Proceedings of the Standing Senate Committee on
Rules, Procedures and the Rights of Parliament
(Formerly Privileges, Standing Rules and Orders)
Issue 15 - Evidence
OTTAWA, Tuesday March 5, 2002
The Standing Committee on Rules, Procedures and the Rights of Parliament, to which was referred Bill S-34, respecting royal assent to bills passed by the Houses of Parliament, met this day at 10:05 a.m. to give consideration to the bill and to be briefed on reform of the House of Lords.
Senator Jack Austin (Chairman) in the Chair.
[English]
The Chairman: To review our progress with Bill S-34 in respect of Royal Assent, we examined the work of the committee at our previous meeting. Honourable senators will recall that we agreed to proceed by making decisions in principle before we dealt with the bill.
We then moved through the bill and amendments were presented. You will see in front of you a document: ``Bill S- 34 — Clause-by-clause Consideration.''
In the previous session of the committee, after the sponsor of the bill, Senator Carstairs, spoke to the committee, we agreed to amendments. There was no preamble in the original bill. We agreed to the preamble, which is contained under the column of amendments agreed to, which was moved by Senator Carstairs and adopted. We deferred the enacting clause and we deferred the short title.
On the left side of the document you will see the provisions in the original bill. We amended clause 2 to create a new clause 2 which is contained in the amendments. This language, was recommended to us by our counsel, Mr. Audcent, and was approved.
We also made amendments to clause 3. Essentially, we adjusted the bill so that Royal Assent would be provided twice in each calendar year. One occasion, under subclause 3(2) would be for the first bill of the session, appropriating sums for the public service. That amendment was agreed to.
Clause 4 in the original bill was adopted without amendment.
Clause 5 was moved by Senator Carstairs, and Senator Prud'homme raised a question. The committee agreed to defer clause 5 for further consideration. The question raised by Senator Prud'homme was: What happens to Royal Assent if Parliament is not sitting? Therefore, we deferred that clause. Mr. Audcent will provide us with the answer to that question, but I will summarize it before he does so. Royal Assent is not given if Parliament is not sitting; therefore there is no problem with that. The government will have the choice, if Parliament is sitting, of either using the customary procedure or using the written declaration procedure.
Clause 5 has been moved by Senator Carstairs. Is there any discussion? Shall clause 5 carry?
Hon. Senators: Agreed.
The Chairman: There are no amendments to clause 6. It is a provision that a written declaration of Royal Assent is not a statutory instrument for the purposes of the Statutory Instruments Act. Clause 6 was moved by Senator Lynch- Staunton. Shall clause 6 carry?
Hon. Senators: Agreed.
The Chairman: We will now consider clause 7, which requires a motion. Senator Gauthier, please.
Senator Gauthier: Thank you.
Mr. Chairman, I have a question concerning clause 5 which states:
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 Houses are to be notified, but it is possible that no one would be present to receive the notice. Could this be done by the back door in the same way that reports are frequently tabled by the back door? Could notification be provided in that way? Could they simply inform the Clerk and that would be it?
The Chairman: That pertains to clause 5. Mr. Audcent, could you enlighten us? We have already passed that clause. Senator Gauthier, you will notice that clause 4 states:
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.
Therefore, notification cannot be done by the back door. It has to be done by the Speaker.
Senator Gauthier: It has to be done by the Speaker and not simply by the clerk.
The Chairman: Yes, notification has to be by the Speaker.
Senator Gauthier: That is my understanding.
The Chairman: We are now at clause 7.
Senator Milne: I move clause 7.
The Chairman: Thank you, Senator Milne. Is the question ready to be put?
Hon. Senators: Question.
The Chairman: Shall clause 7 carry?
Hon. Senators: Agreed.
The Chairman: That brings us back to the enacting clause. May I have a motion to pass the enacting clause, which states:
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Are honourable senators you ready for the question?
Hon. Senators: Question.
The Chairman: Shall the enacting clause carry?
Hon. Senators: Agreed.
The Chairman: Senator Poulin, would you move clause 1, the short title?
