Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 1 - Evidence, November 20, 2007
OTTAWA, Tuesday, November 20, 2007
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:30 a.m., pursuant to rule 86(1)(f)(i) of the Rules of the Senate, to give consideration to the reinstatement of bills; to the notice requirements for questions of privilege; and to the use of Aboriginal languages in the Senate Chamber.
Senator Wilbert J. Keon (Chair) in the chair.
[English]
The Chair: Honourable senators, we have three items on the agenda that are controversial. I would like to give the committee the option of going in camera, should they wish, or not going in camera. What do you think?
[Translation]
Senator Robichaud: Why would we go in camera?
[English]
The Chair: I do not think so either.
The first item is pursuant to rule 86(1)(f)(i), consideration of reinstatement of bills. You are all familiar with this item. I will ask the clerk to speak briefly to it, and maybe Mr. Robertson.
Blair Armitage, Clerk of the Committee: As Senator Keon has pointed out, this item was on your agenda last session. You reported on it to the Senate and it was still on the Order Paper when prorogation occurred. I am sure Mr. Robertson would be happy to go over the details of the report and the rule changes if you wish.
Senator Smith: A précis would be fine.
James R. Robertson, Principal, Law and Government Division, Parliamentary Research Branch, Library of Parliament: The concept of reinstatement of bills was raised in the Senate on a number of occasions by a motion that was never passed by the Senate, but this committee took it upon itself to look into the matter. The concern is that the other place has a rule now in their standing orders whereby private members' bills are automatically reinstated at the same stage they were after a prorogation; not after a dissolution but between sessions of the same Parliament, private members' business continues notwithstanding prorogation.
Government bills in the other place are frequently the subject of a motion adopted at the beginning of a second or subsequent session allowing the government to reinstate a bill; not reintroduce it but reinstate the bill at the same stage it was at prorogation if they do so within 30 sitting days at the beginning of the session and if the Speaker is satisfied the bill is in the same form as it was at prorogation.
That motion was passed a few weeks ago at the beginning of the second session of this Parliament.
The Senate does not have any provisions for reinstatement. We looked at various legislatures and found that many of them have practices or procedures that allow for reinstatement of bills. The Senate arguably has need for such a procedure as the decision to prorogue a session of Parliament is made by the government, and therefore the Senate has no input or control into the matter.
The committee spent several meetings looking at the procedures, and they are somewhat more complicated than in the House of Commons because the Senate often deals with government legislation after it has been passed by the Commons. There are also different procedures in the Senate in terms of reprinting bills and so forth, which makes the rule complex.
After a great deal of discussion among the procedural staff of the Senate and among members of the committee, the decision was made to table the sixth report, which sets out briefly, in the first three pages and a bit, a narrative, and then it includes the draft rules. It is a new rule and then some consequential amendments to the existing Rules of the Senate.
Briefly, this procedure is required to be invoked at the beginning of a second or subsequent session. Different rules are provided for whether the bill is a public bill from a senator, a government bill introduced in the Senate, a government bill introduced in the Commons or a private member's bill introduced in the Commons.
That is the general approach. If senators have specific questions as to how it would operate, I am happy to answer them, or perhaps one of the other staff of the Senate can do so.
Senator Smith: By way of background for members who may not have been on the committee last time, I support this package. It represented a consensus. It was not as neat and tidy as the one in the Commons, but some people had concerns about certain situations and, first, we wanted to be reasonably efficient, not back in the Dark Ages where everything starts from square one again, but efficient in ways that do not prejudice anyone. That is the principle we tried to achieve.
We did a pretty good job of that. If people want to fine-tune something, they can, but that is where we were when we left and I think the approach reflected a consensus. It was not dealt with in a partisan way at all. Senators thought it was reasonably efficient without prejudicing affected parties. I am happy to move adoption.
The Chair: We have a motion on the table for adoption of the report. People are settling in here, so maybe we should have some discussion of the motion.
Senator Smith: I would be happy to have a discussion.
Senator Corbin: What was the researcher talking about? I came in slightly late and do not know what is being discussed here.
The Chair: We are discussing the consideration of reinstatement of bills. He explained the document you have before you, which we approved before prorogation, but it was not approved in the Senate.
Senator Corbin: Thank you.
The Chair: Any discussion?
Senator Cools: What is before the committee right now? Is there a motion before the committee? What is the question before the committee?
The Chair: There is a motion by Senator Smith —
Senator Smith: We had reached a consensus on a package to deal with a Senate version of how to reinstate bills when a session ends, and the issue was not dealt with in the neat and tidy way in which the Commons dealt with it because some people had concerns, so we tried to develop a package that dealt with it efficiently without prejudicing anyone, but the session ended before we had time to adopt it. We have it, and we had a précis from the researcher on it, so I am happy that we move on with it.
Senator Cools: My question meant, what was before us at the present time? Was there a motion or question before us?
The Chair: Senator Cools, we have a motion by Senator Smith.
Senator Cools: What is the motion?
The Chair: The motion is to approve the document, and it is under discussion now.
Senator Cools: Okay.
Senator Watt: I want clarification. For example, the last Bill C-51 was referred to the Standing Senate Committee on Legal and Constitutional Affairs at the second reading stage. Does that mean this motion you bring forward will automatically allow Bill C-51 to go back to the Standing Senate Committee on Legal and Constitutional Affairs?
Mr. Robertson: The Senate and this committee were extremely clear — and it says so in paragraph 7 of the report — that no reinstatement provision should be automatic. This report provides a mechanism whereby, if the Senate wishes, it could agree that that bill would be deemed to be back before the Standing Senate Committee on Legal and Constitutional Affairs, assuming certain steps are followed. However, it would start back at the beginning of the consideration by the committee. If the committee had completed its consideration, it would not begin there; it starts at the beginning of that stage. There would still be the opportunity for witnesses to be called and for any amendments to be considered.
Senator Smith: It is not a slam dunk. If you have concerns, you still have the opportunity raise them.
