Proceedings of the Standing Senate Committee on
Privileges, Standing
Rules and Orders
Issue 7 - Evidence
OTTAWA, Tuesday, October 20, 1998
The Standing Committee on Privileges, Standing Rules and Orders met this day at 4:02 p.m. to consider matters pursuant to its mandate under rule 86(1)(f) of the Rules of the Senate.
Senator Shirley Maheu (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, the first item on the agenda is appointing independent senators to sit on committees. Honourable senators will find a summary of our discussions held during the last meeting of the committee.
Senator Robertson, have you had time to go over Senator Carstairs' proposal at the last meeting of the committee?
Senator Robertson: I personally have gone over it, as have some of our leaders. We intend to have a special caucus meeting to deal with this matter and the proposals concerning the structure of committees.
I advised my colleagues, as I will advise you, that I personally feel there are many complexities in the documents that need to be addressed at a time when there are no other issues before caucus. I sense absolutely no quams with independent senators serving on all committees.
However, there will be some disputeabout the numbers, which has not been dealt with yet. I shall urge that a special caucus meeting be held at the earliest time possible.
Senator Carstairs: I agree that we should put this issue aside until they have had a chance to discuss it. However, I should like to take a brief look at the issues up for consideration, which are found on page 4 of the documents. It might help your deliberations, Senator Robertson.
One of the questions asked was, would they also be eligible to sit on special or joint committees? Frankly, I think we are taking a major step in putting them on regular committees. My instinct here is to go slowly and work with the regular committees first. We can deal with special or joint committees sometime in the future.
Would the Committee of Selection be required to nominate an independent senator? My reaction to that is no, it would not be required to do so. If the Committee of Selection determined that it did not want a particular senator on a committee, then its members would decide in exactly the same way they decide whether they want a Liberal or a Conservative on the committee. The Committee of Selection gets to select members of committees. We would be stepping on the toes of the members of that committee if we were to force their hand to do anything on this matter.
What would be the procedure for an independent senator to apply to sit as a member of a committee? I think we talked about that briefly. They would have to write a letter to the Chairman of the Committee of Selection indicating that they want to sit on the following committees, bearing in mind that there would be a limit to the number on which they could sit, et cetera.
Should the rules specify a maximum number of committees? I think that it should. We talked about the possibility of starting with two, while watching to see if, in the future, it should be enlarged to a greater number. I think most senators find that third committee that some of them sit on, unless it is something like the Committee of Selection, burdensome. Two committees would be a reasonable number, at least to start.
Should additional senators from the government or opposition be appointed when an independent senator is appointed? That is one of the issues that has to be debated.
Should substitutions or replacements of independent senators be permitted? In this case, I would say no because the only person who could name a replacement would be the whip. Clearly, there is no whip for independent senators. Therefore, an independent senator would either attend or not if they were a member of the committee.
You would not want to have to call a meeting of the Committee of Selection every time an independent senator was unavoidably absent and, perhaps, wanted a substitution. I do not think that there would be an ease of functioning with that one. If they want to be removed, then they would resign. The Committee of Selection could, in fact, call another meeting, if there was another independent senator on the list who wished to become a member.
I can see a situation right now, for example, with our honourable senator down at the end of the table. If we made the rule that only one independent senator could sit on a committee, then I am sure that the Foreign Affairs Committee would soon receive applications from both Senators Prud'homme and Roche. If Senator Prud'homme were selected and then decided he wanted off the Foreign Affairs Committee, then the Committee of Selection could go to the next independent senator who had applied and make a determination about that senator.
I think we would have to introduce a definition of "independent senator." Those are my views on the issues for consideration that were raised.
Senator Prud'homme: If I wanted, I could easily become the public spokesperson for the independent senators. I have received calls already from two of the five independents.
To show how reasonable I think the independent senators would be, I think we should leave aside for the moment the problem as joint committees. I think it represents a problem for the House of Commons, and they will make a big debate out of it. I do not think we should start a contest with them, although I think they will be the ones who would end up smelling, not us.
Senator Carstairs has touched on the first point which I think could easily be sold to Senators Wilson, Roche and myself. Perhaps members of the staff would be interested in knowing how Senator Pitfield ended up chairing a committee as an independent senator. I ask honourable senators to remember that Senators Molson and Lang sat as independents. I have a list of all the independent senators who, over the years, sat on committees. No rules were changed at that time.
