Proceedings of the Committee on
Rules, Procedures and the Rights of Parliament
Issue 2 - Evidence of November 20, 2002
OTTAWA, Wednesday, November 20, 2002
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 12:00 p.m. to consider the motion that for the duration of the present session any select committee may meet during adjournments of the Senate.
Senator Lorna Milne (Chairman) in the Chair.
The Chairman: The motion is that for the duration of the present session any select committee may meet during adjournments of the Senate. We have dealt with part of this and had it approved by the Senate – that select committees may be permitted to meet at any time on any weekday the Senate stands adjourned during a Senate sitting week.
Now we are dealing with periods of longer adjournment, such as a week or a month that the Senate is adjourned, for example, January, and summer meetings. At this point, for select committees to sit during these times, according to the rules of the Senate, they must stand and ask for permission of the Senate the day before the adjournment.
Mr. James Robertson, Researcher, Library of Parliament: We have to give notice a day before.
The Chairman: We have to give notice the day before the day of the adjournment.
As an example of a potential problem, if members of a Senate committee want to meet during January, after Christmas, and the Senate rises on December 13, the members may not have yet been able to arrange either a meeting day or the witnesses who would present to the committee, so that they cannot ask for specific permission before December 13.
I can see some problems with the rules as they stand now without having a more blanket exception to them. I am just throwing something out for general discussion.
Senator Joyal: I am going to risk something. I see Senator Di Nino is anxious to catch the ball.
I always start with the rules, and then we look at the exception. As I understand it, the rule is that we have to be here under command, to be here when Parliament sits; that is, when a normal calendar has been adopted. Most of us make tremendous efforts to be here when we are commanded.
Now what we are doing is, outside of the fixed calendar, we are opening something else. I have some reservations about changing the definition of the rule. When we receive our command as senators, we have three obligations. One of them is to attend every sitting of the Parliament. That is in the text of the command. I do not have the exact wording.
The Chairman: Most of us have it on our office walls.
Senator Joyal: Maybe we should read it. Of course, we have a whole system of taking attendance to ensure that we are faithful to the command and to the oath we have taken. We are here because we swear that we want to honour that command.
If we are now to develop an extensive definition of the times when we are going to sit, that has implications. I agree that when we have a special committee, like the committee which dealt with the issue of marijuana or Senator Kirby's committee on health, we can understand that this is a special mandate that has been given and that in their resolution there is a specific date to render a report; in other words, they have a limited time to assume their terms of reference. Then I can understand that, for that particular purpose, they might sit while the Senate is adjourned. Now we are invoking the exception part of the rule. I wonder if it is wise to do this with a blanket provision like that.
The Chairman: This is the debate we need to have about this issue. There are a few of points for honourable senators to think about. Sometimes the Senate does not sit during all the weeks it is commanded or scheduled to sit. What about adjournments during those weeks?
Senator Joyal: I have no problem with those weeks in principle, because they are part of the time slot that I receive at the beginning of the year on the calendar. Let us take the present context as an example. We have five weeks to the adjournment. You just raised the possibility or the hope that we might want to raise on December 13. I am not stupid, I am like all the other senators, and I would welcome that for XYZ reasons. However, if a committee sits during that week, I will not make a fuss. I know it is part of the time slot.
The Chairman: Except that I do not believe the Senate officially has a fixed calendar. I know the leadership on both sides has been attempting to agree on a fixed calendar so that we can organize our lives, but I do not think we officially have one.
Mr. Robertson: No. The House of Commons, in its standing orders, has all the calculations for every day that the House must sit. The House must have a special motion not to sit on those days. The Senate does not have that. I understand this calendar is prepared by the administration for the convenience of senators, but nowhere in the rules does it indicate that this is a sitting week and last week was not. The assumption is that the Senate sittings mirror those of the House of Commons, although in December this calendar provides for an additional sitting week that the House does not have. It is an administrative matter as opposed to a procedural matter at this point.
Senator Joyal: I believe that it is a clear situation whereby the convention complements the rule. We have a conventional practice here that because the Senate is a house of revision — senators review and scrutinize the legislation coming from the other place and government administration — that when the other place is sitting, we are available. That is the way I understand that. By convention, we make ourselves available during that time. That, to me, added something important to the practice. I am not saying I am opposed in principle. I am just saying, let us start to understand the principle, how it works and what we propose to do to change that principle and practice that we have followed for a long time.
