Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 5 - Evidence, April 22, 2009
OTTAWA, Wednesday, April 22, 2009
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 12:18 p.m., pursuant to rule 86(1)(f)(i), consideration of the notice requirements for questions of privilege.
Senator Donald H. Oliver (Chair) in the chair.
[English]
The Chair: Honourable senators, I know it is 12:15 p.m., but I also understand there is a ladies' and gentlemen's rule that when there are caucuses on Wednesdays, we do not start exactly on time. We await the arrival of senators from their caucuses. I will wait until more senators arrive. I know that Senator Robichaud and others are here, so I will wait until they come.
Honourable senators, I see that we have a quorum.
[Translation]
Today, the committee will be examining the notice requirements for questions of privilege. You may recall that our committee considered this issue during the 39th Parliament and recommended changes to the rules. However, the committee's fourth report on this matter died on the Order Paper when the first session was prorogued. The report was retabled during the second session, but once again died on the Order Paper when the 39th Parliament was dissolved.
[English]
Our committee has examined this question on two occasions during the current session and has so far been unable to reach a consensus. We need to consider notice requirements for questions of privilege that arise out of a Speaker's ruling October 26, 2006, where the Speaker noted some inconsistencies in the rules with respect to the notice requirements.
Indeed, while rule 43 provides for a comprehensive notice mechanism, rule 59(10), on the other hand, states that questions of privilege may be raised without notice. In his ruling of 2006, the Speaker concluded that rule 59(10) was clearly linked to rules prior to the 1991 rules when questions of privilege could be raised without notice. The Speaker explained that consequential amendments to rule 59(10) had not been made in 1991.
The Speaker reiterated his concerns with respect to rules 43 and 59(10) in a ruling of March 31 of this year and again in a ruling rendered just yesterday. In this last ruling, the Speaker tried to reconcile rules 43 and 59(10), and concluded that:
. . . rule 59(10) will only remain available for questions of privilege that arise out of circumstances that prevent a senator from providing the notices required under rule 43.
That is as of yesterday.
Given that there appears to be no agreement on the proposal that was twice looked at by our committee in this session, Mr. Charles Robert, Principal Clerk, Chamber and Operations Procedure Office, was asked to develop a new proposal; yet another proposal with the aim of removing any inconsistency in the rules in respect to notice requirements for questions of privilege, and to ensure that questions of privilege may not be used to unduly postpone the calling of Orders of the Day.
With that background and with your leave, I would like to call Mr. Robert to appear before us now to explain the new proposal that we all have before us.
Senator Corbin: Mr. Chair, you referred to the Speaker's ruling of yesterday. Is that document properly before this committee for consideration?
The Chair: It was before the Senate Chamber.
Senator Corbin: This is the committee. This is not the chamber. If we are to have a thorough discussion, it seems to me that ruling should be a paper of this committee.
The Chair: I brought with me my paper from the chamber yesterday.
Senator Corbin: That is not the way we usually proceed, is it?
The Chair: Does anyone not have their paper from yesterday that contains the Speaker's ruling tabled in the chamber? If not, I will ask that extra copies be obtained.
Senator Corbin: That would be appreciated. That is what I am suggesting, Mr. Chair.
The Chair: In the meantime, please go ahead, Mr. Robert.
Charles Robert, Principal Clerk, Chamber Operations and Procedure Office, Senate of Canada: Thank you, Mr. Chair. Honourable senators, the document I believe you have received was prepared by my office and is based on direction and advice given by the chair and steering committee of this committee. It is intended to help provide some structure to today's meeting so that, in the end, the Chamber Operations and Procedure Office will have a solid understanding of what the committee wants when we begin drafting revised rules dealing with the process to be followed with respect to a question of privilege.
This meeting, I hope, is an opportunity to scan the various aspects that are involved in raising a question of privilege. As you will note, the text that has been prepared treats various elements of the process, including such matters as notice and the discussion as to whether there is a prima facie case of privilege. We have concluded the document with some questions for your consideration.
