Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 7 - Third and Fourth Reports of the Committee
Tuesday, May 12, 2009
The Standing Committee on Rules, Procedures and the Rights of Parliament has the honour to present its
THIRD REPORT
Pursuant to Rule 86(1)(f)(i), your committee is pleased to report as follows:
1. On October 26, 2006, during the First Session of the Thirty-ninth Parliament, the Speaker gave a ruling dealing with the process for raising questions of privilege. He noted three aspects of the Senate's procedures which could be clarified. First, he considered the level of information required in the written and oral notices to raise a question of privilege under rule 43 and concluded that the notice should clearly identify the issue to be raised as a question of privilege. Second, the Speaker invited your committee to examine the inconsistency between rules 43 and 59(10) as to notice for questions of privilege. While the former requires that a question of privilege be preceded by a written and an oral notice, the latter provides that notice is not necessary for raising a question of privilege. Third, the Speaker invited your committee to examine ways in which the rules might more clearly delineate the periods when questions of privilege and points of order cannot be raised.
2. On April 18, 2007, your committee presented its fourth report of the First Session of the Thirty-ninth Parliament which recommended amendments to the Rules of the Senate with respect to the procedural matters raised by the Speaker. This report was still on the Order Paper when the session was prorogued. Presented again in the Second Session as the Third Report, it remained on the Order Paper until the dissolution of the Thirty-ninth Parliament.
3. In a ruling given on March 31, 2009, the Speaker raised once more the inconsistency between rules 43 and 59(10). He again called upon your committee to look into the matter.
4. In another ruling, given on April 21, 2009, the Speaker provided an interpretation of rules 43 and 59(10), aimed at reconciling these two inconsistent provisions. He stated that "[u]nless the Senate makes a deliberate decision to change rule 43, rule 59(10) will only remain available for questions of privilege that arise out of circumstances that prevent a senator from providing notices required under rule 43."
5. After reviewing the Speaker's rulings and examining the issues, your committee believes that the following amendments should be made to the Rules of the Senate:
- With respect to either written or oral notice to be given by a senator wishing to raise a question of privilege, your committee agrees that it should provide some detail, indicating the nature of the issue to be raised.
- Rule 59(10) allows a question of privilege to be raised without notice. As the Speaker explained in his rulings, this is linked to the pre-1991 provisions of the Rules of the Senate and should have been reviewed as a consequence of the amendments adopted at that time. While rule 59(10) should be maintained, so as to allow questions of privilege raised after the deadline for written notice under rule 43 or during a sitting of the Senate to be dealt with, your committee believes that it would be helpful to link the provision more directly to rule 43, and to clarify how they relate to one another.
Your committee therefore proposes changes to allow for an oral notice to be given during Senators' Statements for questions of privilege that arose after the deadline for giving a written notice. If a question of privilege arises during a sitting of the Senate, it can be raised immediately, although in some cases the Speaker may direct that consideration be deferred until later in the sitting.
For all questions of privilege raised up to the end of Delayed Answers, a block of up to thirty minutes would be provided for their consideration. In most cases this would likely suffice to deal with such issues. If, however, these matters were not disposed of, further consideration would be deferred until the earlier of the end of Orders of the Day or 8:00 p.m. (noon on Friday). This proposal seeks to strike a balance between allowing the Senate to deal with questions of privilege in an expeditious manner, recognizing their importance, while not unduly delaying the start of Orders of the Day.
A question of privilege raised during Orders of the Day would be dealt with immediately, unless the Speaker directs that consideration be deferred, in which case the matter would be taken up again at the earlier of the end of the Orders of the Day or 8:00 p.m. (noon on Friday). After that point in the sitting, questions of privilege would be considered immediately, without the Speaker being able to defer them.
It should be noted that in all cases when a question of privilege arises after the deadline for giving written notice, a senator would still retain the option of raising the matter at the following sitting, in which case written and oral notice under rule 43 would have to be given.
