Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 4 - Evidence - Meeting of June 14, 2005
OTTAWA, Tuesday, June 14, 2005
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:42 a.m. pursuant to its mandate under rule 86(1)(f)(iii) of the Rules of the Senate to consider quorum in committee.
Senator David P. Smith (Chairman) in the chair.
[English]
The Chairman: Colleagues, if we could get under way, I will give you an overview of our agenda today, and the primary item will be the review of the provisions relating to the definition of ``quorum'' for committees.
I will have Mr. Robertson give a précis of the background paper you have and, I am sure, have studied thoroughly. We can take questions on that.
With regard to other items, we will not be a position to deal with the oath issue probably until next week. Could you update us, please, Mr. Armitage?
Mr. Blair Armitage, Principal Clerk, Legislative Support Office: From what I understand in talking to Mr. Robertson, the briefing note on the oaths of allegiance in both official languages will not be ready until noon tomorrow. If we were to have the meeting tomorrow at noon, we would be distributing the briefing note for the first time then.
The Chairman: We probably do not need to have a meeting tomorrow, and we did strike this little committee on Inuktitut, which is composed of Senator Di Nino, Senator Joyal and me. Depending on how long we go today, we may be able to have a meeting after this meeting and not even have that subcommittee meet tomorrow.
The only other item, and it does not have to come up today, is that we never have finalized whether we take a position. I know the two caucuses do not view this issue the same way, namely, whether committee chairs are eligible to sit on Internal Economy. We can decide that after we have dealt with the first item. Let us move into the item that is before us. Mr. Robertson, do you want to give a précis of this item?
Mr. James Robertson, Principal, Law and Government Division, Library of Parliament: The paper sets out the quorum requirements of the Senate found in the Constitution Act as well as in the rules of the Senate.
With respect to standing committees of the Senate, the provisions that establish each committee set out the number of members to be appointed to each committee as well as the quorum requirement. In all cases, I believe it is four.
In addition, there is also a provision in rule 96(5) for subcommittees, which must have a quorum of three.
Most committees, as part of their organizational resolutions, adopt a motion to allow meetings to be held and evidence to be printed when a quorum is not present. The usual wording, which I think has been adopted in the case of all standing committees of the Senate, is to add ``provided that a member of the committee from both the government and the opposition be present.'' That is for the committees and the reduced quorum for hearing evidence.
In the case of joint committees, these are established on an individual basis and usually by a report to the Senate and the House, which is adopted. In the case of the special committees of the House and Senate, the quorum requirement is usually set out in the mandate or the order of reference creating the committee.
For reference, there is an outline of the procedures of the House of Commons. Standing committees of the House of Commons have a higher requirement for quorum. All their committees must have a majority of the members of the committee plus one to constitute a quorum. In the case of most committees, which I believe at present have 12 members, that would mean they would require 7 members to have a quorum to make decisions.
There is a practice in the House, which is authorized by the Standing Orders of the House, to allow House of Commons committees to adopt a reduced quorum for the hearing of witnesses. The wording of this is much more inconsistent, in that each committee tends to adopt slightly different wording. It is usually the chair and at least two members, including members of the opposition. Some provide that if no member of the opposition is present within a certain time, the reduced quorum can go ahead. The reduced quorum is only for the purposes of hearing witnesses and receiving evidence. No decisions can be made; no motions are receivable.
The paper also outlines the procedures in the United Kingdom, Australia and New Zealand for comparative purposes.
The Chairman: We might take some questions here. In the Commons, where they have four parties, three of which are opposition parties, I assume that would mean a member from any of the three. Would that include an independent?
Mr. Robertson: Independent members of the House of Commons do not sit on committees. They must be members of the committee.
The Chairman: There is no rule. It is the reality.
Mr. Robertson: The reality in the other place is that no person who is not a member of a recognized party caucus — 12 members or more — will be appointed to sit on a standing committee.
They are eligible, as are any independent senators, to attend any meeting of a House of Commons committee, but because they are not formally members, they are not counted in determining whether a quorum exists.
