Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 4 - Evidence - June 2, 2015
OTTAWA, Tuesday, June 2, 2015
The Standing Committee on Rules, Procedures and the Rights of Parliament, to which was referred Bill C-586, An Act to amend the Canada Elections Act and the Parliament of Canada Act (candidacy and caucus reforms), met this day at 9:32 a.m. to give clause-by-clause consideration to the bill.
Senator Vernon White (Chair) in the chair.
[English]
The Chair: I welcome everyone to the meeting of Standing Committee on Rules, Procedures, and the Rights of Parliament for June 2, 2015.
Today we will be discussing, debating and having witnesses in relation to Bill C-586, An Act to amend the Canada Elections Act and the Parliament of Canada Act (candidacy and caucus reforms). Our witnesses are the Honourable Peter Milliken, P.C., O.C — thank you very much for being here today, sir — and the Honourable Stéphane Dion, P.C., M.P.
[Translation]
I would also like to thank you for giving us this opportunity to discuss this legislation.
[English]
We will begin with Mr. Dion and then go to Mr. Milliken. Thank you.
[Translation]
Hon. Stéphane Dion, P.C., M.P., as an individual: Thank you very much, Mr. Chair, and thank you, colleagues. I would like to thank the committee for granting me these five or seven minutes, which I will use to reconcile two seemingly contradictory positions.
First, Bill C-586 is not a good bill. Second, the Senate has to pass it. It is not a good bill, as it will not improve Canadian democracy.
[English]
Do you have copies of my presentation? I've sent it. We will read it together.
[Translation]
It will not improve Canadian democracy. Undoubtedly, what earned me the honour of being invited before the committee is the fact that I stated the six reasons why I voted against this bill.
[English]
First, Bill C-586 is proposing rules that are questionable. I am particularly averse to the odious notion of a member being expelled from caucus by a secret ballot rather than by a show of hands. It's not true that in democracy everything has to be done secretly. There are some circumstances where you need to act openly, and this is certainly one. If I had to vote to expel one of my colleagues, then I would say it openly. To do otherwise would be unacceptable.
Second, it would be a mistake for Canada to become the only democracy to impose by law a set of identical internal democratic rules on all parties and recognized parliamentary caucuses.
Senator Batters: There's something wrong with the translation.
Mr. Dion: But I'm speaking in English.
The Chair: She was looking for the French. Apparently her French-language training is going very well.
Mr. Dion: I will switch to French. It doesn't work? Does it work or not?
In Australia, in 2013, the Labor Party was able to raise the threshold required to expel the leader because there was no law preventing it from doing so. The decision was entirely theirs to make. A bill that would impose the same internal rules on all parties is no more desirable in Canada than it was deemed to be in Australia.
Third, with thresholds as low as 20 per cent for calling a prime minister into question and 50 per cent plus one for his or her removal, a prime minister could be blocked from taking necessary decisions if they are unpopular with some members of the caucus. Canada is a tough country to govern. You have to make unpopular decisions that will become popular over time. My personal view is that using tacit convention rather than a formal rule is a better way to go when expelling a leader, which is a momentous decision if there is one. I am ready to further develop this point, if you want me to.
Fourth, why should Canada become the only democracy to impose, by law, this incongruous rule, a rule whereby a leader elected by its party membership could be expelled by only one half of the caucus? My view is that in a sound democracy, MPs need to secure the approval of their respective party memberships before giving themselves such a power. In the Commonwealth countries cited by Mr. Chong, political parties have their leaders elected by caucus or an electoral college in which the caucus wields considerable clout. Since the leader is chosen by the caucus, it is normal and legitimate for the latter to have the power to remove the leader by a vote.
But in Canada that is not the case. My own party will celebrate, in 2019, one century of leaders elected by delegates or by the grassroots.
Fifth, under Bill C-586, a leader could be expelled by a caucus that comprises very few representatives, or none, from a given region. That is the case with the current Liberal caucus, with only four elected MPs from the four Western provinces and the three Northern territories, and the Conservative caucus with only five Quebec MPs. Does it make sense to hand over the power to remove a leader to only half the members of such regionally unbalanced caucuses? I do not think so.
Sixth, it is true that Canadian parliamentary democracy is in bad shape, but I and others, including my party, have proposed more effective means to address this problem — means that I do not have the time to go through with you now, but if you want to discuss it later, then let's go.
[Translation]
Now, let me move on to my second position. Regardless of how bad the bill is, the Senate must not block it. In its 2014 opinion, the Supreme Court provided a good description of the Senate's role as the chamber of sober second thought. The court wrote that the Senate must be "a complementary legislative body, rather than a perennial rival to the House of Commons in the legislative process.'' That is why the convention, which honourable senators have followed since Confederation, has been that the Senate proposes amendments from time to time, amendments that the House of Commons often accepts, and which play a useful role. However, the Senate very rarely, outside of exceptional circumstances, rejects bills passed by the House of Commons.
In my view, no amendment can, in this instance, salvage Bill C-586. This bill has been amended by the House enough that it is clear that these are not exceptional circumstances. The rules set out in the bill have become optional. The parties can choose to adopt them or not. It will be up to MPs like me, to convince our respective parties not to adopt these rules, which for the reasons I described, do not benefit our parliamentary democracy.
[English]
The Chair: Thank you very much, Mr. Dion. Mr. Milliken, please, if you would, and after that we'll take questions from senators.
[Translation]
Hon. Peter Milliken, P.C., O.C., as an individual: Thank you, Mr. Chair, for the invitation to participate in today's discussion.
[English]
I should say that I appeared before the Commons committee studying this bill, so this is sort of a second appearance, if you like. I was shocked when I saw the new format of the number of changes that were made to it. Like Mr. Dion, I'm not convinced this is the best bill. On the other hand, I think it's one that's better than nothing, and I think we need to move in this area because I'm concerned about the lack of control that members have over what's going on in their parliamentary work. I'm not so convinced that that has happened in the Senate, but it is certainly happening in the House of Commons. Therefore, I think this kind of legislation is important.
On the issue of party leadership, I'm not a big fan of having a party leader elected by all of the members or supporters or whatever of the party, then telling the party members, "You're in or you're out because, in my view, I have control of this now that I've been elected by everybody. A million people voted for me. No MP got more than 120,000 votes, so you either do what I say or get out. You are kicked out. You will be excluded, and you will not be the candidate.'' In my view, these powers and leaders are ridiculous and should not be allowed. This bill goes some way toward changing that. I would prefer changes in the electoral law where you didn't need the leader's certificate. This goes partway there because it's appointing some other people to do it. It should be the riding association president who decides who the candidate is after a meeting has been held and who signs the certificate for the Chief Electoral Officer if you want to put the name of the party on the ballot. When I first ran, it wasn't on there. I don't feel that that's a necessary part of functioning, but the members from big cities prefer it because people living in Toronto or Montreal aren't sure which riding they live in, so they may not know who their candidate is for whichever party.
In a smaller community, as I have represented, it wasn't an issue.
The other thing about it, of course, is the control the leader then exerts over the party and dictating policy, dictating who's going to be in committees, who's going to be at which meeting, all of that sort of thing. I think we have an obligation to make our system more parliamentary, and this bill goes a modest way toward doing it. It's been altered in ways I don't particularly like by weakening some of the things that were in it originally, but it's a step in the right direction. I accordingly urge you to adopt it because, if it isn't adopted without amendment, at this point, it won't become law in this Parliament. We'll be stuck with the current situation into the next Parliament, and, if there's a majority government, it will be tough to get any changes to it from any government because leaders don't want to give up their powers.
In the parliamentary system that we had in this country at Confederation, the leader was chosen by the caucus. Now the caucus has no power in that regard at all. This gives some back — modest, but some. I note that under the system here, if the caucus does vote to terminate the leader, there will be another leadership convention, or the party can have another meeting and re-elect the same person. So it's not taking the party's powers away; it's just giving the caucus some additional power, which, in my view, is not unreasonable. I'd prefer to give it more, but I can see that isn't likely to happen.
Anyway, my basic position on this, subject to your questions, would be to say that this bill, imperfect as it is, is worth passing just because it will bring about some slight changes in the way things happen. If the members in the next Parliament decide to make further changes, either weakening or strengthening these, at least the issue will be there for them to deal with because the issues could be raised in votes and caucus under the rules in this bill, which they cannot do if this bill is not passed.
The Chair: Thank you very much, Mr. Milliken. We have a long lineup of questions, and we'll start with the deputy chair of the committee, Senator Smith.