- The Speaker noted in his ruling of October 2006 that rule 23(1) prohibits points of order or questions of privilege during either the Routine of Business or Question Period. A careful reading of rule 23(6) indicates that Senators' Statements are, in fact, not part of the Routine of Business. The intent behind this rule is that the time-limited regular business of the Senate at the start of the sitting should not be unduly interrupted. Your committee agrees that the prohibition on points of order should also apply to Senators' Statements and Delayed Answers. Amendments to the Rules are proposed to make it clear that points of order related to Senators' Statements, the Routine of Business, Question Period and Delayed Answers would be dealt with in the thirty minute period following Delayed Answers, after any questions of privilege.
6. These proposed amendments are consistent with the style of the current Rules of the Senate, which is cumbersome to some extent. Your committee is pleased, however, to inform the Senate that it has undertaken a revision of the Rules with the view to improve the clarity of the language in which they are expressed.
7. These proposed amendments lead to a number of consequential changes to the Rules of the Senate.
Your committee recommends that the Rules of the Senate be amended as follows:
(1) That section (1) of rule 23 be replaced with the following:
Consideration of points of order
23. (1) During Senators' Statements, the Routine of Business, Question Period and Delayed Answers, it shall not be in order to raise any point of order. Any point of order with respect to these proceeding shall be raised either after Delayed Answers, as set out in rule 43(7.3), or, in relation to any notice, when the Order is called for consideration by the Senate.
(2) That sections (2), (3), (4), (7), (8), (9), (10) and (11) of rule 43 be replaced with the following:
Failure to raise at earlier opportunity
(2) If the matter is not raised at the earliest opportunity, or at the next sitting as permitted under sections (4.1) or (4.2), the Senator raising the matter may put it on notice, but the matter cannot be proceeded with under the terms of this rule.
Written notice
(3) Except as provided in sections (4), (4.1) and (4.2), a Senator wishing to raise a question of privilege shall, at least three hours before the Senate meets for the transaction of business, give a written notice of such question to the Clerk of the Senate, clearly identifying the subject matter that will be raised as a question of privilege.
Notice for Friday
(4) Subject to sections (4.1) and (4.2), a Senator wishing to raise a question of privilege on a Friday shall, at not later than 6:00 o'clock p.m. on the immediately preceding Thursday, give a written notice of such question to the Clerk of the Senate, clearly identifying the subject matter that will be raised as a question of privilege.
Exception — Immediately before the sitting
(4.1) If a Senator becomes aware of a putative question of privilege after the time provided for giving a written notice, he or she may either raise it under this rule, without written notice, or may delay raising it until the next sitting, in which case written notice under either section (3) or (4) must be given.
Exception — During a sitting
(4.2) With respect to a question of privilege arising during a sitting of the Senate, a Senator may either raise it immediately, without written notice, or may delay raising it until the next sitting, in which case written notice under either section (3) or (4) must be given.
Oral notice
(7) A Senator having given a notice, in accordance with section (3) or (4), or who is raising a matter under section (4.1), shall be recognized during the time provided for the consideration of "Senators' Statements", for the purpose of giving oral notice of the question of privilege. In doing so, the Senator shall clearly identify the subject matter that will be raised as a question of privilege and shall indicate that he or she is prepared to move a motion either calling upon the Senate to take action in relation to the matter complained of or referring the matter to the Standing Committee on Rules, Procedures and the Rights of Parliament.
Questions of privilege raised before Orders of the Day
(7.1) If a question of privilege is raised under section (4.2) before the start of Orders of the Day the Speaker may direct that consideration thereof be postponed until immediately after Delayed Answers.
Time not counted
(7.2) Notwithstanding any other provisions of any of these rules, the time taken to consider any question of privilege under section (7.1) shall not be counted as part of the time for Senators Statements, the Routine of Business, Question Period or Delayed Answers.
