Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 13 - Evidence, September 15, 2009
OTTAWA, Tuesday, September 15, 2009
The Standing Senate Committee on Rules, Procedures and the Rights of Parliament met this day at 9:36 a.m. to examine the manner in which committee member substitutions are made and in particular the need for temporary as well as permanent replacements of committee members.
Senator Donald H. Oliver (Chair) in the chair.
[Translation]
The Chair: Welcome, everyone. I hope that the summer break was relaxing and productive. I am sure that you are all anxious to finish some of the files that we had begun to work on.
[English]
To that end, we have before us today Heather Lank, Principal Clerk of Committees and Private Legislation Directorate. You will recall that we had asked her to develop some options for us with respect to committee substitutions. Specifically, we were most concerned with substituting committee chairs and deputy chairs in particular.
Your offices received copies of Ms. Lank's briefing note last week. She is now before us today to present those options to us now.
Welcome, Ms. Lank. Please proceed with your presentation. As you can imagine, honourable members of the committee will have certain questions they will want to pose to you after your presentation. You now have the floor.
Heather Lank, Principal Clerk, Committees Directorate, Senate of Canada: Thank you very much for inviting me to appear today with respect to your study on committee membership changes.
The study was proposed by Senator Carstairs who, in her speech to the Senate and in her presentation before this committee, identified some of the issues that she believed should be addressed. Her main area of concern, as Senator Oliver has pointed out, was to find a way to allow for the temporary replacement of chairs and deputy chairs.
My purpose today is to provide this committee with information on the committee membership system as it currently exists and to propose alternatives to the current membership system in relation to the substitution of chairs and deputy chairs.
[Translation]
I am going to take a few minutes to talk about present rules and practices in order to define our context.
The Rules of the Senate establish the process by which members of committees are selected. They further provide for changes in membership to be made by government and opposition leaders on an on-going basis.
These provisions allow parties to ensure that they are appropriately represented on committees and to ensure that committees can operate effectively despite the many other obligations of their members.
Rule 85(3) specifies that, subject to a change in membership as set out in the Rules, senators, once their appointments are confirmed by the Senate, serve for the duration of the session for which they are appointed. Thus, membership is permanent, unless there is a membership change during the session.
Rule 85 then sets out the mechanism for making changes to committee membership: a notice signed by the leader of the government or of the opposition, or by a senator named by the leader.
In practice, the party whips are invariably named by their respective leaders to be responsible for making sure that the party is appropriately represented on the various committees.
Membership changes referred to in rule 85(4) are not time-limited. Until another notice is submitted pursuant to rule 85(4) returning him or her to the committee, a senator, once replaced, is no longer a member of the committee and thereby loses all privileges of membership, including the right to vote, to move a motion and to be counted as part of the quorum.
Changes in committee membership happen frequently; they often happen several times per day. Generally, these changes do not pose problems. However, replacing a chair or deputy chair raises administrative and procedural concerns.
[English]
As mentioned, a membership change removes a senator from the committee. As only a member of a committee may serve as its chair, his or her removal leaves the committee without a chair and, thus, not properly constituted. Consequently, it is a procedural requirement that the committee meet to elect a new chair before being able to undertake any further business. The deputy chair is not entitled to preside over a committee meeting if the position of chair is vacant.
The practice is for a deputy chair to preside if a chair is unavoidably absent, but that chair must not have vacated the position. In addition, electing an acting chair is not feasible since he or she is not entitled to preside if the position of chair is vacant.
The removal of a committee member who is the deputy chair poses fewer problems since a committee does remain properly constituted without a deputy chair, but issues still need to be addressed. For instance, the replacement of either the chair or the deputy chair would have an impact on the steering committee, which would be unable to meet or transact business until a new chair or deputy chair had been elected or until they were made members of the committee once again. Under the routine motions adopted by committees, the chair and deputy chair are also given other powers that they could not exercise while not a member of the committee.
In addition to the procedural changes posed, a financial accountability issue exists. Under the Parliament of Canada Act, chairs and deputy chairs receive additional pay in recognition of the additional responsibilities they hold. Should a chair or deputy chair be replaced on a committee, thus effectively vacating the position of chair or deputy chair, the matter of this additional salary would need to be addressed. For those reasons, whips have been advised not to remove chairs or deputy chairs from committees. However, your committee has asked the administration to propose options to enable such substitutions to occur, and I am pleased to be able to do so today.
The first option is to add a provision to the Rules indicating that, once elected, a senator continues to serve as chair or deputy chair of a committee regardless of any subsequent membership changes. Senators would retain their positions, unless they resigned or until the committee elected a new senator in one of those positions. This would address both the procedural and administrative concerns mentioned previously while maintaining flexibility for the whips in managing their membership on committees.
The new provision would make it clear that while the senator was no longer a member of the committee and thus could neither vote nor move a motion in committee nor be counted as part of quorum, he or she would retain all of the other powers as chair or deputy chair. This would provide a clear statement of a senator's continued tenure as chair or deputy chair, so the election of the chairs and deputy chairs then would be permanent.
Another option would be to add a provision that would be linked to option 1 that I just presented to you, but this provision would grant the authority to the leaderships to make temporary or permanent membership changes in the case of chairs or deputy chairs. Therefore, in option 1, the replacements could only be temporary. Option 2 gives the leadership the option of deciding whether it is a permanent replacement or a temporary replacement.
A new form would need to be created for the leaderships to use for chairs and deputy chairs indicating if the intention were to have simply a temporary replacement. It would be only in those circumstances that the provisions that I have just mentioned would apply in terms of their continuing to have all the powers except not being able to vote, count toward quorum or move motions during the time that the membership change was in effect, but it would be only at that time that it would apply.
However, under this option, the leaderships would also have the capacity to make a permanent substitution. They could choose whether they are taking the person off temporarily or making a permanent change. In the latter case, they would use the current form, which, as you all know, is for, under our Rules, a permanent replacement until such a time as the person is put back on.
