Proceedings of the Standing Senate Committee on
Rules, Procedures and the Rights of Parliament
Issue 5 - Evidence, March 20, 2007
OTTAWA, Tuesday, March 20, 2007
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:34 a.m. pursuant to rule 86(1)(f)(i) of the Rules of the Senate to give consideration to the notice requirements for questions of privilege; to the reinstatement of bills; and to a draft budget.
Senator Consiglio Di Nino (Chairman) in the chair.
[English]
The Chairman: Honourable senators, this morning we will be dealing with two issues, first of which is consideration of the notice requirements for question of privilege that was referred to us by the Speaker some time back. The other item is one that has been hanging around for a while, namely, the consideration of the reinstatement of bills after either dissolution or prorogation.
I shall ask our witness, Mr. Charles Robert, the Principal Clerk of the Senate, to come before us and educate us on these issues. We will start with the question of privilege.
Charles Robert, Principal Clerk, Chamber and Procedure Office, Senate of Canada: Honourable senators, I appreciate the opportunity to address you on the notice requirements for questions of privilege.
In a ruling given on October 26, 2006, dealing with the process for raising questions of privilege, the Speaker noted three issues on which the Senate's procedures could be clarified.
First, he analyzed the level of detail required in the written and oral notices to raise a question of privilege under rule 43 and concluded that the notice must clearly identify the issues that will be raised as a question of privilege.
[Translation]
Second, he invited this committee to examine the relationship between rule 43 and rule 59(10), both of which deal with the notice requirement for questions of privilege.
[English]
Finally, he invited this committee to examine ways in which the rules might more clearly delineate the beginning and end of the Routine of Business. Under rule 23(1), questions of privilege and points of order cannot be raised during the Routine of Business or during Question Period.
[Translation]
Let me deal with each of these issues in this order. With respect to the level of detail required in the notice of a question of privilege given under rule 43, the Speaker emphasized that the purpose of notice is to allow senators to know what issues they will be considering. He concluded that the notice given under Rule 43 should, therefore, be sufficiently explanatory and comprehensive. In other words, the notice must clearly identify the matter that will be raised as a question of privilege.
[English]
If this committee wishes to recommend changes to the Rules of the Senate to clearly express this requirement, it could amend sections (3), (4) and (7) of rule 43 along the lines of the following:
(a) Add, at the end of sections (3) and (4) wording such as "clearly identifying the matter that will be raised as a question of privilege." and,
(b) Insert, at the beginning of the second sentence of section (7) wording such as "in doing so, the Senator shall clearly identify the matter that will be raised as a question of privilege and shall indicate that he or she is prepared . . ." and then continue with the existing wording.
I have models of that proposal here for you, which can be distributed.
[Translation]
This will make it easier for the committee to follow along.
[English]
The Chairman: We will have them distributed right now.
Mr. Robert: With respect to the notice requirement for questions of privilege, the second issue in the Speaker's ruling dealt with the inconsistency or the conflict between the notice requirements set forth in rule 43 and in rule 59(10). The latter allows a question of privilege to be raised without notice.
As the Speaker explained, rule 59(10) reflects the pre-1999 provisions of the rule. Before the introduction of the process under rule 43, former rule 33 had provided that — and I quote:
When a matter or question directly concerning the privilege of the Senate, or any committee thereof, or of any Senator, has arisen, a motion calling upon the Senate to take action thereon may be moved without notice and, until decided, shall, unless a debate be adjourned, suspend the consideration of other motions and of the Orders of the Day.
[Translation]
In that context, the Senate's current rule 59(10), which was then rule 46(k), was coherent with the other rules. However, changes to 59(1) that were required by the addition of the process under rule 43 were not made. Since the amendments to the rules in 1991 were quite wide-ranging, this was not the only case of an oversight. To take a very obvious example, former rule 26 prohibited preambles to a question, whether oral or written, while at the same time rules 24(4) and 42 allowed for brief explanatory remarks.
This conflict was cleared up in 1994, when then rule 26 was deleted.
[English]
While the effects of implementing rule 43 on rule 59(10) may have been overlooked in 1991, this committee is considering the issue now. The committee might determine that rule 59(10) does serve a useful purpose, providing a means for addressing a matter of privilege that arises during the course of a sitting.
If the committee decides that rule 59(10) should be maintained as a direct means to deal with matters that occur during the sitting, it might be helpful to move it and link it more directly to other provisions relating to questions of privilege and to clarify how they relate to one another. This could, for example, be done by adding a new section to rule 43, with the wording along the lines of the following.
Rather than keep you in the dark, there is a document as well that can be distributed to give you an idea of exactly what is being proposed.
It would be in the form of the following:
(2.1) If a matter about which a Senator wishes to raise a question of privilege occurs while the Senate is sitting or after the time for giving written notice under sections (3) and (4), the matter shall be dealt with at the time provided for in section (8) or (9), as the case may be, provided that the Senator rises at the first opportunity and gives oral notice of his or her intention to do so. When giving notice under this section, the Senator shall clearly identify the matter that will be raised as a question of privilege.
This would require coordinating amendments to some other provisions of the rules, which we could do once the committee has come to a decision about the matter.
[Translation]
If, however, the committee decides that rule 59(10) is unnecessary, it could recommend that it be deleted. Other means exist to deal with issues of privilege that could come up during the sitting. These include raising the matter as a point of order if it occurs during the course of a sitting, the Speaker using the power under rule 18(1) to preserve order and decorum on his or her own initiative, or the Senate giving leave to take up the matter if deemed sufficiently urgent. In addition, of course, a Senator would still have the option of raising the matter the next day under rule 43.
[English]
I think, perhaps, I have gone on long enough. There may be some questions that deal with these two specific points. We can then go on to the third element that was raised in the Speaker's ruling dealing with points of order and questions of privilege before Orders of the Day.
The Chairman: That is fair enough. We are happy to accept that suggestion.
Senator Fraser: Which suggestion?
Mr. Robert: That we deal with these two issues about clarification of the notice and whether 59(10) means anything to us.
Senator Fraser: Yes, but you offered two options on section 59(10). If I have the floor, I was going to support the option of just ditching, dumping, cutting, getting rid of rule 59(10). I like very much your proposals for revisions to rule 43.
Senator Smith: We could spend a lot of time on this, but I thought the Speaker's ruling in this was appropriate. I always prefer clarity over vagueness and obfuscation. I am very comfortable in proceeding to amend the rule so as to require clarity as to what the point is all about. With regard to the suggested new rule, at first blush it looks fine. There may be a few great experts who want to massage and fine-tune it, but in principle I think we are doing the right thing if we clearly establish that clarity is required.
Senator Joyal: On the first point, which is the substance of the notice that should be given when a senator wants to raise a question of privilege, I concur with Senator Smith that clarity is better than uncertainty. A senator who feels that his or her privilege has been questioned or is at stake should provide to the other senators the object of his or her claim on the basis that it helps to prepare for the debate later in the day. That, I think, is essentially the purpose of that clarity. It is to help us individually understand the scope of the claim. Meanwhile, if we feel that it is important for an individual senator to intervene on the issue and reflect upon it, we can prepare. I totally concur with Mr. Robert that, in that context, it would be helpful for senators individually in performing their duty.