The Chairman: I am finding myself in the position of devil's advocate here. We are always saying that the committees are the jewels of the Senate. Should not committees be masters of their own fate? Should a committee not be able to sit without having to provide notice to the Senate if it decides unanimously in the middle of January that it wants to sit in the last week of January?
Senator Joyal: I do not believe in devils, but you are a good advocate.
I have no problem if the majority of the members of a committee feel they want to sit to carry out their business and are agreeable and available to sit. I do not think we can prevent a committee from sitting if it wants to. However, that is not what this proposal is saying. It is saying, ``Any select committee may meet during adjournment.'' It is open to everyone. It does not say ``a committee that might want to.''
The Chairman: Presumably, they would not meet if they did not want to.
Senator Joyal: I still prefer that we retain the capacity of the chamber to be informed before we adjourn that the committee has a bill, the committee has a special study, the committee has received a special term of reference, or by itself, for those committees that can, has decided to go on a course of study and might need time, would use the time and the members of the committee are available. If we were to change the rule so that now committees do not have constraints, the Senate chamber, as an institution, would no longer be aware of when the committees are pursuing activities outside the usual conventional Senate sitting. I do not think that is right.
Senator Di Nino: I guess it is probably more of a question of interpretation or one's understanding. I am not sure that I read my mandate or command to mean that I am to appear for parliamentary duties only during the calendar, which we just found out is only for our convenience anyway.
I would like to explore that further, because I did not understand it to be quite as defined as Senator Joyal is suggesting. I will start with that comment, and then I will go on to suggest that I also have no argument, by the way, with the requirement that committees inform the Senate that they would like to meet at times when the Senate is not sitting. I am not sure, when there are longterm absences from the Senate itself, if they would need its approval, but that again is another question we can look at.
If I can assume, then, that my interpretation of the responsibility I have to the command is any time, all the time, twenty four hours, fifty two weeks, seven days a week. As long as I am commanded, it could be at any time, and it has happened, in effect, that we have been called back during times of recess and we have to appear.
My belief is that we should make it as easy as possible for all components of the Senate to do their work at any and all times that they feel they can and should. That means during recesses. That means Mondays and Fridays during a week when the Senate is sitting. As we debate or have a dialogue on this, I think we should keep in mind that, as far as I am concerned, at least, we should not impede the work of committees because of some regulatory constraint. As a matter of fact, if there are constraints, then I think we should eliminate them and, in a reasonable way, allow committees to sit whenever the majority of the committee would agree. I do not think you need unanimous consent either.
Having said that, I believe that during the times when the Senate is sitting, the committee does need approval. Otherwise, perhaps we should be looking at appropriate notice so that the Senate is aware that during the month of January, the Foreign Affairs Committee is meeting to look at the issues that the Senate has authorized it to look at.
To summarize, first, I did not understand the command to be for specific periods or specific days. I am more of the opinion that the command is at any time all the time, in effect. Second, I do think we should make it as easy as possible for committees to sit, to do the work of the Senate. Third, I do think it should be for a majority of the committee members to agree to that decision, rather than the chair calling, for example, a meeting and saying, ``You must attend because I called the meeting,'' but with appropriate notice to the Senate. This is the way my mind is starting to formulate on this issue, subject to listening to my colleagues. I could change my mind on any point with the wisdom that will come from here.
The Chairman: One thing that we should keep in mind is that when committees are holding public hearings across Canada, they are sitting. Under the current rule, as it stands, they could not undertake such travel. They could not plan ahead for such travel during a nonsitting week.
Senator Gauthier: I just want to comment on the French translation, which says ``comité particulier.'' I have never heard of that term as a translation of ``select committee.'' I think what is meant is ``comité permanent'' rather than a ``comité particulier.'' That is my first comment.
Secondly, I kind of agree with Senator Joyal. I will not repeat what he has said, but I believe that standing committees should be able to meet, with the approval of the Senate, outside normal sitting hours, but I do not extend that to include a Christmas break or a summer break unless they have received prior consent. On that, I rest my case. I do not think we should extend that to all standing or select committees meeting whenever they want to. I think that would open it up too much and probably be problematic.