Senator Poulin: I so move.
The Chairman: Shall clause 1, the short title, carry?
Hon. Senators: Agreed.
The Chairman: Shall the bill, as amended, carry?
Hon. Senators: Agreed.
Senator Joyal: On division, Mr. Chair. An amendment was defeated at the last meeting of our committee. I am referring to the proposal to add the following after line 17:
3.1(1) The signification of Royal Assent by written declaration may be witnessed by more than one member from each House of Parliament.
That proposed amendment was defeated at the last meeting. It is my intention to reintroduce it at third reading in the house. I would prefer that Bill S-34 be adopted on division.
The Chairman: Thank you. Bill S-34 is adopted on division. Thank you, colleagues. We shall report the bill tomorrow.
We have two other items to deal with in respect of the bill. We adopted the observations before, and I should like the permission of the committee to append the letter of Senator Carstairs and Minister Goodale dealing with the intentions of government. The letter was circulated to all members of the committee. Is it agreed?
Hon. Senators: Agreed.
The Chairman: Thank you. We will have two appendices: the observations and the bill as amended, and the letter in respect of customary Royal Assent.
I would ask Mr. Robertson to give us an update on Reform of the House of Lords, after which we will proceed in camera to discuss the committee report on committees.
Mr. James R. Robertson, Researcher, Library of Parliament: My intent is to provide a brief overview of the status of Reform of the House of Lords, both as another bicameral institution with an upper chamber and, insofar as the chairman indicates, how it may affect the consideration of the draft reports on committee restructuring.
As most of you are aware, the current Labour Government in the United Kingdom made constitutional reform one of its major issues in the 1997 election. The first phase of that was to eliminate most of the hereditary lords, which they did in 1999. They reduced the number of hereditary lords to 92, who were elected by their colleagues.
They then appointed a royal commission chaired by Lord Wakeham, which was given a fairly short period of time in which to come up with proposals for continuing reform of the upper chamber. That royal commission came out with a report in 2000, I believe, which was fairly well-received and which had many reasonably good recommendations, given its short time frame.
Subsequently, there was talk of establishing a joint committee of the House of Commons and the House of Lords to advance the issue further. There was disagreement on exactly what the mandate of this committee would be and therefore, it was never established. This would have involved parliamentarians from government and opposition from both chambers. There are many people who are dissatisfied that that has never occurred.
Then came the election of last year, in which the manifest of the Labour Party included a commitment that it would proceed with reform of the upper chamber.
The latest phase began in November 2001, when the government tabled its white paper, which was entitled ``Completing the Reform.'' This white paper was basically the government's response to the Wakeham royal commission, and it has been roundly criticized and has received extremely unfavourable reviews from virtually everyone.
Cynical journalists and politicians believe it is in Mr. Blair's interests not to complete the reform. They believe that he is quite happy with the status quo whereby he continues to be able to exercise patronage; the House of Lords continues to function in its current form; and he can maintain that they tried to reform the House of Lords but were unable to do so.
There has also been a strong indication that there are strong divisions within the Labour Party — within the Labour Cabinet. Mr. Robin Cook, who was demoted from foreign minister to Leader of the House of Commons, is apparently reported to have been a strong proponent of an elected upper chamber. The Lord Chancellor, Lord Irvine, has been resisting the prospect of more elected members. One of the biggest criticisms was the fact that the revised, reformed upper chamber would have a minimal elected component.
Essentially, the white paper called for 120 independent members. These would be similar to the current cross- benchers. They would not have political affiliation. They would be selected on the basis of their expertise in particular areas according to their professional qualifications and their contribution to public, British life over the years.
There would be 120 — or roughly 20 per cent — elected members. The government was not entirely clear on what their constituencies would be or what their term of office would be. I will review that in a moment.
There would be 16 bishops of the Church of England and, contrary to the Wakeham commission report, which suggested that other religious groups be accommodated, the government is sticking with the Church of England bishops, with a suggestion that some of the independent members could be drawn from other religious denominations.
