Proceedings of the Committee on Rules, Procedures and the Rights of Parliament

Formerly: The Committee on Privileges, Standing Rules and Orders

Issue 9 - Evidence

OTTAWA, Wednesday, June 13, 2001

The Standing Committee on Rules, Procedures and the Rights of Parliament, to which was referred Bill S-13, respecting the declaration of Royal Assent by the Governor General in the Queen's name to bills passed by the Houses of Parliament; and Bill S-8, to maintain the principles relating to the role of the Senate as established by the Constitution of Canada, met this day at 12:10 p.m. to give consideration to the bills and to examine changing the name of the Standing Senate Committee on Defence and Security.

Senator Jack Austin (Chairman) in the Chair.


The Chairman: Honourable senators, today we are dealing with the Royal Assent bill that has been referred to us by the Senate, now numbered Bill S-13. Everyone gets a passing grade if they can tell me all the previous numbers of the same legislation back to 1983.

I hope we will also have time to deal with Bill S-8, which is on the motion of Senator Joyal, and essentially deals with the role of the Senate and the engrossment of an additional role for the Senate in various pieces of legislation where reference at the moment is now only to the House of Commons.

If there is time, we will deal with the motion of Senator Kenny, who wants to change the name of the committee of which he is now the chair to "Defence and National Security." In other words, he wants to add the word "national" before the word "security."

Without further ado, Senator Lynch-Staunton, the proposer of the current Bill S-13, the Royal Assent bill, is here. I should like to go in the ordinary way to him to add comments and to direct the attention of the committee to the way in which he believes we should respond to the motion.

Senator Lynch-Staunton: Mr. Chairman, I do not have anything to add to what has already been said both here and in the chamber on what is in the bill. It preserves the current way of doing Royal Assent and adds an alternative that can be used on occasions that would arise when the Governor General or a judge was unavailable, or if we had emergency legislation such as back-to-work legislation that had to be given Royal Assent immediately. The alternative method would replace drawing both chambers together and following the usual procedure.

The last time we spoke about this matter, we agreed that we might get together with the House of Commons, since Royal Assent does not belong to the Senate. In the Constitution it is part of Parliament - the Crown being part of Parliament. I think that is where we should be headed now. We should get their views on this matter. We can form a common view, if they accept this procedure, and we can take it from there.

The Chairman: That is a most interesting suggestion. We have two choices if we follow that suggestion. One would be to report the bill to the Senate for approval of it in whatever form it wishes, send it to the House and then request a conference under the rules. Alternatively, with the approval of the committee, some of us could approach the House informally, as Senator Lynch-Staunton and I did in the last Parliament, and discuss what they would consider a viable way to proceed with amendments to the practice of Royal Assent that we now have.

I invite your comments and then comments of colleagues as to this way of proceeding. This is not taking anything for granted with respect to the substance of the bill.

Senator Lynch-Staunton: I prefer that the Senate take a vote on it, but out of courtesy to the House I would not be at all averse to going to the House first and canvassing their views.

The Chairman: In the same way as we did last time?

Senator Lynch-Staunton: Yes, although perhaps a little more formally this time. Last time, it was an informal meeting. This time it would be on instruction of the committee to meet and report back. I hope that they could do the same thing on their side.

Senator Di Nino: Could you share with us the results of the last consultation?

The Chairman: At the meeting were Peter Milliken, Bill Blaikie of the NDP and a third person whose name I do not recall from the House side, and Senator Lynch-Staunton and I, and a third person from the Senate. My memory is that the three people from the House side said that they agreed with the principle of a summary procedure so long as nothing was done to interfere with the current procedure. The government would have the option on how to proceed. They agreed that there should be a formal Royal Assent at least once, and some of them thought twice, in every calendar year or parliamentary year.

We went through the bill line by line and discussed it. They suggested that we send them the bill in its current form and they would discuss it with their colleagues in their caucus.

At that point, we in this committee had some differences of view on Royal Assent. Senator Grafstein was particularly articulate in his views and there were others who made other comments. The result was that we did not have a Senate view that we could send them. That is where we sit today. We have a draft bill, and they think it is an advance on the current practice, but until we have a unified position in dealing with the House, I do not think they will take much time with us on Royal Assent.

Moving on to discuss the bill itself, some points have been made by Senator Lynch-Staunton. You have before you a memorandum prepared by our researcher, James Robertson. He goes through the background, which is familiar to many of you, then presents various proposals that to go back to Senator Frith, the McGrath committee, Bill S-19, and previous versions of the current legislation.

Some colleagues will not have had a chance to see this document because it was circulated only yesterday. Therefore, perhaps James could take us through key issues rather than the document itself. What are the key issues that we should address in this legislation?

Mr. James Robertson, Researcher, Library of Parliament: The suggestion in this bill, as the briefing note indicates, goes back many years in Canada. It is a question of whether the traditional Royal Assent ceremony that is currently carried out in the Senate chamber by the Governor General or, more commonly, by her deputy, should be continued in its present format or whether there should be some alternative provided. Several other jurisdictions that trace their roots to the British Parliament, such as Australia and New Zealand, have not continued this traditional ceremony. They have adopted a more expeditious route of an exchange of messages by document.

The current ceremony is, however, an important part of the legislative process in Canada. It highlights the fact that the Parliament of Canada consists of the Governor General, the Senate and the House of Commons. Concerns have been expressed that to eliminate the ceremony altogether, or to have it only two or three times a year, would diminish the importance of the Senate and allow the media and the public to forget that the Senate plays an integral part in the legislative process.