Senator D. Smith: I agree that we don't have any choice. We have to pass this bill. It overwhelmingly went through the Commons. I don't think it's perfect. But it's a Commons bill about their rules, and I don't know how we would torpedo it. The point that I want to invite your input on is that I increasingly think that the role in Parliament these days — not so much the independent senators in the Senate — is that of robots, that everything is whipped. Even in the mother of Parliament, Great Britain, they have these three-line whips. In other words, quite a few things are free votes. That's not the case here. I really think that we want to see progress in making the role of MPs more meaningful and minimizing the items where the government stands or falls and you have to trigger an election. The irony is that Great Britain has done that. Not perfectly, but those three-line whips are certainly a good start. I think we need to do something in this direction. This isn't the perfect package, but I don't think we have any choice but to pass it. I invite your input on whether you feel the status quo just can't remain as is.
Mr. Dion: I think it's a bad bill. As Mr. Milliken said, it's not as far as we would like it to go. I will fight against these rules being applied. I don't think it will say what Mr. Milliken said. It will not weaken the leader, but it will create a lot of mess in the relationship within the caucus and between the caucus and the party. It will be a wonderful world for journalists because, when the Liberals argue with the Conservatives, it's boring, but, when a Liberal argues with a Liberal, that's great news.
Senator D. Smith: That's democracy.
Mr. Dion: I'm not saying, "Accept these rules.'' I'm just saying that now they're optional. All of the amendments we had to make to make it a bill that is not exceptionally problematic have been done by your colleagues in the caucus. It's why the bill passed, by the way. The first version of the bill would have been defeated. I'm not sure 100 per cent, but I'm quite sure that's what would have happened.
Now the debate will be first a vote after an election. Assuming that we Liberals win, will it be our first vote to ask ourselves, "How will we remove Justin Trudeau?'' I think colleagues will be very upset about this first choice they will have to make, and they will say, "Why would we do so?'' Especially because, if you say yes, you cannot change it until the next election. You need to amend the bill to be able to change the rules. If you vote no, you're the master of your own rules, as it should be. In democracy, you don't infringe too far into the internal rules of political parties. That's what this bill would do.
The Chair: Thank you very much. Mr. Milliken, please.
Mr. Milliken: I wasn't a leader of the party, so, in that sense, I don't have the same point of view. But I think it's very important not just that the members have some say in the leadership but that the leader doesn't have some say in who the members of the caucus are, which is what's happening today. I think this puts some controls on that because the caucus can make decisions on who is out and who is in, not the leader saying, "You're out because you voted this way on that'' or whatever, which I find very offensive.
So I feel that we need to work at changes to the rules here. One of the things I speak about a lot is, for example, the control of who asks questions in the house and what the questions are going to be and all of that sort of thing, which has gone on for some time now and which is not the British practice. I think we need to look at things like that in the way the House of Commons operates within their rules, and this bill will give caucuses more say in how things are going to be done. Not directly on the points I've just mentioned with questions and so on, but in terms of the leader's desire to please them, keep them happy and work with the members, it will produce, I think, a little more cooperative, shall we say, rapport between the leader and the members of the caucus, which, in my view, is important. The leader ought not to be the dictator of the caucus, which is increasingly happening, in my perception, not having attended a caucus meeting in years.
The Chair: I'm sure it's changed. Mr. Dion, if I may, I have a question, actually, if senators will indulge me, at least.
Optional legislation without penalty — I'm just trying to get my head around that. My background is policing, to be fair, and I'm sure many of the people I was involved with would have loved to have had optional legislation without penalty. How do we square that circle from a legislative perspective?
Mr. Dion: I'm not sure. Maybe Mr. Chong would answer the question better than I. My guess is that it would be very sad to see members of Parliament not respecting the law. That's the penalty. We are ignoring the law, and now we will be legislators asking Canadians to respect the law. I think that's not a situation I would recommend my party to be in.
The Chair: If I may, would you recommend or do you see the need for optional legislation, or should we remove optionality? If it were optional, would you see the need for a penalty of some sort? Your suggestion is that the legislation is poor overall?
Mr. Dion: No, I think the bill should stay optional. That's why your colleagues in the house voted for it — because it was optional. Otherwise, they would have rejected the bill, I'm quite sure — not 100 per cent sure but quite sure. That's why Mr. Chong compromised in this way. It disappointed some people because it became optional. That's why I accepted sending it to committee. I voted for sending it to the committee. At the end, I voted against in order to send the message that I would fight against these rules being accepted by my caucus after the election.
The Chair: Thank you very much.
Senator Fraser: Welcome to the Senate, gentlemen. I have two quick questions, one for each of you. Mr. Dion, I agree with you that this is a profoundly bad bill for most of the reasons you outlined plus some others of my own. I would draw to everyone's attention yet again that this bill does affect the Senate, contrary to popular mythology.
Mr. Dion, if we think it's a bad bill, even though it's optional, is it not a betrayal of our parliamentary duty to say we should pass a bad bill on the assumption that it will never be used?
Mr. Milliken, MPs don't use the powers they have now. Why would you be so confident that this optional system would suddenly instill and encourage some backbone in them?
Mr. Dion: The second question on MPs is that —
Senator Fraser: They don't use the powers they have.
Mr. Dion: On the first one, the difficulty of being a senator is also the beauty of it. You have been chosen for this function in order to be a chamber of scrutiny, to improve the work done by the elected house, but, as the court said, not to be a rival of the house. It will happen that sometimes you will see a bill that you don't think you would like to support; but you will accept it because you will not —
Senator Fraser: Rubber-stamp it.
Mr. Dion: It's the duty of the chamber of sober second thought to avoid being a rival of the house — to help the house do its work. That's what the court said. It's an understanding of the Senate's role.
Senator Fraser: If we can't improve it, then we're just a rubber stamp.
Mr. Dion: I don't think it's possible in this case to improve the bill. In many cases, it's possible. In this case, if you try to improve the bill, it will change the spirit of it. The bill has been improved in this way by colleagues in the house. If you compare the first version to the second version, you will see that in the second version we amended the bill without changing its basic orientation. That's my answer to your first question.
It's your duty not to be a rival of the house. The house voted, and you may think it was a mistake, but you did your best as a senator in this circumstance.
On the second point, I fully agree with you. I'm hearing my respected colleague, Mr. Milliken, and I don't see anything in the bill that addresses these problems. Elections Canada does not infringe on the internal democratic rules of the parties. When Elections Canada needs to know which candidate is the official candidate of the party, whom do they ask? The leader; but this does not prevent the leader from being a dictator.
In my party, the leader — and as a leader I did not do this — lets each riding choose its candidate. Once in a while he may indicate his preference, and then the media are all excited because sometimes his preferences will not prevail; but that's part of the game. Some parties have done that in the past as well. It's not against the Elections Canada rules. They just want to know who the candidates are. If somebody other than the leader were to announce the official candidate, then we would free parties of the dictatorship of the leaders. I think it's a superficial analysis of the reality of political parties.
It's the same thing to expel a colleague. It's officially the leader, but do you think a leader will do it against a colleague that is popular in the caucus?
Senator Cools: They do it all the time.
Mr. Dion: I'm not aware of one such case. It's rare that you expel someone, and when it happens, it tells most colleagues, "Phew, it was time that the leader acted.'' I'm not speaking of other parties but my party. It's not true that we have a dictator as a leader. I'm not saying I don't have a long list of things that would improve and address the problem Mr. Milliken mentioned, but this bill will not do it.
Mr. Milliken: Well, in the Liberal Party two members were just thrown out by the leader, as I understand. I wasn't at the party caucus meeting so I don't know, but from what I read in the media, the leader said they were out. In my view that decision should be made by the caucus, not the leader. This kind of bill will help to remedy that problem, in my view, because the leader is saying, in effect, "You will not be the candidate in the next election because you are out of the caucus. The party locally will have to choose someone else, whether they want you back or not.'' I don't think the leader should have that power; I'm sorry. I think the local association is the one that should make those decisions.
We have national parties that we participate in in this country, and we have geographic representation by a party organization in a constituency that chooses the candidate for that party in that constituency. One of the strengths of our democracy is that we get people elected to represent various districts of the country and bring those geographic differences to discussions in Parliament — in committees, in caucus and all over the place. It's very important for the functioning of democracy in Canada, in my opinion.
If leaders are going to decide who the candidates are and who will not be a candidate because they don't particularly like somebody or they find somebody's background repellant to them, then in effect we're taking away the control of the local association to make those decisions. In my view, that's a very important part of it, and this bill helps. It's not perfect, and I stress that, but it will help in that regard.
It has to do with the house, so I urge the Senate to hold its nose and adopt this bill. In my view, it won't do much damage to democracy but will strengthen it somewhat. It doesn't go as far as I'd like it to go, but it is an improvement. That's why I urge support of the bill.