On the second point, which is when an issue of privilege occurs while the Senate is sitting, the procedure should be very clear. Before dumping, as Senator Fraser mentioned, rule 59(10), I should like to be reassured that the procedure is clear somewhere else in the rules so that we know the exact procedure and the notice that would be given. I understand that, in that case, it would be an oral notice that would be of the same substance as the written notice. In other words, it would have to explain to senators the purpose of the claim or the nature of the claim so that, later in the day, when the issue of privilege is debated, senators would be "armed" with the previous knowledge of the issue so that they have time to think about it.
To me, it is as important to know the procedure clearly when the question arises during a debate as when it happens before the Senate's sitting. I would try to create a parallel between the two procedures, in terms of the nature of the information provided and the time frame for senators to give the notice or to raise it so that there is a similarity of procedures so that we know individually when such an occurrence happens what to do and how to behave. I would try to put the two procedures in line so that we do not have two different sets of approaches, depending on if it is before or during.
Before I accept the proposal to dump 59(10), I should like to know exactly where we would get the information about the procedure when the situation occurs during a debate.
Mr. Robert: If you look at the proposed (2.1) that was distributed, you would see that it tries to parallel, as you suggested, the process that is followed now. The only difficulty would be that, if the incident that provokes the oral notice that the senator wants to give comes at the end or close to the end of the Orders of the Day, the time gap for preparation would be almost minimal. The time to prepare, then, would be sacrificed.
For example, let us say that we were dealing with Other Business and a debate on a motion or an inquiry, which are events that occur towards the end of the sitting day under Orders of the Day before we get to the Notice Paper. If something occurred and a senator rose and gave oral notice and clearly identified the matter that he or she thought merited treatment as a question of privilege, the time to prepare under the rules would be minimal because it would come up almost immediately as we approach the end of the Orders of the Day. There is a problem. Unless we do decide to dump it, I do not know how we can give you a guarantee of sufficient warning with respect to the consideration of the question of privilege. The flip side, however, may very well be that, if the event is provoked by something that occurred in the chamber, those senators who are in the chamber would be a witness to it. If it is an attack coming from outside the chamber, I am not sure really why we would want to resort to rule 59(10) when rule 43 is still available.
Again, it is not for us to presume what the committee might judge to be the appropriate action to take with respect to rule 59(10). When we did our analysis, the general consensus around the table was that it was an oversight and that, because of its clear relationship to a previous rule that allowed you to raise a question of privilege without any notice whatsoever, the listing of what motions or what rubrics did not require notice would have had to include questions of privilege. When that change was made, we made no similar adjustment under that rule.
Senator Joyal: I do not want to "complexify" the issue further, but let me present two scenarios. A senator is concerned that his or her privilege is questioned during a debate within the Senate. We are within the Senate and debating an issue and there is an allegation or a statement made whereby one senator reflects that his or her privilege might be in question, or the privilege of the institution, but he does not raise it immediately. He or she still has the possibility to give a notice.
Mr. Robert: Under rule 43.
Senator Joyal: Yes, to raise that matter the following sitting day.
Mr. Robert: Yes.
Senator Joyal: There is the other occurrence where the privilege of the Senate is questioned, not during a debate on the floor of the Senate, but outside. The senator might be aware because, perhaps, there is an article in the newspaper. However, before the senator comes to the conclusion that the privilege of the institution is being questioned, he or she could raise it at the next sitting day of the Senate even though it occurred during a sitting of the Senate. In other words, there is still flexibility of time for a senator to raise an issue of privilege even though he is present in the chamber when the statement is made or he is present in the chamber when the statement is made outside the chamber.
Mr. Robert: Let me raise a doubt about the first scenario and how it might play out.
If rule 43 actually requires that you do it at the first opportunity and it is an event that occurs in the chamber and you did not avail yourself of rule 59(10) if it exists, then have you in fact done it at the first opportunity? That becomes the question, and because the Speaker is required to evaluate the criteria by which a question of privilege should be given priority of consideration, that may become a factor.
With respect to "outside of the chamber," if it is not within your knowledge the instant it occurs it is very difficult to invoke rule 59(10) to challenge its privilege status. However, I think there is an issue in the first scenario that you mentioned if an event occurs within the chamber.
Senator Joyal: Yes, but as I tried to explain, there might be a situation whereby the senator wants to get further advice on the issue before raising it. In other words, in the context of risk, you prefer to play the risk of being ruled out or lose your opportunity of putting it forward. Those are the two options.
Mr. Robert: I agree. If, per chance, the question of privilege had a political component to it, the first opportunity element could be a basis for a challenge.
Senator Joyal: Hence, your advice would be that if you are in doubt you move.
Mr. Robert: If in doubt, I would be inclined to follow Senator Fraser's advice and actually give more manoeuvrability to the senators involved by, in some sense, relying more heavily on rule 43.
We always admit that if you do not want to go the Speaker's ruling route to determine whether there is a prima facie, nothing prevents a senator from doing it by way of a substantive motion. I am not sure that rule 59(10) gives you a whole lot.
Senator Cordy: I want to place on the record that in my mind the purpose of the question of privilege is to allow all senators to contemplate what they would say in the ensuing debate. If the question of privilege is simply that I am bringing forward a notice of a question of privilege with no indication whatsoever as to what it will involve, then the participation of senators, I think, is at risk, because, when the moment comes, you have no idea and cannot formulate any thoughts whatsoever in your mind.
I agree with the Speaker that the purpose of notice is to allow senators to inform themselves of an upcoming debate. In fairness, both to the Senate and to senators, it is important that any question of privilege give an indication to senators as to what is actually in it.
I guess we are now in the midst of where we go from there. The rules must be clear, so that we do not have to go through this time and again. The rules must be clear and fair to all senators.
[Translation]
Senator Robichaud: I fully agree with what you said at the beginning of your presentation, namely that the notice must clearly identify the matter to be addressed, otherwise senators are lost.
My question relates to the point raised by Senator Joyal. If an opportunity to raise a question of privilege does not arise during a sitting of the Senate, one could argue that one is late in bringing the matter up, because one failed to take advantage of the first opportunity to raise the question. This happened to me once during a debate. I could have raised a question of privilege, but did not. However, could one give oral notice of one's intention of raising a question of privilege in the Senate? Would this not leave us time to prepare ourselves for raising the question at the next sitting, particularly if the issue arises at the end of the sitting?
Mr. Robert: In practice, under rule 43, when notice is given during "Senators' Statements," it is an oral notice. It is immediately clear to everyone that at the end of the day's business, a question of privilege will be raised so that the Speaker can make a ruling. In addition, written notice is given prior to the start of the sitting to allow senators time to prepare themselves, if necessary. That is one way of integrating rule 59(10) with existing practices under rule 43. However, preparation time remains limited.
