Proceedings of the Committee on
Rules, Procedures and the Rights of Parliament
Issue 12 - Evidence, April 30, 2003
OTTAWA, Tuesday, April 30, 2003
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 12:07 p.m. pursuant to rule 86(1)(f) to consider the printing of an updated copy of the Rules of the Senate of Canada.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, the matter before us today is something that is presented to the Senate every year.
Mr. O'Brien, I would ask you to elaborate a little on this.
Mr. Gary O'Brien, Deputy Clerk and Principal Clerk, Legislative Services, Senate of Canada: Honourable senators, I believe a copy of the revised and updated rules was distributed to you yesterday, along with a short briefing note, indicating the five rules that have been passed by the Senate since the last reprint, in February 2002.
Some of these rules originated from the committee in the previous session of Parliament. Some have come about via motions made by individual senators, such motions having been adopted in the Senate; others have come from your committee's recommendations to the Senate.
It is important that the rule book be kept current. My office sometimes gets calls about rules that we discuss in the chamber or in our committee reports. Yet, when people turn to the rules, they are not there, even though they have been on the books for some months. Also, at times we experiment with new procedures, as we will today, for example, with respect to tributes. It is expected that tributes will be paid to former Senator Doyle when we resume at 1:30 p.m.
Five rules have been added to the new rule book, which is now dated April 2003. The first deals with the rule adopted by the Senate on June 11, 2002, regarding recognized parties and recognized third parties in the Senate. I should have used little yellow tags to mark these new rules; perhaps honourable senators can just make a note, for those who are interested, that the new rules can be found on pages 4-5, 9, 16, 37, 44 and 80 of the new rule book.
The first rule includes a definition for a recognized party in the Senate and the leaders of the recognized parties, a recognized party in the Senate being the Leader of the Government or the Leader of the Opposition or the leader of a recognized third party. With respect to a third party in the Senate, there are two provisos: first, that the political party initially has five or more members in the Senate; and second, that it be a registered party under the Canada Elections Act. A third party can continue to be a recognized third party in the Senate, or recognized party in the Senate, if it continues without interruption to have five or more members in the Senate, regardless of whether it is still registered under the Canada Elections Act.
In terms of the rule regarding the extended time of adjournment, under the new rule the Speaker is obliged to consult not only with the Leader of the Government and the Leader of the Opposition — as mandated under the old rule — but also to consult with the leaders of any recognized third parties in the Senate, or their designates.
In terms of speaking time, whereas the Leader of the Government and the Leader of the Opposition retain their unlimited time to speak, the leader of a recognized third party shall be limited to no more than 45 minutes as a general rule in debate. There is also a specific rule for a debate during a motion to allocate time, and whereas the two leaders of the main parties are each given 30 minutes, the leader of a recognized third party is limited to 15 minutes.
With respect to changes in committee membership and how that should be made for recognized third parties, the provision is that the leader of the party or senator named by that leader shall be signing the notification of a membership change form.
The second rule resulted from a motion by Senator Gauthier and adopted on October 10 to create a Standing Senate Committee on Official Languages. Part of that motion was to send a message to the House of Commons to inform that House that the Senate would no longer be participating in the Standing Joint Committee on Official Languages. I should mention that this subject was debated quite extensively in this committee in the previous session. There was, I believe, a recommendation that that occur, but with prorogation of the first session it did not happen, so a motion came directly to the Senate early in this new session with that proposal, and it was agreed to.
Likewise, there was a discussion in the previous committee and adopted in this new session to change the name of the Fisheries Committee to the Standing Senate Committee on Fisheries and Oceans.
Another change that came from your committee dealt with allowing committees to sit during adjournments of the Senate, and you are familiar with that new procedure as is described in rule 95(3).
