Proceedings of the Standing Senate Committee on
Rules, Procedures and the Rights of Parliament
(Formerly Committee on Privileges, Standing Rules and Orders)
Issue 17 - Evidence
OTTAWA, Wednesday, May 1, 2002
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: All of the items on our agenda today are to be dealt with in public. The major time allocation will be for the Speaker of the Senate, who wants to begin his discussion of the revision of the Rules of the Senate. In brief, this is a more modern compilation of our existing rules, with some suggestions of a tidying-up rather than substantive nature. You may or may not see these additional suggestions as simply tidying up. There are one or two that may raise some questions and we will come to them.
We have three items that should have easy passage. The first is the time allocated to tributes in the Senate. We have had an extensive discussion on this, and you have before you a copy of a draft report for our consideration. If I may, items numbered 1 through 5 inclusive were in the briefing notes for you to review. Unless Mr. Robertson tells me otherwise, they have not been varied.
Mr. James R. Robertson, Researcher, Library of Parliament: No. Actually, this is a reworking of some of the information in the briefing note and a summary of the discussion on April 17. I do not think there is anything particularly controversial in there. It is the narrative introduction for the rules that are found on the third page.
The Chairman: If you look at item no. 3 at the bottom of the first page, you will read: `Your committee considered this issue at its meeting on April 17, 2002. The appropriateness of tributes upon the retirement, resignation or death of Senators and former Senators is not in dispute. There is, however, widespread concern over the amount of time that can be devoted to individual tributes.'' The rest of the paragraph contains the essence of our discussion.
At paragraph 4, down about six lines, you will read, ``— your committee has concluded that the time allocated to tributes should be strictly limited to 15 minutes.'' The rest of the discussion is reflected on the next page in the rule itself. We note in paragraph 5 that there are many other opportunities for tributes to be paid, including Senators' Statements, Motions, Notice of Inquiries and other avenues.
The substantive part of the report is on the third page of the document. Therefore, the committee recommends that rule 22 of the Rules of the Senate be amended by adding after subsection (9) the following:
(10) At the request of the Government Leader in the Senate or the Leader of the Opposition, the time provided for consideration of ``Senators' Statements'' shall be extended by fifteen minutes for the purpose of paying tribute to a Senator or to a former Senator.
11) The Speaker shall advise the Senate of the amount of time to be allowed for each intervention, which shall not exceed three minutes; a Senator may speak only once.
12) Where a Senator seeks leave to speak after the fifteen minutes allocated for Tributes has expired, the Speaker shall not put the question.
13) Tributes shall appear as a separate heading in the Journals of the Senate and the Debates of the Senate.
14) Nothing in this rule prevents a Senator from paying tribute to another Senator or to a former Senator at any other time allowed under these rules.
15) Nothing in this rule prevents an allocation of time with leave of the Senate for tributes to persons who are not Senators or former Senators.
Of course, the latter reflects the discussion with respect to the Royal Family or the death of other significant Canadians, which, in the wisdom of the Senate, senators should be able to address.
Senator Losier-Cool: At clause 11, does it mean that each leader — of the government and of the opposition — in the House would not take 5 minutes?
The Chairman: That is correct. It would be three minutes for any senator, including the Leader of the Opposition in the Senate and the Leader of the Government in the Senate.
Senator Losier-Cool: That was not my understanding. I thought that the leaders would each have five minutes and other senators would have three minutes.
The Chairman: Actually, senator, you are right. That is the discussion we had. We could put that in and it would accommodate up to five senators, and the other wording would accommodate three.
Senator Losier-Cool: It is just that we are still limited with the three minutes.
The Chairman: We will do whatever is the wish of the committee.
Senator Losier-Cool: I may have left the room when the committee made that final decision.
The Chairman: Both variations were discussed, but you are right. You are addressing part of our general discussion. It is a choice between two five-minute speeches by the leaders or the leaders speaking each for three minutes and allowing one of their colleagues additional time. The five-minute speeches would give the leaders on each side some discretion to speak for two or three minutes and then allow two other senators to speak for as long as three minutes. Our principle was 15 minutes in total for tributes.
Senator Kroft: The use of the five minutes could not be delegated.
The Chairman: We addressed that specifically. We said they could talk for up to five minutes on each side, but then, on reflection, I must say I made an executive choice to designate three minutes and then allow up to five senators to speak — say three and two.
Senator Di Nino: Mr. Chairman, first, I think we should restrict it to three minutes. You can say a great deal in a well-prepared three-minute speech. Second, it should not be ``up to five senators,'' but rather, ``a minimum of five senators.'' You could have 15 one-minute presentations if you wished, or seven two-minute presentations. I suggest to you that we should not send out a message that we expect no more than five senators to speak. There could be more if each one were to restrict his or her presentation to one minute. That may well be what many want.
The Chairman: It is not restricted; it is 15 minutes in total with a maximum of three minutes per speaker. However, within the 15 minutes, each side can allocate the time as it wishes. We are not determining the number of speeches that must constitute those 15 minutes. At three minutes each, the mathematics makes it five.