We are now five independent senators. As I predicted last spring, there may be more. I never believed that Senator Roche would be one.
My friend Senator Grimard has been the toughest opponent in our discussions. He asked me how I would vote if I were to become a member of a committee. I told him that I did not know.
I still believe that the government of the day must have the majority on a committee. No one can sell me anything otherwise. I think the majority must have a majority. An independent cannot arrive and change the entire set up just because he is an independent.
At first, I said that if there were one independent, then the chairman will always vote. Committees very rarely vote; so you can have arguments for both situations.
Senator Wilson has communicated, and she is the first one, that she wants to participate in the committees. Senator Kelly has been very gentlemanly in accepting me on the committee he chairs. I received all the committee documents, which are still locked up, because I was told to do that. Someone said that there was a leak, but I think it was leaked by witnesses who wanted to pre-empt the committee, not by members of the committee.
While on other committees, I have participated very strongly. They did not prevent me from participating but it is the frustration that is involved in saying that you are a nobody. It can be solved. It was solved in the past. How is it that it was solved in the past but, suddenly, this practice disappeared?
I have 17 examples of independent senators who, over the years, have sat on committees. It seems that there was no problem then. Some of them even went as high as to chair a committee. I do not see what the problem is here today. I am glad that at least you have it under more than "active consideration." At least you have a proposal on the table.
I also wish to say that I like the definition. I am an independent senator for the time being, but I do not want to be defined as being with the opposition. I do not want to represent the opposition. I may have voted with the opposition from time to time but I am an independent senator.
Senator Robertson: I have no quarrel with your argument. I have no problem with the government having an extra member, but I must discuss this with caucus before I can confirm the decision.
Senator Kelly: I will say the following every chance I get. The sad thing about the circumstances we face here is that we have decided, and it is becoming more and more every day, to be no longer just senators. We are to be hyphenated senators.
When you look at the spectrum of people available in the chamber, problem-by-problem, we should be free to select those who can contribute best to the analysis of what is placed before us. As long as we continue this stance of having to have seven and five and six and three, and so on, we lose. About 50 years from now, people will look back and say that the growth of that kind of thing was the beginning of the end for what could have been a very valuable chamber, a very valuable part of the two Houses. I do not know why we do it.
I am not suggesting that we will ever change it, but we should think about it. I came here to be a senator -- not an independent senator or a hyphenated senator but a senator. I wish that all of us would feel the same way. We would be much different and we would be much more effective. That is the end of my lecture.
The Chairman: On independent senators, there will not be a decision until the opposition in the Senate returns here with the recommendations of their caucus.
Senator Prud'homme: I spoke with Senator Robertson and Senator Grimard about two or three years ago and the answer was to be forthcoming then. May I kindly ask when you think you may finally decide?
Senator Robertson: There were more problems than just the one caucus.
Senator Prud'homme: If we are to suspend the decision today, what framework are we talking about here regarding your response?
Senator Robertson: I hope that we can deal with this very quickly. I do not want this to drag on. I cannot give you an exact time frame, but I can assure you that I shall pursue this with a great deal of vigour.
Senator Prud'homme: All right.
The Chairman: For the moment, we can continue to bring this matter up at every meeting until it is resolved.
Can the caucus chairman advise us when you feel that, perhaps, this could be looked at?
Senator Atkins: Senator Robertson will make the recommendation for a special caucus meeting and then we will call it.
The Chairman: Thank you.
The next item on the agenda is Item No. 3, "Restructuring of Senate Committees". There are a couple of proposals that we could look at briefly. The research brief by the Library of Parliament is among your documents.
We have three options. We have one on the research note, one by Senator Kenny, and one by Senator Carstairs and myself.
Senator Robertson: We have one by Senator Oliver which was presented at our last meeting.
The Chairman: It is included in the one from the Library of Parliament.
Senator Robertson: Yes.
The Chairman: Perhaps Mr. Robertson would like to summarize the proposals?
Mr. Jamie Robertson, Law and Government Division, Library of Parliament: The briefing note sets out the proposal that broad policy areas be submitted. I believe this was initiated at the last meeting.