I reiterate that we regard none of this as binding; we await your instructions.
The document that was distributed is divided into various topics dealing with written notice for matters occurring before the Senate sits; the use of oral notice and the initial discussion phase; how there could be a later discussion period to deal with the prima facie merits; matters that arise in the chamber that would prompt a question of privilege and how that could be handled; and, finally, issues for further consideration.
The Chair: Would you like to start with Points 1, 2 and 3 and explain what they mean? I recognize it is not in formal, legal "rules" language. It is just a general statement of the position. Is that correct?
Mr. Robert: It is indeed. We are looking for instructions from this committee and would be prepared to draft rules in light of the instructions that we receive, hopefully, as a result of today's meeting.
Point 1, deals with written notice: These are for matters that have occurred perhaps outside of the chamber or at a previous time where it would be relatively simple for the senator who wishes to raise the question of privilege to advise the Speaker. This is different from what we have already now in rule 43, which is quite detailed and establishes parameters in terms of the time frame. As it stands now, the notice must be submitted to the clerk three hours before a scheduled sitting. He has the responsibility of ensuring it is translated in both official languages, if it is not already, and distributing it.
An alternative that could simplify the process would be for written notice to be simply submitted to the Speaker to at least alert the chair that there is a question of privilege to be raised. The time frame need not be as lengthy as three hours; it could be significantly reduced, depending on how this committee feels about that proposition.
We still think that it would be useful to provide an oral notice. The oral notice that is given now takes place under Senators' Statements and is limited to a maximum of three minutes. The oral notice that we are suggesting for your consideration would not take place within the time frame of Senators' Statements. It would be apart from that, and it could have a window or time that could go well beyond the three minutes, or even the 15 minutes, in order for a question of privilege to have a proper, preliminary airing.
There would, however, be a time frame with limits on that process, and if the Speaker feels that he or she is not able to give a ruling at that time, another opportunity would arise later in the sitting after Orders of the Day, and perhaps before the Notice Paper, to return to the alleged question of privilege for further discussion. We propose this because some concern was expressed by the steering committee to not impede the consideration of Orders of the Day, particularly Government Business and Other Business. That is advocated by the senators since, in fact, Orders of the Day are the substantive purpose of a sitting.
In Points 2, 3, 4 and 5, we have tried to spell out how the process might work in general terms, not trying to frame the decision of the committee but perhaps to prompt some discussion among the members of the committee. As I already indicated, there would be later discussion on the matter if deemed appropriate under the circumstances. Following the practice that we currently have, this could be later in the day, at the end of Orders of the Day or, at the latest, at 8 p.m.
The reason we have followed the approach that is already in place in the Senate is because a question of privilege on its face deserves some type of priority of consideration. It would be, it seems to us, somewhat inappropriate to allow it to pass on to another sitting day if, in fact, there is a genuine question of privilege.
At the same time, we have recognized the desire of the committee to keep rule 59(10). Following the understanding that we have tried to develop, we believe that rule 59(10) should only be raised in matters arising from circumstances immediately in the chamber or outside of the time frame for which notice might be available.
For example, if something occurred within perhaps a half hour of a sitting, making it very difficult to provide notice to the Speaker, it would still be possible to raise it in the chamber. If the incident occurred in the chamber during a sitting, then of course it would be advisable to allow senators to raise a question of privilege on the spot.
The Chair: Mr. Robert, I think that comment you have just made arises from representations made to senators from senators, such as Senator McCoy and others, who say that they do not feel it is right to have a rule that limits the right of honourable senators to raise a question when they feel aggrieved or that their privileges have been breached. On that basis, it is about trying to find a way to open it up and make it more available for senators, even during proceedings in the chamber, to be able to raise their points.
Mr. Robert: That is correct. That is why Point 9 is drafted in the language that you see. If the committee decides that this is the approach it wants to take, this would allow for the possibility of raising a question of privilege —
[Translation]
— under Senators" Statements, Routine of Business and even Question Period. Senators will be permitted to raise a question of privilege and to ask the Speaker to rule immediately on whether or not a prima facie question of privilege has been established —
[English]
— without waiting for a notice period that might take it into the next sitting day.