Consideration after Delayed Answers
(7.3) Immediately after Delayed Answers the Senate shall consider any question of privilege brought to its attention up to that point in the sitting, followed by any points of order to be raised under rule 23(1). The total period for the consideration of these items shall not exceed thirty minutes, after which the Speaker shall call Orders of the Day, and any questions of privilege or points of order not disposed of shall be deferred until the time provided in either section (8) or (9). In the event of more than one question of privilege or point of order, the Speaker may direct that further consideration of any or all of them be delayed until the time provided in either section (8) or (9).
Questions of privilege raised during Orders of the Day
(7.4) A question of privilege raised between the start of Orders of the Day and the time provided for in either section (8) or (9) shall be taken into consideration forthwith, unless the Speaker at any time directs that further consideration be delayed until the time provided in either section (8) or (9).
Questions of privilege raised after certain times
(7.5) A question of privilege raised after the time provided in either section (8) or (9) shall be taken into consideration forthwith.
Time of Senate consideration
(8) Except on Friday, any question of privilege that was not disposed of during the time provided under section (7.3), or whose consideration was delayed under section (7.4), shall be taken into consideration at not later than 8:00 o'clock p.m., or immediately after the Senate has completed consideration of the Orders of the Day for that sitting, whichever comes first, to be followed by any points of order not disposed of at the time provided under section (7.3).
Senate consideration on Friday
(9) On Friday, the items identified under section (8) shall be taken up at not later than 12:00 o'clock noon or when the Senate has completed consideration of the Orders of the Day for that sitting, whichever comes first.
Order of consideration
(10) The order in which questions of privilege were first raised in the Senate shall determine the order of their consideration.
Debates to be seriatim
(11) Except as otherwise provided in this rule, debates on distinct questions of privilege shall be taken seriatim, with the debate on the first being concluded prior to the next being raised. The Speaker shall regulate the debate in accordance with the provisions of rule 18(3).
(3) That section (10) of rule 59 be replaced with the following:
59. (10) Raising a question of privilege under rule 43(4.1) or (4.2);
Respectfully submitted,
Wednesday, May 13, 2009
The Standing Committee on Rules, Procedures and the Rights of Parliament has the honour to present its
FOURTH REPORT
Pursuant to a reference from the Senate of April 21, 2009, and rule 86(1)(f)(ii), your committee is pleased to report as follows:
On March 26, 2009, the Hon. James S. Cowan, Leader of the Opposition in the Senate, raised on a question of privilege in the Senate Chamber. Senator Cowan argued that the following passage, then posted on the Government of Canada website entitled Canada's Economic Action Plan (actionplan.gc.ca), infringed upon his privileges as a senator:
Many of the vital investments in Canada's Economic Action Plan are contained in the Budget Implementation Act, 2009.
While the House of Commons has passed this legislation, the Senate must still approve the Act for it to become law. Senators must do their part and ensure quick passage of this vital legislation.
While this statement asserted that the Senate had still to act upon the Budget Implementation Act, 2009, the Senate had, in fact, adopted this legislative proposal two weeks earlier on March 12, 2009. As a matter of fact, the Budget Implementation Act, 2009, or Bill C-10, as it then was, had been introduced and received first reading in the Senate on March 4, 2009, and was referred to the Senate Standing Committee on National Finance the next day.
On March 10, 2009, during the appearance of the Hon. Jim Flaherty, Minister of Finance, and departmental officials, members of the Senate Standing Committee on National Finance were told that the provisions of Bill C-10 aimed at extending the employment insurance benefits from 45 to 50 weeks would come into force only once Bill C-10 received Royal Assent and apply to the then-pending claims (with retroactive effect on its implementation day). Therefore, every day that Bill C-10 stood unenacted before Parliament, Canadians were losing employment insurance benefits. Faced with such a situation, the Senate decided to act promptly and Bill C-10 received Royal Assent on March 12, 2009, as S.C. 2009, c. 2. Nonetheless, when Senator Cowan raised his question of privilege on March 26, 2009, the actionplan.gc.ca website indicated that the Senate had still not adopted Bill C-10.