There are flaws. If I were an MP after the next election — and I'm not running, I assure you — I'd be pushing for changes to this bill: Bring more in and make changes to the technical aspects. The ballot doesn't have to be secret. As someone said, you can have a public ballot if it's a question of the leader's role. You might have a secret ballot if a member is to be excluded from caucus so that he doesn't have a bunch of hostile friends left if he makes it or doesn't make it.
There are arguments on both sides of these issues; but they can be discussed and debated at another time in another situation. At least if we've made moves on it, it will force the discussion in the future, which is important because we're not having it now. Members can't raise these things. The leader says, "I'm in charge here; you shut up.'' That's what's going on, in my view from what I read.
The Chair: Senator Cools, is your question supplemental to Senator Fraser's?
Senator Cools: It is. I'd like to make the point, colleagues, that we adopt bad bills daily in this place. We shouldn't, but we do. It happens. I reserve my right to vote as I see fit.
I would like to thank Peter Milliken. We're old friends. I've known him for a lot of years. It's lovely to see him here. I welcome him with my whole heart, as you know.
I would like to say that this problem is larger than we realize. We have had good, popular colleagues who were put out of caucus because a particular individual in the leader's office didn't like them. I'm thinking of one particular member in Toronto, an Ontario member whose riding association supported him but nobody listened to them. His constituents supported him. He ran as an independent in Toronto. You know who I am talking about. His last name begins with an N. It's John Nunziata, the famous hardworking Toronto MP who was very popular.
Senator D. Smith: Infamous.
Senator Cools: He was put out, but he was very popular. His riding association stayed loyal to him. He ran and he won. The next election after that, the party concentrated so much money and force in the riding that they finally retrieved it. There is one example.
The leader's staff was known to threaten caucus members with expulsion from caucus. I know of a particular senator who was threatened directly by him on another bill.
We should not play the game that we don't know and that it doesn't happen. Lots of these decisions are being made by the leader with no discussion or consultation with anybody else. To a certain degree, I don't mind a leader having that kind of power to make those choices. It is just that what I have seen in the last few years has made me rethink it a lot. At least the leaders should know that caucus members have some deep concerns in these matters.
I am supporting this bill on the ground that it is the best thing that has come before us. It is the only game as it is, so I will be voting for it. It is no secret that the government wants this bill killed. There are very few secrets in this place, but I am prepared to support —
An Hon. Senator: Question.
Senator Cools: I don't have to ask questions. This is my time.
The Chair: You had a supplemental question, senator. I asked if you had a supplemental question to Senator Fraser. I have a long list of people that have questions. I can put you on that list, if you would like.
Senator Cools: Maybe I should consider my membership in this committee —
The Chair: That would be your choice.
Senator Cools: — as you always have such long lists. This committee sits frequently.
The Chair: That would be your option.
Senator Cools: It is my option? No. You are bullying, and I don't like it.
The Chair: Senator, do you have a supplemental question to Senator Fraser?
Senator Cools: I'm recording a position. I know these rules very well. You are out of order.
The Chair: I know you do. Senator Batters.
Senator Cools: I'm saying to you I am supporting this bill. You are very rude.
Senator Batters: Thank you both for being here.
Mr. Dion, your written opening statement provided earlier today states that the convention has been that the Senate proposes amendments from time to time. Thank you for confirming the ability of the Senate to amend legislation.
Then you seem to conclude that because the rules in this particular bill are optional, that is why this piece of legislation should be passed. I have to say that I struggle with that logic. That type of logic would produce some really terrible legislation at the Legal and Constitutional Affairs Committee. Could you try to explain that particular part?
Mr. Dion: The bill has been watered down by your colleagues in the house to the point that we are not in an exceptional situation that would fundamentally damage the democracy of Canada. You should not use the exceptional power that you have to veto a bill supported by the house.
Senator Cools: That's not —
Senator Batters: I have a further question to you, Mr. Dion. As the bill stands right now, there is no mechanism governing the frequency with which the caucus could challenge or remove a leader. Do you find that problematic? As a former party and parliamentary caucus leader, can you speak to how a frequent threat to leadership could undermine the strength of a caucus, a party and/or a government?
Mr. Dion: Mr. Milliken mentioned many situations where the leader may be abusing his power. However, there are many circumstances where a group within the caucus may abuse their ability to create difficulties. I'm not sure Mr. Chrétien would have been able to stay as Prime Minister of Canada as long as he did under these rules.
Some may say, oh, that would have been a good thing. But I respect what Mr. Chrétien did for the country with tough decisions. Many times the caucus was mostly against him, with some of them ready to start a rivalry with the Prime Minister. However, after a few weeks, they changed their minds. That's leadership.
Also, we should not think that we need to compare ourselves only with the Commonwealth countries. They may not speak English, but other countries exist. It is not true that you have many democracies where the leadership — it is not done only by the individual — doesn't have a role to say be sure that you have cohesion within the team. I think Professor Cross from Carleton University explained the idea that the sovereignty of riding associations is a sacred cow. I don't know in which type of democracy that exists.
If you do a bit of electoral sociology with voters in Canada and elsewhere and you want to predict their vote, look at the party of the candidate before the candidate. You may deplore that, but for voters it is convenient because they don't have the time to scrutinize the personalities of every candidate. Most of the time, they will focus on the leader's personalities, and the party will give them broad, problematic and ideological safeguards or markers, and the candidate, the personality, will play a role in that.
According to electoral sociology, it is with about 10 per cent that you may hope to make a difference. If your party is expected to do 40 per cent in the riding, a good candidate may bring you to 44 per cent. That may make the difference between a victory and a defeat. It is the fringe of a vote that is mostly partisan — except in Saint- Laurent—Cartierville, where I was able to bring much more than four percentage points.
Senator Batters: You were a leader, too.
Mr. Dion: All of us know that without the party label, it would be difficult for us to be elected. If you are elected as a team, don't you think you should act as a team once elected? That doesn't mean we need to accept any dictatorship. I agree with that and I have ideas to improve it. This bill is not addressing these abuses by the leader.
Senator Jaffer: Thank you to two people I tremendously respect for coming here and making your presentations. When Mr. Chong, the sponsor of the bill, was here, he stated that we just rubber-stamp this and we are not looking at the bill from the point of view of second sober thought. I would appreciate hearing from both of you if you think the Senate's role on this bill is to rubber-stamp this bill and not reflect on this bill.
Mr. Milliken: I think it is quite legitimate that you are looking at the bill. That's the Senate's role. As a witness, I would just urge you to adopt it in part because if it isn't adopted without amendment, it isn't going to pass in this Parliament. We will be stuck with the current situation whenever the new Parliament meets. Then it will be a matter of getting another such bill adopted by the house and having it sent here, getting agreement on it, and who knows who is going to be there and what the numbers are going to be in the house. It is unpredictable.
I think it is something that is worth passing at this point because it will force the issue back in the new Parliament, if this passes, because I'm sure there will be members of the house who will want to change this, depending on whether there's a majority or a minority situation. If there's a minority, compromise will be tougher to get, but they will work at it. Parties will realize the importance of coming up with some deal on this issue that can work.
Sober second thought of the Senate, in my view, is invaluable to our democratic process, to our legislative process. Looking at it is fine, but because of the time limit in this case, I would urge the adoption of the bill by the Senate just to get the bill assented to so that we have a law.
I'm sure there will be pressure to change this law because, as my colleague and I both say, it isn't perfect. However, the changes can come in the next Parliament. There's lots of time to get at it and work at it. Again, I'm sure this committee would have input on what is in that bill when it gets here, if one is passed in the House of Commons. That's my approach to it.
Mr. Dion: Mine is a bit different. If you accept the one of Mr. Milliken, you don't stop the bill. You may say, as a senator, I think these rules are not good for democracy, but our colleagues in the house voted for it. It is not that we are rubber-stamping it. It is just that our colleagues of the house made all the amendments that were needed, unless you reject the bill in its substance. We will not reject the bill in substance, but we will accept the bill as it is because it will be optional and it will be for each party to decide if they will apply the rules.
Mr. Milliken just gave another expression of the reason why I will convince, I hope, my party not to accept these rules, which is that we will come with a deal with other parties. Why deal with other parties about the rules of my own party? It happens that I think that Liberal assemblies are better to choose the rules for the Liberal Party than an assembly where the Conservatives are a majority. My Conservative colleagues have the same view the other way around, so that is why I don't want a deal on internal rules of parties. It is for each party to find their own rules.
Senator Wells: Thank you, gentlemen, for coming. Mr. Dion, I want to do a follow-up on your very last point on the internal rules of a party. Many of the provisions in this bill — and you may know that I'm against many provisions in this bill and have been public on that — I would see as party issues rather than things that should be codified in Canadian legislation, in Canadian law. Deselection and selection of a leader I think is one. Selection of a caucus chair. It seems such a minor thing that it should be dealt with by a caucus and by a party. Expulsion and readmission of a member, and even the definition of a caucus. In our current state, the Liberal leader, Mr. Trudeau, has defined caucus as absent of senators, or just members of the House of Commons. The Conservative Party has maintained the traditional definition.