The idea is to take the existing 12 Standing Senate Committees and reduce them to a few umbrella committees or broad policy area committees, there being a recognition that the Senate does not have enough senators to have a standing committee system that mirrors government departments as was the original idea in the House of Commons. By having broad policy areas, Senate committees could then take a cross-departmental and multi-disciplinary approach. Even if the numbers on the committees were kept about the same, it would free up senators in that they would not have to be on two, three or more committees at the same time. There could be increased use made of subcommittees -- either by drawing upon the membership of the umbrella committee or by using associate members. That is to say, members not on the umbrella committee could be appointed to sit on a subcommittee, say, because of their interest in a particular issue.
Page four of the English briefing note contains the proposal set out by Senator Oliver in the Senate in June, 1994, which consists of six umbrella committees. There is a slight variation on that, on the bottom of page 4 and the top of page 5, which is six general committees. I have renamed them. This is based on another proposal that came out of the Charlottetown Accord discussions.
I do not think at this point in time the specifics are as important as the principle. In the first full paragraph on page 5, I have tried to summarize some of the concerns that have been expressed primarily about the fact that both the Banking Committee and the National Finance Committee are currently very busy. To combine those two committees could result in some problems. There was also some pros and cons to putting the Internal Economy and the Rules Committee together. Some senators think that would be a good idea; some senators think it would be a dangerous idea.
In addition, other proposals have been put forward. Of course, there are areas such as human rights, which have not actually been included in this proposal. Senator Oliver's speech in June 1994 addressed the motion by Senator Andreychuk that the Senate establish a human rights committee. In his proposal, that committee would be under the social umbrella, but it might not have the same profile that some senators believe that it should have.
The question is this: Do senators want a few committees that mirror the broad subject categories that the Senate deals with and that are based on the work load of the committees over the past few years and the historical concerns of the Senate? If they agree in principle with that thrust, perhaps there could be discussion as to exactly which committees should be established. I agree in principle with that.
Senator Kelly: There is one advantage that may be in here but I cannot find it. That is, the use of the umbrella committee and the use of subcommittees that could replace the need for having special committees of the Senate.
A subcommittee could be struck, carry out its responsibility and report back to its committee. The committee would report to the Senate and we would not get into this long wrestling match that we always have with special committees.
Mr. Robertson: The other advantage of the subcommittees -- and it is something which the House of Commons has tried on occasion without as much success as in theory -- is the ability to appoint senators who have a particular interest in the subject-matter. You do not have to worry about their political affiliation because the report of the subcommittee will go to the standing committee to be approved before it can be tabled in the Senate. That report can be made public when it is presented to the standing committee, so there is a way of making sure that the work is not lost. One does get away from political affiliations to some extent with subcommittees.
The Chairman: If there are no comments, we will go on to page 51 with the 10-committee option. You have all received this document as members of the committee.
Mr. Robertson: The proposal here is, again, a reduced number of committees but perhaps not as drastic a reduction. Going from 12 to 10 would have an impact on the number of committee positions that would be available. Instead of the 150 positions at present, membership would be down to 122 in total.
The quorum has been left unchanged. Committees of 13 members would need 5 members for quorum. Committees of 12 members would need a quorum of 4 members. This would not affect special committees and this does not include joint committees as they are still the subject of ongoing discussions with the other place.
The charts on pages 56 to 65 outline the mandates and the reasons for the proposed committees plus the numbers of members and the quorums. The committees would be aboriginal and northern affairs; banking, trade and commerce; foreign affairs; national defence and world order; industry; internal economy, budgets, and administration; a land and waters committee; legal and constitutional affairs; rules, privileges and orders; national finance; and social and cultural affairs.
One of the advantages of this proposal over the earlier one is that it would not necessarily amalgamate National Finance and Banking, nor would it amalgamate Internal Economy and Rules. It would perhaps allow a bit more ability to restructure the committees along the lines of their workloads and subject areas.
The Chairman: Has anyone read the document at all? Do you wish to comment on it?
[Translation]
Senator Bacon: If we look at the current membership of the standing committees, excluding joint and special committees, the total number of participants is 150. The total number of senators sitting on the Internal Economy Committee and the Privileges, Standing Rules and Orders Committee would go to 13 and the eight other committees to 12, for a total membership of 122. These are the figures given. There are 104 senators.