Senator Robichaud: Yes, that is my point. If we do away with rule 59(10) and incorporate it into rule 43, as you suggest, and if during a sitting, a senator gives oral notice at the first possible opportunity that he intends to raise a question of privilege, could we not find a way to allow that senator, having given oral notice, to raise the question of privilege the following day when all senators would be aware of it and could prepare themselves. That goes for the senator raising the question as well as for the person who is the subject of the question.
Mr. Robert: If you are suggesting that it should be possible to consider this question of privilege the following day, why then not simply use Rule 43? What advantage is there to giving oral notice during the sitting, and to debating the issue the following day?
Senator Robichaud: The question is also what advantage there might be to proceeding in this manner, since a senator might be really miffed at the time.
Mr. Robert: Indeed.
Senator Robichaud: That is time to speak up and emphasize the importance of the matter. A question of privilege is not something to be taken lightly. When someone claims that the privileges of a senator or of the Senate are threatened, then the matter that is to be raised is important.
Mr. Robert: However, if a senator is genuinely frustrated and gives notice of a question of privilege, when really it is more in the nature of a point of order, it will limit the manner in which the issue will be dealt with. The question will be treated as a point of order, rather than as a question of privilege.
However, perhaps after giving some thought to the matter, the senator will come to the realization that the matter is more in the nature of a point of order that he is entitled to raise immediately. The fact is that very rarely should a question of privilege be raised in the Senate chamber, whereas points of order are a more common occurrence and can be dealt with right away.
If the notice is deemed to be a question of privilege and not a point of order, the Senate must deal with the oral notice and debate the question the following day, after Routine Proceedings, in accordance with the procedure set out in rule 43.
Senator Robichaud: If I stand in the Senate and give notice of my intention of raising a question of privilege and if, the next day, I send a written notice to the Clerk of the Senate outlining the issues that I raised the previous day, then under the rules, the matter could be debated. Correct?
Mr. Robert: Yes, by all means.
Senator Robichaud: And we would not have to deal with the matter the very same day.
[English]
Senator Andreychuk: Two difficulties arise here — the first opportunity and clearly identifying. Having been one who has tried both in writing and in the chamber, I know how difficult it is. I recall a discussion about a newspaper story that I found to be breaching my privilege but the situation was such that I did not read about it until the next morning. Nevertheless, I was told that the story was in "yesterday's" paper. My reply was that I am on 12 committees and thus could not get to it. However, if it is your first opportunity, that is how it will be interpreted. How does one capture that it was my first opportunity? That was never clearly defined to me. I am still at the behest of a Speaker ruling on that.
Clearly identifying the matter is also a problem, because to do it justice you have to do some homework. If you are facing a deadline, you will not have time to do the necessary research.
We have been in a difficult situation — which is why there are not many written questions of privilege, except by some senators who know the system or may have a particular privilege issue that they are tracking and so you do not see it. Daily, senators jump up in the chamber and yell "privilege," to which another senator replies "order," so we go to a point of order rather than privilege. We are either going to have the capability of standing up and saying "privilege" and having to argue it out and suffer the consequences, or we will have to have the ability to delay the real debate. To me, a question of privilege is not for the person raising it but for each and every of us. How that privilege is identified by the Speaker for that individual will affect me later. I may have a valid reason for not being in the chamber — or I may not be available for whatever reason. It seems to me there has to be some sort of capability.
What about the scenario where a question of privilege is raised at 5:45 and we get to it but time runs out and there is no consent to continue? It goes to the next day then. In that case, there would be an opportunity to prepare overnight.
Should we not be reflecting on these terms and seeing how they are applied and identifying whether a question of privilege on the floor is handled in the same way as a written question?
Mr. Robert: I have no disagreement with what you are saying in the points that you are raising. The only comment I would add is that if you reviewed the Speaker's rulings on first opportunity and clarity of the question of privilege, the Speakers of the Senate tend to be fairly generous and are not too demanding on the senators who feel that a serious grievance is being addressed through this process.
If, for example, under first opportunity you were to explain that something appeared in the paper but only now came to your attention, that the moment you saw it you realized that a breach had occurred and you are taking the opportunity to raise it now, I doubt the Speaker would deny you the opportunity.
If you feel you want to address it more substantively, it is up to the committee.
With respect to clarity of the issue, often enough the notice is not meant to be thorough. It is meant to identify what is the privilege that somehow or another is being breached. It is not necessary to have all the circumstances of the event to explain how it constitutes a breach. It is your opportunity to explain that at the end of Orders of the Day, when you have the right to rise and explain everything. There, the time limit for debate is waived, and you have as much time as you feel is necessary to explain why such and such merits being treated as a question of privilege.
Senator Andreychuk: That is fine for someone who has done rules and procedures. However, for some new senators — newness counts, background counts — it would be difficult to jump to your feet and explain your point of privilege fully and adequately on the same day. For someone with a legal background, that is quite a load. An individual has to be in the chamber for quite some time to understand what an explanation is. It puts a lot of senators at a disadvantage, such as those who have not had the benefit of the kind of training and experience that leads you to that. We take great pride that we are all equal in the chamber. It would be very difficult to express yourself that quickly without benefit of some reflection and assistance.
Mr. Robert: That is true, but I will capture the last word of your comment — that is, "assistance." We are available in the procedure office and in the Journals office to provide that assistance. We also give seminars to staff, to senators' staff and to senators themselves, on issues like points of order, questions of privilege, the mechanics and process to be followed and the kind of issues that traditionally have been involved when a point of order or a question of privilege is invoked.
Senator Fraser: I should have explained my reasoning earlier when I said I was in favour of dumping it. You touched on a number of points that concern me about preserving 59(10) in any way.
One is that the earliest-opportunity matter I think would become a question of grounds for challenge, for arguing against the legitimacy of a question of privilege if it had not been raised.
If we preserve 59(10) and bring it into 43, thereby giving it new legitimacy, I suspect that people who were not in the chamber, or did not realize that what had happened was a matter of their privilege, would be strongly challenged when they tried to raise it the next day because they had not done it at the earliest opportunity.
It is important to remember, first, that privilege is one of the biggest weapons in our armoury. It is not something we should do lightly. Second, it is very complicated; the laws, rules and precedents on privilege are immensely complicated. That is why I really like this very elaborate procedure that is laid out in 43.
The language may not be as clear as it ought to be, but the notion that it must be done in a measured way, with time for all senators to consider the matter, is very important — most of all for the senator raising the question of privilege. If the habit takes hold of saying that I have to raise the question of privilege right away, the process will end up being seriously distorted.
I believe other remedies are sufficient for those rare occasions when something happens in the chamber that is really egregious. As Mr. Robert pointed out, rule 18 allows the Speaker to preserve decorum, order and all that.
Points of order are wonderful things. The rules allow for points of order on all kinds of matters that can be raised in the chamber. I think those protections are sufficient. That is my comment.
I have a question: Do we know how often people have used 59(10) in recent years?
Mr. Robert: The only time was the occasion in October, I believe.
Senator Fraser: I did not remember seeing it used before that day.