At the end of the document, we have presented you with some other issues that you might wish to consider as relevant to the treatment of a question of privilege. Again, our intention is to take the direction of the committee with respect to this matter. As I said at the beginning, we would be prepared to draft rules that would follow your instructions and be married to the relevant subsequent changes to rules 43 and 44 as they currently exist.
Thank you very much, Mr. Chair.
The Chair: Thank you very much, Mr. Robert. That was a wonderful overview. The chair is now ready for questions, and I have on my list Senator Nolin.
[Translation]
Senator Nolin: It is possible that I am mistaken and that I missed a meeting, but perhaps I could have the benefit of your guidance, Mr. Chair. Am I right to understand that this document ties in with the analysis of the report currently before the committee for consideration? As I recall, Senator McCoy had some concerns.
I may be wrong, but I thought I followed the debate rather closely and I would like to know if the document relates to our consideration of the objection raised by Senator McCoy, and to our consideration of a report on the process for dealing with questions of privilege. I am new to this committee, but if that is the case, I am surprised that you follow this procedure every time an objection is raised, especially since Senator McCoy is not here today. I would have liked her to see this document, to see if it addresses her concerns. If it does not, then Mr. Robert can make some changes. However, in my opinion, we have here a very sound report which we were almost ready to adopt a month and a half, or two months ago. However, we still have not adopted it and an objection has been raised by a committee member who is not here to tell us if she agrees or not with the proposed changes.
My concern, Mr. Chair, is that we will use the remaining 55 minutes to discuss a document that Senator McCoy may not agree with and that we will have to start over again at a future meeting. We are chasing our tails. I am sorry, but I think we have better things to do than reinvent the wheel each time an objection is raised to a report that, may I remind you, I was prepared to agree to one month ago.
[English]
The Chair: That is a very good point. I will turn to Senator Smith, but I should also say, Senator Nolin, that part of this new document arose from a decision and ruling yesterday of the Speaker in the chamber.
Senator Smith: Senator Nolin raises a good point, but I think it is fair for me to point out that yesterday afternoon the steering committee held a meeting for about an hour, and we had the staff there and Mr. Robert. Senator McCoy is in Washington at a parliamentary conference.
If you look at Point 9, it says, "For matters arising during the sitting, the senator would raise the issue when it occurred." In the original version, it said, "except during Senators' Statements, Routine Proceedings and Question Period." That has been taken out to address her point.
This is not in rule form, so the thought yesterday was — and we did have a consensus on this at the steering committee that we could deal with this — that if there was a consensus that we felt addressed the point she was making, we could then instruct Mr. Robert to put it in rule form; it would come back next week, and Senator McCoy will be there at that time. We would not adopt anything today because this is not in rule form. This is just sort of the principle of dealing with the issue.
That is how this wound up in front us today. I actually do not think she would be prejudiced because we are not really adopting anything other than agreeing to put it in rule form to see how it looks if there is a consensus on it.
[Translation]
Senator Nolin: Mr. Chair, I have some questions at this time for Mr. Robert. How are these points different from what was in the previous report?
Mr. Robert: Unfortunately, senator, I do not have the report with me. Therefore, I cannot answer that right at this very moment.
Senator Nolin: I think we should wait until we have the report and until Senator McCoy is here. Then, we would be fully informed. Thank you anyway.
[English]
Senator Andreychuk: Senator Nolin raises a point that I think is important. This committee has had the same difficulty in the past. It is a large committee; not everyone can be here all the time, and the membership has changed.
When we embark on these issues, we often get a draft of changes from our staff, which we have given them instructions to do. Then we come along and say that we do not like this section or that section and tell them to look at it again.
