day to account, then why have the House at all? If members of Parliament cannot do their jobs and cannot go back to their constituents with a clear conscience and understanding of the legislation that has been brought before us and its implications, then why are members of Parliament in the service of Canadians at all? They are not.

We seek this through you, Mr. Speaker. We carefully went through all the O’Brien and Bosc which offered us numerous points. Allow me one. On page 281 of Bourinot’s Parliamentary Procedure and Practice in the Dominion of Canada, it states:

The right of Parliament to obtain every possible information on public questions is undoubted, and the circumstances must be exceptional and the reasons very cogent when it cannot at once be laid before the Houses.

There is no such reason given by the government. The Conservatives do not deny that the information exists, that the cuts to services and programming for Canadians exist and are understood. They have said that, from the very senior bureaucrat, the person who works with the Prime Minister. The President of the Treasury Board has also said that the information exists. Their reasons for denying members of Parliament their right to this information have also been shown to be not true. All that is left in defence of this place and in defence of members of Parliament is you, Mr. Speaker, whose job and role it is to defend the institution, regardless of the sways of the political discourse that go on everyday. The institution requires us to have the information to both debate and vote with clear conscience and information. The government is denying that information. While this may be a pathology with the Conservatives, it does not give them the opportunity or the reason to deny members of Parliament these key and critical data. It is absolutely essential for us to maintain certain principles as best as we may through all of the discourse that goes on here.

The principle that we in opposition hold dearly is that our job, each and every day, is to hold the government to account. There should be those joined on the other side who share that principle because it is one that is shared by all of us. The Conservatives may heckle the opportunity to speak and they may suggest that there is not something of right and privilege here but they know better.

I remember the days when hon. members on that side stood for these principles. I remember the days when we in opposition worked with the government on its second piece of legislation, the Accountability Act, which we have quoted here today, that set up an institution which we agreed with the Parliamentary Budget Officer to seek and garner this information.

Now what do we have? We have a government that insists that members of Parliament should vote blind, that Canadians should simply trust them and that it is somehow good enough. This is not a right-left issue, this is right and wrong. The government knows it is wrong. It has the information and is denying Parliament and parliamentarians and the people we represent access to information that we need.

There is much more we could say, but I understand that time is pressing. I am therefore prepared to move an appropriate motion if you find a prima facie question of contempt.

Peter Van Loan: Mr. Speaker, I want to commend my friend for his novel and innovative approach on this question, but I think it actually ends up being so innovative that it is far off the mark.

First, I will start off simply by saying that I believe what he was saying is that we have to deal with this now because it is in the context of Bill C-38. I understand that is the context in which he raises his point of order.

Of course a point of order such as this has to be raised at the earliest possible opportunity. Bill C-38 was introduced into the House on April 26. We are now some month and a half later, so he is very late to raise this argument.

Second, he has not cited any particular section or provision of the bill to which he takes exception for which he says these important questions have not been answered. Once again, I think what he is talking about is not anything to do with any content of Bill C-38, so he is off the mark there.

Third, the kinds of measures to which he is speaking, moneys that are spent on programs and on personnel, are normally reported and approved by Parliament, not by a budget implementation act but rather through the appropriations bills which appear before this Parliament. That is the appropriate point for him to raise his questions. That is the process through which Parliament would report and provide the information he is looking for.

If he is looking for information more detailed than what is in one of those appropriation bills, that would be the point for him to raise those questions and raise those points. We are not currently dealing with an appropriation bill through this House. There is no appropriation bill outstanding before this House. I expect he may wish to return to his point of order some months hence when we have our next appropriation bill before the House if he feels he has not achieved satisfaction at that time, if he feels that the reporting mechanisms of the government have not been sufficient, but we certainly are not facing that situation in any way with regard to Bill C-38.

Therefore, I think his point is very far off the mark, but I would be happy to return if further submissions are required.

C-38: A breach of privilege?

  1. Nicely done Mulcair!

    Next up for the Harper government: appeal of the Federal Accountability Act.

    • Excuse me – that should have read “repeal” not “appeal” – and I read elsewhere that repealing or amending that Act is one of the changes being made via C-38. Should have known, given how little importance they put on accountability.

  2. You guys sure you didn’t mean Cullen when you voted for a leader? Because he rocks!

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