Proceedings of the Committee on
Rules, Procedures and the Rights of Parliament
Issue 1 - Evidence of February 18, 2004
OTTAWA, Wednesday, February 18, 2004
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 12:19 p.m. pursuant to its mandate under rule 86(1)(f) of the Rules of the Senate to consider the printing of an updated copy of the Rules of the Senate of Canada; to consider a code of conduct for Senators and that all related evidence and papers taken on this issue by the Committee in the 2nd Session of the 37th Parliament be referred to the Committee; and that the Committee be authorized to take into context the 51st Report of the House of Commons Standing Committee on Procedure and House Affairs from the 2nd Session of the 37th Parliament; and to consider a draft report.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators this meeting of the Standing Committee on Rules, Procedures and the Rights of Parliament is now in session.
We have before us the first item on our agenda. Mr. Gary O'Brien will walk us through the revised version of the Rules of the Senate.
Mr. Gary O'Brien, Deputy Clerk and Principal Clerk, Legislative Services: Madam Chairman, honourable senators, I last appeared before the committee in April 2003. Following that presentation, Senator Milne tabled in the Senate an updated version of the Rules of the Senate incorporating all the changes made up to April 2003. Since April 2003, there have there has been another alteration to the Rules of the Senate, as agreed to by the Senate, that is described in the briefing note circulated to members of the committee. This dealt principally with the 7th report of your committee, which was adopted on June 3, 2003. As you will recall, when Senator Milne moved the adoption of the report in June 2003, an amendment was moved on the floor of the Senate changing subsection (3) of rule 131. That amendment was carried and, subsequently, rule 131(3) as amended is incorporated in the new rules, as are the other subsections of that rule, which basically deal with committees being able to ask for a comprehensive government response.
We went through last year without this rule in our book and, of course, when it arose we ensured that senators were given photocopies of the new rule as adopted, while we awaited the reprint of the rules. We had hoped to come before you late last fall but with prorogation this was not possible, and so we are here early in this new session. The new rules will thus be dated February 2004. The other alteration, as requested at the meeting in April 2003, was for a new index to the Rules of the Senate. We had asked the Library of Parliament, which has always prepared the indexes to the Rules of the Senate, to take a look at the index. This came under the dissemination division of the Library of Parliament, with some suggestions from our procedural officers that the new index should be more exhaustive; contain multiple entries for one rule or section; and, perhaps, provide more of a summary of how things are done. To achieve the level of detail requested, a simple index is not sufficient so it will be almost like doing a new index. We would appreciate if most entries could be rewritten to provide key words and details of each rule or section. These entries could be copied under one entry point and the wording could be rearranged. The index should give access to the information in the rules and should not replace them.
I believe this was the general spirit of the instructions given to us when you had asked for a new index. As you can see, the index has nearly tripled in size. It has multiple entries for items of procedural interest, providing more than one place to find a rule and more of a breakdown of the various general rules. It is difficult to say, Madam Chair, how efficient the index is. That will be known when we use it and try to find specific information. We would appreciate comments on this.
Obviously, further work will be done on the Rules of the Senate in terms of making the language more modern, amalgamating different rules and rearranging the rules. I know this is a major project and that your committee has made starts on this in the past. Certainly, this new index could be of help in the next index that is done, so any feedback would be much appreciated. I think the Library of Parliament has given its best efforts. They put their top indexer on this project and we thank them very much for their work. We will see how useful it is when it is in use.
The Chairman: Thank you, Mr. O'Brien. I must say that I am delighted to see improvements in the index because there is nothing more frustrating than busily, as a neophyte at rules, going through the index when a senator raises a point of order on the floor of the chamber and not finding the relevant information in time. I am looking forward to using this new index.
If I may, I will make a suggestion off the top: On the pages under "Private Bills," that heading should be at the top of each subsequent page containing information on private bills. Are there any other comments?
Senator Andreychuk: We will have many new senators coming to the house soon. When we pass new rules or make changes to the existing rules, how are they incorporated in the binders of the Rules of the Senate to each senator? Are the pages passed around individually, along with the copies filed in the chamber? How are they incorporated and indexed? Are we still doing it in the same way as always — occasionally compiling them? That way we always have a gap.
Mr. O'Brien: We might always have a gap, although we try to reprint as quickly as possible. I think the delay this time was the need for a new index. That was the principal reason for the gap. However, there have been many occasions when we have reprinted quickly many times during a session because it is important that a chamber have its rule book current. We try to do that and it is done in-house within our own resources. There are no additional costs for that. We are able to do it and I try to come before your committee as soon as possible.
Senator Robertson: It may be impossible but could the library attempt to put an alphabetical tab for quick reference on this section?
Mr. O'Brien: I understand the request, yes.
The Chairman: Perhaps it could be like a dictionary with alphabetic tabs.
Senator Joyal: I have two questions: The first one is in respect of the new subsection 131(3). My understanding is that it imposes a responsibility on the government leader to table a response or to say why there should be no response within 150 calendar days after the adoption of a report or a motion. Is it your interpretation that 150 days would apply even if we were in a new session of Parliament?
[Translation]
Mr. O'Brien: As you know, Senator Joyal, the Speaker of the Senate is preparing to rule on a point of order raised in the Chamber involving this very matter, namely whether an individual, or a committee, can request a response in a new session. I believe the Speaker will be ruling on this matter today.
[English]
I would not want to pre-empt the Speaker on his decision. I think Senator Milne made a statement in the Senate when that point of order was raised on the 150-day time period carrying on after prorogation.
The Chairman: No, I did not. I said that the precise wording of the rule was the way it should be read.
Mr. O'Brien: I am sorry.