Finally, a motion was passed this month, at the beginning of the month, proposed by Senator Lapointe regarding tributes. Once again, that discussion on a new procedure, or formally establishing a procedure within the rulebook on tributes, had been discussed in the previous committee. Senator Lapointe took the recommendation from that committee and put it in these terms. Under this new rule, there will be an allocated time for tributes. Previously, there was no fixed allocation of time. There was a feeling that there should be, and the rule as it is written provides that tributes shall be made under Senators' Statements. Senators' Statements shall be extended for no more than 15 minutes — and beyond that in the case of a sitting senator who is being paid tribute. It would obviously be the case of a senator who is about to take retirement. Within the 15-minute time allocation, no senator shall speak for more than three minutes. At the end of tributes, the senator to whom tribute is being pay may respond, and no time limit will be imposed on him or her. That senator will be allowed to pay thanks, to reminisce or to make any comments he or she wishes about the tribute. At the end of the senator's reply, the Senate will proceed to the normal period of Senators' Statements, which is 15 minutes. Tributes will only be allowed upon request of either the Leader of the Government or the Leader of the Opposition. The Speaker is obliged to inform senators of their speaking time, which, as previously mentioned, shall not exceed three minutes.
The rule does not restrict tributes being paid under other procedures in the Senate. I believe this has occurred a few times, for instance by way of an inquiry or at the end of the day, and it seems to have been very successful. In addition, the rule does not restrict an allocation of time for tributes to be paid for persons who are not senators, or former senators.
That, Madam Chair, is the gist of the rules. If it is agreed, obviously, a recommendation would be made that you as chair would table a true copy of the rules. In the next few days, the pages will distribute copies of the new rule book throughout the Senate and to senators' offices.
The Chairman: Thank you, Mr. O'Brien.
Senator Kinsella: Dr. O'Brien, with reference to the index, will there be amendments to the index reflecting these new rules?
Mr. O'Brien: There have been, just using the marginal note and putting it in.
Senator Kinsella: Are the rules on-line now?
Mr. O'Brien: The Senate rules are on-line.
Senator Kinsella: Is there software that you can use to make sure that our index is the most efficient index?
Mr. O'Brien: That is an excellent point, senator. It is one of the projects I have been trying to work on with our computer people. I noticed the rules to major league baseball are on the Internet, and they have a search engine. If you are looking for a particular rule, you can zoom in on it. I think that would be useful.
Senator Kinsella: Doing it the manual, old-fashioned way, let me speak from my own experience. Sometimes when I am trying to find something and I go to the index, I do not find the index helpful. No doubt that is a reflection on me. I do not know whether other senators find that. Have we done some work on improving the index and the key words that are there?
Mr. O'Brien: We are very fortunate that the Library of Parliament assists us in making the index. Maybe I can turn the question over to Mr. Robertson, who has had quite a few conversations with the Library on this issue.
Mr. James R. Robertson, Principal, Law and Government Division, Parliamentary Research Branch, Library of Parliament: At time, I have the same frustration as Senator Kinsella, when I know the rule is there but cannot find it because I am in a hurry.
A few years ago, when we were doing the companion to the Rules of the Senate, we had extensive discussions with the indexers in the Library to try to make it more user-friendly. It may be time to revisit that. Perhaps we could talk to the indexing people in the Library, both with a view to trying to improve the accessibility of the index and also in light of new technology. The last time it was looked at, I do not think there were search engines available, or at least they were not commonly used. Perhaps this would be the appropriate time to develop a search engine and an index that would be much more easy to use.
The Chairman: I would suggest a motion in this committee to that effect, to enable our staff to initiate a conversation with the Library.
Senator Joyal: I would suggest that the people in the Library who specialize in indexing could be assisted by some of the people who use the index in order that they can be more sensitive to the user's approach to it, which is quite different from the general principle of drafting an index. That would be very helpful to us.
The Chairman: I think it would. We all, on occasion, are unable to find, in time, the particular portion of the rules that we need.
Senator Fraser: Further to that, would it be appropriate for each side to suggest to its caucus that, over the next several weeks, people who have had trouble finding something notify the appropriate person of what heading they expected to find and did not find, of what they were looking for under pressure and were unable to turn up? The more expert the people asked to work with the Library, the more likely they are to understand the index already.
The Chairman: And not to have problems with it.
Senator Fraser: Yes.
Mr. Blair Armitage, Clerk of the Committee: On our future agenda is the possibility of revisiting the revised Rules of the Senate. One of the organizing principles behind that revision was to make it far easier not only to find the rule one is specifically looking for, but also any cross-referenced rule that would be implicated. That is on the radar screen.