Do you see any issue with this being codified in law versus remaining an issue that should be dealt with within the individual parties? I ask both of you that question.
Mr. Dion: I think we should avoid as much as possible legislating the internal democratic rules of political parties. We know the exception is about the financing of parties. This is to have an equal, common ground between parties. You cannot have a spending limit dependent on the party. You need to have one for all parties when an election is coming. Otherwise, leave that to the parties. That is what other democracies are doing.
I just mentioned the case of Australia. After a severe defeat, the Australian Labor Party came to the conclusion that they cannot run with the leader and removed the leader in order to run with a new leader, and then the leader of the Liberal Conservative party said, "Don't vote for the leader. You will never know who you will put in charge of your tax money. If you vote for us, I will be the leader, and I will tell you that.'' He won with that. So the Labor Party said we can't continue this way. They decided to have a threshold that is higher. Instead of 50 per cent, it is now 60 per cent of support you need to remove the leader if it is the Leader of the Opposition and 75 per cent if it's the Prime Minister. I'm not saying these are good rules or bad rules. I'm just saying what they did because there was no law preventing them from doing so. Why do that in Canada and put all parties in the same straitjacket? I think that would be a mistake.
It was mostly a problem with the first version of the bill. It is still a problem now, but at least we have an opportunity for each of us who think this way to make our point within our own caucuses after the election.
Mr. Milliken: You can see his reflection is as a former leader. I don't have that same experience.
I feel a little out of it. I should point out that I haven't sat in a caucus meeting since 2001 when I was elected Speaker, so I'm not involved in caucus discussions and feel a little out of it in terms of offering opinions on this subject. On the other hand, I do feel it is important that members are free to express their views, not just in caucus but in the house. As Speaker, my concern has been that significant restrictions are being placed on that by parties because they control who is going to be speaking in the house. That has concerned me. I have spoken about it in public a lot for many years, and it does concern me.
Part of that is this discipline issue and who can exert discipline, if somebody can be kicked out of the caucus and who is kicking them out and so on. Those kinds of rules in this bill are very important in establishing power among members of Parliament but, in my view, are being eroded if not taken away under our current structure. That's why I'm supporting the bill. It is flawed, and I have said that, but I think it is important that we start something here that gives them additional powers. Yes, you can negotiate after and change this and come up with rules that are more suitable to different parties. The rules could be changed so that there's a minimum in the bill and the parties are free to make other alternatives, of course, but the bill would specify a minimum rate of participation or a rate of voting in order to decide on a leader's or a member's continuing membership in a caucus and all that sort of stuff. I don't care if the figures are altered somewhat. My point is that we need to have some kind of rules governing this so that members aren't excluded by dictation, or the leaders dictate that that member is out. In my view, that is not correct. It should not happen. It should be a caucus decision, because we are caucus colleagues when we are meeting in a group like that. The members of that caucus should have some say in it.
That's why, if the bill is passed, it is going to put a lump in front of the next Parliament that members are going to have to deal with. Leaders will be particularly keen to deal with it. It will have to be dealt with. That's a good thing because it will force the issue back. It may be that the bill is repealed, but more likely, in my view, there will be some deal to pass a bill amending it and come up with something that can be better than this and that the Senate can give sober second thought to a second time when it comes back here.
In some caucuses, I know senators are members, and I think that's important. Their participation is important.
Senator Furey: Thank you, gentlemen, for taking the time to be with us this morning.
Mr. Dion, as you rightly pointed out, proposed section 49.8 of the bill puts the responsibility on the shoulders of members of the House of Commons. Are you satisfied that while you think it is a bad bill, this procedure, which allows members to accept or reject the bill, if it were to become law, with a simple majority, is an appropriate and adequate safeguard that really protects against what you see as the bad elements of the bill?
Mr. Dion: It is a safeguard. It is not a certainty. Maybe Mr. Milliken's view will prevail. I will do my best, if I'm reelected and still part of the caucus after the election, to convince my colleagues that there are many other ways, and I hope we will be elected with these others ways. I have a list here for improving democracy other than to create rules that do not exist in other countries and that would infringe on the democratic rights of every party to have their own rules chosen by themselves.
Senator Furey: You are satisfied that it is adequate enough to —
Mr. Dion: I'm pleased to have this opportunity that I would not have had with the first version of the bill. That would have been a straitjacket for all parties. That means the Conservative majority would have decided on the constitution of the Liberal Party of Canada. What a bad precedent. The precedent may go the other way around next time. I was very adamantly against the first version of the bill. I'm still against the second one, but at least there is a safeguard that I will try to use for the best of Canadian democracy.
Senator Furey: Let's say there was no Bill C-586. What is to prevent the caucus from revolting against its leader now?
Mr. Dion: That's a real problem I have with this bill, like if the atomic bomb which is to expel a candidate was a daily preoccupation of every member. It is not true at all. It is not the way I see it. Mostly in the Liberal Party, at least, the discipline we have comes from the caucus itself. The caucus insists we vote together. You have been part of this caucus. You know what it is. We don't like when a colleague goes and freelances and comes with something that has not been discussed and agreed to.
Sometimes the leader may come with something that is a bit at odds with the caucus, but most of the time, after a discussion, they either will express the view that is not far away from the kind of consensus that we have built.
So you decide that you have the leader in one way and the caucus the other way. No, party discipline comes a lot at the request of the caucus. Many colleagues feel that it would be easier for them to express their view if they could say, "You know, it is the view of the caucus,'' than if they have to justify why they did not express the view of the colleague, who spoke out against the view of the caucus. I'm not sure if I'm clear with what I'm saying.
I'm saying that power struggles within a caucus are much more complicated than a fight between a nice caucus and a bad leader.
Senator McIntyre: Thank you, gentlemen, for your presentations. My question has to do with the courts and judicial review. I draw your attention to proposed new section 49.7 of the Parliament of Canada Act. As you know, it is the bar against judicial review. This kind of clause is often referred to as the privative clause.
Generally speaking, courts have taken a hands-off attitude, or at least have held that in matters relating to the selection of a candidate or of a party's leaders they will generally not interfere. There are exceptions, of course. The reason why the courts will not interfere is because it seems that they have seen political parties as private entities, private associations, therefore putting this view beyond the reach of judicial review for most purposes.
Bearing this in mind, and in your view, should this proposed section 49.7 remain unamended? Are there other provisions or aspects of this bill that ought to remain unamended?
Mr. Milliken: I don't have strong views on this. I don't know why you would need to have judicial review of a decision of caucus because they're not changes in the law. I think the judicial review should be on legal procedure.
Senator McIntyre: Now it will be codified.
Mr. Milliken: It is codified. The caucus has a fair bit of flexibility in it and what they can do. I don't think you need to have judicial review to make sure that everything was done in accordance with the code. That would be a matter for the caucus to make a decision on. If there was an argument about it, presumably the chair of the caucus could say, "The vote that was held the other day was faulty because X number of members weren't notified that it was going to happen. So I'm ruling it out of order, and we will have another.''
You can have that argument within the caucus. I don't think it is necessary to have a judicial review. I can see why they wouldn't bother putting it there. To my recollection, almost all the decisions that are taken under these rules can be appealed a second time. You can have another vote on the same issue, if something else happens.
It is not as though these are final, binding decisions, in most cases. They're ones that may have a significant impact — if you have a vote to put the leader out. On the other hand, if the party reelects the leader after the caucus has rejected him or her, then the caucus is stuck again. They would have to have another vote. It would be tough for them to do it if there had been another party convention where the leader got reelected. It's that kind of situation, in my view.
Mr. Dion: I'm not sure I will answer your question. I will say this: It's not because something is not entrenched in the law that it does not exist. There is no law about love, but love exists.
Senator Cools: Oh, dear.
Mr. Milliken: So the caucus doesn't have the power to remove the leader by law or by the constitution of the party.
Senator Cools: It does.
Mr. Dion: Only the party can remove the leader through a review, which is the case in my party and your party. It doesn't mean the caucus is powerless. The caucus may express to the leader in very clear ways that he cannot lead anymore. If the caucus does that, it is very likely because the party is of the same view. I think it is better to make the decision this way than by a formal vote. The leader will leave when the leader sees that he cannot lead anymore.
To have a formal vote that would be triggered by 20 per cent, I think it is wrong. I'm not aware of many democracies doing it. The ones that Mr. Chong mentioned choose the leader by the caucus. We decided to do that otherwise. My party has done that for almost a century now. So we need to take that into account. We cannot legislate things that are completely contradicting themselves.
