Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 3 - Evidence
OTTAWA, Tuesday, March 24, 2009
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 10:04 a.m., pursuant to rule 86(1)(f)(i) of the Rules of the Senate, to examine procedural considerations arising from the amendments to the Conflict of Interest Code for Senators.
Senator Donald H. Oliver (Chair) in the chair.
[English]
The Chair: I welcome everyone to the committee. Before I go into the business of the day, I would like to call to your attention that I had been asked to have a meeting with Senator Furey, who is the chair of the Internal Economy Committee, to discuss with him work that had been done before by an advisory committee or working group. We wanted to discuss the possibility of having a similar advisory committee or working group of the committees of Rules, Procedures and the Rights of Parliament and Internal Economy. I have had that meeting with Senator Furey and we have agreed to meet again. That is pursuant to Senator Nolin's request, so we will be meeting again. Senator Furey will be here later today and may want to add another word to that. That is in relation to a review of Senate practices and so on.
[Translation]
On today's agenda is another visit from Mr. Charles Robert, Principal Clerk with the Chamber Operations and Procedure Office.
Mr. Robert has graciously agreed to discuss with the committee procedural issues arising from the amendment to the Conflict of Interest Code for Senators. Following his presentation and our subsequent discussions, if time allows, we will consider a draft report on points of order and questions of privilege.
[English]
Before I call on Mr. Robert to make a presentation, I have asked the clerk if we could first have before us the report of the committee on a code of conflict so we could know what evil we have to remedy. That document is being prepared now and it will be brought before us shortly. I have not seen it myself, but we should have that so we can understand what Mr. Robert will be saying should be fixed or remedied in our rules.
As I understand it, if a senator now were to be in a committee or in the chamber and makes a declaration that he or she may have a conflict, and if that senator wanted to participate in a debate in committee or in the chamber, he or she would not have the right to participate or to vote. If someone were to stand up and say, ``Your Honour, I would like to do this,'' the Speaker has no power. One of the things Mr. Robert will outline to us is what he recommends we might want to do by way of amendments to the rules to overcome those two problems.
Mr. Robert, please proceed.
Charles Robert, Principal Clerk, Chamber Operations and Procedure Office, Senate of Canada: Mr. Chair, honourable members of the committee, on May 29 last year, the Senate adopted the fourth report of the Standing Committee on Conflict of Interest for Senators. Along with implementing an amended version of the Conflict of Interest Code for Senators, the report contains the following recommendation:
[Translation]
Our committee believes that consequential amendments and adjustments will have to be made to the Rules of the Senate. Your committee recommends, therefore, that the Standing Committee on Rules, Procedures and the Rights of Parliament undertake a review of possible amendments to the Rules of the Senate in order to repeal rules 65(4) and 94(1), to incorporate within the Rules of the Senate those elements of the Code on which points of order should be able to be raised, and to provide for the institutional consequences of a branch of the Code.
[English]
It is for that purpose that I am speaking to you this morning.
The key, as I see it, is that the Speaker's authority with respect to the code is currently limited to those points expressly incorporated into the rules, rule 18(2.1). This includes the process for recording declarations in the journals, rule 32.1; for appointing the committee's membership, rule 85 (2.1); and for dealing with its reports, rule 97 and various parts of it.
There are currently no means to limit or challenge, through enforceable rules, a senator participating in debate or voting on matters covered by the code, even when the senator has declared an interest. As I understand it, any challenge to a senator speaking or voting would currently have to be taken up under the process the code establishes in paragraph 15. This process occurs outside the chamber and provides no immediate redress to a complaint raised in the chamber or in committee at the time the alleged breach occurs.
This could cause concern. At its extreme — and I underline this case — it could lead to the passage of a bill at third reading on a close vote. Once the bill has left the Senate, no corrective measure would be available to deal with the passage of the bill.
[Translation]
Enforcement of the code is a matter of some sensitivity, which the committee may wish to explore.
It directly concerns the interaction between the processes established under the Conflict of Interest Code for Senators and the procedures governing the operations of the Senate and its committees.
There are different approaches that the committee could take to deal with substantive issues related to the Code and its enforcement in the Senate and in committee.
The rules could be amended to allow the Speaker to intervene to prevent a senator who has made a declaration that has not been retracted from taking part in the debate or from voting. In the case of such an amendment, the committee could consider provisions allowing the Speaker to announce before a vote the names of those senators who have made a declaration that has not been retracted. It could be helpful if declarations and retractions made in committee were also recorded in the Journals. A centralized record is kept separately by the Senate Ethics Officer.
[English]
This committee may therefore wish to consult with the Standing Senate Committee on Conflict of Interest for Senators to review what, if any, changes to either the Rules of the Senate or the Conflict of Interest Code for Senators may be required to provide a mechanism in the chamber or in committee under the rules to challenge a senator's vote or speech on a matter on which a declaration has been made.