On March 31, 2009, the Speaker ruled that no prima facie question of privilege had been established. However, that decision was not sustained on appeal and the matter was referred to your committee on April 1, 2009, for consideration and report.
On April 28, 2009, Mr. Laurent Marcoux, Acting Director General of Operations, Communications & Consultations, Privy Council Office, appeared before your committee. At the outset of his appearance and throughout his testimony, Mr. Marcoux expressed his deepest and sincere regrets for this error for which, he asserted, he was responsible. He explained to your committee that the website was initially hosted by the Department of Finance, but had been launched anew by the Privy Council Office on March 11, 2009, following the tabling of the Canada's Economic Action Plan — A First Report to Canadians. Mr. Marcoux explained that he had been informed of the erroneous statement on the evening of March 26, 2009, and that the appropriate correction had been made to the website that very night. He also explained to your committee the measures that had been taken to remedy the situation. In this regard, a page-by-page review was undertaken to verify accuracy of the content of the website. Since then, his web team now completes a daily review of the content of the website and all time sensitive materials are identified to ensure that verification of the accuracy of the content is done on an ongoing basis.
Your committee accepts the apologies from Mr. Marcoux in respect of the operational error.
Your committee is satisfied that the measures taken since March 26, 2009, constitute an appropriate remedy and that such an incident, where an erroneous statement is posted, is unlikely to happen again. Your committee understands that the personnel of the Privy Council Office may not have been sufficiently well prepared when the responsibility to manage the actionplan.gc.ca website was transferred to the Privy Council Office, which, as Mr. Marcoux indicated in his testimony, does not usually manage such websites. In this respect, your committee notes with satisfaction that it has been informed by Mr. Marcoux that a learning plan, which will include a course module on the role of the Senate and an information session on the Communications Policy of the Government of Canada, is being developed for his personnel.
It is nonetheless deeply regrettable that this inaccurate information remained on the actionplan.gc.ca website for more than two weeks. Moreover, your committee underlines that this erroneous information could have been removed earlier from the website. Indeed, on March 25, 2009, the erroneous statement was referred to during the proceedings of the House of Commons Standing Committee on Finance, where the Parliamentary Secretary to the Minister of Finance was in attendance. Later that day, a news report aired on CTV National News also mentioned the erroneous statement. Your committee expects that should a similar situation presents itself again, the appropriate correction will be effected promptly. Your committee notes that, while the erroneous information was removed, no notice of correction or apology was posted to explain the error or the change.
Even more troubling, however, is that the statement from the actionplan.gc.ca website was not just inaccurate; it was also an affront to the Senate. The Constitution Act, 1867 established the Parliament of Canada, which is constituted of three components: the Queen, the Senate and the House of Commons. All must agree before a legislative proposal becomes an Act of Parliament. The Senate benefits from the necessary immunities, privileges and powers to discharge its legislative functions unimpeded by any external body. The statement that "Senators must do their part and ensure quick passage of this vital legislation" is at odds with the autonomy and independence of the Senate. The Senate cannot be coerced to adopt a legislative proposal or to adopt it in a given timeframe. In addition, this partisan rhetoric on a Government of Canada website put the public service into an untenable position where its non-partisanship, political neutrality and impartiality are placed in jeopardy.
Your committee finds this unacceptable terminology offensive to the authority, dignity and privileges of the Senate, and concludes that it needs to be remedied.
Therefore, your committee recommends:
1. That a comprehensive review of the actionplan.gc.ca website be undertaken with the view to remove not only factual errors, but also any statement that may affect the non-partisanship, political neutrality and impartiality of the public service;
2. That the Clerk of the Privy Council take every step necessary to convey to all responsible mangers:
(a) the non-partisanship, political neutrality and impartiality of the public service; and
(b) the institutional role of the Senate.
3. That the conclusions learned in this matter be communicated strongly to all responsible managers of Government of Canada websites.
Respectfully submitted,
DONALD H. OLIVER
Chair