Proceedings of the Standing Senate Committee on
Privileges, Standing Rules and Orders

Issue 11 - Evidence

The Standing Committee on Privileges, Standing Rules and Orders, to which was referred Bill S-7, respecting the declaration of royal assent by the Governor General in the Queen's name to bills passed by the Houses of Parliament, met this day at 12:15 p.m. to give clause-by-clause consideration to the bill.

Senator Jack Austin (Chairman) in the Chair.

[English]

The Chairman: We are in a public session to deal with clause-by-clause consideration of Bill S-7. This bill stands in the name of Senator Lynch-Staunton. I have invited Senator Grafstein to make an opening presentation. Senator Grafstein has made it clear in comments in the Senate chamber that he has some views that he would like to discuss with the committee. We will suspend briefly to see whether Senator Grafstein is ready to come forward.

Senator Lynch-Staunton: While we are waiting, may I say that, considering what we know will happen on the weekend, I would prefer that this bill not be proceeded with so that we can save the time and expense of having it printed and reported. If we pass it, it will have to be sent to the House of Commons. I would prefer that it stay on our agenda here. If we return next week, we can proceed. If not, I would reintroduce a similar bill in the new Parliament.

The Chairman: In light of that statement, I suggest to colleagues that we allow any senator who has views with respect to the bill to present those views. I know that Senator Grafstein at one time sought the opportunity to present his views to the committee. If the committee is agreeable, we will adjourn the discussion at that point and not proceed clause by clause. We will see whether there are any surprises this weekend.

Senator Grafstein, I know you have some comments on the legislation. I would welcome your participation.

Senator Grafstein: First, I want to congratulate the Leader of the Opposition for bringing this measure forward, because sometimes we take symbols for granted. Surely the Royal Assent is both intensely symbolic and intensely legal and constitutional. In the last little while we have had occasion, in a number of pieces of legislation, to talk about the Royal Assent and the Royal Prerogative. There is a recent case in British Columbia dealing with the Nisga'a treaty, which goes much further in dealing with the Royal Prerogative than I ever thought imaginable; somehow it gives substance to the position that the issues that we talked about in that committee were all contained in the Royal Assent and the Royal Prerogative. I am sure the chairman is familiar with that case.

When this matter came up, it struck me that there are two questions here for me: first, what really is the nature of the Royal Assent, both as a legal and as a constitutional issue; and second, what is the nature of the symbolism as it represents Canada.

Quite frankly, this is not an issue I was familiar with or wanted to spend any time with, but the insistence of the Leader of the Opposition compelled me to do a bit of homework, and what I found was quite interesting. It is true that in other legislatures -- in England and in New Zealand, as the chairman has pointed out, and in Australia -- they have moved from the Royal Assent as a symbolic matter involving the Crown's representative to an executive matter, which really, in effect, eviscerates to a substantial measure the role of the Senate. Because we as senators have a duty and a responsibility to sustain our role in the Constitution as a co-equal house with the House of Commons, and because the assent, in effect, highlights that issue since it takes place in the Senate, it struck me, even before my colleague's gesture, that this issue was much more meaningful and more substantive than I had thought before the matter came up.

I prepared a draft resolution to amend the clause, and it is fundamentally different from the bill itself, because what I say is that the inconvenience of the Royal Assent, coming as it does on Wednesday or Thursday evening, is an inconvenience because we know from our colleagues that that is not a very desirable thing. I thought that one of the things we should do, if we believed in the Royal Assent as a constitutional symbol and a symbol of continuity, is refashion when we have the Royal Assent. I always felt that the best time to have Royal Assent would be on a Wednesday, early or late, because we know that on Wednesday both sides are here in attendance. We know Thursday afternoon is a very inconvenient time, particularly for people from the West and the East. We all happen to be here because of our caucuses and other meetings on Wednesdays. The first thing I thought was why not bring it back to a Wednesday date.

Second, I do not quarrel with the underlying principle that the leader points out: Sometimes you need the executive right to deal with Royal Assent on other occasions. The amendments that I propose allow the government, on one occasion at least during the course of a session, and two, if under special circumstances, to have in effect a quick assent. You cannot handcuff the executive or Parliament in that particular fashion.