With respect to the first recommendation that was proposed in the paragraph I read, rules 65(4) and 94 (1) deal with the characteristic of a pecuniary interest. Rule 65(4) provides that:
A Senator is not entitled to vote on any question in which the Senator has a pecuniary interest not available to the general public. The vote of any Senator so interested shall be disallowed.
Rule 94(1) applies to a committee in a similar fashion.
Versions of these rules have existed since 1906. There are, however, no known cases of them being invoked either to prevent a senator from voting or to disallow senators' votes.
[Translation]
The prohibition contained in the rule appears quite narrow, focussed as it is on an interest to which the public does not have access. In practice, it is probable that any matter that falls under this provision is now covered by the Conflict of Interest Code for Senators, which is more fully developed than this rule and has a specific enforcement regime.
[English]
Given the lack of the use of rules 65(4) and 94(1), there is no apparent reason why they cannot be deleted once the broader issue of how debating and voting on matters covered by the code will be dealt with in terms their procedural consequences.
That is my outline of what I believe is the question facing this committee with respect to the report that was adopted last year dealing with the changes to the rules that might be implicated through the adoption of the changes to the code.
The Chair: Thank you very much, Mr. Robert. You have outlined some of the philosophy behind possible problems between the Conflict of Interest Code for Senators and the Rules of the Senate. Have you drafted any particular clauses that you think might cure the problem? Do you have anything to lay before us now?
Mr. Robert: No; I did not venture into that territory without the permission of the committee. I thought it would be better to wait to see what the committee wishes to do and follow the instructions that I might receive from it.
The Chair: In terms of the power of the Speaker, is one of the things that you are suggesting that there should be some amendment to the rules so that the Speaker would have authority to deal with a request to have someone participate in the debate?
Mr. Robert: In effect, yes. As it stands now, rule 18(2.1) explicitly limits the authority of the Speaker. If we eliminate rule 64 —
The Chair: Could you read rule 18(2.1), please?
Mr. Robert: Yes. It states:
18(2.1) With respect to the Conflict of Interest Code for Senators, the authority of the Speaker is limited to matters expressly incorporated into these rules.
If the question were to arise with respect to a senator participating in debate where a declaration of interest has been made, for example, in committee or in voting, the rules of the Senate as currently constituted do not provide a vehicle whereby the Speaker could intervene directly on behalf of the Senate to say, ``No. Your vote should not be allowed.''
The point of the extreme case was to say that there could be consequences that, though extreme, are not entirely unrealistic.
The Chair: Thank you.
Senator Andreychuk: For clarification, as I understand it, we went through conflict of interest and we made some suggestions there on this issue. It was as a result of that that the rules need to be improved. It was not particularly the role of the Speaker per se because we were starting with what was the most appropriate way for a senator to disclose an interest, pecuniary or otherwise. We wanted a proper procedure to allow a senator to come forward and say, ``Look, on this bill I may have an interest or a conflict. Therefore, I am withdrawing from the debate, both in the committee and on the floor.''
As I understand it, we finished the Conflict of Interest Code for Senators and gave it some logic and it led us to saying that now there is some conflict within the rules and that process. What we really need is which rules within the rules ambit need to be changed and clarified to come into line with the conflict of interest. That is what we are after. We are not looking for more powers for the Speaker. We are not looking for other issues. We are trying to bring the rules to be consistent with the conflict of interest rules.
Am I correct in that summary? That was my understanding as to why we were looking at it here.
The Chair: The report of the committee says explicitly, in the last paragraph, ``to incorporate within the Rules of the Senate those elements of the code, on which points of order should be able to be raised.''
Mr. Robert is saying that it may not be possible to raise a point of order if the Speaker has no authority to hear it.
I understand that that is why Mr. Robert is raising the Speaker question.
In the report as tabled it says: ``In the Rules of the Senate those elements of the code on which points of order should be able to be raised and to provide for the institutional consequence of breach of the code.''
Mr. Robert: As I understand it now, when I look at the elements thus far where the code has been incorporated into the rules, addressing the point that you specifically raised, Senator Andreychuk, I do not think there is currently anything in the rules that says where a senator has declared an interest, potential or real, that senator is prohibited from participating in debate on a bill or motion and in voting on either.
It would be possible to frame an amendment to the rules, which would be incorporated in the general rules of debate, that would explicitly reference a declaration. Perhaps 18(2.1), even though it is relatively narrow, could be wide enough to allow the Speaker to apply that rule if it is invoked as a point of order.
The difficulty might be whether this committee would consider it appropriate for the Speaker to take pre-emptive action. There are two approaches to take. You either try to avoid the problem at the outset or you deal with the problem once you realize it exists.
The problem with disallowing the vote is that it is always much more difficult than trying to prevent a vote, particularly if the item to which it is related is no longer in the hands of the Senate.
