Proceedings of the Standing Senate Committee on
Rules, Procedures and the Rights of Parliament
(Formerly Privileges, Standing Rules and Orders)
Issue 14 - Evidence
OTTAWA, Wednesday, February 20, 2002
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 12:15 p.m. to consider Bill S-34, respecting Royal Assent to bills passed by the Houses of Parliament.
Senator Jack Austin (Chairman) in the Chair.
[English]
The Chairman: I call our meeting to order. There is one housekeeping item to be done. The Clerk of the committee has been distributing the February 2002 update of the Rules of the Senate. Essentially, this is the same as the February 2001 edition but incorporates the amendments that have been made by the Senate, including the addition of two committees, the name change for this committee, the name change of the Standing Senate Committee on National Security and Defence and the new rules with respect to senators indicted and subject to judicial proceedings.
May I have your agreement to report the February 2002 compilation to the Senate? Agreed?
Hon. Senators: Agreed.
The Chairman: Thank you.
The order of business today is the continuation and the conclusion of the committee's consideration of Bill S-34, the Royal Assent bill. We have had more than ten discussions on this piece of legislation, and I believe we are ready to deal with the report.
We have agreed at our last meeting to the observations that we wish to make. We have received from Senator Carstairs and Minister Goodale a letter dated February 7, 2002, with respect to the Royal Assent bill, Bill S-34. This letter has been circulated to all members.
Senator Carstairs is here to discuss the provisions of Bill S-34, the government's views regarding the future of customary Royal Assent. Welcome Senator Carstairs.
Senator Carstairs: Honourable senators, as you know, I am a sponsor of this bill in the Senate, so I thank you for this opportunity to appear again on the final day to participate in your deliberations. I thank you for the degree of participation with which you have engaged on this particular piece of legislation. I asked for this bill to be introduced in the Senate, rather than in the House of Commons, because I felt there might be more debate and dialogue in this place than there might be in the other place. I welcome that dialogue and it has resulted in our coming up with some proposals that I hope will improve the original bill, but maintain the spirit.
Until now, as you know, Canada has relied on the traditional ceremony of Royal Assent that takes place in the Senate chamber. I am pleased that the committee has agreed with the two features of the bill: First, that the current ceremony should be preserved as an ongoing tradition of Parliament by allowing Royal Assent to be done by written procedure as well. Written assent, as you know, is the only method in many other countries, such as the U.K., all other commonwealth countries and, indeed, in the provinces of Quebec and Ontario.
I would like to thank the Leader of the Opposition, Senator Lynch-Staunton, for his work on this bill and other similar bills, and Senator Grafstein, for his elaboration of an alternative proposal. I would like to thank all of you, for what I know has been an active pursuit of getting to the best possible resolution.
As honourable senators are aware, a number of concerns have appeared and have been raised over the years with respect to the Royal Assent ceremony. The current ceremony lasts about 30 minutes and has taken place on 32 occasions in the course of the Thirty-sixth and Thirty-seventh Parliaments, often with low attendance from senators and very few, if any, members of the other place. I have suggested that this frequency and the limited attendance for ceremonies mean that the Royal Assent ceremony has been weakened and the traditional ceremony has been, in the eyes of some, put into a certain amount of disrepute.
That is why I was pleased to develop, with Senator Austin, the letter from myself and the Leader of the Government of the House of Commons, providing the government's undertakings for the long-term scheduling of traditional ceremonies, which will help to address the attendance concerns with which we are all familiar.
In particular, we will ensure that the scheduling of Royal Assent ceremonies be set on a longer term basis and at times that facilitate public awareness of the ceremony and attendance by parliamentarians. The government will support any decisions taken by the Senate to televise scheduled Royal Assent ceremonies.
I found yesterday an interesting first step. I am sure it was not unnoticed by a number of the senators that, while there were more than 60 of us in the Senate, we actually had 32 members of Parliament, including two cabinet ministers, plus the cabinet minister who was there for Royal Assent and the Speaker of the House of Commons, not his deputy, all in attendance. That is the kind of thing that I would hope we could do on a regular basis once we have put this bill into place.
These undertakings will strengthen the effectiveness of two changes that have been developed by the committee. The first change would be to allow the written procedure for Royal Assent to be witnessed by more than one member from each house of Parliament; in other words, by two or more senators or by two or more members of the House of Commons. The second change would be to increase the number of traditional ceremonies from at least one to at least two in each calendar year. For other occasions, Royal Assent would be signified by written declaration in a way that is consistent with the constitutional requirement for Royal Assent. I should also like to point out that Bill S-34 builds on the government's broader work to modernize Parliament, including the updating of parliamentary compensation provisions, which were done last year; the ongoing improvements in Parliamentary procedures; and increases in resources to the Library of Parliament.
I have already noted that Bill S-34 is a non-partisan bill that enjoys the support of the leadership and honourable senators in both sides of this chamber. It is modelled on the United Kingdom legislation, but with our own particular Canadian aspects. It is a bit like our foreign policy with respect to the United States. It builds on the work of honourable senators over the past two decades.
The changes to increase the number of traditional ceremonies from at least one to at least two per year and to allow for the possibility of witnessing the written procedure for Royal Assent strengthens the provisions of Bill S-34 in a balanced and reasonable way that is acceptable to the government. I believe it is likely to be acceptable in the other place.
I would hope, therefore, that the committee can agree on these two changes today and report the bill for early consideration to the Senate.
The Chairman: Thank you for advice, which, I think as chair, meets all the concerns that members of the committee have expressed in the past.
I would now invite honourable senators to ask Senator Carstairs questions.
Senator Prud'homme: I have already informed Senator Carstairs' office about my concerns.