My whole notion underlying this -- and I will not go through the detail here -- is to reinstitute the Royal Assent and in a sense to require Her Majesty's representative in Canada to treat it more seriously, to come to Parliament and to present herself with the Royal Assent. I think we need more of that in the Senate, and I think we need that more in Parliament than ever before. There is no question at all that one of the issues in this campaign is going to be the role of Parliament. One can argue, for better or for worse, that Parliament in some respects has faded. In that fading in public support, the Senate has even faded more. Anything we can do as senators to restore, in a modest way, the central role of the Senate in the legislative role through the assent, to my mind, would be a positive as opposed to a negative notion.

I will conclude, Mr. Chairman, with this: This is a draft. My thought was that if in fact we were able to reinstitute and reorganize the Royal Assent to a more convenient time, say Wednesday at 1:30 p.m. or 1:15 p.m. or 1 p.m., at the same time we could use television as a means of setting up a round table for the public to know that a bill is being proclaimed and to be informed about what is in that bill.

We have in front of another committee a bill dealing with citizenship. In that bill there is a provision that denies, without notice, citizenship to Canadians who were not born in Canada. All of us who are lawyers recognize that ignorance of the law is no defence -- if there happens to be a federal piece of legislation, you are bound to understand what is in that law. However, we give the public absolutely no public education as to what the law is that we pass, the work that we have done, or in fact what that law means in terms of their immediate life. Some bills are more controversial than others, but many times we pass bills that are more fundamental than the controversial bills, and the public knows absolutely nothing about what we do or what we say or the impact of that law. I thought we could combine the symbolism of the Crown, the symbolism of Royal Assent, the role of the Senate and public education in one fell swoop by organizing this. We have everything at our means to do that. We have the television cameras. We have a very good and photogenic representative of Her Majesty in Canada. I think by doing that we might revivify Parliament and the role of the Senate in Parliament and make it a much more cogent and important thing.

That is the basis, Mr. Chairman, of these modest amendments. I am not sure they accomplish everything I say, but I would certainly welcome comments and I am open-minded about them because these amendments are just a means of putting on the table a different set of ideas than is contained in this particular bill. By the way, I am not being critical of the leader at all because he has done us a service by forcing us to deal with this issue.

The Chairman: I invite comment.

Senator Gauthier: I kind of like the idea of having TV there. It always sounds strange to me, but when the Black Rod goes to invite the House of Commons to come to the Senate, it is public because they have cameras, but when the Sergeant at Arms comes over to our place, nobody sees it. You put yourself in a position of a Canadian watching the House of Commons television and you say, "What is going on?" So I endorse strongly Senator Grafstein's idea of having a round table of senators, one from every party, who would speak and explain what is going on. I like the round table approach, but I certainly approve of the televising of that procedure, if it is possible.

Senator Lynch-Staunton: The proposals are interesting, but I do not think they should be in the bill. The present procedure is not in the bill anywhere. It is a directive or a memo that was prepared by the Clerk of the Senate. The procedure is there and it can be changed any time. I think it would be very wrong to put a specific day in when Royal Assent should take place, because too often we have emergency legislation to which Royal Assent has to be given immediately, and this would forestall that. I say leave the bill as general as possible. If we agree on an alternative to the present procedure, the present form of Royal Assent, let the execution of that form be left outside the bill as the result of general agreement, which can be changed when the conditions so require.

The Chairman: As a matter of fact, parliamentary practice is long invested, and it is the property of both Houses of Parliament as well as of the Crown. I think there must be some kind of constitutional convention here with respect to the existing form of Royal Assent, which I think could only be changed by a statute assented to by the Crown. That is just to add to something that you said as background.

Senator Kinsella: I recall the episode a couple of weeks ago when the Speaker rose and read a message that been received from Government House. I inquired about that, but it was very difficult procedurally. How do I ask the Speaker about a message he had just read from Government House? We all know what had happened. The clerks at the Table had this letter, addressed to the House from Rideau Hall, and the date was added by the clerk at the Table, and that message did not really come from the executive, from the Crown, subsequent to having learned that certain bills were ready to be assented to. I cannot remember which bill it was.

