Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 5 - Evidence - Meeting of November 1, 2005
OTTAWA, Tuesday, November 1, 2005
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:37 a.m., pursuant to rule 86(1)(f) of the Rules of the Senate, to consider a draft report on the study of the participation of senators by telephone or videoconference during public and in camera meetings of select committees; and to study and make the necessary recommendations on the advisability of amending Senate practice so that bills tabled during a parliamentary session can be reintroduced at the same procedural stage in the following parliamentary session, with a view to including in the Rules of the Senate a procedure that already exists in the House of Commons and would increase the efficiency of our parliamentary process.
[English]
Mr. Blair Armitage, Clerk of the Committee: Honourable senators, we have quorum. As clerk, it is my responsibility, according to rule 11, to inform you that the chair and the deputy chair will be absent today and to preside over the election of an acting chair. Are there any motions?
[Translation]
Senator Robichaud: I move that Senator Joyal act as chairman of this committee for this meeting.
Mr. Armitage: I do not hear other nominations.
[English]
Is it agreed, honourable senators?
Hon. Senators: Agreed.
Senator Serge Joyal (Acting Chairman) in the chair.
The Acting Chairman: As honourable senators have received the agenda for the day, the first item reads as follows: pursuant to rule 86(1)(f), consideration of a draft report on the study of the participation of senators by telephone or video conference during public and in-camera meetings of select committees; and further study on the advisability of amending Senate practice so that bills tabled during a parliamentary session can be introduced at the same procedural stage during the next session.
I suggest that we move on with the first item on the agenda. As honourable senators will recognize, we are considering a draft report, and it is my duty to ask if you would prefer that we move in camera for this discussion, as the rules provide.
I have a proposal from Senator Di Nino that we move in camera. Are there any other comments on that? Everyone is in agreement. We will move in camera.
The committee continued in camera.
The committee resumed in public
The Acting Chairman: We are now back to our regular meeting in public.
The second item on the agenda is to study and make the necessary recommendations on the advisability of amending Senate practices so that bills tabled during a parliamentary session can be reintroduced at the same procedural stage in the following parliamentary session, with a view to including in the Rules of the Senate a procedure that already exists in the House of Commons and would increase the efficiency of our parliamentary process.
I will ask Mr. Robertson to explain the procedure in the House of Commons, because the item refers to it specifically, so that we understand all the implications.
James R. Robertson, Principal, Law and Government Division, Parliamentary Information and Research Service, Library of Parliament: The briefing notes outline the current procedure in the House of Commons. Provisions have been added to the standing orders of the House of Commons whereby private members' bills can be reintroduced from session to session, and in fact they have gone beyond that, to the point where a procedural prorogation does not affect private member's bills in the other place. That is partly in recognition of the time it takes for private members' bills to work their way through their procedures. That also applies to private members' bills emanating in the Senate in terms of their own procedures in the House.
Government bills are not provided for under the standing orders. There is no provision for the reintroduction of government bills. A government bill must be the subject of a motion, and it has become the practice of governments to propose a motion in the other place at the beginning of a second or subsequent session allowing them, if they choose, to reintroduce government bills at the same stage they had been at prorogation. This, however, is subject to debate and a vote, and it is often used as a negotiating point by the House leaders in the other place. Opposition parties use it as an opportunity to get agreement on other, related matters.
My understanding is that the current procedure is a blanket motion that allows any government bills that were outstanding at prorogation to be reintroduced upon the government's initiative, and it has been the practice not to reintroduce all of them but to be selective. There is no reason that motion could not refer to specific government bills rather than all of them, but that is not the current practice in the House of Commons. Of course, prorogation is one thing; there is no provision for private members' bills or government bills to be reintroduced after dissolution. A new Parliament means everything must start afresh.
The Acting Chairman: Therefore, if I try to re-express it in layman's terms, it means that when there is dissolution of Parliament, everything dies. The agenda is wiped out. There is no way that a bill can be resurrected. It is only at prorogation, when the House is prorogued, that that opportunity is reserved for private members' bills. The government has to seek the concurrence of the opposition parties to reintroduce a government bill.
Mr. Robertson: It is a motion. Opposition parties could vote against it. In a majority government situation, the opposition party generally does not support such a motion.
The Acting Chairman: There is no qualified majority. It is a simple motion and applies only to the private member's bill.
Senator Di Nino: If — we are talking about prorogation now — a private member's bill has gone through the House process and is in the Senate, what happens then?
Mr. Robertson: The House considers the bill to have passed all three stages in the new session and to be in the Senate, so that it does not require any further action by the House because of the standing orders.
The Senate is obviously the master of its own procedures. If the bill had reached but not received third reading, it would be entirely open to the Senate to start the bill from scratch. The House does not purport to make any decision on that.
Senator Di Nino: What does “open to the Senate” mean? Would it require a motion?