Senator Kroft: I need clarification on Senator Losier-Cool's point about the five minutes per leader.
The Chairman: We dropped that in this draft and just said, ``15 minutes with a maximum of three.''
Senator Kroft: We are staying with that?
The Chairman: If the committee agrees.
Senator Grafstein: Mr. Chairman, you know my views about this. I am not sure I will support this report and I want to explain why. First, a tribute to a senator, who may have spent his or her life in public office, should encapsulate that life. I want to differentiate our practice from that of the other side. I think our practice is different, our chamber is different and our constitution is different. Each member in the chamber is equal in all the things we have discussed in the past. I do not see the public urgency or the necessity to change our rules. If you analyze our time spent in the chamber, you will note that there are many occasions when we do not take our full time. Often, there are issues that could be settled in five minutes between the leadership, but instead, they take a whole afternoon. That is because the leadership on both sides, and this as an analytical point, not a critical point, cannot decide on votes. Sometimes it takes much longer than the 15 minutes.
Quite frankly, I have used this process as much as anyone, and it has always been a terrific opportunity for me to look at a colleague's career and life and I try to draw a public purpose from all of that.
As many of you know, I circulate most of my speeches to a wide group of people, and I get the best responses, quite frankly, to the tributes I make to either deceased or leaving senators. People say to me that they did not know about the talent in the Senate, they did not know how interesting a person was. It triggers a tremendous personal response, in the same way great eulogies do.
To encapsulate someone's career in 15 minutes is disrespectful to that person's contribution to public life. It transforms the priorities of our Senate in a way that is not necessary or appropriate. I do not hear any big public outcry about this. I know this discomforts some senators. I have no problem with limiting it to two hours, or an hour and a half, which gives people adequate time. As well, it does not necessarily need to be that day, or that moment, but can be later, when there is adequate time.
If you did a time analysis of the Senate, you would find that there are several hours available for debate. I may be just a voice of one, but I do not want to be a pale imitation of the other place. I do not want to find myself in a position where, when a parliamentarian such as Herb Gray, who gave 40 years of his life to public service, retires, there has to be an agreement among all sides in order to give him a timely tribute, which they did reluctantly after some period of time. That was not fair to Mr. Gray and it would not be fair to a colleague of ours who has made a great contribution to the public life of this country.
Senator Lapointe is new to the Senate and I can understand his discomfort with this, as I was discomforted by it when I first arrived. I began to see, in the course of time, that there was a useful public purpose to this, which was to show to the Canadian public, who do not know anything about senators, the unique, interesting and magnificent contributions they have made to the public life of this country.
I believe that we should, at the minimum, expand the time frame here.
Proposed subsection 22(12) of the Rules of the Senate of Canada states:
Where a Senator seeks leave to speak after the 15 minutes allocated for tributes has expired, the Speaker shall not put the question.
This is contrary to what I consider to be the consensual rules of the Senate. Let us assume for the moment the Prime Minister passes away. I know you can do it by means of Senators' Statements or an inquiry, but I thought the purpose was to get a cross-section of views in the Senate about that person's contribution to public life.
I would be open to an amendment to expand the time substantially, to an hour, hour and a half or even two hours. However, giving short shrift to this by saying you can encapsulate a person's life in 15 minutes — if senators choose to respond; many times we do not because we do not think that it is either necessary or appropriate — runs contrary to the traditions of the Senate. I think it changes the face of the Senate and we are curtailing ourselves in a way that is contrary to our own public interest and the credibility of the Senate.
I have serious problems with this. This is not new to you, Chair; you know I have had some concerns about curtailing senators' speaking privileges in a way that is appropriate.
The Chairman: Senator Grafstein, I wish to tell you that this committee reviewed all the points you have raised now on April 17 and came to a conclusion. Obviously, the committee can now conclude otherwise or direct me in any way it wishes, but —
Senator Grafstein: I was away on Senate business.
The Chairman: Of course, I know you were away. The committee went through all these issues and it was the unanimous view of those present that Senators' Statements should be limited in the way that is described here.
You referred to the Prime Minister. The Senate can do what it wishes in the case of any person who is not a senator. The text makes it clear that there are many ways to enhance the debate for senators who wish to use the time of the Senate to pay tribute to a former or sitting colleague.
In the view of the committee at the last meeting, this amounts to a priority item of 15 minutes in the schedule of the Senate before government business. That is the sole issue here. Tributes are not limited in any fashion. You can move an inquiry, you can do other things, but the Senate wants to get control of the current process, which can extend the time for government business far into the afternoon.
I am just repeating what was said before: The Senate is concerned about the time taken for tributes, which keeps senators in the chamber far past the time for normal committee meetings to begin, unless leave is given. It interferes with the expeditious use of the senators' time. The compromise is to designate 15 minutes before government business in order to recognize the importance of a colleague; then, if senators are not finished, another time can be set after government business for the enhanced tribute process.
That is a summary of what gave rise to the proposed rule before us now.
