Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 4 - Evidence
OTTAWA, Wednesday, March 25, 2009
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 12:09 p.m., pursuant to rule 86(1)(f)(i) of the Rules of the Senate, for the consideration of the printing of an updated version of the Rules of the Senate.
Senator Donald H. Oliver (Chair) in the chair.
[Français]
The Chair: Honourable senators, I do not see Senator Furey but, at the last meeting, he wanted to say something about the working group. When he comes in, I will call on him to do so. He wanted to add a few remarks to those I made yesterday, at our last meeting.
Before starting with our meeting today, I asked Senator McCoy whether she had any objection to following the debate we had yesterday on the question of privileges. I asked if she would have any objections to this matter now being referred to the chamber where we could have an open and full debate by all senators. She indicated that her preference is "not yet.'' That said, she indicated that she would go by the will of the committee.
Senator McCoy: I would point out that it is not on the agenda for today and other members of the committee who might have wished to speak to it are not here. We did not address the question of section 23 and the amendments contained in that report. I do not know if you really want to push it through today. I would certainly understand if you wanted to take it up at the next meeting after notice has been given that the item will be discussed.
Senator Robichaud: I said I would rather do it today but, if it was not on the agenda, as Senator McCoy says, then we should wait until it is properly placed on the agenda.
The Chair: I agree.
Senator Furey is now here. As I said earlier, I had a meeting with him and the two of us had a brief chat about the working group. We have agreed that we will meet again. I would now ask Senator Furey if he would like to add a few remarks.
Also, I want you to know that Senator Smith must go to another meeting but he will return. Senator Furey, please proceed.
Senator Furey: By way of background information, toward the end of May 2008, the Standing Committee on Internal Economy, Budgets and Administration struck an advisory committee designed to talk about Senate procedures and practices. Since then, we have had both a dissolution and prorogation. Therefore, the committee has been held in abeyance, although the Library of Parliament provided us with a great deal of reading materials over this past summer, some of which we will distribute again.
After my meeting with Senator Oliver, I indicated that I will not be asking the Internal Economy Committee to reconstitute the committee. Senator Oliver, as Chair of the Standing Committee on Rules, Procedures and the Rights of Parliament, has graciously agreed to sit on it and, if it is the will of the committee, to co-chair it as well. I think it is important that the Rules Committee is directly involved with this particular committee. If we are to discuss any practices or procedures that we think may need to be changed, it would be important that the Rules Committee is apprised because it is this committee that will have to be approached with respect to any changes that may wish to be made in that regard.
I will be asking the Internal Economy Committee to do that at our next meeting and I will report back to the members of this committee then. As Senator Oliver has said, he and I will meet and, hopefully, we can convince the people who agreed to sit last year to come back and take part in the committee again.
The Chair: Senator Furey, you said that it was an advisory committee and you referred to it as a "committee.'' However, it is not a committee or a subcommittee — it is more of a working group or advisory group.
Senator Furey: I should clarify. We call it an "advisory committee'' because, as you know, if we were to call it a "subcommittee,'' it could only be composed of members of the main committee. However, as an advisory committee or as an advisory working group, we can draw on the membership of the Senate at large.
The Chair: The term "advisory working group'' would probably be good because it will be a combination of senators from other committees. They are not coming in their capacity as members of the committee but as senators with an interest in the subject matter.
Senator Furey: That is correct. I detect that you have some reluctance to call it an "advisory committee.'' However, as long as we do not call it a "subcommittee'' we can, indeed, call it an "advisory committee.'' It can be made up of members of the Senate at large as opposed to members of the main committee.
Senator Fraser: Could you explain in more detail on what this committee will be advising? What is its mandate?
Senator Furey: We have not really arrive at an agenda for the full committee but we did talk about looking at general practices in the Senate and reviewing some of the past studies that have been done on Senate procedure, practices and reform.
Senator Fraser: Is this a committee with a gigantic mandate?
Senator Furey: Senator Fraser, the executives of that committee were to meet over the summer. However, when we came back, we ran into dissolution and that could not happen. One of the things we were to do when we reviewed the material that we were provided was try to narrow the mandate to talk about things like the conduct of Question Period and issues that have been discussed in the past in reviews of Senate practices and procedures. Another example is senators sitting as regional caucuses as opposed to party caucuses and things of that nature.
In general, we are looking at a rather broad mandate that we were hoping, over time, to narrow down to some immediate practices and procedures that we thought could be helpful to senators.