It doesn't mean that the caucus will not have its say about if the leader may stay as the leader. They will tell you. I know it. A caucus may signal to a leader that he has lost the confidence not only of the caucus but of the grassroots as well.
The Chair: I have a long list of questions. I'm not sure if either or both of you are in a rush to leave.
Mr. Dion: I will stay for a bit, but as you know, I will have to leave because we lost a former premier in Quebec, Mr. Parizeau, and it seems I have some requests. But I'm willing to stay for a while.
The Chair: My condolences.
Does the rest of the committee agree that we continue with questions?
Hon. Senators: Agreed.
The Chair: I see no disagreement. Thank you, Mr. Milliken, as well.
Senator Martin: I want to thank both of you for being here at the committee. Mr. Dion, especially from your perspective as a former leader, and to both of you, given the respect with which you have presented your points of view, I want to just say for the record how much I appreciate that personally, and I know my colleagues do as well. As you say, as two houses in a bicameral system, we coexist and complement each one another. That respect is both ways.
Mr. Dion, you were convincing today. There's a key point I want to ask you a second question on. You will be re- elected; I'm certain.
Mr. Dion: Thank you.
Senator Martin: That gives me a certain level of confidence that you would be speaking out against opting for this legislation, should it pass in the next Parliament. But if you were not re-elected — and the fifth point which you raised as to whether or not a caucus fairly represents the national perspective because in certain parties' cases, at this time, it does not. I'm a Westerner, so I know that we are under-represented already, both in the house and in the Senate. Decisions that are made by potentially 20 per cent of the caucus — even a smaller per cent — don't necessarily reflect my priority as a Westerner because even within the caucus, those differences can remain.
I'm sure you were as convincing to your colleagues in the house before this was voted at third reading, and yet the numbers show that overwhelmingly the house did support this bill. If this were to be codified in law, how much more or less convincing would you be in speaking to your colleagues after the fact, when the numbers show that they had voted for this — so to opt out of something that the house had overwhelmingly supported in the previous Parliament? I'm just wondering about your effectiveness post-election. I'm hearing some words that are raising some red flags. I hear both of you say that it is flawed and that this should be a caucus decision.
I am a member of the caucus, and this does exclude me and others around this table. Mr. Milliken, you talk about the changes to come. In the next Parliament there would be an opportunity to revisit this and do a better job in the house so that we can all feel satisfied that it is not so flawed and that change is imminent.
Post-election, I'm wondering what your effectiveness will be in convincing your colleagues and how this will impact it. There are unintended consequences that many, I'm sure, can also envision, but I hear many things that concern me. If you could speak to your fifth point that the caucus may not reflect the national perspective in that concern. How confident do you feel about how you will be able to convince your party not to adopt a bill that was passed in this Parliament?
Mr. Dion: Thank you very much. You pointed out the contradiction in which I put myself. It is not your fault; it is my fault. The more I explain why I dislike these rules, the more I am convincing you, maybe, to vote against it.
But I'm asking you to let it go. I'm asking you to let it go because I think it is your constitutional duty at this point. Not to say that the house is right, but to say that, as a chamber of sober second thought, under the circumstances there's nothing else that we can do. That's what I'm proposing that you do, but it is for you to decide at this point. It is not for me to dictate your vote. You are free to choose what you want, but it's what I would do if I were in your shoes, I think.
On the first point, yes, Canada is a federation. Mr. Chong is comparing with countries that are not federations or with very centralized ones, like Australia. Canada is much more decentralized than Australia, much more diverse, even in the size of the states. Canada has very big provinces and very small ones, and in Australia it is more even. They have only six states, and the four smaller ones and the four bigger ones have a veto in charters. That's completely different as a federation. So how can we have legislation that doesn't say a word about this reality? Two of the parties, the Conservatives and the Liberals, are very careful to take that into account in the way they choose the leader. As you know, the leader is chosen with equality of ridings. In the case of the Liberal Party, a northern, rural riding of Alberta has the same weight in choosing a leader as a very central riding of Toronto, with thousands and thousands of members. They have only 100 members in northern Alberta. Why that way of doing it? To be sure that the party will take into account the sensitivities of the whole country when choosing the leader. Then, to remove the leader, you would give it to a body where you may not have one Albertan elected in the caucus or may have very few Quebecers, and it's not a problem? It's a big problem for me, in the way I understand this federation.
Senator Martin: So you are concerned about the provision, then, that the 20 per cent to trigger a review could potentially be from one province, for example, in the case of the NDP, where they have more members in Quebec versus other parts of the country. So that provision would be part of this law. You have concerns with it, but —
Mr. Dion: The 20 per cent and the 50 per cent to remove the leader after may be done by a caucus that has no view or very little view of a province or a region of our great country. That's the difficulty I have with this bill, one of the difficulties.
Senator Tkachuk: I'd like to welcome the witnesses and say that I agree very much with Mr. Dion. I oppose this bill. I don't really like this bill, and it seems odd that we're sitting here, Mr. Dion, with you saying that you oppose the bill but that we should vote for it and Mr. Milliken saying, "You should vote for the bill because I like it, but I know that, when we come back, they're going to redraw it.''
It's not our fault that Parliament is ending. Parliament just happens to be ending. The house wants to come back in July. If they really like this bill, they can come back in July and pass this bill. We were not doing anything by defeating this bill or amending the bill. By defeating it it's over, but then, when they come back in the next Parliament, they can bring in a new one, or, if we amend the bill, they can come back in July, if they really like this bill, and deal with it.
It's a bit ironic, too — and I'd like comments on some of this from both witnesses. Those poor old backbenchers, and here we are. What are we debating? We're debating a backbencher bill that affects the way political parties operate and actually wants to make legislation as to how political parties operate. In 23 years, I've never seen so many private members' bills being considered by the Senate, without a doubt more than we've ever had before. This is healthy for democracy and good for MPs.
I'd like to know, in the other countries that are being mentioned, how wonderful it is that caucus members can get rid of the leader and all of this stuff. There's no evidence whatsoever. You can comment on it if you want, but I don't see any evidence. Is there any evidence whatsoever that they have better democracies than we have, or are our democratic institutions being threatened by the fact that political parties choose leaders rather than caucuses? Show me a better example.
Mr. Milliken: My own view is that it's certainly no worse, and it may well be better. It depends on the leader. Some leaders are more, shall I say, dictatorial than others. That is my impression. I don't claim to have a whole lot of experience. As I say, I've been out of this for a number of years in terms of caucus meetings, so I haven't seen what's going on. But when you watch the British house as an example, I think there's much more independence shown on the part of members in terms of the questions they can ask, in terms of their participation in debate and so on there, that I have even read about recently, pointing out that they're not under the control of their whips and their leaders the way Canadian MPs are in terms of their participation in the house. I think that has changed significantly since I was first elected. It's a change.
Now, that isn't dealt with in this bill, but the powers of leaders are, in some ways, dealt with in this bill. That's where I believe a lot of this change is coming from, leaders saying, "I don't want a member making some irresponsible statement in the house on this subject. This is the party line. The speeches are to follow this.'' Members are given text to read.
Senator Cools: The office writes them, too.
Mr. Milliken: The office writes them. In the old days, you couldn't read a speech in the House of Commons. When I was first elected, you had to make up your own speech as you stood there. You could not read it, and, if you were reading, a member would get up on a point of order and say, "The honourable member is reading a speech.'' The Speaker would have to rebuke the member, but not anymore. The list of speakers is controlled by the whips in house. If you want to get on the list, you don't go to the Speaker. You go to the whips and get put on the list, and the Speaker follows the list that is given to the clerks by the whips. That's now the practice. It was not the practice when I was first elected.
So it has really changed, in my view, the power of leaders in the House of Commons. A bill that does something about that, in my view, is worthwhile. This has its flaws, as I've said, but, if I had the choice, I would still support it because in the next Parliament, they might be able to make some changes to it. The pressure will be on to make changes to it. I have no doubt that, from the leaders' perspective at least, there would be suggestions for that, and some of the members would come up with ideas too. This could be discussed again. If it isn't passed and there's a majority government, the pressure will be on not to do anything, just to leave things the way they are.
Senator Tkachuk: Politics is a team game, so someone has to lead the team and exercise control of the team. A member has every right to go somewhere else if he doesn't like it where he is. He can go and run as an independent and see how well he does without the C or the L by his name, or he can go to another political party if he doesn't like it. There are a lot of options for all of these members, outside of the fact that they want to now take upon themselves the duty that belongs to the political party to choose or not choose a leader.
Mr. Milliken: Well, it's the same situation in the U.K., but their members get more independence than ours do.
Senator Tkachuk: But so what?
Mr. Milliken: I think it's a good thing.