Mr. Robert: No, because I think people naturally resort to 43.
Senator Fraser: It is not a protection, in other words, that senators have felt great need to resort to, since we have rule 43 in its present form.
Mr. Robert: The evidence would suggest not.
The Chairman: For clarification, I think you said the only time or, to the best of your knowledge, the only time.
Mr. Robert: To the best of my knowledge. We have to take into account that 59(10) is appearing on a list that simply states that no notice is required. According to the analysis we made, that was linked to old rule 33, which said that there was no requirement for notice for raising a question of privilege. To borrow Senator Fraser's words, we dumped that rule and replaced it with rule 43, but we did not make a consequential change to consider whether we wanted to keep 59(10).
Senator Smith: I suspect I know the answer to this, but it is not definitive. Is the word "reasonable" ever used in the rules? Is "at the first reasonable opportunity" too vague?
Mr. Robert: I think it is used in the authorities but not in the rules themselves.
Senator Smith: I am just posing a question. You could say the first reasonable opportunity, if you want to avoid strict fanaticism and rigidity.
Mr. Robert: I think the way the circumstances are presented by the senator, with respect to first opportunity, is taking into account the Speaker has the right to use discretionary authority to understand or appreciate the circumstances in a way that would be oftentimes sympathetic to the complaint of the senator and the circumstances under which the aggrieved senator is bringing the matter to the attention of the house. The notion of reasonable accommodation is a motive factor that the Speaker uses in preparing his rulings.
Senator Smith: I was just exploring there a little bit.
Senator Joyal: This is on the same pathway that Senator Robichaud has mentioned. Let us make two scenarios, and the point that Senator Smith raised will enlighten them.
Scenario number one: A senator who is concerned with an issue is not in the chamber when it is raised. The case is clear — the first opportunity is the next day. Scenario number two: The senator happens to be in the chamber. That is where there is a question. As Senator Andreychuk has said properly, before you raise an issue of privilege, because to a point your credibility is at stake, you want to reflect because there are consequences following from that. It is not just a point of order. There might be a decision that has important consequences, so you want to reflect upon it. In that context, you are physically there, but, reasonably or intellectually, you want to reflect on it. You come to a conclusion, after having consulted, and send a written notice the next day. It seems to me that both senators — the one who is absent and the one who is there — should have a reasonable capacity to raise it at first opportunity, first opportunity not being the exact hours but when the person comes to a conclusion reasonably that there is an issue of privilege.
The point raised by Senator Smith makes sense. The reasonableness is linked to the conclusion, after reflection, that there is a serious issue of privilege, either for the senator or the institution. We always think of the privilege as being linked to ourselves individually but it pertains to the institution too. To come to the conclusion that the institution is at stake might take additional reflection.
On the same ground as Senators Smith, Robichaud and Andreychuk, I think that is why we should protect that possibility for a senator who happened to be there but thinks, after reflection, that he or she has a question of privilege. They should be able to raise it the following sitting day, to protect the reasonableness that Senator Smith has just mentioned.
As much as I agree that we might remove section 59(10), there is a need for clarity on the issue of privilege occurring during a debate in the Senate.
Mr. Robert: If you take that route — and as you point out, it all seems perfectly reasonable — do you even need 59(10) to do that? Do you need some sort of rule to give you permission to say I think something happened here that I do not like and I will bring it to your attention tomorrow?
It seems to me that 59(10) was clearly almost a clerical listing that was provided under the rules for those kinds of activities that did not require notice. It was linked to a rule that said you could bring up a question of privilege without notice and, somehow or another, it was overlooked.
However, the scenario you describe does not require 59(10) on the books to work. If something is occurring in the chamber that is serious enough to merit being considered a question of privilege, no one — not the Speaker certainly — would ever forbid a senator, in the absence of 59(10), from rising and saying something just happened that I think is a question of privilege.
You do not need 59(10) to do that. By keeping it in, perhaps there is some sort of sense that well, yes, maybe you need it. In fact, it has no real force, no real substance behind it. It is an enumerated item that was overlooked in an editing process.
All that you say is perfectly true, and reasonableness should be factored in your reflection about whether the incident that occurred should be treated as a question of privilege. You do not need rule 59(10) to do it; by omitting it, you lose nothing.
Senator Joyal: How do you do it?
Mr. Robert: You do it by rising and saying that something happened that you do not like, in the same way that you could do it as a point of order.
Senator Robichaud: The point of order has to be done according to the rules and the order has not been followed.
Mr. Robert: That is right.
Senator Robichaud: The question of privilege has to be done according to the rules.
Mr. Robert: As part of the scenario that you describe, you say that it will be taken into account at the next sitting day. Well then, rule 43 is already in play. The process that you would follow to actually make sure that at the next sitting day it will be taken into account properly, as a question of privilege, would be through rule 43.
Senator Andreychuk: What if you do not stand up but you file a 43 and it was something in the chamber? I do not know where you are drawing your authority from.
Mr. Robert: There is no loss.
Senator Robichaud: That is where the reasonability of the Speaker of the Senate comes in.
Senator Andreychuk: It is all in the hands of the Speaker and his discretion is my understanding from your explanation.
Mr. Robert: Yes and no, because in some sense the senator who has a grievance will make a case.
Senator Andreychuk: Why would I rise and say something is a question of privilege when I know it will not be dealt with then? Why would I not consider doing it the next day? That brings us back to rule 43 and we have nothing on the chamber. Having people declare question of privilege to be dealt with tomorrow sets a tone in the chamber that I am not sure I would like, unless it is followed through with the next day. I envision people rising and saying that.
Mr. Robert: Then rule 59(10) does not make any difference.
The Chairman: Mr. Robertson wants a clarification on the record.
James Robertson, Principal Analyst, Law and Government Division, Parliamentary Research Branch, Library of Parliament: To reiterate what Mr. Robert is saying, there were two incidents in the House of Commons in recent years when a member grabbed the mace. It was clear in that case that the privilege of the house had been affronted and affected. Everyone present saw the incident and the matter was of a serious nature to be dealt with right away. In that case, there was no need to prepare arguments or to review the precedents or anything else. Without a clear indication that the matter could be raised when it happened, there would have been some concern about the procedure for dealing with it.
The procedure for raising it in the chamber when the incident occurs is to allow those kinds of egregious situations to be dealt with on the floor without any question of notice being required.
The Chairman: We have had a full and discussion with some interesting new thoughts expressed. May I suggest that this does not have to be dealt with today and that we charge our capable staff to come back to us at an early opportunity with a revision of or support for what they have prepared already for the committee's consideration. I promise it will be in the not too distant future.
[Translation]
Senator Robichaud: And we have this currently on the table. Correct?
[English]
The Chairman: We do, but it is not an urgent issue. I should like to have this dealt with at the next meeting or two. I am your humble servant if you wish to continue, but I think we have heard enough.
Mr. Robert: There was a third element in the first part of the question in dealing with points of order and questions of privilege before Orders of the Day.
The Chairman: With apologies, yes, please proceed Mr. Robert.