The Chairman: Senator Gauthier, I would draw your attention to the definition part of the Rules of the Senate, where it says ``select committee'' in English, and the French says ``comité particulier.'' This is on page 3 of the Rules of the Senate.
Senator Gauthier: Change the rules. As a member of the Rules Committee, I think that is the wrong translation of the expression ``select.''
Senator Rompkey: There are two points. One is the point you made, Chair, about the committees being the jewels of the Senate and wanting to do their work and to do it well, and we have had evidence recently that that has been happening. We have received a lot of attention because of the committee work that has been done: health, defence and drugs. Whether we agree or disagree with the substance of the reports, they have drawn attention to serious issues and they have engendered serious debate. It is incumbent on us to encourage that.
Senator Joyal is talking about control. Committees are the creatures of the Senate, and the Senate should maintain some control. I should just like to mention for discussion in that regard a practical matter, and that is staffing committees. Our experience has been, as a result of creating the additional committees that we did, like Drugs and Human Rights and so on, that they had to sit on Mondays. Frankly, we have had a lot of trouble getting people to attend those meetings. If we create more venues that senators have to go to, bearing in mind the split in the Senate at the present time — and I do not want to speak for the whip of the opposition side — you have to bear in mind the practical issue of simply getting people to go to committees. There is only so much people are prepared to do.
Generally speaking, I would probably align myself with Senator Joyal, not to discourage the additional work that committees would do, but to maintain some control in the Senate over an additional work schedule.
The Chairman: Work and cost and personnel.
Senator Rompkey: That is true. There is a cost involved as well.
Senator Joyal: I want to add to the concern of our colleague, Senator Di Nino. I asked Ms. Lank, the clerk responsible for the work of the committee, to give me the text of the command. I do not want to have a big debate on this today, but as far as I can remember, it says, ``when Parliament sits and where Parliament sits.'' ``When parliament sits'' has a legal meaning. There is a resolution. Parliament rises, Parliament sits. It is not, as was said, an open-ended authorization. For Parliament to sit, there is a legal procedure to follow, and when it is, as you properly said, sometimes it happens in the summer, if there is a strike or something. There is a formal, legal route for calling Parliament back.
As long as we are within the legal framework of Parliament, my understanding when I pledged to be a senator was that I would make myself available when Parliament sits. When Parliament rises for the summer and reconvenes three or four months later, that is fine with me. That is my understanding of the command.
The second point is that we cannot be members of all committees, for X, Y, Z reasons. However, some senators who are not members of a select committee but who have a keen interest in its work might want to attend the meetings. I do not want to make a personal case here; however, I was not a permanent member of the special committee studying the antiterrorist bill. I tried to attend most of the sittings of the committee because I happen to have an interest in the subject. We should understand that select committees do not offer opportunities only to full members to attend. Any senator has a right to go to a committee and participate. He or she does not vote, which is fine. However, the input of the senator is welcome in our system.
All the chairs of special committees I have known have opened their committee to nonmembers. That has an impact on senators who are not members of the committee, which I think is an important right.
There is, of course, the problem raised by Senator Rompkey. I remember very well being called on a Monday morning to attend a meeting of Senator Nolin's committee because the Mexican Minister of Health had been called to appear before the committee and there were no senators available. It was sitting outside Ottawa.
Senator Rompkey: It has happened more than once.
Senator Grafstein: It happened in Toronto.
Senator Joyal: Any one of us involved in the study could testify to this point. That has to be taken into account, too. It is good to allow the committee to do whatever it wants. I would be the last one to quarrel with that. However, there is the practicality of that, too. At the end of a sitting, wellintentioned senators say, ``We will meet during the summer.'' As the poet said, ``With the attraction of the sun, the smell of the flowers and the freshness of the river, the population is decimated.''
This is part of the reality of the decisions we consider here.
The Chairman: I am having ideas thrown at me from both sides here, which is excellent. ``When Parliament sits'' could be argued to mean from the opening of a session to when it prorogues or dissolves. These are legal procedures in Parliament, and they must occur in a certain pro forma manner. When a summer or a winter break occurs, the Senate adjourns; it does not rise. That is something else to think about.
I am looking for compromise here. Senate committees may sit during adjournments if either, first, the Senate has given approval, or, second, half of the committee members, including all steering committee members, give written consent, which would have to be filed with the clerk. The clerk would then have to communicate that to all other senators.