Senator Joyal: That is an appropriate issue. We have heard Speaker Molgat and Speaker Hays here. This is a process that has been started by the officers at the Table. We have had working sessions in this committee on that, but we have not heard where it is going. The steering committee might want to consider when we could schedule a continuation of that work that was started almost two years ago, if not more.
The Chairman: I would accept a motion to allow our staff to proceed along these lines.
Senator Joyal: I so move.
The Chairman: Is that agreed?
Hon. Senators: Agreed.
The Chairman: We are agreed.
I would remind honourable senators, before I ask for permission to table this, that these are rules that have already been passed by the Senate.
Senator Andreychuk: I went through this last night and what we have here is what we agreed to. Therefore, I do not think we should hold it up any further. However, in the course of looking at these, and particularly trying to apply them for the first time today, I think we have a gap in what we were discussing on Senators' Statements. We went around it so many times, and we looked at options.
We understood that the two leaderships would manage the 15 minutes, and that then the retired senator, should he or she still be here, would reply, if they wished. We then revert to the normal Senators' Statements for a further 15 minutes. Can senators make Senators' Statements at that time about the retired or deceased senator?
I do not think we ever considered that as an option. When I first looked at it, I thought that was precluded, but there is actually nothing in there that precludes it.
Does this mean we have a controlled 15 minutes and then an uncontrolled 15 minutes during which any senator is entitled to say what he or she wants on any topic, including the subject matter of the first 15 minutes?
I put that out for reflection on whether we want to do anything further or whether we are happy with that. We will see it in action today for the first time, and we can proceed from there.
The Chairman: I accept your suggestion. I think we will have to see how this rule actually operates on the floor of the Senate. However, it is my understanding that nothing ever controls what a senator says under Senators' Statement. A senator can speak during Senators' Statements on any subject he or she wishes to, including paying further tribute, unless it anticipates, of course, and we have been through that just recently.
Senator Andreychuk: It is a question that we did not canvass. We will see how it goes today, but the other 15 minutes is not controlled by the leaders; it is controlled by the Speaker. We will see how it goes.
The Chairman: Yes, we will see how it works.
Senator Sparrow: On this issue, it is very clear that the Leader of the Government or the Leader of the Opposition can initiate the discussion on tributes to a senator. It is clear to me that that is the case. This does not in any way allow a senator to initiate the discussion himself or herself at that time.
Second, how does the Speaker decide how many people can speak? Normally, a senator does not have to inform the Speaker or anyone else that he or she is going to speak on that issue or any other. There are two things that one cannot do. I believe, and would ask for advice on this, that a senator cannot utilize the first 15 minutes and then speak later on a tribute under Senators' Statements.
Also, how does the Speaker determine who will speak and who will not to speak?
The Chairman: I assume the Speaker would determine that in the way he normally does the speaking order, working first from his list and then recognizing people as they stand. You came in after Mr. O'Brien told us that this would not ever preclude a senator from using other Rules of the Senate to bring in —
Senator Sparrow: I understand that, in other areas.
The Chairman: That is right. One can bring it up as a motion, an inquiry or under some other heading.
Senator Robertson: If I understand the discussion correctly, after the 15 minutes for tributes, the other 15 minutes of the half hour could be used by senators to make a statement regarding this.
The Chairman: They could.
Senator Robertson: In other words, you might just as well have a half hour.
The Chairman: This is something that has already been passed by the Senate. We may find that there is a loophole that senators use in it, and at that point we may want to revisit it.
Senator Stratton: I have to ask Mr. O'Brien for his interpretation of the meaning of section (12) on page 5 of his presentation. It reads as follows:
Where a Senator seeks leave to speak after the fifteen minutes allocated for Tributes has expired, the Speaker shall not put the question.
I would ask Mr. O'Brien for his interpretation of what that means.
Senator Joyal: We had a long discussion on that.
Senator Stratton: I know we did.
Mr. O'Brien: With respect to the time allocated for tributes, if an honourable senator asks for leave to have the 15 minute period extended, because others did not get on the list or whatever, the Speaker will not put the question.
Senator Stratton: It does not get extended beyond 15 minutes.
Senator Sparrow: The individual speaker cannot go beyond the three minutes and the total period cannot exceed the 15 minutes.
Senator Andreychuk: It does not speak to the other 15-minute block of Senators' Statements.
Senator Sparrow: However, it does preclude someone from raising it in Senators' Statements.