Senator Stratton: On the question of quorum of committees and attendance by the opposition, there is a high threshold. You say a 12-member committee would require seven.
In the traditional days there were only two parties, but now you have four opposition parties and the requirement for a quorum is still seven, so the likelihood of an opposition member being there is high. In other words, it is virtually guaranteed.
In the old days, when they only had two and the requirement was still seven out of 12, was the mix such at any time that the opposition would not be there? Does this high quorum requirement virtually demand that the opposition be there? That is the nut of this.
Mr. Robertson: The high quorum requirement in the House is irrelevant in a majority government situation. Since the composition of committees reflects the composition in the chamber, then if a government has a majority, i.e., more than 50 per cent of the members of the House, they will have more than 50 per cent of the members on each committee. Therefore, so long as you have a requirement for a majority plus one of the committee members to transact business, then government members alone would be sufficient to transact business of a committee so long as they were all present or substitutes were put in.
Obviously, in a minority government situation, the dynamics are vastly different in that no one party can constitute a quorum of a majority plus one. I have certainly seen cases where two or three parties have walked out of a meeting, thereby depriving the meeting of a quorum, and that is possible in a minority government situation.
In a majority government situation, even with a high quorum, it is possible for a committee to be composed, in practice, of a quorum solely of government members and to legitimately transact business of the committee.
Senator Di Nino: My concern is, as I said the last time, the situation we find ourselves in at this time in the Senate, and that is that the official opposition's numbers have been reduced to such a degree that we have scrambled sometimes to look for someone to come in so we could start a meeting.
I understand the other side of the coin, the mischief-making, et cetera, but our objective here should be to respect the democratic system, in effect to do whatever we can to run the institution in a democratic manner.
When I raised the issue two weeks ago, I believe, of having an official opposition member present, otherwise there is no quorum, it was with that intent. It seems as if committees generally will set that up at the beginning of a session. How many of our committees do not have that practice? How many of our committees do not follow that convention?
Mr. Robertson: Well, the only answer I can give is that every one except Internal Economy has adopted a motion allowing for the hearing of witnesses with a reduced quorum that would require a member of the opposition to be present.
Since no decisions are made with a reduced quorum, no motions are receivable, that is just the form of the resolution that has been adopted in each committee and it is obviously a courtesy to ensure that each side is represented when there is a reduced quorum. The quorum requirements for standing committees of the Senate are set out in the rules and cannot be varied by individual committees. That rule of four does not require any presence of either side. It just says ``four members of the Senate.'' It is probably a practice or a courtesy extended by committee chairs, in most cases, to at least allow sufficient time to enable both parties to be represented, and certainly that is the case in the House, I believe. They usually will wait, whether for the reduced quorum or the full quorum; they will try to ensure that both sides are represented by either telephoning the offices or checking, but that is not procedurally required. So long as there were four members of this committee present, the committee could transact business and make decisions regardless of whether they were all from one side or indeed from the other side.
Senator Di Nino: I think, Mr. Chairman, we should find an appropriate solution to that. I have a thought that I will express at some point in the future, but I really am concerned particularly with the situation that exists today, and in the foreseeable future it will likely get worse. We should give that serious consideration if we truly want to run the institution in a democratic manner.
The Chairman: I will give you a few thoughts on the challenge that we face. I do like candour and I want to be candid. I can tell you that the leadership of the government side is not exactly enthusiastic about going down this road and that would probably be an understatement, and fair enough.
Senator Stratton: Thank you for saying that. It is not a surprise.
The Chairman: No, it is not a surprise, but let me give my own reaction to that. I think the concern is that you do not want to put the institution in a straitjacket, and I am not suggesting that Senator Stratton and Senator Di Nino are the type who would want to torpedo committee work, but who knows who may be in these positions down the road, and they may not be as reasonable as these fellow senators are.
