37-1
37th Parliament,
1st Session
(January 29, 2001 - September 16, 2002)
Select a different session
Proceedings of the Committee on Rules, Procedures and the Rights of Parliament
Formerly: The Committee on Privileges, Standing Rules and Orders
Issue 8 - Evidence
OTTAWA, Wednesday, May 30, 2001 The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 12:10 p.m. to consider matters pursuant to its mandate under rule 86(1)(f) of the Rules of the Senate. Senator Jack Austin (Chairman) in the Chair. [English] The Chairman: We have a quorum. I would call this public meeting to order. Our principal item for discussion is the order of reference with respect to Senate committees. Before we get there, I would like to thank Senator Stratton for his work in chairing the Rules Committee two weeks ago when the Official Languages Commissioner appeared. I have read part of the transcript. It was a very good meeting from what I have heard and read. When the question of official languages comes back to our agenda, we will have an excellent base for dealing with that item. I would like to draw your attention to this committee's agenda for the month of June. On Wednesday, June 6, we will receive an initial report from Speaker Hays on his work and that of his predecessor Senator Molgat with respect to rules revision. I expect about a 15-minute report, hopefully without questions other than those that are essential with respect to procedure. The balance of time on June 6, about an hour, we will spend on the report by Mr. Mark Audcent with respect to revising the rules on attendance and on the consequences of a senator being charged under the Criminal Code and so on. On June 13, we will take up Bill S-13, the Royal Assent Act. Senator Lynch-Staunton will provide us with an opening. We will not hear other witnesses. We will have a consequential discussion, however, to determine what the committee would like to do. In addition, on June 13, we will look at Bill S-8, regarding the principles relating to the role of the Senate, which is Senator Joyal's bill. Thereafter, it would appear that the Senate may adjourn on Friday, June 15. To deal with the large number of issues that we have, not only in volume but also in substance, we have set aside Tuesday, June 19, and Wednesday, June 20. We will go through all of the agenda items and then leave the consequential work of writing the reports to our staff, Mr. Robertson, Mr. O'Brien and the rest of the team. By fall we will have pretty well cleared our agenda and, hopefully, we can begin to concentrate on the more comprehensive view of rules and rule changes, led by the Speaker and by the Clerk, Mr. Paul Bélisle. That is the agenda as set out. I have asked Mr. O'Brien to call senators to ensure we have sufficient attendance, hopefully perfect attendance, on June 19 and 20, but we need at least a representative attendance to do our work. Senator Losier-Cool: There was a discussion about a meeting in July at Meech Lake. The Chairman: Everyone wanted to avoid a July meeting if at all possible. At that time we were looking at the Senate perhaps sitting until June 23, but it hopefully will not do so. We can then move into this agenda and finish our work as a committee and leave the consequences to our staff. Thank you very much. Today's agenda item relates to the order of reference on the committees structure and restructuring and/or the nature of committees. Ms Lank has prepared the statistical information and I have asked her to put that in before you. I am not asking you to digest it; frankly I have not perfectly digested it myself. This material points out just how burdened the various committees are with legislation. The material dates from as far back as May 1991. I perhaps should not use value words like "burdened." We want to see just how active each committee is with special studies. The principal issue is whether we want to have a miscellaneous legislative committee to deal with non-controversial legislation. Perhaps we could have two committees, one devoted to economic legislation, and one to social and legal legislation. In that way we could continue to do our work on legislation while at the same time it would be possible for policy committees to get on with key questions of a middle or longer-term nature that are of importance to the public. Without drawing any conclusions, I want to point out several figures. Please refer to the first page before you and look at the Banking Committee. In the period from May 13, 1991, to September 8, 1993, that committee dealt with 22 bills and spent 83 hours on legislation. It held 18 meetings on special studies totalling 26.9 hours. I take you over the page to the Legal and Constitutional Affairs Committee which spent 55.6 hours on 20 bills. However, it held only two meetings and spent 3.2 hours on special studies. Transport and Communications dealt with 8 bills at 25 meetings over 80.9 hours. It held 7 meetings and spent 39.2 hours on special studies. I will not take honourable senators through the rest of it, but I will ask you to look at the busiest of the committees and observe how they are spending their time. On the next page you will see that between January 17, 1994 and February, 1996, the Legal and Constitutional Affairs Committee dealt with 18 bills at 91 meetings over 190.5 hours. It had very little time available for any kind of special study. The Legal and Constitutional Committee that sat between February 27, 1996 to April 27, 1997, considered 26 bills over 119.8 hours. That committee also had 22 meetings with 52.5 hours being spent on special studies. Social Affairs, Science and Technology, for the same time period, sat 78.8 hours on legislation, and 1.9 hours on studies. I do not know what those statistics mean precisely. I have asked Mr. O'Brien and Ms Lank and their team to do a further analysis. It is clear that some committees do not have time for special studies within their terms