Mr. Robert: The Speaker did note in his ruling of October 2006 that rule 23(1) prohibits points of order or questions of privilege during either the Routine of Business or Question Period. Senators' Statements, however, are not part of the Routine of Business. This is clear by the fact that rule 26 provides that the Routine of Business is a distinct category of business called after Senators' Statements.
[Translation]
However, it is not entirely clear that Senators' Statements are not part of the Routine of Business. The committee may want to amend the rules to make it clear that questions of privileges or points of order are receivable. It could go about doing this two ways. First, it could recommend to the Senate that rule 23(1) be amended to prohibit the raising of points of order or questions of privilege before Orders of the Day. The amended wording could be as follows:
[English]
Prior to the calling of Orders of the Day, it shall not be in order to raise any question of privilege or point of order. Any question of privilege or point of order to be raised. . . .
— and then continue with the existing wording.
Alternatively, this section could be clarified by providing specific cross-references to other parts of rule 23, along the lines of the following:
During the daily Routine of Business, provided for in section (6), or the daily Question Period, provided for in section (7), it shall not be in order. . . .
— and then continue with the existing wording.
This simply helps to make a determination on the part of the committee whether to keep the existing rule or to change it to forbid the possibility of raising points of order or questions of privilege during Senators' Statements.
As it exists, although I do not think it is generally understood by the senators, given the way in which we write our rules, it is possible to raise points of order or questions of privilege under Senators' Statements.
The Chairman: Are there questions?
[Translation]
Senator Robichaud: As a result of that amendment, questions of privilege could not be raised. Correct?
Mr. Robert: Or points of order.
Senator Robichaud: However, is this not the time when a senator gives notice?
Mr. Robert: It was not really a question of privilege as such, because it came under rule 43.
Senator Robichaud: We would be limiting the times when a senator could raise a question of privilege during a sitting. Correct?
Mr. Robert: Yes, but during Senators' Statements, a senator may give notice of his intention of raising a question of privilege. However, we are talking here about questions of privilege that are akin to points of order. Neither can be raised during the Routine of Business or during Question Period. The Rules already make that abundantly clear. And most senators assumed that these could not be raised during Senators' Statements either.
We realized that as the Rules are now worded, clearly there is no such prohibition. We are wondering if you really want to adopt a rule that would prohibit senators from raising a point of order or a question of privilege during Senators' Statements. If that is the case, then we will propose some amendments. Otherwise, we can maintain the status quo.
Senator Robichaud: Mr. Chairman, personally, I would prefer not to make any changes to the Rules. The time set aside for Senators' Statements should be used for its intended purpose, that is to highlight a particular event. However, senators often overstep the limit and make a statement having to do with a committee or an individual. However, if senators are prohibited from raising a point of order or a question of privilege, they will no longer have any recourse.
Mr. Robert: Perhaps raising a point of order could become part of Senators' Statements, as is currently the case, when allowed.
[English]
With respect to Senators' Statements, the rules are clear that you are not meant to raise an item that is on the Orders of the Day. If a senator makes an allusion to an item that is on the Orders of the Day, his stride could be broken by a senator jumping up and saying, "Point of order, you have no right to talk about this." I am not sure if you want that to happen or if you want that to be done after the fact.
Senator Joyal: After the fact is too late. The senator has already said what he or she wanted to say, and it is on the record.
Senator Robichaud: Yes, it is on the record.
Senator Andreychuk: Half of it — maybe the bad half. I do not think you can do it any other way, though.
Senator Smith: The lawyer in me forces me to ask you this question. I do not disagree with what you are proposing.
Let us say that in Senators' Statements a senator arose and used gross and obscene language, a four-letter word or something like that, and repeated it several times during the statement. Could someone stand up —
Mr. Robert: The Speaker has the authority to intervene to maintain order and decorum. Any sort of outrage of that sort would certainly prompt an intervention on the part of the Speaker — at least I think it would.
Senator Fraser: I am the one who got us into this. I think there is a reasonable argument to be made that points of order should be heard only after Routine of Business.
Similarly, questions of privilege — although I think perhaps it would be important if we are rewriting this rule to include an exemption for the notice. The point of the rule should be that senators understand what they can and cannot do.
I should like, I think, to support your first recommendation because I think it is clearer. However, chair, I do not know if we really need the second sentence in rule 23(1).
I might ask Mr. Robert, since we have the benefit of his wisdom, to explain why we need that. If we are reopening the rule, could we not just ditch the second sentence of that paragraph?
Mr. Robert: I do not have the text that I distributed to you in front of me.
Senator Fraser: The first sentence is about when you can raise them, and then it goes on to say: "Any question of privilege or point of order to be raised in relation to any notice given during this time can only be raised at the time the Order is first called for consideration by the Senate." The point of order, however, might relate to something that had already happened. Similarly, the question of privilege might relate to something that had already happened, either during the Senators' Statements or during Routine of Business. It strikes me as odd to have that second sentence there.
Mr. Robert: That second sentence is the actual ruling.
Senator Fraser: I understand. However, since we are considering reopening the rule —
Senator Smith: It clarifies when you can do it.
Mr. Robert: That is a good point.
Senator Fraser: In the substance of the thing, I think it is reasonable to suggest that we have time limits written into the rules for Senators' Statements and for Routine of Business, 15 minutes and half an hour.
Obviously, the time limits are there in part to ensure that the business of the Senate proceeds in an orderly fashion and we get down to the real business of the Senate, which are the Orders of the Day. If we start cluttering up Senators' Statements — and, who knows, maybe one day down the road Routine of Business with points of order — it will get very messy. I think it will be perfectly clean and simple.
At the time I raised this, I did so because I thought I had to do so then, given the rules, but I would not have minded if the rules were very clear and stated that, no, you will do this in 45 minutes.
Senator Joyal: With respect to your proposal that during Senators' Statements no point of order or question of privilege should be raised, to me it moots the issue of point of order because then the damage has already occurred, the breach has already happened.
Let us take the example that you gave, Mr. Robert, namely, that we should not cover in Senators' Statements an issue that is already on the Order Paper. If I stand up and I make a statement about an issue that is on the Order Paper and no one can stop me from talking about it, you have just opened the door to it.
It is the same with respect to the issue of privilege. If you do not provide the opportunity to intervene at the moment that it happened, you might find yourself with damage that you cannot repair and that you are not exercising "your first opportunity" by putting it only at the time the order is first called. In other words, you would have to stand up when Orders of the Day are called either to raise your point of order or your question of privilege.
In the context of trying to maintain Senators' Statements outside the Orders of the Day, you remove any kind of monitoring of those statements with the proper protection of either the order or the privileges of senators. That is a decision that bears consequences before we come to the conclusion that we should provide a free hand for Senators' Statements on anything.
Of course, when everything runs smoothly, there is no problem, but the day an issue or a situation occurs whereby Senators' Statements become an important element of "political strategy," you then create a potential situation that might be very consequential for "the order or the decorum of the Senate."
Mr. Robert: As a contribution to these kinds of reflections, let me make a few additional comments of my own with respect to the points that are being raised.