Senator Fraser: Mr. Chair, Lord knows that we are all in favour of improvement. I am just a little surprised to hear that the Internal Economy Committee was looking, for example, at the conduct of Question Period.
I am muddled. I am not saying that this committee is not a good idea. However, I am a little surprised that a committee with that broad a mandate came out of the Internal Economy Committee. That is not to say it is not a good idea in its own right.
I am just muddled and it may just be because I am short of sleep, I do not know. Maybe other people have thoughts on that subject.
[Traduction]
Senator Nolin: Senator Fraser has raised a very good question. I think we need to try and provide an adequate response.
The process undertaken that involved the Internal Economy Committee could also have been initiated by the Rules, Procedure and Rights of Parliament Committee. As circumstance would have it, some of us were members of the Internal Economy Committee. I was not, but I did speak to Senator Furey about this, and when I asked our chair to consult with his colleague on the Internal Economy Committee, my starting point was that all political parties and all Canadians concerned about the well-being of Parliament have been giving some thought to the Senate for the past 142 years. Very few reforms have come to fruition and many Canadians continue to be dissatisfied with the performance and effectiveness of the Senate.
The suggested mandate of this working committee — and it was only a proposal — was to identify activities, processes, procedures and operations that could be impeding the effectiveness of Senate operations. What could be done differently until reforms are initiated at some future date, if at all? What changes could be introduced to increase the effectiveness of Senate operations?
One impediment was quickly identified, namely that our operations are overly partisan. Partisanship can be observed in a wide range of activities.
Senator Furey mentioned question period. I am sure that you and I both can identify a host of activities in which partisanship and confrontation — and I would not say it is based on ideology — prevail over the quest for exactness and truth. That is unfortunate. I do not feel that these actions help to making our institution more effective.
So, in this spirit, Senator Furey accepted. Another committee could have been selected, such as the Rules, Procedure and Rights of Parliament Committee, but the Internal Economy, Budgets and Administration Committee was ultimately chosen. Senator Andreychuk suggested at the outset that it might be a good idea to have senators from the rules committee present when the working group met to ensure that it does not step on the toes of colleagues working on other committees. In other words, members must keep both eyes firmly fixed on the goal and refrain from getting bogged down in details, however important, having to do with committee jurisdiction.
Senator Fraser: Who were the members?
Senator Nolin: At the time?
[Français]
Mr. Robert, do you remember the members of the working group?
The Chair: All of that will be flushed out once Senator Furey does his preliminary report.
[Traduction]
Senator Losier-Cool: I must admit that I am somewhat confused as well. I listened very closely to what Senator Nolin had to say and I agree with him. I am in favour of setting up this committee. Because it would be called a Senate advisory committee, do we need to debate the matter in the Senate or do we obtain a mandate or order of reference from the Senate to strike this committee? Should this be done in conjunction with the Standing Committee on Internal Economy, Budgets and Administration? In other words, do we need the Senate's permission to strike an advisory committee?
[Français]
The Chair: That is an excellent question.
Senator McCoy: I do not suppose they do. I think it is one of the two committees that can initiate its own agenda along with this committee. Internal Economy is the other committee. Am I correct?
Senator Losier-Cool: Are you speaking of the agenda of this committee or the other committee?
Senator McCoy: I am referring to both the Rules Committee and the Internal Economy Committee. I do not think they need a formal order of reference from the Senate.
The Chair: I can now answer the question.
Senator McCoy: Senator Furey, are you looking for additional volunteers?
Senator Furey: We certainly will be Senator McCoy. The intent of this working group would be to ensure that non- aligned senators and senators from both sides are represented.
To answer Senator Losier-Cool, if this was a work working group within the mandate of the Internal Economy Committee, it would not be necessary to go to the full chamber. That is all it is perceived to be.
To ensure that people do not have any angst about this, it will not be a committee that prepares a report and implements it. If there are changes or anything that the advisory group wants to suggest it would come here and to the full Internal Economy Committee. There would be full debate and discussion before any changes would be made.
The Chair: Senator, do you mean in the two committees and then in the chamber?
Senator Furey: Absolutely.
The Chair: To answer the question about the past members, they were Senators Furey, Stratton, Joyal, Nolin, Murray, Andreychuk and Robichaud.
