Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 2 - Evidence - June 3, 2014
OTTAWA, Tuesday, June 3, 2014
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day, at 9:30 a.m., pursuant to rule 12-7(2)(a), for the consideration of amendments to the Rules of the Senate; and for the consideration of a draft report.
Senator Vernon White (Chair) in the chair.
[English]
The Chair: Good morning and welcome everyone to the Standing Committee on Rules, Procedures, and the Rights of Parliament for June 3. We will continue discussion as we ended discussion at the last meeting on the subcommittee chaired by Senator Nolin. I'll start with Senator Nolin to walk us through where we were last week and where we're going this week.
Senator Nolin: Thank you, Chair. Colleagues, I presume we all have a copy of the new version of the first report. I have some notes, which I will read. Of course, if you have any questions or comments, I will take them.
Today we are dealing again with the first report of the subcommittee on broadcasting. Last week you received a text reflecting recent discussions. A senator may wish to move this as an amendment to the first report.
[Translation]
According to this second text, prior notice of a motion moving that a non-governmental matter be not further adjourned would have to be given, and it would then be possible to debate this motion.
Let us look at this process by using the example of a bill.
First, this process cannot start unless the bill has been debated for at least three hours and if the order related to its study has already been called at least 15 times. Senators would then have at least three weeks, and perhaps more than five, to study the bill. This provision is found in subsection (1) of the new proposed rule 6-13.
[English]
After the bill has met these two basic conditions, the sponsor or critic can, but is not obliged to, give notice of a motion that debate on the bill be not further adjourned. The notice would be given in the normal way, and one day's notice would be needed. This is found in subsection (2) with a consequential change to rule 5-5.
After the next sitting, the notice of motion will appear on the Notice Paper. When moved, certain special procedures would apply based on the process for debating a motion to allocate time on an item of government business. I refer senators to subsection (3). In particular, debate could not be adjourned and speaking times would be 10 minutes for most senators. The total debate could last a maximum of two and a half hours. The Senate could not adjourn during the debate. The vote could not be deferred.
[Translation]
If the motion is defeated, subsection (4) does not allow a new notice to be given until the two basic conditions — that the bill be debated for an additional period of three hours and be called for consideration at least another 15 times — have been fulfilled.
But if the motion is adopted, the next time the bill is called, debate will continue until the time provided therefor expires, with no possibility of adjournment. The normal rules would apply, except in cases indicated in subsection (5). Once debate has adjourned, subsection (6) stipulates that the final vote can be deferred in the regular fashion. If the Senate is studying an amendment or a subamendment, no vote prior to the final vote on the main motion can be deferred, in accordance with subsection (7), and debate would thus continue until the time provided for the debate has expired.
[English]
Colleagues, we made sure that the report was sent to your offices last week. If you have any comments or questions, I'm ready to answer.
Senator Fraser: I've read the revised version several times. In some ways, it is even more clearly patterned after time allocation for government business, but there are a couple of things I'd like to say.
First, I was really taken aback the other day when in a public meeting, the Honourable Steven Fletcher announced that the Senate would be changing its rules for the consideration of public business. This is a draft report. Consideration of draft reports is supposed to be confidential. I have no idea, but I have theories, without certainty, about how Mr. Fletcher obtained this information. I was disturbed by it, chair. It should not be a precedent that contents of draft reports are discussed by anybody other than this committee.
The Chair: If I may reply, certainly these have been public meetings. These discussions have taken place, and he asked specifically about whether we anticipated continuing this discussion about changing the private member's bill rules. It was explained to him what discussions took place in this committee. I don't know that he watches or listens to the committee or reads the transcript, but to be fair, it was a general discussion around —
Senator Fraser: Have discussions of draft reports been in public?
The Chair: No, it was around what took place in this committee. This is a public broadcast.
Senator Fraser: Here we are, public broadcast again for consideration of a draft report. Normally, committees go in camera for discussions of a draft report.
The Chair: I think we've been in public since the beginning of these discussions. I don't think any of them have been in camera.
Senator Fraser: How fascinating.
Senator Cools: We should discuss that point.
Senator Fraser: In future, I would suggest that we have discussions on draft reports in camera.
The Chair: Understood. Thank you.
Senator Fraser: Second, I still have no clear understanding of a number of things.
Why we would be doing this? Why we would be establishing a process to terminate debate on non-government business? Government business we already have a process for time allocation because the government has the right to get its business through ultimately. I have no understanding of why we are so intent on doing this for non-government business.