Senator Joyal: Of course, I respect the authority and decision of the Speaker. However, I listened to the debate when it was raised as a point of order in the chamber. Was a distinction made between the sessions of a same Parliament and a new Parliament — in other words, after an election versus the various sessions of one Parliament? I do not remember if such a distinction was made during the debate in the house. Do you recall?
Mr. O'Brien: I do not recall, senator, but I think the point of order simply dealt with trying to ask for a comprehensive response to a report from a previous session.
Senator Joyal: — the previous session. On another issue —
The Chairman: — which had not been approved by the Senate.
Senator Joyal: We await the decision of the Speaker and then, of course, this committee could reconsider it if need be.
The other question is in respect of the Speaker's ruling two days ago on parliamentary language that is acceptable or unacceptable. I understand there is a kind of consolidation of previous decisions whereby some words have been deemed acceptable and some others seem not to be covered by that list. Would it not be useful for us to have that list in the rules?
Again, I am thinking of the new senators who come in the Senate and might think that all kinds of words can be used in a parliamentary debate. Some of them have already been ruled as not acceptable. Would it not be possible in the annex of the rules to have those words?
Mr. O'Brien: Certainly, it is possible. However, I think the parliamentary authorities are fairly unanimous in the sense that it is difficult to label, on the surface, some words as parliamentary and others not parliamentary. It depends on the context and the actual sensitivity of those hearing those words. Each time parliamentary language is used, or a point of order is raised, it must be done on a case-by-case basis. Therefore, it is not so much a question of precedent, in terms of what words in the past have been ruled, but it is more a question of judgment on each word as opposed to precedent.
I think the authorities are trying to get away from keeping tabs on such lists. For example, I do not think Marleau and Montpetit give such a list anymore in its edition because it depends on each case.
The Chairman: I understand that in the British Commons they have stopped keeping any list whatsoever, because it is more the context in which words are used rather than the words themselves.
Senator Downe: I have a brief comment on the index as someone who is trying to go through the rule book and follow the Speaker's rulings in the chamber. It would be helpful if we had a column with the page number also listed. It would be useful when I am flipping through the book back and forth on various pages. If that could be done, that would be helpful.
The Chairman: Yes, that is a good suggestion.
If there are no further questions on this report, I would ask that someone move that the Rules of the Senate be reprinted to incorporate the amendments adopted by the Senate since April 2003, and that the Chair, myself, be authorized to table the reprint in the Senate.
Senator Joyal: I so move.
The Chairman: Moved by Senator Joyal. Are all honourable senators in favour?
Hon. Senators: Agreed.
The Chairman: I shall table the revised Rules of the Senate this afternoon.
Senator Murray: Madam Chairman, I take it we have a standing reference to consider the Rules of the Senate?
The Chairman: Yes. 86(1)(f).
Senator Murray: There is a matter that has bothered me for some time and I think we should consider it at some point — however, not today. It has to do with the process of a bill through its various stages, and in particular, the clause-by-clause stage of a bill at committee.
There is a custom that I deplore, and that I think is wrong, of dispensing with clause-by-clause consideration by majority vote. I have talked to experts about this, including at least one who is a former colleague of ours here. While I agree that by unanimous consent with leave it should be possible to dispense with clause-by-clause, it should never be possible to do so by simple majority vote. I speak as one who has been complicit in this. It should not be possible to do that by majority vote because it seems to preclude a senator from actually moving an amendment. Clause-by-clause is as essential a part of the legislative process as second reading or third reading; and we would not dream of suggesting to dispense with second or third reading by a majority vote.
There was a ruling by a previous speaker that went in the opposite direction, which said a majority vote would be sufficient. I think that is wrong, and I think at some point we ought to revisit that issue.
The Chairman: Thank you, Senator Murray; I will take that under advisement. I do know that, in the main, individual committees make their own rules and abide by them. They proceed in their usual manner. I know that in the Standing Senate Committee on Legal and Constitutional Affairs, it was quite usual — when it was a noncontroversial bill — to dispense with clause-by-clause and just move the whole thing. However, that was only when there was unanimous agreement around the room to do so.
I will certainly add this to the lengthening list for future discussion in this committee.
Do we have a motion, honourable senators, to move in camera?
Senator Joyal: Just before that, Madam Chairman, I use the opportunity that Senator Murray raised another issue to bring to the attention of my colleagues around the table the fact that the other place is examining the scope of the privilege of refusing to appear in court following subpoenas for a period of 40 days before and after a session. I read this morning in the Ottawa Citizen, page A4, that the House of Commons is reviewing the decision in the Telezone case that we have raised here before, and that the House of Commons is studying the opportunity to limit that privilege or extend it or review it. It is very important for us to be kept informed of the testimony and the witnesses who will appear. As you know, if there would ever be an amendment proposed to that privilege, or a reduction of that privilege, it will have to come to us. A privilege of parliamentarians cannot be abrogated or limited or changed without the concurrence of both houses.
This is a very important issue. Because this is an issue that would come before this committee, it would be proper for us to be kept informed of where that issue is heading. It is not a government policy per se; it deals with the privileges of individual members of Parliament, the members in the other place as much as the members in this place.
I should like to bring that to the attention of our researcher here so that we may be kept informed of the content of the interpretation that is given to that privilege, and where it seems to be heading with that.
The Chairman: Thank you. I am sure that Mr. Robertson will keep an eye on what is going on and bring us up to date regularly on what is happening there.
Do I have a motion to move in camera now for the rest of our meeting to discuss our findings on whatever we propose to call this as we work through the 51st report on the Standing Senate Committee on Rules, Procedures and the Rights of Parliament?
The committee continued in camera.