If there is a thought that there may be value in being allowed to raise points of order or questions of privilege during Senators' Statements, why would it be less true to do it during Routine of Business or Question Period when they are already forbidden? What occurs in the 15-minute period that is so important that you would want to have the opportunity to raise a point of order or a question of privilege in that time frame and not during Question Period or Routine of Business?
Was the right of the Senate to regulate its proceedings unfairly impeded during — we are dealing with several rulings now about the conduct of Question Period and points of order that have been raised. Did something happen that was improper by restricting the right of senators to raise it subsequent to Question Period or subsequent to the Routine of Business? That is the question you must answer. It has a bearing on how you want to review whether or not that practice should be followed with respect to Senators' Statements.
The other question that is a bit odd — and I will take the lead of Senator Fraser and look at an element of the rule that is not before us explicitly under the recommendation of the Speaker — why do we forbid during Senators' Statements alluding to items on the Orders of the Day? What happens if we do make an allusion to an item on the Orders of the Day?
The counterclaim I would make that this is not "a big deal" is that you can actually move an inquiry that relates to an order of the day. No one will say you cannot do that, and no one will care, because no decision will result from that. No decision will result from a senator's statement either, and it is only three minutes.
One wonders why the rule was put in, but it exists and, therefore, it deserves to be respected as long as it remains part of our rules. However, I am not sure that it adds any great value to our practices.
Is there really a value in allowing points of order to be raised during Senators' Statements that could not also be present under Question Period or Routine of Business? We forbid them for those two categories. Why do we suddenly insist that it be allowed under Senators' Statements?
Senator Joyal: You forbid them, but a senator can give a notice the next day that something has been said during Question Period or during Senators' Statements that affects the privilege of the institution or his or her own privilege.
Mr. Robert: Absolutely. There would be nothing there. The one that would more likely arise is a point of order, because it is instantaneous; you do not need to give advice.
Senator Joyal: I know.
Mr. Robert: One reason the rules were crafted to forbid questions of privilege or points of order during these two categories was to address a rather unhappy circumstance that frustrated too many senators in the time immediately preceding the adoption of these rule changes in 1991. It may very well be that there was an oversight — we seem to be talking a lot about oversights today — that it, somehow or other, did not attach itself to Senators' Statements, although, by and large, you as senators generally believe that that is the case, that questions of privilege and points of order should not be raised during Senators' Statements. However, a close reading of the rules suggests that there is this inadvertent loophole — which begs the question: Do we close the loophole or do we leave it?
The Chairman: The Speaker obviously still has a role to play if there an abuse or misuse of proceedings. He would intervene in situations such as Senator Joyal suggested. If an item is on the Order Paper and someone speaks to it, he would have the right to intervene.
Mr. Robert: Yes, he would. However, they tend to do so with hesitation. Again, we are talking about a three-minute event.
[Translation]
Senator Robichaud: Often, the Speaker will wait until a senator brings a matter to his attention.
Mr. Robert: The senator will do that if he cannot raise a point of order.
[English]
The Chairman: He has the right, of course.
Mr. Robert: If he thinks it is worthwhile doing. I suspect there is a discretionary application that he must consider, too.
Senator Fraser: Since we are contemplating the reopening of rule 23, should we not delete reference to questions of privilege? Questions of privilege, as we have established this morning, are dealt with in rule 43. Why would we not just confine rule 23 to the matter of when you can raise a point of order? Why would we not simply say, "Prior to the calling of Orders of the Day, it shall not be in order to raise any point of order"?
Mr. Robert: I see your point.
Senator Fraser: Is there a reason?
Mr. Robert: I think that was done basically from —
Senator Fraser: Inadvertence?
Mr. Robert: — a sense of completeness.
Senator Fraser: Rule 43 says that you can only raise questions of privilege under certain circumstances, so why are we cluttering up rule 23 with matters of questions of privilege?
Mr. Robert: That seems to me to be a fair point.
The Chairman: I have just been informed that the House of Commons has this provision. It is exactly the same; both points of order and questions of privilege. I would think it is more an issue of clarity.
Senator Fraser: Mr. Chairman, it is not clarifying things; it is confusing them. Rule 43 talks about when you can raise questions of privilege, but then we also have this odd reference dropped in. It is possible that the House of Commons may also have had some lapses in editing as it has worked on its rules over the years. They are no more perfect than we are.
Senator Andreychuk: What harm does it do?
Senator Fraser: It just confuses matters.
Senator Andreychuk: It clarifies rather than confuses.
The Chairman: After Senator Joyal speaks, we will wrap up and I will instruct our staff to fulfill the mandate given to them by this committee, and we will deal with it at our earliest opportunity.
Senator Joyal: Mr. Robert, please tell us the negative consequences of removing it and the negative consequence of keeping it, in order that we can evaluate and balance the options.
Mr. Robert: If you prohibit raising questions of privilege or points of order under Senators' Statements, I think you will be completing the process that was originally intended in the reform of the rules or changes to the rules that came about in 1991. You would at least clarify that during that first part of the day the time limits would be respected and we would move along through the 15 minutes for Senators' Statements, the half hour allowed for Routine of Business and the half hour allowed for Question Period.
If the house is in a fractious mood, it could use Senators' Statements in such a way as to demonstrate that by raising points of order under Senators' Statements, which was part and parcel of the frustration that was felt pre-1991. The advantage might be that you will have recognized that there is a block of time in the Senate sitting that will be free from the potential frustration of raising points of order or questions of privilege, because they do not have to be real to consume time; they simply have to be raised.
With respect to keeping them, you make a declaration that you want to follow the rules as written, including rule 22(4), which states that you cannot use a senator's statement to allude to an item on the Orders of the Day, and that that rule will be vigorously enforced with an opportunity to call points of order to challenge it, and it would be done immediately. That would be one way to better ensure that the rules would be followed. However, I am not clear what benefit it gives you beyond that.
The Chairman: Thank you for that.
The next item deals with the reinstatement of bills. Again, Mr. Robert will be enlightening us on this issue.
Mr. Robert: The Senate does not currently have rules dealing with the reinstatement of bills in a new session of the same Parliament. As a result, there have been cases where bills, particularly non-government bills, have been reintroduced in a number of successive sessions. There have been cases such as the Heritage Lighthouse Protection bill sponsored by Senators Forrestall and Carney, the Statutes Repeal bill, by Senator Banks, and the Personal Watercraft bill by Senator Spivak. As a means to deal with this issue, at least in part, the Senate has on occasion referred evidence and papers from one session of a committee studying a bill during a succeeding session, allowing the committee to build on previous work instead of having to start anew. There have also been a number of proposals in recent sessions that the issue of reinstating bills be studied by this committee.
[Translation]
Since the late 1990s, the House of Commons has allowed for the reinstatement of non-government bills from a previous session in the same Parliament.