Senator Watt: I am not sure whether this report would have an implication of shifting to another sponsor. How does that work? Let us say, for example, Senator Segal was the sponsor of this bill at the last session. This time, another person was the sponsor. What happens here?
Mr. Robertson: If it is a government bill, it must be reinstated by the government. If it was introduced as a private senator's public bill — for instance, if Senator Keon had a public bill — only that senator could reinstate it in the new session of Parliament. Senator Corbin and other members of the committee expressed concern on that subject, so it was made explicit that it must be reinstated by the same sponsor.
Senator Fraser: I think the most important single element in this proposal is that no bill would go all the way through the Senate without at least one more chance at proper debate. If it had been at third reading, as I understand it, even if it had passed third reading in the Senate, we would still need another third-reading debate. It could be brief, but we would need it, so that there would always be the chance for senators to exercise that second thought.
On the matter of sponsorship that Senator Watt raises, the report conclusion is the right way to go, because we are not saying that no one could reintroduce a bill that another senator had sponsored in the previous session, but for fast- tracking purposes, it seems to me appropriate to say only the original sponsor has the right to fast-track it. That is the only difference.
The Chair: Any further discussion?
Senator Cools: I have some questions. I have always understood that a prorogation is a decree by Her Majesty essentially terminating all proceedings in both Houses. My file is not with me, unfortunately. I have looked through the literature. Would the chairman or the vice-chairman explain to me how the law of the prerogative is overcome and defeated to allow this?
The Chair: I will ask Mr. Robertson.
Senator Smith: Philosophically, our view was that is the case in a dissolution, where you are dealing with a new Parliament, but as this Parliament is the same, this was a reasonably protective way to be efficient.
Senator Cools: Perhaps you could enlighten me. What is the difference in respect of termination of proceedings between dissolution and prorogation?
Senator Smith: One is a new Parliament and the other is not.
Senator Cools: These people are the big shots; they can answer.
Senator Robichaud: We are all equal here, Senator Cools.
Mr. Robertson: As Senator Smith says, the dissolution is the end of a Parliament and is ended with a new Parliament being established or formed. A prorogation ends a session within a Parliament. All the members of the other place stay in office during a prorogation. In dissolution, they cease to be members of Parliament as of the date of dissolution.
Senator Cools is perfectly correct that, historically and constitutionally, a prorogation means the end of all business outstanding as of the date of prorogation. This situation was historically the case because it meant the end of one session, and then everything needed to be restarted in the new session. However, a few things do not survive prorogation, such as addresses to the Crown, notices for the production of papers and various other decisions and motions or resolutions of a parliamentary body. I was looking to see if we had a copy of Marlowe and Montpetit, and we do not appear to have that, but few things survive prorogation. Presumably, that measure was taken by Parliament in its wisdom in the past. These things were felt to be more important than the particulars of prorogation.
More important for this discussion, it is increasingly common, because of the complexity of modern legislation and the difficulty of finding enough time for various legislative bodies in the parliamentary system, to adopt rules that certain things can happen notwithstanding prorogation. It is noted in the report that both the House of Lords and the House of Commons in the United Kingdom provide for the reinstatement or carryover of bills between sessions of the same Parliament. This reinstatement is something that various legislative bodies have chosen to do for various reasons. Parliament, being sovereign, can, of course, do certain things if it chooses to do so.
Senator Cools: I appreciate the answer from the staff. I am not saying I am opposed to a reinstatement process, so let us have no misunderstanding. He has explained the need, but he has not explained the parliamentary law in respect of defeating the meaning of a prorogation. It is unfortunate, because I do not see how we can debate with staff. Since staff are here to serve us all, we cannot really engage them in debate, and I would love to debate it. I do not think that is a proper thing to do, but I do believe he is wrong.
Senator Smith: I will contribute briefly. I do not purport to be a great expert on the subject, but clearly the privileges of Parliament include such matters as internal organization. I think we want to do that in ways that do not put us in straitjackets and allow us to operate in an efficient way. That is what the House of Commons has done. The House of Commons — our staff can walk you through the differences — does not have the same protections that our approach has, notwithstanding the fact that we are a continuing body that is not impacted as much by a new Parliament as they are.
We tried to deal with the subject of an internal organizational approach similar to, but not identical to, the Commons. We reached a consensus that senators were not prejudiced because they could always speak to it. Nothing was ever final. If the bill has not been proclaimed, nothing is final and they can debate it again, but in an efficient way that does not eat up a lot of time on the floor, unnecessarily.
Senator Cools: I am sympathetic to the needs of private members. I do not want any misunderstanding. I would like us to explain how a certain segment of the prerogative law is simply defeated or ousted. I am sympathetic to anyone who, as a private member, has brought in a bill. We know the frustration that private members go through, so that does not need to be explained to me. I am sympathetic about that.
The real question is, if you can defeat prorogation, you can defeat dissolution. It is only a matter of opinion that someone says, the prorogation is between sessions of Parliament. The whole question is, if you can defeat one decree or one proclamation from Her Majesty, then you can defeat the other one. It is only a matter of selective opinion supporting reinstatement that says dissolution ends a Parliament whereas prorogation ends only the session. The fact is, that it is a command. They are both commands from the Sovereign saying to end proceedings. That is the area of law that I thought we would have wrapped our minds around. It is common these days that vanity and whim guide the making of law. I accept and understand that; I do not think it is desirable.
Senator Smith: Then you can vote against the motion.
Senator Cools: It would be nice to have some study into this area of the law. I do not think, chairman, it is so simple as, if you like it, vote for it; if you do not like it, vote against it. It would be nice to see some expert study on the part of the committee on these areas of law that are becoming increasingly cryptic and arcane even to members.
Senator Smith: We did that study when we came up with this report. It is unfortunate you were not here, but we did it.
Senator Cools: I have seen no evidence. I have read the proceedings and have seen no evidence of the study of the law.