At the same time, suggestions have been made by Senator Grafstein and others that the ceremony could be enhanced rather than eliminated by turning it into more of an educational mechanism to educate viewers on CPAC or people in the galleries on exactly what the bills are that are being assented to.

The point has made by supporters of the bill that while they think the current Royal Assent ceremony is important, it is sparsely attended, certainly by members of the House and often even by members of the Senate. That is partly due to the timing of it. That is partly due to the fact that the ceremony is not attended frequently by the Governor General because of other commitments. However, there are other ways in which it could be handled. Perhaps by having it only two or three times a year, it could be enhanced and turned into a much more ceremonial and symbolic occasion.

Those are some of the issues that have been raised in connection with the previous versions of the bill.

The Chairman: Certainly, the judges are clear that they believe that the Royal Assent, where they are called upon to act as Deputy Governor General, is an interference with their work. In some ways, the notion of a conflict of interest has arisen. They have to interpret the law. What are they doing approving it? That does not trouble me in the slightest, but one hears that notion.

Senator Lynch-Staunton: On that note, tomorrow a Royal Assent ceremony is scheduled for five o'clock, with the Governor General in attendance. The only reason the Governor General is coming is that no judge of the Supreme Court will come, since one of the bills to be given assent to is in amendment of the Judges Act, in which they find their salary increases. The Governor General is replacing a member of the Supreme Court.

The House will have gone home by that time, so there will be very sparse attendance from the House side. It will be the end of our last day here, I believe. Our attendance will not be what it should be. It is in cases like that where I think a written declaration saves the embarrassment of having the Royal Assent ceremony conducted in such a manner that does not enhance its key role in the parliamentary system.

If the formula suggested here does not satisfy, I hope we will not spend too much time on it. The more I think of it, the more it would be valuable to get together with members on the House side to explore with them alternatives that could be agreed upon other than the ones offered here, while maintaining the ceremony as we know it. That is a key component of the bill.

The Chairman: My inhibition has been that, in taking a variety of views, I find that difficult advocacy. It is to be hoped that we could have a very substantial common view with the flexibility to respond to their views and interests before we sit down with them. I am eager to hear from honourable senators.

Senator Grafstein: Let me deal with it in reverse order. To have a conference without a view that the bill is acceptable, without a clear or overwhelming consensus, to my mind is shooting ourselves in the foot. That is not an appropriate way to prepare for a conference with the other House.

Second, there is a bias in the other house against the Senate. There is a bias about walking over here. There is a bias against attending at a Royal Assent ceremony. There is a bias in favour of the Senate being invisible. In addition, three cabinet ministers have suggested that the monarchy should be abolished and, in addition to that, a number have said from time to time that the Senate should be abolished. To my mind, it is not appropriate to deal with this matter as if they are equal parties coming to this conference with an open mind, unless we take the position of Senator Lynch-Staunton and say, "Let us make this efficient. Let us collapse the event as best we can."

I start from an entirely different premise. My premise is that we need greater symbols, active symbols of unity. Therefore, I have no problem in suggesting that the Governor General attend here on a much more regular basis. Her constitutional duty, first and foremost, is her responsibility for Royal Assent. She has only two constitutional duties: first, Royal Assent, and second, to deal with changes of government, cabinet. The rest of it is in the area of symbolism. I look at this as saying that the more she attends here, the more visibility is given to the Senate, the more visibility is given to instruments of national unity, and the more visibility is given to the role of the Senate in the constitutional framework. We get the symbols to match the action, as opposed to saying "Here is the symbol and here is the action," as if the two were disconnected.

There is a disconnection in people's mind. They do not know about the Royal Assent ceremony. They do not know about the role of the Governor General and the role of the Senate. To remove those minimalist things that we do to heighten our visibility is to agree with those who say that we should disappear, or roll over.

I start with an entirely different premise from Senator Lynch-Staunton. I say that because he and I have been jousting about this. I start by saying that the Governor General representing the Crown is a very important constitutional, legal responsibility. It is more than the Speech from the Throne. Nothing is more important than her responsibility for Royal Assent. It is in the Constitution.

Here is the argument against it: It is inefficient; it requires people to walk from one building to another, and it requires them to show up; it happens at five o'clock, so no one is there. I agree with those arguments, but it is a question of organization. If we had the Royal Assent ceremony regularly on Wednesdays at one o'clock, there would be greater attendance. The chamber would be full. There is no reason why we cannot schedule the Royal Assent ceremony at one o'clock.

The Chairman: We could not have this meeting or lunch.

Senator Grafstein: We conduct the Royal Assent ceremony at five o'clock because of the organization of business between the two Houses. We are cramming up and getting things through in the last two days, and then we have Royal Assent to put the rubber stamp on it. We could say to the government, "By the way, if you want to have Royal Assent, you had better go through all those machinations on or before one o'clock on Wednesday of the last week, because that is when we will have Royal Assent. If you miss that date, there will be no Royal Assent until next September." Government would then reorganize itself, and so would we.

If one wants to be efficient, that is fine. I will stand back. On the other hand, one may want to take a serious look at the role of the Senate and the role of the Crown's representative in the Senate. As senators have suggested, with CPAC we have a magnificent vehicle to publicize all these ceremonial matters and to act in an educational capacity as to what the Senate does and what is contained in the bills. How many people really know, other than the salary bill, what we have been doing in the last two or three weeks? The general public does not know. There is no general understanding of it.

I think it is important for us to use this event. Royal Assent was meant originally to demonstrate to the public at large that the Queen or the King was coming to add her or his name to a bill that, in fact, would then be promulgated. There would then be a royal proclamation of the bill, all with a view to educating the public as to what was in the law, based on the constitutional premise that ignorance of the law is no defence. That is how it started. I am encapsulating a lot of constitutional history and catchwords, but that is what it is all about.