Standing Orders 86.1 and 86.2 deal with this matter. In the case of Private members bills originating in the Commons, this reinstatement is now automatic under SO 86.1. As the 2005 edition of the Annotated Standing Orders of the House of Commons notes at page 331, this means "that prorogation has almost no practical effect on Private Members' Business." It is possible for such a bill to pass the House of Commons without any debate in the second or subsequent session of a Parliament, provided that it had been so passed during the previous session.
[English]
Non-government bills originating in the Senate that had reached the House of Commons are not automatically reinstated at the stage they had reached. Standing Order 86.2 provides that, to benefit from reinstatement, they must be reintroduced within the first 60 days of the session after being passed again by the Senate and the Speaker of the House of Commons must be satisfied that the bill is in the same form as it was at the time of prorogation. If these conditions are not met, non-government Senate bills are dealt with like any other bill from the Senate.
It must be noted that carry-over provisions do not apply between Parliaments. In the case of government bills, reinstatement in the House of Commons is not automatic but may be effected by passing a motion to that effect.
[Translation]
A review of the situation in provincial and territorial legislatures indicates that there is a range of practice on this matter. In nine of the thirteen legislatures, there is no formal process for reinstating bills. In Alberta, the Standing Orders provide that a government bill can be reinstated on motion in a new session of the same Legislature. In Manitoba, on the other hand, reinstatement has been by way of ad hoc motions in the new session. In Ontario, provision for carry-over of items of business has sometimes been made at the end of one session and sometimes at the beginning of a new session in the same Legislature.
Finally, in Quebec there are provisions that allow for the reinstatement of bills in a new session of the same Legislature on a motion of the Government House Leader in the first three sitting days after debate on the opening speech.
[English]
Looking internationally, both Houses of the U.K. Parliament now have provisions for the reinstatement of bills. These procedures apply between sessions of the same Parliament. In the House of Lords, carry-over is restricted to bills that have not yet left the House and is based on ad hoc motions after informal consultations. In the House of Commons, measures have been established since 2002 to allow for the reinstatement of bills. Details of the process can be found in the twenty-third edition of Erskine May, at pages 649 and 651. One reason for this change was to allow for legislation to be reviewed in a less rushed environment with a longer time perspective allowing for more thorough scrutiny.
In the United Kingdom, it is pertinent to point out that sessions last only one year.
[Translation]
In the Australian state of New South Wales both Houses have Standing Orders that allow for bills that have lapsed due to prorogation to be restored during the same Parliament.
[English]
If there is a wish to adopt such a practice in the Senate there could be many variations of possible changes to the rules. Some of the points on which guidance would be required from this committee before developing definitive wording for a proposed rule change include the following questions: First, should it apply to all bills, only to non- government bills or only to government bills?
Second, should reinstatement be automatic — that is, that all bills are automatically deemed to have reached the stage they were at when the previous session ended — or should it apply only at the request of either the government in the case of government bills or of the sponsor in the case of non-government bills?
Third, what, if any, should be the mechanism to verify that a bill is indeed the same form of a bill from the previous session? Various individuals or bodies might play a role, including the Speaker, this committee or the law clerk. Should this verification be automatic or only if a senator raises a point of order asking for such verification?
Fourth, in the case of a bill that had, during the previous session, passed the Senate and been sent to the Commons, would reinstatement mean that it would be immediately sent to the Commons again without the Senate having another chance to vote on it? Should there be a requirement for it at least to be adopted again at third reading? We have addressed this problem ourselves when we have seen bills coming to us from the House of Commons that apparently had no consideration in the second session.
Fifth, in the case of bills introduced in the Senate from the Commons whose consideration is interrupted by prorogation, should there be a system for reinstatement, provided that they are, again, received from that House?
Finally, should there be provisions respecting carry-over of motions? This might open a whole range of issues that are quite beyond the matter of bills themselves.
These are the questions that we considered when we were thinking about how reinstatement might possibly work. They are questions that really do not belong to staff to answer. They really are the proper purview of this committee.
The Chairman: Thank you, Mr. Robert.
Senator Andreychuk: What is the purpose of reinstating bills? Is it for efficiency? I have heard some senators who have had private bills say that they do not want to go through that again. It seems we need a rationale as to why we would want to have a reinstatement.
Is there any rationale coming through from all the other jurisdictions? Is it efficiency? Is it another rule? In other words, why are they doing it? There seems to be a trend to do it, although it is haphazard.
Mr. Robert: I think the methods they use may be different, and perhaps you could characterize them as haphazard, but I think they are addressing perhaps not only the matter of efficiency but also the matter of frustration.
It is particularly difficult for non-ministerial members of Parliament. The time of the House in many jurisdictions has come under the control of the government. It is less the case in the Senate, but certainly in the House of Commons that is very clear and in most elected Houses that is also the case. That is a pattern that has a long history.
The issue in the House of Commons comes about through reform movements that have at least a 20-year life and have tried to give greater empowerment and greater possibilities for MPs — that is, non-ministers — to succeed in their legislative role as parliamentarians by advancing bills that mean something to them.
There is a very complex process that follows in the House of Commons. The idea of allowing them to have a reinstatement option improves their chances, despite the difficulties they have to overcome, even in the new session, by saying: Well, you can start where you left off, and perhaps this time around you will succeed.
It is not just efficiency, but I think efficiency factors in. I think frustration also is an obvious element that they are trying to address through this process.
Senator Andreychuk: With the Senate's uniqueness of now having quite a number of independents, we handle that cautiously throughout the procedures through the leaders. How would we do this on reinstatement of bills?
Mr. Robert: If we were to follow the lead in other jurisdictions, the questions asked at the end of my presentation give you the options that you could consider. You might do it automatically or by adoption of a motion. You might treat government bills differently from non-government bills. You might even want to treat private private bills differently from private public bills.
These are all questions that you have to consider to determine what you think, given the nature of the Senate and the nature of our work, would be the best approach.
[Translation]
Senator Losier-Cool: Personally, I think the Committee should seriously consider the importance of this matter. Without wishing to tell the steering committee what it should do, I believe this issue has come up a number of times over the past five years. If the trend continues of legislatures lasting less than 18 months, I think the Committee should give this question priority consideration, bearing in mind what Senator Andreychuk and Mr. Robert have just said about Senate debates, efficiency and continuity and without revisiting our legislative procedures. I hope that we do give this matter priority consideration.
[English]
Senator Joyal: I should like to come back to the fundamental role of the Senate. The Senate is a chamber of revision. Once the other place has taken a stand on a bill and confirms its concurrence on it, it is sent to us. I think that if we are to maintain that fundamental issue of revision or review, the situation may change. The context of a bill a year and a half ago might be different today. It allows the Senate to rethink and pass the bill quickly because the Senate considered that the circumstances remain as is and the bill should proceed. We can even introduce a motion to reinstate the witnesses so that a bill can continue with the contribution that has already been heard. On the other hand, it maintains the principle that we can always review.
I would hesitate to adopt a rule whereby everything is reinstated automatically. I think it questions the fundamental role of our institution. I know that it is frustrating. Many of us have private member's bills that have lapsed, have been reintroduced, and so forth, but is it not the nature of our chamber to think twice? If we are to adopt a procedure, in my opinion, it should not be an automaton — that is, that once we have pronounced it is over, we presume that everything remains equal even if there is a lapse of time.
