Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 1 - Evidence - Meeting of October 26, 2004
OTTAWA, Tuesday, October 26, 2004
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:36 a.m. pursuant to its mandate under rule 86(1)(f) of the Rules of the Senate to consider the printing of an updated copy of the Rules of the Senate of Canada.
Senator David P. Smith (Chairman) in the chair.
[English]
The Chairman: Honourable senators, we will begin with the first item on today's agenda, for which Dr. Gary O'Brien, Deputy Clerk and Principal Clerk of the Senate, will provide advice.
Dr. Gary O'Brien, Deputy Clerk and Principal Clerk, Legislative Services, Senate of Canada: The sixth report of the Internal Economy Committee was tabled in the last session of Parliament on March 31, 2004. The report dealt with the establishment of the Senate administrative rules, which is a project that had been before Internal Economy for some time. As we know, the Senate administrative rules is an attempt to set out, in a transparent way and within one document, the administrative policies of the Senate defining the policies of Internal Economy, the entitlements of senators, the salaries paid to various officials within the Senate, the policies regarding travel, and all the administrative policies of the Senate. There was a proposal that certain rules of the last version of the Rules of the Senate, February 2004, be placed in this document principally because they dealt with administrative policies. They were few in number but, specifically, they dealt with procedural guidelines for the financial operation of Senate committees — all the steps that committees take to obtain their budgets. Those guidelines had been included for many years as an appendix to the Rules of the Senate. There was also a rule that the clerk's accounts be tabled annually in the Senate.
The Internal Economy Committee proposed a change in its mandate to reflect the wording that is now encompassed in the Parliament of Canada Act. As you recall, in the early 1990s the Parliament of Canada Act was substantially amended to give Internal Economy statutory powers with respect to the administration of the Senate. For example, it is the only committee that continues during a prorogation or dissolution of Parliament. The act also clearly states that the Internal Economy Committee is the corporate body responsible for the administration of the Senate. The proposal was that the mandate of Internal Economy be changed to bring it in line with the wording of the Parliament of Canada Act and to make it clear that the Internal Economy Committee is charged with the responsibility of interpreting and enforcing the Senate administrative rules.
The sixth report of the Internal Economy Committee was adopted by the Senate on May 6, so these rule changes did take place. They are already on the Senate books; they were agreed to by the Senate. The purpose of today's meeting is just to have your blessing to reprint the Senate rules to incorporate these new rules changes that have taken place since February 2004, and to table them in the Senate so that our rule book is kept current.
The other issue is to keep our index current. When Senator Milne was chairman, when I appeared the last time, she said that if senators had any suggestions to improve the index, to please forward them to us. You have done that, and the changes that we made have been incorporated into the new index. There have been some changes to how the index reads, in the sense that if the header of the entry is carried over to the next page, there is a small note to let senators know that heading is continued to make it easier.
Over the summer, working with Computer Services, an electronic search engine was developed for the Rules of the Senate based on a key-word search. It is hoped that at some point this could be put up on INTRAPARL, so that senators and staff would have the ability to search. It is not perfect. It has been demonstrated to the Speakers Advisory Committee, the SAC, on the first day of this new Parliament, and we are still awaiting the reaction from the leadership. It is user friendly; an electronic tool makes going through the index much easier.
That is the gist of the proposed rule changes. In terms of the briefing note that was circulated, the mandate of the Internal Economy Committee has been altered. The rule regarding the clerk's accounts being tabled annually before the Senate is now deleted from the Rules of the Senate and is found in the Senate Administrative Rules on page 3-16 under item number 5. Appendix II of the February 2004 Rules of the Senate has been deleted. This was the Procedural Guidelines for the Financial Operation of Senate Committees. This is now described in chapter 3:06 of the Senate Administrative Rules.
A consequential amendment has also been made in rule 103. Rule 103 stated:
The financial operation of Senate committees shall be governed by the procedural guidelines set out in Appendix II to these rules.