of reference because they are burdened with legislation. Are we ignoring public policy issues in their particular terms of reference that should be pursued by way of studies? We are getting a skewing, in my view, of the way in which we put in our time. We have looked at these four principal sectors of responsibility, that we have up till now defined, and I believe there is a fifth that we should include as a result of representations by Senator Pitfield and Senator Murray. The five areas are as follows: legislation, policy studies, regional representation, representation of the interests of Canadian minorities and our responsibility to review the operations of government. We are trying to see how we perform those tasks. This information is part of the story. We should look at some conceptual issues today to see where we would like to go as a committee with respect to those issues. At some point in time, and I am looking at June 19 to June 20, we will ask the clerk and his team to come in and address the more specific question of what human and physical resources are available to assist in our work. However, let us leave that discussion for the end rather than discuss it today. The January 2001 paper, "Discussion Paper on Committees," has been circulated. There are a number of questions that I would like to take us through today. One question is with respect to the use of the Committee of the Whole. Should we give wider use to the Committee of the Whole? I want Mr. Robertson to tell us how the Committee of the Whole works in the House and in other parliamentary jurisdictions. What are the differences in their practice compared to ours, and then we can ask ourselves whether we want to do anything with Committee of the Whole. Mr. James R. Robertson, Senior Analyst, Parliamentary Research Branch, Library of Parliament: It is my understanding that the Committee of the Whole was used more frequently in the past. In the Canadian context, the Committee of the Whole has given way to the use of specialized committees to have legislation and bills referred to after second reading for more detailed study. In our system it appears to be quite standard, certainly in the House and the Senate, and in most provincial legislatures, although not all, for legislation to be referred to a committee where it will invite submissions from interested individuals and groups. Rather than just the minister, other parties that have representations to make will make those to the committee, and it is part of the citizen participation and involvement process. That is also where the more detailed clause-by-clause consideration of legislation takes place. Some provincial legislatures, however, do continue to use Committee of the Whole as their primary vehicle for consideration of legislation after second reading. In such cases there is limited, if any, opportunity for public representations in terms of witnesses, briefs and so forth. It appears that in Great Britain, the House of Lords does not refer bills to committees after second reading, but they consider it in Committee of the Whole. Again, there is no opportunity for members of the public to make representations. Even in the British House of Commons there is limited public participation in legislation during its progress through the House. Most of the participation is prior to introduction of the bill. Once it receives second reading, it is referred to a committee. I think there is use of legislative committees in the British House of Commons, but they do a fairly technical analysis and fine tuning of the bill. It is not based on representations from the public. I have not had an opportunity to do a more extensive review of other commonwealth jurisdictions, but, certainly, Canada has been influenced by the American congressional system whereby there is a fairly extensive hearing opportunity that allows interested groups and individuals to come before the committee. Technically, they are supposed to be talking about the bill that has been approved in principle and making recommendations for improving it. However, as we all know, most of the representations are along the lines of whether the bill is a good one or a bad one. In Canada, after approval in principle, it is really a matter of adjusting the bill rather than refighting the issue of whether the bill should be passed or not. The Chairman: We have seen in the United States the rise of political theatre as part of the political scene. I am not as critical of it as I might just have sounded because, as you have said, the participation of citizenry is an important part of their system. I believe it is essential that we are here to listen to and allow participation by citizenry in the making of laws and in the proposal for policies. I am sorry Senator Murray is not here to make his argument. He has been an advocate of more use of the Committee of the Whole. As I understand it, Senator Murray believes that to make the Senate more relevant we need to do more of our policy work and our debates in Committee of the Whole. In the Committee of the Whole we have the minister, his officials and the senators who are all well briefed. These people can carry the arguments that citizens might otherwise be directly making to us. He would like the proceedings in the chamber, in that case, to be televised. While I agree with Senator Murray's objective of making the Senate more relevant, the question is whether the Committee of the Whole would be able to deal with witnesses and representation in the way in which the American process does. As Mr. Robertson has said, the House of Lords does not hear witnesses. The House of Commons has before approval, in principle, which is a very different process from the one we use. We could use it, but I have not heard anyone advocate it. The balance is to continue with the process we now use, and simply use Committee of the Whole in those exceptional circumstances where