With that information, honourable senators, I would now like to move to today's business. Everyone has a copy of the revised Rules of the Senate of Canada as conceived and presented first by Senator Molgat and then by Senator Hays.
Mr. Charles Robert is before us once again today to explain the basic approach taken in directing the revisions, how they were undertaken and who was involved, et cetera.
After Mr. Robert makes his presentation to explain what this red binder is all about and what is in it, the floor will be open to questions. Before Mr. Robert speaks, I wish to say that there are no rules to dictate that we must start from this base of the Molgat-Hays document.
We are asking today for three or four senators to volunteer to work with the drafters on this over the summer — June, July and August. The main principle is to harmonize the English and French in our existing rules to correct some of the numbering in the Rules of the Senate of Canada, but not to make any substantive changes. This will not be a working group to rewrite and create a new set of rules for the Senate of Canada. Instead, the purpose is to try to clarify sections in English that do not compare favourably with the same section in French.
With that background, Mr. Robert, I would ask you to explain what this large red binder is all about.
Charles Robert, Principal Clerk, Chamber Operations and Procedure Office, Senate of Canada: Thank you, Mr. Chair and honourable senators, for another opportunity to appear before you to explain a project that has now had a shelf life of more than 10 years.
As the chair mentioned, this initially began under Speaker Molgat who, as a francophone, was not particularly fond of the French text of the Rules of the Senate of Canada. In particular, he did not like that we could not figure out who the "Président suppléant'' was. Was that senator "à titre provisoire'' or "à titre temporaire.''?
In addition, the Speaker found that the Rules of the Senate of Canada were not particularly user-friendly. Indeed, there are some rules that are challenging to understand. With that perspective in mind, he asked the table to provide him with some support. Initially, that support was a working group that reviewed the rules over the course of the summer and came up with a document that suggested reasons why senators may be unsatisfied with the rules.
We produced a 25-page document at that time that spelled out the elements of question and doubt about the nature of the rules as written. With that product, the Speaker gave the group a broader mandate. A group was struck that started to look at the rules with a view to making them more user-friendly. The rules were to be organized in a way that seemed more coherent and easier to follow, with a French version that was closer to a proper standard, and with some slight changes where there were clear problems with respect to the Constitution.
In addition, as an element of the confusion, we were directed to eliminate any "pursuant to rule whatever'' in another rule. It is a real challenge at times to look into the Rules of the Senate of Canada and see in rule 33 for example, "pursuant to rule 67 and 82.'' You have to flip through the book to figure out what rules those may be. We were asked to come up with a solution that might address that problem.
The working group was composed of the senior table officers and a law clerk from the law clerk's branch. We met from time to time with the Speaker as the product evolved. At the same time, none of this work was undertaken without the knowledge of the leadership on both sides. We had at least the concurrence, if not the active support, of the Government and the opposition leadership.
The Chair: On that point, Mr. Robert, were senators from either the government side or the opposition side in attendance and working with the table officers and the drafters?
Mr. Robert: No, this was an in-house operation.
The Chair: No senators have had any hand in the documents in this binder.
Mr. Robert: Correct, with the exception of the Speakers.
[Traduction]
The table of contents appears at the beginning. We can see how this arrangement is more user friendly.
[Français]
As a guide to understanding the process that we followed, you will see bold numeric references at the end of every paragraph. Those numeric references refer to the old rules as of 2002.
I do not think there has been that much of a change. If you were to go to the current rules, you could see how we have reorganized the structure. If you go, for example, to tab 2, you can see how we have settled on an "Order and Decorum'' chapter. We have explained the role of the Speaker and we speak about decorum in the chamber. You can see how we have broken up current rule 18 and brought rule 55(1) into it because it seems to have some coherent relevance to the whole nature of order and decorum.
The Chair: Could I stop you there? Is there anything under the title "Order and Decorum, The Speaker'' that is brand new? I am referring to 4(1), 4(2), 5(1) and 5(2). Are these the original rules? Have you added to the original rules?
Mr. Robert: These are the original rules. Where we have made changes, you will see in the square bracket at the end a designation of "new.''
Senator Fraser: I have a point that I would have raised later, but I will do so now since we are talking about this page. I have not had a chance to read the whole binder and I thank you for the loose-leaf format. However, new document rule 6 is apparently a reflection of existing rule 18(4). It says,
All decisions of the Speaker on points of order, questions of privilege or requests for an emergency debate are subject to an appeal to the Senate and the appeal shall be decided immediately without debate.