They are also rejecting various proposals to eliminate the law lords from the House of Lords, so the government is proposing that 12 law lords continue to be members of the House of Lords. There have been other suggestions, one being that they be eliminated and that a superior court be established, thereby segregating the judicial and legislative functions of the current House of Lords.
The balance of the Lords, which numbers roughly 330, would be appointed by the parties. Depending on the results of an election, there would be an adjustment. Essentially, these people would be drawn from lists selected by the parties.
There is an appointments commission which is responsible for appointing the 120 independent members. With respect to the political appointments, they would only turn down people who are clearly unsuitable. They would not be able to select the political members. That would be the responsibility of the political parties. With regard to the political parties, their numbers would be designed to reflect voting in the last election, as well as to ensure that no one party had a majority in the House of Lords. Even if the Labour Party had a landslide majority in a general election for the Commons, they would be unable to appoint a majority of the members of the House of Lords.
The Chairman: On the method of appointment, are the cross-benchers appointed by a commission?
Mr. Robertson: Yes.
The Chairman: That number is 120, is it?
Mr. Robertson: Yes.
The Chairman: When vacancies appear in the 120, by whom are the commissioners appointed?
Mr. Robertson: Under the white paper, they are appointed by the government, which is a bone of contention. There is some provision for parliamentary approval, but it is not an appointment by Parliament per se.
The Chairman: The commissioners who choose the cross-benchers are to chose them from a so-called blue ribbon group of representatives of the various accomplished people in the U.K. A principal difference between us and the Lords is that their numbers are not set, they are elastic. Our numbers are rigidly set by our Constitution. Therefore, if the government wishes to appoint government supporters, the opposition has the right to nominate to the government opposition supporters in some ratio; is that right?
Mr. Robertson: Yes. In its white paper, the government was proposing a maximum number of 600 in the reformed House of Lords. This was slightly larger than the Wakeham commission had recommended. I believe they recommended around 550. At present, the House of Lords consists of 750 members. However, as you said, Mr. Chairman, there is no upper limit. Mr. Blair has been extremely prolific in appointing life peers who are members of the House of Lords. If he continues at his current rate, the number of members of the House of Lords will continue to increase.
Under the proposal, there would be a limit of 600, of which 20 per cent would be directly elected and 20 per cent would be made up of these independent cross-benchers. Taking away the bishops and the law lords, the balance is about 330, who would be appointed by the political parties. The proportions among the parties would be adjusted periodically to reflect electoral success.
Senator Stratton: How long is their appointment?
Mr. Robertson: That is one of the outstanding issues. The Wakeham commission recommended a non-renewable 15- year appointment. This would allow expertise to be developed, as well as provide for the development of experience. The government appeared to be leaning toward a much shorter period of time, but to allow for reappointment or re- election. They left open the question of whether it should be one Parliament, two Parliaments or three Parliaments, that is approximately four or five years, eight or ten years, or twelve or fifteen years. They appeared quite strongly to be leaning toward a shorter but renewable period of time.
One of the motivations of everyone seems to be that they want to ensure that this reformed House of Lords does not come into conflict with the House of Commons in terms of undermining the legitimacy of the House of Commons and in terms of becoming another power source. Wakeham suggested a longer period of time on the basis that this would further distinguish it and would lead to a longer term perspective. The difficulty with a longer term is that the political appointees make it more difficult to adjust them periodically if people are there for a 10 or 15-year term of office.
The Chairman: Are you referring only to those who are elected?
Mr. Robertson: No. All of them would be members for whatever period of time is fixed. You could have different terms for the appointed versus the elected. However, the feeling seems to be that there should be a fixed term of office for both.
Senator Milne: If I understand this correctly, then, 20 per cent would be directly elected for whatever period of time. There would be 120 independent cross-benchers, appointed or chosen by commissioners. There would be 16 bishops and 12 law lords. There would be 330 appointed by the parties and adjusted by the election results. Is that right?
Mr. Robertson: That is right.
Senator Milne: The hereditary lords would be completely out.