Senator Joyal: In reading paragraph 11, if I understand the interpretation of the rules, it means that — and I do not want to apply it to myself, as it is odious to do so — on the day I retire after 20, 30 years in the Senate, I will be entitled to three minutes to thank my colleagues for the 12 minutes of good things that I hope they will say about me. We have to understand that the person who is leaving will have three minutes if we apply that rule. Strictly speaking, it says 15 minutes for the whole of the tribute, and everyone has three minutes. Is this what we want to do?
My second point is that we discussed how lengthy tributes delay government business. There are other options than the one presented today that we should maybe revisit. I understand the paramount interest of the chamber is to deal with government business. I raised it myself as a matter of principle, but I think that the House has to maintain some kind of flexibility to deal with individual cases, and each senator who leaves or dies is an individual case. There are those like Senator Wilson, who felt that one person on each side is enough, which is a flexible way to address this issue. A person can express the wish not to receive a tribute. Senator Bryden said he did not want any tributes.
I had a seat mate in the Senate — not you, Mr. Chair — who told me, ``When I leave, nothing.'' She said to me, ``When I left the provincial level of government, I made sure they were not even informed of the day I was leaving because I did not want a tribute.'' So be it. Let the senators express individually what they want, and we will abide by their wishes.
To my mind, we are putting ourselves in such a straitjacket. I can understand that a senator who might not like another senator might feel harassed at having to listen to a lengthy tribute to that person. I accept that. We all have our own personalities. On the other hand, the House may want to take more time to pay tribute to a departing Speaker such as Speaker Molgat, for instance, who happened to be a personality for whom we all had some kind of appreciation. I do not see why we could not announce at the beginning of the sitting that we would pay tribute on that day — maybe after government business.
The Chairman: That was one of the options that was offered to the committee on April 17 but did not seem to find favour at that time.
Senator Joyal: I agree, Mr. Chair, but I think we should have various options on paper. We need an adjustment that would maintain flexibility in this system. I do not want to be rushed into a decision to limit a senator's speaking time to three minutes on something that we feel is in the public interest by only looking at one option. I would like to see the other possibilities before coming to that drastic conclusion.
Senator Di Nino: With all due respect to my colleagues, Senators Joyal and Grafstein, we did spend quite a lot of time — more than one meeting, if I remember correctly — looking at all of the different options. As you have so clearly stated, the opportunity to accomplish what both of them want, and what many of our other colleagues also suggested would be appropriate, still exists, particularly through the inquiry. The inquiry is a 15-minute opportunity for all members of the chamber to participate in the debate. You could have many 15-minute presentations by colleagues, if they felt strongly enough.
We are talking here about the recognition of the individual at a time when the focus of the chamber is only on that issue. After government business has been dealt with, you have committee meetings and other commitments, and the chamber is usually pretty empty. For us to switch this very important subject to after government business would not do justice to our colleague, particularly since in most cases, that colleague and his or her family will be in attendance at the Senate. All of these things were considered in our discussions. To have family members sit in the gallery for 12 minutes, 120 minutes or three and a half hours while awaiting the completion of government business is also inappropriate.
I believe a compromise was reached in our discussions, where all these things were taken into consideration. The compromise was to let us recognize the importance of this event at the beginning of the proceedings of the Senate and then those who wish to participate further in paying tribute to the colleague will have the opportunities described in the paper. I think this is a good compromise.
I do not want to go against the sentiments of my colleagues, because both of them make very good sense. If the opportunities were eliminated, then I would agree with them. However, they continue to exist. I think the compromise I mentioned is the right way to go because it accomplishes both objectives.
Senator Stratton: I agree that it should be limited to 15 minutes, three minutes each, and then, if there are further tributes, they should take place after government business through inquiries. That works wonderfully well. It will allow those individuals who have earned the right to substantial tributes to have their time.
Senator Andreychuk: Just for clarification, because I support the recommendation, my understanding was that this whole thing was to limit the tributes, not the response from a senator who is retiring.
The Chairman: I think we will have to add something to clarify the point that Senator Joyal raised. How long should we allow the senator responding — unlimited, 5 minutes or 10 minutes?
Senator Di Nino: Or 15 minutes, if you wish, like an inquiry. That is a long time.
Senator Andreychuk: That has not been a problem. Why would we address it?
The Chairman: Why do we not add that if the subject of a tribute is a sitting senator, he or she will have the opportunity to respond for up 15 minutes? It is 15 minutes for his colleagues and 15 minutes for the retiree or the senator in question. Is that agreed?
Hon. Senators: Agreed.
Senator Grafstein: I apologize again for being away. I did not have a chance to look at the transcript. The American practice is an interesting one. I have only seen it in operation and am not sure exactly how it works. Sometimes, Senators will stand up and take their time in paying tribute. It is almost like Senators' Statements. However, in addition to that, they can append the full tribute to the Congressional Record of the day.
The Chairman: Senator Grafstein, we fully discussed the issue of tabling a document as if read, or just tabling it.
Senator Grafstein: Limited to tributes.
The Chairman: The committee was unanimously opposed to the idea of creating a precedent by which anything could appear in the record that was not said.
Senator Di Nino: It was my idea, and everybody else shot it down.
Senator Grafstein: I did not quite understand the rationale. Is it that it opens the door to a Debates of the Senate that would resemble the Congressional Record and there would be a huge cost factor?
