Brison rise on a question of privilege in relation to the 10th report of the Standing Committee on Finance.
Monday, February 07, 2011
House of Commons Debates
OFFICIAL REPORT (HANSARD)
Monday, Februaru 7th, 2011
Hon. Scott Brison (Kings—Hants, Lib.):
Mr. Speaker, I rise on a question of privilege in relation to the 10th report of the Standing Committee on Finance.
In our system of responsible government, the government must seek Parliament's authority to spend public funds. Parliament, in turn, has an obligation, a responsibility to hold the government to account and to scrutinize the government's books.
Recently, this government impeded the work of the Standing Committee on Finance by hindering its attempts to better understand the federal government's budget projections.
As you know, Mr. Speaker, Standing Order 108 empowers committees to send for persons, papers and records. House of Commons Procedure and Practice, second edition, describes Parliament's right to order the production of documents as a right that is “as old as Parliament itself”.
On November 17, 2010, the Standing Committee on Finance passed a motion ordering the Government of Canada to provide the commitment with five-year projections of total corporate profits before taxes and effective corporate tax rates from the 2010-11 fiscal year until the 2014-15 fiscal year, inclusive.
The November 17 motion also ordered the government to provide the committee with certain financial information pertaining to justice Bills C-4, C-5, C-16, C-17, C-21, C-22, C-23A, C-23B, C-39, C-48, C-50, C-51, C-52, S-2, S-6, S-7, S-9 and S-10.
Among other things, the motion specifically requested:
detailed cost accounting, analysis and projections, including assumptions, for each of the bills and Acts, conducted in accordance with the Treasury Board Guide to Costing.
The motion established a deadline of seven calendar days, which ended on November 24, 2010.
On November 24, the Department of Finance replied to the committee with the following. I will read the department's response in its entirety. It stated:
Projections of corporate profits before taxes and effective corporate income tax rates are a Cabinet confidence. As such, we are not in a position to provide these series to the Committee.
The government provided no further information to the committee before the deadline.
On December 1, 2010, one full week after the deadline, the committee received a letter from the Department of Justice regarding projected costs of the justice bills. Again, I will read the department's response in its entirety. It stated:
The issue of whether there are any costs associated with the implementation of any of the Government's Justice bills is a matter of Cabinet confidence and, as such, the Government is not in a position to provide such information or documents.
On December 7, 2010, after the government had refused to provide the information ordered by the committee by the established deadline, I provided the committee with written notice for a motion by which, if passed, the committee would draw the attention of the House to what appeared to be a breach of its privileges.
On December 10, 2010, perhaps in response to the written notice I had written on December 7, the committee received an additional response from the Department of Finance.
In its response, the department stated:
To the best of its knowledge, the Department of Finance has determined that “series” or projections of corporate profits before taxes or the effective corporate income tax rates have never been previously disclosed. These projections are from a comprehensive economic and fiscal projection that constitutes a Cabinet confidence. As a result, the Department of Finance has not been in a position to provide these "series" to the Committee.
This response appeared somewhat dubious. For, if any member of the House or if any Canadian wishes to Google the phrase “corporate profits before taxes” and restrict their search to the domain of the Department of Finance's website, he or she would get exactly two results: the HTML and PDF versions of “The Economic and Fiscal Update” from November 2005, in which they would find, on page 83, that the previous Liberal government had actually published projections of corporate profits before taxes from 2005 until 2010.
At this time, I would like to seek unanimous consent to table page 83 of “The Economic and Fiscal Update” from November 2005.
Hon. Scott Brison: Mr. Speaker, I believe Canadians will have to rely on technology to find that information by Googling corporate profits before taxes and simply restricting that search to Finance Canada.
Not only have these projections been previously disclosed, they were disclosed by the Department of Finance itself under the previous Liberal government in November 2005.
The Standing Committee on Finance has an unambiguous and unlimited right to access the information it has ordered from the government.