As I read rule 18(4) of the Rules of the Senate of Canada, the decisions of the Speaker that are subject to appeal to the Senate are not limited in that way. I did not know, obviously, when I came across this, whether this was the only example of what seemed to be a significant change that was to be found in this document, or whether there was a good reason for such a change.
Mr. Robert: I can explain the intent and the stage that we went through when we reached this point. The driving intent of the redraft was not to change the meaning of the rule, but to make it more comprehensive, where there was an opportunity to do so that did not change its meaning, and group elements to accomplish a more comprehensive understanding of the intent behind the rule.
We did seven or eight sections with the approval of Speaker Molgat. It may be, in this iteration, there were discussions where the Speaker signed off on things he was willing to do that might marginally be in addition to.
Senator Fraser: Yes, he was marginally expanding his authority.
Mr. Robert: That depends. I remember having a discussion with Speaker Molgat about whether he wanted an emergency debate to be appealable as a Speaker ruling, a decision. He said he definitely wanted it to be. There were table officers who were suggesting perhaps it does not need to be; this is basically a yes-no decision.
Again, my objective in making this presentation is to speak to you about the grand objective of the exercise. If it is the intent of the Rules Committee to take up the chair's suggestion and go through a review, there is no desire on the part of the table officers, if I may be blunt, to pull a fast one.
The Chair: No one is suggesting that, Mr. Robert. The only thing is Senator Fraser has pointed out that under "Order and Decorum,'' in the Molgat text rule 6, which indicates is rule 18(4) of the rules should be marked "new'' because it is different from the existing rule. I do not mean to speak for Senator Fraser but that is her point.
Mr. Robert: Again, I would have to go back to the rule to see whether or not inserting something that was meant to be appealable and making it explicit was a substantive change in the perspective of when we were doing the work 10 years ago.
The Chair: It has been changed.
Senator Fraser: I am not taking issue now, since this is not a formal document; it is a draft. I am trying to clarify my understanding. When you said there is nothing new here, I thought how come when I looked at this yesterday, I thought it was a new limitation on those matters subject to appeal. That is why I asked the question. I would assume that the working group — and I volunteer — will look at the substance of these issues.
Senator Andreychuk: I would like to give a little perspective from the Rules Committee. When this was proposed in 2001 or 2002, the difficulty was exactly what Senator Fraser is pointing out — that we had our existing rules and then this set came along. The aids were helpful, but only to a point, because interpretations are in the eye of the beholder. They would say it is not new, and we would say but with respect, you moved a comma, so we think it is new. It could be like that. It may not look substantial or significant to one party, but it may to others.
We started to study this draft. The problem was we did not finish the study. We just started to get into it, raised some constitutional issues, some differences of opinion, and then events intervened and we did not return to the study.
We are coming back to this 10 years later. My point is not only did we not study this or understand how this document fit in with the existing rules of the day, we have now moved on. It is true we have not had that many changes, but we have had some.
The composition and the workings of the Senate have changed. In that regard, it seemed to me that whoever is looking at the rules should look at the existing rules and use this draft as one of the guides. Whoever sits on that committee will have to rationalize what "new'' means and "subsection,'' et cetera. However, use this draft as one of the guides, and any other relevant material that the committee deems appropriate. I would rather this was just an aid, and an effective one in many ways, but not the definitive work of a draft. I would rather the committee look at the draft.
On that point, I think one of the exercises was to bring the two languages together to ensure we are saying the same thing in French and English. I do not think that had been studied very well, so I thought that was a very good point that Senator Molgat made. We often work from one draft and translate and we need an opportunity to look at both drafts and see what they say.
We have done that in Standing Senate Committee on Legal and Constitutional Affairs in harmonizing the two. That is a very valuable exercise, but I also think we should look at the rules totally — what are the rules that we need? I think the starting point must be our existing rules.
I do not think we should get into the content of this document at the moment, because it was never approved and never studied. I would suggest it is like the Conflict of Interest Code for Senators. We had a lot of enabling documents, and we had the House of Commons. Someone said let us work off of the House of Commons. We said no because that deflects us in ways we do not want to go.
We said that we would start with our own code and use everything else as assistance. We often went back and asked what they said. That is what I hope this document will be. If it is to change, let us see what they thought 10 years ago but not be bound by it.