there is an interest and desire on the part of a majority of senators to participate in that process. For example, when Mr. Trudeau asked to appear before a Senate committee on Meech Lake, there was such a large number of senators who proposed to attend the committee that the only room large enough to hold everyone was the chamber. That committee became a Committee of the Whole. Senator Murray was Leader of the Government at that time. It was based on public interest. It is also used when ministers are defending their bill before the chamber as a whole and the chamber wants a process larger than the report of a committee. If the committee report is controversial and the chamber wants to deal with the report with the minister and official witnesses before disposing of it, the Committee of the Whole may be used. A problem with Committee of the Whole is that it prevents other committees from sitting. If we sit in Committee of the Whole, the Senate is in committee. The rules could be changed so that if the Senate is in Committee of the Whole other committees could sit. However, it would look ridiculous to have 16 senators in Committee of the Whole sitting in the chamber. It should not be used unless there is substantial attendance. That will form some of the debate. I know Senator Bryden has asked to participate. Perhaps other senators also wish to participate. Senator Bryden: We seem to have a number of areas of importance that I am not absolutely convinced are the most important ones. For example, one of our areas of most importance is the representation of regions. Another is our representation of minorities. What were the others you mentioned, Mr. Chairman? The Chairman: Legislation, policy studies and review of government operations. Senator Bryden: Whenever those issues come up, I always wonder: On what constitutional or legal basis are we the defenders of minorities? I understand the basis for our representation of the regions because we live in our regions. How do regional and the minority representation fit with the legislation and the accountability function - holding the executive accountable for what it does? The Senate is one of the lawmaking chambers of Parliament and a very significant role of the Senate is to be part of the law-making function. Dealing with legislation and passing bill is our most important function as legislators. Another important role of parliament is to require accountability of the executive to the Parliament. Parliament consists of the House of Commons and the Senate. Senator Stratton and I have had this conversation before about the examination of departments through an examination of their estimates. If those functions were done very well there would be very little that this body could not uncover by examining, and in some instances proposing, legislation to Parliament. Furthermore, this body could critically examine and call to account the estimates; the spending of the various government departments. From that flows a particular impact on how a piece of legislation or a budget impacts on my region, or on any senator's region. Until persuaded otherwise I have a bias, and that bias is that we are a House of Parliament, and as a House of Parliament we are part of the legislative process that, without going into the history, functions in two ways: One, by making and amending laws, statutes and statute law. The second function is examining and holding up to scrutiny the policies and the spending of the executive branch. I hesitate to say, in some instances, as make-work projects for committees that did not have enough legislation or Estimates to look at, we started having special studies on areas in which certain senators had a particular interest. Unfortunately, that has occurred in some instances and it has become the raison d'etre of a number of our committees and subcommittees to do special studies and not to do the other. At the end of a meeting approximately three weeks ago, I raised the issue that since 1982, the Supreme Court of Canada has taken over a large amount of the conscience of Canada as it relates to minority interests. It is the place of final analysis based on jurisdiction, the Constitution and the Charter of Rights. The other point is that we have a federal system where the meetings of first ministers and their acolytes determine how the regions participate in the Government of Canada. Are we fooling ourselves by saying that we have a great deal to say about the various regions? It is one of the reasons that I feel very comfortable that I will probably serve out my term as a senator from New Brunswick, from the Atlantic region, without having to go through an electoral process. The premiers of Atlantic Canada will not, in my opinion, give up their right to represent their regions to the Prime Minister of Canada. I do not believe that I would be more effective if I were elected to my post. I also do not believe that the number of senators will be reduced. The Chairman: I appreciate very much what you have said. Up to the point of your comments about the Supreme Court and the premiers, I am with you all the way. We are here to determine how best we perform our role as legislators. I think Senator Bryden is saying what I am saying. Our role includes the policy work we need to do to understand the legislation that comes before us or might come before us or which we wish to propose. On regions and minorities, I do not think anything that has happened in Canadian practice changes our role. It may change our impact in certain areas, but it does not change our role. Those are legislative functions. We have been assigned by the travaux préparatoires of the Constitution, in the discussions of the Fathers of Confederation, responsibilities to look at those issues. In all sorts of political obiter dicta since that time, those conventions have been part of our specific assignment. Senator Di Nino: Senator Bryden has made