Senator Joyal: The point made by Senator Cools is, in a way, covered by paragraph 4 of the draft report. If we look into the substance of paragraph 4, it seems to me that it protects the principle that Senator Cools has raised. It says:
. . . the House of Lords and the House of Commons in the United Kingdom provide for the reinstatement or carryover of bills between sessions of the same Parliament. In the House of Lords, this 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 were established in 2002 to allow for the reinstatement of bills. One reason for this change was to avoid duplication of work. It is also felt that it results in legislation being reviewed in a less rushed environment, with a longer time perspective, allowing for more thorough scrutiny.
In other words, it protects and recognizes the principle that a House of Parliament is master of its own procedure and can decide how it will deal with a bill.
I understand that if a bill is in exactly the same shape and form, and that must be certified by the clerk upon advice of the legal counsel of the house, then the house can decide how it wants to proceed with that bill as long as the house does not take for accepted the vote that it took in the previous session on the same issue. That is why there is always a provision for a third reading debate. That is essentially the way I understood that the British Parliament has protected the principle.
If, what we consider as a change in our procedure in this report is closely parallel to that, I think all the principles that Senator Cools has raised are served. The question for us to consider, then, is, essentially whether what we propose here protects the principle that the house always has another opportunity to review the decision that it has taken before, and leaves another opportunity to reconsider its views since the principle is, as was stated properly by Senator Cools, that all legislation dies after a Parliament is prorogued.
I feel that is how the British Parliament has been able to tackle this issue while protecting the principle that they must register the third reading vote if they agree: on the basis that, if they receive certification that the bill is exactly the same, the house still must pronounce on third reading, which reserves a possibility for anyone to introduce an amendment and vote against it if the senators or the Lords feel that is proper.
That is the way I understood the procedure in Britain on the basis of what we considered before, and I think it protects the principle as properly stated by Senator Cools.
Senator Smith: I agree.
Senator Cools: I thank Senator Joyal for those comments. To that extent, that way is superior to the House of Commons procedure. I am sympathetic to it, but there is a whole body of law that governments consistently ignore, and I feel the record should show that it is raised. You know there are ways we can obtain that agreement as well, but no one is trying to obtain that agreement. You understand what my concerns are. They should be recorded. For years and years, there has been the phenomenon of restarting or reviving bills and other proceedings. It was always recommended by those who knew Parliament that the Houses should proceed by a series of unopposed motions. In other words, by negotiating with different leaders, they move ahead rapidly by the use of unopposed motions.
Senator Robichaud: That is still available.
Senator Cools: Yes, but there is agreement. It is not like the House of Commons where this stuff springs into action on the nature of some declaration from the Speaker. I read not long ago a particular debate, which included Senator MacEachen in the House of Commons, where they moved ahead by a series of unopposed motions. The motions were still debateable motions, but they moved ahead in that way.
Part of me believes that that way is still the best way to operate. We all know that governments often oppose many private members' bills, running a fair amount of interference. Having said that, I think there are large parts of the system we need to uphold. I make the point that the house is the master of its proceedings but the house is not a master of the law of the prerogative. The proceedings of the house move ahead according to the law of Parliament, but not according to the law of prerogative.
I understand the need for the practice, but it would be nice if these issues could be well canvassed.
Senator Smith: I believe they were. We spent some time on the issue.
Senator Cools: It is not here and it is not in the committee proceedings.
Senator Smith: Do you not feel that paragraph 4 responds to the issue?
Senator Cools: Paragraph 4 helps a lot. Paragraph 4 clarifies that there is no deliberate intention, or no serious attempt, to undermine the position of Her Majesty in the Constitution, but that is palliative. Let us understand that the role of the sovereign in this Constitution is no relic of an earlier age. It is an extremely real phenomenon that is living in the law at every single moment. Daily, we listen to the government intimidating and harassing members in the House of Commons under the threat of dissolution. No government, particularly a minority, is supposed to have dissolution in its pocket with which it punishes members and threatens members, to achieve the outcome the government wants.
I raise these issues so that we understand that this government is a constitutional monarchy, despite all the talk of abolishing the Senate, as though one can abolish the Senate and leave the House of Commons intact. It does not work that way. We should canvass the principles and canvass the law to make sure at all times that we are not running roughshod over the powers of Her Majesty.
Senator Andreychuk: I think it was said that it was not on the record. This issue has come before other sessions of the Senate, but this last one was exhaustive and I thought intensive, with many sessions of going over the issues. The issues that have been noted have been discussed fully.
We have come to a consensus as to what we thought was an appropriate process for the Senate, taking into account all the issues including the prerogatives. I do not see any need to look at further issues because I think we put all the issues on the table, those of us who sat through all the meetings. I recall Senator Corbin and Senator Joyal being here. We spent many hours on this issue. I suggest we proceed.
[Translation]
Senator Robichaud: I support Senator Andreychuk when she says that these matters have been looked at in depth, albeit perhaps not in the depth that Senator Cools would have liked. I move that the Chairman table this report in the Senate so that it can be debated there.
[English]
The Chair: We have a motion on the table for adoption of this report. Are you ready for the question? All those in favour?
Some Hon. Senators: Agreed.
The Chair: Opposed? Are you opposed or abstaining?
Senator Cools: Abstaining.
The Chair: The motion is carried.
We move to item 2: Pursuant to rule 86(1)(f)(i), consideration of the notice requirements for questions of privilege. Mr. Robertson is prepared to speak to this item and give the background also.
Mr. Robertson: Honourable senators, this item arose from a Speaker's ruling with respect to a question of privilege raised in the Senate in the last session. The Speaker, in the course of his ruling, invited this committee to review a number of matters relating to the Rules of the Senate where there was either a lack of clarity or perhaps, imprecision in the rules.
As a result, the committee in the previous session spent several meetings reviewing the existing rules and the proposed changes with the procedural advisers of the Senate. The result is summarized on page 2 of the fourth report in the last session, and it outlines in the bullets on pages 2 and 3 the specific changes recommended by the committee. They are somewhat technical but obviously have considerable value and importance.