My view is that we can reorganize ourselves better and smarter. I hate this process of having to cram things through at five o'clock or six o'clock on a Thursday night. If we make this a condition, we would be forced to reorganize ourselves better. Because we do not, we relegate Royal Assent to another sort of administrative function. However, it is not an administrative function. If we treat it as an administrative function, we are then treating ourselves as administrators and not legislators.

I have made this argument before. I have a detailed series of amendments that try to give a counter-version to this. I am prepared to table them if there is a desire for me to do so. However, I do not want to continue to be the odd man out on this matter, Mr. Chairman.

The Chairman: Could you address yourself, Senator Grafstein, to the reason why Canada should be different in this respect from the U.K., for example, or from Australia or New Zealand?

Senator Grafstein: Let us lay aside New Zealand for the moment. I have not looked at that situation. Australia, however, has always had a strong anti-monarchist streak. As a matter of fact, the country is divided 50-50. There has always been a strong republican streak. Any limiting of a symbol of the monarchy has been a means of reducing friction in the legislatures. There is a reason for such a diminishment in Australia; however, in England there is no reason necessarily to do that because the Queen is there. The Queen attends in her person. The Queen as a symbol of national unity is entrenched in the public mind.

However, the idea of the monarchy as it relates to Canada is still a dicey question. I am not a monarchist. I do not want people to believe I am promoting the monarchy. I am promoting symbols of national unity that are helpful as opposed to harmful. To this juncture, I cannot think that monarchy still represents an important symbol of national unity. I am an indifferent monarchist in that sense.

Yesterday was a perfect example. It is so difficult to get Parliament to agree on one thing as a question of one unified vision of the country. Yesterday I had a big problem with my little poet laureate bill where Parliament wanted to have two poets laureate, one French, one English. I would rather see the bill die. If we cannot have one poet laureate at a time representing one vision of the country, I would rather see the bill die. It has been passed through and I am still fighting a rearguard action, but I have support from all parties, except the Bloc, which does not want to have a single vision of the country, and will fight it tooth and nail.

Yesterday, again, we had another debate on the pay bill, with a corresponding diminution of the Senate, relegating the Senate to a second-class character. The government would like this bill, no question about it, because it is inconvenient and all things. Quite frankly, some elements of the government would like the Senate to go away or wither away. If the government of the day wants to do that, so be it, but let it do it front and centre, not by a death of 1,000 little wounds.

Wherever we get a chance to display a big-time symbol, I think that would be terrific. There could be a great educational show. Her Majesty's representative comes and grants Royal Assent to the bills on CPAC; the chairman of each committee explains what each bill is all about. It could be done four times a year. It would be great for the Senate, the country and for education. It would be a great tool for unifying the country.

The Chairman: Thank you for putting your views so clearly to the committee.


Senator Poulin: For six years, I have been taking a position on this issue both within our Liberal caucus and at the meetings of the Committee on Internal Economy. I have also taken a stand in the Senate Chamber, and I adopted the same philosophy as that of Senator Grafstein.

I will not repeat all of Senator Grafstein's arguments, because I could not present them as well as he did; however, we should remember that three years ago we did a study using focus groups to get a better idea about the public perception of the Senate.

One of the key conclusions was the misinformation about the entire parliamentary system. Following this study, we gave the Committee on Internal Economy two tasks: to become more transparent and accessible, and to try to identify the key events that would enable us to produce information in an efficient, simple and organized way with certain of our partners such as Government House and the House of Commons. The idea was to ensure that we would create events that would allow us to better inform all Canadians and other countries, to show them who we are as parliamentarians and legislators.

For these reasons, I am in favour of reviewing the tradition, and I thank Senator Lynch-Staunton for forcing us to do that. His initiative has given rise to a very healthy discussion.

The Senate must be better organized in order to be more effective. We must ensure that the other players involved, because we are not alone in this, are committed to our objective of making the institution more transparent, and particularly providing information by radio and television about the legislation we are studying and the entire context of the various bills.

Senator Gauthier: I agree with Senator Grafstein, and I agree even more with Senator Poulin. We come back to this question: "How can we make people aware of the work done by the Senate?" What can we do to educate Canadians and help them understand Parliament better?

To those who ask what difference there is between England and Canada, I would say that we are a federation, first and foremost. That is important, because there are 10 provinces in Canada with more power than in any other federation in the world. Our system is decentralized. Canadians are confused when asked what exactly senators do. We know that we work, but we do not say so. I wonder whether we are afraid to speak up.

I have already suggested that we stop granting Royal Assent in private. This is done publicly in the House of Commons, and yet we do it in secret in the Senate! I am talking about television and visibility. I have nothing against the bill, and I particularly like the idea of using this bill to promote a better understanding of how the Parliament of Canada works, and the role of the two Chambers.

I have already suggested CPAC. This is not a complicated matter. In the very near future we will be making a decision about broadcasting committee meetings and the Senate proceedings. In my view, it is essential that we start with the Senate, that we install cameras so that we can broadcast special events such as Royal Assent.

It is imperative that the Governor General be present and part of the proceedings. There must be someone from the Senate to explain to Canadians in both official languages exactly what is happening, what the objective is, and how the procedure works. That is important.

I do not want to prolong the debate, but at this stage I do not think a meeting between the committee and representatives from the House of Commons would be useful. We must make our decisions here, and I would be very surprised if there were any opposition. There may be some from the Bloc Québécois or a few others.

