Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 1 - Second Report of the Committee
Tuesday, April 27, 2010
The Standing Committee on Rules, Procedures and the Rights of Parliament has the honour to present its
SECOND 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.'' Once again, your committee recommended amendments to the Rules of the Senate with regard to questions of privilege in its third report of the Second session of the Fortieth Parliament. This report was still on the Order Paper at prorogation.
5. On March 25, 2010, the Speaker, in ruling on the prima facie case of a question of privilege, reasserted his interpretation of rules 43 and 59(10), as articulated in his previous ruling of April 21, 2009.
6. 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 forty-five 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 forty-five minute period following Delayed Answers, after any questions of privilege.
7. These proposed amendments are consistent with the style of the current Rules of the Senate. As your committee informed the Senate in its third report of the previous session, it has undertaken a revision of the Rules with the view to improve the clarity of the language in which they are expressed.
8. 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 proceedings 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 forty-five 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).
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,
DAVID P. SMITH
Chair