Then, we come back and have new members who are unsure and want it looked at yet again. If I were a staff member, I would wonder what I was being asked to do because one senator says one thing and another senator says something else. Rather than have staff go through a whole drafting exercise, which is much more difficult, we need to determine what we want to do before the legal drafting stage. We are reaching the point of not knowing what we are saying.
That is my point. Do we want a written notice to precede any question of privilege up to eleven o'clock? In my opinion, if we want that, then it should be the notice to all senators. I do not want that given to the Speaker of the Senate. I do not want to take powers away from us in our present setting. The rule of having to give notice to the senators is the correct rule. What do you do between eleven o'clock and the start of a session? It could be in written form for the next day, or it could be at some point in the proceeding.
Once proceedings begin in the chamber, there is some obligation to deal with the Orders of the Day and not bog down with a question of privilege, which is important. Equally important is Government Business and Other Business. We have to determine what we want and then do the drafting.
Senator McCoy and other senators have raised objections. We must come to a consensus. In the future, I would hope that we would not go down this road. If we give instructions and prepare a report, then senators could express their opinions and request changes to specific paragraphs, if they so choose. In that way, we could avoid broad brush discussions that staff then have to clean up for us.
In most other committees it does not work that way. We are responsible for this conundrum. We need to give clear instructions. Is it the draft we had before with some amendments, or are we reviewing the entire process again so that staff know where we are headed?
The Chair: No, we are not reviewing the whole process. This document, if there is a consensus today, can be applied to the other documents, and, I would hope, we can have full approval next week.
Senator Duffy: Senator Smith mentioned the original phrasing of Point 9. It rang a bell with me right away, given that some senators around the table have been members of the other place. I am sure they were members during the period in the 1970s and early 1980s before the rules changed in the other place, much in line with what Senator Smith said about questions of privilege having to wait until the end of Question Period or at least until three o'clock because hours were being spent on points of order before addressing Government Business or Question Period. It seems to me that the draft read by Senator Smith earlier would be efficacious. I wonder where that caveat about "after certain procedures in the Senate have been dealt with" went.
Senator Smith: It disappeared. I agree that we want a consensus. The steering committee looked at it and decided that it addressed the issue that Senator McCoy raised. As we were not telling them to begin drafting the rule, we suggested that it be deleted, and, if a consensus is reached at this meeting, we could tell them to draft the rule. We want to develop consensus. I am satisfied that it addresses the matter, but certainly it is desirable that everyone has that comfort level.
Senator Joyal: I have a copy of the draft report that can be handed to the witness if he wants to answer Senator Nolin's question. I have two copies, so I can spare one. The witness can read through it in the context of Senator Nolin's question.
In the chamber yesterday, the Speaker gave his ruling on Senator Harb's question of privilege. I heard his decision, which you have read, Mr. Chair. Since the Speaker has taken a decision on the scope of rule 59(10), my reaction is to wonder whether we need anything else except to enshrine the decision of the Speaker to ensure that it is in the rules. It is my view that the Speaker facilitated our work, although I might be wrong.
The Speaker said the following:
Unless the Senate makes a deliberate decision to change rule 43, rule 59(10) will only remain available for questions of privilege that arise out of circumstances that prevent a senator from providing the notices required under rule 43.
It is my opinion that he has cut the Gordian knot of the overlap of the two rules of the Rules of the Senate. Since his decision was not appealed, it stands. He has given life to this committee, in a way, as to what is required should we need to amend rule 43 or rule 59 to give effect to his decision.
The Chair: To codify it.
Senator Joyal: Exactly. Perhaps the witness could comment on that.
The Chair: Perhaps I could ask Mr. Robert to answer the two questions posed by Senator Joyal. The first relates to an inquiry of Senator Nolin and the second is about the effect in law of yesterday's ruling of the Speaker.
Mr. Robert: I will try the second question first.
The Speaker gave a decision on the hard question of privilege, trying to assist the chamber to understand how he will approach the use of rule 59(10), given what he believes is the general preference of the Senate to preserve rule 59(10) for use.