If we eliminate the independent senators from the calculations -- we would not want to eliminate them completely because we want to have them with us and we want them to be present -- this gives us a total of about 99 senators out of 104.
Even with the proposed reorganization of the committees, the number of committee members still exceeds the number of senators, which is not necessarily a bad thing. We cannot make total committee membership equal to the number of senators. It's not an end in itself.
Some committees have sporadic meetings, which frees up senators for the work of other committees. Not all senators have the necessary time, interest or even health to sit on committees. Finally, dividing up the duties in this way would penalize those senators who like committee work and who participate actively and effectively in the work of several committees. My fear is that the overall quality of committee work might suffer.
If we rule out mandatory committee membership, the distribution of senators among the various committees becomes rather random. In your report, you should give us reasons for some committees having twelve members and others 13, according to this plan.
The number of senators per committee should be determined according to the workload of the committee in question. This isn't an easy thing to do, but it would be more difficult to predict what would be the legislative activities of future governments, or even of the present government.
However, the workloads of past committees can provide some indication. Some committees have a huge amount of work to do, others less. For example, the Aboriginal Peoples Committee and the Privileges, Standing Rules and Orders Committee have on the average met far less frequently than the Banking, Trade and Commerce Committee and the Legal and Constitutional Affairs Committee. Decreasing the number of committees will increase the workload of certain committees.
Having too large a membership can interfere with the proper working of a committee, but it does not mean that subcommittees cannot be created if necessary. Such subcommittees report back to the standing committees, so that they continue to be accountable to committee members. I do not have any specific suggestion as to the ideal number of senators per committee, but I feel that this question should be studied more closely so as to pin down the figures. We might think about increasing substantially the number of members on the Banking, Trade and Commerce Committee or the Legal and Constitutional Affairs Committee and decreasing the number of members on the committee on which we are currently sitting, for example.
As for subcommittees, if we reduce the number of standing committees, they will assume greater importance. This would allow very busy committees to divide up the work and send it to subcommittees. The use of subcommittees would in a sense promote more tightly knit committees and allow for more specialization on the part of the members.
I do not have any solutions as to exact numbers, but we would have to look at the workload of each committee, to determine which committees need more members and which meet less frequently, so we can arrive at a better division of duties.
It is essential that a committee maintain control over the activities of its subcommittees; it has final responsibility. It is better to have subcommittees than special committees.
The Chairman: Do you have any other comments to make regarding membership?
[English]
Senator Milne: I have not had much of a chance to look at this document, but I am having difficulty reading it, and I wonder if the language can be clarified. I am looking at the page concerning my committee, the Standing Senate Committee on Legal and Constitutional Affairs. It is at page 62 of the English version. It "shall be mandated to consider, for messages, petitions, bills, inquiries, papers and other matters relating to." However, the land and waters committee is given the mandate to handle all motions, bills, parliamentary petitions, parliamentary inquiries, et cetera. The language under each one of these committees does not match. Legal's description goes on to say, "all federal-provincial relations devolution of powers except interprovincial trade."Well, when on earth did I ever have interprovincial trade? Do you mean except enforcement agencies? Domestic human rights and the Charter. I am confused by the language.
The Chairman: The first column is the committee's mandate now, in the books.
Senator Milne: Why are you taking interprovincial trade away from me when I do not have it?
The Chairman: It is in the books, if the need arises, to be sent to the Standing Senate Committee on Legal and Constitutional Affairs.
Senator Milne: Except interprovincial trade. You are taking it away, but I believe it has never been part of its mandate.
The Chairman: I believe it is there now.
Senator Milne: What do you mean by "all federal-provincial relations and devolution of powers"?
The Chairman: I was not there when that mandate was written.
Senator Milne: I am having problems with the wording here. I do not understand it.
The Chairman: If you look at the next column, this committee's main functions remain relatively unchanged. We talk about international human rights, and interprovincial trade is there again.
Senator Milne: Yes. It has already been removed, and now it is being removed again.
The Chairman: Who removed it?