As pointed out in the Speaker's ruling of April 27, 2010:
—procedural authorities are categorical in repeatedly asserting the powers of the House in ordering the production of documents. No exceptions are made for any category of government documents, even those related to national security.
In that ruling it was also noted that at page 281 of Bourinot's Parliamentary Procedure and Practice in the Dominion of Canada, fourth edition, it states:
But it must be remembered that under all circumstances it is for the house to consider whether the reasons given for refusing the information are sufficient. 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 be at once laid before the houses.
O'Brien and Bosc, at page 83, refers to a list of types of contempt of Parliament. Included in that list is:
without reasonable excuse, refusing to answer a question or provide information or produce papers formally required by the House or a committee;
In its replies to the committee, the government has said that it cannot provide the information the committee has ordered because of cabinet confidence. On what grounds is this information covered by cabinet confidence? On this matter, the government has been completely silent. No cogent reason or reasonable excuse has been provided. Instead, the committee has been left guessing.
What we do know is that in 2005, the previous Liberal government recognized that the projections of corporate profits before taxes were not covered by cabinet confidence. Such projections are not considered a cabinet confidence when, as is the case with Finance Canada's revenue model, these projections are used by the department in a manner that is not exclusively related to cabinet operations.
Therefore, what has changed between 2005 and today? On what grounds is the government claiming that these projections are now a cabinet confidence where before they were not?
With respect to the costs of the justice bills, we know that due diligence would have required that cabinet consider the cost implications of each of these bills before making a decision to proceed with each bill. Particularly today with a record $56 billion deficit, we would hope the government would carry on this type of due diligence.
We know that under normal practice, an analysis of the cost implications of each justice bill would have been included with a memorandum to cabinet prepared for each bill.
Section 69 of the Access to Information Act tells us that such analysis and background information is not a cabinet confidence if the cabinet decision to which the analysis relates has been made public.
Furthermore, in the Ethyl case, the Federal Court has been clear. This analysis and background information can be severed from a protected document and disclosed.
Legislation goes to cabinet for a decision before it is introduced to Parliament. The very act of introducing government legislation in Parliament is a public declaration of cabinet's decision to support that legislation. Therefore, the cost estimates for the justice legislation are no longer a matter of cabinet confidence.
Page 137 of O'Brien and Bosc states from a report of the Standing Committee on Privileges and Elections in 1991:
It is well-established that Parliament has the right to order any and all documents to be laid before it which it believes are necessary for its information.
...The power to call for persons, papers and records is absolute, but it is seldom exercised without consideration of the public interest.
The previous government recognized that it was in the public interest to publish projections of corporate profits before taxes. How would bringing these projections under cabinet confidence serve the public interest? The fact is that the public interest is not served by this change in the government's application of cabinet confidence.
In his testimony before the Standing Committee on Government Operations and Estimates on February 1, 2011, the Parliamentary Budget Officer offered recent examples of where the public interest was served by the government's publishing details on additional planned resources for government programs and spending restraints before Parliament was asked to provide the financial authorities.
The Parliamentary Budget Officer went on to note:
This raises the question as to why the application of cabinet confidence with respect to restraint measures appears to have changed in a relatively short period of time.
Withholding the requested information from the committee clearly does not serve the public interest. In fact, withholding this information impedes Parliament's ability to fulfill its duty, responsibility to scrutinize the estimates, and to hold the government to account.
With that in mind, the government's claim that the requested information cannot be provided to the committee is without merit. Furthermore, the government's refusal to provide the information constitutes a breach of the House's privilege.
The government's refusal to provide a reasonable excuse as to why this information should be withheld also constitutes a contempt of Parliament.
Mr. Speaker, I would like to close by quoting from your April 27, 2010 ruling on the question of privilege surrounding the provision of information to the Special Committee on the Canadian Mission in Afghanistan. You 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.
In this case the House of Commons' efforts to hold the government to account have been unduly frustrated by the government itself.
I am therefore prepared to move an appropriate motion if, Mr. Speaker, you find a prima facie question of contempt.