The Chairman: The rationale is essentially to stay with the principle that only that which is spoken is a matter of record.
Senator Grafstein: The reason I say that is I have appeared in the Congressional Record half a dozen times, and quite frankly, I have never said a word. It was all flawless prose.
Senator Rompkey: I think the rules as presented today reflect the discussion and the consensus that we should proceed in this way. I would add that I think it will be very difficult to stop a retiring senator from having his final say. The point Senator Grafstein made about the institution and the personalities that inhabit it from time to time is well taken in that particular case.
I am not sure that you would be able to enforce a 15-minute rule. It would be very ungracious to stop a retiring senator from speaking.
The Chairman: I am prepared to say that a senator responding to a tribute shall be given unlimited time, if that is the —
Senator Andreychuk: No, say nothing.
Senator Rompkey: You do not need to encourage them. Phrase it appropriately.
Otherwise, I think that the rules as presented here reflect the consensus that was arrived at around the table.
Senator Joyal: My colleagues who are worried about how we would be implementing the limited amount of time should know that our distinguished Speaker will be seated at a computerized table. He will know exactly when to cut off debate.
The Chairman: Then we know which way you are going on that item.
[Translation]
Senator Gauthier: The Senate can do whatever it likes when unanimous consent is given. If a colleague whom I hold in high esteem passes away, I will certainly request unanimous consent to go over the time allotted to pay tribute to him. The Rules of the Senate no longer apply in such cases. We must not go overboard and split hairs. This is a sound recommendation, one that I support.
[English]
This is okay as far as I am concerned. We have had enough meetings on this subject. Let's go on to something else.
The Chairman: I would be happy to do that. With your approval, we will adopt these rules, but add a rule providing that the senator who is the subject of the tribute shall not be limited by the rule.
Senator Rompkey: ``Given appropriate time.'' Perhaps you should phrase it the way Senator Grafstein suggested.
The Chairman: I think it is better to say that it shall not be limited because ``appropriate'' is very subjective. You do not want to introduce subjectivity into the rules.
May I have a mover and a seconder?
Senator Di Nino: I so move.
Senator Losier-Cools: I second.
The Chairman: Approved?
Some Hon. Senators: Yes.
Senator Grafstein: No.
The Chairman: Approved, on division. We will report the rule tomorrow.
The Chairman: There are two other brief items before I call on the Speaker. You have in front of you a draft memorandum dated today with respect to the Senate calendar and religious holy days. I would like your approval to send this to all honourable senators. This is the result of our discussion of April 16, 2002. The memorandum reads as follows:
As a result of requests from Senators Carstairs, Kroft and Poulin, the committee discussed at length on April 16, 2002, the issue of the Senate holding its sitting on major religious holy days.
The committee recognizes that the Senate calendar is designed to reflect sittings that conform to the longstanding religious holy days of the majority of Canadians. However, Canada is a country that reflects most of the world's religions, and the Senate has in the past been either unaware of or insensitive to the major religious holy days of some Senators, resulting in those Senators being shown as not in attendance on certain days. In result, some Senators are placed at a disadvantage not shared by the majority.
The committee understands that any additions to the present regime of deductions for non-attendance to exclude such religious holy days would require an amendment to the Parliament of Canada Act.
I might say in parenthesis that the committee agreed it would not make that request.
The consensus of our committee was that in the interests of fairness, the Senate leadership should be sensitive to the fact that on major religious holy days, there are a number of Senators who may be unable to attend sittings of the Senate, and that these major religious holy days include those of the Jewish and Muslim faiths, as well as Orthodox Christians, who follow the Julian calendar.
Is this agreed, honourable senators, as a message from the committee?
Senator Murray: What are you asking of us?
The Chairman: I am asking for the approval of the committee to send this.
Senator Murray: What is the purpose of sending it?
The Chairman: The purpose of sending it is to acquaint senators with the views of this committee on this topic, at the request of Senators Carstairs, Kroft and Poulin, and to dispose of a longstanding discussion. It is a request from the committee, if we approve it, to the Senate leaders on both sides, to take into account the religious holy days of minorities.
Senator Andreychuk: Perhaps the letter should be sent to Senators Carstairs, Kroft and Poulin, with a copy to the rest of us, because they are the ones that requested it. The committee has dealt with it, but whichever way it is handled is not the major issue.
I would have to suggest that there should be a comment in there about our reflecting on the separation of church and state and that those who observe no religion were taken into account.
Senator Murray: They should be asked to attend all the time.
Senator Andreychuk: That may be the result.
The Chairman: There is no religious holy day excuse for those people.
Senator Andreychuk: We are taking into account religious holy days. We were mindful of the human rights perspective in the Ontario court, which weighs not only religions but also those who have no religion.
The Chairman: I would invite additional comment on Senator Andreychuk's point.
Senator Grafstein: First, I believe in separation of church and state as much as any person. By the same token, under the strict American practice, which was the first country to adopt that principle — and it did not come easily — the precept was that if people choose to practise a religion, they should not be discriminated against because of it. It was not a question of separation of church and state, it was a question of non-discrimination.