Mr. Robertson: That is right. They are now down to 92. The idea is that, once phase two of this reform takes place, the hereditary lords will cease to be members in any way. In fact, membership would be separated from the peerage. You would no longer be a Lord. If you were a member of the House of Lords, you would be listed, instead of an ``MP,'' as an ``ML,'' which means Member of the Lords.
There would be no titles. There would continue to be a peerage. You would be appointed in the Honours List to be elevated to the peerage. However, elevation to the peerage appointment as a peer of the realm would not give you any right to sit in the House of Lords. Sitting in the House of Lords would not turn you into a peer per se.
Senator Di Nino: I read somewhere that there was some discussion about changing the name from the House of Lords to the Senate. Is that being discussed?
Mr. Robertson: I think there has been discussion about that. The latest suggestion from the House of Commons committee which looked into this, which was the Public Administration Select Committee, was that we get rid of the term, ``House of Lords,'' and just let it fade into oblivion and replace it with the ``Second Chamber,'' which is how they often referred to it.
As for calling it the Senate, some consideration was given to that but none of the recent reports recommended that.
Senator Di Nino: It sounds to me, Mr. Chairman, as if they will be discussing this, as we have the Canadian Senate, for the next 200 years.
Senator Poulin: In the recommendations, is there any reference to grandfathering any of the existing rules or members?
Mr. Robertson: Yes, interestingly, there is. The current life peers appointed by the government would be able to remain members of the House of Lords for an interim period of time. Gradually, as they got older and retired or died, the numbers would be reduced to 600.
The public administration committee, which recommended getting rid of the bishops and the law lords, also recommended getting rid of the life peers by the second election after reform, by making some arrangements for them to cease to be members of the House of Lords. The government's white paper, however, provided that they would continue on for at least 15 years until their numbers were brought below the requisite number.
Senator Stratton: I thought the Tory party position had evolved into an elected body called, ``The Senate.''
Mr. Robertson: That could be correct. That rings a bell now, yes.
The Chairman: The Blair government has said it would be too much in competition with the lower house. Thus, they produced the report that Mr. Robertson is briefing you on, which has lots of holes and no timetable for enactment.
Senator Joyal: Is it fair to say that the major obstacle to reform is the Labour Party itself, especially the division there is amongst all the members of the House of Commons over the number of ``Lords'' who would be elected?
Mr. Robertson: Yes.
Senator Joyal: That strong division is one of the elements that would prevent the government from taking any further initiative at this point in time. In other words, they cannot work out a consensus on the number of Lords who would be elected.
Mr. Robertson: I think that is an accurate assessment. The problem in Great Britain with Mr. Blair appears to be considerable concern or antipathy towards the Prime Minister's office and a clique of advisers around him. They are often not members of cabinet so much as personal advisers, and they seem to be very resistant to a more directly elected House of Lords. Certainly, as Senator Joyal says, within the caucus, particularly in the House of Commons, there is considerable pressure for a greater number of elected members.
The white paper, as I say, was released in November. The government had asked for comments by January. In the meantime, the Public Administration Select Committee of the House of Commons undertook to study it to see if they could give some feedback. They heard from Lord Irvine and from Mr. Cook. Mr. Cook, in his testimony, said that he would not be bringing forward any legislation to implement changes until at least the end of the current session, which I understand is November of this year. Therefore, reform has been delayed. Given the divisions within the Labour Party, I suspect it may go beyond that.
The Public Administration Committee released the report in mid-February. That committee, I presume, has a majority of labour members on it but it is reflective of all the parties. It mentioned that both the Social Democrat Party and the Conservative Party in Great Britain have come out in favour of an elected upper chamber. They indicated that the cross-benchers would not be elected. Their concern was that you could not elect cross-benchers without them being partisan.
The Public Administration Committee is proposing that at least 60 per cent be elected. They indicated that it must be more than 50 per cent and that the political members must be appointed by an independent commission appointed by Parliament. The parties would submit names but the final decision would be made by this independent commission. If the government did not agree to that, they would move the number of elected members of the upper chamber, second chamber, to 70 per cent or 80 per cent.
