MP harassment allegations fall through cracks of Hill's murky rules

Amid the shocked speculation swirling around the harrassment allegations lodged against two Liberal MPs by two NDP MPs earlier this week, one question kept coming up: How is it possible that there is no established process in place on Parliament Hill for dealing with such a situation?

Unclear jurisdictional issues, parliamentary privilege could complicate investigation

Not only is Parliament a self-governing jurisdiction, exempt from virtually all federal and provincial laws, including the labour code, but MPs are — as the title makes clear — members of the House of Commons, not its employees, and only the House has the authority to intervene in disputes between its members. (Justin Tang/Canadian Press)

Amid the shocked speculation swirling around Wednesday's incendiary revelation by Liberal Leader Justin Trudeau that veteran MPs Scott Andrews and Massimo Pacetti had been suspended from caucus based on harassment complaints lodged by two unnamed New Democrat MPs, one question kept coming up: How is it possible that there is no established process in place on Parliament Hill for dealing with such a situation?

As Trudeau himself put it to reporters after delivering his announcement: "Look folks, it’s 2014.  It’s time that this workplace, like other workplaces across the country, had a process whereby these issues can be aired and dealt with."

But is it entirely accurate to say that there are no mechanisms in place to deal with disputes between MPs, including allegations of harassment?

First, a quick reminder: Not only is Parliament a self-governing jurisdiction, exempt from virtually all federal and provincial laws, including the labour code, but MPs are — as the title makes clear — members of the House of Commons, not its employees.

While there are some avenues of appeal for Hill staffers and employees dealing with conflicts within the workplace, only the House has the authority to intervene in disputes between its members.

That was what led Liberal whip Judy Foote to initially approach her New Democrat counterpart, Nycole Turmel, in order to set up meetings with the two MPs.

'Clear process' needed: Liberals

Shortly after those meetings had taken place, however, Foote filed a formal request that House of Commons Speaker Andrew Scheer take over the investigation.

"I do not believe it is possible, nor indeed appropriate, to attempt to properly deal with these complaints any further at the level of the whips," she wrote.

"I believe a process that continues to deal with these allegations in a serious manner will require the involvement of a neutral third party trusted by all concerned."

Foote also urged him to take steps to ensure a "clear process … for possible future cases where members are alleging misconduct of other members," and noted that the Senate already has such a policy in place that covers both senators and employees.

"It is time the House of Commons did the same," she wrote.  

In a sense, though, it already does.

As retired parliamentary law clerk Rob Walsh pointed out in an interview with CBC News Network's Power & Politics host Evan Solomon earlier this week, every MP has the right to bring such concerns to the attention of the Speaker — and the House as a whole — by rising on a point of privilege.

"That process that is available to all members, if they feel that the behaviour of a third party — including another member —  has impaired their ability to do their job," he noted.

Should the Speaker agree that a prima facie breach of privilege exists, the matter would be sent to the procedure and House affairs committee for further study — which could, in turn, result in a report recommending what, if any, sanctions should be considered.

"It stems from the fact that the House has the power to discipline its members," Walsh noted.

"if you actually want to take action, you have to go to the House — not the [Board of Internal Economy], by the way, and not the Speaker individually, but the House."

Confidentiality complications

Such an approach would, however, require the MPs making the allegations to do so in a very public way — which according to the New Democrats, was the exact opposite of how they wanted to deal with the situation.

Speaking to reporters the day after the story broke, New Democrat Leader Tom Mulcair said the party's "number one concern" was to support the two MPs, which included respecting their wishes.

"Their wish was not to be revictimized, and to make sure that what they were telling us was confidential," he said.  "We respected that."

(Indeed, the New Democrats have been highly critical of Liberal Leader Justin Trudeau's decision to go public with the fact that such allegations had been made, if not any specific details thereof.)

So, given the desire of the complainant MPs to handle the situation behind closed doors, were there any official channels available to resolve the dispute in a more discreet manner than the name-and-shame of a point of privilege?

According to the Speaker's office, they could have taken the matter directly to House of Commons chief human resources officer Pierre Parent.

"Any individual who wants to bring forward allegations of harassment may request a confidential meeting with the chief human resources officer (CHRO) of the House of Commons," the Speaker's office spokeswoman Heather Bradley told CBC News.

At that point, the CHRO "will meet with the individual to determine appropriate next steps," she added.

"All meetings remain strictly confidential."

What's not clear, however, is whether the CHRO has any power to take action in response to such complaints when the parties involved are also sitting MPs.   

Jurisdiction issues

In fact, it's not even certain that the all-party Board of Internal Economy to which the allegations are expected to be referred is authorized to investigate — and, if necessary, sanction — the conduct of individual MPs.

"I don't think the board has any jurisdiction in this matter, because the board doesn't have power to discipline its members other than for breaches of the board's bylaws," Walsh told CBC's Power & Politics.

"There isn't, to my knowledge, a bylaw … regarding harassment between members."

The members' by-laws govern the use of parliamentary resources, including office budgets and salaries, but are silent on issues of conduct and behaviour.

Meanwhile, the party caucuses themselves have a free hand to manage internal complaints among their own members, but no readily available tools or mechanisms to handle disputes that involve non-caucus members.

That is, unless the leaders of the parties involved decide to work together.

"Mulcair and Trudeau should get together, and make an agreement to engage an independent third party to investigate and report back, and that report made public," Walsh told CBC News.

"Then the two might try to sort out what the remedy would be."

If unsuccessful, he says, the NDP could always rise on a point of privilege — although that, once again, would likely mean identifying the MPs behind the complaints.

Either way, Walsh believes that it will set a precedent "that will put all members on their best behaviour" even if nothing changes as far as the letter of the law.

"I don't think you need new rules — everyone knows sexual harassment, if that's what it is, is not appropriate," he noted.

"This process may show what remedies are available, and how it could become public, to the great detriment of many members."