Senator Andreychuk extends that principle to someone who is an agnostic. Nobody interferes with an agnostic doing anything he or she chooses to do on Saturday, Sunday, Monday or Christmas Day.
I raised this issue, Mr. Chairman. Perhaps I was the motivating force behind this, because I sent a letter some time back to the Standing Committee on Internal Economy, Budgets and Administration. As I recall, it was Senator Kroft who raised it with that committee.
I refused to sign our attendance records because I was away for a limited number of days for religious practices. We had organized ourselves to make sure that session days in the Senate did not fall on Christian holy days, which I respect. It put me at a severe disadvantage. On several occasions, Parliament had started, for instance, during the high holy days. I thought that was wrong.
Therefore, I was not prepared to lend myself to what I thought was a discriminatory practice. Since that time, I do not sign my attendance records, and obviously I am, de facto, in breach of whatever rule is appropriate.
Having said that, I still do not understand the position. We have within the Senate the power to count in people attending political activities. In other words, a senator may not be physically present, but for the purposes of the Senate, he or she can be deemed to be in attendance.
That says to me that there is a way to deal with the Parliament of Canada Act. I can understand the difficulty in changing that act. Perhaps when I have some time, I might move an amendment to the act to deal with this issue and see what the debate is.
It strikes me that there is a way to be fair to those who choose to observe their religious holy days by at least showing on their attendance record that it is deemed not to be a day of non-attendance, in the same way that it is done for public business.
If I go somewhere to do something for the Senate, I am not physically present in the chamber. That does not count against me as non-attendance.
That is certainly within the ambit of the Parliament of Canada Act.
I am not sure whether I agree with the conclusion that in order to be fair and non-discriminatory to those who practice faiths other than Christian, Muslim, Jewish or Orthodox Christian, we cannot device some methodology for our attendance keeping to demonstrate that that person was absent, in effect, for a religious holy day.
I am not talking about money. It is not a question of money. If I have to pay because of the two or three times a year when I do attend to cleanse myself of my sins — my wife said I should be there 365 days as opposed to two or three days — so be it. Having said that, I still do not think that this is an adequate answer. I do not think it is adequate to remind the Senate leadership to be sensitive to the fact that there are other religious holy days. That goes without saying.
The Chairman: Senator Grafstein, we had this discussion, again in your absence.
Senator Grafstein: I apologize for raising it. It seems that you scheduled the discussion of all my issues for the week I was not here.
The Chairman: I will tell you why: You did not tell me when you were going to be away.
Senator Grafstein: I did, Mr. Chairman. I did.
Senator Murray: I was not here either for these discussions. I must ask you whether it is correct that you would have to amend the Parliament of Canada Act. Could you not do something under the rules?
The Chairman: We could redefine ``religious holy days,'' but in our discussion on April 16, the problem was then how many days would you allocate, because the term is subjective. To some practitioners, it is one or two days, for others it could be 15 or 20. In leaving that to the discretion of the senator, are you creating an opportunity for inappropriate behaviour?
I will ask Mr. Audcent to answer the question.
Senator Murray: Let me express a view that perhaps was expressed in the earlier discussion. It is that we are putting adherence to various religions on quite a different footing here. They are already, of course. I would not have to attest that I prefer not to work on Good Friday and therefore I am taking that day off, or Christmas Day, because Parliament almost never sits on those days, in my experience. However, if I were a Jew, a Muslim or an Orthodox Christian, I would be required to take some initiative to explain my absence on certain days.
Is it true that some people would insist that they have to take 20 days off? I would have thought that reasonable people could devise a rule that we would not sit on certain days, and we would include the Christian feasts I have just mentioned and several others — Yom Kippur, Passover and Ramadan, whatever they are.
Senator Stratton: It is every Friday in the Muslim faith.
Senator Murray: Do they not work on Fridays?
Senator Stratton: Every Friday.
Senator Murray: That suits the Senate's schedule pretty well.
The Chairman: We have had this discussion.
Senator Grafstein: We are all Muslims at heart.
The Chairman: These are legitimate questions. The principal issue is, do we set up an elaborate structure, or do we try to deal with the issue of a few key holy days that are reflective of the non-Catholic — Latin Catholic — and non- Protestant calendar through the administrative work of the leadership on both sides?
Rather than draft extensive rules and create lengthy discussion about religious issues, such as what is appropriate, what is a minor holy day that is not eligible, and what is a major holy day that is eligible, the committee came to the conclusion contained in the letter.
[Translation]
Senator Losier-Cool: I attended all of the meetings at which this matter was discussed and I am not comfortable with the suggestion that religious holidays be included in the parliamentary calendar.
Nor am I entirely comfortable with the way in which the third paragraph of this document is drafted. Therefore, I am not ready to make a decision at this time.
I suggest we move on to item number 4 on the agenda and come back to this later since this raises all kinds of other questions and I am not prepared to agree to anything right now.
[English]
Senator Kroft: When we are considering the days and amount of time, it is necessary to include, even though it is complicated, the reality of travel.