[Translation]
The translation of the letter written by Mr. Goodale and Ms Carstairs impressed me more than the letter that was written in English. Obviously.
[English]
We have a habit of telling the leadership of both sides of the Senate that both sides of the Senate agree. Some members who sit on the other side are not necessarily members of the second largest party. There are five independents and a party that is not recognized, plus a series of Liberals who sit on the other side.
[Translation]
If we refer to the second paragraph, I believe that the French version should state: ``The support of the leaders of both parties in the Senate.''
[English]
I do not know why the English was translated that way in French. When we refer to the leadership of both sides of the House, it is a technicality but it is a precedent. I know by experience that everything works by precedent.
With respect to these two people of both Houses who will be attending the Royal Assent ceremony, will they be made aware in writing when Royal Assent will take place so that others who may like to attend are able to do so? If such is the case, where will the ceremony take place?
Senator Carstairs: The ceremony could occur in two places. It could take place at the residence of the Governor General, if she was to give Royal Assent to a particular piece of legislation; or it could take place in the Supreme Court building, if a Deputy Governor-General was to give Royal Assent. The clearest way in which we could do that would be to make an announcement in the chamber when such a Royal Assent ceremony would take place, if it were to be done by written consent.
There was some suggestion of months to be indicated when these formal ceremonies would take place. My personal experience is that when a bill is ready and it has engaged senators in an active way, then we would use the formal procedure. If that was not possible — for example, time being an issue — then the senators who were actively engaged would in all likelihood wish to attend the written ceremony.
I can also foresee situations in which the last piece of business that the government would engage in prior to a recess might be supply. I am not sure that there would be a great desire on the part of a great many senators to accompany me to the Governor General's or to the law courts in order to see this done. That is where you will have to put some confidence in the leadership. While I recognize the importance of every single senator, I think that it is well recognized that the leadership in our chamber means the Leader of the Government in the Senate and the Leader of the Opposition in the Senate. That is the intent to which this phrase was drawn. It would not be my intent that we would ever do Royal Assent by written or by formal procedure without consultation with the Leader of the Opposition and the sharing of that information with members who sit as independents and as members of the Canadian Alliance.
Senator Prud'homme: I love the word ``sharing,'' but it is like informing someone of something and then saying, ``You should be happy that you have been informed. Goodbye.'' I am a traditionalist and I will not back off at my age. I am against changes involving every tradition. British tradition fits me very well. I will not speak against that, nor will I delay any further. I am still a traditionalist, and I will explain it eventually. I do not have to apologize for being a strong French Canadian monarchist until our gracious Queen disappears. After that, there will be another debate.
As such, I accepted Senator Lynch-Staunton Staunton's strong views, reluctantly. For senators who would like to be informed and who would like to attend this ceremony — and there will not be many — a notice to all senators regarding the location of the Royal Assent ceremony would be appreciated.
I am sure the honourable senator need not worry about a stampede. I am now the dean of Parliament, after the sad departure of the Right Honourable Mr. Gray, and I believe someone has to stand for tradition. If some people wish to attend, they should be given the opportunity.
I wish it registered that I reluctantly agree to this bill. However, I would very strongly make my point to Senator Carstairs and to the leadership that there should be notice so that no one feels excluded.
I trust Senator Carstairs and Senator Lynch-Staunton. However, what if the Leader of the Opposition is not in a position to attend that day? I am sure he will delegate his authority.
I believe senators, as guardians of tradition more than the House of Commons, should stand firm and ensure we are not eliminated if some want to attend.
The Chairman: As all colleagues are aware, there is a one-day notice provision in the bill itself.
Senator Prud'homme: Mr. Chairman, there may be a notice. I accept that notice means you have been notified, but that is not completely satisfactory to me in the sense that I read it. My question is: Can someone who feels strongly about the issue attend? He may be notified. That does not mean he has the right to attend.
[Translation]
Senator Gauthier: First, I would like to comment on the Royal Assent ceremony that was held yesterday. I was very satisfied to see that the Senate had issued a press release stating that it had held a Royal Assent ceremony. I hope that we will continue to do so.
My question to the Minister is as follows: In your comments earlier, you stated:
[English]
The ceremony could take place in the Supreme Court building or the law courts. I am somewhat disturbed by that statement because I do not want the Parliament of Canada to move to the Supreme Court building. I think that would be a direct conflict of interest. I may be misinterpreting the intent, but I have not heard any member of the committee expressing favour with such a system. We would rather see the Governor General or a person delegated by him or her, perhaps a member of the Order of Canada. I do not think we should be going to the Supreme Court of Canada.
The Chairman: May I say that what Senator Gauthier is addressing is a point of consensus in our observations.
Senator Carstairs: The reality is that the authority to delegate responsibility for Royal Assent, if the Governor General is not available, is the Governor General. If Her Excellency should designate — as she always does — a member of the Supreme Court, then that is her authority to do so.
The Chairman: The committee is quite aware that the Royal Patent provides absolute discretion to the Governor General.
Senator Bryden: This issue does not relate to the bill itself, but I think it is significant. I was struck by the fact that we are contemplating the Royal Assent not only being done in camera but being done by moving the bill to where the Governor General is, in Rideau Hall, or if she is not going to do it herself, then to the law courts where her designate is.
Is it not possible for us to have the Royal Assent of a bill that has been passed through all the stages in the precinct, which is Parliament? Could it not be signed in the Speaker's chamber, at least? Is there something that says that it must go there? If there is not, and we speak about it the way my leader has, it will soon become common knowledge that we will run back and forth to either Rideau Hall or the law courts to get this signed.