I was a member of Parliament for 22 years, and I can tell you that it was difficult to find enough MPs to go to the Senate for Royal Assent. I remember times when there was only one person in the Chamber and that was me! There was no one else! As the whip, I was there, but no one else was. It was neither inspiring nor proper. I think you understand what I mean, and I think we have an opportunity to do something very special and we should take advantage of it.


Senator Di Nino: I laid my cards on the table first, notwithstanding that I find Senator Grafstein's comments admirable. I disagree with him on this issue. Senator Lynch-Staunton's bill does not include the kind of occasional symbolic showing of the unity and the value of the educational component of our responsibilities.

I suspect one of the reasons why the UK decided to do away with this symbolic gesture is that people felt it was not important enough to participate in, or attend, or that they no longer saw any value in it. If it was done every time or on a frequent basis, I fear that it would become an embarrassment, and that members both from our chamber and the other place would not attend.

I was struck by the comment made by Senator Grafstein in support, the thought that we should do things to inform Canadians and let them know the things that we do for the benefit of the public policy process and the benefit of Canadians. However, we should use substantive issues. We should do that in ways that have some meat attached. The symbolic value of Royal Assent, particularly the way in which it has been done in the last generation or two, adds no value. The objective discussed cannot be achieved by that action. I think we need something different. We will have an opportunity to discuss this when we talk about committees and the role of the Senate and all those issues that this committee has been charged with.

Senator Lynch-Staunton's bill says we should retain the ability to have Royal Assent from time to time. I agree that perhaps this could be done once or twice a year and that it be properly organized with the Governor General so that he or she can be here at that time and allow that to be the educational component. I am afraid it will not work if we retain it as a standard feature and will probably be embarrassed, as we are now, when these things occur in the Senate.

Senator Joyal: I know that Senator Lynch-Staunton certainly will be able to help us to clear the first point, which is the issue of the royal prerogative that has been raised. I do not know if that was addressed in the earlier presentation. It has been an issue mentioned in previous debates.

Senator Lynch-Staunton: Did we not receive a ruling from Senator Molgat on that when he was Speaker, to the effect that that could be resolved during committee hearings, or that the question should not stop the bill from proceeding?

The Chairman: It is part of our assignment to report back on the use of royal consent.

Senator Joyal: I wanted to know how to proceed with that. It is an important element and essential for the validity of what we are doing.

Second, I have a point of information. In previous discussions, when Senator Lynch-Staunton was in attendance, I mentioned the case in Federal Court where the constitutionality of judges acting here in place of the Governor General was raised. I wonder if that case has been resolved. The decision would be important to reinforce the bill or not, depending on the outcome of that case, and is an important element that we cannot ignore in terms of the arguments put forward.

Senator Lynch-Staunton: I do not know about the court case, but the view of Senator Beaudoin, which must be respected, is that the judge acts as a Deputy Governor General and not as a judge. Therefore, the conflict that is perceived, like the one which would stop a judge from coming today, is not well-founded.

The Chairman: That is also the opinion of the court at this stage.

Senator Joyal: I should like a report on where the case stands. If there is a final judgment, we should take that into account. It is an important element that we should consider.

The Chairman: We will have it next week.

Senator Joyal: My final point to Senator Lynch-Staunton is that you certainly have studied this proposal a lot because it came back again from the last Parliament. In your knowledge of the practice that we have today of the Governor General asking to be replaced more often than the Governor General is present for Royal Assent, in your opinion, what is the reason or explanation to try to help us understand the very point that if there is one function that is not symbolic but is real that the Governor General has, it is to assent to legislation.In your opinion, why, over time, has this developed as a practice?

Senator Lynch-Staunton: I have an opinion on that, but I want to be careful on how I state it. I think it is because the office of the Governor General, if not the Governor General himself or herself, are just not interested, and feel that the act is but a symbolic act. It just has to be done, but why bother doing it if there are more interesting things to do in life, and they can send someone else to do it. That is basically what it is all about.

Senator Kroft: I found the remarks of Senator Grafstein never more so completely responsive to what are the whole range of concerns raised. I share his view of being an indifferent monarchist. I search always for the symbol and wish we could find a better one.

Having said that, this is the one that we have and that serves us, and there is a powerful case for presenting it for all its educational value. The troubling thought that I cannot quite let go of is the issue of the Senate, the role of the Senate, its relevance in the system, its meaning to Canadians. I have to ask myself, as strongly as I believe in history and symbols and the importance of carrying history forward, the more we present the ceremonial side and the pomp and the things that are important in a parliamentary context, are we in some way running contrary to our very efforts to demonstrate contemporary meaning and relevance to Canadians? What is important to us in demonstrating that this is the way our system works, that this is the Queen, and this is the great chamber? Are we in a very real way saying to more and more Canadians that it is a self-indulgent thing that is very meaningful to those people but really does not mean much to us?

Perhaps what would be better on CPAC would be to have the Governor General, or if not the Queen's representative, a Canadian institution in that regard enter into a discussion challenging legislators as to the meaning of the legislation. It sounds like a bizarre idea in the face of the formality, but I am searching for relevance in the long-term interests of this institution. I am not convinced that every time we present the ceremony in front of people we do not build a greater message of "Those guys love doing that stuff down there but it is not relevant to us." That is my dilemma.

Senator Murray: Just on one point, Mr. Chairman. The explanation given to me a long time ago as to why the Governor General does not show up more often for Royal Assent is that there is, or perhaps was, a tradition that whenever the Governor General shows up on the Hill, the Prime Minister has to get busy and greet him or her and take him or her into the Senate chamber. The problem is not so much with the Governor General as it is, or was, interfering with the busy schedule of the Prime Minister. I do not know why that should be so. A minister is a minister, and there are plenty of them. I know that was the case, and it was explained to me at the time within the past 12 years.