Senator Andreychuk: We were always conscious in the Conflict of Interest Committee that we were facilitating senators' ability to do the right thing, if I can use that broad phrase. If they felt there was an apparent as opposed to a real conflict, they wanted to come forward and disclose it, because the perception is as important as the reality. The code was finished and so was the debate on it. However, now we need to have a discussion on which is the best way, within the rules, to facilitate the objective of senators.
Do we put this authority in the hands of the Speaker or do we rest it elsewhere? Once we give it to the Speaker, it is out of the hands of the senators. Do we want the exercise of the discretion to be with the Senate in a peer situation, or do we want to give it pre-emptively to a Speaker, who then takes the authority away from the senators? That is the philosophical debate we always have when we are looking at the Speaker versus the chamber.
Mr. Robert: To respond to part of the dilemma you are raising, if it is in the rules, it belongs to the Senate. It may be enforced by the Speaker, but if it is enforced by way of a ruling, it is still appealable to the Senate.
The same thing happens with virtually all aspects of the Speaker's role. The Senate has insisted that the appeal process remain in place for virtually all rulings of the Speaker. That plays to the philosophical outlook you think is appropriate, which you just described with respect to the Senate and how it exercises its ultimate authority.
Senator McCoy: I support Senator Andreychuk's comments. It seems to me that, particularly on conflict of interest, the Senate itself, the chamber and all of us, need to maintain our role in terms of maintaining appropriate decorum as well as appropriate behaviour, which is the instance under conflict of interest.
Without belabouring this point, I would strongly resist any attempt to vest any authority in the Speaker. Our Speaker has no authority. We ask the Speaker to take on certain functions on our behalf, as a moderator would in any debate, but he or she has no authority, and we should keep it that way.
Senator Joyal: I want to add an element of consideration for the sequence of decisions, which seems to me to be important.
When a senator makes a declaration in a committee that he or she has an interest, under section 12 of the code the chair of the committee causes the declaration to be recorded in the minutes of the proceedings of the committee, so it stays with the committee.
The question I raise is, if that interest is maintained, what happens when the issue comes before the chamber. There is no presumption that what happened in the committee is part of the record of the chamber. In other words, there is a missing link.
The Chair: Does that mean that the senator has to stand up in the chamber and make the same declaration?
Senator Joyal: He would have to make that same declaration. We could consider a procedure through which the chair of the committee caused the declaration to be recorded in the minutes of the proceedings of the committee and the minutes of the proceedings of the committee were transferred to the Clerk of the Senate. Then the chamber would have knowledge of it.
My suggestion is that, if we allow a motion or intervention to be made in the full Senate before a vote is taken, that must be settled before the vote is called, because once a vote is called there can be no motion. Once the Speaker has called the vote, there is no way to stop that procedure. The rule is quite strict, and I think we should maintain that rule.
If the Speaker has to make a statement, on the Journals of the Senate, that a certain senator is not entitled to vote according to the rules, because there is a recorded declaration, the Speaker would have to make that statement before we formally proceed with the vote.
If anyone has a point of order to raise, for example, because the senator in question had retracted his declaration, that would have to be settled before the vote is nominally called.
Our procedure to settle that issue would have to take place before the vote is called. We must not wait until the Speaker has called the vote, because it would then not be acceptable.
If we ask the deputy clerk to prepare this, we should be very precise on where we want that issue to be settled.
Next, rule 65(4) and rule 94 of the Rules of the Senate mention pecuniary interest.
As you know, our understanding of the interests of a senator is wider than merely pecuniary interests. Pecuniary interest is a very well-defined kind of interest while the code talks about an interest. I think we should review those two sections of the Rules of the Senate to put those issues in sync with the code, because one is more restrictive than the other.
In other words, you might have to make a declaration of interest in the committee in the context of the code, but you would not have to make it in the Senate because it is not essentially a pecuniary interest in the limited meaning of that term. You would be in an untenable position, because in the committee you are not allowed to participate and vote but in the Senate you would be allowed to do both. You understand the contradiction there.
That is why the committee unanimously recommended in May, when we tabled our report, that we review the obligations under rules 65(4) and 94(1) to ensure they are equivalent to those we have under the code, which affects procedures in committees. I am just restating the need to do that, in the context of the scope of the code versus the scope of the standing Rules of the Senate. There is no doubt in my mind that that is something we have to settle now, so we do not have a problem.
My last point — and I want to draw the attention of the senators to this — is an important issue that concerns all of us, that being the omnibus bills. Now I am addressing Senator Andreychuk specifically, as she is the Vice-Chair of the Conflict of Interest Committee. At the committee, we studied and discussed the issue that arises when a senator has a conflict of interest with one clause of an omnibus bill. We know omnibus bills; they might amend five different statutes. We experienced that recently.
