Proceedings of the Standing Senate Committee on
Privileges, Standing
Rules and Orders
Issue 10 - Evidence
OTTAWA, Tuesday, March 2, 1999
The Standing Committee on Privileges, Standing Rules and Orders met this day at 4:40 p.m. to consider matters pursuant to its mandate under rule 86(1)(f) of the Rules of the Senate.
Senator Shirley Maheu (Chairman) in the Chair.
[English]
Senators, shall we move from item No. 5 up to item No. 1?
Hon. Senators: Agreed.
The Chairman: We will discuss item No. 5 as well. I believe we can remain on the public record for most of our discussion, except perhaps for the attendance policy and Mr. Audcent's update that we have on the agenda. Perhaps we could go in camera for that. Is it agreed?
Hon. Senators: Agreed.
The Chairman: Item No. 1 is the independent senators' issues. I understand that both sides of the house have absolutely no objections to independent senators sitting on our committees. They will make the choice with the maximum of two committees and any committee that has an independent senator accepted to it will increase the government members by one. The independent members will submit their committee choices. I believe there will be a maximum of two to the selection committee.
Senator Grafstein: Will that, in effect, be up to the various caucuses to determine?
Senator Kenny: My understanding is that the selection committee would write to each of the independent senators and ask them for their choices and that the selection committee would endeavour to accommodate their choices if there were vacancies but, as we all know, some committees are more popular than others. I know there are some in our caucuses, for example, who have waited for years to get on a particular committee. Therefore, their first or second choice may not be accommodated depending on what it is and whether there are vacancies on the committee. However, the committee of selection would take into account their views, which I believe is the important thing, and after taking into account their views would then put them on one or two committees if they could find an accommodation between their views and vacancies existing on the committees.
The Chairman: I wish to have some input from opposition senators on this issue. I understand that after discussion the leaders of both caucuses are not averse to having independent members sit on committees.
Am I right, senators? Would you like to comment, Senator Atkins?
Senator Atkins: Your conclusion is correct. I do not think that there is anything more, although we still question the distribution of people on the committees, the addition of one on the government side rather than on the opposition side when there is an independent. They vote with them all the time, why would it matter?
The Chairman: Some are of the opinion that the government is ready to give up the seat, but I understand that although independent senators would not be able to be substituted, our leadership has agreed that they should be sitting on committees with one additional member on the government side if that happens.
Senator Beaudoin: We agree with the independent at the table; however, you say that if that happens it will be an additional member?
The Chairman: After discussion with the leadership, senator, we decided that, after consultation, the independent member would be put on a committee by a selection committee and the government membership would be increased by one. There are no guarantees that the independent member would vote with the government even though in the past we have seen a fair amount of support from the independent members. I believe the leadership of both caucuses agreed to the decision that the government numbers would be increased by one.
If we have an independent on the committee we have one more government member.
Senator Kenny: Would you like a motion to that effect?
Senator Rossiter: Are we talking about increasing the number of senators on the committee by two?
Senator Prud'homme: There could be only one independent
The Chairman: Yes, one independent on each committee.
Senator Beaudoin: Let us say that it is seven to five now on some committees; is it not?
The Chairman: Yes.
Senator Beaudoin: You add one independent.
The Chairman: Then you have eight, five, one.
Senator Beaudoin: You have another Liberal, and then it is nine, five, one.
The Chairman: No, it is eight, five and one. We are saying that it might be 14 or 15. The decision has not been made on the issue of how many members will sit on committees. Nor are we discussing restructuring Senate committees. All we are discussing is the possibility of changing our rules to have an independent member sitting on some committees.
Senator Beaudoin: Yes, but I am looking at the logic. You see, if you have seven to five, you have already a majority of two. If we have an independent, you still have a majority, but of one.
Senator Atkins: Or of two or three.
The Chairman: Not necessarily, Senator Atkins. You cannot say that independents will always vote with the government.
Senator Beaudoin: Yes, but you have seven to five. If you add one independent, you still have a majority of one. Why do you need another one?
Senator Kenny: The principle would be, senator, that having the additional government member would permit the chair of the committee to act in a less partisan way. It would mean that the chair of the committee would not have to participate in votes and yet the government could still carry the committee if it had to.
The Chairman: As it is now.
Senator Kenny: And the sense, I think, is that the chair would function better if he did not get involved in votes.
Senator Beaudoin: I understand that, but suppose it is an issue that is of the utmost importance. Can the chair vote? Yes.
The Chairman: Yes. He can now. What is happening is not different from what it is now.
Senator Beaudoin: Yes, it is different, because you have one more.
The Chairman: We have two more, and one of those is a government member. Some committees are chaired by the opposition. I have sat in committees where we have lost the vote. This does not say that the independents would vote with the government necessarily. It does not really change anything. It is one extra and we are giving the government that one person to compensate.