That rule now would read as follows:
The financial operation of Senate committees shall be governed by the Senate Administrative Rules.
That was the intention of the proposal. The index was also revised based on comments received from senators.
If it is your wish to have the chairman table the new revised rules, the Senate pages would ensure that a copy would be put into all the senators' desks and sent to their offices by Wednesday, tomorrow.
Senator Lynch-Staunton: Do I understand that should the Internal Economy Committee want to change the process regarding how terms of reference are asked for, budgets and so forth, they can do so on their own, that this committee is no longer involved?
Specifically, right now the Senate is asked to approve terms of reference of a committee for a special study, and then in time a budget is presented to the Senate. Some of us have thought that that is reversing things, that it should be budget and terms together, or budget first and then terms. If we wanted to change the process, could Internal Economy do it on its own, or does it have to come back to this committee for approval?
Mr. O'Brien: No, the Senate Administrative Rules makes it clear on the powers of Internal Economy that they would have to report new policy decisions as well as changes to the Senate Administrative Rules. These rules were adopted as they are by the Senate. They are responsible for interpreting and administrating the rules, but not amending the rules.
Senator Lynch-Staunton: Would any change in these administrative rules have to go to the Senate for approval?
Mr. O'Brien: Back to the Senate, that is correct.
Senator Lynch-Staunton: That is too bad.
Senator Milne: If they go to an on-line system for the rules, where they can be easily searched, will there be a terminal available for senators to use adjacent to the chamber so they can go out and search for something when they need to?
Mr. O'Brien: That is a very good question, Senator Milne. That has to be developed, and it is not clear that Blackberries are an efficient way to make a search linking into this. I am told that it is possible but very difficult, so there would have to be some kind of a terminal set up.
Senator Milne: I hope everyone, including Internal Economy, will make a note of that.
Mr. O'Brien: I am sure they will.
Senator Joyal: I would like to refer you to Division 5:00, ``Entitlements of Groups of Senators and House Officers.'' You will find it on page 5-1 of what we have circulated this morning, the Senate Administrative Rules.
On that page, under ``Chapter 5.01 The Senate,'' you will see the heading ``Senate Precincts,'' and then further down on the page you will see the heading ``Service in to the Chamber,'' under which there are two paragraphs, 3 and 4. I wish to draw your attention to paragraph 4, which I will read.
During a sitting of the Senate, every member of the staff of the Senate in the Chamber shall observe the direction of the Speaker or of the Senator acting as the Speaker in preference to any direction received from any other source of authority.
Could you give me an idea who the ``staff of the Senate in the Chamber'' refers to?
Mr. O'Brien: The rules provide that only authorized staff is allowed on the floor of the Senate while the Senate is sitting, so that would only include the table officers and the pages, the black rod and the mace bearer. I do not recall anyone else.
Senator Joyal: I raise this issue because we have a case in the Supreme Court of Canada about privileges. In reading that article, I was trying to understand the limit and the scope of the definition of the ``staff of the Senate in the Chamber. To me, it is an important understanding. I am of the opinion that the ``staff of the Senate in the Chamber'' are part of the deliberative and legislative process or proceedings of the house. In other words, when we deliberate, when we debate, when we study a bill or a motion or an issue brought forward either by the government or any senator, there are a certain number of persons that are in the Senate and are essential for the deliberative or legislative initiative in the Senate.
In your opinion, are there other people who could be under the direction of the Speaker or the Acting Speaker who would be essential for the performance of the constitutional duties of the senators in the chamber?
Mr. O'Brien: This rule is limited to only the people on the floor at the time, which would include also the stenographers.
In terms of your general question, it is quite broad and it always comes up when a Senate staff member is served with a jury duty notice. It can be quite broad. For example, the journals staff is quite essential to the operation of the Senate. They have written to the sheriff that these people be excused, and the sheriff has recognized the privileges of the Senate, if the Senate feels that these people are essential to the legislative process.
It is not a set definition. It depends on the activities that day and what this person is doing, but it is quite broad in that context.