The Chair: We will save the debate for the Senate, if we may. Thank you very much. I do have a follow-up question. This is an optional bill, Mr. Milliken. Ultimately, there could be no change. We could come back in the fall, if this were passed as is, and there could be no change because no one has taken on the option of adopting what's in this bill. We will be exactly where we are, and the house would have to draft new legislation that isn't optional. Is that not true as well? This is optional legislation. Parties don't have to adopt the sections of the bill in relation to —
Senator Cools: It's a free vote.
Mr. Milliken: Oh, I see. Is it? Okay.
The Chair: It's optional legislation, so, ultimately, we could end up exactly where we are in six months even if the bill is passed. I didn't know if you knew that.
Mr. Milliken: I missed that.
Senator Seidman: Thank you both very much for being with us this morning.
Mr. Dion, you've made a very convincing case as to how potentially destructive this bill could be. You said that it would be a mistake for Canada to become the only democracy to impose, by law, a set of identical internal democratic rules to all parties and recognize parliamentary caucuses. Yet, you said that senators have no choice as these are not what you call "exceptional circumstances.'' If we pass this bill, do you see any potential negative consequences? In other words, if we senators and the Senate pass this bill, do you see any potential negative consequences?
Mr. Dion: I didn't say, senator, that you have no choice. You have a choice. The choice is yours. You invited me to give you my view, and I gave you my view. If I were a member of the Senate, of the chamber of scrutiny, I would say, "We have scrutinized the bill. Some of us think it's a good bill, like Mr. Milliken says, or think it's not good, like I say. We think at this point that we'll not amend the bill. We don't see what amendments we would do at this point, so we will not veto the bill because we are the chamber of scrutiny.'' The court confirmed last year what your constitutional duty is. I know it's not easy, but it's why you're so well paid.
What was the other point?
Senator Seidman: You said that we have no choice. I qualified that by saying that you said these are not exceptional circumstances and that is how you see our role. My question to you was do you see any potential negative consequences to the Senate passing the bill — to us doing what you ask because these are not what you call "exceptional circumstances''?
Mr. Dion: If the Senate passes the bill, the negative consequence is the risk that the bill will become the law of the land if caucuses accept the rules. There is a lot of risk in politics, and this is one of them. If you veto the bill, it will be poorly received. Each time the Senate vetoes a bill, it is poorly received. Not each time but often it's perceived as something you should avoid doing since you are not the elected chamber. In circumstances that we know, it may be even worse. It's not a consideration that I want to mention too much because I think you should do what you think is right, including what you think the proper role of the Senate is in our political system.
Senator Seidman: Mr. Milliken, do you have something to offer on that question?
Mr. Milliken: I agree with what Mr. Dion said in this regard. The Senate's role in this is important. I'm not a big fan of the bill, and I don't claim that it is wonderful because it could be improved. But getting it improved now is going to be next to impossible. It will be in the next Parliament that it will be improved. If this bill doesn't pass, the pressure will be on not to do another in the next Parliament, I'm sure. It's a matter of whether one can get through whatever happens in there because the parties have different views on what should be in or out of these things. Obviously, this was negotiated in committee. It will be interesting to see what happens in the next Parliament with the same thing.
If this is on the table because this has been passed, then in my view there will be a lot more enthusiasm about bringing in changes to it next time around than there would be if nothing has been passed. That's part of the reason I'm saying it's worth getting it through, not because it's great but because it will engender further discussion and debate on the issue after the next election.
Senator Doyle: Coming back to the MPs, isn't it fair, Mr. Dion, to say that because the bill passed 267 to 17, the house is overwhelmingly in favour of the Senate passing the bill? The bill involves party politics only to a certain extent. It's not a C-51 or a C-377 or a budget bill. Should we in the Senate be as concerned about this bill as we would be about a budget bill or a Bill C-377? Shouldn't the parties look after themselves in this respect? I know what Mr. Chong said about codifying it in law and that kind of thing.
Mr. Dion: I heard what Mr. Chong told you — that this kind of bill is only about the house, that it's not about the Senate, that it's none of your business so you should rubber-stamp it, that it's not the kind of bill where sober second thought should apply. I completely disagree, but the sober second thought should lead you to the conclusion to let the bill go.
Senator Doyle: What was that again?
Mr. Dion: The sober-second-thought principle in this circumstance should bring you to the point of not vetoing the bill. My argument is completely different than that of Mr. Chong, but I agree that the conclusion is the same.
Senator Cools: I would like to put a policy or a practice or lex parliamenti, law of Parliament, to this committee that nobody seems to be considering. The role of a minister in private members' bills is quite real. If a member of the government or the government discovers that a private member's bill has been able to recruit considerable majority support, the principle is that the minister is supposed to approach the private member and put the resources of the government, the lawyers and everybody behind it to perfect any imperfections. That is the law, colleagues.
In other words, ministers cannot sit idly by and just let bad bills pass. That is the principle. Let us understand. This bill passed, as somebody just said, 267 to 17. Certainly the ministers had a full opportunity to say, "This bill has a few imperfections. Let us negotiate and sit down with the lawyers and the professionals.'' They're supposed to put the resources of government at the disposal of the private member. That is not my opinion but the opinion of the sages.
In respect of choosing leaders, caucuses have a massive role not in the party but in the convention. Caucuses are the important factor in leadership. In point of fact, again in law, the House of Commons' majority chooses the Prime Minister. Let us make no mistake about that. I have lived through caucuses that were ready to approach the Governor General; so let's not kid ourselves about the reality.
The House of Commons' majority chooses the Prime Minister. They determine that. It's called "confidence.'' If the majority of members of a caucus one day discover that they can no longer support that Prime Minister, the process is exactly the same. They visit the Governor General, just as the individual who was chosen by them goes to visit the Governor General. That is the law. I'm just putting this out.
Any imperfections in this bill have been there for a long time. I would say that the government and the minister responsible for that subject matter, I'm not sure who it is but let's just say for the sake of argument it was the Department of Justice and the Attorney General, had a duty to make those resources available. At stake here was the majority support of that bill. If you're saying that the ministry saw these imperfections and was quite prepared to let the bill pass with imperfections, it says something about the ministry, not about the private member. Colleagues, ministers have a duty to the house to respect the will of the house and to influence the house in those moments. I just wanted to put that out.
We keep raising democracy. This is very new language in our parliamentary system. Everything is for our democracy. We used to use the language "parliamentary governance.'' That was always the Americans. Remember? "Democracy'' — the Brits and the Westminster systems always said this. We're not dealing here with democracy. We're dealing here with the current, unacceptable absolutism that leaders are exercising and destroying people's careers. I found that whole matter with those two members very disturbing indeed.
I've been in this place for 30 years, and I have heard lots of caucuses veering onto the stage of going to the GG themselves.
The Chair: Thank you very much. I thought you were about to arm wrestle over this.
Senator Cools: There's no need to arm wrestle.
The Chair: No. Mr. Dion and Mr. Milliken, the final question I will leave to Senator Wells. We are running out of time. Mr. Dion, thank you again for giving us a bit of extra time.
Senator Wells: Thank you, gentlemen. Your input has been valuable and in many ways constructive.
The governance system we have in Canada is very stable. We have a good system. Regardless of what leaders are in place, the system dictates and results in stability. There are few instances in our past where it has been otherwise. It works well and is a good system. I think many countries would like to have our system.
I think what this bill does is legislate the option for instability. If we have 20 per cent that can question a leader who happens to be Prime Minister, and if they can rally the support of the few that are aren't part of the electorate or even part of the party membership, then that would cause an interim leader, obviously not chosen through Canada's electoral process, to be replaced by that interim prime minister; or the Prime Minister would then be replaced by a prime minister chosen by the membership of one party. So we have two prime ministers in a row that had not had the imprimatur of the electorate of Canada through our process.
Can you comment on that and what I see as legislating instability? Can you comment on that possibly unintended consequence of this legislation, should it pass?
Mr. Dion: Yes. In Australia the Labor Party experimented with the unintended consequences of the rules they chose themselves. You're right that the voters give so much weight to the personality of the leader that after the caucus changes the leader, they change one of the main reasons why voters voted for the party and the candidates. That's a difficulty we may have with this bill.
The other point is that if someone disagrees with this bill, that doesn't mean that this someone agrees with everything happening now and supports the status quo. I happen to think that our parliamentary democracy is in bad shape. This is not the moment to discuss this issue, but I may disagree with you about the causes of it and about what the current Prime Minister did to our democracy. You have your view and I have mine and it's likely to be very different.