The first one is that the written notice that must be given by a senator who wishes to raise a question of privilege should provide some detail to give other senators an indication of what the general nature of the question will be.
The second bullet is that there is, in the rules, a provision that allows a question of privilege to be raised on the floor of the chamber without notice. This item appears to be linked to the pre-1991 version of the rules and had never been revised in light of the changes introduced at that time.
The committee felt it would be helpful to move this provision and link it more directly to other provisions relating to questions of privilege, and to clarify how the provisions relate to each other. Therefore, a new rule is proposed.
Third, the Speaker noted that rule 23(1) prohibits points of orders or questions of privilege being raised during the Routine of Business or Question Period, and this rule was to ensure the proper flow of these routine events, but it led to problems and so there were recommendations that the prohibition on points of order should apply to Senators' Statements as well, and an appropriate amendment to the rules is being proposed.
The Chair: We have a proposed amendment starting at the bottom of page 3, through pages 4, 5 and 6.
[Translation]
Senator Robichaud: What we have before us is a copy of what had been submitted to the Senate before we prorogued and that had been debated by this committee, is that correct?
[English]
The Chair: That is correct.
Senator Andreychuk: I thank Senator Robichaud for that because that was one part of my question that I thought we had already worked our way through.
The concern I had last time and continue to have, that while I think we have worked it through and it has a certain common sense flow that is worthy of noting, my concern still is for the average senator, like myself, to be able to understand what all this means.
We must have clear sessions with senators so they know what it means to them, because points of privilege are important. I found I hit it quickly when I came in here. Senators have time frames and everything and they worry about whether they should raise a point of privilege or not and, even with a law degree, I think it causes a lot of sweat to try to figure out in 15 minutes where and how to go. Our clerk or someone needs sit down with the senators to advise them what this item really means in a practical way, because it is theoretical, with what-if scenarios through here. It is complex and more confusing than it already is. We are making the change to facilitate it, but I wonder for the average senator whether this is more mind-boggling.
I note that; I will not disagree. I was ready to try it and I still am.
The Chair: Any further comments?
Senator Cools: Yes, can I have some explanation? I have read the record, and this change was presented as a technical change, tidying up an oversight from a previous era.
My understanding of rule 59(10) is that it is no oversight from a previous era. Rule 59(10), for the record, is subsumed under the title ``Matters requiring no notice.''
``Notice is not required for:'' and then it lists many items, and at number 10, ``Raising a question of privilege.''
I was alive and well in this place when that was the way all questions of privilege were raised. My understanding is — that it is proposed that bringing rule 59(10) into rule 43 is a tidying thing to have these rules all together. I would like some explanation on this. Rule 43 was an innovation that was born of a difficult fight between a government and an opposition in this place. The result of that fight, unfortunately, was that the government introduced rule 43 and rule 44 with the express intention of nullifying the old practice of questions of privileges; in other words, to discourage their use thereby to involve the Speaker in making decisions in respect of privilege.
The first time this was tried in the Senate, many Liberals squawked loudly. The entire body of new rules as they were soon introduced thereafter — and I am looking at you, Senator Keon, because you were here — would never have been acceptable to most senators without the presence of rule 59(10), unimpaired. I am familiar with those debates. I know of what I speak.
The reasons for creating rule 43 and its companion rule 44, because they must always be taken together, is that whenever a question of privilege is raised, these two rules automatically allow for the intervention of the Speaker ``on a prima facie basis.'' If you read the debates on the exercise of rule 43 and 44 in the last many years, you will find that the debate on privilege does not take place on the motion that the senator plans to raise under rule 43 and rule 44 if the Speaker finds a prima facie case. The debate takes place on the prima facie portion. In point of fact, many senators treat this prima facie finding like a real finding. That is how the process is working. You can search through the Debates of the Senate since 1991 or 1992, or thereabouts, when these rules came in, and you can find a systematic and consistent lack of debate on any motions arising from the use of rules 43 and rule 44.
This new proposal before us says clearly that section 10 of rule 59 be deleted; in other words, section 10 of rule 59 be repealed, and that the replacement of rule 59(10) be encompassed within rules 43 and 44. This change will bring 59(10) questions of privilege within the purview of the Speaker. The rules had intended two different systems, one under the total control of senators as a whole, which is how privilege should be done, in what we used to call the Committee of Privileges. There were the two systems, one under 59(10) which leaves the determination of privilege in the hands of the Senate as a whole, with no role for the Speaker, that we could go into at a moment's notice, and the other, rules 43 and 44, under the Speaker.
This proposed change now involves the Speaker in the process under rule 59(10). I would like some explanation. I hope that I am wrong. I would like some explanation from the chairman. My reading of this new proposition is that the Speaker will have a deciding role in what used to be the old system.
Senator Fraser: I do not want to pre-empt your response to Senator Cools, chair, but since I am the one who prompted the Speaker to send this item before committee, perhaps I might give a little background for senators who missed these gripping events.
This issue occurred when Senator Stratton raised a question of privilege in what has become the customary form with written notice. Our side raised an objection that his notice was insufficiently detailed, and the Speaker took that under advisement. Later in that session, Senator Stratton rose to use the provisions of rule 59(10), and I got up on my hind legs and said, ``Wait a minute, there seems to be a contradiction in the way the rules are now written, in that one section of the rules says clearly that you have to give notice of a question of privilege and the other section of the rules says clearly that you do not. We need to have this clarified.''
The Speaker in his wisdom agreed that it needed to be clarified, and guess who was tasked with the job of clarifying it?
Senator Cools makes interesting and valid points, as she often does, in her concern for the maintenance of the autonomy of the Senate, of senators acting individually and collectively.
I originally thought that the best way to go would be to delete section 59(10). However, I now think that what is proposed here is a far more rational way to maintain that autonomy of the Senate and senators for which Senator Cools has such abiding and admirable concern.
As I read the proposed change, the Speaker would not be enabled to prevent a senator from raising a question of privilege at any time during debate.