Senator Joyal: In other words, we should not take literally the wording of paragraph 4 on page 5-1 of the Senate Administrative Rules?
Mr. O'Brien: No.
Senator Joyal: On the following page, Division 5 is entitled, ``Entitlements of Groups of Senators and House Officers.'' Under ``House Officer,'' we see the headings, ``Speaker,'' ``Leader of the Government in the Senate,'' ``Leader of the Opposition in the Senate,'' ``Speaker pro tempore,'' ``Deputy Leader of the Government in the Senate,'' ``Chair of Standing Committees,'' ``Deputy Chairs of Standing Committees,'' among others. I will not enumerate all of them, but they are listed there.
I am puzzled by the term ``House Officers.'' In my opinion, a house officer is someone who is employed. For instance, you are an officer of the Senate, the main clerk is an officer of the Senate, the black rod is an officer of the Senate. However, to me, the speaker or a deputy chair is not an officer of the Senate, per se. I wonder if the title is accurate.
Mr. O'Brien: Mr. Chairman, that is a good point. That definition is taken from the Senate estimates. The officials that you have listed are described in the Senate estimates. The line object is always ``Officers of the Senate.'' They are traditionally keeping the same nomenclature they have used for years. It could be improved.
Senator Joyal: It comes from the estimates and probably from the Parliament of Canada Act. I did not check in the Parliament of Canada Act as to whether they are entitled ``Officers of the Senate,'' per se. However, the common understanding of an officer does not exactly mean the Speaker of the Senate or the Leader of the Opposition, or any of the other positions that are described in the following articles.
Mr. O'Brien: Beauchesne would describe the Speaker of the Senate as a presiding officer and the Speaker pro tempore would be a presiding officer. There are also other presiding officers, including the clerk.
Senator Joyal: I understand the use of vocabulary comes from other sources, and we produce it to be understood logically with other statutes that apply in the Senate. I still have a doubt about the definition of an officer in that context. That is what I want to understand because, as I mentioned, there is this whole issue of privilege that perhaps will come back in front of us, depending on the decision of the Supreme Court regarding privilege. It might involve the term ``officer'' and the definition of who is under immediate Senate control and who are essential for the performance of the Senate.
This is not the appropriate forum to discuss this matter this morning, but everything must be logical in our system. I am trying to understand how it fits into the overall performance of the Senate.
Senator Cools: I have a supplementary on Senator Joyal's question. My understanding, Mr. O'Brien, is that there are only three officers of the Senate — the clerk of the Senate or clerk of the Parliament, same person, the law clerk, and the black rod, who is really Her Majesty's personal officer, although you can say he is an officer. My understanding is that you are not an officer of the Senate. The new Senate ethics person will also be an officer of the Senate.
My understanding is that Mr. O'Brien is not an officer of the Senate. You can be called a table officer at times, but there are only three real officers of the Senate: the clerk, the law clerk and the black rod. Am I correct?
Mr. O'Brien: I believe so, yes.
Senator Cools: This whole use of the term ``officer of the Senate'' should be thoroughly explored by us. Beauchesne is filled with a lot of mistakes and a lot of their own creations, whoever writes it.
Senator Kenny: I have a supplementary question. Senator Joyal is on to something that is very important. On the surface, it does not seem to be, but a half inch under the surface it can be very important to us. It brings to mind the Giguère case, where, on appeal, he was referred to as an official. The French translation was actually ``fonctionnaire.'' It has implications, for example, in sections 119 through 126 of the Criminal Code, where suddenly senators are captured in a way that, prior to Giguère, they had not anticipated that part of the code applying.
While it seems — no offence Senator Joyal — that he is dancing on the head of a pin a bit here, Senator Joyal is not. It is an important platform that we establish clearly who are officers and who these other people are and what they are doing there. We should think carefully about the words we use because it will come back in another forum to bite us.
The Chairman: Mr. O'Brien, do you wish to respond?
Mr. O'Brien: That is duly noted and this transcript can be forwarded on to Internal Economy.