The question is, if a senator has a conflict with one statute included in an omnibus bill but does not have any interest with the five other statutes in the bill, is he or she entitled to vote on the other sections of the bill or not, or should he or she have to withdraw for the whole of the bill? That is a very real issue. As Mr. Robert has mentioned more generally, one vote is sometimes very important issue. That is particularly true for an omnibus bill that is a financial bill proposed by the responsibility of the government. I have seen amendments to bills passing with one vote in the 11 years I have been in the Senate. You will understand that this issue could become a very sensitive issue.
In this context, it is better for the issue to be clear before the vote is taken. If I can refer to a parallel situation: When the Speaker votes, he always votes before anyone else to ensure that he maintains his neutrality. If a senator has to withdraw from a vote, it must be made very clear before the vote that such a senator is not voting in order to maintain the integrity of the voting process. This seems to me to be a very important matter, especially if a bill is carried by one vote or lost by one vote.
We wrestled with that issue because it is a real issue. It is not academic. It could happen, especially when there is an omnibus bill. I have to suggest, as Senator Andreychuk has put very rightly, there is the appearance of a conflict. Where do we draw the line when there is the appearance of a conflict? We rule in the context of maintaining the integrity of the institution.
That is my second point about the time at which such an issue can be raised and is a difficult issue to settle. It reinforces my opinion that the procedure has to be very clear and well-defined about the sequence of steps when a senator is identified as not able to vote because he or she is in a conflict of interest. That I think is a very important issue to settle before we have a problem to face and have a question of privilege and everything else that you might understand would be raised in relation to that.
The Chair: Those are three extremely good points. Before turning to Senator Fraser, I will ask you one question. I have been in committee when senators have disclosed a conflict and the chairman has, as you have said under the rules, noted it and it became part of the proceedings of the committee. I have also been in the chamber when senators have stood in their place and announced a conflict and the Speaker has then risen and said senator X has made a declaration and I ask that this be reported in the journals, which it was.
Is there any difference in the procedure in a committee and in the chamber?
Senator Joyal: There is not difference per se. The chair asks that the declaration be recorded either in the minutes of the committee or in the Journals of the Senate. Where there is a possible missing link is when the senator makes that declaration in the committee and it is recorded in the committee, but the chamber is not aware of what happened in the committee per se as long as the minutes of the committee are not reprinted in the Journals of the Senate.
If the same senator is in the same situation in the chamber as they were in the committee, the chamber must be aware that that senator has already withdrawn from the debate and is not allowed to vote. That is where, if we have the chance of adjusting the standing Rules of the Senate, we must take care of that situation because it would avoid an imbroglio of some sort.
I do not want to burden you with an additional explanation, but that is why in our report in May we recommended a procedure to allow a senator to retract a declaration. In a committee, a senator might suddenly realize that he or she might be in a conflict of interest and make a declaration which is recorded in the minutes of the committee. After consulting the SEO, the senator may be advised that there is no conflict of interest. In that case, it should be possible for the senator to withdraw the declaration.
The code reflects the procedure we recommended on this. For the same reasons that I mentioned earlier, that declaration made in the committee, recorded in the committee, that such a senator withdraws their declaration would have to be transferred to the Senate in exactly the same way to maintain the ability of the senator to vote.
There is a two-way kind of solution to that. The important thing is to determine the sequence of events where that procedure must take place, to ensure that we maintain both the objective of the code and the capacity of the Speaker to cause the information to be brought to the attention of the chamber.
Senator Fraser: Senator Joyal, to whom I am very grateful to for that explanation, has answered the specific question I had, but since I now have the floor I will make a small observation if I may.
I am persuaded that we do need to address this difficulty in our rules. I also take, however, the broader point about a certain tendency that does exist to talk about the authority of the Speaker in circumstances where it is not, strictly speaking, necessary or sometimes even appropriate. Therefore, I would strongly suggest that when we do our report on these amendments, and elsewhere, we avoid, wherever possible, talking about the authority of the Speaker. We can talk about the role and responsibility of the Speaker but I take the point that it is important for us to indicate on a constant basis that the Speaker of the Senate is unlike the Speaker of the House of Commons. I am sure all of our Speakers have wished that they were like the Speaker of the House of Commons, but that has not been so.
The Chair: Are there further comments?
[Translation]
Senator Robichaud: The onus would be on us to come up with a way of amending the rules so that anything that transpires in committee is, one way of another, reported to and taken into account by the chamber. How would that work?
Mr. Robert: The committee could insist that a rule be drafted in such a way as to provide that a declaration made in committee must also be recorded in the Journals of the Senate. If that is what the committee wants, it could also insist that every time a recorded division is held, the Speaker rises and asks if senators have any pecuniary interest whatsoever, to avoid problems. As I mentioned earlier, it is always best to avoid problems rather than to have to correct them later.
[English]
Senator Smith: Do you have a motion to propose that would authorize Mr. Robert to prepare a draft along those lines?