Two proposals are before you, and a connection between the two. Of course, I would be happy to answer questions to clarify.
The third option is one that is a much broader review and change to the system.
[Translation]
This option is to completely rethink committee membership with a view to making it permanent, while allowing for temporary substitutions. This option would include all members, not just chairs and deputy chairs. It would be a completely different way of managing committee membership. This is a much more broadly based option. Any change to the permanent membership could be restricted to a decision of the Senate, either through a substantive motion or by the adoption of a report of the Selection Committee. Other changes to the membership would be temporary. This option has the advantage of being open and transparent, particularly to those outside Parliament who may not understand the intricacies of the current system. For example, if a member of the public wished to write to the "permanent" members of a committee, he or she currently could be hard-pressed to find out exactly to whom the letter should be sent, if there had been several "temporary" changes made to the committee that week. A system allowing for temporary changes for all committee members would make it easier to identify the "permanent" members of the committee.
The challenges posed by such a system would be primarily administrative, and would depend on the exact model adopted. There are many potential models that make temporary changes possible. But many questions would need to be answered before such a model could be established. For example, who would be responsible for temporary membership changes, the senator being replaced or the whip? For how long would temporary changes remain in effect: one meeting, one week, for a specified period? Could there be practical challenges for whips and committee clerks in keeping accurate and up-to-date lists of members? There are certainly advantages to such a model, but there are also practical challenges, including the need to draft changes to rules and policies.
[English]
Other options that I have not presented to you this morning could be considered. In the appendix to the briefing note, we have a summary of a few other jurisdictions that have different models. Some jurisdictions have no permanent membership. Some do not allow any changes at all, so you have a whole range of possibilities. However, I put before you three in particular for your consideration.
We could, of course, present others if you find that none of these meets your needs.
Once you have considered the various options available to you and decided which you would like to pursue, I and my procedural colleagues would be very pleased to develop draft rule changes for your consideration. I look forward to your questions.
The Chair: Thank you very much, Ms. Lank, for an excellent analysis. You took a very difficult situation. You analyzed it by posing questions and then giving an answer to it and then raising another possible question that could arise from that answer, and then you came up with some options. It is an excellent presentation, so thank you for that.
If options 1 or 2 were chosen, are there any difficult implications that you have not talked about that you want to raise now before we go into the questions in terms of implementing them?
Ms. Lank: From a procedural point of view, these are both quite feasible with respect to implementation.
The Chair: Is it option 3, then?
Ms. Lank: That one is more complex because it is a whole review of the entire membership system. Options 1 and 2 could be done relatively easily compared to option 3 because of the possible implications. Focusing on just the chair and deputy chair does make it simpler to implement from an administrative and procedural point of view.
The key difference, or one of the key differences and where this committee will need to reflect, is that option 1 essentially sets who the chair and deputy chair will be permanently for the session, so that even if there is a membership change, they retain the powers of that position.
Option 2 gives the whips the power that they currently have to remove chairs and deputy chairs as members of committees for an indefinite period of time. Therefore, option 1 does reduce the power of the leadership. Option 2 maintains power as it currently exists, although the system is slightly different. That is a political question that you will need to reflect on. However, we certainly could bring forward proposals for rule changes relatively easily from a procedural point of view. Option 3 has many more questions that need to be answered.
The Chair: You raised a question about the chairs and deputy chairs receiving remuneration. If a chair was away for two months, under option 1, would it be your suggestion that the person who became the chair receive the remuneration for that two-month period or that the remuneration continue, notwithstanding that there was another chair for that two-month period?
Ms. Lank: Under option 1, the chair remains the chair and the deputy chair remains the deputy chair. They have all the powers of those positions except to vote, move motions and count toward quorum. If you look at all other jurisdictions where there is a permanent position of chair or deputy chair, temporary substitutions do not affect pay.
To be consistent with other jurisdictions and the logic that under option 1 they are holding that position and would continue to chair steering committee meetings, make decisions and handle the chair's roles, simply not at the committee meeting, I would suggest that remuneration logically would continue to go to the occupant of the chair's or the deputy chair's position.
The Chair: What if it was sick leave or the person was in hospital in another state for two months?
Ms. Lank: That would be a decision senators would have to make about what is appropriate.
Senator Smith: I have trouble with option 1 in the second paragraph. It says, "The new provision would make it clear that while the senator was no longer a member of the committee and thus could neither vote nor move a motion in committee nor be counted as quorum, he or she would retain all their other powers as chair or deputy chair."
Is that not creating a meaningless legal fiction?
Ms. Lank: It is a way of addressing the issue that Senator Carstairs raised: How can we allow the substitution of chairs and deputy chairs but allow the committee, which requires that it have a chair, to remain duly constituted without having to go through an election of a new chair?
It is a way to ensure that the chair's position is always filled until such time as the chair chooses to resign. For example, if there was a retirement, the committee would have to elect a new person to fill that position.
It is a way to of ensuring continuity in the leadership of the committee while recognizing the desire expressed by some senators to allow substitutions to occur. For example, if the chair has to be on the road that week, it allows the membership to be managed so no loss of positions occurs. This was the issue raised at the committee as I recall. The position on the committee would not be vacant, which could make the whips and members uncomfortable if the numbers are close.
We want to be able to have a substitute for this person who will be away, but we do not want to have to go through the process of electing a new chair and creating a procedural problem. This is a way of addressing the procedural problem while giving you the capacity to keep your full membership. Whether it is desirable or not is a different matter.
Senator Smith: Membership does not mean anything if you cannot sit on the committee.
Ms. Lank: The person who substitutes for the chair would be the one who would attend the meeting, count toward quorum, vote and move motions. The person who is the chair would continue to hold all the other powers of the chair — for example, to sign on behalf of the committee, to chair a steering committee meeting, all of the powers given to the chair. The substitute would not have those powers.