some points that I believe we need to address. I too share his concern on certain points, although I may take a different slant on them. For example, in my opinion, perhaps the premiers have taken such a strong role in regional affairs because we have abdicated our responsibility in those areas. However, that is another issue. Mr. Chairman, from my standpoint, the overriding factor here is our participation in the formulation of public policy. I am delighted that we are about to look at this issue with a clean slate. What is it that the Senate needs? We should be looking at it as if we do not have a heck of a lot other than the ability to learn from experience. In that vein, I agree with your comments about the importance of public participation. I think that is a role in which the Senate has been recognized over the years. With all the criticism that has been directed at us, I believe that is one of the areas for which we have been applauded. We are respected for our committee work, and in particular for allowing people to come and participate in the formulation of public policy. Therefore, I believe that there are benefits to using the Committee of the Whole. However, I do not think that restricting our committees to only Committees of the Whole would serve the purpose of the comments I made several moments ago. The question I would like to throw out for discussion is: Does one exclude the other? There may very well be opportunities where you would have public hearings, and maybe at the end of the piece, where appropriate, you would have the minister and his assistants come to the Senate for that part of the analysis of an issue or a bill. We should not necessarily exclude one from the other. The Chairman: The real question is whether we want to do more with Committee of the Whole than we do now. Senator Gauthier: Mr. Robertson, in certain legislatures, legislation is prepared by a committee. In this Parliament, legislation is usually confidential until it is made public at first reading. Therefore, we do not control the agenda; the government does. Committees do not initiate legislation. Am I correct? Mr. Robertson: That is correct. Senator Gauthier: Do you have examples of other legislatures? In England, for example, they do initiate bills within select committees. What about the Americans? I believe it is the same there. Mr. Robertson: In the United States, most legislation is generated by an individual congressmen or senator who introduces a bill. My understanding is that rather than having a debate in the House of Representatives or Senate, the bill is referred to the appropriate committee, and it is then a matter of getting the chairman of that committee to put it on the agenda and schedule hearings. I am not that familiar with the British example. Certainly in the House of Commons there is provision for committees to be instructed to bring in a bill that can either be a draft bill or instructions for the drafting of a bill. That, however, was introduced in 1994 and has not proved to be very successful. Perhaps we should look at that more closely. The Canadian practice is that draft legislation is introduced by the government. As you say, there is the whole issue of confidentiality. There may be consultations, but one does not see the actual bill until it is formally tabled and given first reading. The Chairman: Let me add to that that in the U.S. the administration proposes legislation, but it needs a senator or congressman to introduce it. It has no right of its own to introduce the bills. It needs some endorsement. Any committee of the Senate could, instead of preparing a report, actually prepare a bill and propose that to the Senate. There is no reason why that cannot be done. The Senate would then look at it and adopt it in the sense of adopting it as a report. At that point in time, I presume that the senators would introduce it as a bill. If it had the approval in principle of the Senate, then a senator or a chairman or deputy chairman of a committee would introduce it as a bill. There is no reason why we could not do that in our process. Senator Kroft: Are you are suggesting there would be a report and that someone else would have to pick it up and make it a bill, or that the report itself could be the initiation of the bill? The Chairman: The report would be a report adopted by the Senate, but unless I am wrong, and we could consult with our experts, it is my impression it would then need to be introduced on first reading by the committee chairman or by a member of the committee in the normal fashion. Senator Di Nino: It would need to be done in an appropriate legal manner, which would involve restructuring it instead of having just the report itself. If my memory serves me correctly, I think that has happened. I think reports have led to some legislation. I may be wrong. The Chairman: It has led to the drafting of legislation which was later introduced. A committee could also draft legislation. That was the question Senator Gauthier was asking. It could do that. [Translation] Senator Losier-Cool: I agree with Senator Murray's position on the use of Committee of the Whole as this fosters greater participation by senators and provides some motivation as well. This is certainly not the forum in which to do a clause-by-clause study of a bill. When I look at the list of Senate committees and the number of hours spent on committee work, I have to wonder if some of this work could have been done in Committee of the Whole so that all senators could have taken part in the proceedings. I am thinking among other things of the study of the Auditor General's report, or of the Commissioner of Official Languages' report. Had these reports been reviewed in Committee of the Whole, more senators would have been able to participate in the debate. I must respond to the comments made concerning minorities. The Senate has both a legislative and representative role. Most