[Translation]
Senator Joyal: Have you finished?
Senator Robichaud: As a matter of fact, Senator Joyal, I wanted to make a suggestion.
[English]
Senator Joyal: I thank both of you for your interventions. We have raised the points and I have tried to provide all the relevant implications. Certainly, with consensus among the members of the committee and with the concurrence of the chair, we could ask the deputy clerk to prepare draft amendments to the Rules of the Senate and report back to the committee, when we could revisit the issue. We have identified the pitfalls and what we want to protect, as Senator Andreychuk and other senators have commented. With that, we will have another meeting on the issue and achieve integration of the Conflict of Interest Code for Senators with the Rules of the Senate, which we know are out of sync. Rules 65(4) and 94(1) are at odds with the Conflict of Interest Code for Senators. That is an important element in the procedure.
The Chair: The three points that you raised need to be addressed, in particular number three — the omnibus bill. Senator Smith, do you have more?
Senator Smith: No. We are agreed and will proceed in that way.
[Translation]
Senator Corbin: Unfortunately, I missed the beginning of your presentation. However, I listened the discussion and I have the impression that we are overlooking what is really important here, namely the honesty and integrity of a senator who is declaring a conflict of interest.
Personally, I feel that if we amend the rules in this manner, we are implying that all senators are criminals, barring any evidence to the contrary.
In my estimation, honourable senators must be taken at their word. End of discussion. I think this whole debate is a waste of time. That is my personal opinion.
[English]
Senator Brown: I understand the idea of a ``pecuniary interest'' as a reason for stepping down from speaking or being a part of a bill. Someone mentioned that there are other interests. I would like to know what the other interests are. It seems to me that anyone who had a strong opinion on a subject before the bill came in would be in conflict if we want to throw a wide net to ensure that no one had an interest in the bill, period. Eventually, anyone with an interest would be disqualified.
The Chair: I do not think that is the intent.
Senator Brown: I know that is not the intent and that is why I ask for the definition of ``another interest,'' other than pecuniary.
Senator Joyal: That is a good question, Senator Brown. I remember many discussions at this committee, which drafted the Conflict of Interest Code for Senators through many sessions — as many as 72 if I remember well. We had to wrestle with exactly the point that you raise. As you know, the concept of interest is not defined in section 3 of the code under ``Definitions.'' Rather, it is stated in section 8 of the code, under ``furthering private interests.'' This states:
8. When performing parliamentary duties and functions, a Senator shall not act or attempt to act in any way to further his or her private interests, or those of a family member, or to improperly further another person's or entity's private interests.
There is no definition of ``private interests.'' Of course, there are many elements to the definition found in section 11 of the Code, under ``Clarification: furthering private interests.'' It states:
11. (1) In sections 8 to 10, furthering private interests of a person or entity, including the Senator's own private interests, means actions taken by a Senator for the purpose of achieving, directly or indirectly, any of the following:
(a) an increase in, or the preservation of, the value of the person's or entity's assets;
(b) the elimination, or reduction in the amount, of the person's or entity's liabilities;
(c) the acquisition of a financial interest by the person or entity;
(d) an increase in the person's or entity's income from a contract, a business or a profession;
(e) an increase in the person's income from employment;
(f) the person becoming a director or officer in a corporation, association, trade union or not-for-profit organization; or
(g) the person becoming a partner in a partnership.
That is the meaning of ``furthering private interests.'' As well, subparagraph (b) clarifies what is not furthering private interest. Again, there is a list of points, which is not long. If I may, I will read it for the benefit of everyone:
Clarification: not furthering private interests.
A senator is not considered to further his or her own private interests or the private interest of another person or entity if the matter in question
(a) is of general application; and
(b) affects the senator or the other person or entity as one of a broad class of the public; or
(c) concerns the remuneration or benefits of the senator as provided under an act of Parliament or a resolution of the Senate or of a Senate committee.
In other words, Senator Brown, you have a list of situations that are deemed to be private interests and then there is another definition of situations where you are not furthering private interests. That is essentially what the code proposes. Any senator, of course, who has a question or a doubt in relation to the interpretation of what is a private interest and what is excluded from private interests is invited to discuss the situation with the SEO who will provide advice. That is essentially how the code is structured.
Senator Brown: My only comment would be that all the ones that Senator Joyal listed as being private interests seem to trace back to some kind of a pecuniary reward, every one of them.
Senator Joyal: Not necessarily. The person becoming a director or officer in a corporation or association —
The Chair: There is professional advancement as well.
Senator Brown: I am just saying that professional advancement, for instance, if that is the one you choose, would carry some kind of monetary reward, in most cases anyway, unless it is a totally volunteer organization or something like that.
Senator Fraser: However, it would still be covered if it were totally volunteer.
Senator Smith: Yes, it is in there.