[Translation]
Senator Prud'homme: In any case, there would now be two more members.
[English]
The Chairman: Yes, it is two anyway, and it remains two. Is there any more discussion on the issue? Since there is no more discussion, Senator Kenny, I need a motion.
Senator Kenny: I move that we facilitate the membership of independent senators on committees, and that, where an independent senator is appointed to a committee, the government side be increased by a corresponding number.
Senator Grafstein: I second the motion.
Senator Joyal: Do you contemplate that there would be more than one independent senator on each committee?
The Chairman: No.
Senator Kenny: I think the question was addressed to me. I do not anticipate that, but as the motion is worded, the steering committee would have to deal with that question.
The Chairman: The motion that was taken to the leadership of both parties was that one independent member sit on committees, and no more than one.
Senator Joyal: That is what I wanted to know.
Senator Grafstein: After we see this in practice, we should review it. If it presents a problem, the Rules Committee is here to deal with the problems.
The Chairman: If you review the minutes, from the very beginning when we were discussing the representation of independent senators there was one per committee. We can make the resolution say that.
Senator Atkins: Can we make a motion on the principle of adding one independent to committees and then have another motion that adds the number that you want on those committees?
Senator Kenny: You can amend my motion
The Chairman: We can amend Senator Kenny's motion.
Senator Atkins: I want it on record that we are in favour of independent senators sitting on committees but we are not in favour of the proportion.
The Chairman: No matter what happens, it will call for a vote.
Senator Beaudoin: This is not logical at all. You have seven government senators to five opposition senators. You then add one independent senator. You also add one to the government side. Therefore, you increase the government side but the opposition side remains as it is.
The Chairman: No. I am sorry, senator, I must disagree. There is no guarantee that the independents will vote with the government. If you think about it, one senator will never vote with the government.
Senator Beaudoin: The debate is not on that subject. Obviously, the independents may vote Liberal or Conservative. The debate is a question of mathematics.
The Chairman: Could you explain that?
Senator Beaudoin: You have seven to five senators, and you have a majority of two. With your principle you will have a majority of three.
The Chairman: Eight, five and one.
Senator Beaudoin: That is right. Eight, five and one means 14. Seven and five is 12. There is one independent. We do not know on which side he or she is going to vote.
The Chairman: It could be eight to six, which still means a majority of two for the government. However, this liberates the chair. The chair very often does not vote. Most votes come to one more for the government. It does not really change anything. It could be eight to six.
Senator Atkins: Do it your way, but split the motion.
Senator Grafstein: If you will bear with me for a moment, the underlying principle is that there is a majority of the government in each committee consistent with the majority and nobody quarrels with that. That is a principle.
The other principle, which is not inconsistent with that, is that anyone who is not a government supporter in effect is not a government supporter, whether that person is an independent or a member of the opposition. That is the principle. That is why, senator, I do not think it is appropriate to split the motion, because the principle is inclusive.
In other words, what you are doing is sustaining the balance in the legislature that we all agree to. I do not think that they are separate issues. They are part and parcel of the same thing. If the independent chooses, from time to time, as a member of the Opposition chooses from time to time, to support the government, so be it. However, with respect to the balance, independents have declared themselves to be independent of the government.
I do not see this as a question of supporting one or the other. It is maintaining a principle that we all agree to, which is that if there is a majority in the Senate, that majority in effect is a majority on the committees.
The Chairman: That should resolve the problem
Senator Atkins: I still cannot see why we cannot split it.
The Chairman: We have a motion before us. In order to split the motion, we would have to amend the motion. I am not sure that the presenter of the motion is willing to amend it.
Senator Rossiter: It seems to me that Senator Grafstein is saying that we are negating the vote of the senator.
Senator Grafstein: On the contrary.
Senator Rossiter: They may have a vote, but you are simply offsetting that vote.
Senator Grafstein: On the contrary. Members of the government side have voted against the government. However, there is a principle that the government has carriage of legislation, being the majority. I thought that principle was well accepted.
Senator Atkins: I do not think that anyone is arguing with that principle. There are two principles here.
Senator Beaudoin: I still do not understand why you refuse to have two votes. Obviously, we are all in favour of independent senators. That is one vote and we all agree. However, to change the rule of the majority, to increase it because there is an independent, may be debatable.
Senator Kenny: We are debating it
[Translation]
Senator Joyal: Senator Beaudoin, if we add one vote in a committee where the underlying principle is that the government has a majority, the vote does not automatically go to the government. Rather, it is more of an independent vote. The independent senator is not a member of the government party and therefore is not committed to siding with it. You have no guarantee that this person will vote with the government majority. Agreed?