The mass of public opinion seems to be towards a predominantly elected second chamber.
As you can imagine, a great number of people are very concerned about elections. They prefer to keep it wholly appointed. They put forward very strong arguments, as many of you in the Senate have heard in Canada, about the merits and demerits of having an elected upper chamber. The Public Administration Committee, though, is making it very clear that there is no legitimacy for reform, and that the upper chamber would not be able to function unless there is a predominantly elected component to it.
At this point, that seems to be the general position of most of the opposition parties and most of the public commentators on this issue. However, clearly, the government has not, to date, shown any inclination to do it.
To the government's credit, although this white paper was criticized very strongly for only having 20 per cent elected, the Wakeham commission did not recommend an inordinate number of elected. They still would have had a minority of the members of the upper chamber who would have been elected. The government has been criticized but, perhaps, it also has borne the brunt of the criticism for ideas that it inherited or that its commission told it, not so much that it invented itself.
Senator Poulin: On a point of clarification, Mr. Robertson, when you first began your presentation you spoke about a change to the House of Lords that was brought about by the Blair government immediately after its election. Could you just remind us of that immediate change that was made? Did it require constitutional reform?
Mr. Robertson: The immediate change was to remove the right of hereditary Lords to sit in the House of Lords. The original proposal was to eliminate the right of all of them. The eventual solution compromise was that the, currently, 92 members of the House of Lords, who are mostly elected by their other hereditary peers as their representatives, would continue to be members of the House of Lords.
At present the House of Lords consists of the law Lords, the bishops, the life peers, who were appointed by previous British governments as well as the current British government for their own lifetime, as well as these 92 hereditary Lords who represent all of the hereditary peers of Great Britain.
The Chairman: The first principle, in considering the reform of Parliament, the British, with respect to the House of Lords, wanted to get rid of the hereditary peers. This seems to be an ongoing process, and it will probably come home some day.
The second principle was a debate with respect to the powers of the Lords. There was no desire to increase the powers. They are powers of review and suspension, unlike our powers. Even with those powers, the House of Lords has a certain prestige in the British political process. The next step was to ensure, as Mr. Robertson has said, that there is no majority in the Lords in order to have a diversity of political opinion and so on.
On the topic of how people are appointed to that house, there were commissions, elections and political recommendations. There are diverse ways of doing that, but the Prime Minister does not, by himself, as here, control the appointment process to the Lords.
The question arises, how is it a check and balance on the executive? I have here an article here in English — and several weeks ago I gave a copy of this to Senator Gauthier — which is The Economist view of the reform. It crosses over, because there is a parallel process, reform of the House of Commons, going on in Great Britain. I also have a document in English only; it is a British government document.
The concern has waxed and waned about whether the election of a substantial number of Lords creates a new political dynamic in the U.K. You have to add the ingredient of decentralization. We now have a Scottish legislature and a Welsh advisory legislature. Perhaps Stornaway will some day be something again, who knows. It is very much a process in being.
We stem from the concept of the House of Lords, but how do you argue, from their reforms, for anything that we might some day consider? The purpose of the briefing is to ask ourselves: How is it relevant? There are no answers, but we need to ask ourselves the question.
Mr. Robertson: I was trying to find my copy, and I do not seem to be able to lay my hands on it. The British House of Commons committee that looked at the white paper, did try to go back and ask: What is the purpose of reform? Are we trying to provide better accountability of the government to Parliament? Are we trying to have the two Houses working together? Are we trying to hold the executive to account? How do we have legitimacy for the upper chamber?
The specifics are quite different, given the fact that the House of Lords has a different and much longer history and a different constitutional role. The main thing is to look at the motivation for reform and perhaps some of the underlying objectives of reform.
As always in these issues, I suspect the question of an elected versus an appointed chamber has become the rallying cry for public debate rather than, perhaps, the more important issues of why you want an upper chamber, what role can it or should it play that is different from the lower chamber, the popularly elected chamber.