Senator Grafstein: Hence my idea that Royal Assent would take place on Wednesday, which the Prime Minister says is the most important day of his life, when he comes to caucus. I thought that, five minutes after caucus, he could walk across.

The Chairman: The next Prime Minister might have another priority.

Senators, I would like to close this discussion soon. We will come back to it next week, because we have another item on the agenda.

Senator Kenny: I was about to say some very interesting things about pomp and ceremony, but I was told if I did that, we would not get to my item on the agenda, so I will not speak.

The Chairman: I thought it was background for your statement.

Senator Stratton: As a practical reality, it will be tough to make this fly. I would agree with Senator Kroft: How relevant is this in the eyes of Canadians - with one exception. If you use this as a ceremony and you fill the gallery with school kids to educate them as to what happens as legislation proceeds through this place, then you might have a greater chance of making it relevant to those who are coming along.

You must pick something like that to make it relevant. Use the ceremony as an educational device.

Senator Bryden: Almost anything would be better than what is happening now, when we have an empty room and people who treat this ceremony with no regard. Having said that, I am concerned that, no matter what we do with legislation, we as parliamentarians - perhaps that is why - have an automatic reaction to fix any problem in this country by passing more legislation. We change the acts, whether on criminal justice or young offenders or whatever. That will not solve our problem here.

A few things may be helpful, though. Senator Lynch-Staunton's proposal goes some distance, but I suggest that the onus be reversed. Royal Assent would be conducted by the Governor General as a general rule, with the provision that another procedure could apply.

As an educational tool, we should schedule two Royal Assent ceremonies per year. One of those events could happen when the Forum of Young Canadians is here in the spring and the place is full of people. Another context could be developed for the fall session at an appropriate stage.

Going the other route and saying that the symbolism is not important and that the symbolism separates us from ordinary Canadians, I do not think that is valid. To follow Senator Kroft's line, if we want to really become relevant, the Governor General and all senators should be joining an Internet chat room to explain how all of this happens, so that everyone is wired and everyone gets to know.

My observation is that something may need to be done to the legislation so that it can be a stimulus, but only practical action and practical planning will keep this symbol at all, either the way it is now or by making it the one that normally happens and the other as an exemption in the event of an emergency. Give it some priority. Make it a place where people want to be. For the Governor General, this is her job and he or she should be here.

As another comment, we might get more commoners if, in the event of Royal Assent, we would allow the commoners to sit down.

Senator Kenny: Let us not go that far.

Senator Bryden: Or do it in the House of Commons. We talk about them trying to exclude us and do away with us. If I were a sitting MP, I would not come down and stand out there in the corridors to watch this ceremony occur.

Whatever happens to Senator Lynch-Staunton's bill, we must do some practical organizing and planning to make this a hit. It can be done. Symbolism is important in this country, and we have lost much of it.

The Chairman: I will try to sum up and then we can continue the discussion next week. Strangely enough, to my ear, there is a lot of commonality in what sounds like different approaches. Apart from the question of whether we are excited, indifferent or negative with respect to the monarchy, we have the monarchy and we must build a solution on the basis of the existing system.

There is a lot of interest in creating an environment where Royal Assent is meaningful within the parliamentary tradition and to the public. Some commented that not all ceremonies are worthy of drawing them to the public's attention. Numerous bills are passed at numerous times during the year. Senator Lynch-Staunton's bill suggests that a choice should be given to the government on the condition that timely Royal Assents do take place, perhaps before Christmas, before Easter, before the summer break, sometime in the fall, three or four times, and that the government commit to using these occasions to express to the Canadian public the importance of Parliament as a whole.

I leave that as a summary. The steering committee will chat with staff and perhaps we can make suggestions on one piece of paper next Wednesday and see if we can conclude a common view by going in both directions at the same time. That should not be beyond our capacity. Thank you, Senator Lynch-Staunton.

We now turn to Senator Joyal's proposals in Bill S-8.

Senator Joyal: Mr. Chairman, I am privileged to have this bill discussed by the Standing Committee on Rules, Procedures and the Rights of Parliament at this point in time when the committee is seized with the mandate from the Senate to review the structure of committees, and considering our previous discussions on the role and functions of the Senate, particularly on the functions of committees.

Bill S-8, as you know, is an omnibus bill to restate the status of the Senate in 27 pieces of legislation where it was omitted. The preamble of the bill states very clearly the parity of equal consent that should be provided by the Senate in the enactment of valid legislation in Canada.

We must report as a committee, if I remember, at the end of October of this year on the restructuring of committees. I thought it would be advisable, then, for this committee to take part in the debate on this bill because it comes back finally to the art of the principles that preside over our responsibility.

On some of these 27 acts, the government has no objection in principle to reinstating the Senate, particularly where the Senate has been admitted as a recipient of reports ordered to be tabled in the House of Commons by ministers. In other words, these are statutes that seem to have omitted the Senate for no policy purpose. This is a set of bills that does not question any policy issues.

The Leader of the Government outlined that there are bills with respect to which the government would like to have a representative of the department or ministers concerned to restate the policy objective. Personally, I have no objection to that. I think it would be helpful for the members of the committee to help them come to a conclusion on this matter.

I see in our organization studying this bill the possibility of presenting to you at the next meeting a kind of report on the bills about which there do not seem to be any problems. Those would have a second kick at the can, if I can use an unparliamentary term: that is, a hearing of representatives of the departments concerned. They could explain why the Senate was omitted, along with the rationale, the policy objectives and reasons therefor, as well as whether those reasons, valid at the time of the passing of the legislation, are valid today.