Senator Fraser: I agree with just about everything Senator Andreychuk said but because I started out sounding negative, I will say that although I have not examined the French version, the English version, in terms of the English language, is so much better. I checked out the rules on time allocation, which are among our most opaque sections, and they are actually intelligible.
The Chair: That is a new section.
Senator Fraser: Virtually every paragraph of this draft is clearly written. In that sense, it is an admirable model. I want to tell the table officers, who did labour, that some of us appreciate that effort.
The Chair: I agree.
Senator Duffy: Mr. Chairman, I agree with Senator Fraser that the language is much clearer and, for novices, it is most helpful. If we are on this track and Senator Furey's advisory group is on another track, will we then be dealing with rules related to procedures that would no longer be applicable in the Senate after this working group is finished? Are we into a redundant exercise?
The Chair: No, I do not think so. Senator Furey's group will look at other things such as decorum in Question Period and so on, but not with a view to changing the rules. They will bring it to the committees and if the committees want to make a recommendation to the chamber, they will do so, but that is in the long term.
Mr. Robert is here today because there has been a great deal of confusion between the English and French versions, making them difficult to understand. We are trying to bring some consistency to the Rules of the Senate of Canada.
Senator Duffy: I am all for consistency between the two versions. As I say, with the new group of rules on the horizon, I wonder how many of the existing rules I will need to learn.
Senator Joyal: As I understand the presentation, there were two objectives: The first is to put the two languages at par in terms of quality and understanding. I do not think you will find any quarrel around the table on this objective. The second is the rationale behind the regrouping of sections of the rules, which will warrant some discussion.
The issue of language is technical in nature such that people with the appropriate language skills could be tasked with the job of creating consistency in the two versions. The second objective requires a judgment of experience and understanding with more input from senators. I am prepared to delegate any person who can be identified as a master of both official languages to resolve the first objective. As to the second objective, I would like to review it, have an explanation and have a free discussion to ensure that we understand the objective of regrouping and whether the purpose is well served with changes. We would be called upon individually to make the determinations.
Senator Andreychuk: As we found out in the Standing Senate Committee on Legal and Constitutional Affairs, first you must ensure that you find the proper drafts people who have the time to do the task. As we found out, there is still some call on senators to make judgment calls because not every drafter will do it in the same way. Whether a smaller subcommittee or other means do that, members must be called upon to make judgment calls.
Senator McCoy: Senator Joyal, the context of your discussion is in moving forward with a review of the rules. Are you suggesting that we proceed with the concordance between the languages?
Senator Joyal: I believe this is a common objective for all members. Certainly we could agree on how to proceed with this first objective. There is no doubt, as Senator Andreychuk has mentioned that we all want to see the final product. It would be helpful for any one of us who has an interest in that to be involved.
On the second objective, the process will be different in how we structure our work to achieve the desired results.
The Chair: Do you have suggestions on how it could differ?
Senator Joyal: As I said, I am thinking aloud and do not have a formal proposal to offer, Mr. Chair. The witness stated the second objective: Rationalization for better use of the rules is an objective that we have to understand and determine whether we want the changes because as they stand, the rules are not user-friendly. If we decide that this process should be undertaken, then we need to determine how that will be done.
There is no doubt that in the restructuring or regrouping of the rules to make the context more rational, coherent and usable, we would need a chapter-by-chapter review as we did with the Conflict of Interest Code for Senators. I remember being involved in that process. The second objective would be more laborious to complete.
Senator Fraser: On a supplementary point, Senator Joyal has outlined two of the three objectives of the exercise under consideration.
Senator Joyal mentioned the improvement of the French language version of the rules and the eventual rearrangement of the rules. Please, can we add to our essential must-do list, attention to the English language version of the rules, which is appalling?
The English version is opaque; it is impenetrable. While we are rewriting the French version, since we have before us well-written models of simplified English, I plead that we do the same thing for the English version of the Rules of the Senate of Canada. If we do not do it now, it will never be done, if you see what I mean. That would be a very great help to many senators.
I am not saying lawyers in particular are used to impenetrable prose, and I am not saying that a non-lawyer cannot work his or her way through, but it is much more difficult than it needs to be and there are occasions, particularly when something comes up in the chamber, when it would really be helpful if the rules were clearer instead of opaque.
[Traduction]
Senator Nolin: Mr. Robert, what resources are available to you to help you work on both the French and English versions of the rules?
Mr. Robert: We called on the services of a French legal adviser.