Third, I am still really puzzled. I still feel a grave lack of some of the information I had requested two meetings ago, I believe, or certainly one meeting ago. Even the information that we have about the House of Lords I find difficult to follow in terms of its implications for what we are considering here. I checked Erskine May, which clarified things ever so slightly, but it seems clear that the House of Lords really frowns upon what we might call "closure."
It also seems, but I don't quite understand the mechanism here, that at the outset of certain debates, the House of Lords agrees on time limits so that there is certainty from the beginning about what is happening. I don't understand how that certainty is arrived at. Is it negotiated? Are there standing orders that set out how these limits will be determined? I'm not at all sure, and I didn't find this note very helpful.
I had also asked for information about what is done in other Parliaments, not only in Westminster Parliaments, notably in Australia and New Zealand. I still don't have anything on that. I'd also be interested to know what is done in France and in the United States for cutting off debate on non-government items. The United States is perhaps a little less relevant because their process is quite different. I think we need that information.
I think we need a detailed written explanation of the arguments for and, in my case, I would say the arguments against curtailing debate on non-government motions. I just think this is all very strange.
Also, I think that everyone in the Senate is aware that we have been thinking, many of us hard, about how we can modernize and improve the Senate to make it a better, more open, more effective and more efficient institution, but to pick off one item like this strikes me as sort of a cart-before-the-horse approach. I think we need to understand in broad terms what it is that we want to do and where we want to go, and then figure out in what ways our rules ought to be adapted to achieve those ends. This is a massive change —
Senator Cools: Huge.
Senator Fraser: — in the Senate's traditions and practices, in isolation, with no explanation, with no information, or very little information, and I'm greatly troubled by all of that.
I would at the very least request that the library provide for us significantly more information than is now available to us. If the subcommittee on broadcasting — I don't know what this has to do with broadcasting, but anyway — could also provide us with some information on the reasoning it followed in arriving at this proposal, that would be very helpful.
Senator Martin: I was listening very carefully to Senator Fraser, whom I have an opportunity to meet with daily in regard to how we look at the Orders of the Day and organize our business in the chamber.
I appreciate the points that she raised and her concerns about curtailing debate, but I'm just thinking about certain bills that have been, some others have said, languishing in the Senate for a year or more, or they seem stuck in the Senate. There are other words that I've heard used. It is difficult to try and explain to members on the other side or the public why it can take so long for non-government business to move forward, even at times at the most sluggish of rates, as they view it from the outside.
I'm also thinking about how on Wednesdays, now that we're in the month of June, we know that at 4 o'clock we can continue sitting to complete government business, and the committees that are scheduled for 4:15 can concurrently sit as well. That's what we decided for June. We decided not to do that before June because we talk about the importance of what happens in the Senate being equal to the importance of what happens in the committees.
I would just put forward that government business is important, and we know that it does take precedence in many cases, but non-government business is also very important. If there is a way for us to move, to encourage debate, to stimulate debate, or to add something that will move something that appears on the outside as languishing, and I'm not saying that it is, but it is the process we have in place.
As I said in the previous meeting, if it's a way to modernize — which to me means to strengthen and to find ways that we can encourage debate — then that's how I see this proposed rule change. I just present that to the committee.
It is important to see what other jurisdictions are doing. I do find that very interesting, but this is an opportunity for us as an institution to look at how we can also give importance to the non-government business that we have, of which many items have been standing on the Order Paper for quite some time. Thank you.
Senator D. Smith: I hear the points that Senator Martin makes, and some of them I agree with. Having said that, I think we have to bear in mind the culture of this committee, and the culture of the Rules Committee has been for some years that you don't change the rules unless you have a consensus on both sides. You don't have to have total unanimity. I'm not into this one person veto stuff, but I think you at least want a consensus on both the government side and the opposition. Until you get that, I think you kind of have to keep working at it because, if you just slam it through, that can trigger other things that are undesirable, to say the least.
I'm open-minded on this stuff. I don't think it's perfect, but I think there's a point that's trying to be made. This version is not flying well with a number of people on our side, and I think that the point that Senator Fraser made about having more research done by staff from the library over the summer would be a reasonable thing to do.
We've still just got three meetings, including today, before we presumably break. Yes, some people are kind of mystified as to why this is coming from the subcommittee on broadcasting because there are other issues relating to broadcasting which, if we focus on for the next couple of meetings, maybe we can put to bed. Everybody knows that Speaker Kinsella would like this to be part of his legacy — well, reading between the lines, I certainly have that impression. I'll let others speak for themselves. I think of some of the controversies that the Senate has gone through internally in the last year when they weren't able to record people speaking on some of the hot stuff that was going on here. People were saying "Well, why isn't it on? Why don't we have web or whatever?"