It is one thing to say ``as a courtesy,'' and that is a good phrase. In other words, where you know that there is no boycotting. What normally happens is, like this morning, for example, if you fellows had been late we would have waited because we know there is no boycott. If in fact, for whatever reason, less reasonable people than you two gentlemen might be there, something might happen, and I have my own qualms about what the government or what the opposition did on the GST. I do not entirely agree with what the Liberals did. It is not black and white. It is grey. I just do not think you want to put yourself in a straitjacket in terms of vetoes.
The other issue is, in the Commons — they are not in that straitjacket either — it is different, where you have three opposition parties and if you only need one opposition member for certain things, it would be pretty rare for all three of them to be, say, in the boycott category. Having said that, they still have not put themselves in that straitjacket. Mind you, it gets into a definition of when you have a majority, as Mr. Robertson has already spoken to.
Therefore, to the extent that it is worth massaging something that is a courtesy into a general operational rule, there might be some thought given to that, but to actually put oneself in a straitjacket that invites boycotts is a problem. I do not know how we can go down that road.
Senator Stratton: I do not disagree. You cannot do that. There is a point at which, having been here a while and having gone through some of these issues where committees decide, the chair decides, that they will get through a bill, come hell or high water, there is a reasonableness on the part of the chair to ensure that the opposition has been heard. I think that becomes crux, and you cannot write that into the rules. If the chair chooses to be unreasonable, he or she will be unreasonable and you will not get around that. One of the weapons that the opposition uses is simply to boycott. If the chair is seen to be unreasonable then we boycott. The chair then makes a determination as to whether or not they will do clause by clause on the bill and get it rammed through and into the chamber. That is a weapon of the government, and the boycott of committees is a weapon of the opposition. I do not see how you get around that, to tell you the truth, although I would like to. You cannot straitjacket committees.
However, the emphasis has to be placed on reasonableness. It has been perceived by my side on two or three occasions from personal experiences, not necessarily with the same chair, that it became a matter of reasonableness. Whether you are a day later in hearing witnesses or doing clause-by-clause rather than a day earlier becomes the definition of what is reasonable or unreasonable. That is where we have a problem. The only thing that can be reinforced in caucuses is that a decision by a chair to do something unilaterally should be discussed in caucus. If the decision by caucus is to take unilateral action, I would expect that decision to be carried out, but not of the chair's own volition. We are supposed to be first among equals in this business, and I do not like to see someone playing God.
[Translation]
Senator Robichaud: Committee chairs are not at liberty to do as they please. They need the support of enough members to proceed with a clause-by-clause study, or to decide future business. These types of situations arise at the end of a session, usually before the holidays or summer break, when the government tries to get some bills passed and the opposition attempts to delay passage of the legislation. Everyone would like to leave before the end of June, but in order for the government to move forward with its agenda, certain bills must —
[English]
Senator Robichaud: Most of the time people are quite reasonable. It is only in extreme circumstances that senators will try to find ways of holding things up. I have no problem with that. However, if you say that for a quorum you need one member of the opposition, if he or she just decides not to show up, then everything is stopped right there. We should not go that way.
We should consider a certain delay in calling the meeting to order to allow time for the opposition member to arrive. I realize in some cases two committees are meeting at the same time. The whip of either party always has the job of ensuring that the membership is at each committee when things are being discussed.
I would be ready to look at a reasonable time for people from the opposition parties to show up at a meeting. However, I cannot go along with saying that if they are not present, there is no meeting.
Senator Furey: I agree with a number of my colleagues who have indicated that there is no need to bring in a rule requiring a member of the opposition be present. Before this morning, I thought one of the main problems with it would be the boycotting of committee hearings based on principle. However, Senator Di Nino added a new dimension to that by talking about the concept of convenience as well. There could be times when the opposition does not have the numbers to send to meetings, and it would just paralyze the work of committees.