Why can there not be a signing, for example, in the Speaker's chamber in the Senate, which is the senior parliamentary house, and have the Governor General's designate attend there to sign it?
I just raise that.
Senator Carstairs: I can only use the Quebec experience and also the Ontario experience because the Lieutenant- Governor has an office in the Quebec Parliament and in the Parliament of Ontario. Unfortunately, our Governor General does not have an office in the Senate. I understand that originally our Speaker's chambers were the Governor General's chambers. That has not been the case for a long time. I may be wrong, but that is my understanding.
We are trying to move to a simpler procedure on occasion — certainly not always — and if we were to ask the Governor General or the deputy to come the Senate, then why would we not just have them in the Senate chamber? If we are going to move with the British tradition — which is that the Queen and her designate sign it — it does not happen at Westminster.
Senator Cools: The first point I would like to make is something of a procedural one, or perhaps even a clarification. It follows upon what Senator Gauthier had to say.
Yes, I think there was some agreement of the committee about the question of the appointments, who should be designated as representatives of the Governor General in this regard. However, I think the record should show that we have not yet voted on our observations since that would only take place when we do clause-by-clause.
The Chairman: We approved the observations at our last session and agreed that the observations were settled.
Senator Cools: There was agreement, but there was no formal vote on that. The proper and orderly way to proceed is as we complete clause-by-clause, we then move to the business of the report when we vote on what the report should be and on the fact of reporting itself. That is the way we usually proceed, Mr. Chairman.
The Chairman: We proceed by consensus when we have it, and we had consensus. Does any other member of the committee wish to have a formal vote clause-by-clause on the observations?
The Chairman: For the record, no one said yes.
Senator Cools: Then I would say perhaps this is not the proper way to proceed. The Senate has sent a bill before us to study, and we owe it to the chamber and to the process itself to vote in an orderly way on each particular clause of the bill.
The Chairman: We will with the bill.
Senator Cools: In addition to that, we would vote on the phenomenon of the report and so on. That is the way we usually proceed. We want some deviation or some variety, but it seems to me if we follow a natural trend, that would be by far the wisest way.
The Chairman: The principal rule is the committee is master of its procedure, and I think the committee has dealt with the issue.
Senator Milne: I have a question. I do not know what happened here before because I was not here. I am not a regular member of the committee, as you know. I just do not know how you can decide in advance what your observations will be when you do not know what the votes will be on the clause-by-clause.
The Chairman: No observations are reported to the Senate unless the bill is reported. This committee has done all these issues in figure eights for weeks at a time, and the committee itself came to a conclusion on the procedure. To question this committee's procedure, when we had a consensus on the observations, strikes me as odd. You can dispute procedure in any committee, if you wish. I wonder if you have had that experience.
Senator Cools: I am not disputing anything. There is nothing to dispute. The fact is that the committee has not voted on the question. There is absolutely nothing to dispute. The committee has not voted on the bill or the report or on the inclusions that will be in the report. I would submit again, that is an ordered way in which we should proceed.
The Chairman: I think we can deal with this in a practical fashion. I suggest we proceed to the clause-by-clause examination and deal with the bill. If any senator wishes to vote paragraph-by-paragraph on the observations, and it is the consensus of the committee to go back and do that work, I am open to the consensus of the committee.
Let us proceed to clause-by-clause. Is it agreed?
Senator Cools: I will defer to Senator Carstairs.
Senator Carstairs: I would like some clarification here. Senator Lynch-Staunton, are you representing yourself as Leader of the Opposition in the Senate today, as an ex officio member of the committee?
Senator Lynch-Staunton: I am only ex officio if another ex officio is here.
Senator Carstairs: Then I will also act as the ex officio member, and he and I will both be represented at this committee.
The Chairman: Excellent. Moving to clause-by-clause examination, I ask: Shall clause 1 stand?
Hon. Senators: Agreed.
The Chairman: Agreed. Clause 2, the form and manner of Royal Assent. We had drafted a preamble and in a previous meeting, we accepted for discussion the government's preamble, which is on page 1 of the documents with alternative paragraphs. That has been circulated for these last three weeks and is now in — I hope — a useful compilation in front of you. The preamble reads:
Whereas royal assent is the constitutional culmination of the legislative process;
Whereas the customary ceremony of royal assent, which assembles the three constituent entities of Parliament, is an important legislative tradition to be preserved;
And whereas it is desirable to facilitate the work of Parliament and the process of enactment by enabling royal assent to be signified by written declaration;
Senator Cools: Chairman, it seems to me if we are proceeding to clause-by-clause and someone wants to move a preamble, perhaps the mover should be moving that preamble.
The Chairman: Thank you. Procedurally, as chairman, I am telling the committee what is in front of us. Then I will ask someone to move it. If you would be slightly more patient with me, I think we will move through the issues.
Senator Cools: Then perhaps, Mr. Chairman, you could clarify what document we are working with. Are we working with this administrative consolidation, or are we working from the bill?
The Chairman: I am looking at page one. The bill does not have a preamble in it. We have been discussing in this committee the question of a preamble. The preamble I have just read was submitted by the government. I will ask Senator Carstairs, as a member of the committee, to move it, because she is the government representative here.
Senator Carstairs: I would so move that preamble.
The Chairman: Thank you. Senators, is there any discussion with respect to this preamble?
Senator Cools: Yes. This preamble is a rather curious piece of work. We were told last week, by yourself and by others, that the best and proper way to proceed is without a preamble.
The Chairman: Not at all. I said no such thing.
Senator Cools: I did not say that you said so.
The Chairman: You said ``by yourself and others.'' You just said that. I am trying to represent this committee. This committee believes that a preamble is desirable to explain the nature of this legislation and to provide for public education.
