At the time
this article was written Senator Jack Austin was chair of the Senate Standing
Committee on Privileges, Standing Rules and Orders.
In 1999 the contents of
certain Senate Committee reports appeared in the media before being tabled in
the Senate. As a result the Standing Committee on Privileges, Standing Rules
and Orders was asked to study the question of confidentiality. This
article is based on the Fourth report of the Committee tabled in the Senate in
April 2000 as well as a speech in the Senate by the Chairman of the Committee
on May 9, 2000.
Our report was based on two
references from the Senate. On October 13, 1999, a question of privilege was
raised by Senator Andreychuk based on the leak of a report of the Standing
Senate Committee on Aboriginal Peoples that appeared in the National Post
on September 11, 1999. The second question of privilege was raised by Senator
Bacon of the Transport Committee on November 24, 1999, and related to stories
that appeared in Le Soleil and The Toronto Star.
The Senate found a prima
facie breach of privilege in each of those questions and referred them to
the privileges committee. Senator Andreychuk asked the committee not to find
fault but to review the practice of committees and to make recommendations with
respect to the way in which committees and their chairs could endeavour to
reduce, if not avoid, questions of leaked reports. Senator Bacon wished the
standing committee to be more active in its investigation of her breach of
privilege, in particular because of the possibility of substantial damage being
done to various individuals as a result of the leak of the draft report.
The committee, in each of those
cases, reviewed the practice in the House of Commons as well as practices in
Britain and both the Senate and House of Representatives of Australia.
We found much to appreciate in
the British and Australian practice. In those jurisdictions, as a result of
their experiences, the practice has evolved to request the committee from which
the breach has been alleged to undertake, of its own motion, the first investigation
of that breach, the idea being that that committee is closest to the event and
therefore the committee should, immediately inquire into the possible causes of
the breach and the responsibility therefor.
That would not in any way
prevent any senator from raising the question in the Senate itself. However, in
the case where a committee reported to the Senate that it was undertaking an
investigation of the question of a breach, the Speaker would defer the debate
on the breach of privilege until the committee had made its report. That
particular committee would also be asked to determine whether the breach of
privilege caused any substantial damage.
This practice in the British
House of Commons and in the Australian Senate and House of Representatives, made
sense to our committee and we made such a recommendation in our report.
We had some additional
observations, with respect to the practice of committees. The level of
consciousness of the importance of committee confidentiality needs to be raised
substantially so we asked committee chairs to be more careful in the
circulation of their reports, not to circulate draft reports except to
senators, to number those reports, and to identify the people in the committee
room in camera. We asked committee chairs not to allow non-senators and
non-committee staff into the room except as they believe their presence is
necessary, not simply to let people sit around the room because they are staff
members of various senators. We asked that the attendance in committees in
camera be taken.
We have also put forward a
caution with respect to the employees of the Senate, those people who are
permanent employees. While there is a provision in their employment contracts
with respect to confidentiality, our suggestion is that there should also be
additional advice to them - although we have no fault to find, I want to say
immediately, with respect to the performance of Senate staff.
There is, however, the problem
of temporary people, people on contracts. These people come in because they
have a specialty or an expertise to contribute to the committee, but they are
not necessarily part of the Senate culture, nor do they adopt the Senate
culture or feel comfortable with it. One of our problems is that, in a number
of cases, people who have expertise also have points of view, and if they are
not comfortable with where the committee is going, they may decide to be a
little bit adversarial with respect to the way in which the committee is
handling its particular business.
Senator Pearson sent the
committee a letter raising various issues regarding in camera
proceedings. The committee found Senator Pearson’s letter quite relevant to its
work in this instance. The sixth edition of Beauchesne states that committees
should make clear decisions on how to circulate draft reports, on how to deal
with evidence and on the publication of their minutes.
We do not wish to interfere with
the discretion and the responsibility of the chairs of committees, the role of
the steering committees or the rights of the members, but it is important for
the chairs and the steering committees to agree in advance on the procedure for
handling in camera hearings and for discussing reports.
On the question of sanctions,
the United Kingdom and Australia take breaches of privilege very seriously.
There, if a member of the parliament is found in breach of privilege, the
member’s right to sit and to participate in the business of the chamber is
suspended for a period of time. That period of time is decided by the committee
and approved by the chamber. In addition, in those jurisdictions, a journalist
who is found to have leaked a report of a committee is normally found to be in
breach of privilege. Sanctions, usually relating to the right to be seen on the
precincts of parliament, are levied.
Let me quote from our April 2000
report, the procedure we think should be adopted by the Senate for dealing with
unauthorized disclosure of confidential committee reports.
26. (a) If a leak of a confidential committee
report or other document or proceeding occurs, the committee concerned should
first examine the circumstances surrounding it. The committee would be expected
to report the alleged breach to the Senate and to advise the chamber that it
was commencing an inquiry into the matter.
(b) While the committee would be required to
undertake an investigation of the circumstances surrounding the alleged leak,
the means, nature, and extent would rest with the committee. As part of the
inquiry, it is likely that the committee members, their staff, and committee
staff could be interviewed. The committee would be engaged in a fact-finding
exercise — to determine, if it can, the source of the leak. The committee
should also address the issue of the seriousness and implications — actual or
potential — of the leak. The committee would be expected to undertake this
inquiry in a timely manner.