I fall back on and agree entirely with Senator Stratton's concept of reasonableness. Reasonableness should be the order of the day. If for some reason a committee is meeting outside its normal time and it is impossible for members of the opposition to be available at that time, consideration should be given to looking at another time and being reasonable about it, if it is not a case of the other side being ornery and not wanting to have the meeting. To implement the change would paralyze the work of committees.
Senator Di Nino: I said at the outset that I had a suggestion, although I have not thought it through. I certainly would agree with all of the comments that we should not stop the work of the Senate.
My concern is when decisions are made. Decisions are made without the opposition present for appropriate reasons. I wonder if we could have something along the lines of after a 15-minute period, the meeting would go on, the witnesses heard, evidence taken and recorded, and maybe it would be decided at that meeting that no decisions would be made and to give the opposition an additional meeting. Maybe you could miss the first meeting, but if you miss a second meeting, then the work of the Senate has to go on, clause by clause has to be done and decisions have to be made. Certainly, my intent is not to stop the work of the Senate.
Senator Robichaud talked about two committees meeting at the same time. I am sure you have noticed the problem we have had in the last month in particular. Some of your committees have had trouble meeting quorum. We have had two or three committees travel. There were two committees travelling for the longest period. I thought we had lost a couple of our senators forever. With a couple of committees travelling and a couple of committees meeting at the same time, we do not have the horses. That is the reason. You have your own excuses. We have reasons. We just do not have the horses.
My point is that the issue with your caucus is not our concern. My concern is when we have a couple of committees travelling and a couple of committees meeting at the same time, we have to pull one person from one meeting to go to another and help make quorum and then go back and forth between two committees. Certainly, as reasonable people, we should find a solution to that. I agree that at some point the tables will be reversed, as in the past. As I said, we should safeguard ourselves against mischief-making or blocking the work of the institution, but there certainly can be some consideration of how to deal with the issue we face today.
The Chairman: Your idea is in here at the bottom of page 6, from the Commons, where they wait for 10 minutes to hear evidence.
The protocol here is just about every chair would wait for 10 minutes. I usually wait for 15. That is certainly not unprecedented.
Senator Milne: Reading through this quickly, it is interesting to me that the U.K., Australia and New Zealand do not require an opposition member to be there. It seems to me it is a kind of meeting of minds.
It would concern me very much if we put into the rules that an opposition member must be there before a committee could meet quorum, because I can see at the crucial times, in June, before Christmas, when you suspect there will be an election coming up and there is always a last-minute rush to get legislation through, it would allow either one side or the other to shut down the workings of the committees. That concerns me very much, particularly committees such as National Finance, as that could in effect shut down the government as well.
Senator Joyal: As I read rule 89 of the Senate and the organizing resolution that most committees adopt at the beginning of their first meeting, it is the resolution on page 2 of the French version, which says that in the context of a reduced quorum there should be a member on the government side and on the opposition side. It is in the case of a reduced quorum. In other words, if quorum is met, say by the government members, the committee can legally go on with its business.
In practical terms, there might be room for improvement of the organizing resolution at the beginning of each committee's structural meeting on the basis of what the chairman has said, that in the absence of a representative of the opposition there is a time period, a courtesy period of 15 minutes. It does not mean that if the opposition does not show up, in practical terms the committee cannot hold its meeting. The committee could still hold its meeting, but there is no doubt that if the opposition decided to boycott a committee's work, for instance because they want to hear more witnesses or feel that the debate has not been completed on some key clause of the bill, or that the opposition is not in position to go to clause by clause, normally those issues would have been discussed at the steering committee. The steering committee is normally the place where those decisions are vetted and the chair of a committee is in a position to report to the committee the stand of the opposition on the progress of the committee's work.
Therefore I think that if we look into each sequence of the movement of a bill in a committee, there is at each step a capacity for the opposition to express its views on the next step of the work of the committee. Also, the opposition, of course, does not have control of the steering committee, but the chair is in a position to report to the committee the status of the opposition view in relation to the progress of the bill.