If you go back several years when we've discussed having TV coverage, you never had consensus on either side. You had people on both sides in favour of it, but you also had people on both sides who weren't. I think there's more of a consensus now. I'll only speak for myself, but I'm under the impression that there's more of a consensus now. It probably makes more sense to focus on that.
If we were to have a vote on this today, yes, that side can put through whatever they want, but that would not be a pattern that's compatible with the culture of the committee that we keep working on things and keep refining them and massaging them and whatever to the point where we do develop a consensus on both sides on changes in the best interests of the chamber as a whole.
Those are my thoughts. If we had all the research that Senate Fraser has referred to, I think that would help, and it could be done over the summer. Maybe we can look at some of the other matters relating to this TV coverage and maybe some of which can be cleared up before the summer.
Senator Nolin: I presume some of the questions raised by Senator Fraser could be answered before the adjournment. I presume the library can produce a document to refine what is happening in the House of Lords. Sebastian, you have heard the comments of Senator Fraser. I'm sure you can produce something for us as to what's happening in Australia, as well as in France and the United States.
On the question of why, definitely we can come back to you and explain the rationale behind the "why." My point is, let's try to answer your question before the summer adjournment. If the committee wishes to make a decision to postpone until the fall, we'll take that decision. We have another at least three weeks to go, so why not use those three weeks to try to bring up some answers to your question. If that's not satisfactory, then we'll decide.
I definitely have a lot of support for the comments that were made by Senator Smith, and definitely we need to find some kind of consensus.
There's no point rushing an amendment to the rules without securing a consensus. If we don't agree on why, then we have a problem; but we'll come up with an answer to that.
The Chair: Thank you, Senator Nolin. The analyst advises that the information will be provided prior to the next meeting.
Senator Fraser: In response to Senator Martin, with whom it is a pleasure to work on a daily basis, I might say, she mentioned partly in passing how it's difficult to explain to people from the other side, by which I think she meant the House of Commons, and the public why some things stand on the Order Paper. This, if I may say so, is a case of the pot calling the kettle black.
Senator Cools: Right.
Senator Fraser: When we send bills passed by the Senate, other than government bills, to the House of Commons, they go to the bottom of the order of precedence. There they languish for a long, long time. If we amend a House of Commons private member's bill and send it back, it goes to the bottom of the order of precedence and quite likely may never be seen again.
In contrast, if you look at what's been done in this session, you will see that a number of private member's bills have received third reading in the Senate. None of them as yet, if memory serves, have been bills sponsored by members of my party; but, hey, who's counting?
I guess the point I'm trying to make is that the evil, if there is an evil, to take a long time to consider something is perhaps less pronounced than some people sometimes tend to think. Quite often, there are real reasons that a bill is not taken up for rapid consideration. On balance, I think that the public has been well served by that.
I'm not here to say that I just want to block all change everywhere, any time, affecting anything at all, but I do think that this is a very large change that we need to consider in the context of what is done here and of where we want to go in the Senate in the context of the Westminster system in general.
I agree that consensus is important. Consensus doesn't necessarily mean veto power. Sometimes it can, and I've gone through that when proposing rule changes and the other side just said "no" and that was that. It is also highly desirable for us to work together to try to achieve common ground; and I would not want anybody to think that I dispute that.
Senator Cools: I would like to renew my concern for these proposed changes, which I articulated last week but I would like to renew. I view these changes as not in the least bit related to modernization of the Senate. I think we should admit that the Senate is quite a modern institution and has been for quite some time. It's not helpful to describe rule changes that have the effect of disabling our freedom of speech and the independence of individual members. We should not couch those kinds of serious changes in language of modernity, because I see limitations of free speeches as medieval and futile. I just wanted to say that. There are many matters here that are niggling.
Yes, government business has priority, but it is not clear in the contemporary situation in this chamber at the present that the persons who call themselves leaders of the government have access to those priority privileges. That is not clear because those privileges are accessed by virtue of the presence in the chamber of ministers of the Crown. They are not automatic privileges that just flow into existence, but they follow the presence of a minister of the Crown. That has been the state of affairs in the British system since 1689, when all those decisions were taken in pretty clear ways with the development of responsible government.
Yes, there are rules, but those rules depend on the existence of government members, not government supporters, which is what most of the other caucuses do. They're not the government. There are no members of the government; there are supporters of the government. I would like to put that point out. I've raised it many times and it has never been answered yet.