Senator Smith: If someone is sick or unable to be there for whatever reason, such as personality conflicts with the leadership of the party or caucus you belong to, you may say that he or she is out as chair, but that person still has the title. What is the point of referring to that as leadership of the committee when it is total legal fiction, vacuous and empty? It is an engine without any cylinders.
Ms. Lank: Senator Smith, you are speaking exactly to why option 2 is here. Option 2 gives the leadership the power to take Senator X off the committee permanently and replace them with someone else.
Senator Smith: Okay.
[Translation]
Senator Nolin: In your introduction, you describe the current situation. In your opinion, if we made a permanent change using the second option, am I correct to understand that we would need to elect a new chair of the committee?
Ms. Lank: Exactly.
Senator Nolin: So are we still in that state of uncertainty, even with a new chair.
Ms. Lank: If the substitution is permanent.
Senator Nolin: That sets up a grey area.
Ms. Lank: It does not set up a grey area because, if the chair is removed from the committee permanently, an election is needed at the next meeting. It would be the first item on the agenda. Under the second option, if you are interested in pursuing it, the whip has the right to decide if the substitution will just be temporary, as in the case that Senator Carstairs mentioned. In that case, an election would not be necessary because the chair's position is still occupied by the person originally elected. The substitution is only temporary.
The second option gives the whip two choices: is it permanent or temporary? That also addresses Senator Smith's question.
Senator Nolin: Under the third option, which is the one I prefer, have you considered the way in which the House of Commons goes about it? Under their system, when the Selection Committee makes its report to the House, it must also provide a list of substitute members.
Ms. Lank: The whips can make substitutions from that list. Substitutions are usually for one day only. Then the original member resumes his or her place on the committee. If both the permanent member and the substitute are at the committee meeting at the same time, the permanent member carries the voting rights. It is quite a different system, but it could work in the Senate.
But we must bear in mind a major difference between the Senate and the House of Commons. In the Senate, it is not uncommon for new senators to be sworn in during a session of Parliament, as we did today, for example. That gives rise to changes like retirements. It is not uncommon to see changes in the permanent membership of a committee during a session.
From my experience as clerk of the Selection Committee, Senator Nolin, I feel that it is also important to remember that, at those meetings, whips often say that discussions are still going on and that they are going to put names forward, but next week, they are going to make changes to name the real permanent members. That, of course, would require the Selection Committee to be clear on who the sessional members are, bearing in mind that the committee could always meet again to submit a new report to the Senate for adoption, a report changing the permanent members. So there is always another option.
Senator Nolin: And in the event of a retirement, or of the arrival of new senators, or of a change in committee responsibilities, as is often the case, nothing would prevent the Selection Committee, where the responsibility for preparing the list of committee members lies, from reworking the list as it sees fit, subject to the approval of the chamber, would it?
Ms. Lank: That is correct, Senator Nolin.
Senator Nolin: That seems to me to be the system that best reflects the way in which we are trying to get the Senate to evolve.
[English]
The Chair: I have a quick question about option 3. The second line says that it would create a permanent membership for a committee. If the committee were to have a membership of 12 senators, would we need to have a list of 13 or 15 senators to draw from, or would there be 12 only?
Ms. Lank: Those details would need to be worked out. However, certainly, you could have a system in place where the substitutions could be drawn from a list of all of the members of the caucus, or you could restrict it. That decision would need to be made.
The Chair: If the number of senators on the committee were 12, we would need a list of more than 12 in case two members were away and had to be substituted because you then could not take from the list.
Ms. Lank: Certainly, in other jurisdictions there tends to be a long list of potential substitutes. Very often, it is the full membership of the caucus, and then the whips would simply pick, or the individual senator would do that. You would have to make that decision. The individual senator could pick their own substitute from that list. That is a difference you would want to discuss.
The Chair: I think the leadership would want a say in that.
[Translation]
Senator Robichaud: Ms. Lank, do we often have to replace a committee chair?
Ms.Lank: No, it does not happen at all these days, because it has raised procedural questions. It is very rare. It no longer happens because the whips' offices realized that there was a procedural problem if they did it. It was done in the past, but it was very rare.
Senator Robichaud: If it does not happen often, why are we making life difficult for ourselves with all these lists? Whenever we get into rules and subsections of rules, the procedure always gets more obscure. Could we arrange it so that the person who takes a senator's place as committee chair does so on a temporary basis only?
Ms. Lank: That would be a decision for senators to make. If they wanted to amend the Rules of the Senate to allow that, they could do so. But a chair is elected by the committee. The Senate does not elect committee chairs, of course. If the Senate decided that the person replacing the chair should have all the powers of the chair — because currently that does not happen automatically — it could be done if the Senate voted to amend the rules. So, yes, it is possible; you would just have to amend the Rules to allow it. That is all.
Senator Robichaud: Would those amendments to the Rules be complicated? I like things to be simple —
Ms. Lank: Without having looked at that question specifically, I would say that the amendments would be quite simple. But you know that, sometimes, you think things will be simple, but they become quite complicated when you look into the details.
Senator Robichaud: Especially here!
Ms. Lank: I believe that it could be done quite easily, but I say that without having looked into it closely.
Senator Nolin: I have a point of clarification. Ms. Lank, are you telling us that the Senate would elect or choose the chairs and deputy chairs as well, by adopting the Selection Committee report? Or would it remain the responsibility of each committee to choose its own chair and deputy chair?
Ms. Lank: In the options I presented to you, there was no intent at all for the Senate to choose committee chairs and deputy chairs.
Senator Nolin: So I misunderstood?
Ms. Lank: Yes.
Senator Nolin: That is why I asked for the clarification. Please excuse the interruption.
Senator Robichaud: The Selection Committee just puts forward a list of the names of senators who will be committee members, right?