I will be interested to see if somebody tells me I am wrong but, as I understand it, anyone would still be able to stand up and say ``question of privilege'' and launch a full debate on the matter, with appeal to the authorities and contributions from presumably many senators.
However, the flat textual contradiction in the rules would be fixed in a single rule that would require senators to give notice but, for something that happens on the floor of the chamber during proceedings, senators can raise a question of privilege at that time. It would all be spelled out clearly within the ambit of the same rule so we would no longer have this contradiction that says on the one hand, senators must give notice and on the other hand, they do not, and is completely unclear. That is why I think the proposal we have before us is a good and useful one, and why I no longer believe that the appropriate way to go is simply to kill paragraph 59(10), which was my original position.
Senator Cools: Do I understand that you propose an amendment to the report?
Senator Fraser: No, I am explaining why I have shifted my position from the position I initially outlined in this committee in the last session.
The Chair: Senator Fraser, what we do with item 3 at the top of page six in the Fourth Report? Do we delete it?
Senator Fraser: As now proposed, I would delete paragraph 59(10) because it will be reinserted in a clearer form in the earlier rule, which is rule 43, and it would be improved, but the concept would continue to exist.
The Chair: I follow you.
Senator Cools: I am sympathetic to what Senator Fraser said. Rule 43 and rule 44 are about the Speaker's enhanced role in determining questions of privileges, prima facie. They are about the role of the Speaker of the Senate in making determinations of questions of privilege.
If the new 59(10) proposal had been to become rule 45, it might have made better sense, but it is subsumed within the authorities given to the Speaker, and any rule under rule 43 will be taken in concert with the totality of rule 43. For example, under rule 43(12):
The Speaker shall determine whether a prima facie case of privilege has been made out.
Rules 43 and 44 were, at the time, a major step in the direction of a new and enhanced role for the Speaker. The sole purpose of rule 43 and rule 44 was to enlarge the Speaker's role. Therefore, any additions within rule 43 or rule 44 are automatically in the Speaker's camp. In our rules, rule 43 and rule 44 are primarily about the Speaker, his powers and the relationship to senators who raise questions of privilege. If your intention was to create a nice, clean package, then this is not a nice, clean package.
It may shock some people, but few senators have known about the existence of rule 59(10). I came to Senator Fraser's assistance, as you will recall, on the floor that day. I swear to God I have always known about it. I have been tempted to use it myself. I exercised restraint because I have always felt that as soon as the real import of that rule was made known, governments would move to delete or repeal it.
Whereas rule 43 and rule 44 can be seen as rules that assist the government, rule 59(10) is the rule for the opposition. If that was your intention, this is not what has happened. The mere fact that it was put into the purview of rule 43 and rule 44 immediately limits the freedom of the Senate and senators as a whole to put themselves into privileges again.
Senator Fraser: Senator Cools, I assume that your concern relates to the fact that rule 43 says that when the Speaker has heard enough, the Speaker can say, ``I have heard enough.''
Senator Cools: That concern is one of them although I did not mention it.
Senator Fraser: That decision, surely, like any other decision of the Speaker, is subject to appeal by the Senate. The first sentence of rule 43 is not about the Speaker. It says that the preservation of the privileges of the Senate is the duty of every senator, and I read the whole of rule 43 in the light of that strong, flat statement.
Senator Cools: You can read it thousands of ways but, at the end of the day, governments act in certain ways and oppositions act in other ways. The fact is that we are moving paragraph 59(10), or deleting it. The question is: Why delete it at all? Why repeal it at all? If we want to subsume something and to make it clear, we do not have to repeal it or delete it; we locate in a better place. It is right now under the ken of rule 43 and 44.
Rule 43 and rule 44 were created to give the Speaker a say in questions of privilege that the Speaker did not have in the history of the Senate until that time. Rule 43 and rule 44 were totally new to the Senate because the Senate Speaker had no such role. If you read the old debate, you see that clearly. There was a lot of objection at the time when rule 43 and rule 44 were introduced. However, at that time, let us be frank, the opposition had been overcome by the use of the additional eight divisional senators, as we used to call them, and life was different.
Anyone who looks at any question of law knows that the location of the law tells a lot. For example, sections of the Criminal Code deal with offences against justice. Those offences are not in other places of the code because that is the nature of the structure of the law. We must understand that the law of this place has a common law mind. The cast of mind is that of the common law. The mere fact that we are repealing rule 59(10), and creating something and putting it within 43, tells me that we do not have only a better clarified rule 59(10). We have here a totally new situation that we have not begun to anticipate or even to consider. Let me make this clear. This concern has nothing to do with the niceness or the greatness of the present incumbents in any of these positions. This concern is not personal at all, but I belong to that group that believes that the power of senators has been constantly eroded; the independence of senators has been constantly eroded on a daily basis, and I do not wish to see it eroded any more. That is all. If I can quote you, that is my concern in rule 43(1). That is my contribution to the preservation. If we want to be clear, let us slow it down for a day or two and look at this item again more carefully, because my question is: What is the relationship now of the Speaker to questions of privilege? That question must be answered before I will vote in the affirmative on this matter. If you read the proceedings, the question is not answered at all. The proceedings are always in the vein of: This rule was an oversight, a relic from an earlier era. It is all simple; it is only a matter of tidying it up. Anyone who has served in this place knows the number of bills that have come through that simply tidy up little things, and they make profound changes.
I am not requesting a lot, honourable senators. Let us look at this in a careful way. The fundamental question must be answered as to why we chose to put this within the ambit, within the ken, of rule 43 and rule 44 when the purposes of those rules were to give the Speaker a role in determining questions of privilege. That role has gone beyond what was ever intended, and now we have a situation in the Senate, which happens daily, when speakers rise after one or two senators have spoken to cut off debate. This was never the intention of these rules. I see the table officers scoot to the Speaker's side. A real debate on a question of privilege is supposed to include all senators. These issues are so cryptic and so difficult that we need debate.
