New Democrat strategists appear to be quietly laying the legal groundwork to challenge the House order that set the stage for their leader's much-anticipated appearance before the Commons procedure committee on Thursday.

A legal opinion prepared by retired Commons law clerk Rob Walsh makes the case that the Chamber may have overstepped its authority when it instructed the committee to look into allegations that the party may have misused taxpayer dollars by using its parliamentary budget to subsidize 'satellite' offices in Quebec.

In the letter, which was provided to CBC News by the NDP, Walsh acknowledges that "conventional legal reasoning would say there are no legally enforceable limitations on the power of the House to direct the activities of its committees or, by extension, on the powers of committees acting under a House order."

But he says the issue raises broader considerations over the "legal propriety" of the order itself.

'Parliamentary tyranny'

Such powers, he points out, are meant to support the constitutional functions of the House — "namely," he notes, "legislating, deliberating and holding the government to account."

The order instructing the committee to question Mulcair over his party's budget would seem to fall well short of that purpose, he observes.

"It clearly does not relate to legislating or deliberating nor to holding the government to account as neither the Leader of the Official Opposition or the [Board of Internal Economy] is part of the Government."

"Constitutional proceedings are meant to serve constitutional purposes and not any purposes whatsoever," Walsh notes.

"To allow the use of House proceedings for any purpose whatsoever would be to license parliamentary tyranny by a governing majority over the minority parties sitting in opposition if not also over outside third parties."

Walsh also warned that the committee could be at risk of creating a "double jeopardy" by pursuing matters that are traditionally the exclusive purview of the all-party board of internal economy that manages House budgets.

Allowing the committee to conduct its own investigation could result in MPs facing the prospect of being disciplined by both the House and the board, which has its own administrative process.

Current law clerk advises limited probe ok

Documents sent to committee members and obtained by media outlets, including CBC News, however, suggest that the current deputy House law clerk took a distinctly less proprietary position on the potential for jurisdictional overlap.

Rob Walsh  20110316

Retired House of Commons law clerk Rob Walsh prepared a legal opinion for the NDP. (Sean Kilpatrick/Canadian Press)

In his response to the committee's request for documents, Richard Denis notes that, while the board does indeed have "exclusive jurisdiction to determine whether the use of resources is or was proper for the carrying out of parliamentary functions," the committee is entitled to look into whether the activities in question were, as he puts it "political or electoral in nature, rather than parliamentary."

"If the review was performed without examining whether or not the use of resources was proper," he concludes, it likely wouldn't infringe on the board's turf.

He does, however, make it clear that if the committee were to ultimately conclude that those activities were not parliamentary, it would still be up to the board to determine whether House resources were used for those activities.

The board would also be responsible for putting a dollar figure on those resources, and, perhaps most crucially, "what action, if any, would need to be taken to rectify the situation."

House documents confidential

In his letter, Walsh also questions whether House administration had the authority to hand over documents to the committee without the consent of the Board.

"Providing administrative documents such as 'briefing notes' and 'meeting notes' to the committee" could, he warns, "seriously compromise the working relationship between the House Administration and the Board."

"In my view, the committee’s motion for the production of documents is fundamentally inconsistent with the regime legislated under [the Parliament of Canada Act]."

The memo accompanying the documents already provided to the committee makes no reference to seeking the consent of the board.

Denis notes that the bulk of the material was prepared "within a context where there was an expectation of privacy," and urges the committee to "exercise caution in its proceedings" to avoid compromising the normal confidentiality with which such matters are handled by House administration.

Given the swiftness with which those same documents were leaked to reporters, at the very least the New Democrats would seem to have a legitimate complaint against how the committee has handled the evidence so far.