The Chairman: If they were valid to begin with.

Senator Joyal: I am thinking in particular of the referendum bill. The resolution is first tabled in the House of Commons. Once it has been debated and adopted in the House of Commons, it is then sent to the Senate. In a strict sense, the resolution is not tabled at the same time in both chambers. However, in practical terms, we assume our responsibility of sober second thought and amend it, if necessary, and send it back to the Commons. I have no quarrel with a situation like that because the principle is preserved.

However, there are other bills where we are clearly omitted from important legislative activities of scrutinizing regulations and holding the government to account. I refer to the Employment Insurance Act where only the House of Commons can veto regulations. We all know that there is a joint committee of the Senate and the House that is very active. In fact, with all due respect to the members of the other place, having been one myself, most of the work of that committee is performed by honourable senators. We might want to revisit why we were excluded from giving consent on the regulations related to the Employment Insurance program.

I do not want to debate this issue today. I am giving that as an illustrative example.

Furthermore, with the consent of the committee, I should like to suggest to the committee that we could call upon a witness to exchange views with us on the issue of bicameralism in Canada. In fact, it is part of the overall discussion that we have been having on the restructuring of the committees. I am thinking of Professor David Smith from the University of Saskatchewan whom some of us know. He is presently writing a book on bicameralism. He has done extensive research on the issue. I feel that this goes to the core of the very definition of our role and function.

Some of us last year heard from Professor Smith. Most of the senators who had the privilege of attending his presentation, regardless of their stand on the issue we are debating, recognized the great in-depth knowledge of Professor Smith. That, honourable senators, would be helpful for the overall discussion that we have on the restructuring of committees. In other words, we could kill two birds with one stone. That is the way I propose proceeding with the study of Bill S-8.

The Chairman: Thank you, Senator Joyal, for outlining a procedure. I was considering taking this committee next week, paragraph by paragraph, through the issues and having you comment with respect to what you thought was controversial and what you thought was not, and limiting the number of issues. I understand you are not available next week.

Senator Joyal: Unfortunately, I made some previous commitments on the basis that we would be adjourning on June 15. As you know, I always try to put the Senate first. I look at my colleagues on my left with whom I feel familiar, and those on my right, and I took for granted that we would be adjourned. I accepted a commitment abroad, which is partly in France. I am presiding over that meeting.

The Chairman: We have about 10 minutes now. You could take us through the bill and indicate those things that you think are sufficiently controversial that we might need to hear from a witness on. Unless there is someone who objects to hearing from Professor Smith, the proposer of the bill is suggesting his name. It raises the question of whether any senator wishes to propose another professor who would take a contrary view. We do not have to have a contrary view, but it is always proper procedure to suggest such a thing. We would then defer the witness to the fall, of course. However, in preparing our witness list, it would be helpful for you to tell us now, or if senators are comfortable in saving time, you could indicate to me at another time and I could inform colleagues next week. Do you have the information ready now?

Senator Joyal: I have prepared a classification on my own. I have not reviewed that with the government representative, let us call it the Privy Council, to put it in the broadest terms. Before I circulate that kind of classification, I should like to revisit it with them so that we come to the same conclusion that this is not contentious but needs to be revisited. I could take it upon myself to provide you with that for the next meeting on June 19. You would then have a report that would be fairly clearly defined as to which legislation would need to be revisited by the members of the committee. I have it only in one language. It might not be the only one the government would like to see. I would prefer to refrain from identifying those bills because, as I mentioned to you, this is the government approach to the study of the bill. In principle, they accept most of the bills, except perhaps three or four on which they would like us to hear the reasons at that time. I would prefer to revisit that with them. In fairness to the government, I think it would be better.

The Chairman: That would be very acceptable to the committee, to have your document when it is ready and to continue the discussion on the bill when we meet again in the fall.

Senator Joyal: It will narrow the debate to a very specific number of items. That will save time and be more effective.


Senator Losier-Cool: At recent meetings, we have talked about the role of the Committee of the Whole. I would like to hear Senator Joyal's comments about the possibility of studying this bill in Committee of the Whole since it concerns all senators. I would also like to hear what he has to say about possible reactions regarding the study of this bill by the Committee of the Whole.


The Chairman: In the Committee of the Whole?

Senator Losier-Cool: Yes.

The Chairman: Senator Joyal might like a moment to think about that.

Senator Losier-Cool: I will not be here next week. I would like to here his reaction to that suggestion.

Senator Grafstein: Chairman, all of the matters we have discussed regarding the bill raises another question that perhaps might be addressed in the process of our review. What is the role of the Department of Justice and the Privy Council Office in examining legislation and, in effect, approving legislation? I am not sure how it currently works, but there is obviously a requirement by the Department of Justice to sign off on bills. There is also a process, different from government to government, whereby all legislation gets funnelled through a Legislative Committee. It would be very useful, in addition to all the evidence that Senator Joyal is suggesting, that we have representatives from those two government branches present their views about this bill.

I support this bill. We did not present it merely to try to correct the past. My purpose in supporting the bill was not merely to correct the past but to send a strong message to the government and its organs that they should not do this for many different reasons, constitutional and otherwise. We are here not only to redress the past, but as an educational tool to the government.

I raise that as a suggestion, not a requirement. I would be interested in hearing what the Department of Justice has to say about this, as well as finding out the role of the Legislative Committee in the Privy Council Office. I am not sure if we ask the officials or the ministers responsible.