Perhaps we can put it another way. Maybe the drafters can tell us, why did they choose to draft in this way? Why did they choose to delete rule 59(10) and why did they choose to put these new rules subject to the rest of rule 43 and rule 44? They are subject to rule 43 and rule 44.
The Chair: Senator Cools, I believe it was the committee that made that choice.
Senator Cools: Then someone can tell me what the committee was thinking about when it chose to put rule 59(10) as subject to the Speaker and rule 43 and rule 44.
The Chair: I think the committee did not think they were threatening in any way the question of privilege as it relates to an individual senator. They were trying to simplify the rules so that doctors could understand them.
Senator Cools: It is disturbing sometimes to hear these great admissions that senators do not know what they are doing. I have a hard time with that. My view of senators is different from that.
Perhaps Senator Keon can tell me, why was rule 59(10) repealed and why was its new creation placed within rules 43 and 44?
The Chair: It was simple. It was felt that this change was the most reasonable way to tidy up rule 43 and rule 44, and to remove the contradiction that was in the rule book. It did not seem complicated to me. As far as I am concerned, the Senate, at any time, can overrule the Speaker. I do not see why we are so concerned about the individual senator having a compromise on a question of privilege.
[Translation]
Senator Robichaud: I do not agree with what Senator Cools said about the chair closing off debate after only one person had spoken.
I would like someone to show me that that was so. I do not believe that people are free to say what they like. It is a little unfair to those in the chair to say that they are limiting debate. We must not keep thinking that this was the case. I do not believe it.
[English]
Senator Cools: If we can switch gears, I can point to debates recently in the Senate where I was on the floor pleading with the Speaker to allow other senators to continue, either on a point of order or a question of privilege. The records are there and they are clear. This issue is different. As I said before, this concern has nothing to do with the current occupants. This concern is not personal at all. Once you begin to codify and have rules 1, 2, 3, then you find rules 1, 2, 3, 4 to 25, and so it goes on.
When I came to the Senate, the rule book was something this tiny, and the notion was that senators widely understood the principles. There were few rules but many, many principles — understanding of the principles. If we believe that any senator in this place knows these rules, we are dreaming in Technicolor. To my mind, Lord Campion did work on this particular phenomenon where members now, particularly of the House of Commons, are burdened by more and more rules to the extent that they are even encumbered in debate. That issue is a different one.
The real issue here is the allocation of power, and the question is, rule 59(10) clearly intended the power, with no doubt, over questions of privilege to stay with the house as a whole and the senators as a whole. Rule 43 and rule 44 in all their component parts intended to limit that power and to give the Speaker a great say in questions of privilege.
Dr. Keon, you were here for some of those debates. It was a sad thing. Senator Charbonneau was ruined. He was a good, decent, wonderful man who served in World War II, but it destroyed him and virtually destroyed all relations in the Senate for a period of time.
Much thought was given to this issue at the time. These issues were well canvassed. Rule 43 and rule 44, frankly, were imposed on senators at the time. There was a lot of discussion inside and outside caucus, but at the time, all of us knew that rule 59(10) remained intact.
This change does not clean up rule 59(10); this change creates a totally new creature.
[Translation]
Senator Robichaud: I am not quite in agreement with Senator Cools' remarks. We simplified things. Anyway, very few senators have said that they are aware of rule 59(10) because it is a little obscure. We brought the clause back to the table in order to be sure that it was considered when we dealt with questions of privilege. The honourable senator may perhaps see a problem with that. I do not.
We tabled a report that was thoroughly studied. I think that the chair should table it in the Chamber, where the honourable senators will debate it. If in their wisdom after the debate, the honourable senators see serious problems with privilege not being respected despite the rule change, we can come back and change it again. After all, we are masters in our own house.
We must trust the collective wisdom of the senators. They will stand up for their rights. If an occasion arises, Senator Cools will be the first to point it out and we can take in into account.
So I move that the report be approved and the chair be authorized to table it in the Senate.
[English]
The Chair: Is that a motion, Senator Robichaud?
Senator Cools: There is not a motion.
Senator Corbin: Is there a speaking order, Mr. Chair?
The Chair: Yes, Senator Corbin is next.
Senator Corbin: Chair, I invite you to put the question to the committee to find out if it is ready to adopt this report.
The Chair: Senator Robichaud, was that a motion?
Senator Robichaud: Yes.
The Chair: We have a motion. Is there debate on the motion?
Senator Cools: Colleagues, I would like —
The Chair: Is there further debate on the motion or are you ready for the question?
Senator Cools: I am not ready for the question, but you can do what you like. Chair, this matter is so important, and the issues that I have raised are so important, that it is not appropriate to put a question before this body unless these issues that I have raised have been properly canvassed and satisfied. In this system you are not supposed to ignore questions raised and say, well, never mind, let us go to a vote. These questions must be answered.
I would like us to have a meeting or two, and to bring the necessary witnesses to answer these questions. I would be happy to be wrong. I am not afraid to be wrong. I will bring my references and look at the issue. Debate and intellectual integrity command that we do this work. I would be pleased to be proved wrong, but I believe I should be proved wrong.
Senator Corbin: A motion has to be put immediately, chair.
The Chair: Yes. Senator Cools, there is no question that you made your point, and your points are clear. It is my sense that none of the other senators agree with your point, and there is a motion on the table. I think I should put the question.
Senator Cools: I ask you not to do that, chairman.
Senator Corbin: Question.
Senator Cools: It would be nice, chairman, if the concerns that I have raised be canvassed and, if I am wrong, for that to be proved and established. That is the decent thing to do. I would argue it is the parliamentary thing to do.
If I am wrong, then I will stand corrected, happily and gladly. I have no ego or vanity wrapped up in any of this concern. As a matter of fact, I would like to be proven wrong.
Senator Corbin: Question.
The Chair: I have difficulty putting the question.
Senator Corbin: A motion was made. I do not think you have an option.
The Chair: I have no choice; I have to put the question. I have difficulty curtailing the debate.
