As the House of Commons’ top legal adviser, he counselled MPs through an unprecedented period in Canada’s history as committees flexed their muscles and aggressively invoked their parliamentary privilege to see papers and records and call witnesses so they could get to the bottom of issues and hold the government to account.
Walsh was front-and-centre during the legal wrangling around the highly politicized and historic files of the past decade. He guided MPs through committee probes of disgraced privacy commissioner George Radwanski, who was found in contempt of Parliament; the RCMP pension and insurance fraud and contempt proceedings against former RCMP deputy commissioner Barbara George; the sponsorship scandal that toppled the Liberals; businessman Karlheinz Schreiber’s business dealings with former prime minister Brian Mulroney; the release of documents on the treatment of Afghanistan prisoners detained by Canadian forces.
He was a key player in the issuance of the rarely used Speakers warrant, which put Schreiber, facing deportation, into parliament’s custody to testify at committee. Members also conslted him before the opposition found the Conservative government to be in contempt of Parliament for the first time in history.
He also made more public appearances at committees to advise MPs than any of the 11 law clerks who held the post since Confederation.
But Walsh retired last week with worries about the fate of a Parliament where many of the players have lost all respect for the traditions, conventions and rules of the game that made Canada’s democracy work. They’ve been flouted, battered and worn down by partisan gamesmanship that all parties have put ahead of the public interest.
“The political game has become so driven by the desire for partisan gain and victories that the institution is forgotten. The traditions of an institution that emerged over the centuries … are just by the bye and now, it’s whatever works, and that disturbs me,” said Walsh in an interview. “We don’t have parliamentarians who value the House as an institution and will accept limitations on what they would otherwise do for the sake of the institution.”
In the cut and thrust of partisan politics, Walsh had the unenviable job of walking the neutral line of dispensing legal advice without alienating any side or stumbling into the political debate.
Some say he let MPs “drunk on the power of privilege” go too far and he should have reined them in. Others complain he was too interventionist. No one, however, accused him of bias.
“He certainly had his hands full,” said former speaker Peter Milliken. “I thought he was a good professional, prudent in the advice he gave and scrupulously non-partisan.”
Rob Walsh came to the job when reforms of the 1980s that allowed committees to initiate their own studies converged with a succession of fractious minority governments. Opposition MPs outnumbered government MPs on committees, allowing them to chase issues, demand documents and summon witnesses they could never have pursued before. It was a potent mix that brought legal and procedural wrangling to the fore and put Walsh in the middle to sort it out.
“He was learned in parliamentary law, very subtle about distinctions and his genius was in appearing before committees and being able to explain to them in lucid and compelling terms what their powers were, at the same time as managing to avoid being an advocate for using those powers one way or the other,” said Audrey O’Brien, Clerk of the House of Commons.
Parliamentary privilege refers to a bundle of historic rights and immunities devolved to Parliament from Britain in 1867 to execute its powers and hold government to account. The key ones are the power to call witnesses, papers and documents and the right to punish for breach of privilege or contempt. Critics argue MPs have been too reckless with privilege, trampling on people’s rights and damaging reputations.
Yet some parliamentary experts say committees’ work on the Afghan detainee and Mulroney-Schreiber affairs revealed a “robust parliamentary capability embedded in the current rules and conventions of Parliament,” that when tapped can get to the bottom of any issue.
Walsh graduated from law school at the University of British Columbia and was called to the bar in 1973. He spent 12 years as a litigator in private practice before he came to Ottawa for a post-graduate program in legislative drafting that landed him a job as legislative counsel in Manitoba’s department of Justice.
A few years later, he came to Ottawa for a conference where someone planted the idea about working in the House of Commons. He made the call, got an interview with then-Commons clerk Robert Marleau and was hired as a general legal counsel in 1991 and promoted to law clerk in 1999.
Ned Franks, professor emeritus at Queen’s University who conducted two studies of the House’s legal office over the years, said Walsh is the most visible and high-profile legal adviser from an office that historically “melded into the woodwork.” He said Walsh restructured the office, modernized it, expanded it and made its legal team indispensable advisers to MPs, committees and Parliament’s administration headed by the clerk.