Senator Lynch-Staunton: It was the MP bill.

Senator Kinsella: I found that kind of disturbing: not only did it not meet the full test of the message if it had come from the Crown, but also the message was doctored by one of our officers at the Table. It seemed to devalue the role of the Crown, namely, that they should make a deliberate judgment. They, upon advice of the executive government, are to come to the Senate for Royal Assent. Obviously, they did not have time to make that decision. There was no deliberate thought at all.

I simply add that to the mix, namely, that certain practices are occurring. Perhaps you would call these practices that have crept into the system "administrative practices."

The Chairman: I am not sure whether this is a good preliminary statement for the discussion later on our agenda, parchment error, but it certainly is interesting.

Senator Corbin: I do not subscribe to Senator Grafstein's proposal.

Senator Grafstein: You have not read it.

Senator Corbin: I heard you. I hope you summarized honestly what your text says. To fix royal sanction at a given time on a given day takes flexibility away from the government and adds ammunition to the opposition party's possibility of manipulating and blocking legislation. It must be the executive's choice as to the time and the day that Royal Assent is given. Indeed, I think it is their prerogative to decide that. Unless the government of the day, or any government, wishes to go ahead and lock itself into a set timetable -- which I think would be foolish -- I will not go along with that kind of proposal.

The Chairman: Let me simply provide some comments of my own. I have supported the bill. Indeed, it is grounded on the recommendation of the McGrath committee from 1985. I should like to read that recommendation from that committee. I know that all of you are aware of the work it did in dealing with reform of parliamentary process. On this issue, however, the McGrath committee recommended that:

the declaration of Royal Assent by written message be adopted in Canada and that the Government embark on the necessary discussions to achieve this change. Notwithstanding this recommendation, provision should be made for the use of the present practice should that be the pleasure of Her Excellency on the advice of Her Ministers.

Essentially, the report called for a movement towards the Australian process of Royal Assent by written message. However, the current practice was to be retained in the discretion of the government, to be used whenever the government wished it to be retained. To that has been added the concept that the current practice of Royal Assent be used when the first supply bill is presented for assent in any session of Parliament.

As colleagues know, the House of Commons Standing Committee on House Management adopted the recommendation of the McGrath committee in 1993. We have had a number of efforts by senators to move this recommendation forward here. Senator Lynch-Staunton and I met with two members of the other place, Peter Milliken and Bill Blaikie, and we found them very supportive of our chamber taking the initiative to send a McGrath-type bill to them.

As Senator Lynch-Staunton is requesting the committee simply to table its process at this stage and not to proceed to clause-by-clause study, is that acceptable? Shall we leave the discussion at this point?

Senator Grafstein: To give everyone notice and to be fair to all colleagues, perhaps I could table the draft recommendation at the same time. That would allow honourable senators either to agree or to disagree.

I wish to conclude with a point that has been made now to our dismay -- and this arose during the clarity bill -- namely, that the presence of the Senate in at least 46 bills has been absolutely forgotten. I prepared these resolutions well in advance of the clarity bill and I have not changed them since. I did it in 1998, without realizing that it would become pertinent here. I made some proposals here for recitals about the role of Parliament that some of you might find of interest. I apologize to my colleague, Senator Corbin. There is a provision here for fixing at least the day, Wednesday -- and it does not have to be accepted -- and for allowing flexibility for other days. It is not locked into stone, but it was a proposal to say that it could happen on that day. That is, there can be assents on other days.

I will leave that, Mr. Chairman, for everyone to have over this short postponement of Parliament. Hopefully we can come back at it again when we next come together.

The Chairman: Is it agreed, honourable senators, that Senator Grafstein's suggestions be annexed to today's proceedings for information?

Hon. Senators: Agreed.

The Chairman: We are now ready to move to the rest of our agenda, for which our committee must sit in camera. Therefore, I would request strangers -- to use the parliamentary term -- to leave the room at this time. Thank you for attending on the first part of our program.

The committee continued in camera.