He went further, and this point might need additional refinement. Rule 59 is basically a list that simply indicates what may be done without notice. In most instances, the list in rule 59 relates to other current rules in place. No link exists between rule 59(10) and rule 43. It would be useful to allow that link to be created so that the purpose of rule 59 as a list remains faithful to itself and its terms while being linked back to the process whereby the Speaker still has a role to play in assessing whether the alleged question of privilege is a prima facie question of privilege.
From that point of view, there might be some use in trying to modify, likely, rule 43 to create a link to rule 59.
[Translation]
Regarding the question raised by Senator Nolin, even though I have not really read the entire draft of the report closely, I would tend to agree with Senator Nolin. I do not see a problem with taking the points raised and dealing with them as part of the report.
Senator Nolin: Senator Smith brings up an important point. If I understand you correctly, point number 9 is not the official text.
Mr. Robert: Correct.
Senator Nolin: It is merely an indication of what we would find in the Rules.
Mr. Robert: No.
Senator Nolin: It implies that there will be a timeframe of some kind.
Mr. Robert: That timeframe already exists. On page 4 of the draft report, if you look at the proposed new rule 23(1), the only thing that a senator cannot do is raise a point of order. A point of order cannot be raised during Senators' Statements, Routine of Business and Question Period. However, it is implied that senators can raise a question of privilege, since the only thing they are prohibited from doing is raising a point of order.
Senator Nolin: So then, a senator can raise a question of privilege at any time between the start and the end of the sitting?
Mr. Robert: Absolutely.
Senator Nolin: That is an important point.
[English]
Senator Joyal: That is a very important point. When we read Point 9 and rule 59(10), we want to be sure exactly when that moment is when the chamber is sitting where the question of privilege can be raised.
As Mr. Robert said, a point of order cannot be called upon, but that does not include the question of privilege to be raised.
Mr. Robert: That is right.
Senator Joyal: A question of privilege that could be raised during that period of time would be raised under rule 59(10).
Mr. Robert: Yes.
Senator Joyal: If it is to be raised under rule 59(10), we must ensure that in the text of rule 43, or rule 23, no grey zone of interpretation exists of when that can happen. That is the question that stays in the minds of senators to clarify quite clearly the scope of rule 59(10) that takes place at any time — either when the Orders of the Day have been called or before the Orders of the Day have been called, which is a special regime for a question of privilege in relation to points of order. That must be made clear, in my opinion, for any senator to understand his or her rights to raise a question of privilege, Mr. Chair.
The Chair: Yesterday when we had our informal private discussions as a steering committee, one issue that arose is that it is possible, while senators are making their three-minute declarations, for a senator to say something that another honourable senator may say, "In your senator's declaration, you have just infringed my rights and breached my privileges." If that happens during Senators' Statements, when is the first opportunity, under our rules that we are working on, for a senator to raise an objection and say, "During your declaration, you breached my privileges, and I want to complain to this chamber"?
That was the issue we were looking at yesterday: namely, should it be during senators' declarations or during Question Period? Senator Smith said that we do not want to cut off an important privilege of a senator and not have them raise it immediately. That is why Senator Smith said that in the original draft we took out the language in Point 9 after "occurred" when it said, "excepting during Senators' Statements, Routine Proceedings and Question Period."
I would like to hear from Senator Robichaud now.
Senator Smith: Read Point 10, too, because it is very relevant.
The Chair: Senator Smith is right; read Point 10 as well.
I would now like to hear from Senator Robichaud. He is a member of the steering committee and has had much experience with this. I know he will have very pertinent information for us.
[Translation]
Senator Robichaud: I have nothing further to add, except to say that when the report was tabled, we discussed questions of privilege and points of order. The feeling at the time was that senators were not permitted to raise points of order and questions of privilege during Senators' Statements, Routine of Business and Question Period.
Senator McCoy was concerned about ensuring that no limitations were placed on opportunities to raise a question of privilege, whether during Routine Proceedings or at any other time.
For that reason, the report dealt separately with questions of privilege and points of order.