Senator Nolin: That is important, because we do not have access to such a person.
Mr. Robert: At the time, she was the best there was in government. She continued to work after she retired, and decided to work with us to ensure that the quality of the French was appropriate for a document like the rules.
Senator Nolin: And is this person still available?
Mr. Robert: I do not know. We are talking about a document that we worked on a decade ago. I really have no idea.
Senator Nolin: Now that questions have arisen about the English version, I assume that some resources are more readily available?
Mr. Robert: Yes, but French resources should be available as well. I have no doubt that we will be able to find the resources we need to ensure a quality product in both English and French.
[Français]
To highlight a point about how opaque the rules can be, I could point out, if I dare, that we have never applied rule 66(3) properly.
The Chair: Could you read it and tell us what it is?
Mr. Robert: Which version? The old version.
When, under the provisions of any rule or order of the Senate, the Speaker is required to interrupt the proceedings for the purpose of putting forthwith the question on any business then before the Senate or when a standing vote has been deferred pursuant to rule 67, the Speaker shall interrupt the said proceedings not later than fifteen minutes prior to the time provided for the taking of the vote and order the bells to call in the Senators to be sounded for not more than fifteen minutes immediately thereafter. These provisions shall apply, in particular, to the disposition of non-debatable motions and any motion for which a period of time has been allocated to the disposition of the debate.
We have never applied this rule to the disposition of non-debatable motions. A motion to appeal a Speaker's ruling is a non-debatable motion. According to this rule it should have a 15-minute bell, period. We have never followed that practice. I do not think the Senate wants to have that practice, but that is the wording in the rule.
The Chair: Mr. Robert only got to page 1 and I opened up the floor and I think we have had an excellent discussion because we have been able to analyze what this committee would like to do and it has been divided into three parts, thanks to Senator Joyal, Senator Andreychuk and Senator Fraser.
I would like to give Mr. Robert an opportunity to take us a little bit farther through this preliminary draft, just so we can see some of the other things that they have done.
I think that before 1:30 p.m., when we have to break, that one of the things we could do is ask the table create and present to the steering committee for approval, a presentation document on how we will proceed, given the discussion that we have had today.
Mr. Robert, would you like to illustrate a few more examples?
Mr. Robert: You can see how we have divided the rules into a logical sequence so they can be easily rearranged one way or another as you wish. At the very end, in the unnumbered portions of the binder, there is a glossary which in fact has removed rule 4 from the rules because the rules look to have been written as if they were a law text, and there is a definitions part of the rules that is actually in the rules. It seems rather incoherent to ask that the Speaker would be in some sort of obligation to enforce definitions. The decision, with the concurrence of Speaker Molgat at the time, was to remove it from the body of the rules and put it as a separate glossary. In addition, in the second tab, there was a memorandum prepared for the Speaker of the day to explain where there are changes we had identified as new so you can understand what was done and the rationale for it. Then, in the final tab, there is a running commentary of the sense we had of the rules at the time we were asked to draft them.
In the body of the rules themselves, such as at tab 7, rule 62, "Debate on Time Allocation,'' there are cross- references embodied at the end of the rule to give you understanding of what references might be in play. These cross- references send the reader to the appropriate rules and make the rules more user- friendly.
In the review that I have made since this was written, I would agree, as Senator Andreychuk would point out, that I would change things a certain way and perhaps some cross-references have been omitted inadvertently.
I urge that the objective of using this kind of device to render the rules more useful, user-friendly and comprehensible is in keeping with the idea of trying to write better versions in both official languages.
Where there are references implicit to laws, they have been incorporated into it. For example, if you go to tab 9, "Voting,'' we brought up to rule 70 what is presently buried in rule 65. It is a fundamental constitutional principle that all decisions in the Senate should be made by a majority. The drafters, when going through this process said that seems to be something fairly important, let us highlight it by putting it as the first element in the voting section. Then there is a cross-reference. Where does this rule come from? In fact, it comes from the Constitution.
In the earlier part of the rules, we inserted as brand new the admonition that it is not the right of the Senate to change the Constitution. Where parts — it was our view at any rate — from the Constitution have been incorporated into the rules, they cannot be waived; they cannot be omitted. The Senate has no legal right to change quorum from 15 to 10, or to augment it to 20 to 25 without changing the Constitution.