Senator Beaudoin: Agreed.
Senator Joyal: By definition, an independent senator is independent and can decide to go with the opposition or with the government on a given vote. Assuming that this independent senator can vote against the government, following the same principle expressed by Senator Grafstein, and that the government party still has the majority to push through the legislation, the government side needs one additional vote to ensure a balance. That is the fact of the matter. What are you concerned about?
Senator Beaudoin: I am confused about the math. The vote is seven to five. Now you are saying that one independent senator will be casting a vote. In that case, the outcome could be either seven to six or eight to five, but you would still have a majority of votes. I do not have a problem with that.
[English]
The Chair not voting is quite another principle. The Chair still has the right to vote.
[Translation]
Senator Joyal: In this particular instance, you would force the chair to cast a vote.
Senator Beaudoin: Yes.
Senator Joyal: It is not a good idea to force the chair to cast a vote in cases where the government majority principle has always prevailed. Fundamentally, that is the problem.
Senator Beaudoin: If you are telling me that the government needs a two-vote majority in all cases because the chair does not vote, then I am quite willing to go along with that.
[English]
The Chairman: I think we are getting into a debate. We have a motion before us. Does anyone wish to add something that we have not already discussed? I shall put the question: That the selection committee be authorized to nominate independent senators to committees by increasing the normal size of committees to include no more than one independent senator and one additional government or majority member.
Senator Beaudoin: Is it one resolution altogether?
The Chairman: One resolution.
Senator Beaudoin: I will vote against it.
The Chairman: Is it your pleasure to adopt the motion? Those in favour of the question?
Those against?
Carried, on division.
The Chairman: Is it agreed that we report this rule change to the Senate?
Hon. Senators: Yes.
Senator Beaudoin: In the Senate we will see that the motion was divisible, but the chair said that it was not divisible, so I cannot vote for it.
The Chairman: The mover was not willing to divide it.
Senator Beaudoin: Okay, so it is "no"; it is as simple as that.
The Chairman: There was no formal amendment to the motion, Senator Beaudoin.
Senator Kenny: You could have amended the motion.
The Chairman: Let us move to the next item on the agenda. The reason we are not looking at the restructuring of Senate committees today is that our deputy chair requested that we delete it from the agenda because she was unable to be here today.
We have a number of items, some of which, as I said earlier, may be better discussed in camera. May I suggest that we proceed to the items that we can possibly clear up today? For example, joint committees and the new draft version of the Senate rules.
A year ago, on April 24, 1998, I wrote to Peter Adams regarding our position on the proposed new rules for joint committees. I had not heard back from him formally until today. I have this letter that I have not yet read and I believe you all have a copy.
Perhaps Jamie Robertson could bring us up to date on any developments that may or may not be included in the letter.
Mr. Jamie Robertson, Researcher, Library of Parliament: I believe the letter does explain it but maybe I can just give general background for senators.
This arose out of some work that was done by the predecessor of this committee and the equivalent committee in the House of Commons, the Procedure and House Affairs Committee. Mr. Milliken and Ms Catterall, from the House of Commons, and Senator Gauthier and Senator Grimard, from this chamber, met extensively during the last Parliament to work on a set of rules for joint committees. The difficulty at present is that joint committees are often used on either a standing basis or a special basis and the rules are not clear because in certain respects the rules of the two chambers are not the same, for instance whether the chair has an original vote or a casting vote and so forth. Therefore, the idea was to come up with a set of rules that would apply to all joint committees and that would be adopted by each chamber.
For various reasons that work was not completed in the last Parliament and it was revived by the chair and this committee in this Parliament. The House committee did review the work of the informal working group and it had draft wording prepared by the staff of the Senate and House of Commons. That wording formed the basis of a report by the Procedure and House Affairs Committee, which I believe was tabled in the House of Commons last February. This committee was unable to get to this issue on its agenda because it was dealing with various matters relating to attendance of senators last February, March and April.
Last April 22, this committee did get to the matter on its agenda. It reviewed the report of the House committee and proposed five or six changes. Senator Maheu then wrote a letter to Mr. Adams, the chair of the House committee, in which she set out the concerns of this committee, and there matters stayed. It seems that there was a breakdown of communications between the two chairs.
Mr. Adams did write this letter, dated yesterday, to Senator Maheu, in which he indicates that her letter had been raised with the steering committee of the House committee but the feeling was that at this point it would probably be preferable for the leaderships of the two chambers to get together to iron out the differences between the two committees or the two Houses.
The Chairman: Perhaps I can add that my letter to Peter Adams should be circulated to you and we can bring it back again next week and take another look at it, although the House has very definitely decided that the leadership should look at it. The committee is not prepared to make any more changes without the leadership's authority so, with your permission, this letter is here. The second letter is in the file, on page 11 in English and page 13 in French. This one you have in front of you.