Mr. Lank: Yes, exactly.
Senator Robichaud: Who asks the Selection Committee to meet when vacant positions have to be filled?
Ms. Lank: Are you asking me what happens now?
Senator Robichaud: Yes.
Ms. Lank: The whips' offices call me to say that they need to meet to replace someone for whatever reason. The Selection Committee rarely needs to meet except at the beginning of a session. But, from time to time, situations arise with independent senators.
As you know, in the Rules, the whips and the leaders can make changes for their own members. But we have had cases when an independent senator wanted to be removed from, or to join, a committee and the Selection Committee had to meet as a result. But that is very rare, and is done at the request of the Selection Committee chair. And the two whips consult with each other.
Senator Robichaud: When the Selection Committee first meets, and unaffiliated senators are named, there is normally an understanding between the government and the opposition whips as to whether they are part of the quorum and whether they can be substituted by a particular party, is there not?
Ms. Lank: That is a good question, Senator Robichaud. Even though they are informally identified as people who sit with the government or the opposition, it does not mean that they become members of that caucus. So the whip cannot replace that person unless the independent senator has sent a letter to the chair, with a copy to me, saying "For the purposes of the substitution of members, I agree to be subject to such and such a whip." Without that letter, neither the government whip nor the opposition whip has the right to substitute them because they are not members of a caucus. The Rules require that you have to be a member of a caucus in order to be involved in substitutions.
But there is a mechanism in place that allows an independent senator who wishes to be subject to that system to be part of it.
[English]
Senator Fraser: Welcome back, Ms. Lank. It is always a pleasure to have you with us. I am greatly attracted by option 3, but it strikes me that the old rule of the best is the enemy of the good might apply in this case since it would take much more work among members of the various leaderships to implement. I suggest that perhaps we should address ourselves to the narrower issue for now.
The question has arisen before. In my case, it arose last spring. For some reason that escapes me now, I thought I might have to be absent on a day when there was to be a vote in committee. I was taken aback to discover that I could not be replaced, at least not unless I wanted to stop being chair. In that case, I was available to rearrange my affairs, but, at times, one is not able to do that.
Looking at options 1 and 2, I was struck by Senator Smith's opening comment about it looking like a legal fiction. I wonder whether we might not be able to just rephrase this slightly to achieve the same effect. I would like you to think on the fly about this. Would it be possible for us to say something such as, "When the chair or deputy chair is unavoidably absent, either whip has the right to increase the membership of the committee by one, and when the chair or the deputy chair, as the case may be, resumes attendance at committee, membership reverts to the original number"? That would not raise the question of who is the chair and who is not the chair, if you see what I mean. It would just say that you can keep the numbers sitting around the table up to where they ought to be. I do not know whether it would work or not; you are the procedural experts.
The Chair: What if the chair and the deputy chair were both absent on the same day?
Senator Fraser: Then each whip could bump it up by one.
The Chair: Who would chair?
Senator Fraser: As is the case now, if the chair or deputy chair had to be absent, the chair would have asked, presumably in consultation with the deputy chair, another member to chair the committee.
Ms. Lank: Senator Fraser, the proper procedure in the situation where both the chair and deputy chair are absent would be for the clerk to oversee the election of an acting chair for the purpose of that meeting.
Senator Fraser: Really?
Ms. Lank: That would be the proper way to proceed.
The idea of increasing the numbers is certainly not something that I have given any thought to in terms of a process and the implications of that. However, it is certainly something we could think through to see what the implications would be, whether it would work and what things we need to keep in mind from a management point of view in terms of managing the numbers. Based on experience, Senator Fraser, it is not unusual for a senator to think he or she will be absent, yet it turns out that he or she actually can be present. If we received a membership change based on a rule change that says you can increase by one, it would presumably be null and void if the senator showed up.
Senator Fraser: Yes, the minute the chair or deputy chair walked into the room.
Ms. Lank: It is very important, whatever process is put in place, that everyone should know at all times who the members are, who can vote, who counts toward quorum and who is in the chair. It is an interesting idea, and I am not at all dismissing it, Senator Fraser, but I need to think through whether or not there would be unanticipated consequences that do not come to mind at this point. Certainly, it is yet another option; there are probably others we can also look at.
Senator Fraser: I am not saying that this is the solution to our problems. I was just trying to address the problem that Senator Smith raised at the outset of when is a chair a chair but not a chair, and anything we can figure out in terms of phraseology.
Ms. Lank: Can I restate to ensure that I understand what exactly you are proposing? That may help us come up with suggestions of how it might be implemented. The idea would be that if the chair or deputy chair or both are absent, the whip of one party or both would be authorized through the Rules to add one extra member for that meeting, I presume, in order to ensure that the numbers balance remains the same. That is essentially it.
Senator Fraser: Yes, but it is not something I have brooded over for months.
Senator Robichaud: That person would not be an extra member. He or she would just replace.
Ms. Lank: No, that is the point; they would not replace. The idea is that they want the chair and deputy chair to stay in their positions and remain members, so a 12-person committee could become a 13- or 14-person committee for that day.
Senator Fraser: One or two of the members would not be there that day, so the numbers around the table would remain in balance. If that sounds more complicated than the original, then I would withdraw the suggestion.
Senator Robichaud: What if you cannot get enough people in the first place?
Senator Brown: I need a definition of what you mean by "permanent." Does that mean it carries from one parliamentary session to another and then another?
Ms. Lank: No, Senator Brown. Our Rules at this point are very clear. In fact, every parliamentary session is a fresh start from a committee point of view. The Selection Committee would still meet at the beginning of every session and recommend the membership of committees to the Senate. The Senate would adopt that. There would be organization meetings, and the chair and deputy chair would be elected. The membership and the positions of chair or deputy chair would be permanent, if you were to go with option 1, only for the session. It would not go from session to session or Parliament to Parliament.