Senator McCoy: I would also like to ask a question. I am with you all the way. At the end of the conversation, and I wanted to clarify, your suggestion was to amend the rules by requiring the Speaker to ask in advance of each vote whether there were a conflict of interest. Did I understand that correctly?
Senator Joyal: No, I would never suggest that.
Senator McCoy: Then I did misunderstand. Perhaps you can state it again.
Senator Joyal: The principle is as stated by Senator Corbin. It is up to a senator, on the basis or his or her honour, to come forward to declare. It would only arise when another senator believes there is a conflict of interest and stands up and makes an allegation. Formally, essentially, it is up to a senator on his or her honour to come forward and declare an interest because most senators may not know that the senator in question is in a situation of a conflict of interest or appear to be in a situation of conflict of interest.
Senator McCoy: We would operate on a presumption of innocence.
Senator Joyal: Absolutely. That is why the principle stated by Senator Corbin is an important one. It is at the root of the code. We are not investigating people and asking them if they are guilty or not. That is not at all the procedure.
The procedure is that as long as a senator does not come forward, the presumption is that all of us have exactly the same standing to review a bill or a motion and debate and vote on it.
[Translation]
Senator Corbin: May I ask Senator Joyal if he knows of any precedents that would justify this type of amendment to the code?
Senator Joyal: Right now, I know of no such precedents. However, the one thing we have observed — and I think this has been amply demonstrated this morning — is that the code and the Rules of the Senate are not completely in sync, and this will eventually lead to disputes over interpretation. The Speaker would then not be in a position to proceed in the usual manner in the chamber.
On that basis, given the lack of synchronicity between the code and the rules, which clearly were drafted first, we recommend that the issue be clarified. As I pointed out, if the matter of an extremely sensitive omnibus bill were to arise, both the senator in question and the Speaker of the chamber could find themselves in a very difficult position and the dispute could not be settled in the usual manner. I think we would be better off settling this now, rather than searching for a solution later when a problem arises.
Senator Corbin: So, on the one hand, you claim that there are no precedents, while on the other hand, you maintain that we run the risk of encountering a real problem.
Senator Joyal: We run the risk because the two texts are different.
[English]
I call upon Senator Andreychuk's memory and that of other senators as to what happened when we adopted the code more than three and a half years ago. I turn to Senator Fraser, Senator Furey, Senator Robichaud and Senator Nolin — many of us were there at the time. We knew then that some sections of the standing rules would need to be amended. We did not discover that just a couple of months ago. We knew it had to be done. When we made those amendments to the code this summer, we said it exists and we have to address it. Those who were there will remember it quite clearly.
The Chair: Mr. Robert, you have heard a discussion this morning with Senator Andreychuk, Senator Joyal and Senator Robichaud, who served on the Conflict of Interest Committee, as to what they had in mind when they drafted their report. This has been an excellent opportunity for all of us to hear firsthand what some of the problems are.
Senator Joyal went on to outline explicitly three of the areas that need rectification in our rules, and, in particular, the major one, about what to do in the case of an omnibus bill that might amend 50 different statutes but where only one clause in one may cause a problem for a senator. Those are areas that must be addressed.
The clerk would like to ask a question as well.
Blair Armitage, Clerk of the Committee: This is for greater clarity for those who will try to assist in drafting notes for the committee and in sensitivity to the role of the Speaker. When it comes to senators speaking a second time, the rules currently direct the table to keep a log of the senators who have spoken and for how long so we can inform the Speaker should a senator rise a second time, inadvertently, perhaps, or because he or she wants the right of a final reply. The Speaker automatically intervenes, if so notified, with the chamber to inform the Senate the speaker has spoken a first time and, in the case of a final reply, the effect it would have on debate.
Presumably, if they had just mistaken what they had done in the past and they were rising a second time, the Speaker would inform the Senate that this senator has already spoken and, therefore, according to the rules, he cannot call upon them.
With respect to a senator inadvertently standing on an item upon which they have already declared publicly a private interest, would keeping a log at the table like that and informing the Speaker so that he could remind the senator that they have declared an interest be appropriate? With a log like that used at the time of a vote, would you like the Speaker to announce that the honourable senator so-and-so, having declared a private interest, will not be voting, or something along those lines? Do those meet your sensibilities on this subject?
Senator Fraser: Yes. On the question of what the lucky drafters will be drafting, I agree with the chair that the question of omnibus bills is important. I have been sitting here stewing about what to do about omnibus bills. One wants to say that senators should be as free as possible to participate in debate. Therefore, they should be able to participate in and maybe even vote on amendments to bills on those portions where they do not have a conflict of interest. I then thought, no. Once you do that, you are opening the door to a given senator to use those tools in order to delay passage of a bill because of this other portion of the bill in which he or she has an interest and which he or she may not like.