Senator Murray: My recollection is that there is a legal and parliamentary group within the Privy Council that deals with legislation and advises the house leaders of the two houses on various parliamentary matters. I would presume that the statements quoted in this document from Senator Carstairs would have been drafted by Privy Council and vetted, probably, in the Prime Minister's office, as indeed would have been the excellent answer she brought in yesterday defining the constitutional convention of cabinet solidarity. That is worth reading, by the way.

Those are the people whom you want here as witnesses when it comes to looking at these areas that Senator Carstairs indicated might be problematic. We should have the people from Privy Council here to justify why the Senate was written out of those particular provisions, and only the House of Commons remains. The draftsmen are in Justice, but I am not sure that they would have a view as would Privy Council as to the role of the two houses.

The Chairman: Anyone who has been in cabinet, and Senator Joyal and I as well know that oft-times it is not a question of law or ordinary procedure but a question of policy. The Cabinet committee on legislation will wonder why something should be done in a certain way and then they will make a change. That is the sort of thing that a public official would not be able to address.

Senator Murray: If there is a rationale, they could state it. If it is a policy matter, they could state that it is a policy matter, and we could go after the policy.

Senator Grafstein: There is a confusing process in the practice of the government that we have uncovered in the course of dealing with a number of bills. It is important that we at least look at it.

Senator Murray has raised this from time to time in some of his questions. My understanding is that when legislation is drafted, the Department of Justice, as a question of convention or requirement - I am not sure which - signs off and says that the bill is constitutional. I also understand that within the Privy Council Office, Justice officials are part of the Privy Council Office, and they play a particular role.

I never sorted that out in my mind. I found it very confusing in terms of cross-examining witnesses with respect to some measures where it was clear that the department had signed off on something, and then something was added at a subsequent stage. It would be very interesting to at least have an understanding of how that works. You raised this, Senator Murray, a number of times. I think I am clear on it. However, when I hear officials talk about, it is not clear.

To whom does a Justice official sitting in Privy Council office report? Where does that official's responsibility lie?

Senator Murray: They are employees of Justice. They are no different from lawyers in any other department who belong to Justice.

Senator Grafstein: The Department of Justice pays them?

Senator Kenny: They report to PCO, and answer to PCO.

Senator Murray: It is a legal requirement that the Minister of Justice sign off on government bills presented in the House both as to the Diefenbaker Bill of Rights and the Charter. That is what I mean in terms of division of power issues. I do not know whether there is any formal sign-off.

The Chairman: There are one or two very interesting issues that Jamie Robertson has raised in his note. I would ask colleagues to pay particular attention to that. One of our most interesting future discussions will be on the Employment Insurance Act and the role of the Senate there.

Having said that, we have a clear path for going forward. You might want to consider, Senator Joyal, the report of this committee being raised, as Senator Losier-Cool suggested, in a debate in Committee of the Whole. I leave that to you. You are the sponsor of the bill.

Senator Joyal: As we would say in court, I concur with my learned friend, Senator Murray, about the role of the PCO and the Department of Justice. I have been a member of the Legislative Committee of cabinet when I was a minister of the Crown. At that time, I knew well the practice and the role of each of the departments, including Privy Council and Justice.

I wish to point out the bizarreness that exists in the Canadian Bill of Rights. The certification by the Department of Justice is only for bills tabled in the Senate. Any government Senate bill is not covered under the obligation of the Minister of Justice to be certified. The Senate is omitted. It is the same for amendments.

The matters on page 7 and 7a of the proposed Bill S-8 is aimed at correcting that. It tells you what is in the mind of the Department of Justice on an issue such as that. They consider the Senate as being not useful or not necessary to give certification as to the Bill of Rights or the Charter. Page 2 of Mr. Robertson's paper alludes to that.

I will work under your guidance for the overall organization of the committee. The issue raised by Senator Losier-Cool is in relation to the comment by Senator Grafstein that there is an educational purpose with that bill. It signals that, as a house of Parliament, we want to have our constitutional role of expressing parity of consent fully recognized, and our role of scrutinizing government administration and government decisions. We wish to assure that the role of our check that we exercise on the other chamber is done properly.

This bill addresses those two issues. We could have a debate in the house on third reading, perhaps at report stage, as a Committee of the Whole so that we have a free flow of intervention and debate on this matter.

The Chairman: We must consider whether we have witnesses at this committee to assist us in preparing our report, or alternatively, whether we invite several officials into the house for a Committee of the Whole. Which would be the more efficient and effective way to take the evidence?

This committee could be televised, if it met in committee; however, we cannot televise the Committee of the Whole. That question is on the agenda of the Standing Committee on Internal Economy, Budgets and Administration, but it has not yet progressed. Those are some issues that we will look after.

Senator Murray: We have done it.

Senator Di Nino: We have not televised Senate proceedings, but we have televised Committee of the Whole.

The Chairman: I stand corrected; I am so oblivious to cameras.

Senator Kenny wants to make an argument for the change of name of his committee. We have time, Senator Kenny.

Senator Kenny: Thank you very much. I appreciate the time and opportunity. The committee met, and its request to the Senate, which was quite properly referred here, was to change the name of the committee, which is currently the Standing Senate Committee on Defence and Security, to the Standing Senate Committee on National Security and Defence. The committee felt that the suggested name would more accurately reflect the work of the committee. We feel that the ambit of national security more accurately describes the work that the committee envisioned, and that we assume this committee envisioned when it put forward its initial report.