Senator Brown: That makes me feel a little better. I wonder why the committees themselves do not get to choose the chairs. I understand the leadership does that right now. I do not quite understand it. I have been on other organizations, municipal government and other utilities, and the people who were made chair or deputy chair always had to carry the will of the committee. I understand this institution is a little different, but I wonder why there is not an option to have the chair chosen by the members of the committee.
Ms. Lank: As you can probably imagine, Senator Brown, that is a political question, not a procedural question. From a procedural point of view, chairs and deputy chairs are selected by the committee through a vote at the organization meeting. What happens before that meeting is a political discussion in which I should not get involved.
Senator Robichaud: A very wise comment.
Senator Andreychuk: When Senator Carstairs came, she pointed out the problem of efficiency in the existing system. I think every committee has worked it out differently. When you accept being a chair, you accept being here to conduct the meetings. You know it is an onerous task, but it gives you some discretion in the conduct of business of the meetings. When you say you will be a chair, you weigh what it will mean to you personally, and one thing it means is a commitment of time. The deputy chair does the same. In most cases, the chair and the deputy chair have their discussions about when they will be away, give the committee a heads up and see how they can manage it and work it through. Of course, emergencies and exigencies happen where it does not work out quite that way.
The Senate is unique in that we are all independent senators. If you look at the Senate act, et cetera, we come to committees in our own capacities. If we had 100 people going in different directions, it would be chaos. We have governed ourselves according to a political fact that is not on the table. Legally, technically and practically, the committee elects its chair and deputy chair, but we know there is this pre-discussion. It is only there because the senators wish it to be there. If we took it out, we could go back to being totally transparent and duking it out at the committee over who is chair and who is deputy chair.
The bottom line for me is that every time we make a change, we create different problems than the ones we have. I do not see the problem at the moment. In the one case where it was troublesome to me, I wanted to step down as the chair for a perceived conflict, and the deputy chair wanted to step down for a perceived conflict. We both said that we would not be there. Both whips added two members, and the committee elected a chair for that meeting. They withdrew the substitutes, reinstated us — we were re-elected — and life went on. That is how it has been done on many committees that I have been on. It seems to be the most practical solution. That is how we got here after 100 years. Every time I see one of the others, I see either giving up more authority to the whips than they already have or creating anomalies and issues that we do not have now. Therefore, we will trade one basket of difficulties for another.
Unless we get something that is simpler, I wonder why we would go to something more complex. You have worked it through, so you have pointed out to us that it is not that simple to just eradicate the problem of which Senator Carstairs was advising us.
Ms. Lank: Certainly, Senator Andreychuk, from a proceduralist point of view, the current system is not a problem procedurally. The idea that you should not substitute chairs and deputy chairs for all of these procedural reasons is one that we feel strongly is the appropriate procedural interpretation. Therefore, we are perfectly happy with keeping chairs and deputy chairs in place.
The issue is, however, that we were asked to address a concern of senators who want to be able to be replaced as chairs and deputy chairs. These proposals came forward in response to that specific request, certainly not being proactively brought forth, saying "We have a problem; here are some things to solve it." From a procedural point of view, it is not a problem. It is, however, a political issue for which you were looking for solutions. We have tried to come up with some for you to consider.
The Chair: Senator Andreychuk, Senator Robichaud has a supplementary on your question before you proceed.
[Translation]
Senator Robichaud: How about what Senator Andreychuk said about a chair and deputy chair deciding to withdraw and being replaced by two others, with the committee, at some stage, choosing another chair and deputy chair? Does that raise any kind of problem?
Ms. Lank: There is no procedural problem. As you know, though, a sum of money is made available to committee chairs and deputy chairs for the work that they do. So, in theory, there should be some kind of adjustment to their pay, likely for a very limited amount of time. There is that administrative question but, from a procedural point of view, there is no problem. It can be done.
Senator Robichaud: We said the chair and deputy chair. What if there is just a chair?
Ms. Lank: If the position is vacant, the committee cannot function. There would have to be an election for the meeting and for the length of time that the committee would decide. The deputy chair cannot replace the chair if the chair is not a member of the committee. If there is no chair, an election has to be held. But if the chair stays, no election is necessary and the deputy chair can chair the meeting.
[English]
The Chair: Senator Brown has a supplementary on Senator Robichaud's supplementary.
Senator Andreychuk: I put forward the chair and the deputy chair. However, for example, if the chair cannot be there, the deputy chair carries on in the absence of the chair, and vice versa. If the chair is there but the deputy is not, we still carry on.
Ms. Lank: Absolutely, Senator Andreychuk. The key is that they are members of the committee. If the chair is vacated by a substitution, then there is a need for election of a new chair, but if you are simply absent, there is no problem with a deputy chair presiding the meeting. That is absolutely correct.
[Translation]
Senator Robichaud: There would be a problem if a vote had to be held and one of the two parties were short a member, would there not?
[English]
Ms. Lank: That is right, Senator Robichaud. That goes back to a political issue as opposed to a procedural one.
[Translation]
Exactly, Senator Robichaud.
[English]
Senator Brown: I want to revisit what Senator Andreychuk had to say, which I understood to be that the senators can decide this question. Right now, it is sort of pre-decided by the leadership.
Would it be possible to take this question to the entire body and see what the body of the Senate wanted to do with electing their chairs, or at least allowing the committee to elect those chairs?
Senator Andreychuk: In theory, we do elect them, and we yield to the political process. If we make a recommendation, it will go to the floor of the chamber to be accepted, and there is a debate then. We have had that debate on the floor. If we can find a better system than we have, we might buy into it. It makes sense now to have the political discussions first. That is an evolving thing over the years. It was not that way at the start.
Senator Brown: Could I ask you a last question, Senator Andreychuk?
Senator Andreychuk: I am not that old; I was not here in 1867.
