Confidentiality of Committee Reports

By Austin, Jack | Canadian Parliamentary Review, Spring 2001 | Go to article overview

Confidentiality of Committee Reports


Austin, Jack, Canadian Parliamentary Review


Report of the Senate 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. …

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