Senator Carstairs: I have to say that I do not much like preambles to bills, but I listened with great interest to the committee. This is the preamble that we have, with the government's help, said we could live with. Let me put on the record that if I had my druthers, I would rather have no preamble at all. Since we have listened carefully to what you had to say in your committee, then this is a preamble that I feel comfortable in recommending.
The Chairman: Question? All in favour, would you raise your hands? Any opposed? One member. Two members are opposed. No, one member is opposed.
Senator Cools: Record my name, please.
The Chairman: Senator Cools is opposed. The preamble is carried.
May I then move away from the alternative 1.1, which we do not need, and move to clause 2? In the bill, we have a text that we have simplified, which I understand is acceptable. May I ask a senator to move the simplified version:
Royal assent to a bill passed by the Houses of Parliament may be signified, during the session in which both Houses pass the bill,
(a) in Parliament assembled; or
(b) by written declaration.
Senator Losier-Cool, thank you. Is there any discussion?
Senator Cools: Chairman, I am just somewhat puzzled about how we are proceeding. I understand that we are moving things, but somehow or the other they have to move on the record. The person who moves has to say, ``I move that ...''
The Chairman: That is very helpful.
Senator Cools: That is not happening. I am afraid we just voted on a preamble, and I do not know what the words were, so I want it us to be crystal clear.
The Chairman: I read them out, and Senator Carstairs moved them. I read out clause 2. Senator Losier-Cool, would you put your motion on the record?
[Translation]
Senator Losier-Cool: The terms in number 2 are, and I quote:
Royal assent to a bill passed by the Houses of Parliament may be signified, during the session in which both Houses pass the bill:
(a) in the form and manner customary before the coming into force of this Act; or
(b) by written declaration, unless the bill is the first bill of the session appropriating sums for the public service of Canada based on main or supplementary estimates.
Mr. Chairman, I so move.
[English]
The Chairman: All in favour? Any opposed? Unanimously carried.
Then we move to clause 3.
Senator Milne: Mr. Chair, I would move an amendment to clause 3, if I may:
That clause 3 be amended on page 1 by replacing line 17 with the following:
least twice in each calendar year.
The word ``once'' would be replaced by the word ``twice.''
The Chairman: All right, so moved. I will ask our legal counsel to advise with respect to the proposed amendment. Royal Assent shall be signified in Parliament, just so I understand your amendment, at least twice in each calendar year?
Senator Milne: I am amending clause 3 on page 1, line 17, of the bill. Line 17 should be replaced by ``least twice in each calendar year.''
The Chairman: That is not the problem. The problem relates to the form and manner. Perhaps Mr. Audcent can speak to it.
Mr. Audcent: Honourable senators, when you amended clause 2, you substituted the language ``form and manner customary'' with the language ``in Parliament assembled.'' Also, you removed the reference to the first bill of the session that is an appropriation bill.
If you look at the amendments that you have attached to the administrative consolidation, those two elements reappear in the amendment to clause 3 that were circulated. You will want consider whether you want to have the amendment as it is worded attached to the administrative consolidation, which would use the language ``Parliament assembled'' and which would also bring back the reference to the appropriation bill. It would also incorporate Senator Milne's requirement for twice in each calendar year. The final element there is that it also refers to a bill in respect of which the Governor General or either House of Parliament requests.
The Chairman: Senator Milne, there is no problem with the twice. I wonder if you could look at the language prepared by our counsel in clause 3.(1): ``Royal Assent shall be signified in Parliament assembled at least twice in each calendar year''?
Could I ask you to support that language because otherwise the drafting of this bill will be disassembled?
Senator Milne: Mr. Chairman, I am only making one amendment, and that is to replace the word ``once'' with the word ``twice.'' That is all I am amending and it is not yet in clause 3.
The Chairman: I am asking you to go to the proposed amendments and you will see the word ``twice'' in them.
Senator Milne: I am looking at that, but all I am doing, in the bill that is before us, in clause 3, line 17, is replacing the word ``once'' with the word ``twice.'' If anyone else wants to do the rest of it, they may.
The Chairman: I see. However, on the advice of counsel we need to remove the words, ``in the form and manner,'' referred to in paragraph 2(a) and replace them with, ``shall be signified in Parliament assembled.'' There is no dispute here in the committee about ``once'' or ``twice.'' We like ``twice'' but we need the language or we will have to amend all sorts of other things. Does it matter to you?
Senator Milne: No, I am just replacing the word ``once'' with the word ``twice,'' and when it comes to 2(a), gentlemen, you are on your own. I am looking at clause 3.
The Chairman: May I ask that we receive a further amendment that is in the form as proposed by our counsel?
Senator Kroft: I would offer the amendment in the language of the administrative consolidation: ``Royal Assent shall be signified in Parliament assembled at least twice in each calendar year,'' which I believe looks after both the reconfiguration of the language and the concern of Senator Milne for replacing ``once'' with ``twice.''
The Chairman: It is proposed by Senator Milne that the provision in the bill, clause 3, be amended by substituting the word ``once'' with ``twice,'' and by substituting the paragraph 3 with 3(1), ``Royal Assent shall be signified in Parliament assembled at least twice in each calendar year.''
Are we ready for the question on the amendment to the amendment? Agreed?
Senator Milne: With which amendment are we dealing?
The Chairman: Senator Kroft's amendment.
Senator Milne: I would prefer we vote on mine first.
The Chairman: Are we ready for the amendment that Senator Milne has proposed? Agreed?
Hon. Senators: Agreed.
The Chairman: Are we ready for the amendment that Senator Kroft has proposed?