of us were appointed to the Senate to represent specific groups. I do not have a great deal of confidence in certain provinces when it comes to defending human rights. I do not think that Premier Harris is as staunch a defender of the interests of minorities as are senators Gauthier, Comeau and Poulin. I would be very disappointed if we were to begin calling into question the participation or involvement of minorities in the activities of the Senate. [English] Senator Kroft: I have two points. My first point is from the perspective of the Standing Committee on Internal Economy, Budgets and Administration. I would like to mention that the issue of television, the extent of it and what we do in relation to it will be coming forward more and more. It is a resource issue and that is important because of the number of committees and the number of locals that we can cover by using it. There is a point when the issue of television goes beyond a public relations exercise, or beyond a technical issue. We must find out to what extent it can be used as a tool to assist the Senate in achieving its objectives. Television was mentioned in relation to the Committee of the Whole, and Senator Murray expressed this as one of his interests. We must begin to discuss the merits of television. I leave that thought with honourable senators. My second point deals with a situation that comes up in all sorts of contexts, including the current one about what we do and what the people in the other place do and how well our work is done. It is true that we are the other half of Parliament and we do with legislation what the Commons does with legislation. However, I am looking for opportunities to see what we can do that the other place cannot, or what we can do better than the other place. I have been a member of the Standing Senate Committee on Banking, Trade and Commerce since my appointment to the Senate. My experience has been that we tend to look at issues in the abstract or in isolation. We do not come to grips with some of the big questions. Take the major question of industrial strategy. We may have an issue in the Banking Committee dealing with banks and insurance companies and their roles as part of an industrial strategy. The Standing Senate Committee on Social Affairs, Science and Technology may be doing something else and, for some reason, the Standing Senate Committee on Transport and Communications may have the split bill on publishing. We have these pieces all over the place. The other place operates in the same way. I am searching for how we can bring some of these issues together in one place and try to make them fit into broader policy concerns. The issue of national sovereignty is another example. We touch on it all over the place, but we do not connect the dots often enough to present the whole picture. Is there is a role that the Senate can play whereby the senators bring some of these pieces together and draw conclusions on some of the bigger issues that supersede the legislation itself? I am search for the integrating potential. Senator Stratton: Being a pragmatist, I suggest we look at the five areas of our study and examine how we can structure legislative committees. We are at the end of the May, and we want to have this done before we adjourn at the end of June so we can prepare a draft report. Therefore, we must come to the practical conclusion of how best to accomplish this. In theory, how can we structure our committees to handle legislation? If we are going to study larger issues of industrial strategy, how can we structure policy committees to handle those matters? We must dissect these issues. We must ask ourselves the same questions in relation to the executive and our responsibility in that regard. We have given our responsibilities to the premiers and they run the regions like fiefdoms. We are sometimes remiss in that we do not visit our regions often enough. I am sure that all honourable senators have experienced the phenomenon of visiting their region and finding that the image of the Senate has totally changed. We do some very good work in our own constituencies, and people appreciate us being there. I tie those comments to minority rights because, if a senator is in his own part of Canada, he or she can deal with minority rights. People are being left out and ignored by the premiers and we should and help those who are being walked over by the premiers. That is our role. We should be involved. I am passionate about that. Generally, our Senate committees do good work. However, is there some process we can employ to make them even more effective? If we, at least theoretically, consider how they can work better, we may be able to lay something on the table in regard to all five area of study, as well as how we may use our Committee of the Whole. If we do that, then I think we will be closer to finding good solutions. The Chairman: I think you have set out an agenda for our comprehensive discussion. [Translation] Senator Poulin: Mr. Chairman, there are certain advantages to being last on the list of speakers because the five questions I wanted to ask have already been put by Senator Di Nino. Following up on a question raised by Senator Kroft, since the Senate wants to take a close look at what is does well, or at what it does differently from the other place, to further highlight its role, responsibilities and influence, has anyone looked into whether the Standing Orders have been amended over the past year in terms of the use by the House of Commons of Committee of the Whole? [English] Mr. Robertson: I do not think there is any theoretical reason why Committee of the Whole could not be used with committee study. To enhance or facilitate that, one would want to look at amendments to the rules just to make that option clearer and to set it out. However, there is no reason why our standing committees could not hear witnesses and then do the clause-by-clause