After 20 minutes of scattered thought, my sense is, no. If you have a conflict of interest with any portion the bill, then you do not get to participate in the treatment of that bill at all. However, more thinking might lead to more suggestions. Could the drafters provide us with a range of options on that one? That is the toughest of all the things that has been raised but we do have to address it.
Senator Andreychuk: On that point, we spent a lot of time in the Conflict of Interest Committee on this omnibus bill because there happened to be an omnibus bill. We discussed it but we did not come to a solution, again because of this perception. I thought we had decided to go forward with these rule changes and monitor to see how many omnibus bills there are to see whether there really is a problem. To try to anticipate how to handle them and separate them was another layer of problems. We thought we should get the first rule into place and see how it operates before we see how we can break down bills.
I thought we erred on the side of caution to say that if we have a conflict with a part of a bill, the public may not necessarily understand that. They understand your conflict with a bill, period. That is why we thought we would start with that and then see whether or not the omnibus bill is a problem. If so, we would work it out. We did not want to be necessarily skewed by the one example that was before us at the time, which was rather unusual and probably will not occur again.
The Chair: The accountability bill?
Senator Andreychuk: No.
Senator Fraser: We have had several omnibus bills in recent memory.
Senator Andreychuk: There was one particularly drawn to our attention and that is why we talked about omnibus bills. I would hope that we would put the generic rule in place for a senator and for a bill and then let us then monitor to see if omnibus bills are a particular issue or not and, if they are, to what extent rather than trying to do the omnibus bill at this time.
The Chair: Senator Fraser's suggestion that the drafter come up with a series of recommendations is also a good one.
Senator Fraser: If I may modify my suggestion, I was not trying to pre-empt the work of the Conflict of Interest Committee. I had mistakenly thought that was one of the subjects that were being brought forward here. If the conflict committee has decided to wait and see, I do not want to pre-empt their work. You may make that suggestion, but I withdraw it.
Senator McCoy: I have two things to puzzle over. What, then, is the Conflict of Interest Committee recommending? Let us get that settled first. Who would like to speak to that?
Senator Joyal: The suggestion made by the committee is clear, namely, that a senator who has declared a private interest will have to abstain from debate in the Senate and in committee and withdraw from committee proceedings. We made that clear in our recommendation in May and that is what is reflected in the present rules of the code. That is that is the law as it stands now.
Senator McCoy: As to the omnibus bill question, you are not putting that on the table at the present time?
Senator Joyal: No.
Let me go to my first question. Thinking about a log, that may work very well, especially with declarations made in a committee. However, if you were to expand that log to every time a senator declared an interest and the omnibus financial bills continued to keep coming through — and, there is no reason to doubt that they will, since it has become a fairly consistent practice — would that be part of the log? Will you log be per bill or will it be cumulative?
Mr. Armitage: The code requires senators to declare when they have a private interest on a matter before the Senate.
For any item that they consider to be a matter before the Senate on which they had an interest to declare, we would record that declaration. On that matter, they would then be expected not to debate or vote.
Senator McCoy: Yes, but if the same act comes before the Senate later — especially in financial or fiscal matters?
Mr. Armitage: In the case of a bill, it is before you at a number of different instances. It is before you at second reading; it is before you in committee; it is before you again at report stage of whatever the committee has done; and it is before you at third reading.
Once you have declared an interest, if you do not retract that declaration, for which the conflict amendments provide, until that point, on that matter, at all stages going forward, you would be expected not to debate or vote.
Senator McCoy: Wherever that particular statute returns?
Mr. Armitage: That is right.
Senator McCoy: The log would be cumulative, then? Some acts seem to get amended frequently just by their nature. I should have a specific one at my finger tips but I will use the Criminal Code, for example. It is often the case that it comes back and back, would one still has a conflict of interest?
Mr. Robert: There is a misunderstanding. The senator would still have to declare the interest. Let us say we are talking about the Criminal Code. In one instance, because it amended a part of the code in which there might be an identified interest, the senator would declare it.
If another bill came before the Senate, amending the Criminal Code again but not with reference to that section about which a declaration had been previously made, the senator would not renew the declaration. From that point of view, it is not cumulative; it is on a case-by-case basis.
Senator McCoy: The point I am making is that this log works if there has been a declaration in committee because it is per instance. That is the only log you have per session. Otherwise, it is dependent on a senator initiating the declaration himself or herself. That is fine, but that is the clarification I was considering.
Mr. Armitage: It is the same in the chamber or in committee. It is the order item that is before you, whether in committee or in the chamber. For example, it is second reading of Bill S-2. If you have declared a private interest on that, whether in committee or in the chamber when you declared that interest, at all subsequent opportunities or stages of the progress of that bill, your declaration would stand unless you issued a retraction. It is the motion or the order item that counts, not the topic. If it came up in another form as a motion or another bill, and you had an interest, you would have to make that same choice at that time.
Senator McCoy: Essentially, it is session by session.