(c) The committee investigation of the leak
would not prevent any individual senator raising a question of privilege in the
Senate relating to the matter. As a general matter, however, and in the absence
of extraordinary circumstances, it would be expected that the substance of the
question of privilege would not be dealt with by the Senate until the committee
had completed its investigation. Thus, if the Speaker finds that a prima facie
case exists, any consequent motion would be adjourned until the committee had
tabled its report.
(d) Individual senators would also be able to
raise questions of privilege in relation to the leak upon the tabling of the
committee report. In other words, while ordinarily a question of privilege is
to be raised at the first opportunity, no senator would be prejudiced by
awaiting the results of the committee’s investigation. Similarly, no action or
inaction or decision taken by the committee in relation to the matter would be
determinative in respect of the Speaker’s responsibility under the Rules of the
Senate to determine whether or not a prima facie exists.
(e) In the event that a committee decided not to
investigate a leak of one of its reports or documents, any senator could raise
a question of privilege at the earliest opportunity after the determination by
the committee not to proceed in the matter. Similarly, if a committee did not
proceed in a timely way, any senator would be entitled to raise a question of
privilege relating to the leak.
(f) When the committee concerned tabled its
report, the matter would ordinarily be referred to your committee by the Senate
if it discloses that a leak occurred and that it caused substantial damage to
the operation of the committee or to the Senate as a whole.
27. Your committee deplores all leaks of
confidential or in camera materials and information. In the case of committee
reports, there is a well-established principle that the chamber has the right
to be first informed of the report. Nothing in this report is intended to
depart from this privilege of the Senate. Nevertheless, there are some leaks
that may be more serious than others — such as those which compromise national
security or the security or confidence of witnesses; those which are designed
to influence or interfere with the drafting of a committee report; or those
which could be used to personal benefit. In order to give rise to sanctions, it
will ordinarily be necessary for the committee whose report was leaked to find
that the leak was both substantial and damaging. The committee must determine
this as part of the fact-finding process.
28. It should be emphasized that, under the
proposed procedure, the issues of parliamentary privilege and contempt will
continue to be dealt with only by the Senate itself. The committee whose report
has been leaked is merely engaged in a preliminary fact-finding process. If the
Speaker finds that a prima facie case of privilege exists, it will remain the
responsibility of the Senate to decide how to deal with it, generally by
referring the matter to your committee for detailed investigation and
recommendations. Sanctions will continue to be imposed only by the full Senate,
usually upon recommendation of your Committee.
29. While individual cases must be assessed on
their own merits, your committee reminds everyone that the Senate possesses a
range of options in terms of sanctions for breach of privilege and contempt of
Parliament. These include apologies, reprimands, censure, suspension, and
imprisonment. Your committee notes, in this regard, that the British House of
Commons has recently suspended members for the unauthorized and premature
release of committee reports. In appropriate cases, your committee will
consider recommending sanctions on senators and others persons who breach the
privileges of the Senate.
30. Your committee believes that new measures
and policies should be adopted by all Senate committees to preserve the confidentiality
of draft reports and other confidential or in camera proceedings. In this
regard, we suggest that serious consideration be given to the following
(a) that draft reports and other confidential documents
be individually numbered, with the number shown on each page;
(b) that each numbered report and other
confidential document be assigned exclusively to an individual, and always
given to that individual, and this should be carefully recorded;
(c) that if senators are to be given draft
reports or other confidential documents in advance of a meeting, or are to take
such documents away after a meeting, they be required to sign for them. Certain
documents, such as in camera transcripts, should only be able to be consulted
in the committee clerk’s office, with the chair’s approval;
(d) that the names of all persons in the room at
in camera meetings to discuss draft reports — including assistants, research
staff, interpreters and stenographers — be recorded, preferably on the record;
(e) that the chairs of committees ensure that
all senators and staff are cautioned and reminded of the nature of confidential
and in camera proceedings and documents, the importance of protecting them, and
the consequences of breaching such confidentiality....
Our committee hoped that the
unfortunate situations involving the reports of the Standing Senate Committees
on Aboriginal Peoples and on Transport and Communications act as reminders that
confidentiality must not be taken lightly. Without trust and integrity, the
Senate and its committees cannot function properly. The issue of
confidentiality is a complex one, and must be addressed in a number of ways.
Heightened awareness of the issue and contractual terms and undertakings are
part of the solution to protect confidentiality. Other measures, including
administrative ones, such as security arrangements for draft reports and in
camera meetings, should also assist. We appreciated that some of the
measures outlined above will lead to inconveniences. Nevertheless, the
questions of privilege of senators Andreychuk and Bacon led us to conclude that
they are necessary to ensure the integrity of Senate committee proceedings, and
to prevent further unauthorized leaks.
The premature and unauthorized
disclosure of committee reports undermines and compromises the work of the
Senate, its committees, and of senators. If the Senate is to work as an
institution, confidentiality must be respected.
Finally, I want to be
particularly clear on one point. The committee which I chair was not
recommending any action be taken against journalists. Freedom of the press and
the parliamentary conventions dealing with journalists in breach of privilege
have developed over a period of time. However, with respect to questions
of privilege we believe there is a more workable system than the one currently
in the rules and we have tried to set it out in our report.
note: The report of the Standing Committee on Privileges,
Standing Rules and Orders was adopted by the Senate in June 2000.