Senator Cools: Mr. Chairman, I think there is some confusion.
The Chairman: I have put a vote. Let me finish the vote and then you will be able to address this.
Are we ready for the amendment that Senator Kroft has proposed? Agreed? Agreed.
Yes, Senator Cools, you wanted to address our procedure again?
Senator Cools: Yes. It seems to me that we have two documents before us, but only one is the bill. The administrative consolidation is a worthy document, and no doubt a useful document, but we have only one bill before us. This is the bill that was printed and was sent to us for study. It seems to me that this is the document that we should be working from and with explicitly, because the administrative consolidation is an informal document. If we would proceed in the usual way, we would avoid some confusion because already we can see that we are making some amendments that seem to be unintended.
The Chairman: They are not unintended. They have been studied ever so long by this committee.
Senator Cools: With all due respect, Mr. Chairman, today I am a member of this committee.
The Chairman: Yes, and I am telling you there is a lot of history on this item in this committee.
Senator Cools: I read, Mr. Chairman.
The Chairman: That is good. We are still considering paragraph 3. There was a suggested amendment to be proposed regarding a subparagraph 2 to clause 3, which I would like to read.
(2) Royal assent shall be signified in Parliament assembled:
(a) in the case of the first bill of the session appropriating sums for the public service of Canada based upon main or supplementary estimates; and
(b) in the case of any other bill in respect of which the Governor General or either House of Parliament so requests.
Is there discussion with respect to the proposed amendment?
Senator Carstairs: Yes. I have no difficulty with the first part of the amendment but I do have with the second part of the amendment. I think you are confusing apples and oranges here. On the one hand, you say that we are going to give permission for written assent. Then we say we will have to have two signified ceremonies every year, and then you say but any time the Houses of Parliament requests we can have it, so where is our stand on this? I must say it is very confusing.
The Chairman: If I could summarize the committee's discussion of this particular point, the view expressed in the committee by several senators was that the written declaration should always be subject to the wishes of either House of Parliament that a bill be given customary assent because of its political importance and regional importance. However, you would require a resolution of the Senate or a resolution of the House of Commons so to do.
The issue would, in practical terms, probably only arise in the case where one House, as a chamber, would pass such a resolution. It might be, of course, that one party would control the Lower House, a different party the Upper House and one of those parties might want a customary Royal Assent in those circumstances.
Normally, however, without such a resolution, written assent would go forward. Normally, it would take a very unusual political circumstance in Canada for either House to ever move such a resolution. That is the summary of the discussion that we had.
Senator Carstairs: I would have to say I would oppose that amendment. I think it is putting unnecessary restrictions.
Senator Lynch-Staunton: Does that mean, chairman, you could have eight bills waiting for Royal Assent and one House would say, ``Well, let us have three of them done traditionally,'' and the other House would say, ``Well, let us have two others done our way?'' This is just opening up a can of worms that is unnecessary. Either we do it clean and straight, or we do not do it at all. Already the bill provides for two traditional ceremonies. How many do we have a year? We have at least six or seven maximum. Now you are saying to Parliament, ``Well, despite that, if you care to have one just pass a resolution and we will have one.'' It cuts the bill, as far as I am concerned.
The Chairman: Is there any other discussion on the point of clause 3(2)(b)?
Senator Milne: I am looking at the entire amendment that Senator Kroft has made. I can see, now that I have had a chance to look at it, that 3.(1), ``Royal Assent shall be signified in Parliament assembled at least twice in each calendar year,'' cleans up the language so that it agrees with what we have already passed in clause 2. However, the second part of that I simply cannot support.
The Chairman: Senator Kroft only moved 3(1). We are taking these clause-by-clause. Is there any other discussion?
Senator Joyal: There is a very important element in that sub-paragraph (b) the way I read it, which is the fact that we would give to one House the power to compel the other. I would have great reluctance to do that. It would go against all the constitutional principles that each House is sovereign in its own initiatives. If the Senate decides, for instance, to request the traditional sanction in a bill, it would compel the House of Commons to be present for the senior ceremony. I have great reluctance on constitutional principles to accept that.
The Chairman: Is there anyone who wants to speak on behalf of (b)? Shall we vote in this way? Shall we vote first on clause 2?
Senator Milne: Let us vote on 3.(1) first.
The Chairman: We passed that clause. We are talking now about clause 3.(2)(a) and (b).
Senator Milne: You passed mine. We did not pass this one.
The Chairman: We did. We passed clause 3.(1), which was moved by Senator Kroft. We are now discussing clause 3.(2). That is the chair's ruling.
I am proposing to colleagues that we deal with 3.(2)(b) first. We do not have (2)(b) in the bill. I am presuming the consensus is not to deal with (2)(b), but to deal with 2(a). The proposed amendment discussed in the committee would be that the first bill of the session appropriating sums for the Public Service of Canada be one of the two bills dealt with.
Is there any discussion on that subject? Does any colleague have a problem with that or do you just want to have any two bills that the government selects?
Senator Prud'homme: For some of us, our only problem is knowing which document you are on.
The Chairman: The Clerk will show you exactly where we are.
Senator Cools: Could you tell me on which one we voted? Did we vote on clause 3. as in the bill or in clause 3.(1) as in the consolidation?
The Chairman: Right now, clause 3. in the bill would read as clause 3.(1) reads in the document. That is all. The question is, do we have a subclause (2) or not? The issue there is whether this committee wants to recommend, as it has done for so many weeks, that the first bill of the session appropriating sums for the Public Service of Canada be one of the two bills?
Senator Andreychuk: I suggest you put it to the group. We have had much discussion. Is someone prepared to move that? If not, we move on to the next clause of the bill.