Is there a need for improvement of the practice of committees because a resolution adopted by a committee at its organizing meeting can be voted down at a further committee meeting? It is not a fixed resolution. Theoretically, another meeting can decide to change that resolution. I have not been privy to any decision of committees I have been attending in the last eight years I have been here whereby those ``organization rules'' have been set down later on in the committee's work.
It is important to me that at the beginning, when a committee is organized, to establish those points clearly, such as how the committee will function in terms of making sure that the opposition is not only invited but the committee recognizes sometimes the difficulty of the opposition in attending a meeting. However, it is up to the deputy chair of the committee to decide, in consultation with the chair, if there will be a problem down the road. If you wait until the problem arises then you are in the middle of a political discussion, but I think the steering committee has a very important role in the planning of the committee's work and it is certainly not the chair alone who decides that. The courtesy of committees, and the practice of committees, is to involve the steering committee at each step of the organization of their work. Maybe there is a possibility, as you said, of adding to the organizing resolution at the beginning to provide for prior information of the opposition, prior commitment of the steering committee and so on, so that we know the rules ahead of time. Of course, sometimes we tend to forget that we have adopted an organizing resolution, but it is important for the clerk of the committee to be aware of the organizing resolutions and bring them back at times when the problems appear, if they do. We know when the problems will appear. It is when there is a bill that is contested or hotly debated, or when the government is in a rush to get a bill through. We know the circumstances in which those problems arise normally.
I think there is a possibility of doing better planning of how the opposition should be offered the courtesy of being waited for when late or participation in the planning of the work of the committee. Then it is up to the chair to report to the committee if there has been an agreement or not before we are faced with a major problem. It is a question of organizing the work properly on the basis of the understanding at the beginning of the committee's work, when it is struck, that we can find a solution to the preoccupations of the opposition and the fair preoccupation expressed by the chair that business has to go on, but with a fair chance given to the opposition to participate in the various debates surrounding bills or issues that are before the committee.
The Chairman: I have a question from Senator Milne and then Senator Robichaud and then I think I have a pretty clear idea of what we might do.
Senator Di Nino: I have a pretty good idea too.
Senator Milne: I have some concerns about how you would force a committee, or a steering committee or a chair, to do this sort of thing, or ``encourage'' them would be the better word, because every committee in this place that I have been on operates on a different understanding, a different modus operandi, and some of them do not even have steering committee meetings.
Senator Joyal: I am talking about my own experience. Maybe once I was on a steering committee because I was replacing someone. I have never been a chair or a regular member of a steering committee, so maybe I am not speaking on the basis of personal experience, but the committees I have been attending regularly — this committee, the Legal and Constitutional Affairs Committee — seem to have functioned pretty well because there was that kind of understanding, of trying to achieve consensus first. The idea is to achieve consensus first in order to avoid the kind of stiffening of relationships in committee that makes the life of the committee more difficult. It is possible I am not aware. I was maybe under the naive impression that most of the committees would have a steering committee, but there may be some with more autocratic views.
[Translation]
Senator Robichaud: We must take into account not only government bills, but private bills tabled by senators as well. There are already enough problems in the Chamber when some senators decide to adjourn debate, while others would like to continue debating an issue. We have seen examples of this recently.
Work could come to a standstill because neither the opposition nor the government in the Senate is responsible for pushing through legislation. These bills could be left to languish or could be set aside simply because senators fail to show up for a committee meeting. Fairly controversial bills are slated to come before the Senate shortly.
[English]
Senator Di Nino: No one is suggesting that.
Senator Robichaud: No, I am not suggesting, I am just saying that those bills are also important.
Senator Di Nino: I am totally in agreement with you because the work of Parliament has to continue. It cannot be paralyzed, it cannot be blocked. We will all try our own tricks politically within the rules. That is not what I am talking about on this issue.
Senator Robichaud: That is why I do not want to give you the rule so that you can play that trick.
Senator Di Nino: I also do not want that rule. I told you, my friend, Senator Robichaud.