I am throwing out ideas.
Senator Di Nino: I was not going to argue about the definition with an esteemed lawyer for whom I have a great deal of respect. However, I still have a problem. I am of the school that believes that when we are adjourned, the sittings continue. For example, I refer to when we adjourn at 3 p.m. or 4:30 p.m. on a Tuesday and we reconvene at 1:30 p.m. the following day. I will leave that matter aside because it involves a question of interpretation.
I am concerned about restricting the work of committees. We are here for the public policy process. I would be concerned if we put any impediments in the way of committees doing their work. I am still of the strong opinion that we should allow committees to function, to meet and to do their work any time the majority of the members and I do not think 50 per cent is enough, frankly agree with appropriate advice. I will go along with ``approval,'' if necessary.
The Chairman: There must also be consultation with the whips.
Senator Di Nino: Of course, which is why I am suggesting that should be the case.
Senator Nolin phoned me when his committee was in Toronto. He said, ``There is nobody here.'' I was in Toronto, so I went down and joined the committee. I think there were three senators supporting Senator Nolin, only one of whom was a member of the committee.
Those situations will arise. I do not think it is appropriate for the chair or the steering committee to insist that when the Senate is not sitting, and when it is outside the normal time slot, the members should follow a notice that might say, for example, ``Be there on Tuesday morning.'' I think that is inappropriate.
Senator Stratton: We made a deal last week that contradicts what you are saying today.
Senator Di Nino: Did we?
Senator Stratton: Yes. I am referring to the Foreign Affairs Committee.
Senator Di Nino: That was with permission of the Senate.
Senator Stratton: It was the steering committee that decided.
Senator Di Nino: No, it was not.
Senator Stratton: Yes, it was.
Senator Di Nino: I was at the meeting. You were not there.
Madam Chair, it is my opinion that we should encourage committees to meet and work at whatever level they think is appropriate outside of the normal sittings of the Senate. Certainly, during the sittings of the Senate, we have a schedule that we should follow. Outside of that, let us not put any roadblocks in the way.
Senator Stratton: I look at what this committee did last summer. We met during the summer. However, the committee itself reached a consensus, not just the steering committee.
The problem I have, which has been raised, is the staffing of those committees. As I have explained to the chair, we have a problem meeting outside regular slotted times, and it is becoming worse and worse. For example, the Standing Senate Committee on National Security and Defence met for a substantial number of hours on Monday evening. If that continues to be the rule rather than the exception, I can see that becoming a real problem for us down the road, and I mean in terms of staffing these prolonged meetings. If you are going to meet outside the normal time slot of these sitting weeks, whether it is a onemonth recess or a twomonth recess, you had better have a damn good reason. You had better assure the Senate that both sides will be able to staff such meetings, whether it be a 50 per cent rule or a two thirds rule. We cannot continue to have a chair calling other senators in a panic because there is no one there other than himself.
You cannot continue to do that. That is really the nub of the issue. If you address that issue of staffing and resolve it, then we may have something worthwhile.
While I agree with Senator Joyal — I also believe the committee should have the right to meet outside — my concern on both sides is staff.
Senator Rompkey: Just to reiterate and to deal with Senator Di Nino's point, I believe we are in agreement with him that we should not put up roadblocks, that committees should be able to do their work and we should encourage them to do that. I would certainly agree with and support that, but I do not know why we could not have the committee indicate to the Senate that they wanted to do that.
Senator Di Nino: I said that.
Senator Rompkey: Yes, and you, Chair, said that maybe they could not give a specific date because they could not line up witnesses, venues and so on. Surely the motion in the Senate could be crafted so as to not pin them down more than necessary. That is a wording change with which we could deal.
The issue that Senator Joyal is talking about, I believe, is encouraging them to work but maintaining some sort of control. Senator Joyal quoted a poem a while ago, and I am not sure what the source was, but there is another saying, that ``knowledge is power.'' Speaking from the whip's point of view, we would like to have knowledge of what is happening, and there are many instances where people start to craft agendas for themselves. For example, a minister may invite senators to go on a trip. Some ministers tell me, some do not. There could be senators doing something of which I have no knowledge.
The point that I am making is if we all have knowledge in the Senate of what everyone is doing, then it seems to me that that is not a bad thing, and we could still allow people to get on with their job and do their work. We do not have a disagreement about that.