The Chairman: I agree. Is anyone prepared to move the clause that is described as (2)(a)?
Senator Stratton: I will.
The Chairman: Senator Stratton, yes. Shall clause (2)(a) carry?
Some Hon Senators: Yea.
Some Hon Senators: No.
The Chairman: May I have a show of hands in favour? Four.
Opposed? Two.
I should ask formally then whether there is a mover for clause (2)(b)? There being none, I will ask the Clerk and our counsel to deal with the technicality of the (1) and the (2), so that it is tidied up.
Senator Cools: We are not finished with clause 3.
The Chairman: Yes, we have finished with it.
Senator Cools: I have not finished with it.
The Chairman: We just had votes.
Senator Cools: I have an additional amendment.
The Chairman: Please. Do you have your amendment in writing in both languages? Good.
Senator Cools: I am working from the bill for my amendment, honourable senators, not the consolidatation, which seems to cause great confusion.
I would like to further amend clause 3. I move, seconded by Senator Milne, that Bill S-34 be amended by adding after line 17 on page 1, the following:
Witnesses
3.1. the signification of royal assent by written declaration may be witnessed by more than one member from each House of Parliament.
The Chairman: Is there any discussion of this amendment? Senator Carstairs?
Senator Carstairs: Quite frankly, this is the government's response to the members of the committee who indicated that they wished to have, on occasion, individuals to witness the written procedure.
Honourable senators, I can see this particularly in a situation where it was a private member's bill and the particular private member who had sponsored the bill would want to be in attendance at the written procedure if we had decided to do that. That is why the government has concurred with this amendment.
The Chairman: Any further discussion?
Senator Joyal: I would like to support the principle on an even broader perspective. The essential traditional elements of the constitutional act of sanction always involve the two Houses when done in the traditional way. This amendment protects the principle that the two Houses could be represented during the ceremony.
The major change is that it does not make both Houses being present an obligation. That is a major change between the proposal now and that which we had discussed earlier. The principle could be served if any member in either House intends to attend. Essentially, that is what this amendment involves.
There is an important element that we should keep in mind. Royal sanction, when done in private chamber could still involve a representative of each House of Parliament. However, it does not make it obligatory. That is the essential difference from that which we discussed previously.
Senator Andreychuk: Many meetings ago, I had indicated that I thought that any member should be there. We were told at that time that any member of Parliament who wanted to be there could be there. Are we now saying that without this amendment, we could not signify a request to be there, and we could be precluded? Perhaps Mr. Audcent could respond to that.
If that is the case. Which seems to be contrary to what I thought at the start of this process, then we need the amendment. Therefore, let us move it.
The Chairman: Is there any other discussion?
Senator Andreychuk: I would like Mr. Audcent to respond whether we would be legally precluded from being present at a written Royal Assent.
Mr. Audcent: My understanding, honourable senators, is that without an amendment you will be precluded from attending unless you have been invited to attend by the Governnor General. With this amendment, you do not have a right to be there.
The amendment says, ``The signification of Royal Assent by written declaration'' — that is what the Governor General is doing — ``may be witnessed by more than one member from each House of Parliament.''That is true. It may be witnessed by more than one, however it would depend on how many she invites. I do not see it as worded as imposing an obligation to invite the member.
The Chairman: The discussion in the committee gave rise to this proposal, which is 3.1(4):
Royal Assent by written declaration must be signified in the presence of at least one member of the Senate and one member of the House of Commons.
The amendment that is being introduced by Senator Cools is: ``may be witnessed by more than one member.'' Thus, it is a clear choice for the committee one way or the other.
Senator Cools: I was looking for an opportunity to speak my proposed amendment.
We are dealing with the business of the exercise of Her Majesty's prerogative. We must be mindful that it remains prerogative. There is very little in this act that is going to govern that prerogative.
The purpose of my proposed amendment is to provide some assurances that when Royal Assent is needed in short time the government will bow to having two persons from Parliament. I think all the other privileges that pertain will remain. This is not limiting anything else other than what it precisely speaks to.
The Chairman: Your amendment simply says that the government will have the discretion to decide whether anyone from either house will be present. It is a different point than was discussed in the committee. The amendment is before this committee. Are we ready for the amendment?
Senator Prud'homme: As a parliamentarian of 38 years, I am extremely reluctant to have it such that I could or could not be invited to see the Royal Assent of the laws that we discuss and debate. Any member should be made aware so that they could attend. We know that very few will attend, but it is the right of a parliamentarian to see how a bill is ultimately disposed of.
I think our legal officer chose a different kind of approach by having it at the invitation of the Governor General. With all due respect, I do not want to be a guest of the Governor General; I do not want to be a guest of the law office. I think it is our right to see how the bill is finally disposed of. In your proposed amendment, which are well written, the proposed clause 3.1 reads:
Every member of Parliament has the right to be present when a bill receives royal assent.
If this was your intention, Senator Carstairs, I would be more than happy to sign it. However, to exclude or say that someone will be chosen to attend, who is the person who will choose the people who may be in attendance?
Personally, I think you are cutting off some of our privileges as parliamentarians. This destroys everything we have taught to students since I have been involved in politics in the university. The process is the House and the Senate, and then Royal Assent. This may be in the presence of few or many, but not at a person's whim.
I see every tradition, such as the delaying of appointing a Black Rod, slipping away every day. It is part of a change that is taking place, where tradition does not mean as much as it once did. I am trying to accommodate you, sir, and everyone else, especially Senator Lynch-Staunton Staunton who put forward this idea of modernizing Royal Assent. However, I am very reluctant. I appeal to the good company I am with today, as a non-member, to see if they share my view that it is one of our last privileges, to say that I can attend Royal Assent if I see fit.