Senator Joyal: I want to draw your attention, Senator McCoy, to section 12.3 of the code, which is entitled ``Declaration Recorded.'' It reads, ``The Clerk of the Senate or the clerk of the committee, as the case may be, shall send the declaration to the Senate Ethics Officer who, subject to section 4 in paragraph 31(1)(h), shall file it with the senator's public disclosure summary.''
If there is a log, it is the senator's files in the registry of the SEO to which the public can have access to, for instance, check how many times I have declared an interest and in relation to which bill. That becomes part of the record.
Senator McCoy: That is fair enough. I was imagining the table officer with a log pulling something forward from three or four years ago, because this looks as if it might be similar. That was my question in trying to imagine how this might happen.
You have pointed out the source of the log.
Senator Joyal: If anyone wants access to the declarations of conflict of interest of a senator, they would have to check in the registry to see when that senator reported a conflict of interest and on which bill. That is what the section I read to you provides.
Senator McCoy: I was imagining when situations shift and one may no longer have a conflict.
Senator Joyal: It is entirely possible. For instance, I might have a conflict of interest in relation to a certain bill today, but two months later I might have sold my assets in relation to it and no longer have a conflict. In that situation, I need not declare anything.
It is recorded in your declaration. In other words, it is not cumulative so that once you are out, you are out forever. The situation of a senator might change and that is reflected in the obligation of the senator to declare or not.
Senator Corbin: I wish to speak to the matter of splitting omnibus bills.
The way this discussion is going, omnibus bills would have the obnoxious effect of depriving a senator who has a conflict of interest from recording his vote on aspects of the bills to which he feels he should speak.
Now that the matter has been put on the table, you cannot dissociate the matter of the conflict of interest from the impact that omnibus bills have on the rights and duties of senators.
One day this committee will have to go in depth into the history of the practice of omnibus bills in the life of the Parliament of Canada. They have changed over the years and have now become the tool of governments to impose their will on the representatives of the people; first, the House of Commons, and second, the Senate of Canada.
It is a problem now and it is going to be a real problem in the future.
[Translation]
Senator Nolin: Getting back to the clerk's suggestion, Mr. Armitage, are you proposing that we keep a record and that prior to a vote, the Speaker note the senator's declaration in the record?
Mr. Armitage: If that is what the committee wants, yes.
Senator Nolin: This should be mentioned specifically in one of the motions. I think it is important for the public to know that a senator has expressed the desire not to take part in a debate. It is not enough to merely mention this in a report. It should be publicly noted in the chamber.
Senator Robichaud: Mr. Chair, I believe we have come to the recommendation where the committee suggested to the clerk that he prepare some draft amendments to the rules for our consideration at a future meeting.
Mr. Robert: If I understand correctly, for now, we are going to disregard the potential problem of omnibus bills.
Senator Losier-Cool: For now.
Senator Nolin: We would not want to go against an earlier decision.
[English]
Senator Duffy: On a point of clarification on the log, if a senator declares an interest and it is put in the log, and then at some later date the senator withdraws that because his or her circumstances have changed, will there be a permanent record in the log that such a declaration was made in the first place or will it vanish when the senator withdraws the declaration?
Mr. Armitage: We are at a hypothetical stage, now, senator, but I would suggest that we would note the initial declaration of a private interest and it would be on a list. If subsequently the declaration were retracted, we would note that the interest was retracted. We would subtract the name from the list that the Speaker would read, if that is the way the committee decides to go. We would not include the name in that final list that the Speaker would read of senators not voting.
Senator Duffy: Will it remain in the public record that at one point or another —
Mr. Armitage: Our speaking logs are consultable by senators and the Speaker in the chamber, but our log is not necessarily a public log. It is the log with the Senate Ethics Officer that is public.
Senator Joyal: If a senator makes a declaration of interest and that declaration is reflected in the senator's registry at the SEO's office, a retraction is printed in the registry under the name of that senator. Moreover, the senator has the option to have the opinion of the SEO that the senator is not in a conflict of interest attached in the registry. In other words, a person would know exactly why that senator is no longer in a conflict of interest and he is totally protected.
That is why we have a provision in the code that allows the public to understand the reason a senator is no longer potentially in a conflict of interest.
The Chair: Is there anything else on this question?
Senator Corbin: Yes. May I humbly request that you, as chair, direct the research staff to prepare a research paper on the evolution of the practice of omnibus bills in the Parliament of Canada for further discussion by this committee, as was suggested?
The Chair: I will.
Senator Corbin: Thank you.
The Chair: There being nothing further on this question, our agenda has, as Item 2, in camera, ``Pursuant to rule 86(1)(f)(i), consideration of a draft report on the notice requirements for questions of privilege.''
Is it your wish, honourable senators, that we now go in camera?
Hon. Senators: Agreed.
(The committee continued in camera.)