The Chairman: I do not think that we want to put in some kind of rule that would prevent committees from travelling and meeting Canadians during times that the Senate is not sitting and they are not taking away from their Senate time, if that is what they so desire.
There are many suggestions here. Perhaps we will come back next week and be presented with a list of these suggestions.
Senator Grafstein: That would be useful. I asked Senator Joyal if he could recall — I cannot — a rather extensive discussion about video conferencing and teleconferencing. It might be useful for us to remind ourselves about the use of those two technologies, not necessarily when the Senate is in session, but in the context of extraordinary meetings of committees. I am reminded over and over by our colleagues, particularly those from the West, that to ask them to come to Ottawa for a day is really unfair. This is not meant to open up that debate, but perhaps when doing the checklist, the chairman can remind us of what we settled on with respect to video conferencing and teleconferencing. I believe we concluded, amongst other things, that their use is the exception as opposed to the rule, and there must be special requirements to do so.
If we are trying to do something outside the convocation of the Senate – and Senator Joyal showed me our letters patent – it is really not a requirement for senators to show up. We are required to appear when the Senate sits. Again, it strikes me that we might, in these special circumstances, be more lenient with the rules, and certainly telephone conferencing, if not video conferencing, is viable.
I do not think there is a national meeting that now takes place either at an institutional or corporate level that does not involve teleconferencing or video conferencing. The rule is now telephone conferencing, so that there is always somebody from the West participating. If we are trying to ensure continuity of committees outside of the time when Parliament sits, we should have lighter rules with respect to allowing senators, particularly because of travel and cost, to do telephone conferencing. Taking part in a telephone conference for a two-hour or four-hour session is easier than having to spend a day to get here and a day to get home.
Senator Joyal: In the interests of history, I would like to read the text of the command. The text I have is as follows:
TO Our Trusty and Wellbeloved, The Honourable DAVID PAUL SMITH.
Being the most recent senator, it might be wise to inform him of his obligation. I quote the second paragraph, which states:
AND WE do command you, that all difficulties and excuses whatsoever laying aside, you be and appear for the purposes aforesaid, in the Senate of Canada at all times whensoever and wheresoever Our Parliament may be in Canada convoked and holden, and this you are in no wise to omit.
[Translation]
And here is the translation:
AND WE do command you, that all difficulties and excuses whatsoever laying aside, you be and appear for the purposes aforesaid, in the Senate of Canada at all times whensoever and wheresoever Our Parliament may be in Canada convoked and holden, and this you are in no wise to omit.
[English]
This is the basis of the principle, and it is important to remind ourselves at this time because it helps us to frame the rest of our behaviour.
Senator Smith: Unfortunately, I did not get to read that until after I signed.
With regard to the point that Senator Grafstein made, the law firm of which, until two months ago, I had been chairman for many years has offices in the six largest cities in Canada. We have a minimum of one boardroom in each of those cities that is fully equipped for teleconferencing, and that is for people in different cities. It is not a problem. This saves us thousands of dollars every year. It is hard to measure the fatigue that comes with travel, but it is real.
Therefore, being a rookie here — and I will be one for several years, I am sure — I do not give advice on this, but I will make the observation that we should all keep open minds.
The Chairman: Thank you, Senator Smith. I think I am still a rookie here as well.
Another idea for honourable senators to think about is whether we treat this question in the same way as when we asked for the ability to table reports when the Senate is not sitting. In other words, should we just stick to the rules as they are but tighten them up a bit and provide more guidelines? Would the committee want to make it easier or harder than tabling reports when the Senate is not sitting? That is something to think about while we are off this next week.
Senator Murray: As for making it easier for committees to sit, I think you are on the right track with the compromise you suggested a while ago. We need to have a process. It cannot just be the call of the chair, after all.
Senator Joyal: It cannot be only two people.
The Chairman: It would need to be a majority of the committee.
Senator Murray: I feel they should be encouraged to meet when the Senate is not sitting. In fact, a few years ago we used to close down the Senate and say this will be a committees' week. We would have two or three committees sitting and make it public that they were sitting so that people understood.
The Chairman: The Senate was not just taking off for the week.
If anyone comes up with other ideas today or tomorrow, please pass them on to me and we will add them to the list for discussion next week.
The committee adjourned.