Senator Corbin: Chair, this is not the end of the debate. The debate continues in the house, if people choose to debate whatever issue they have in mind.
The Chair: That point is a good one, Senator Corbin.
[Translation]
Senator Robichaud: The matter is not closed. The report will be fully debated in the Senate Chamber, which is, after all, the authority on the subject.
[English]
The Chair: All those in favour of the motion?
Some Hon. Senators: Agreed.
Senator Cools: I would like to raise a point of order. This is debate.
Senator Fraser: We are in the middle of a vote.
Senator Cools: No.
Senator Fraser: The chair has called for those in favour.
Senator Cools: Maybe, but the chair said that he is not comfortable.
Senator Corbin: No, the chair has put the question to the committee, ``all those in favour?'' I am in favour. We can have a roll call, if you wish.
The Chair: Can we have a show of hands, please?
Opposed? One. The motion is carried.
Senator Cordy: Abstention.
Senator Joyal: Abstention.
Senator Furey: Abstention.
Senator Cools: I could have made an amendment to that motion. This vote is not proper, chairman.
The Chair: We move to item 3, rule 86(1)(f)(i), consideration of the use of Aboriginal languages in the Senate Chamber.
Senator Smith, would you speak to this item, please?
Senator Smith: Honourable senators, a thorough report was prepared by staff that points out that this item was initiated by a motion by Senator Corbin, and it was then referred to this committee. There were a couple of other chapters in the ongoing saga, and we tried to develop a consensus on a few fundamental principles. I am providing background for the benefit of members who have not been on the committee.
The Chair: Order, please. Senator Smith is giving a report.
Senator Corbin: On a point of order, Senator Smith said he wants to brief the members of the committee who are not familiar with this question. At my request last week, it was decided that we would send those members who are not familiar with the question a paper outlining the various discussions and steps of debate in which we engaged.
If those members who were not previously members of the committee have read the paper, we could move directly to whether we will do something about this matter. It has been with this committee now since 2005. As sponsor of the matter, I would like this committee to come to some resolve at some point. We can talk and talk and ask further and further questions, but at some point the debate must conclude.
Senator Smith, my esteemed colleague, said that there seemed to be a consensus on a number of questions. My memory tells me that there was a consensus from the first moment I introduced this matter on the floor of the Senate. Subsequently, members of the previous committees who examined this question again expressed consensus. What are we waiting for in terms of proceeding with some definite action on the matter? We cannot continue talking about it. We must come to a resolution and provide the house with our opinion on the whole matter.
Questions have been raised that do not properly belong to this committee; they belong to the Standing Committee on Internal Economy, Budgets and Administration. If there is still a consensus, and I believe there is, we should say so in our report, pinpoint those matters that require the immediate attention of the Internal Economy Committee and set a deadline to come to some finality on this issue. It has been around too long, in my opinion.
You are either for it or against it. I do not want to be the one to look straight into the eyes of my colleague to the right of me and say, for example, ``I am sorry, but we have a problem with your Aboriginal rights.'' I think the time for a decision has arrived.
[Translation]
Senator Robichaud: I think that we should really make a decision, but it is not simple. I think that we must try to find practical ways to take advantage of this opportunity we now have to allow people to speak Inuktitut in the Senate.
We had planned a trip to the Northwest Territories to see how it is done, and we are now told that one of the problems we face is that it is easier to find someone to interpret from Inuktitut to English than from Inuktitut to French.
We have been demanding that everything be done simultaneously, but we should perhaps compromise and accept that, to start with, we can go from Inuktitut to English and then to French.
I would be in favour of starting the experiment so that we can come to a decision and then perhaps afterwards, it will be easier to find interpreters who can do it directly.
Senator Corbin: Mr. Chair, I would like to repeat a comment I made a moment ago. The details of the way in which aboriginal languages will eventually be used on the floor of the Senate — whether we are talking about interpreters and booths, or whether the interpretation is done on-site or remotely — are not our problem.
Once the decision has been made by this committee to recognize the use of Inuktitut and other Aboriginal languages on the floor of the Senate, it will be up to the Committee on Internal Economy to take the measures necessary to put our wish into operation, if it eventually receives Senate approval. The costs, and so on, of trips to the North, those things are the Committee on Internal Economy's problem. We are here to deal with questions of principle and substance. We do not have to concern ourselves with daily operations. That is all I said. I think that Senator Watt may want to respond to a comment made by Senator Robichaud.
[English]
Senator Watt: I think Senator Corbin put it quite well. The question is one of principle. Whether we acknowledge that fact, this is the way to go, and it will happen. All the administrative obstacles that from time to time I have heard in the committee can be resolved easily.
In response to Senator Robichaud with regard to the unavailability of a French-speaking Inuk person that can translate French, English or Inuktitut, we have such people available. The question is whether the Senate will go ahead with it or not. I guess that is the only thing I want to know. The rest can be accommodated.
Senator Furey: Has anything been done with respect to the suggestion in the briefing note that the Standing Committee on Fisheries and Oceans be used as a testing ground for language interpretation? What is the status of that suggestion?
The Chair: Nothing has been done about that yet. I think the first priority is to arrange, as far as I understand, a trip to Iqaluit to see how they do it, and move on from there.
Senator Smith: A number of senators on this committee have been dealing with this issue in good faith and wanted to put in place a version of the concept that the initial motion be adopted when it was referred to the committee.
However, what does that concept mean? Does it mean that at all times in the Senate we have interpreters available in Iqaluit for both languages? We are talking several people. We could be talking huge amounts of money. I do not quarrel with the fact that it will cost us a fair bit of money to do this properly, but I think we all embrace the principle here. I think we want to implement the principle in a way that is cost-effective.
The point I make is that some people refer to the fact that what was done in Yellowknife when there were, I think, as many as eight languages in which there was some version of simultaneous translation at all times, the cost was huge; whereas my understanding is, the way they dealt with this matter in Iqaluit is much more cost-effective.