I have a list of things that we need to change in this democracy. We don't have the time to go through them now, but I would mention, for example, tighter parliamentary control of public finances. It's awful how that has been weakened over time. Then there's increased powers and budgets for the Parliamentary Budget Officer. The current Prime Minister created the budget of the Parliamentary Budget Officer but does not give to this officer all the means he needs. Next is better respect for the right to access of information. We used to have better laws for access to information. It's one of the worst now. Then there are stricter regulations on government advertising. We will not go there today. We also need regulations to restrict secret parliamentary committee meetings, omnibus bills and house prorogations; to increase powers and resources for Elections Canada; to have stricter rules, more transfer and control of parliamentarians' expenditures; to have a more independent, less partisan Senate; to search for a voting system more appropriate for Canadian democracy.
There are a lot of things we may do. I don't want to give the sense that if you reject this bill, then you are for the status quo. I'm saying that the bill the way it is framed will not help our democracy.
Senator Wells: I would agree with that. Mr. Milliken, please?
Mr. Milliken: Even if the bill was there and the leader was changed or put out, it's a temporary thing. The party has to have another convention and the leader might get re-elected at the convention, or there might be a new leader at the convention and not the one chosen by the caucus. I stress that the caucus choice is for a limited time. I don't think that's a disaster from, shall I say, a procedural parliamentary point of view, because in my view the caucus should have a say in this. If we're going to have a nation-wide vote of all the members of the party to choose a leader, I prefer to give the caucus a veto on who's chosen because we are a parliamentary democracy, not some presidential one. If we wanted to have a presidential vote and switch to the American model, where you have a president instead of a prime minister, fine. In my view, however, the Prime Minister should be the servant but leader of the members who are elected in the caucus, and they should be working together as a team. You're breaking down this team thing if you're having a leader elected, in my view, by a national vote of all the members of the party and all their supporters. I'm not a big fan because that person then says, "I was elected by more people than you were so shut up and do what I say or else you're out.'' That isn't the way a parliamentary democracy should function, in my view.
I think that we have a chance here to move on it. It's a slight move, and I stress that. As I say, I'm not wildly in favour of all the details of this. I'd prefer something different, but it's a start. That's why I'm urging support for the bill, to get it there. After the next election, I'm quite sure whoever is elected will want to make changes to this to perhaps make it function better or be more reasonable in its approach, and that's fine. I think a compromise could be worked out, with vigorous discussion between both houses but between all the caucuses and all that sort of thing. I think that could be very helpful.
Senator Wells: Thank you, Mr. Milliken and Mr. Dion.
The Chair: I want to thank both of you for your time. I know it was extended, and we appreciate it.
We have only about 25 minutes. I know everyone is running today, from 11:30 on. Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-586, An Act to amend the Canada Elections Act and the Parliament of Canada Act (candidacy and caucus reforms)?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall the preamble stand postponed?
Some Hon. Senators: Agreed.
Senator Tkachuk: On division.
The Chair: Shall clause 1, which contains the short title, stand postponed?
Senator Tkachuk: On division.
The Chair: On division. Shall clause 2 carry?
Senator Tkachuk: On division.
Senator Furey: Do you want a recorded vote on that, Senator Tkachuk?
The Chair: I think he's doing exactly that. Shall clause 3 carry?
Senator Tkachuk: On division.
An Hon. Senator: On division.
The Chair: On division. Shall clause 4 carry?
Senator Tkachuk: On division.
An Hon. Senator: On division.
Senator Wells: I have some things that I would like to amend. I don't know, with consideration, if this is the time to amend, or suggest amendments, or some other forum.
The Chair: If I may, because there are a couple of areas that I was considering, and following discussion with people in this room, actually, I have decided that instead I will bring any potential amendments to the Senate chamber so that there will be a more fulsome discussion and debate before I did that. It is entirely up to you. I know some discussion here has surrounded the place for it. I know I and Senator Furey had the discussion as well.
Senator Cools: Chairman, you can't take the amendments to the chamber. The amendments could only be made by the person who wants the amendments.
The Chair: My own amendments, senator. I was giving my perspective. There have been discussions. That is an option. You can do it here or allow them to go to the Senate chamber.
Senator Wells: In that respect, I would like to voice them here to put them on the record — not the specific detail, but the general issue I have.
The Chair: Please.
Senator Cools: Chairman, I think we should be proceeding by recorded votes.
The Chair: We only have one person on division on each of those.
Senator Cools: It doesn't matter.
Senator Fraser: Two.
The Chair: Two, sorry. I didn't realize.
Senator Cools: It would be better if we divided so that there's a record. The record should be clear.
The Chair: Sure. I will allow Senator Wells to continue, and then we will continue.
Senator Cools: Is he moving or discussing?
The Chair: He is just discussing.
Senator Wells: I would like to put on the record some of the issues I have with some of the provisions of the bill and then take some time to present them as amendments in the chamber when it goes there.
The Chair: Sorry. Continue, senator.
Senator Wells: I will repeat. What I would like to do is talk in general terms about some of the provisions of the bill that I have issue with and then take some time and present them as amendments when we go to the chamber.
The Chair: Please.
Senator Furey: Before you start, Senator Wells, could I ask you a question, chair?
The Chair: Sure.
Senator Furey: These comments are not going to be part of observations to the bill or anything. They're just on the record for Senator Wells when it goes to the chamber.
The Chair: These are on the record for Senator Wells.
Senator Furey: Not as observations?
The Chair: Not at this point, no.
Senator Cools: Under what rubric would he be? Right now we're in clause by clause, which means you can speak to the motion and you can propose amendments, but you just can't have a general discussion.
The Chair: In relation to clause 4, he could bring comments forward, as could other senators. Each time, actually.
Senator Cools: Every one of us can do the same.
The Chair: If they wish. Senator, continue.
Senator Wells: Thank you. In clause 4 on page 2 —
The Chair: Generally, discussion.
Senator Wells: For sure. I won't go to the specifics.
The Chair: General discussion, if you don't mind.
Senator Wells: I have an issue. I want to ensure that we respect the will of the members of the House of Commons with respect to expelling or readmitting their own members except when that member is the party leader, so I would propose to word an amendment to that.
The Chair: You are proposing that you will be bringing forward —
Senator Wells: Correct.
The Chair: Thank you.
Senator Wells: That's the expulsion and the readmission of members except when that member is the party leader. Essentially, it is because that party leader is chosen not by the electorate, like members of the House of Commons are, but they're chosen by a different group, generally membership.
The second issue I have would be moving the 20 per cent condition to a majority.
Senator Cools: What section are you speaking of?
The Chair: It is proposed section 49.5(2).
Senator Wells: That's right.
Senator Cools: I'm glad that you know, chairman.
Senator Wells: Clause 4, page 3.
Senator Cools: Obviously you have had discussion.
Senator Wells: That would be moving the 20 per cent to majority for calling into question the leadership of the party. I would also move —
Senator Cools: Are you not moving —
Senator Wells: Sorry. I would also suggest that I will present an amendment in chamber with respect to the secret ballot among members of caucus —
Senator Cools: What section are you speaking to now?
Senator Wells: This is clause 4 on page 3. It is replacing lines 37, 38 and 39.
Senator Cools: Okay.
The Chair: Thank you.
Senator Wells: To a review within 24 months as opposed to immediate.
Senator Cools: This is a little unusual. Usually members keep their final amendments, especially at the stage of the bill, to themselves.
Senator Wells: In the spirit of transparency —
The Chair: If I may, he's not —
Senator Cools: This is very unusual, what is happening right now.
The Chair: He's raising concerns he has. I think it is to ensure that, if later he does bring amendments forward, he allows those concerns to be —
Senator Cools: But that needs no insurance. He has that right as a senator.
The Chair: I understand that. It is also an option.
Senator Cools: It is just that the clause by clause is supposed to guarantee individuals here to debate the particular clause. At the end of it, the conclusion is a vote. He is saying he's not going to vote on these things, or are you planning to? I don't know what is happening.
The Chair: He's raising debatable items within the clause.
Senator Cools: It is still quite unusual, what is happening.
The Chair: It is unusual.
Senator Cools: There's nothing wrong with anything unusual, but it should be within the frame of what we usually do.
Senator Wells: Also, consequential to some of my earlier comments, it would remove the paragraph on clause 4, page 4, that removes the appointment of an interim leader. I would think that would be no longer necessary if the party would have 24 months to do a leadership review.
Finally, and it's interesting because Mr. Dion mentioned it, the chair of the caucus shall order that a secret ballot, I would say it would not necessarily be a secret ballot; that would be a hand ballot or a counted vote. And that would be consequential to removing of an earlier clause with respect to selecting an interim leader.
The Chair: Thank you very much, senator. I'll now move to clause 4 and, as requested, there will be a recorded vote. Shall clause 4 carry?
Senator Fraser: On division.
The Chair: I will now ask the clerk to call a vote.
Charles Robert, Clerk of the Committee: Senator White?
The Chair: Yes.
Mr. Robert: Senator Batters?