Mr. Robertson: Yes, the Senate would be able to do whatever it wanted with that bill, to reinstate it or whatever. I am sorry, the House only says that they will treat the bill as having received third reading and been sent to the Senate.
Senator Cools: No, I am afraid there is a mistake here. That provision to be able to reinstate bills is what is before us. Currently, if a bill dies in the Senate, there is no provision to start that bill again. Do you remember Bill C-10B, the ethics bill? We have had a fair amount of experience with that. As a matter of fact, when the ethics bill was resuscitated in the House of Commons, they acted as though it had had no readings whatsoever in the House of Commons, and it started over, absent the amendments that had been made in the Senate. Therefore, there is no provision whatsoever for the Senate to carry on with or to pick up a bill after prorogation.
In fact, the proposal that is before us is totally new.
Senator Di Nino: Excuse me; I do not have my answer yet. We are not talking about government bills. We are talking about private members' bills. We understand what happens in the House. You have said that you believe that after prorogation, the House says, in effect, “This bill is in the Senate.” What provisions do we have, if any, at that point to deal with it?
Mr. Robertson: The House will send the Senate a message at the beginning of the new session advising it that, as far as the House is concerned, the bill has received third reading in the form that it was in the previous session. It will then send it to the Senate, where it is up to the Senate to decide how to deal with it. The Senate's practice, as Senator Cools has pointed out, is to start afresh with that bill.
Senator Di Nino: Again, for clarity purposes, we are only talking about private members' bills. Government business has to start all over again, right? A motion has to be passed to reactivate those bills; it is not automatic.
Mr. Robertson: That is it exactly. Once that motion has been passed, if a bill was in the Senate at prorogation, they would send a message to that effect as well, but it requires the motion.
Senator Di Nino: The Senate then decides how to deal with it.
Mr. Robertson: That is correct.
Senator Di Nino: It requires a motion of the Senate as to whether to start over or where it left off; do I understand that correctly?
Again, for clarity's sake, that is at prorogation. At dissolution, everything dies in the House and the Senate.
I have one final question. It is after prorogation, the House resumes, they pass the motion and the private members' bills are in the Senate. We need to take some action. Either we take no action on a private member's bill, or if there is a motion that says it goes back to the Senate, we could start from the beginning.
To start from where we left off, do we have to pass a motion in the Senate? Is that what I understand?
Mr. Robertson: That is correct. The practice of the Senate at present is not to adopt those motions for any bills, whether government or private members' bills.
Senator LeBreton: Therefore, in the case of a private member's bill in the House of Commons that comes over to the Senate, and it is on our Order Paper, are you saying that we are not in any way obligated to respond to it once we get the message from the House of Commons? We can do one of two things: pick it up where it was or start the whole process again?
Mr. Robertson: I think, under the rules, the Senate must start all over again. The only way around that rule or practice procedure would be for the Senate to adopt a special motion allowing it to be treated as if all the business in the previous session had occurred in the new session.
Senator LeBreton: We are still only talking about private members' bills.
Mr. Robertson: That is right.
Senator Cools: It is my understanding that there is no provision in the Senate to adopt such a motion. The House of Commons procedure, which I consider dubious, is to reinstate the bill. They actually obviate the Senate, because if the bill were in the Senate chamber at third reading, the other place begins the process again. We do not know what happens to the in-between state. When it comes to the Senate, it is not open to the Senate to adopt a motion to reinstate the bill. The Senate starts again, with first reading, second reading and third reading. We saw this happen in the session before the election with several bills, some as questionable as the animal cruelty bill, which was reinstated although it was no longer a creature of the House of Commons.
The Senate has no provision to do this. Perhaps it could create one, although I doubt it, but people do things every day. As it stands, the Senate has no provision within the Rules of the Senate to reinstate bills as they stood at prorogation.
Under the procedures adopted in the other place, they reinstate bills, but not at the same procedural stage as at prorogation, as they did with the ethics bill. When the House of Commons says “reinstate where it stood,” it must mean “in the House of Commons,” because it cannot speak for the Senate. In other words, if a person is drowning in the Ottawa River, you have to be on the Ottawa River to rescue them and not the Rideau River. It was a question of clarifying the procedure. The motion that they introduced in the House of Commons, for all intents and purposes, is the same wording as the motion for private members' bills, but it becomes more complicated than that.
The reinstatement of private members' bills in the House of Commons now involves the Speaker. They used to do it by a motion, but now they do it by a certification statement from the Speaker. Before we make rushed decisions on this, we had better determine the orders that allow this and exactly how the procedure works. The Speaker of the Senate is not in the same position as the Speaker of the House of Commons. It is a huge issue. It is not merely a matter of “pity to lose all that work done on the bill.” Rather, we want to study how a standing order of either the Senate or the House of Commons can defeat a prorogation, which is a decree from Her Majesty. That question has to be answered. I put that complicated question to the committee.