Senator Andreychuk: I do not read it that way.
Senator Stratton: That is why I am raising it. My read of it is, no.
Senator Andreychuk: What I take it to mean, and what I think we were saying by that ``leave'' portion, was that it referred to the 15-minute tribute portion. Should I be the last speaker and ask for leave to continue, for whatever reason, the Speaker will not put the question. I do not know whether that rule could be interpreted to preclude senators from paying tribute in the 15-minute portion remaining of the Senators' Statements. As the chair rightly pointed out, no one can tell senators what they can say within their own Senators' Statements.
What we have done is taken 15 minutes out of the block of Senators' Statements to be part of a tribute statement controlled by leadership. The others are not controlled by the leadership; therefore, I am entitled to say what I want to say, unless the Speaker rules that one cannot cover the same subject matter. I do not know. We did not look at that; we will have to see how it will be applied by us.
The Chairman: I do not believe the Speaker could possibly rule because people speak all the time in Senators' Statements on the same subject matter.
Senator Stratton: We could have tributes during Senators' Statements. As long as that is clear.
Senator Joyal: I think rule 22(4) is instructive here. It constrains the subjects that can be raised under Senators' Statement. Rule 22(4) reads as follows:
When ``Senators' Statements'' has been called, Senators may, without notice, raise matters they consider need to be brought to the urgent attention of the Senate. In particular, Senators' statements should relate to matters which are of public consequence and for which the rules and practices of the Senate provide no immediate means of bringing the matters to the attention of the Senate. In making such statements, a Senator shall not anticipate consideration of any Order of the Day and shall be bound by the usual rules governing the propriety of debate. Matters raised during this period should not be subject to debate.
The limit is this: ``...a Senator shall not anticipate consideration of any Order of the Day and shall be bound...'' In other words, Orders of the Day is what limits the capacity of a senator.
The Chairman: It is nothing else.
Senator Joyal: You have to interpret the limit as the one being defined, unless I am mistaken, by the Orders of the Day. Since we do not find tributes on Orders of the Day, then, it is not on the Orders of the Day. Therefore, not being on the Orders of the Day, a senator can speak on it in the Senators' Statements. The limit has to be interpreted based on the definition of what is in Orders of the Day.
We have to check what the Orders of the Day in the index to know what it means.
The Chairman: I would point out once again this is something that this Senate has already passed, and we will have to wait to see how it plays out in practice. We may well have to revisit it because I think there are probably other loopholes we will find in this.
Senator Sparrow: This is for the committee to think about, but this is the first time the rules have been changed to take away the right of leave of the Senate. There are no other rules that take away the leave for unanimous decision for the Senate to do anything, and this takes it away. You cannot, with leave, do something about these tributes. That is a crucial part of this issue. We are stepping into that minefield of taking away the unanimous decision of senators. I would ask the committee to look at that closely.
The Chairman: You are quite right. This is something that came up on the floor of the Senate during this session. It was not sent back to this committee for further consideration, which I think it should have been.
Senator Fraser: In the matter of whether we should be perturbed about senators using Senators' Statements time to continue tributes, I think your suggestion that we wait and see how it works out is very well taken.
I would observe that I have had the privilege of sitting close to Senator Lapointe ever since he first launched this initiative. I know that his intent, and I think the intent of the people who spoke to him, was not to fasten onto 15 minutes as a golden number but rather to impose a limit. Even if every single Senators' Statement consisted of a further tribute, it still would be limited. We would have had a grand total of half an hour of tributes, which is a lot, but it is not the three-hour marathons that come to mind.
I think we need not be as worried about this. The honourable senator made a good point, but I am not sure in practice it will be that awful.
Senator Corbin: There is a great way of going around all of this. Two days before the announced retirement of a senator, I can give Notice of an Inquiry and 30 senators can piggyback on that inquiry that same day, or let it go on for days and weeks.
The Chairman: The ability to speak for as long as you wish — as far as a tribute is concerned to any particular person — is not limited by this. Its place on the Orders of the Day is limited. The first 15 minutes or half hour will expire; then it will be at the end of the day when we come to Inquiries.
Are we all in favour? Do I have permission to table this today?
Hon. Senators: Agreed.
The Chairman: Thank you very much, senators.
The committee adjourned.