As I see it, when a question of privilege arises or when someone feels that his or her privileges have been breached, that person can stand at any time during the proceedings and raise the issue.
However, the proposed change reads as follows: "For matters arising during the sitting, the Senator would raise the issue when it occurred." That would mean that debate on this question of privilege could be deferred. Correct? That would be to ensure we attend to the business of the Senate.
Mr. Robert: I have a question about this matter. Could the decision or the suggestion of the Speaker to defer the debate on the question of privilege be appealed in the Senate or would this procedural ruling be final?
Senator Robichaud: You are not making things easy for me! The Speaker has made it very clear that points of order or questions of privilege should not be raised for the purpose of preventing the business of the Senate from going forward.
Mr. Robert: That is why I asked the question. If you are concerned that questions of privilege or points of order could possibly delay the proceedings and prevent senators from considering the order of business, then would the committee want the Speaker to have more authority to ensure that the Senate can fulfill its legislative obligations?
Senator Robichaud: That is a question the committee needs to answer.
Mr. Robert: Absolutely.
Senator Robichaud: You are talking about awarding a kind of discretionary power to the Speaker. Correct?
[English]
The Chair: Thank you for that.
Senator Furey: I believe, chair, that you adequately summarized the issue raised by Senator McCoy; I agree wholeheartedly with that issue. I believe Point 9 of Mr. Robert's report adequately addresses it.
The point that Senator Robichaud was making concerning Point 10 is a good one. The Speaker can in fact delay consideration of an issue of privilege raised under Point 9, but Point 9 has the effect of stopping the purported egregious behaviour, which was the issue that Senator McCoy was concerned about. Whether or not it is considered at a later date is not all that important; certainly Point 10 addresses that. We should follow Senator Smith's suggestion to put it in rule form and move on.
The Chair: Thank you. That is an excellent point.
[Translation]
Senator Corbin: I would like to reread the ruling handed down by the Speaker yesterday, just as my colleague Senator Joyal did. This ruling can be found on page 451 of the Journals of the Senate. It reads as follows:
Unless the Senate makes a deliberate decision to change rule 43, rule 59(10) will only remain available for questions of privilege that arise out of circumstances that prevent a senator from providing the notices required under rule 43. To do otherwise would render the rule meaningless.
He goes on to add:
Such a reversal of the clear obligations contained in the rules requires a deliberate and positive decision of the Senate.
I was a senator when the rules were last amended. At the time, the Senate made a conscious decision to maintain rule 59(10). I cannot understand why this provision is constantly being called into question when the Senate made a decision at the time to maintain it for reasons that could be deemed exceptional and that call for the question to be dealt with the same way so that it can be heard by senators immediately.
I just want to say that I disagree with those who claim this rule is out of place. Back then, the Senate made a decision to keep this rule. Now we are discussing the process for dealing with questions of privilege. I have no objections to that, but I would certainly be opposed to removing rule 59(1) because the committee made a mistake at the time. I would just like to note that the committee sat in camera and then tabled its report to the Senate. However, the Senate made the decision to maintain rule 59(1) and I am certainly in favour of doing so.
[English]
The Chair: Thank you very much, Senator Corbin.
Senator Smith: Briefly and to follow up on what Senator Robichaud and Senator Furey have said, if we return to Point 9, the consensus yesterday, in addressing Senator McCoy's concern that was expressed and agreed to by a number of other senators, was that you could raise it at any point by deleting the phrase, "except during Senators' Statements, Routine Proceedings and Question Period."
Then, as pointed out, Point 10 is important. The Speaker could allow discussion but would have the discretion to decide that further consideration should be postponed until the earlier of the end of orders. Where it was on the record, we could say that we will deal with this at the end of orders or 8 p.m., and the other provisions above would then apply.
Our view was that that did address it and that it would not prejudice her when she was away if we put it in rule form. She will be back next week, and we can make the final decision then.
The Chair: I agree. Senator Nolin, please.