The Chairman: If we can conclude this item for today then our little subcommittee on Inuktitut can get going and we will not have to have another one tomorrow. It is clear to me there is no momentum to move in the direction of anything that would put us in the boycott or paralysis category. I do not think we are hearing that from anyone. There is a lot of sympathy for the courtesy approach, and that word is used several times in here, but you fall into the challenge that Senator Stratton outlined, and that is how do you define ``reasonable'' and how do you define ``common sense''? It is always a challenge, and perhaps there might be a little review over the summer of some of these structures because there are a couple of things we do really need to try to deal with before we rise for the summer, and Inuktitut is one of them.
Therefore I would suggest that we put this on the back burner and the clerk and I might chat and talk to Senator Lynch-Staunton, and Senator Stratton might give thought to the fact that Senator Lynch-Staunton is the vice-chair. To the extent we need a vice-chair to dialogue with over the summer you might give that a little thought.
Senator Stratton: That is in process.
The Chairman: Thank you. We might leave this until the fall, so that the issue is not dead, but we will just move ahead with other things on which there is greater consensus. Does that seem reasonable?
Hon. Senators: Agreed.
The Chairman: Then we can adjourn today and we do not need to meet tomorrow.
Senator Stratton: Briefly, I know that we discussed an issue from the last Parliament, Senator Gauthier's matter about the use of computers in the chamber. If we are bringing forward old items from previous Parliaments, I know of a few, having sat on this committee for a while now.
The Chairman: We did talk about that one last week.
Senator Stratton: I may not have been here. I may have needed to be somewhere else. I would like to see the list, if I could. There is a list of items, because in the past we always refreshed people's memories by publishing a list of outstanding items that have not yet been dealt with. I would like to see that done so at least we know that items that have been referred to this committee by the chamber in previous Parliaments and whether any of them really should be dealt with.
The Chairman: We will have that list for next Tuesday's meeting and by then we will also have the necessary material to deal with the oath question.
While we are on this though, the laptop issue did come up. There was no consensus to go that route. As far as we are concerned that has been dealt with. The other item, which was not completed, was whether chairs can serve on Internal Economy, and in our caucus there was no consensus to change the current rule, whereas I believe you advised me that in your caucus there was support for that proposition. You may recall the paper done by Mr. Robertson, which had five options, and the third bullet point was to leave it up to each caucus to have whatever modus operandi they think is appropriate. Therefore, our caucus does not want to say that they are precluded unless someone wants to raise it at our caucus and try and make that case — and good luck. If your caucus wishes to have that as your modus operandi that is your call. Maybe that is as far as we can go. Do you wish to respond?
Senator Stratton: Again, I know there was not unanimity in our caucus as to that position, and I will take it back to caucus and say this is where this committee essentially stands on the issue and what position do you want to take? Do you agree?
Senator Di Nino: If their caucus has taken a position to let the status quo continue, frankly, the issue is dead because it would be voted down in this committee.
The Chairman: I almost feel in a quasi-conflict of interest, in that I am on Internal Economy and I am chair of this committee, but that was not my idea, it was Senator Austin's idea. Senator Furey is in the same situation in that he felt that both of us had to be on each other's committee because that has always been his philosophy. It is well known that his viewpoint was perhaps a little different from his predecessor's, but in any event that is where we stand on that issue.
Senator Di Nino: I think the issue is dead.
The Chairman: I think it is basically dead, but we certainly would not quarrel with your caucus having whatever modus operandi you want.
Senator Milne: There were issues in a report from this committee when Senator Austin chaired it, I believe the fourteenth report. We were gradually working through it a couple of sessions ago and getting some of those issues resolved one at time, and I think we should take another look at them because the entire report did not pass. There are issues about petitions and a number of items that this committee has already considered and decided on, but the report was not accepted and did not have the opportunity to be adopted by the entire Senate. Therefore we should put those on the list as well.
The Chairman: We will have that list and then next Tuesday we will deal with the oath issue, which will be properly before us with the necessary background, and that might be a lively discussion.
We will now rise.
The committee adjourned.