The Acting Chairman: Senator Cools, the ethics bill and the animal cruelty bill were government bills. Again, this study is addressing only private members' bills. As well, I want to mention something that was passed on to me by Mr. Armitage. We have a Senate ruling that recognizes the process. I suggest that we obtain the ruling, although not today because it is late, and circulate it, so that when we continue at the next meeting we will have the current interpretation of the Rules of the Senate in respect of this matter, as Senator Cools mentioned. With the concurrence of the committee, I will ensure that the Speaker's ruling is circulated so that we know how it stands in the Senate.
[Translation]
Senator Robichaud: Would the Rules of the Senate forbid the proposal of a motion for the reinstatement of a bill at the stage where it was before a prorogation?
[English]
Mr. Armitage: The senator was asking if the current Rules of the Senate prohibit or allow a motion that would reinstate a private member's bill at the stage it was before prorogation. Is that an accurate summary?
The Acting Chairman: Yes.
Mr. Armitage: The rules say that with appropriate notice, you can amend the current Rules of the Senate. The stages that the Senate follows with respect to bills are rules of the Senate. Therefore, the Senate, by decision, could choose to override its current provisions.
Senator Robichaud: Notwithstanding —
Mr. Armitage: Yes, notwithstanding, and reinstate a bill at a current stage.
The Acting Chairman: It is a debateable motion.
Senator Cools: There is no existing provision.
Senator Robichaud: There is no provision. My question, knowing there are no provisions, was whether there are any prohibitions.
Senator Cools: There are many prohibitions, which I shall argue in due course.
The Acting Chairman: I will hear you, Senators Cools, after I hear Senator Andreychuk. I know you have strong feelings and I have heard you before in the Senate on this.
Senator Andreychuk: I was attempting to draw the attention of the Acting Chairman to Senator Losier-Cool, who has a question.
The Acting Chairman: I have her on my list.
Senator Andreychuk: I am sure that all senators have strong opinions on this. I may have slept through a meeting, although I doubt it, but it seems to me this is the first time we have dealt with this issue. The motion, introduced by Senator Hervieux-Payette, was referred to this committee. It is my understanding that the usual practice is to bring that senator forward to explain the intent of the motion.
Senator Losier-Cool: Precisely.
Senator Andreychuk: I am not concerned about whether we can do it until we determine whether we should do it. I would like to know the compelling reason to do it or, conversely, not do it. I have heard all about the efficiencies, about being halfway through a bill when Parliament prorogues and how this new procedure would save time.
Prorogation means something to me; we are starting an entirely new process and new government intent. It might be that efficiency is not what I want to rule. I may prefer to say that a bill was given a rather light touch in that Parliament. I might want to look at a bill in a different light in the next Parliament. I would have liked to begin this study be hearing from the senator responsible for the motion to determine the intent. If we agree that it would be in the Senate's best interests to have that kind of motion, then we will determine how to proceed. I have heard Senator Cools say a thousand times that the Senate is master of its own fate. We could set rules for the Senate's efficiency and needs but we would have to determine the need first. How will we get at this process?
The Acting Chairman: I take your point that members of the committee will want to hear from Senator Hervieux- Payette and others. We could invite Senator Hervieux-Payette to present her case, her arguments, the reasoning and rationale behind the motion.
The discussion this morning has been useful because we have raised many elements for consideration. The Speaker's ruling could be helpful to us as well. We will attempt to amass the information and Mr. Robertson could review some of the questions raised this morning.
[Translation]
Senator Losier-Cool: My question is of the same kind as the one of Senator Robichaud. Is there a provision in our rules that would prevent us from introducing a motion in the Senate?
And I see a difference with private members' bills. If we get the information from the clerk for our next meeting, we will answer to the concerns of Senator Andreychuk as to whether this change is desirable or not. About the question of knowing if there is a provision in our Rules that forbids us to go that way, as you said Mr. Chairman, this will go back to the House and be subjected to a debate. If such a motion passed in the House does not stop us, maybe it is the way to go. We always say that the Senate must be the master of its own decisions. I would like very much to know what the Senate is allowed to do.
[English]
Senator Cools: I would like to state, in support of Senator Andreychuk, that when a matter comes before us, particularly by way of an initiative of an individual senator in the house, my understanding is that routinely, if possible, we begin by hearing from that witness first — that person usually sits as a witness — so that the record can show clearly what the reasons were. I was not intending to raise it, but since Senator Andreychuk did, I wanted to add that.
There are two other issues that I have to understand. I have a lot of difficulty with the perception that only the staff know the rules or only the staff know the necessary information. Perhaps we could find a way to accept that there are members around the table who know the system, who read about it and study it.