[Translation]
Senator Nolin: Senator Robichaud, according to the draft report, pursuant to rule 23(1), a senator may raise a question of privilege at any time, without notice.
Rule 23(1) does away with the exception currently provided for in the rules. Therefore, the matter address in paragraph 9 of the text now before us for our consideration is already covered in the draft report. That is why I was asking earlier if there was any difference between this text and the draft report. I do not see a difference.
Mr. Robert: There really is no difference.
Senator Nolin: The difference is in the details.
Mr. Robert: We have addressed other points.
Senator Nolin: I do not see a problem with the draft report.
Senator Robichaud: Neither do I. We had agreed to prepare a draft report and we had agreed to wait one week in order to give senators who might have some concerns time to re-read it and understand that they have the right to raise a question of privilege at any time.
Senator Nolin: Let us try and get everything straight. We have before us for our consideration a draft report and the steering committee has given us a document that helps clarify the draft report. Is that correct, Mr. Robert?
Mr. Robert: Yes.
Senator Nolin: One does not contradict the other?
Mr. Robert: No.
Senator Nolin: Then, we do not have a problem. That brings me back to my initial question? What is the purpose of this whole exercise?
Senator Robichaud: What is the purpose of what exercise?
Senator Nolin: Why are we considering this document when everyone is satisfied with the report?
Senator Robichaud: Because we are always striving to do better.
[English]
The Chair: Before I call on Mr. Robert to comment on that, I have Senator Brown and Senator Joyal.
Mr. Robert I will come back to you on Senator Nolin's question.
Senator Brown: I read back through what occurred on April 21 when Senator Harb was questioning the fact that he thought his statements were being misinterpreted, and he was quite upset about comments about being bought and sold. As you go through it, it seems as though the senators themselves solved this problem by the time the discussion ended, when Senator Milne said that it was not Senator Manning that had spoken the words; it was her, and she retracted them.
I would like to agree with Senator Furey that the report we had before us was quite good. If it could be done in plain language instead of being more complicated than what it is here, we could go a long way to having less discussion over one topic. It goes on for more than one session here.
Senator Joyal: I return to my first point. In fact, it would meet, to a degree, the expectation of Senator Brown. Since the ruling yesterday has established a base for rule 59(10) to be reconciled with rule 43, would it not be easier for us, as you said, to ensure that rules 43 and 59(10) are linked in the rules?
Mr. Robert: Yes.
Senator Joyal: Then it would be okay, instead of having the convoluted changes and difficult wording for readers that Senator Brown is complaining about. Would it not be an option for you to suggest to us in the drafting what addition could be made to rule 59(10) or rule 43 that would consolidate the decision of the Speaker, and that would be it? Is that not one way to solve the issue?
Mr. Robert: I perfectly agree. You would have to explain under what circumstances, as the discussion of this committee already makes clear, it would be appropriate to claim a question of privilege without the benefit of notice.
Forgive me for being fussy. I am an advocate of plain language. I much prefer it to anything that is convoluted and too laboured with a passive, negative voice.
In the report that you have drafted, as an exception, you are only dealing with instances that arise in the chamber and not instances that arise within the three-hour envelope. If your concern is to never deprive a senator of a right to raise a question of privilege at the earliest instant possible, then you should take into account a modification that would allow a question of privilege to be raised that is inside the three-hour envelope that occurs outside the chamber.
As you have written the exception in proposed section 3.1 now, on page 4 of the draft report, it must only be in the chamber. Therefore, you have lost an element, and you would be delayed by one day. You may want to correct that.
The Chair: The steering committee considered that yesterday. The committee is considering three issues, and Senator Joyal has answered the first, and you have concurred with it, which is section 59(10).
With respect to second issue, Senator Furey made it abundantly clear that Point 9 and Point 10 in today's draft deal with those. All that remains is what happens if 30 minutes before a senator comes into the chamber, he or she has missed the three-hour window, and 30 minutes before the senator comes into the chamber, the senator finds or feels that his or her privileges have been aggrieved? What procedure do we want then? That is why we have this document today. That covers the three issues.