[Translation]
Senator Robichaud: As I understand it, Mr. O'Brien, the process to be followed by a committee to obtain a budget is the same as before?
Mr. O'Brien: That is right.
Senator Robichaud: We must first obtain the order of reference. Later on the committee agrees on a budget which is submitted to the internal economy committee which reports on it. Am I right?
Mr. O'Brien: Definitely.
Senator Robichaud: We have not addressed the concerns of Senator Lynch-Staunton who, when he was House leader, would have liked to see the two combined when a committee made representations to obtain an order of reference. In this way, senators would be aware of the potential cost involved in terms of expenditures and support. You are telling us that exactly the same process is still in effect?
Mr. O'Brien: Yes.
[English]
Senator Lynch-Staunton: In reading page 3-19 under ``Division 3'' reasonably carefully, I do not find anything there saying that the terms of reference have to be secured first. Is there an obligation somewhere else, or has it just been a custom?
If you look at what I call paragraph 2, it says that a ``committee budget for expenses not referred to in section 1'' — and those are standard budgets for a study of bills — shall be:
(a) adopted by the committee
(b) submitted by the committee to the Internal Economy Committee...
(c) presented to the Senate by report...
It does not say anything about a special study having to be approved first by the Senate, unless it is in the rules.
Mr. O'Brien: The rules have not changed. Each of the mandates of the committees is described in a general way, and it always says, ``if there is a motion to that effect to study'' a bill, subject matter or whatever. The normal procedure has not changed. The committee must obtain, through a motion, an order of reference to do anything. The procedures have not changed.
Senator Lynch-Staunton: That is in this book here.
Mr. O'Brien: Yes, to get business before a committee, except for the Rules Committee, which is authorized by the rule to study anything with respect to proposed changes, and the Internal Economy Committee, which has a statutory reference but also has a general reference to the rules.
[Translation]
Senator Robichaud: To follow up on Senator Lynch-Staunton's comment, was that process not set out or explained in appendix while this is no longer the case?
Mr. O'Brien: The process was not explained. I am not sure; I must look at what is said precisely. In fact, the Senate administrative rules are only administrative rules for the Senate administration. The rules governing the Senate process have not changed at all.
[English]
The Chairman: Senator Milne, you are the last on the list. At the foot of the briefing note before us, there is a recommendation, if someone feels so inclined, to draft a motion.
Senator Milne: I have a suggestion. The points that Senator Joyal brought up are important. Language is extremely important. Perhaps we should ask Mr. O'Brien to draft a rule that this committee could look at that would state the definitions of official, officers and so forth. The whole committee could then look at it and perhaps put it into the Rules of the Senate to deal in the future with things like the Giguère case, where we are caught by language.
The Chairman: If the committee is so inclined, we could have such a motion. One thing that will become clear when we get out into the committee's work plan is that completion of the code will have to take priority over new ventures. There will be an opportunity down the road for the type of work you have pointed out.
Senator Milne: Mr. Chair, since this is a brand new thing, the Senate Administrative Rules being separate from the Rules of the Senate, perhaps we should take this opportunity. Since it has already been passed and it is already a done deal, let us take the opportunity in the near future to look at that language. We will get caught on the language.
The Chairman: Are you putting that in the form of a motion?
Senator Milne: No, I am putting that as a suggestion for future business of the committee. If you want a motion, I will so move.
The Chairman: It is up to you if you wish to move a motion, but we have duly noted it.
Senator Joyal: On the same point, Senator Kenny has raised another aspect that we have discussed here. I remember very well when Senator Milne was chair on the first phase of the legislation pertaining to the appointment of an ethics officer. Regarding section 19 of the Criminal Code, Mr. Audcent drew our attention to the fact that this is a priority that we should address. Sooner or later, there will be a case, and we will be facing the follow-up of a decision. This is still a pressing issue, especially if we are to streamline our rules of conduct in a way that we all understand the implications. Again, I wish to re-express the testimony of Mr. Audcent, who testified clearly in the previous incarnation of Bill C-4 on that issue.