Senator Brown: I would like to ask you if you prefer option 2 over the others.
Senator Andreychuk: At the moment, I prefer to leave it as it is. I know what the problem is, and I know how it has been handled. I am just not sure what the unintended consequences will be of options 1, 2 and 3. As our clerk has said, we have to work those out. Options 1 and 2 seem simpler; option 3 seems more interesting, but it has more pitfalls.
Senator Brown: Thank you.
Senator Fraser: This is not so much a question as a comment. In the matter of who gets to choose committee chairs, the Rules actually say now that the committee elects its chair at its organizational meeting. It does not say that it fills out the form according to what its leadership has told it to do. It seems to me there is a great deal to be said in favour of the present system because it is the present system that has more or less guaranteed that there shall be proper representation among committee chairs, that minorities, regions, languages and gender shall be properly represented among the body of committee chairs and deputy chairs. In the absence of that, we would find all of a sudden committees being chaired by White, English-speaking men by the great majority. I know that was not what you had in mind, but that is the way life works, in my view. I am just suggesting that we got to where we got, in part, for good reasons, not just because there were control freaks sitting in the leadership offices.
The Chair: Senator Andreychuk, look what you did with all these supplementaries. Did you have anything further?
Senator Andreychuk: No, I put the issue on the table. I believe there are practical things that we have been doing that make sense, as Senator Fraser has said. We are not sure where it would lead if we started moving it. I am almost inclined, and persuaded by what you have given us, to leave it alone. I could be persuaded.
Senator Cordy: Thank you, Ms. Lank, for appearing before the committee. I think we are all saying that we want something simple and do not want to create more complexities by making changes. However, we want to be assured that if, for some reason, a chair or a deputy chair cannot be there, that in fact the numbers of the committee remain proportionately the same as they would be with the chair and the deputy chair. Currently, that is not allowed to happen.
If we look at option 2, which is similar to what we have, and if we were to put a time limit so that if we have a substitution with a 24-hour clause or a one-meeting clause or whatever, would that deal with the issue that we have at hand?
Ms. Lank: It is inherent in whatever you decide that the complexity will increase because you will have to make changes that will inevitably be more complex than the current system, which is that you cannot do it. Let us face it; it is no simpler than that. No matter what I propose, it will be more complex.
In terms of limiting the complexity, which is what I understand, Senator Cordy, you would want to do, nothing prevents the Senate from deciding that if you go with a system where the change can be made on a temporary basis, you could put in a provision that states for one day, for one meeting or for whatever you decide is appropriate. That would be an added wrinkle that could be put in.
Your suggestion, then, would be that the whip would be able to substitute for Senator X who is the chair for that day's meeting, and for that period of time, the rule would have to specify that the committee is still properly constituted, that there is no need to elect a new chair. However, for the purpose of that meeting, this other person will be able to vote, count toward quorum and move motions. Using that model, the changes would always be temporary. I believe that is what you are suggesting.
Senator Cordy: Yes, it is.
Ms. Lank: It would not be possible, then, for the whips to permanently replace the chair or deputy chair. Is that what you are suggesting? That is definitely an option that is available to you. It could be done, Senator Cordy. It is always more complicated than it appears at first glance, I fear, but there is nothing procedurally that would prevent the Senate from deciding to have time-limited substitutions. That could be worked into a change.
Senator Robichaud: If the whips were given the powers — because they have the powers now; it does not matter how we do it — it is still the whips who would advise as to who should be the chair or the deputy chair.
Now, when they do the substitution for a senator on that committee, that person assumes the functions of the person he or she is replacing for that day. Then, when the substitution is replaced with the original person, the functions come back to that person. Then the problem is solved; is it not?
Ms. Lank: You could put in a rule that would allow that. If someone is substituted for the chair or deputy chair, they take on the powers of the chair or deputy chair for that period of time. That is an option that would be available to you.
Senator Robichaud: The whips have the powers anyway, and I do not think we will take that away from them.
Ms. Lank: However, keep in mind that if you were to go that route, that would mean that a committee on a particular day would not have control over who their chair or deputy chair is. The whips would have taken off their chair, replaced Senator X with Senator Y and the members of the committee would not have been part of that. That is for you to decide. If you are comfortable with it, procedurally nothing prevents you from doing that. However, it is taking away the current power that exists where committees decide on their chairs and deputy chairs at all times.
Senator Robichaud: If I may just be the devil's advocate here, how many times have committees selected chairs and deputy chairs that were not recommended by their respective whips?
Ms. Lank: As you can probably guess, Senator Robichaud, I do not have the answer to that question.
Senator Andreychuk: I know of one.
[Translation]
Senator Losier-Cool: As I listened to one supplementary question and then another, I think I have the answer to my question. I am not convinced that we need significant amendments to the Rules.
Under the present rule, when a senator retires — and this has recently happened several times — when he is a committee chair, does it not fall to the deputy chair to replace him when he is gone? How can we tell a deputy chair that he is not there to replace a chair who is absent?
Ms. Lank: There is a big difference between the situation when a chair is absent and when he retires, leaving the post vacant. The deputy chair cannot replace the chair if there is no senator as chair. The deputy chair's function of replacing the chair exists only if the chair is somewhere else or is unavailable.
To be properly constituted, every committee must have an elected chair. If a chair retires, the first thing that must be done is to hold an election for chair at the next meeting of the committee. The deputy chair cannot take the chair's place. Under those circumstances, he does not have the authority of the chair. The clerk has to hold an election for the chair right at the start of the meeting. Only when that is done can the committee start its work.
Senator Losier-Cool: So what is the problem that we want to solve? I understood the rule. First of all, you also have to be a member of the Senate; a retired senator is no longer a senator, nor a committee chair.
Ms. Lank: The problem is that, under some circumstances, when the committee chair cannot attend a meeting and wants a substitute, he should be able to designate a member of his party to vote on that day. At the moment, that cannot be done for procedural reasons. That is the problem we are dealing with. A senator retiring when he is a committee chair is not a problem; you just replace him by holding an election.