consideration with the minister and officials in Committee of the Whole. The only problem with that is that the committee members who heard the evidence would not be the only people voting on the amendments. That is the reason for doing it all in a standing committee. I have not done any research on the House of Commons procedure. However, I do know that they do not use Committee of the Whole very often. That is partly because there is very little that is not controversial in the Commons. They use it mainly for urgent matters such as back-to-work legislation and occasionally at the end of a parliamentary sitting period when they want to rush something through. Supply is dealt with in that way, but that is because the committees have been dealing with the Estimates for a period of time and at the end of a supply period they deal with the appropriations bill. It is a very technical and fairly pro forma type of study. A more extensive review of these can be done, if it is necessary. I think there is a disposition in the House to consider using Committee of the Whole more than is currently used, partly because Committee of the Whole has certain advantages. It is a bit more informal. Members do not have to be at their assigned seats. Mr. Gary O'Brien, Clerk of the Committee: Honourable senators, the Meech Lake Accord was studied at the same time by a special joint committee of the House and Senate and the Committee of the Whole. We did that simultaneously, if you recall. [Translation] Senator Poulin: I want to emphasize what senators Losier-Cool and Stratton said. I am not certain how will be manage to convey the important role we play in representing minorities and the regions in view of our structure or methods of operation. However, it is critical that we do so. As legislators, we have a certain responsibility, Senator Bryden. Admittedly, when the Prime Minister asked me to represent Northern Ontario in the Senate, he was very clear and direct. He said, "I expect you and Senator Gauthier to represent Francophones and Franco-Ontarians in particular. That is the reason why I am not certain how to go about ensuring that both are assigned equal importance. My third point concerns our responsibility in terms of public policy. Senators are a diverse group of people who collectively have a great deal of knowledge and experience. When the Standing Senate Committee on Transport and Communications issued the report "Wired to Win", the response from industry was tremendous. The credibility of the institution was enhanced by the serious nature of the study and the process followed. Reports were tabled in the Senate and discussions continued between industry and the various departments. Three things came to light. First, the study focussed on a range of industries and the Standing Senate Committee on Transport and Communications was a fairly restricted forum in which to conduct such a study. I have made a personal choice to sit on the Banking Committee, because new means of communications will have a major impact on the financial sector. It is therefore important to draw a connection between our findings on new means of communications and the evolution, both nationally and internationally, of the financial sector. Second, our recommendations may serve to determine public policy within various departments. We worked closely with departments and they took our studies seriously. Third, in a country like ours where industry is constantly changing, studies quickly become outdated. The situation evolves so quickly that we should be conducting studies on an ongoing basis. What steps could the Senate take to ensure some measure of continuity in studies that impact public policy? I do not have an answer to that question, but the subject does warrant serious consideration. [English] The Chairman: Senator Joyal and I are familiar with what we used to have in cabinet, that being a checklist of issues. When a bill was proposed, we checked whether it addressed the regions and how, whether it addressed minorities and how, et cetera. Your comments stimulate the question of whether we could give our chairs and members of committees, when they get a bill, a briefing memo with a checklist against which to test the legislation. That is what is done in the cabinet process. Senator Joyal: I would like first to address the issue of the Committee of the Whole. The experience of the Committee of the Whole of the Senate has an advantage over the one in the House of Commons. It is much less partisan. This is a major advantage for the credibility of the entire exercise. I have participated in Committee of the Whole. I will give you a symbolic example: the amendment of section 93 of the Constitution. We had, of course, the ministers and we had the witnesses coming to the bar. The objective was to discuss the merits of the arguments, and as you said, to make sure that there was a due process in coming to the conclusion that we were removing some rights that were constitutional in relation to Newfoundland and Quebec. My first point is that a very important element that Committee of the Whole should exploit is the fact that we are less partisan. We have a discussions that seek to find the merits of the case before us. We are seen as a credible bridge between the citizens and the Government of Canada. We hear this repeatedly from witnesses of various committees. I remember the comments of Professor Matas who testified before the Standing Senate Committee on Legal and Constitutional Affairs. We asked him if this issue was raised in the House of Commons. His response was that, in the House of Commons, there is no discussion as to the merit or the substance of a bill. In other words, when we are acting as a Committee of the Whole, we should be sure that the quality of our work is put to best use in that committee. The second point on the Committee of the Whole is that we must recognize that it is an exceptional