Mr. Robert: In the draft report you have, if you modify proposed section 3.1 to cover that, then you have dealt with everything. I will go back to the point I raised. Forgive me because, again, it is useful for drafting to have instructions in the simplest language we can, Senator Brown.
What do you want to do with the Speaker's discretionary advice to the chamber about postponing further discussions on the question of privilege?
The Chair: Senator Furey has answered that, and he has said that Point 9 and Point 10 go together. If you read Point 10, that answers your question. I thought we agreed on that. Point 10 of your document reads as follows:
The Speaker could allow discussion, but would have discretion to decide that further consideration would be postponed until earlier of the end of orders of the day or 8 p.m.
I thought we had a growing consensus about Point 10. Certainly Senator Furey made that abundantly clear, and so have other senators today.
Senator Andreychuk: My concern is that, depending on what day it is, as you know, in the chamber, we can take a great deal of time in discussion. I am concerned about balancing other responsibilities of the Senate.
In that wording, leaving it to the discretion of the Speaker, who makes the decision that we have to get on with the Orders of the Day and important matters are there before we take the time to properly and adequately discuss matters? You are leaving it to the Speaker's discretion. Is that what we want?
The Chair: We have always made it clear that this exercise is designed to perform two functions, first to ensure that if senators have had their privileges violated and feel aggrieved, there must be a remedy and an opportunity to complain immediately.
Second, there must be the right of the government to get to Orders of the Day to do the work of the government, and that cannot be impeded by a series of 10 privilege motions. Those are the two principles enshrined in this document. The government must have the right to get to Orders of the Day. Certainly, in general, we agree on that.
Senator Andreychuk: I know we agree. However, I return to the wording because I think the wording should not just be plain; it should be explicit. I want to know who will be making that ultimate decision, and we are saying that it will be the Speaker. If that is the direction we are going, I certainly want to reflect on whether that is how I understood it previously. However, we are not making the decision at this moment.
That is the only qualifier I have; I want to read it to see how it will flow.
The Chair: I am sensing a consensus, meaning that Mr. Robert has heard enough, where he and the draftsman can take these documents and, over the weekend, produce the final document, which they will bring to this committee one day next week. Hopefully during that day, we can reach a consensus so that we will have something to report back to the chamber. Is that generally agreed?
Senator Corbin: I would like to question the witness with respect to the last paragraph of the originally proposed report, which is the third consequential change, that section 10 of rule 59 be deleted. In the new draft, surely that paragraph would not appear. Is that right?
Mr. Robert: You are right.
Senator Corbin: I want to be clear about that. We are not deleting section 10 of rule 59; we are maintaining it, right? We are maintaining the text, the intent and the principle.
Mr. Robert: Yes. We certainly understand the direction of the committee, and no explicit or implicit deletion of section 59(10) in terms of its purpose and in terms of the rights of senators to raise a question of privilege without notice will occur.
The Chair: Thank you.
[Translation]
Senator Nolin: In that case, Mr. Robert, with the change to rule 43(3.1), does rule 59(10) not become redundant?
Mr. Robert: Rule 59 is merely a list.
Senator Nolin: A list of instances where notice is not required.
Mr. Robert: That is correct. If a senator is considering raising a question of privilege without giving notice, this is merely an indication that elsewhere, the rules describe the circumstances in which a question of privilege may be raised without notice.
Senator Nolin: And in such instances, rule 43(3.1) will apply.
Mr. Robert: Yes.
[English]
The Chair: Honourable senators, I would like to thank everyone for their excellent participation today. It is never easy to try to reconcile three or four different types of rules and drafts and so on. Everyone has done a magnificent job, and now the real work comes for the draftsman to take all these points of view, concepts and ideas and put them into one final draft.
If nothing else is to come before the meeting at this time, I say once again thank you to everyone. This has been a wonderful discussion. It is deeply appreciated. The meeting is now adjourned.
(The committee adjourned.)