There were suggestions that members of the upper chamber could be selected on a different basis. They speak of it representing the nations and regions of Great Britain. This gets into how you decide the constituencies, and whether you have proportional representation for the members of the upper chamber as compared to a more popularly elected first-past-the-post system for the lower chamber.
One argument in the House of Commons committee was that since you have large ridings for the upper chamber members, they cannot do constituency work. They will be too busy, and they will not be able to service a large constituency. Therefore, the constituency work would continue to be the purview of members of the elected lower chamber.
The one power the House of Lords currently has is the right to disallow secondary legislation. It has been recommended by the Wakeham commission and the white paper that this be removed and replaced with a three-month suspensive power. Unfortunately, in the interim, the House of Lords, for the first time in many years, actually used this power, and now people, including Lord Wakeham, are now reconsidering whether it was a good idea to suggest taking away this power.
The Chairman: Secondary legislation is regulation. They can set aside orders in council regulations.
Mr. Robertson: Interestingly, given their role to represent the regions and nations of Great Britain, the suggestion is being put forward that this new reformed House of Lords upper chamber should play some special role with respect to constitutional amendments or coordination with the devolved powers in Wales, Scotland and Ireland. To date that seems to have been rejected.
Going back to Senator Poulin's point, the problem in Great Britain is that they do not have a written Constitution, so it becomes difficult deciding what is a constitutional document or change and what is not.
The Chairman: Parliament decides there.
Mr. Robertson: In Great Britain, the Speaker of the lower house certifies a money bill. It was suggested that the Speaker of the House of Commons could certify a constitutional bill.
On the broader issue, the question of modernization of procedures, the House of Commons is engaged in a major exercise of reviewing its internal procedures to make the executive more accountable.
The House of Lords has a working group that is also looking at its internal procedures. They were supposed to report by January. I am now advised that it should be by Easter, in which case we will get a copy of that report to you as soon as it becomes available.
[Translation]
Senator Losier-Cool: I appreciate receiving this information from Mr. Robertson concerning reform in the House of Lords. Perhaps there may be something for us to draw on, but ongoing Senate reform must reflect the expectations of Canadians and our country's culture.
Firstly, what kind of mandate would a joint committee with the House of Lords have and secondly, what purpose would such a joint committee serve? There are vast differences between our two institutions. We need to focus on Canadian Senate reform as a process to be undertaken by Canadians.
[English]
Mr. Robertson: I think the idea of the joint committee would have been to try to build a consensus between the two chambers on the role of an upper chamber and also to ensure that members of all sides in both Houses were included in the discussion.
As it was, there was a royal commission, which included representatives of different groups, but the final decision rests at this point with the government through its white paper, and presumably their intent is to introduce legislation.
Obviously, as Senator Stratton has indicated, the opposition parties in Britain have, for either principled or strategic reasons, chosen to come out in favour of a much different version of an upper chamber than that proposed by the government. In that partisan environment, as we know in Canada, it makes reform that much more difficult to achieve.
Senator Gauthier: As you know, I was quite familiar with this system years ago, Mr. Chairman, when I reviewed it with some members of the House. We met with Lord Wakeham. However, I have never heard of ``secondary legislation.'' What do you mean by that?
Mr. Robertson: They call ``secondary regulation'' what we call ``regulations.'' The procedure in the House of Lords is that secondary legislation is tabled and can be reviewed by the House of Lords, similar to our Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations, and the House of Lords can veto or send back secondary legislation. This is their one veto power at present. It has been recommended by Lord Wakeham's commission and by the white paper that this power be removed; that they could delay secondary legislation or regulations but they could not stop them. If the Commons insisted, the regulation would come into effect.
The Chairman: It would be an interesting power to give our joint committee, would it not?
If anyone wishes a copy of the story in The Economist, it is here in English. There is a copy of ``The House of Commons Modernization'' from the British government. It is also only in English, so I do not want to distribute it.
Thank you very much, Mr. Robertson, for the background.
The committee continued in camera.