To take an extreme case, to attend in a family context or in a synagogue or church context, if you are an Ottawa member, you can take that day and do it. If you are in Winnipeg, Vancouver or somewhere else, it involves travel. That may dictate a greater discretion on the issue of time, but I know this is a serious concern.
The Chairman: The next item is the report on compilation. If there is any time left over, we will go to item no. 3. We will table the second item until there is a further discussion in the committee. Obviously, there are many other senators who wish to speak to this.
Senator Stratton: I would like to discuss how attendance is reported in the media. We should deal with that issue. I do not think we should let it slide.
Last week, we all read that terrible article about attendance and being marked absent despite the fact that you had had open-heart surgery. We cannot let that happen. That was just pure incompetence on the part of the reporter. We must talk about this.
The Chairman: Colleagues, is it agreed that that become an agenda item?
Hon. Senators: Agreed.
The Chairman: Let us now turn to the question of revision of the rules of the Senate.
Senator Hays: Mr. Chairman, I would ask Mr. Robert to join me.
This item is a project begun by my predecessor, Senator Molgat. He did a great deal of work on this subject and I am happy to continue on with that.
In the early summer, we circulated a document that represents a revision or restatement of the current rules. There has been significant discussion and some refinement of that. Today, we are distributing another copy of this red binder and its contents in its most recent form.
Included in that is a section called ``Significant Changes.'' That is what I propose to deal with at this meeting.
To review, there was no intention to change the rules, but rather to restate them and put them in an order that makes them easier to use. Those of us who have been forced to learn the rules have discovered it is not an easy task to deal with them as they are currently ordered. I believe this will be a big help to all senators, but in particular, to the house leaders, the Speaker, the Speaker pro tempore and anyone else in the Chair, in looking at the rules to find out what happens in a given circumstance.
During the course of this, a number of things were added to the rules to clarify them. They are summarized in this memorandum to which I have referred under the tab entitled ``Significant Changes.'' I would like to go through those with the committee. There are three options. One is to say that this exercise should not change the rules in any way, that we should go back and revise the revision to make the rules identical to the way they were before. We might accept all of the changes suggested or, most likely, having gone through them, we will accept some and not others.
The English and French versions of the rules have been troublesome in the past. The problems that arise out of that have been remedied in this restatement.
If there are questions at this point, I will deal with them. If there are no questions, I will go into some detail on the changes.
The Chairman: Perhaps the best way to approach this document is to let senators look at the recompilation of the order of the rules, which does not change them but is designed to make the order of the rules in the book more logical in terms of the chronology by which the Senate conducts business. We could go now to the suggested variations of certain rules.
Senator Stratton: Some of us can be here at some times and others at other times, and we must have continuity on this.
The Chairman: As on all topics.
Senator Stratton: Particularly on this one, the impact of which is quite significant. It is a pretty steep learning curve in that we are realigning the old rules.
I suggest that we set aside an hour and a half to deal exclusively with this issue in its entirety, and that we have the current rule book before us to refer to as we do this in order to compare the old with the new. That would help the process immensely. I do not think we should deal with this for a half-hour at a time. I think we need to focus on it.
The Chairman: I agree that time should be set aside for this item exclusively. Perhaps we might have an evening meeting or deal with it at a Tuesday morning meeting, which would allow us two hours.
I would hope that either you or your research assistants would compare the rules to the extent that you wish to examine whether the Speaker and his officials are retaining the rules unamended, except as noted.
It would not be productive for us to sit here and confirm that certain rules are the same and agree to reorder them. I would hope that all that could be done as ``homework'' before we arrive here. Otherwise, the process will be very long.
Speaker Hays, would you proceed with the variations you are asking us to consider?
Senator Hays: We are under the tab entitled ``Significant Changes.'' I will comment on these changes in the order in which they appear in the rules, not in the order of importance.
On my copy, there is a marginal note that indicates whether the change is minor or major. I guess you can consider them all of equal weight, but some are obviously more significant than others, and that will be apparent as we go through it.
Subsection (3) of the first rule, as is explained here, simply acknowledges our current practice through an indirect reference to the rules of the House, that is, that we use authorities not exclusively Canadian in interpreting our rules and in indicating what our practice should be in a given circumstance. An example is Erskine May.
I will go through each section and then stop for questions.
Rule 3(3) is quite important and should be read in conjunction with another suggested change, to which I will draw your attention out of sequence.
Rule 3(3) makes it clear that the rules are subject to the Constitution, and notwithstanding that the current rules suggest otherwise, it is not really correct to say that any rule can be suspended or changed. It says that we would not be able to suspend a rule or change our practice if it did not comply with the Constitution.
In that context, if you turn to page 3 of the memorandum, rule 41(h) provides that a two-thirds vote to approve any correction of an order, resolution or vote is required. The memorandum points out that this is contrary to section 36 of the Constitution Act, 1867, which stipulates that questions in the Senate shall be decided by a majority vote.
I think this is the only exception to my comment that we would proceed sequentially.
Under the heading ``Order and Decorum,'' rule 4(1) is not considered major. It is a statement of the Speaker's role, that is, to preside over proceedings of the Senate. This additional language is included to strengthen the logical coherence of the rule relating to the Chair's function.