Senator Losier-Cool: When I was a committee chair, I had to be away. I had a member of the committee replace me, so that it was the same when it came to voting. But the deputy chair was the one who chaired the meeting.
Ms. Lank: For proper procedure, it is not right if an election is not held to fill the position of a chair who has been moved. Whips no longer move chairs and deputy chairs because they are aware of the problem. The problem is greater for chairs than for deputy chairs because, procedurally, a committee is properly constituted even without a deputy chair. If a committee chair's position becomes vacant, a new chair must be elected. Even given that there have been occasions in the past when an election has not been held, it was something that should not have happened, according to the procedure. So we are trying to solve the problem so that the procedure and the Rules are followed.
Senator Losier-Cool: But it creates other problems.
[English]
Senator Furey: I must admit that I share Senator Losier-Cool's confusion, and it arises from the position taken by Senator Andreychuk and Senator Robichaud.
Procedurally, the present system works fine, provided the proper procedure is used to replace a chair when the chair is absent. I will not get into issues of compensation or remuneration because those are administrative matters not procedural matters.
Just to be clear, over the last number of years, how many times has this substitution of chairs actually created a problem?
Ms. Lank: Very rarely. It is no longer done on a regular basis because there is the procedural question that we have identified, so it is not something that is done commonly.
Just to give you an example, if a chair is taken off the committee and someone else is put on and there is no election of a new chair, the chair is vacant and the deputy chair presides at the meeting. Let us say that happens; the questions then come: Was that a proceeding of Parliament? Was that committee duly constituted? Does privilege apply, et cetera? All of those questions come up because it is very clear from all of the authorities that to be duly constituted a committee must have a chair. It cannot have a chair if the chair has been removed from the committee and no one has been elected to replace that person. Therefore, in order to be procedurally clean, protect all of you and ensure the process is followed, it is important that the position be duly held by a senator, and if that senator is removed, the first item of business is the election of a new chair.
The deputy chair can step in only if the chair is absent and the chair is still occupied. There is no procedural issue there.
Senator Furey: My point is that if we properly follow the existing procedure, none of that will happen.
Ms. Lank: Absolutely.
Senator Furey: If we change it, and we do not follow the new system, we are in the same quagmire we are in without changing anything, so why bother changing it?
Ms. Lank: From a procedural point of view, Senator Furey, there is no problem with the current system, which is that if they are substituted off, an election should be held for a new chair.
Senator Furey: Thank you.
Senator Robichaud: Now you are confusing me, Senator Furey.
Senator Furey: All I am saying, Senator Robichaud, is what Ms. Lank is saying. If we follow the existing procedure, all of those "what ifs" do not matter if we properly follow the existing procedure. If we were to change it, for example, and we did not properly follow the new procedure, we would be in the same quagmire we are in now. Therefore, why bother changing it? All we need to ensure is that we properly follow existing procedures when we are substituting a chair.
Senator Cordy: If a new chair is duly elected, can the person who was the former chair be substituted by a party member?
Ms. Lank: Yes, if the chair is removed and a new person is put in.
Senator Cordy: If the chair says that he or she cannot be at a specific meeting, at the beginning of the meeting, the clerk presides and a new chair is elected. Currently that election is indefinite, but we could change that so it is for the meeting or whatever. The clerk could simply read that in as you are electing the person.
We would now have a vacancy on the committee because the deputy chair or whoever has taken over as chair. Then the whip, in fact, can substitute another member.
Ms. Lank: The whips could substitute before the meeting. For example, they could say that they are substituting Senator Blogs for Senator Jones, for example. Knowing that at the beginning of the meeting, the clerk would say that you have a vacancy in the chair, and you will oversee the election of a new chair; Senator Smith will be elected for that purpose. No problem exists as long as everyone understands that if you substitute, there will be an election of a new chair. They can be substituted in that context.
The issue raised is that there was reluctance on the part of some to recognize that they would not be chair. They would be removed as chair for that meeting. They cannot hold on to that position at the same time as they are substituted. That is the issue.
Does that make it clear, senator?
Senator Cordy: Could we read into the election that it is a temporary election for that meeting only?
Ms. Lank: Yes.
Senator Cordy: Could that be read in by the clerk?
Ms. Lank: It is important to note that the clerk oversees the election of the chair. The standard motion is that Senator X be elected chair of this committee. Keep in mind that unexpected things often happen. For the sake of keeping the committee duly constituted from a procedural point of view, it is best to have that motion stand until the next time you move a motion re-electing the original chair back or whoever else you want. Otherwise, if you only do it for that meeting, the committee is no longer duly constituted at the end of the meeting; you have lost that position again.
Senator Cordy: However, the permanent chair — if I can use that term — cannot then legally hold a meeting of the steering committee.
Ms. Lank: That is right because he or she is not the chair at that time, but that person could easily be returned.
Senator Andreychuk: At the end of the meeting. That is what we did.
Ms. Lank: You could have a substitution during the meeting and have another motion passed putting them back as chair. That could be done.
Senator Fraser: Similar to all the rules questions, the more you look at it, the worse it gets.
The matter of having someone substitute for the chair only arises when we are worried about keeping each side's numbers up. On other occasions, I assume from your correction to me earlier, we can elect an acting chair.
Ms. Lank: Yes.
Senator Fraser: How does that work? Is it that so and so is elected acting chair for this meeting? Is it time limited?
Ms. Lank: It often is. Usually that only occurs if the deputy chair is also unavailable. Otherwise, that is the default.
Senator Oliver: That is Senator Andreychuk's example: Both she and the deputy chair resigned in her committee because of perceived conflicts.
Senator Fraser: I am trying to get a procedural understanding, chair.