I admire greatly Senator Nolin's work. My real concerns for these changes are that they are going to the factor of the independence of individual senators. This is something I feel a little strongly about and am rather attached to since I am attached to no caucus. The caucuses, I can say, totally dominate and control Senate business. That is something we should look at because I quite often feel persecuted by it. Quite often I feel persecuted by it. The intention of the Senate is that each and every member be independent. If an individual member feels so strongly about an issue as to hold the rest of the institution hostage, then you say "good for that member" because the wrongdoing in that case is the majority not taking notice of the view of the minority. If any member can do that, you should say "hooray," because it takes a lot of parliamentary skill that is not readily and easily seen in today's community.
I would also like to say something on the matter of serious and difficult research. There are some issues that take months, sometimes years, especially if you're waiting for papers to come from abroad. It can take years to do things. For members doing serious research, it takes time. I would suggest, chair, that we should alter our attitude in the Senate in the belief that because something stays on the Order Paper for a few months, somehow or other it is a long delay.
When I came to the Senate, bills used to be around for six months at a time on a regular basis. There's something very strange about how we're counting time in the Senate. I would like to plead with members to delay the progress of this issue and let us give it the time it deserves because there are enough voices questioning it.
It is never a good idea, chair, in the history of these institutions to move changes to the Senate by virtue of the force of the majority. It has never been considered proper or appropriate to do that. Many have done it and many are planning to do it, but it has never been considered a proper way to approach.
As I said last week and will say again, it is expected that major changes to the Senate rules should originate in the Senate in a debate to get the feel and the sense of the house. Yes, you have a rule on this committee in respect of this committee's so-called mandate such that proposed rule changes can emanate and originate there, but this is the only way they are now emanating. That was supposed to be a secondary rule in instances where the issues were so clear-cut that there would be little disagreement. That's what that rule intended.
I've raised these points on the floor before. I don't understand why we have to keep restating the whole point. The government absolutely has control of the Senate as it is. I do not know why it needs any more power and for what purpose. I really do not understand why it is necessary.
I don't understand why is it that we're going into that little place, the only place that private members have for certain kinds of action. I would ask you, chair and all the members of the committee, to let us reconsider what we're doing and at least give us the summer to research it more thoroughly. I have a host of research that I can do, but I can't get to it in the next two or three weeks.
I hope that I haven't hurt anybody's feelings because I can say that a lot of people who sit around this table stand high in my esteem and high in my affection, but there is something wrong with what we're doing. If you are hearing resistance or concern or anxiety, those are just reasons to pause and to slow down.
In addition, chair, this emanates from the broadcasting committee. I cannot see the relationship between this and the issue of broadcasting, which I'm very interested in, as you know, or you may not know. For a long time, I have believed that Senate debates should be broadcasted.
I just ask the committee to pause and reconsider the rush on this, especially when I believe some very intelligent concerns are being raised and should be heeded.
Senator Batters: I wanted to make the point for the record, so that no one thought that this was only Conservative senators bringing this forward, that Senator Nolin worked very hard on this along with Senator Joyal, two really learned minds of the Senate. In that way, I think that that lends credence to the fact that there was some consensus on this particular issue.
Senator Joyal: There are two points I would like to bring forward
The first is that we keep concentrating on the Senate rules in relation to private member's bills but, to use a popular expression, it takes two to tango. If we want a private member's bill that has been introduced in the Senate by a senator to be considered in the other place and finally become legislation, I think it would be helpful if we could have an information sheet on the exact procedure in the other place. In other words, if we feel that our procedure needs to be modernized, let's compare it to the way that they do things on the other side before we conclude that there is one of the two chambers that is not really at par with the other. I'm using my words in very neutral terms here. I have not reviewed the procedure in the other place. We were there some years ago. Maybe they have improved it since I was sitting over there, but I would like us to know exactly how they do things in the other place. It is just fair.
The other suggestion I would like to propose is that the report or the proposed report that we have in front of us, especially in section 2, refers to conditions at rule 16-13(1) and then at 16-13(2) it is a proposal. This proposal could be refined in a way. In other words, I see there are numbers there, 15, for instance: 16-13(1)(a) calls for consideration at least 15 times or (b), a cumulative total of at least three hours. As you know, numbers can be revisited. If some senators are of the conviction that it is too stringent, there is a way, in terms of length of time to be reviewed, so there could be options, in my opinion.
It is the same with who is allowed to give notice of motion and the other conditions that are debated. I think there is a possibility. One could use his mind to review it and ask if there is not a way to approach it from an angle that would take into consideration some of the concerns that have been expressed.
In other words, my conclusion on this is that this is not a final take-it-or-leave-it kind of proposal. That's the way I see it. I might be idealistic on this, but I think that could also be part of the reflection we might want on the basis of what we will hear from the research report and the point that I have raised in relation to how it is done in the other place, so that we try to take into account the picture of the institution of Parliament as a whole when we approach the issue of private member's bills.