Mr. Brad Bos, Research Assistant: In doing the research for this proposal, we went to the House of Lords. We went everywhere. Interprovincial trade was sometimes seen as a trade issue, but then you would have the interprovincial disputes and they were referred to as constitutional issues. In order to ensure that Constitution Affairs did not get it, we made sure that it was clearly indicated that anything to do with interprovincial trade went to Banking, Trade and Commerce and not to Legal. It is not a constitutional dispute; it is a trade dispute. The key reason for it being included in both places was so that people would not have any questions in their minds.
Senator Milne: Have you also taken away domestic human rights and the Charter? This reads as though you have.
Mr. Bos: That suggestion actually came from one of your assistants. They asked that the Charter of Human Rights and Freedoms as entrenched in the Constitution remain a part of your responsibility.
Senator Milne: Let us say it remains. In the devolution of powers, this is one of the things you have excepted.
Mr. Bos: It is clear on this one.
The Chairman: I do not think we need worry about it now.
Senator Milne: The language is a problem here.
The Chairman: The language went through many assistants.
[Translation]
Senator Bacon: I did a study of each of the committees, without knowing whether we would be chairing the committee or sitting as a member. We are not here to defend our turf. We are here to try to find a better way of working in committees.
As for the new mandates, for example cultural and social affairs, I wonder what the reasoning is for adding correctional services and parole to the work of this committee. These matters used to fall under the Legal and Constitutional Affairs Committee. I find the explanation given rather weak, this explanation being that this committee will deal with all subjects related to correctional services and parole, considering their impact on society. However, these are not the only aspects of the judicial system having an impact on society. What about other legal issues?
In the French version of the report, we read that the committee will also be responsible for dealing with issues related to the "francophonie" with a lowercase "f". What does "francophonie" mean -- the French-speaking community in Canada or the international French-speaking community? If it refers to the latter, why would these issues not fall under the Foreign Affairs Committee? Does the Social Affairs Committee concern itself with the Commonwealth? I would be surprised if it did. Why then would it concern itself with the francophonie? We need to know how to interpret this.
Another example: the Banking, Trade and Commerce Committee. Responsibility for foreign trade matters should be transferred from the Foreign Affairs Committee to the Banking, Trade and Commerce Committee, mainly because the members of this committee will probably be better equipped to deal with them. The globalization of markets is blurring the distinction between national and international trade. The issues are increasingly interdependent. Matters regarding the Canada's Business Development Board, the Atlantic Canada Opportunities Agency, the Western Economic Diversification, Canada's economic development and perhaps even the Business Development Bank of Canada should be considered by the National Finance Committee, since they are all part of the federal government's overall economic strategy.
Patents and copyright should fall under the Industry Committee. Responsibility for energy concerns such as pipelines, transmission lines and energy transportation should be handed over to the Land and Waters Committee, which should instead be called "Natural Resources." Energy transportation is vital for industry, and this question is normally debated in the Energy, Environment and Natural Resources Committee.
The Chairman: Did you look at having ten committees instead of six?
Senator Bacon: I am looking at senator Kenny's proposals, which are aimed at increasing the number of committees, and I do not entirely agree with them. Are the committees going to be able to work more effectively? Will individual members have more time to question witnesses? That was the reason given by Senator Kenny for having fewer members and more committees. The proposals designed to increase the effectiveness and participation of senators in the work of committees are important ones. There is no guarantee that the reform will lead to substantially improved attendance on the part of senators, if the number of committees is increased considerably. Attendance is a factor. It is not just a question of the number of committees. If people do not attend because there are more committees, we will not be able to produce the desired quality of work.
[English]
Senator Milne: I have a point of clarification. First, I am strongly in favour of anything that will cut down the committee load and reduce the number of committees. However, where does the Committee of Selection fit into these 10 in your proposal, Madam Chairman?
The Chairman: It is not. It is 11.
Senator Milne: All right.
The Chairman: It is not even there as one of the 12, though. It is not there now. It is not an additional committee, it just is not even taken into consideration.
Senator Robertson: It is difficult to try to put responsibilities under the umbrellas until we have had a thorough discussion with our caucus members and determined how to proceed.
There are arguments for every proposal. If you remember, when I brought the first draft back from our leadership, we preferred a smaller number of committees. We always have a terrible problem with space and members running around and people not attending.