We next come to rule 6, which makes reference to points of order and questions of privilege and the Speaker's discretion in whether he or she is convinced that a case has been made for an emergency debate. These are all subject to the chamber overruling or challenging a decision. This particular wording makes it clear that when the Speaker is responding to a question and making a statement, that does not constitute a ruling, and accordingly, is not subject to a vote. I can ask Charles to help with this. I had a little trouble understanding it at first. We can come back to it. I consider it a minor change.
The Chairman: I am sorry, but I do not understand what you are changing it to.
Mr. Robert, would you respond, please?
Mr. Charles Robert, Principal Clerk, Procedure, Senate of Canada: I believe the current rule specifies that all decisions of the Speaker are subject to appeal. However, there are some declarations made by the Speaker that are not in fact decisions. This is just an attempt to clarify that in those circumstances, there would be no appeal because there is no reason for it.
The Chairman: None of us are interested in the subject of noisy senators.
Senator Hays: This is simply to acknowledge that to deal with disruption in the chamber, senators can be asked, not just to go beyond the bar, which probably would not help, but to leave the chamber, if they insist on carrying on conversations that are causing difficulties, such as in hearing the Speaker.
The Chairman: There should be an alternative, either ``to take their seat or take their conversation out of the chamber.'' I take it you cannot order them out if they are willing to go back to their seat.
Senator Losier-Cool: What if the conversation is taking place at their seat?
The Chairman: We will discuss that later.
Please continue, Senator Hays.
Senator Hays: Rule 15(1) in the restatement acknowledges the Speaker pro tempore as the first choice to replace the Speaker in case of unavoidable absence. That is our practice. This is simply a statement of what our practice is. It is not currently included in the rules.
Moving now to the heading ``Meetings of the Senate,'' which I would highlight as a major change —
Senator Rompkey: I notice that we, of course, use the term ``Speaker pro tempore.'' Is there a reason, other than tradition, why we should continue to use that title?
Senator Hays: Yes, there is.
Mr. Robert: It has to do with the law and the way the Parliament of Canada Act is presently structured. Because of what is contained in the Parliament of Canada Act, we cannot use the term ``deputy speaker.''
Senator Hays: The change is to put a time limit on how long the Speaker would remain in the chamber waiting for a quorum. Currently, the rules do not specify, which leads to the conclusion that you would wait indefinitely. The suggestion is that the Speaker be obliged to wait no longer than 20 minutes. It could be an hour, three hours, I do not know. However, 20 minutes seems to be a reasonable suggestion.
Rule 24 would provide that the Speaker pro tempore act in the unavoidable absence of the Speaker in terms of decisions to adjourn further in an adjournment period, or to curtail the adjournment period. As presently drafted, the rules give the authority to the Clerk as an alternate to the Speaker.
I mark it as important. Now, in the unavoidable absence of the Speaker, it is the Clerk. The suggestion is that it be made the Speaker pro tempore and then the Clerk.
Under ``Routine Proceedings,'' rules 23(6) and (7) are simply to clarify that if notice has been given of a question of privilege, notwithstanding that the full period for Senators' Statements is used to debate the question of whether or not an emergency debate should be agreed to by the Speaker, the senator properly raising a question of privilege will be given the opportunity to give notice of it at the appropriate point in the Order Paper. This is fairly technical, but a significant change from where we are now.
I do not think we have ever encountered the situation, have we?
Mr. Robert: No.
Senator Hays: Under ``Notices and Motions,'' rule 37(2) is to clarify that inquiries ought not to be related to items, bills or motions already on the Order Paper, since there is already a place for senators to bring forward debate on those.
I have never encountered this problem in my time here, but I suppose it could happen.
Do you want to comment further on that, Mr. Robert?
Mr. Robert: In fact I think it has happened, and it certainly can happen. For instance, a senator might want to draw to the attention of the Senate an item already on the Order Paper. It tends to diffuse debate. The idea was simply to make it more focused.
In some sense, it is related to the rule of anticipation, which suggests that if you have competing items, the one that has greater weight should be the focus of debate. Therefore, a bill will outstrip an amendment. An amendment will outstrip a motion. A motion should outstrip an inquiry.
Senator Hays: I have already commented on rule 41(h). It is this extraordinary majority required under certain circumstances, which we do not think is in accordance with the Constitution Act.
Rule 42(1)(b) adds the words ``under debate'' to the word ``question'' as it is referred to in the subsections of 42(1) to clarify that it is a question under debate and remove ambiguity as to what is referred to by the word ``question,'' because ``question'' has several meanings in the rules.
Rules 41(j) and (k) are as stated. The rule simplifies the list of parts of the bill that were mentioned in the previous version of the rules. If you look at that, you will see that it is fairly straightforward and not a major change.
Under ``Rules of Debate,'' this would clarify the situation of a Leader of the Government or of the Opposition who has unlimited time and yields to another senator so that he or she would have the same time as any other senator, namely, 15 minutes. The way the rules are structured now it is not clear. Again, perhaps we do not want it to be clarified. That is the suggestion we are making.