procedure. If we are going to change this procedure, if it is to become more common practice, we must find the parameters, based on the precedents of where we have used them in the past. We must try to define a line of evolution. Senator Rivest told me yesterday that I was very conservative in terms of institutions. Maybe, that is not a negative comment. If we are to use the institution that is the Committee of the Whole and bring it to a higher level, it should be in line with what we have been doing. How many times has the Committee of the Whole has been used in the last 20 years or 30 years? What do we? What conclusions can we draw from that? It would be very helpful to define some parameters. I am not ready to say that the Committee of the Whole should become a regular procedure. If it must be expanded, it must be expanded within the understanding of our past practice. Senator Kroft: May I ask Senator Joyal a question? The Chairman: When he has finished. Senator Joyal: If you do not mind, Senator Kroft, there are three other points I want to put. One is on the issue of the minority interest. Something fundamental has changed in this country since 1982 in that we now have our Charter of Rights and Freedoms. As much as, the Supreme Court and the courts, have been vested with additional responsibilities, we should never forget that, when a case finds its way to the Supreme Court of Canada, it is because there is litigation. People have fought, with financial support, to reach that level. My concept, which is why I might be a Liberal, Senator Stratton, is that our society values the culture of rights. That culture of rights should not be limited only to its interpretation by the court, because interpretation by the court is only when there is litigation. There should be a process by which politicians assume the responsibility. It is one of my points. I am studying that. I was not ready to take part in the debate yesterday on the compensation of judges and on the issue of their independence because I am of the opinion - and I say it is an opinion not yet a conviction - that many politicians refuse to assume their responsibility in terms of rights. They prefer to send it to court. I do not want to make partisan statement here, but now we see provincial governments adopting legislation with the following notation, "In answer to the Supreme Court judgment...". That means that it is the court, not the province, that is dictating legislation. Thus, the court is drawn into the political debate. That is something very profound in our society and gives rise to the old issue of judicial activism, and so forth. I am certainly not prepared to say that human rights generally is an issue that we should leave to the court because the court is very active. We would be the authors of our own demise if we were to do that. We have a role in human rights even though it is a different role from the one we had in the past. We should question ourselves on how we assume it. That is another issue. The second point is about the provinces. I have a deep preoccupation with how the provincial governments should be involved in the exercise of the federal competence. Similarly, I have some problems seeing the federal government involved in the discussion of legislation at the provincial level. It is the old issue of whether the Senate should be composed of delegates from the provinces or not. The ultimate conclusion is that the provinces must speak for the provinces, and they must bring their opinions here directly. Should we have senators appointed by the premiers, and let them be in the middle of the federal forum? I am not sure that is what we want. I agree that we must have a checklist for bills, especially when we are discussing the regional point of view. I am supportive of your approach. We must understand the impact of the bill on regional issues, and the point of view of the regions. If the point of view of the regions is opposed to that of the premier, I think that the arguments and the counter arguments could be made in the Senate. We are here for that. We are a forum to reconcile regional points of views. We are not merely delegates of the provinces. We are here to reconcile the various points of view of regions. That is our ultimate role. We are not deprived of the role of representing regions. We have a role. That role must be well defined when we approach legislation. This is an important point. My last point is in regards to the comment that we do policy study because we are not busy with legislation. The inference is that we do not take an interest in legislation; it is too much kitchen work. We want to discuss broad ideas. It is more like a living room discussion. I refer you to the Constitution. We are here to give advice and consent. When we are here to give advice, the policy is in place. We give advice to Canadians concerning legislation on difficult issues; euthanasia for terminally ill people, for example. We try to bring forward the various elements before a political party, whichever it is, must make a stand and come back with specific proposals. We are helping the democratic process. This is a role that we can play, because we are a house that has continuity. And because we are a house that has a memory. These are important qualities of our institution. These qualities were entrenched in the Constitution by the Fathers of Confederation and are reflected in the specific role of giving advice and consent. I feel that it is an important element, when we define the roles of the committees, in determining the bridge with Canadians. Remember that Senator Di Nino pointed out the fact that no witness who appeared before any committee, had ever felt that they did had not had their day in court. If we are not providing Canadians with a good bridge how can that be reflected in the work of our committee and the Committee of the Whole? This is where we bring about the cynical