Ms. Lank: In Senator Andreychuk's case, because the chair and deputy chair resigned, they had to elect a new chair, not an acting chair. They had to fill the position.
In Senator Fraser's scenario, knowing that the chair and the deputy chair are unavoidably absent, the clerk would oversee the election of an acting chair. It could be done for the length of the meeting because the chair and deputy chair are still members. There is no issue of steering committees, powers or anything else. You only need someone to preside. That could be done with no problems procedurally.
[Translation]
Senator Robichaud: Mr. Chair, I am coming to the conclusion that, if we followed Senator Furey's recommendation, that is, to make no changes and to follow the present Rules, we would not have a problem. I think that is what we should do.
[English]
The Chair: I hear what you say, and I understand that.
As you know, this committee is already studying the matter of committees in the Senate. It is looking at the mandate of committees, the size of committees and many other things. In relation to Ms. Lank's option 3 in which she talks about a permanent committee membership, maybe that is one of the things that we, as a full committee, can look at when we bring back the subject of committees, their mandate and size, et cetera to see whether some permanent substitution system, such as she suggests, is something that the committee would want to do. This is not our last kick at the can.
Ms. Lank: I look forward to coming back.
[Translation]
Senator Nolin: I want to come back to the scenario that Senator Fraser mentioned. If the concern is a balance in the number of members representing each party, it means that, in the situation Senator Fraser describes, there would be substitutes for members who are absent. There have to be. If the concern is the numbers, we will need substitutes for any or all absent members.
Ms. Lank: Yes, exactly; if that is the concern.
Senator Nolin: If a temporary chair is elected — I do not think that happens, but let us say that it does — how can we re-elect, or nominate again, someone who is no longer a member of the committee because he or she has been substituted?
Ms. Lank: You cannot. You would have to receive an amended list of members before you could hold a vote on whether the person could once more act as chair. Otherwise, it cannot be done.
Senator Nolin: When could that substitution be made?
Ms. Lank: That would be a decision for the committee and the whips. But, in the situation that has been mentioned, for example, where a substitution was necessary because of the numbers, it could be done before the meeting. Then a new chair would be elected.
Senator Nolin: So, in effect, it would be at the start of the meeting at which the people who had been absent were back. Could there not be a meeting of the Subcommittee on Agenda and Procedure in the meantime?
Ms. Lank: There you go! And if it is possible for the Subcommittee on Agenda and Procedure to meet, another option is to have the election at the end of the meeting, once you had received the amended list of members, showing that the person is a member of the committee once more.
Senator Nolin: And we would vote for people who —
Ms. Lank: They do not have to be present to be elected.
Senator Nolin: I understand, but then we would be changing the numbers.
Ms. Lank: Yes; at the end of the meeting, yes. You could do that. You are quite correct.
Senator Nolin: It just has to be very clear.
Ms. Lank: Yes
Senator Nolin: Everyone understands that, if the concern is the number, on the day when substitutes are removed so that the absent people can come back, those absent people will not vote because they are still absent.
Ms. Lank: Exactly.
Senator Nolin: Fine. As long as it is clear.
[English]
Senator Keon: Mr. Chair, I briefly want to go on record and support what Senator Furey said to get this wrapped up for the time being.
The Chair: Honourable senators, is it agreed that staff be directed to draft a report on this order of reference recommending the status quo?
[Translation]
Senator Nolin: Mr. Chair, I would add that we should seriously consider option three and that we should mention it in our report.
[English]
The Chair: Agreed, honourable senators, with respect to option 3? Senator Cordy?
Senator Cordy: If we are going along with the status quo, I would like that we give a clear explanation of the current policy because people are unclear as to what it is.
[Translation]
Senator Robichaud: We keep what we have at the moment, but Senator Nolin wants us to study option three in more depth, if I understand correctly.
Senator Nolin: The decision that we are about to take and that we are comfortable with maintains the status quo. We are not looking for uncharted waters to sail into, but one day we will have to look into permanent membership of the committees. Since Senator Carstairs' motion has opened the door, we should tell the chamber that it is our intention to consider an option that would result in committee members being permanent.
[English]
Senator Smith: It is fine to have a draft report. However, we do not need to lock ourselves into a final position today because it is quite clear to me that there is no consensus on anything other than not to leap too quickly. I do not believe it is inappropriate for us to chat with our respective leaderships to know what they think; not that we have to salute and say, "Mission accomplished." When we look at the draft report, we might feel a little more comfortable about moving in a specific direction, including maintaining the status quo, which is quite possible.
Senator Andreychuk: I would say that it is not simply that we maintain the status quo but that we make no changes until we have the full report. At that time, we might choose to revisit this as part of it.
The Chair: Are you talking about the full report on the study of committees?
Senator Andreychuk: Yes. It is precipitous to deal with this before then.
The Chair: I believe that was Senator Nolin's reference when he said that we should not forget option 3.
Senator Fraser: On this order of reference, we recommend no change. However, I urge that we include a cheat sheet, as Senator Cordy said, to tell all senators what the current Rules of the Senate state. Many people might not be well informed.
The Chair: Is there anything further on this matter, honourable senators? Is it agreed, then, that the staff draft a report?
Senator Fraser: Could you give us an update on the working group, or other, on the modernization of the Rules of the Senate?
Senator Robichaud: Let us wait until the next meeting so that I can do what I have to do.
Senator Fraser: I am not saying that we need to do it now. Rather, I am simply asking what is happening?
The Chair: Senator Fraser, you were one of the diligent ones, but we will raise it at the next meeting and get a full report.
Senator Fraser: Are you saying I did not have to work that hard over the summer?
Blair Armitage, Clerk of the Committee: You cleared your conscience.
Senator Robichaud: I worked on it at the beginning of the summer. However, I have forgotten everything I read, so I will have to review it.
The Chair: Honourable senators, this meeting is adjourned.
(The committee adjourned.)