Senator Nolin: I totally agree with Senator Joyal. The subcommittee will go back to the drawing board and come back with the "whys," definitely. We're not forcing anything. We want to have a process that is fair for all senators who are introducing bills. Fairness is, for us, the key word. Definitely, if time is too short, let's expand the time. If 15 is not enough, let's put 20. If you think 15 is too long, let's reduce it to 10. We're open.
As a matter of fact, talking about who would introduce the motion, for the first draft it was everyone and, after discussion, we came to the conclusion maybe it's too large. Maybe we should restrict that to the sponsor and the critic.
We're open, but we want the discussion to take place here around the table. I don't have a problem with looking into more details about what's going on in other jurisdictions, definitely not, and we will go back to the drawing board and explain to you why we're doing that. Of course, we'll try to do that before the adjournment.
The Chair: The analyst advises that, prior to the next meeting, we will have information in relation to France, Australia, U.S. and the House of Lords, with revisions as requested, as well a private member bill info sheet that Senator Joyal requested so people will have an understanding of the process that private member's bills take, whether they start in our place or the other place and, more importantly, how they conclude. We will have that as well available for everyone.
Senator Joyal: On the basis of the procedure being followed in the House of Lords, would the analyst be invited also to look into how the House of Commons deals with the private member's bills that might originate from the House of Lords? It would be helpful to have the whole picture of how they do it over there, rather than just focusing on one chamber. As I said, it's a two-part operation and I think it would be just fair for us to have an overall picture of how they do it in both chambers.
Senator Enverga: I have been listening to everyone here and I have a lot of respect for their ideas.
I keep hearing that we should compare with the House of Lords and other organizations. I'm wondering if we can't just make our own here, made-in-Canada rules, and not worry about any other Parliament. What we do here is independent of any other ideas, and we can do it made in Canada. Why don't we do it that way? That way, it will be much easier for us to make changes according to our needs, not according to what other parliaments do.
Senator Nolin: Look, it's going to be a made-in-Canada solution, but if we can learn from mistakes and experience from others, then let's try to understand why we should have our own. We're not doing that to limit our freedom to decide what's good for us, but to learn from others. That's why we're doing that.
The Chair: Thank you very much, both of you.
Senator Joyal: I just want to say to the honourable senators that there are two sections of the Constitution that refer to the Westminster model of Parliament that we're following in Canada. Section 18 divides the overall scope of privileges of what exists in Westminster, and this section was not removed in 1982 when we had the repatriation of the Constitution and, of course, the preamble of the Constitution that calls upon Canada to have as a monarch the British monarch. We have that as organizing principles of our Constitution, in other words, the principles of constitutional monarchy and the principles of a Westminster-style Parliament.
It doesn't mean we cannot depart. We have departed. There are theses made on that, and it would be fair for honourable senators who are interested to read those conclusions. I could give you a lecture on that, be it the Charter of Rights and Freedoms that they don't have in Westminster. That is a fundamental difference. But you can see we have departed substantially from them and, when that was proposed to Westminster in 1981 to be adopted by them, there were many objections on the basis that we were doing something so different than the very nature of the Westminster Parliament that some of them were opposed to even vote that legislation. There is a long history there, but that doesn't mean we should not be, as Senator Nolin said, aware of the principles that determine the functioning.
As I said, there are 100 ways in the last 147 years that we have departed from Westminster on many accounts.
The Chair: Senator Fraser, back to one of your early comments in relation to public. We made a decision in the first meetings that, unless requested, we would always try to hold the meetings in public, so there wasn't an intent to make this public. There was an intent not to make them private and I think it was brought forward by Senator Cools.
Senator Fraser: Thank you very much for that, chair. I'm a former journalist. I like things to be in public.
The Chair: I know you do. I've heard you say it.
Senator Fraser: It is often in the case of a production of a draft report that conversations are held that are more suitable for private meetings, and a draft report is only a draft report. Its adoption, of course, should be in public.
The Chair: I understood your rationale and comments, but I wanted to make sure there was an understanding from the beginning of how we decided to move forward.
We will have the analysts bring forward the information to each of you. I'm not sure, Senator Fraser, if you intend to return next week or not —
Senator Fraser: Oh, yes.
The Chair: Then we will ensure you will get the information.
If you have other ideas around times, we looked at, first of all, how much time typically is used and how many times people would like things called. But it wasn't about us trying to put cement around it but having a form before we poured cement, so if you have thoughts about that as well.
We'll try to meet again as a subcommittee prior to the next meeting so that we come back in front of you with further discussion, and we'll bring this back next week if everyone agrees.
(The committee adjourned.)