criticism about parliamentary institutions. I am referring to the criticism that parliamentary institutions are totally remote from the people. We do not leave such an impression with the witnesses who come before us. To the contrary, they seem to leave satisfied that they have been heard. That is something that we should maintain in the elements of the issue that have been raised today. Senator Fraser: I would like to stand with those who argue that we have another important regional role to play. I argue that much of the present discontent with the political system in general, and with the Senate in particular, has to do with a perceived lack of regional representation as distinct from first ministers. I also believe that we have acquired a greater role in the protection of minorities. We have acquired that in part because we are the only legislative chamber in Canada that will ever pay any attention to minorities. All other legislative members are elected and so they pay attention primarily to majorities. I have some views on how we might use the Committee of the Whole to enhance our regional role. Chair, may I ask you to circulate to the members of the committee, the tiresomely long letter that I wrote to you concerning these matters? The Chairman: With your permission, and without accepting your judgment of your letter, I would be happy to circulate it. Senator Gauthier, we have time for a two-minute contribution. Senator Gauthier: You gave me an answer, and Senator Kroft gave me an answer, as did Mr. Robertson. I want to come back to the main point which is Committee of the Whole. Normally, governments, and the whips in particular, detest Committee of the Whole because it creates a dangerous situation. You do not control it; you have votes at any time; you have phone calls; and you have all kinds of difficulties. Generally speaking, there is a mind-set against having Committees of the Whole. I do not agree with that. I was whip for many years, and we did not have any problems. We should distinguish between the legislative process and the government operations process, because they are different. Committee of the Whole should look after what I would call "government operations." Legislative processes should be committee work. I do not see us getting into a strong discussion on the principle or the "why" of an issue. People would only confuse the "how" and we would be involved in a difficult situation. We should distinguish between the "why" and the "how" of issues, and we should also distinguish between the legislative process and the government operations, if I may use that expression. By tomorrow, the House of Commons will look at a modernization of the rules of the House of Commons. The Chairman: Is the report tomorrow? Senator Gauthier: Do we have a copy of that? Senator Robertson: The report will probably be tabled on Friday. That is their deadline. We will ensure that a copy of that report is circulated to members of this committee. The Chairman: It will be an interesting document indeed. Another interesting document will be the transcript of this discussion of this committee. I will ask Mr. Robertson, in the absence of anyone else at the table, to see that the transcript is completed and circulated as soon as possible, so that when we come back to review committees, we can read over this discussion. There are many valuable decisions in the comments that we have exchanged today, as well as good operating suggestions. We can build a great deal on this and make some decisions based on this conceptual discussion. Senator Stratton: Briefly, Mr. Chairman, apart from obtaining the minutes of this meeting, what will be the next step in this process? The Chairman: The next step is to follow your outline. That is my concept of the next step. Senator Stratton: Thank you. The Chairman: The discussion today has provided much texture for our direction on this issue. Senator Kroft: I want to invite honourable senators to think of two particular bills, the clarity bill and the bill on the Nisga'a treaty, and to consider how those bills would have been better served by consideration by Committee of the Whole as compared to consideration by either a standing committee or a special committee. The debate has a greater sense of reality if we think in terms of an actual process, rather than in the abstract. We should ask ourselves how we might have done it one way or the other. In both cases, the committee served the Senate well. Perhaps we could have done better. It is easier to think of these problems in terms of real examples. Senator Joyal: We do something in the Senate that is not done in the House of Commons, and I believe that Senator Gauthier will be able to corroborate that. In the Senate, we have debates. If Senator Di Nino makes a speech, I can ask him a question, just as happened with Senator Bryden yesterday in the house. We can have an orderly debate. In the House of Commons, that does not exist. The Chairman: The same point, with respect to the bill on the Nisga'a treaty, for example, much of Question Period, for several days, was devoted to a debate. In fact, it may not fit our rules exactly, but that would have happened in Committee of the Whole, if we had actually put that label on it and gone into Committee of the Whole and had that exchange. Therefore, it is something we should study. Your comments are well targeted. Apropos of what you said, Senator Di Nino, about citizen participation, one of the proposals in this memo is an important one. I refer to page 8, paragraph 3.2, Citizen Commissions. The recommendation is that from time to time, with approval of the Senate, we can create a Senate committee that adds citizens to it. In doing so the citizens can participate in cross-examining other citizens and witnesses, while not, of course, participating in either the writing of our report or voting. I recommend that to colleagues. The committee adjourned.