I do not think it is good for senators to have to be informed minute by minute of their own institution and their own operations. It does not bode well.
Finally, Senator Joyal said that I had only mentioned government bills as having to be reinstated in the House of Commons after they had been in the Senate when prorogation happened. I could cite some private members' bills — for example, Bill C-247, consecutive sentencing. Several private members' bills were reinstated in the House of Commons; and in that process of reinstatement, they totally ignore what has happened in the Senate.
I had a lot of concern when the House of Commons reinstated the ethics bill and the animal cruelty bill because I would argue that they had passed beyond their purview totally. When those bills died, when prorogation occurred, they were in the Senate; and the House of Commons has no jurisdiction over that which was dying in the Senate. Even though it may be a corpse, it is still the Senate's corpse. I would especially like to hear from Senator Hervieux-Payette.
To answer a question, our rules as written and the Constitution as written forbid this. Prorogation means dead, to bring to an end. Therefore, it is not accurate to say that there is nothing in our rules prohibiting this. Currently, our rules do prohibit it and that is why the practice has not been adopted in the Senate. We may want to say we will abandon all of that practice of 50 years or 100 years and go down this road, but I do not share that view.
I would also like to say that until recently, that process of reinstating bills was rarely used in the House of Commons. Now it has become a rampant practice, where they are reintroducing bills in bulk.
I do not understand it: There is no need of a standing order or a rule, because if most of the members of the chamber are agreed, there is no need for an automatic reinstatement. The proper way to proceed at that point is by a series of unopposed motions, where the government and the opposition agree not to prolong the debate and you move ahead by unopposed motions. In other words, the government moves a motion — first reading, second reading, third reading — and it moves ahead. That is the proper practice and that is how it used to occur.
I do not understand why we need this kind of semiautomatic process. We are trying to defeat, to my mind, age-old principles that if the members of the house decide that it is in everyone's interest to move a bill along, then they can do it. Because a bill was at a certain stage — a private member's bill — and it is a new session, the house and the members are entitled to a reconsideration of everything that occurred before.
You can do anything you want if you have a majority, I suppose, but you should not make rules that deny members of the chamber the opportunity to revisit and re-examine a situation. We will talk about it more, but it is a very questionable process. Obviously, the staff are in support of it.
The Acting Chairman: That was the question I was to put to the members of the committee. As you notice on item 2, there was a consideration of a draft agenda in relation to that point. I understand there is a consensus on this issue that we would invite Senator Hervieux-Payette as our first witness.
We might want to have an explanation of the ruling of the Speaker, maybe by the table, so that we understand the reasoning in relation to that. We might ask, through our clerk, for the preparation of some explanation, either in writing or as a witness, perhaps. That is also a possibility.
Mr. Armitage: At times, this committee has asked the deputy clerk to explain the status quo, just for the purposes of debate.
The Acting Chairman: I think that it was a helpful discussion this morning because we see the complexity of this issue. We will want to hear Senator Hervieux-Payette and have an explanation of the ruling of the Speaker, through the proper clerk or the table officers involved in the procedure. Senator Di Nino, did you want to add to this way of approaching the issue?
Senator Di Nino: I think it is fine. I would add, Mr. Chairman, we may want to get some idea of what the practice of other parliamentary governments is. I hate to use the term because I think we have experts sitting at the table, but we may want to add some other expert witnesses. How is that?
I think the discussion this morning highlighted the fact that this issue has a number of sides to it. I am not sure where I will land on it. I can see the benefit of reintroducing bills, but I am not sure that is a wise thing for a Parliament to do as a general, regular practice.
I think a variety of opinions would add some clarification, at least for me, and hopefully for our colleagues. Therefore, I would ask for a survey of other Parliaments, particularly Westminster systems, and let us see if we can get a couple of opposing views on the issue from experts — recognizing that I do think we have our own at the table.
The Acting Chairman: I understand your request to be, directed first to Mr. Robertson, for the conclusion of research that you would initiate on the practice in the other Westminster models. I understand that the U.K., Australia and New Zealand might be the usual references we would look at; and then we could take the further step of having additional expert views on that. Is that agreeable, honourable senators?
Senator Di Nino: Of opposing views?
The Acting Chairman: Yes, of opposing views, different views.
Is that agreed? Okay, that concludes our meeting for today.
[Translation]
Senator Robichaud: I understand that, in two days from now, we will discuss the second point. What about the subcommittee on the use of Aboriginal languages in the Senate?
[English]
The Acting Chairman: Absolutely. As I said to Senator Di Nino, the subcommittee, which is composed of Senator Di Nino; the Chair, Senator Smith; and me, has a meeting scheduled for tomorrow at lunch time. Perhaps from that we will be able to report to the committee and then move on with it. It is the next item for tomorrow's agenda. I understand that Senator Losier-Cool is moving adjournment.
The committee adjourned.