“He did a bang-up job and resurrected an office that had been through a lot of difficulty and made it one of the strongest on the Hill,” said Franks. “He deserves full credit for never having been accused of partisanship, which wasn’t always true for people in that kind of office, and he was law clerk at a very difficult period of bitter minority Parliaments.”
As the House lawyer, he can’t advocate like a typical lawyer for his client. Walsh had to be impartial and remain above the political fray. He wouldn’t tell MPs what to do, even if pressed, and he wouldn’t intervene even when a legal issue erupted that should be addressed.
The law clerk, he said, must stand back, bite his tongue and wait until he’s called.
“Many times there were debates in committees where they tried to draw me in,” he said. “But no, I am not going to go there … What you should do is what you should decide to do and not for me to tell you what you should do.”
When he was asked, however, Walsh said he had to leave committees with “something useful” to mull over. Give them the legal principles, explain the law, set the context for the decision, but steer clear of suggesting telling them what to do.
He found himself on the wrong side of the government over the Afghan detainee documents. Prime Minister Stephen Harper and Defence Minister Peter MacKay claimed they legally couldn’t turn them over for reasons of national security. But Walsh advised that nothing stopped the government from releasing all the documents and Parliament had the right to demand them. Walsh added the government could have taken a stand and refused to release the documents for security reasons and leave it to the House to decide whether that was a confidence matter or not, rather than “dance around it by saying the law stopped them.” But the government prorogued and avoided a showdown.
“That’s how the parliamentary system works, but politically the government didn’t want to put it to a confidence vote and didn’t want to release the documents … but they didn’t have the intestinal fortitude to be the government of Canada and just say no” he said.
“The beauty of the parliamentary system is that everything devolves to a political decision. Ultimately, it’s all politics and how that is determined is by confidence. If the government has the confidence of the House it carries on. If it doesn’t, it resigns.”
His advice also put him at odds with the Conservatives when he questioned Justice Minister Rob Nicholson’s insistence that he didn’t have the authority under the extradition act to delay Schreiber’s deportation. Nicholson’s position arrived in a letter at the ethics committee where Walsh happened to be testifying and was asked for advice on the spot. Walsh argued the act may not give the minister the authority but it also didn’t say he couldn’t. He then pointed to an Ontario Court of Appeal decision on the Schreiber case that ruled an “extradition order is a political matter.”
“I didn’t want to duck the issue or avoid it and, at the same time, I wasn’t going to say the minister ought to extend it or the committee’s mandate was to get the minister to extend it …That’s a political issue.”
There were, however, two occasions when Walsh broke form and “proactively” took steps to speak for Parliament — and neither time sat well with the government.
The first came during the Gomery inquiry when Walsh learned lawyers wanted to cross-examine Chuck Guité, the disgraced bureaucrat who ran the sponsorship program, about conflicting testimony he gave at a Commons committee inquiry into the sponsorship scandal.
On his own initiative, Walsh hastily sent a lawyer to the inquiry to stop the cross-examination, arguing the testimony of witnesses at committees was privileged and couldn’t be used against them at another legal proceeding. Walsh argued such privilege is critical to protecting witnesses and ensuring they tell the truth. Surrendering it would inflict “irreparable damage” to the House’s privileges, set a dangerous precedent and destroy committees’ credibility with future witnesses. A surprised Justice Gomery asked Parliament to lift its privilege and gave it two weeks to decide.
Walsh took the issue to the public accounts committee, which issued a report asking Parliament to direct the Gomery inquiry to respect its privilege.
“I was visited with criticism privately for the initiative I took. But at the end of the day, if it works out for the better you are forgiven and if hadn’t worked for the better, I wouldn’t be here. I had to act that night and put a spanner in the works because, if it happened, the credibility of committees to protect witnesses would have been lost,” he said.
The second involved the Conservatives’ signature Federal Accountability Act, which Walsh felt encroached on Parliament’s privileges. The problem was the bill was quickly sailing through committee with little opposition and no one sought his advice. He couldn’t intervene or talk publicly or privately about it, but he was convinced that MPs reviewing the bill didn’t realize its implications and time was running out as the bill headed for clause-by-clause review.