These are the kind of reminders that we were encouraged to put in when the project was underway. Again, the objective always was to make the rules more user-friendly and comprehensible so that the Senate could never be caught off guard by doing something it might not have the right to do. That was one reason why we were urged to cut out two rules that deal with two-thirds voting.
Again, this is to explain the thrust of the exercise, as was conceived and put in place in a text now that dates seven years but began in fact more than 10 years ago.
The Chair: Under tab number 9, "Voting,'' the subheading reads "General Principles,'' you took the rule about the Speaker having a right to vote and you put it right up front. I also thought there was a rule that if the Speaker is going to vote the Speaker shall vote first. If that is the case, why would that not also be right there?
Mr. Robert: Good point. It may very well be that it is a convention that is not actually in the rules. I would have to double check. If it is in the rules and we omitted it, then it is evidence that we did not do our job as thoroughly as we would like.
Senator Andreychuk: I do not think we will ever get what we call the "model,'' the absolute interpretation-free rules that will be self-evident for every senator. As you know, every time an issue comes up in the Senate, it is referred to the Rules Committee to comment on and to either support the existing rule or amend it.
In that process, I have constantly seen senators, myself included, put in "what if'' scenarios. We then add another proviso and another section to it, and then, to be absolutely clear, we add another sentence. That is why our rules are so convoluted. They were intended to be definitive, more explanative and have more "what if'' scenarios built in. We should not go down the road of saying we can have the definitive.
I think the Rules of the Senate of Canada will always be subject to interpretation, and clever senators will find clever ways to raise points on the floor of the Senate and cause difficulty to other senators and to Speakers. That is the nature of the forum in which we find ourselves.
I find it to be a bit disconcerting that if we spend a lot of time trying to rewrite and simplify the rules, we will just have constant conversations, as we have had here today. Yes, well, that is fine; it is simple, but what if? We will then have three or four more meetings on that and we will wake up 10 years later down the line.
Perhaps there is some way to structure this to deal with the language issue and bring the two official languages in line and deal with some of the clear inconsistencies we will see where that leads us.
The Chair: I think there is some merit in Senator Fraser's suggestion. If the English is so archaic that no one can read and understand it, then it should be fixed up. Why have rules if you cannot understand them?
Senator Andreychuk: I do not want to start revisiting every section of every rule. My admonition is that if it is self- evident that the rule is not being implemented or it makes no sense to a majority of people, let us rewrite that rule. Let us not go through an exhaustive review of every section. I think that will reopen it, unless we have a clearly set out purpose at the start as to why we are attacking all of the rules.
The Chair: The main reason we are here now is to try to get the French and English versions into some kind of conformity.
Senator Andreychuk: There is no dispute on that objective.
The Chair: That is the principal reason.
Senator McCoy: It is a fundamental responsibility of every senator to take part in the proceedings of this institution. If they do not know how to do that and if they are unsure of the way in which that is done and if the rules do not make it clear that we are supposed to be concentrating on issues rather than taking up our time with irrelevancies in the rest of the things, then we are frustrated in our objective as being the best we can as senators.
The current rules are impenetrable. I am a courtroom lawyer; I am used to dealing with rules. It has taken me a great deal of time to start to make sense out of those rules. When Senator Duffy says — as did I when I first came across these rules two or three years ago — that they are of immense help to a novice, I will second that motion 100 per cent. In fact, what I have done in order to learn the current rules is often refer to the Molgat rules just to get a sense of what the current rules really mean. To me, that is a total barrier to participation in the chamber and in committees.
We should be looking at a way of removing that barrier, especially since there are a great many more of us novices in this chamber and more to come. We are losing institutional memory. If I really did not understand something, I would phone up Lowell Murray, and he did not have to refer to the books; he could tell me the sense of what was supposed to happen and that was very good. However, Senator Murray will not be here very much longer, so we need to put together something that will act as a guide for this institution's behaviour over the next decade.
That will be a considerable task because it is a detailed task. I agree with the suggestion that is on the table that we can delegate the French-English concordance to a master and a mistress, perhaps, of the English and French languages.
I think we should make an effort at structuring the current rules in the English language in an order that is comprehensible. If debates arise in the course of that review that might be of a more substantive nature, I would imagine that those would be brought back for discussion to the full committee and some way forward would be found at that time in order to maintain some momentum on what should be a task in giving current senators the tools they need to do their job well.