Senator Kroft: We are going back to the fundamental distinction that is at issue in this bill. Once we have decided to go with an executive procedure, an expedited procedure, or a non-traditional procedure, we are back-paddling upstream again if we are talking about the right of full parliamentary representation there. They are inconsistent thoughts.
We can talk about tradition. I think the mother of parliaments has long since left our tradition behind in these things. We make our rules according to the wishes of our own Parliament. What we are doing here is making the choice for a new procedure. Let us be consistent.
Senator Carstairs: I concur with what Senator Kroft has said. What we have done by this is to make it possible for people to attend — particularly on those very special occasions when it might be a private member's bill and we have decided for whatever reason not to do it by the full procedure in the house. However, as Senator Cools has said, in exceptional circumstances — such as a labour dispute, which was an interesting example — in which they want the bill, and we want to get on with it, it must be possible to act expeditiously.
Honourable senators, let me assure you that if I am taking a bill over to a Deputy Governor General or to the Governor General herself and someone tells me they want to come, I would be more than pleased to have them come along with me.
Senator Prud'homme: You may be happy, but it is not ensured, it is not written.
The Chairman: We have before us an amendment proposed by Senator Cools. Will those in favour of the motion, please raise their hands?
I count three in favour.
The Chairman: Will those opposed to the motion, please raise their hands?
I count six senators opposed to this amendment.
That takes us to a discussion, if we wish, with respect to the proposed 3.1 in the compilation of amendments in our discussion. Is there a mover for 3.1(1):
Every member of a Parliament has the right to be present when a bill receives Royal Assent.
Is anyone prepared to move that?
Is there discussion?
Senator Cools: Mr. Chairman, I would like to offer you an opposite thought. I would like to offer that we cannot place in a statute something that is not a fact, and it is not a fact that every member of Parliament has a right to be present when a bill receives Royal Assent. It is not a right.
The Chairman: It is not a fact, it is a question of law which we are either legislating into law or we do not let it into law. If we legislate it, it is a law, and if we do not legislate it, it is not a law.
Senator Cools: I am saying that is not the current status.
The Chairman: You may disagree with something.
Senator Cools: I would also submit that we are dealing with a bill immediately after second reading and the proposed changes are not structurally and procedurally in order. Many of these proposals are not truly amendments. They are, in my opinion, a rewrite of the bill. If this is, in effect, a new bill being brought forward, then these proposals should have had first reading in the Senate as well.
I would submit that there is a difference between amending a bill and restructuring and rewriting a bill. It seems to me that we are in the domain of a bill rewrite.
I understand that people have concerns, and those are just and fair. I have no problem with that.
The Chairman: These proposals are all related to the principle of Royal Assent. They are not outside the scope of the bill.
Senator Cools: The proposals that are coming forward would not have been submitted to the chamber in the first and second reading debates. The fact is that new proposals to bills cannot take the form of amendments. Before us now, in fact, we have a new bill in this administrative consolidation, and it has been a new bill for quite some time. It is being persisted with in this committee in a forceful way. However, the fact is that most of these so-called proposed amendments did not receive Royal Consent and they were not put before the chamber as a part of the bill to be discussed. It is improper to place them before the Senate as amendments because they are not amendments. This is a rewrite of the bill.
The Chairman: Are we ready for the question?
Hon. Senators: Yes.
The Chairman: Shall proposed clause 3.1(1) carry?
Some Hon. Senators: No.
The Chairman: May I have a show of hands of those in favour of clause 3.1(1)? I see two.
May I have a show of hands of those opposed to clause 3.1(1)? I see six.
The clause does not carry.
Proposed Clause 3.1(2) relates to notice:
Where royal assent is to be signified by written declaration, each House of Parliament shall be notified, no later than the day before, by the Speaker of that House or by the person acting as Speaker, of the time and place of the declaration.
Does anyone wish to move this provision?
Senator Carstairs: No, but I wish to speak to it.
The Chairman: Is there no mover of this provision?
Senator Carstairs: I do not need to speak.
The Chairman: Proposed clause 3.1(3) relates to a quorum and reads:
Royal assent in Parliament assembled must be signified in the presence of at least fifteen Senators and at least twenty members of the House of Commons.
Does anyone wish to propose that amendment? No.
Proposed clause 3.1(4) reads as follows:
Royal assent by written declaration must be signified in the presence of at least one member of the Senate and one member of the House of Commons.
Senator Carstairs: In principle, we already defeated that clause.
Senator Kroft: No, we did not.
Senator Cools: We defeated the amendment that I proposed. I am sorry, but it is the same in substance.
Senator Kroft: I would move.
The Chairman: Senator Kroft moves the following clause:
Royal assent by written declaration must be signified in the presence of at least one member of the Senate and one member of the House of Commons.
Is there discussion?
Senator Carstairs: I supported the original motion and I will oppose this one for the very practical reason that you may not be able to have one member of the House of Commons and one member of the Senate present. If you are dealing with an urgent situation and everyone has left, it may not be possible. That is why we said ``may'' with the idea that, where at all possible, any senators or members of the House of Commons who indicated they wanted to be present could, in fact, do so. To insist that they be present will nullify the value of the written procedure.
The Chairman: What I am saying is just a compilation of everything this committee has discussed in the past in that we have a ``saving clause'' proposed in the bill — clause 7:
No royal assent is invalid only because section 3 or section 3.1 is not complied with.
The government has its way of dealing with an emergency. It will not invalidate Royal Assent.
Is there further discussion?
Senator Lynch-Staunton: That was put in for another reason.