Baffled by how he could get his concerns to committee, he stumbled on a rarely-used standing order that allowed the Speaker to bring to the House’s attention anything that affects its privileges. He took his report to then speaker Peter Milliken, who gave him permission to take his concerns to committee.
“Now if the Speaker had said ‘no’ would I have sat on my report? I don’t know. I will never have to answer that question, but I was very troubled ethically as a lawyer that this bill was encroaching on the privileges of the house and nobody was addressing it.”
If Parliament has let Canadians down, Walsh blames the players not the institution. To use the sports analogy, people talk about the team and its players, not the field or the arena. The House of Commons is the “arena where democracy plays out between elections.”
“The House of Commons comes with a panoply of rules and traditions that are supposed to govern how the parties and members conduct themselves ... and too often in recent times these values have been, if not forgotten, subordinated to short- and mid-term political objectives and that’s regrettable and yes, it concerns me.”
He worries how democracy can work when time limits are imposed on legislative debates; more and more committee business is done behind closed doors, free debate is squelched by scripts and prepared texts, omnibus bills crammed with massive legislative changes, and rude and raucous question period dominated by “sham questions and sham answers.”
He treads carefully when asked about Prime Minister Stephen Harper proroguing Parliament in 2008 to avoid a confidence vote and in 2009 to curtail the Afghan detainee inquiry — moves assailed by critics.
“If people knowledgeable about parliamentary traditions found themselves shocked by actions taken then you have to ask whether that has not gone beyond what the tradition would expect in the circumstance,” he said.
“It’s not that it is illegal or anything can be done about it legally, but you have to ask yourself was that action taken for self-serving partisan political purposes in disregard for the interests of the House? And if there was more respect for the House and its constitutional function, might it not have happened?”
He also worries about the impact of the Conservatives’ spending cuts on Parliament’s ability to do its job. MPs should tighten their belts like everyone else but he fears cuts that “are as much designed to serve the partisan interest as they are to serve the public interest.”
But Walsh says his concerns are “public policy” issues that were outside of his legal mandate. He never raised such concerns to MPs or committees and, if asked about them, he would say there is nothing procedurally or legally wrong and “it’s the House’s call.”
Walsh said the decline in respect for Parliament has been slow and had already taken root when he first came to Ottawa as a lawyer specializing in legislative drafting in 1991. It picked up speed during the fractious years of minority governments and the trend continues with a Conservative majority government.
“I see it as a gradual movement, not a huge collapse, away from respecting the parliamentary function to where it’s all about serving partisan political interests rather than the public interest,” he said.
“And some will argue political interest is the public interest — and there is some merit to that — but the larger public interest should prevail over partisanship and that is increasingly rare, so then who is speaking for the institution when what is going on is compromising the viability of the House as a public institution?”
Some say Walsh became that voice.
With partisan bickering and distrust among MPs running so high, Walsh was a trusted and respected intermediary.
John Williams, a former Conservative MP who now heads the Global Organization of Parliamentarians Against Corruption, said newly-elected MPs come to Ottawa, having bought into their party and platform, and don’t understand how Parliament works. This shifted responsibility to Walsh and his office which filled the void as the “repository of democratic knowledge.”
“Where are the stewards of the House of Commons who aren’t employees?” said Paul Szabo, the former Liberal MP who chaired the ethics committee and its probe into the Mulroney-Schreiber affair. ” Where are the elected to stand up for the people we represent. Partisanship has broken than linkage of the arms and given us a dysfunctional Parliament.”
Sharon Sutherland, senior associate researcher at University of Victoria’s Centre for Global Studies, argued that “it weren’t for Walsh, the traditional rights of Parliament would have been altered.”
She said MPs listened to him, respected him and if he was too much of an activist for some, it’s because he didn’t have MPs who knew their powers. His two interventions may be his most important cases.
“The Canadian House of Commons, so far as I can see, has abdicated much of its dignity and, with it, its identity. It is a phenomenon that seems impossible to reverse. That Rob Walsh was present to encourage the House committee during the committee’s work on the Federal Accountability Act was almost the only bright spot that I see in current history,” she said.
Original Article
Source: ottawa citizen
Author: KATHRYN MAY
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