The Chairman: I wonder if you could go to 73(2).
Senator Hays: This is to do with the length of bells. I think the best way for me to explain this is to call upon my trusted adviser, Mr. Robert, to comment.
Mr. Robert: The intention of the revision of the rules is to reflect exactly what the rules currently say. Because they are difficult to understand, it is not what is accepted or understood to be the practices of the Senate with respect to bells. That is to say, when it is a question on a motion that is debateable, the whips and the house determine the length of bells, and the default will be one hour.
When it is a debate on a motion that has been scheduled for a vote, such as a time allocation motion, or even a question of privilege if we are coming to the end of the debate after the Speaker has recognized that there is a prima facie case, the rules as currently written suggest that there will only be 15 minutes, no ands, ifs or buts.
The difficulty is that it also applies, with some exceptions, to all motions on questions that are neither debateable nor amendable. Therefore, as currently written, a motion to adjourn the debate should have a 15-minute bell, point final. A motion to appeal the decision of the Speaker should have a 15-minute bell. The motion to accord time allocation, which is a debateable motion with a fixed length of time, is allowed one hour because it is specifically accepted.
The motion to adjourn the Senate is given one hour because it is specifically accepted in the current rules. However, that is not, I think, fully appreciated by the membership because it is buried in rule 56 (3). We tried to track down the history of the rule. It was clearly not the intention of the drafters in 1991. Whatever the original intention was, it was not reflected in the way that it is actually written, and the mandate of the revision is to reflect the rules as they are written. That is one of the great conundrums that we have come across.
The Chairman: Thank you. Could I ask you, Speaker, to deal with two other issues that will be of interest to the committee? One of those is rule 128 (1).
Senator Hays: Rule 128 (1) forbids a subcommittee from meeting in public when the Senate is sitting. The provision applies to subcommittees, with the same limitation imposed by the Senate on committees and for the same reason.
The Chairman: The first subcommittee is confusing, is it not? Rule 128 (1) forbids a committee from meeting in public when the Senate is sitting, and currently, subcommittees have not been caught up by that particular limitation in practice.
Senator Hays: It is a kind of loophole. The suggestion now is to be consistent.
The Chairman: I consider that one to be a substantive change. It should read, ``forbids a committee.'' Could you explain rule 128(2)?
Senator Hays: Currently, we are restricted in terms of committees sitting when the Senate is not sitting, and accordingly, permission is required, unless the adjournment of the Senate is for the period specified.
The Chairman: Are you seeking to change the rule to allow standing committees to meet when the Senate is not sitting, without limitation?
Senator Hays: That is right.
Senator Kroft: — and subcommittees.
Senator Rompkey: Should we clarify that?
The Chairman: It would be for committees and their subcommittees.
Mr. Robert: The current rule is that if the Senate stands adjourned for more than one week, committees must obtain permission if they want to sit during the period of adjournment. Let us say, for example, that the committees want to sit during the summer or the winter adjournment; those are periods that always last more than one week. Technically, committees now have to ask permission before the Senate rises for the summer or in December for permission to sit. In some sense, that is a silly inconvenience. The change was to eliminate that.
Senator Hays: Perhaps you do not want to do that.
The Chairman: Senators, if I may interrupt for one moment. Senator Kinsella, for the record, in respect of our draft rule for order 26, are you satisfied with the current redraft?
Senator Kinsella: Yes, I am.
The Chairman: Thank you, Senator Kinsella.
Senator Hays, my apology, please continue.
Senator Hays: We have not yet covered every item of this matter and so we will have to return to this at a later date. I am at the disposal of the committee.
The Chairman: Mr. Robert, do you have one last word for the committee?
Mr. Robert: When you look at the book, the square brackets at the end of the rule refer to the old rule. You can see how they have been rearranged to make things more logical. We have also introduced exceptions. When you see a phrase such as, ``except as provided elsewhere in the rules,'' you will also see references to other rules. Those are the exceptions. You no longer see ``pursuant to rule 66'' when you are looking at rule 43. You no longer have to be confused as to what are the exceptions, and you can track them down through the noted reference.
The Chairman: That will be helpful.
Thank you, colleagues. Speaker Hays, thank you for this presentation today. Obviously we have some work to do. I will be discussing with the steering committee, the agenda for this committee's work during May and June, approximately until we may adjourn for the summer. I would like to assure Speaker Hays that we will deal with the question of computerization at the table in the next week or two.
Senator Hays: I will be available for that.
Senator Grafstein: I ask the steering committee to consider a problem that might be of interest to those senators dealing with private members' bills — the ability of a senator to speak more than once in third reading. I found myself in the position of speaking early in the process, and when someone objected to the bill, I then had to ask leave of the Senate to speak to the bill again. It strikes me that it might be useful to treat a senator's private member's bill in the same way that we treat a government bill. That would allow the senator proposing the bill to speak twice, beginning at the end of the debate on third reading.
The Chairman: Mr. Robert, I am not exactly sure how we will handle that suggestion, but keep it in mind as an item to address at a later date.
The committee adjourned.