Senator Carstairs: I do not think that was the intent of proposed clause 7 at all. The intent is that if, for example, Parliament rose and there was no chance to have two written procedures, then the bill would not be invalidated. When the House is sitting and we are doing Royal Assent — either by written or formal procedure — I do not think we would be covered at all by clause 7. The government would be acting outside of the Royal Assent Act, and that is why we proposed the word ``may.'' The only change is that ``may'' is the change that we moved, and ``must'' has now been moved by Senator Kroft. I want to be on the record as opposing the word ``must.''
Senator Cools: I would submit that the proposition contained in the proposal put before us is exactly the same proposition as was contained in my proposed amendment, which was defeated. The only difference — the major difference — between the two proposals is the word ``must'' and the difference between the words ``must'' and ``may.''
The proposition before us now was already defeated a few moments ago in this committee.
The Chairman: I have already ruled that that is not the case. They are two very different conditions. Unless the committee wants to overrule me, I will ask for the question on clause 3.1(4). Would those in favour of proposed clause 3.1(4) please raise their hands?
Those opposed?
Clause 3.1(4) does not carry.
Senator Cools: Could we record how people voted?
The Chairman: We do not need to record in a committee how people voted, except the numbers. We do not need to record the names of the members of the committee.
Senator Prud'homme: Of course.
The Chairman: You wish, of course?
Senator Prud'homme: You are establishing a dangerous precedent. You do not need a recorded vote in committee. Of course, in committee someone can ask for a registered vote.
Senator Cools: You can ask for a roll call at any time.
Senator Prud'homme: I am not asking.
The Chairman: Can any one member of the committee request a recorded vote?
Senator Prud'homme: Of course.
The Chairman: Is it the right of one member?
Senator Cools: It is the right of a member to request a roll call.
The Chairman: This committee has worked so well by consensus that I have forgotten the rules. We will have a recorded vote on clause 3.1(4).
Senator Carstairs: Has someone formally asked for a recorded vote?
The Chairman: Senator Cools has asked for one.
Senator Cools: I am prepared to withdraw that request. I was trying to make the point that members have a right to a roll call.
The Chairman: Thank you. I would like to proceed with the bill.
As a result of the various votes, we do not have a provision requiring any attendance whatever at written declaration of Royal Assent.
Let us proceed to clause 4 of the bill. Is there a mover for clause 4 of the bill, that is, that:
Each House of Parliament shall be notified of a written declaration of royal assent by the Speaker of that House or by the person acting as Speaker.
Senator Carstairs: I so move.
The Chairman: Is there discussion? Are there questions?
Shall clause 4 carry?
Hon. Senators: Agreed.
The Chairman: Those opposed? None.
Is there a mover for clause 5?
Senator Carstairs: I move clause 5:
Where royal assent is signified by written declaration, the Act is deemed to be assented to on the day on which the two Houses of Parliament have been notified of the declaration.
The Chairman: Shall clause 5 carry?
Hon. Senators: Agreed.
The Chairman: Those opposed? None.
Proposed clause 6.(1) reads:
A written declaration of royal assent is not a statutory instrument for the purposes of the Statutory Instruments Act.
May I ask Senator Lynch-Staunton to move clause 6.(1)?
Senator Lynch-Staunton: Did we skip clause 5.1 or is it not in the bill? Is there no clause in the bill that will establish that the guidelines be —
The Chairman: There is no clause in the bill. If you want to propose —
Senator Lynch-Staunton: No, I do not.
The Chairman: We are just going right past the alternative proposals.
Senator Lynch-Staunton: It is just that I was having trouble following.
The Chairman: We are at proposed clause 6.(1).
Senator Lynch-Staunton: I would be happy to move it.
Senator Prud'homme: You went so fast with clause 5, Mr. Chairman.
[Translation]
5. Where royal assent is signified by written declaration, the Act is deemed to be assented to on the day on which the two Houses of Parliament have been notified of the declaration.
[English]
Following what Senator Carstairs said about no one being around to do their duty, what if one of the Houses is not sitting? We have seen this before where the House may not be sitting, and the report could be put into the hands of the clerk. I see no reference to that here.
The Chairman: This is Senator Carstairs' provision, so I will ask her to respond.
Senator Carstairs: Remember that this actually deals with the time after the signatory has taken place, and then the Houses of Parliament have to be informed that this has taken place. They would be informed at the next sitting of the Houses of Parliament.
The Chairman: And if we are not sitting?
Senator Carstairs: It would be the next day that the Houses were sitting.
The Chairman: The law might not come into force, then.
Senator Prud'homme: My understanding is that if the House is not sitting, there is no Royal Assent. That is the way I read clause 5 in French. With all due respect to the lawyers, it is a dangerous thing to do. The act would not come into effect unless both Houses are ``signified by written declaration.''
Senator Lynch-Staunton: We had Royal Assent in June on the day we adjourned for the summer. Who was told the next day? Perhaps it was deposited with the speaker or the clerk of each House.
Senator Carstairs: Senator Lynch-Staunton Staunton, I cannot give you an answer to that question. I would assume that it is the same procedure for the other place if it were not in session. The clerk is informed and that is the way in which it would be made known.
Senator Prud'homme: There are always words to that effect.
Senator Carstairs: We have to go down to the chamber, honourable senators, and I would be reluctant to move on this particular clause unless I had clarification.
The Chairman: Let us adjourn our discussion of the bill.
Senator Milne: A point of clarification, Mr. Chair. Clause 4 was carried today with no problems, as it stands in the bill, but not as it stands here in the consolidation.
The Chairman: That is right, only as it is in the bill. May we adjourn with the understanding that we are still discussing clause 5.
Hon. Senators: Agreed.
The committee adjourned.