Senator Batters: Yes.
Mr. Robert: Senator Cools?
Senator Cools: Carried.
Mr. Robert: Senator Doyle?
Senator Doyle: Could you tell me again what we're doing on clause 4? I want to be clear.
The Chair: The clause remains as it is.
Senator Doyle: The clause remains as it is. Okay.
The Chair: There are no suggested changes. Shall it carry, sir?
Senator Doyle: Yes.
Mr. Robert: Senator Frum?
Senator Frum: Yes.
Mr. Robert: Senator Fraser?
Senator Fraser: No.
Mr. Robert: Senator Furey?
Senator Furey: Yes.
Mr. Robert: Senator Jaffer?
Senator Jaffer: Yes.
Mr. Robert: Senator Martin?
Senator Martin: No.
Mr. Robert: Senator McIntyre?
Senator McIntyre: Yes.
Mr. Robert: Senator Seidman?
Senator Seidman: Yes.
Mr. Robert: Senator Smith?
Senator D. Smith: Yes.
Mr. Robert: Senator Tkachuk?
Senator Tkachuk: No.
Mr. Robert: Senator Wells?
Senator Wells: No.
The Chair: Based on that, clause 4 carries.
Senator D. Smith: What was the tally?
Mr. Robert: Ten in favour, four against.
The Chair: Shall clause 5 carry?
Senator Fraser: On division.
The Chair: I'll take a recorded vote, please.
Senator Batters: Doesn't clause 5 say "delete it''?
The Chair: Not on mine.
Senator Fraser: It's coming into force.
Mr. Robert: Senator White?
The Chair: Yes.
Mr. Robert: Senator Batters?
Senator Batters: Yes.
Mr. Robert: Senator Cools?
Senator Cools: Yes.
Mr. Robert: Senator Doyle?
Senator Doyle: Yes.
Mr. Robert: Senator Frum?
Senator Frum: Yes.
Mr. Robert: Senator Fraser?
Senator Fraser: No.
Mr. Robert: Senator Furey?
Senator Furey: Yes.
Mr. Robert: Senator Jaffer?
Senator Jaffer: Yes.
Mr. Robert: Senator Martin?
Senator Martin: No.
Mr. Robert: Senator McIntyre?
Senator McIntyre: Yes.
Mr. Robert: Senator Seidman?
Senator Seidman: Yes.
Mr. Robert: Senator Smith?
Senator D. Smith: Yes.
Mr. Robert: Senator Tkachuk?
Senator Tkachuk: No.
Mr. Robert: Senator Wells?
Senator Wells: No.
Mr. Robert: Ten, four again.
The Chair: Carried. Shall clause 6 carry?
Senator Cools: Yes.
The Chair: Agreed?
Some Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, carry?
Sorry, Senator Batters.
Senator Batters: Earlier I had the clauses mixed up. I was chatting with the clerk and asking him about all the numbers, like 49.1, all of those certain parts, and I asked him if that was considered clause 9 and he said yes. That is actually what clause? Sorry, I'm just a little confused here.
Senator Seidman: Clause 4.
Senator Batters: That was clause 4?
The Chair: Yes, and it's on division. We did a recorded vote.
Senator Batters: True, but then I intended to vote no on that particular one. I was confused as to the —
The Chair: They have you voting yes. So we'll reverse that to 9 for and 5 against on clause 4. Okay; we're good?
Senator Batters: So I'm now recorded as voting no on that?
The Chair: Yes.
Senator Batters: Thank you.
The Chair: Shall clause 1, which contains the short title, carry?
Some Hon. Senators: Yes.
The Chair: Shall the preamble carry?
Some Hon. Senators: Yes.
The Chair: Shall the title carry?
Some Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Senator Tkachuk: On division.
The Chair: On division.
We will now do a recorded vote on the bill.
Senator Wells: Chair, I don't know if this is the right time to do this. I will take the advice of your chair. I think it's important that we have an observation somewhere because I will be proposing amendments, or I plan to propose amendments on the floor that this is not a bill that passed committee without some discussion. I'd like that somehow recorded in the observations that this is not, for want of a better term —
Senator Cools: We have not agreed we're going to make observations. That has to be put before us with the observations.
The Chair: Yes.
Senator Cools: We have to agree with that.
The Chair: It would have to be brought forward.
Senator Tkachuk: We can do it at the next meeting.
Senator Cools: No, that would not be fair.
The Chair: So I will ask —
Senator Cools: Good try.
The Chair: Please, senator. I will ask if there are observations, but —
Senator Wells: That would be after?
Senator Martin: That would be after.
The Chair: Yes, we will carry the bill and then I will ask for observations.
Shall the bill carry? It was on division. I will now do a recorded vote.
Mr. Robert: The Honourable Senator White?
The Chair: Yes.
Mr. Robert: Senator Batters?
Senator Batters: Yes.
Mr. Robert: Senator Cools?
Senator Cools: Yes.
Mr. Robert: Senator Doyle?
Senator Doyle: Yes.
Mr. Robert: Senator Frum?
Senator Frum: Yes.
Mr. Robert: Senator Fraser?
Senator Fraser: No.
Mr. Robert: Senator Furey?
Senator Furey: Yes.
Mr. Robert: Senator Jaffer?
Senator Jaffer: Yes.
Mr. Robert: Senator Martin?
Senator Martin: Yes.
Mr. Robert: Senator McIntyre?
Senator McIntyre: Yes.
Mr. Robert: Senator Seidman?
Senator Seidman: Yes.
Mr. Robert: Senator Smith?
Senator D. Smith: Yes.
Mr. Robert: Senator Tkachuk?
Senator Tkachuk: No.
Mr. Robert: Senator Wells?
Senator Wells: No.
Mr. Robert: Eleven to three.
The Chair: Eleven to three; the bill carries.
Now we will have the discussion in relation to observations. Is there a suggestion that we attach observations to this bill?
Senator Cools: I think we should hear the observations first and then decide.
The Chair: We will. I will let Senator Wells do that.
Senator Wells: Thank you. I have got in general my thoughts on observations that I would like it to be noted within what is sent to the Senate that just because this bill passed the committee that it was on the provision that there will be further amendments introduced on the floor of the Senate.
Senator Cools: You can't pass a bill and adopt it here on provision with a condition —
The Chair: Senator Fraser, on response?
Senator Fraser: I believe the chair has given me the floor.
The Chair: I have.
Senator Fraser: I think it might be difficult to frame "observations'' in the way that you suggest, Senator Wells. I think you can pretty well count on it that the debate will refer to the fact that opinion in the committee was divided.
According to the Rules of the Senate, the view of a majority of the committee is the view of the committee. It is not unusual for there to be division, but I don't know how much we're going to gain if we have observations saying there was a division within the committee.
The Chair: If I may.
Senator Fraser: I'm not opposed to this, but I'm not sure it's necessary or indeed easy to frame.
The Chair: If I may, both the record and the recorded vote would indicate there was division, and, in fact, you put on the record at clause 4 your concerns and potential for amendments. My discussion with the clerk would indicate that that is on the record, as would be any other form of observation on a different matter.
Senator Wells: Thank you, chair; just as long as my concerns are covered, and obviously I will bring amendments to the floor.
The Chair: Senator Furey.
Senator Furey: I wanted to reiterate what you said, chair. Senator Wells finds himself in the awkward position where the committee is approving the bill but he wants to speak against it at the next reading when it is referred back to the chamber. I think the fact that there has been a recorded vote clearly stating that Senator Wells is against it opens the door for him to move amendments in the chamber.
The Chair: Okay. Senator Frum.
Senator Frum: I would like to add to that for the record that there are people at the committee who voted in favour of seeing the bill proceed to the chamber from committee. That is an opinion that this is best debated and amendments are best put forward in the chamber, so it's important to put on the record that for those of us who voted in favour of the bill, embedded in that vote is a wish to see this bill debated fully in the chamber and to have the opportunity for members to come forward in the chamber rather than at committee.
I would like that on the record.
The Chair: Thank you very much, senator; so recorded.
Senator Martin, any questions, concerns?
Senator Martin: Similarly, I wanted to first say that I heard clearly Senator Wells' concerns, which is why I did vote no at certain clauses that concerned me as well. But I did vote yes for this bill to go to third reading and to take it to the chamber for that very reason, that it does deserve careful attention then. I just wanted to put that on record as well.
The Chair: Thank you very much. Senator Batters.
Senator Batters: Yes, and I wanted to also voice, for the record, my wholehearted approval of those comments that were just made by my colleagues Senator Frum and Senator Martin.
The Chair: Thank you very much.
Shall I report the bill to the Senate? Agreed?
Some Hon. Senators: Agreed.
The Chair: Thank you very much. Meeting is adjourned.
(The committee adjourned.)