Over the years that we have debated this issue, we have been looking for fewer committees with better attendance, not necessarily large numbers. Some of us have felt strongly that subcommittees reporting back to committees would work very well. However, this is all conjecture until we put these documents out to our colleagues in some form. There will be all kinds of arguments about what should go where, and it might be a bit presumptuous to start dividing them at this point. Speaking for our leadership, we are inclined toward fewer committees.
The Chairman: Fewer members with 15 subcommittees could still create attendance problems?
Senator Robertson: It does not matter how many subcommittees there are. Those people with desire and expertise would be on those subcommittees, which would probably result in better reports.
Senator Kelly: I am trying to help us move to the next step. If caucuses are going to be taking a major position, instead of having the caucuses wait until someone makes a suggestion and then chewing it back and forth, why do we not ask each caucus to form their own subcommittee? You have some good suggestions here. Put together your best thinking on the opposition caucus, your best thinking on the government caucus, and then come back with those two things so that we have a narrower field with which to deal.
Alternatively, you have a subcommittee of this committee do the same thing. We have several good recommendations, but we must come back with something that moves us to the next stage. Otherwise, we will continue to go in circles.
Senators Milne, Bacon and Robertson have thought this issue through. Having a subcommittee to move it to the next stage might work better than asking the caucuses to do it, because in my experience that is difficult.
The Chairman: If we take this issue to caucus we will still be dealing with it in two years.
Senator Robertson: A subcommittee of caucus is an excellent idea. We might be able to make progress there and then return to that caucus with proposals.
Senator Kelly: It is not fair to take it to the whole caucus. People who have not thought about it for a second suddenly get wonderful ideas.
Senator Prud'homme: I was recently in Mr. Manning's riding speaking about the Senate. I was listening to everyone trying not to offend anyone. People can change their minds rapidly, when they hear an idea they have never thought of. It does not mean you are a switcher; it is simply that someone brings something new to your attention.
With regard to always having the consensus of caucus, you will remember that when we wanted to strengthen attendance we said that it would never pass. I have come to the conclusion that if a majority feels we should do something, we should do it, that we should report on it to the Senate and let the people who disagree come forward and fight if they so chose. You know they will not.
We are all reluctant to make a decision, and that can apply to many other things.
The Chairman: Does anyone else wish to comment at this time? We will look at the possibility of having someone look at the three proposals and probably consult a little.
I think Senator Prud'homme is quite right when he says that if we cannot reach a conclusion within two years, we should take it to the floor. That would be my choice as well. We cannot discuss ad nauseam without coming to a decision; nor can we let anyone block this forever. I think something should be done about committees and we had better start thinking along those lines.
Is there any further discussion on this?
Senator Bacon: Are we to go back to our respective caucuses and ask them to form a subcommittee?
The Chairman: We could do that, or members of this committee could form the subcommittee.
Senator Kelly: Why not form a subcommittee of this committee? It seems to me that that is the best way.
The Chairman: Does anyone have a particular interest in sitting on a subcommittee to look at this issue?
Senator Kelly: Senator Milne and Senator Bacon certainly showed interest. You researched the subject very carefully.
Senator Milne: I just researched it in the last 30 seconds sitting in this room, unfortunately. I have not really thought about it and time is scant
Senator Prud'homme: I would not mind attending, without being a member, of course.
The Chairman: We will have to consult the committee and have a round table.
Senator Robertson: We had better decide soon how many people we want on such a subcommittee.
Senator Kelly: There should be five at the most.
The Chairman: Is there agreement on five?
Hon. Senators: Agreed.
The Chairman: We should consult Senators Grafstein and Joyal. I can consult with Senator Bacon here, but I would prefer to handle it tomorrow.
I gather that you are interested, Senator Kelly?
Senator Kelly: I am interested in seeing the subcommittee formed.
The Chairman: Would you be interested in being a member of the subcommittee?
Senator Kelly: There are many wiser people than I, but I think the subcommittee would be a great idea to make a start on this.
Senator Robertson: I recommend that Senator Kelly work on that committee and I would certainly want to work on it.
Senator Bacon: I volunteer if you need any help. I think we have to do something.
The Chairman: I was hoping you would.
I will talk to some other senators and call a meeting of the subcommittee. Is that agreed?
Hon. Senators: Agreed.
The Chairman: Are there any other matters that you wish to take up today?
There being none, the committee stands adjourned.
The committee adjourned.