Senator Fraser: Further to Senator McCoy's remarks and to the remarks of Senator Joyal earlier about where we go now and, indeed, whether: This is the Rules Committee. We are the first custodians of the Rules of the Senate of Canada. It is, as Senator McCoy has suggested, our job to ensure that those rules serve the Senate. I think there is a significant difficulty with the way they are written and organized.
Two suggestions have been made. First, that the table officers be charged with the more technical work of working on the translation; and, second, that there be a working group, a subgroup of this committee set up.
I said joyously a little earlier that I volunteer, but in fact, I would leave that decision to the committee. I suggest that we strike such a group and that its work be fairly detailed. Once the table officers complete their original work, the subgroup should work with the table officers to produce a detailed document, rearranged where the group believes it to be useful to senators, not changing the substance of the rules.
The Chair: Yes.
Senator Fraser: I appreciate that chair, but if we do not want to go do the tough stuff, we should go home; we should not be on this committee. We should entrust that group to do the job. When they come back with their report, this committee should be prepared to tackle it diligently, not in an obstructionist manner but properly, and go forward with it. If we do not, no one ever will.
The Chair: Before calling upon Senators Joyal and Robichaud, I would like to comment on the many suggestions that we have heard today. I began by suggesting the formation of some sort of working group.
Based on all the new suggestions that have come out today, I believe we should instruct the table officers to come up with a work plan based on today's discussions and to bring that to the steering committee. The steering committee could then make recommendations to the committee on how we should best proceed.
Senator Joyal: I wish to answer your question about the Speaker's vote. Rule 65(5) states:
Questions arising in the Senate shall be decided by a majority of voices. The Speaker shall in all cases have a vote. When the voices are equal the decision shall be deemed to be in the negative.
That states that the Speaker has a vote on all issues. The difference between our Speaker and the Speaker in the House of Commons is that the Speaker in the House of Commons casts the tie-breaking vote if there is a tie, and our Speaker does not. Our Speaker does not have that right in the Constitution, although the Speaker of the House of Commons does have that right. That is probably where the convention stems from that when our Speaker votes, he must vote first.
The Chair: Exactly.
Senator Joyal: There is the explanation. Rule 65(5) addresses that. We might want to reflect that in the rules if we ever want to change that rule.
[Traduction]
Senator Robichaud: Mr. Chair, the work ahead of us is not as complicated as people are making it out to be, at least in my opinion. First of all, we have to start somewhere. The numerous suggestions made to us could serve as a work plan. We need to find some experts to work on the English and French versions, to ensure agreement between the two versions.
It was also suggested that a working committee be struck to start working on the document before us today. A great deal of work has been done and I do not think that we need to start all over again. This working group could propose a new format. It could bring to our attention certain rules that perhaps should be reviewed in greater detail.
All I am saying, Mr. Chair, is that we need to start somewhere, otherwise, in ten years' time, we will not have progressed any further.
[Français]
The Chair: I quite agree, and we are having a steering committee meeting this afternoon.
Senator Brown: This has already consumed some 10 years, and I will not be here for another 10 years, so I hope that there might be a way of simplifying the rules, as Senator Andreychuk mentioned. It worries me that we are taking advantage of a bunch of lawyers who do not get to charge by the hour. If they did, I think the Senate would be broke.
I agree with the two languages being completely understood in the same manner by people speaking either language. However, I plead for simplicity. While not a lawyer, I have had the privilege of chairing a quasi-judicial body for five years. Some of the decisions we made were appealed in court; we won some and lost some. I have never seen a situation where a client who made a decision could not find a lawyer who would argue the other side.
I wonder if it is possible that any clause of a rule would not be susceptible to some other interpretation.
Senator Nolin: I think Senator Brown is saying that there is a difference between the rules and the interpretation of the rules. Those are two worlds.
Senator Fraser: And always will be.
Senator Nolin: Yes, by nature. That is why we have lawyers.
Senator Fraser: However, the clearer the rules the smaller the area of dispute.
Senator Nolin: We are all for that. Shorter and clearer is better.
The Chair: Honourable senators, the bells will start to ring in a few moments. I think we have had an excellent discussion today. I would like to thank Mr. Robert for his presentation and his overview.
I would like the table to draft a work plan based upon all of today's suggestions and give that work plan to the steering committee so that the steering committee can recommend to this committee on how we will proceed on all matters.
Mr. Robert: I will try to interpret your recommendations and present a simple, direct plan.
The Chair: Thank you very much.
(The committee adjourned.)