Senator Kenny: Why would we bring it back, Madam Chair? If you are letting the leadership deal with it, let them.
The Chairman: If this committee agrees that we should take it to the leadership, we will. However, it is obvious that some of the senators are not aware of the contents of the two letters.
Senator Beaudoin: We are now.
The Chairman: When we were discussing it they were on the table.
Senator Joyal: Madam Chair, I have no objection in principle that the issue be discussed between the two leaders of both Houses; however, I would restate that what is contained in your letter is our position. If our leadership is of the opinion that they would go beyond that, or under that, we should like to be informed before they conclude the meetings.
Senator Kenny: I would support that.
Senator Joyal: In other words, I do not wish to give you the impression that we give a blank cheque, if I can use that expression, with all due respect for the leadership, for them to meet together and conclude whatever they want. They should meet -- that is a fair proposal for reconciliation -- and then come back to the full committee and state what the bottom line is and we will advise later on that basis.
The Chairman: I understand Mr. Robertson can have a draft report to that effect for the next meeting. The other alternative would be that we report our position of April 24 last year to the Senate with a message that the leadership look at it. I am in your hands and will do whatever you want.
Senator Kenny: Also to report back.
Senator Grafstein: I prefer the latter course, where we issue our report. Then the leadership has our report, and it is an official document of the Senate. However, there should be a clear indication that we expect the leadership to come back to us before they conclude any final or binding agreement. I agree with the senators: we are not delegating them to do this, we are delegating them to negotiate and come back. They may have a different recommendation. We are open-minded about it but we did spend a considerable amount of time on this issue. I believe we got a consensus on this issue on all sides. My view is that we should report it and advise the leadership that this is our view and that if they have a different view they must come back to this committee.
Senator Kenny: That gives them a stronger bargaining position, frankly.
Senator Grafstein: Yes
The Chairman: Is anyone in disagreement with that?
Senator Beaudoin: I agree with that, providing that if they disagree on our leadership we come back here.
The Chairman: Yes, we come back here in any event
Senator Joyal: That is what I wanted to raise in my comments
Senator Beaudoin: I agree with the question you raised.
The Chairman: Then we will report to the Senate.
Senator Kenny: I have a question on a different but related subject. Are there other matters that this committee has forwarded to the leadership to negotiate with the other place? For example, we treat their private members' bills quite expeditiously and ours, going in the opposite direction, get treated very poorly.
Senator Grafstein: Not as expeditiously.
The Chairman: Correspondence does exist but I do not know what is happening.
Senator Kenny: My suggestion is that we find a way to remind the leadership that this issue is still a live one and that the same treatment in both Houses would be desirable.
Senator Grafstein: Reciprocity.
The Chairman: We should perhaps stick to rules amendments and I am not sure that the treatment of private members' bills comes under that.
Senator Kenny: It is exactly that. Their rules are different from ours.
Senator Beaudoin: What do we do?
Senator Atkins: Why do you not raise it in your caucus?
Senator Kenny: We have
Senator Beaudoin: And what was the answer?
Senator Kenny: That there should be a change.
Senator Beaudoin: And what was the change?
Senator Kenny: That they would treat our bills as theirs are treated.
Senator Beaudoin: As they are treating their own bills?
The Chairman: No.
Senator Kenny: No, as we treat them, and that view is a bipartisan position.
Senator Atkins: Absolutely.
Senator Joyal: There are as many private members' bills on the opposition side as on the government side.
Senator Kenny: And they are not submitted to a lottery or a special subcommittee and all that. We put them on the Order Paper and deal with them, whereas ours may not be dealt with.
Senator Atkins: You can count on the fact that they will not be
Senator Kenny: I did not understand that.
Senator Atkins: How many have we sent up there that have been dealt with?
Senator Kenny: We have been successful on a few that have become law.
Senator Atkins: In the last year or so?
Senator Kenny: In the last three years.
Senator Atkins: Whose?
Senator Kenny: Mine.
Senator Joyal: Senator Cohen's bill.
Senator Atkins: Yes.
The Chairman: It happens.
Senator Kenny: It is more by luck than anything else.
Senator Beaudoin: We have to take a calculated risk.
The Chairman: Is it agreed that we report our position on the joint Senate and House committees with a request that Senate leadership negotiate with the leaders of the other place and report back to this committee?
Senator Grafstein: If there is any change.
The Chairman: They could report back to us verbally.
Senator Grafstein: I would assume that our wisdom will ultimately catch fire and consume the other side.
The Chairman: Is it agreed?
Hon. Members: Agreed.
The Chairman: I think we should now go in camera.
The committee proceeded in camera.