Perhaps, in a general sense, if I could comment on the areas that this committee would touch on, that might assist the Rules Committee in examining this matter. We anticipate connections with the following organizations: The Communications Security Establishment; the Defence Science Advisory Board; the Defence Department Ombudsman; reserves; cadets; benevolent funds; Veterans Affairs; the Solicitor General, as it related to policing; the National Security Directorate, the Department of the Solicitor General; the RCMP, as it related to national security issues and the protection of the state; Canada Customs and Revenue Agency as it related to secure borders and people penetrating the borders, and the relationship that customs and immigration has with the police and, sometimes, with the Department of Defence.

Our request is simply that this committee give its approval to the proposed name change, to the Standing Senate Committee on National Security and Defence.

Senator Murray: Not like that.

The Chairman: What does the word "defence" encompass in your presentation?

Senator Kenny: Issues that the Department of National Defence would normally deal with: Army, Navy, Air Force reserves, cadets, and those sorts of things, and the benevolent funds associated with them.

The Chairman: Defence policy?

Senator Kenny: Defence policy.

The Chairman: Canada and NATO?

Senator Kenny: Canada and NATO I would see as a joint issue where Foreign Affairs would have a view as to the treaty aspects of it and defence would have a view as to the defence capabilities of it.

The Chairman: The equipment?

Senator Kenny: Yes, and whether it is working. The sorts of problems that come up with our allies. I can see issues coming up, for example, in terms of NATO expansion. The Foreign Affairs Committee would have views on how countries were going through the partners-for-peace type of process; how they were qualifying in terms of demonstrating their capacity as viable democracies, pursuing the free enterprise approach; how they dealt with minorities; and whether they had a free press.

I can envision the proposed National Security and Defence Committee looking at these countries from the point of view of what do they bring to NATO in terms of their capacity to defend their borders, their ability to project force and sustain it, and at what tempo?

Senator Murray: I had not heard about this before. I do not know whether Senator Kenny is suggesting that we simply do this today. If he is, he will have one negative vote at this table. It is far too big a step to be taken without a lot of consideration. First, there are committees of the Senate, including the Standing Senate Committee on Legal and Constitutional Affairs, which would normally, and which do, have a mandate for the Department of the Solicitor General. You propose to effectively take over CSIS and other areas under the Solicitor General that relate to what you call "national security"?

Second, this is a gut reaction more than anything, but I think you are casting your net far too broadly. National defence is national defence, and God knows there is enough to be considered there in terms of the morale of the Armed Forces and the policy governing the Armed Forces, the recruitment, the direction of the Armed Forces, about which I have some serious concerns. There is enough for you to do there, without casting your net so broadly and deciding that you are no longer a committee on national defence but a committee on national security that will take in all these other matters. Admittedly, this is a gut reaction, and I can be convinced otherwise, but certainly there has to be very wide consultation before anything of this kind is attempted.

The Chairman: The Defence and Security Committee, as it is named, has not been given the power to take on studies without a reference from the Senate. Any of these wide-ranging ideas would have to come to the Senate for approval of an order of reference.

Senator Andreychuk: What is the proposal?

The Chairman: Just to change the name.

Senator Kenny: To change the name to National Security and Defence. Right now, it is defence and security. It is not a big deal.

Senator Murray: Like hell it's not.

Senator Kenny: Like hell it is.

Senator Andreychuk: It was set up as defence and security. The issue is, did it overlap with foreign affairs? There is a tradition in other countries, and in the other place, of having a defence committee and a foreign affairs committee and, from time to time, not always both committees. My feeling was that, so long as they held to a traditional work load of what defence committees normally do, there would not be an overlap with foreign affairs. Naturally, issues overlap, but if both committees were sensitive to each other, they would not duplicate work; they would compliment work. It was on that basis that the Foreign Affairs Committee indicated that, with good cooperation, we should, for the sake of the work of both committees, not compete.

I wonder whether we should have a discussion now, if we will be touching on what appears to be internal security issues within Canada, or is it that, at the time, they propose a study? I do not know. That is an entirely different issue, because it is a national issue, not a foreign affairs policy issue.

The Chairman: The issue before us is whether the change of name changes anything in the reference of the committee. When we discussed the issue in this committee, the focus was on defence and security-related issues to defence, defence policy, DND, and the issues in DND and a particular overview of the whole area of public policy that was not being considered in the Senate. Of course, any particular studies would have to be framed, and an order of reference approved by the Senate.

Senator Stratton: I raised a concern in the first instance because, in the change of the name, are we changing the mandate of the committee? Has it changed in any way from its approved mandate? That is fundamental.

The Chairman: Senator Kenny, why do you feel a change of name is important?

Senator Murray: Is there a change in the mandate?

Senator Kenny: We are not asking for a change of mandate. Our assumption was that we would have the capacity to continue on the work of Senator Kelleher.

Senator Stratton: Was that in your original mandate?

Senator Murray: I do not know that you have any such mandate.

Senator Stratton: Was that in your original mandate? That is the fundamental question.

The Chairman: Yes. The question of the security of the state was part of the mandate, if we send the order of reference to them.

Senator Kenny: That is how we read the order of reference.

Senator Stratton: That is really the question, because it then became, "Why the reversal?"

The Chairman: That is Senator Kenny's burden - why he wants to add the worth "national " and reverse the names.

Senator Di Nino: We are in the process of reviewing committees and mandates. Can we not make this matter a part of that review? You do not need to change the name today. This is an ongoing process.

The Chairman: I do not need a consensus to approve a change of name of this committee at this time. It will remain on our agenda and we will discuss it again.

I want to ensure that you take away the binders. Mr. Mark Audcent is reviewing the draft rules that he presented here. If any of you have any comments, issues or explanations that you wish to make or obtain, please give them to Mark today or tomorrow to allow him to prepare for our discussion next Tuesday.

The committee adjourned.