It may be helpful for all of us to refer to the testimony of Mr. Audcent in our minutes and for all of us to meet again to decide what to do with this.
Senator Kenny: Mr. Chairman, we had the case. It was Cogger.
Senator Cools: It was Cogger.
Senator Joyal: My other question relates to Division 3 of the Senate Administrative Rules, entitled ``Senate Resources,'' under Chapter 3.02, which is ``Conflict of Interest.'' I am referring to page 3-5 there. The last paragraph on that page reads as follows:
The Internal Economy Committee shall adopt a policy to govern the avoidance of conflicts of interest by Senators and by members of the staff in the administration of the Senate.
To me, that is needed; I have no problem with that. It is a policy.
How should we take that into account later on in the deliberations of this committee about the rules of conduct?
The Chairman: The final item on our agenda for today is where the committee goes from here. I am trying to wrap up this item, which would require, given that this has already happened, a motion to the effect that the October version of these rules be reprinted and that I be authorized to table that reprint.
Some of what we heard in the last few minutes probably makes more sense to be in today's last agenda item.
Senator Fraser: I will give you your motion in just a moment. You keep asking for it; I will be glad to provide it.
I would just like to observe that I think every version of the code that we looked at preserved the Internal Economy Committee's jurisdiction over the appropriate use of Senate resources. That would have to do with contracts for staff and things like that; it has much less to do with a senator's own personal conduct. I think everybody agreed that there were two separate fields there and that what this committee was looking at was not administrative rules about how you run your office.
I move:
That the rules of the Senate be reprinted to incorporate the amendments adopted by the Senate since 2004 and that the chair of the committee be authorized to table the reprint in the Senate.
The Chairman: All in favour of that motion?
Some Hon. Senators: Agreed.
Senator Cools: I disagree strongly.
The Chairman: We have one person disagreeing.
Senator Joyal: I have no quarrel with the point raised by Senator Fraser. I just want to ensure that, when we eventually adopt rules of conduct, the policy of Internal Economy is included as an annex or an addendum to the rules so that senators know exactly what they have to do in relation to Internal Economy in order to avoid any conflict of interest. That is part of the effort that we are making to streamline the information so that every senator knows his or her responsibilities and duties in relation to avoidance of conflict of interest.
The Chairman: Have we completed this item?
Senator Kenny: I want to make a small observation. It is getting really complicated to be a senator.
Senator Cools: Beyond that.
Senator Kenny: I have spent a fair amount of time sitting on this committee, as well as on Internal Economy, and I think I have some understanding of the rules. However, it gets more complicated each day. I am concerned that we develop these rules for the ways in which we should be living, but we do not put in place procedures to educate ourselves so that our colleagues who do not have the benefit of these meetings, and who may have just arrived, know what is governing them. We could even use a refresher for people who have been around for a while, to enable them to stay on top of what is going on.
This is as important a responsibility as writing good rules. It falls on the chairman and this committee to ensure that there are vehicles in place to assist our colleagues and ourselves so that we do not run afoul of these things inadvertently. There is a lot of stuff here.
The Chairman: I understand what you are saying. I am organizing a crash refresher course for myself. If anyone is really keen, speak to me privately, and I can let you attend.
Senator Kenny: With respect, Mr. Chairman, if you, as chair of the committee, need a crash refresher course, God help the rest of us.
The Chairman: That is probably true.
Thank you very much, Mr. O'Brien.
Item 2 is approval of the rule 104 report, which you should have in front of you. This is the $3,912 we spent in the last session, which will be tabled in the Senate this afternoon by myself, if approved.
Could we have a motion to approve it?
Senator Milne: I so move.
The Chairman: All in favour?
Hon. Senators: Agreed.
The Chairman: Carried.
Our plan is to now go in camera for consideration of a draft agenda for our future business. Is it agreed that we will now go in camera?
The committee continued in camera.