Six months ago, we had a consensus that we would go and see their system, take the appropriate staff with us and try to lay it out in some sort of budget form that we would recommend and they would adopt. I think we have been acting in good faith.
I think we had consensus on another important principle here. We have two members of the Senate whose mother tongue is Inuktitut. However, several other members have some ability in other Aboriginal-Canadian languages, and when we canvassed them at the outset of this issue, they felt there was a principle involved and they should have an equal right. They did not ask for four hours notice. They would have been happy with two or three weeks notice so that, perhaps, when special delegations visited, they could have translation available. There was a consensus that we try to have a package that would include people's right to do that.
It is unfortunate that the point we reached with this issue was interrupted by the prorogation. However, I am a bit slighted by the inference that some of us have not dealt with this matter in good faith.
Senator Corbin: There is no inference, second guessing or imputation of any motives. I was only stating the fact that this matter has been before us for some time. Do we want to come to a decision or not and how much time will that take?
I respect my colleagues deeply.
Senator Smith: So do I.
Senator Corbin: However, you are reading more than what my words say, so be careful.
Senator Smith: I was listening to your words.
Senator Corbin: I am not a lawyer, but be careful.
Senator Cools: I give my full support to the notion that Aboriginal members should be able to speak in their own language.
I make that clear, and I think Senator Smith articulated it. The concept and idea is well embraced by most senators. I have not heard any opposition to it whatsoever.
On this matter, chairman and colleagues, I am in your hands. In other places, they will say you do a feasibility study or something, but somebody must sit down and work out the details. Perhaps somebody has, I do not know. If so, what are we waiting for?
The Chair: Let us try to move on.
Senator Cools: I am fully supportive and I commend both the chair and deputy chair for the work they have undertaken on this front.
Senator Andreychuk: We discussed this issue in a generic way — if we allow translation for one senator, not only for Inuktitut but for the languages of future senators, what implications this item would have.
Also, if we want these senators to be able to function, are we are talking about only in the chamber or are we talking about in committees, where we constantly say the best work of senators is done?
I commend the chair and deputy chair for narrowing it down — only one trip — and raising some questions. Perhaps some questions on the list we should not answer; maybe there are others. However, they have narrowed the scope of our study. I hope that the steering committee puts time frames on this study quickly and that we can go through a process of reasoned debate and understanding, and come to a conclusion.
I agree it has been on the table for a long time; but if there is an assurance from the chair and deputy chair that there is now a plan of action, that we will move through one trip to the North to look at their model and we should respond to these questions, I think we can narrow it and come to a consensus of the principle we are putting into practice. The item is here because I think the senators, in general, said we must do something about it, and they gave this committee the task of determining the implementation.
Senator Watt: It is not as though it has not been done. It has been done in the Fisheries Committee. We have already provided language translation for Inuktitut in the Fisheries Committee a couple of times in the past since I have been around.
Senator Corbin: Were there any problems?
Senator Watt: No, I do not see any problem with it.
We also are making plans in the Fisheries Committee to travel to the North. We would like this matter ratified at some point because we will need to use Inuit translators as we will deal with unilingual people. I am not a translator.
Senator Robichaud: I think the Fisheries Committee is master of its own doing. We have all accepted that we would seek interpreters when we go there so that the committee can understand those people who wish to express themselves in Inuktitut. There is no problem at all.
Senator Watt: It is not only people wanting to express themselves in Inuktitut; they have no choice, I am sorry.
The Chair: Honourable senators, I suggest you give us approval to plan a trip to Iqaluit. This trip does not rule out going to Yellowknife later, if necessary, and indeed, moving beyond translation services for Inuktitut. I know people who speak Cree would like the same accommodation.
You have in your package two options — one is for a trip to Yellowknife and Iqaluit and the other is a trip to Iqaluit. If I can make a suggestion, we make a trip to Iqaluit and get on with planning the service in Inuktitut; this planning does not close the door to other languages.
Mr. Armitage: I hate to do this but the Nunavut Legislative Assembly will not sit until February 19. Does the committee want to go when the legislative assembly is sitting?
Senator Watt: Yes.
[Translation]
Senator Robichaud: I do not think that a delay like that is acceptable. If we wait until February 19, and if an election is called, which is a possibility these days, the matter will still not be resolved for the next session. I think that we should go and visit the people in the assembly up there so that they can tell us how it works, even if we do not see it in action.
[English]
That is too late. We should find a way of going to find out before February 19.
Senator Corbin: I do not understand. I do not see a problem here. Most of you have been in other jurisdictions, whether it is the United Nations or its committees, the European Parliament or other instances in Africa and many places, where interpretation of national or native languages is a fact of life.
What are we debating? Are we for it or against it? That is all I want to know.
The Chair: I think, Senator Corbin, the committee is for it. We are talking about technical details now, whether we go to Iqaluit when Parliament is not in session to try to accelerate this matter.
Senator Corbin: I suggest we do not wait because we have waited long enough, chair, with all respect. It was your intention to bring some of the committee to Iqaluit last fall but things happened beyond our control, and other things may happen beyond our control.
I suggest you make arrangements immediately to take members of the committee who wish to go, one or two staff, certainly the clerk, and other interested parties. I think that the director of interpretation services, who provides the service to the Senate, should go with you on that trip.
The facilities are there. You can speak to the people who control the facilities in the local assemblies, and you can use interpreters and do your thing there to satisfy yourself. Do not wait.
The Chair: Do we have a consensus that we go on that trip and not wait for the legislature?
Hon. Senators: Agreed.
The Chair: Done. Would somebody move the approval of the budget under option B, please?
Senator Corbin: I so move.
The Chair: All those in favour?
Hon. Senators: Agreed.
Senator Watt: I have one issue. I do not know how we will deal with this. The Fisheries Committee is planning to travel up North and that little budget we have in the Fisheries Committee does not take into account that we need to hire Inuit translators. How do we deal with that?
The Chair: Senator Watt, I believe you should go directly to the Internal Economy Committee.
Is there any other business?
The committee adjourned.