Our longest Parliament has been four years and a couple of months, I believe. According to section 50 of the Constitution, the maximum term is five years. If we presume that the context of a bill that would have been adopted in the first year of a government remains the same in the fourth year — I am not sure that this is the capacity of the institution that is not requestioned.
There should be criteria and guidance so that the Senate maintains its capacity to review a bill and so that the bill is not brought back automatically all the time without due consideration. As I say, the circumstances might change. For example, senators who have not participated in the debate might find they have something to contribute at a certain point in time and want to have it considered. I think that is a plus for the institution. That is why there has to be a framework that maintains the principle of our institution.
Of course, when we deal with bills from senators, we are not a house of review but a house of first knowledge; it is the other place that does the review. That changes the context of a private senator's bill. However, in the case of a government bill, we have to maintain our capacity because that is essentially where we exercise our sober, independent second thought, on the issue of legislation.
The Chairman: Would you like to make a comment?
Mr. Robert: I do not think a comment is required. I think Senator Joyal was reflecting on the questions that were posed and coming to a determination about his preferences.
The Chairman: I agree with you, but I wanted to give you an opportunity.
Senator Andreychuk: Are you making a distinction between government bills and other bills?
Senator Joyal: Yes, on the basis of the principle that with a government bill the Senate comes in second. On a private senator's bill, we are first. We do not exercise review but first judgment. When it is a government bill that comes from the House of Commons, we exercise a review of the bill.
Senator Andreychuk: There are private bills coming from the House of Commons.
Senator Joyal: The same for their private bills. They have already pronounced on it. They are bills that already have a decision of one legislative house. When it is a senator's bill, we have the first knowledge; we are the first house that takes care of it. To me, there is a distinction between those two kinds of bills, and that should be reflected in the procedure dealing with those bills.
[Translation]
Senator Robichaud: Would a motion to restore a bill reassure us sufficiently to review the bill, if the bill were debated in the Senate? I put the question to Senator Joyal. Would he be satisfied with debating the motion to reinstate the bill, instead of going through all of the stages once again?
[English]
Senator Joyal: Yes, a senator who wants to pronounce on the motion to reinstate a bill, who has something to contribute or an issue that he or she wants to reopen, would have an opportunity to state it and share it with the other senators. Then, of course, you would maintain the review capacity of the Senate, which I think is the fundamental principle we have to maintain. We are not a house of expedition. We are a house of second thought, review, reassessment and reconsideration.
We cannot presume that, just because a bill has been adopted some while ago, everything remains equal. I have seen bills being changed, coming back with amendments for the betterment of legislation. If you introduce such a motion and the motion is debatable, any senator who might have a concern could stand up and say, "Here is the reason I feel that this bill should be reopened."
Senator Robichaud: And amended.
Senator Joyal: Properly considered. Observations might be added — because many situations happen that we cannot foresee — but we would protect the capacity of the Senate to review. That is my point.
Senator Fraser: I agree with the profoundly important point that the Senate is a chamber of sober second thought. I am also strongly opposed to automatic mechanisms that rush things through. However, there is an argument to be made for having available some such mechanism, so I have some quick answers to your questions.
Question 1 — in fairness, such a mechanism should be available for all bills but, question 2, reinstatement should never be automatic. It should apply only at the request of whoever is bringing forward this bill and it should be done individually, not in one omnibus motion for all government bills to be reinstated as they were, or even private member's bills; there would be an individual motion for each bill, on which the Senate would vote, up or down. You could even build in some reasonable time limits — six hours, maybe — for such a motion, not for the bill itself.
Question 3: Probably the verification that it is indeed the same should be automatic because often senators will not check the text until it is too late.
Question 4: There should be a requirement for it to be adopted again at third reading. This goes to Senator Joyal's point about times maybe having changed, having the opportunity to speak again and, if necessary, to amend again. The mechanism would only take you up to that point. It would not rush you through that point, I would think.
The same would therefore apply, in my view, in all fairness, in question 5. Third reading debate would begin all over again if we had reached that stage. Finally, no, I do not think there should be carry-over of motions or anything else. Biting off a chunk with bills will be a big enough change for us. Let us not complicate life any more than we have to.
Senator Cordy: It is an issue we should be looking at because we have all seen the frustration of people trying to get their bills through time and time again. We have all been on committees where we are hearing the same witnesses time and time again for the same bill. In some cases, I have been a committee where we dealt with the same bill three or perhaps four times. We have to look at this issue closely.
I do not think reinstatement should be automatic. The points have been made by previous speakers, so I will not get into the same arguments they have presented, but there should be a process in place that is simpler the second or third time around. That is my point, and I feel strongly that it should not be an automatic dispensation for all bills. Previous speakers have said individual motions for each bill. I agree. It should not be a blanket reinstatement as well.
[Translation]
Senator Robichaud: According to this procedure, if a bill were defeated, it could not be reintroduced during the same session. Is that correct?
Mr. Robert: If a bill was defeated, then that decision stands. When the previous session ended, the bill had been defeated.
[English]
There is nothing to reinstate.
[Translation]
Senator Robichaud: The bill could not then be reintroduced in the House of Commons and then referred to the Senate.
Mr. Robert: Certainly, it could be reintroduced when the next session begins.
[English]
The Chairman: Thank you, again, all of you. We have at least the beginning of a discussion paper. I should like to have it considered at one more meeting, at least. Hopefully, we will have additional comments. We will prepare an update for an early future meeting.
Tomorrow, there is no meeting. We have a steering committee meeting. I hope that everyone will be available next Tuesday, same time, same place.
There is one more thing, I apologize. There is the little budget for us to run our business.
The budget we are preparing today is being circulated to you. It is for professional and other services, and it means that we can eat. If you do not like what is being served, we will blame the clerk of the committee, since he is not here.
Senator Joyal: With the risk of offending you, Mr. Chairman, no lasagne with thick cheese on it or thick food that we usually find in cafeterias whereby we sit for hours and fall asleep after that. Any light food would be appreciated.
The Chairman: I would suggest to you that my loss of 30 pounds in the past months is not because I am eating lasagne with thick cheese.
Obviously, any guidance would be welcomed and appreciated, and we will pass it on to our fine staff.
In the meantime, I should like a motion that we adopt this.
Senator Andreychuk: If this in line with the usual budget of the Rules Committee as in the past, I so move it.
The Chairman: No objection? All in favour?
[Translation]
Senator Robichaud: The reference on page 1 is to professional and other services, which could lead one to believe that we are hiring persons to receive services. Page 2 simply mentions that it is for meals. I just want to be clear that it is only for meals.
[English]
The Chairman: I am told that those are the categories that are stated, but your comment is taken and maybe we can be a little clearer in the future.
[Translation]
Senator Robichaud: Then I agree with this item.
[English]
The Chairman: I gather there is no objection and the budget is passed. I thank you for that.
The committee adjourned.