Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 16 - Evidence, October 27, 2009
OTTAWA, Tuesday, October 27, 2009
The Standing Committee on Rules, Procedure and the Rights of Parliament met this day at 9:37 a.m. to consider, pursuant to section 86(1)(f)(i), printing an updated version of the Rules of the Senate.
Senator Donald H. Oliver (Chair) in the Chair.
[Translation]
The Chair: Honourable senators, thank you for attending today. Once again, we have before us Charles Robert, Principal Clerk in the Chamber Operations and Procedure Office.
[English]
You may recall that earlier this spring Mr. Robert came before us to discuss reprinting the Rules of the Senate. A few rules had been amended and available copies were running low. You may recall that Mr. Robert was asked to do two things on our behalf.
First, he was to look into the feasibility of printing solely in a loose leaf binder format as a way of saving paper and money. The second was to come back with the proposal to be presented to the Senate that would allow the Clerk of the Senate to reprint the Rules of the Senate under his own authority, when appropriate, without having to resort to going through this committee as a way of expediting things.
Finally, Mr. Robert wishes to report on more recent amendments to the Rules of the Senate that have been adopted by the Senate and which should also be incorporated in a reprint. I do not know what they are, but I suspect they will be the conflict of interest rules that we have already discussed in this committee.
Mr. Robert, if you would guide us through these various issues, you now have the floor and welcome.
Charles Robert, Principal Clerk, Chamber Operations and Procedure Office, Senate of Canada: Thank you very much, Senator Oliver.
Honourable senators, as the chair explained, I am here to present to you a request to reprint the Rules of the Senate in order to take into account certain changes that have been made since this edition was last printed in 2005. As I mentioned in the past spring, there were two rule changes made since 2005 dealing with user fees and a name change of one of the committees.
Since then, in fact earlier this month, the fifth report of the Standing Committee on Rules, Procedures and the Rights of Parliament was adopted. This report, in fact, deals with an update to the conflict of interest provisions, a revision of the code that was adopted by the Senate some time ago and which had an impact on the Rules.
There had been additional changes to the Rules, so from that point of view, it was perhaps a good thing that we did not reprint the Rules of the Senate last spring because these are far more significant. They will become part of rule 32.1 dealing with the declaration of interest with restrictions, exceptions, the role of the Speaker in announcing before the vote those senators who have declared an interest that has not been retracted, the participation of non-members in committee, and a sponsoring senator with respect to a bill or a motion.
I can go through them in detail, but I do not know that it is necessary since senators have a copy before them. These are the rule changes that have to be incorporated into the Rules of the Senate.
The first one deals with the user fees. The second deals with a committee name change and three, as you pointed out, sir, deals with conflict of interest. There are a series of changes that will be incorporated into the Rules concerning the conflict of interest rule.
[Translation]
We have the text in English and French for the declaration of interests, limitations, exceptions and all the rest.
[English]
The question is will the committee authorize a complete reprint of the Rules of the Senate. Last spring there was hope that we would be able to print just the pages subject to change. This is not unlike what happens to subscribers of Peter Hogg's Constitution Law of Canada where, as case law is developed that leads to new understandings or interpretations of various provisions of the Constitution, subscribers receive changes to a large binder and simply insert the add-ons.
Unfortunately, I do not believe this is a viable option for us in the Senate for a number of reasons. First, we do not know who has the loose-leaf red binder version of the Rules of the Senate. We do not know how many of them are out there or who has a copy. Certain people are not necessarily considered subscribers. In addition, most of the copies that we distribute are in this format, not in the red binder; and this format does not lend itself to insertion of additional pages to take into account changes that might be made when we want to reprint the Rules. We must also consider that it is not easy to change the index and the table of contents. Those changes create a huge problem for us. Despite the additional cost, it would save us enormous labour to be able to redistribute new copies.
Now, for those senators who have binders and simply want to throw out the contents and insert a new binder, we can do that. To avoid the additional cost of buying new binders, this alone costs about $9 to reprint. If we had to buy binders, it would be an additional $5 added on to the price of the reprint. We are trying to control the price as much as we can. We prefer to print it this way because it is cheaper, but that is really a decision that you need to make. I am giving you a recommendation based on my experience.
The Chair: How many copies do you need to print, so we can do some quick math, and what is your budget for printing?
Mr. Robert: Our budget is we will print however many copies we need and we will look for the money where we have to, but we would print a minimum of about 500 copies.
The Chair: Five hundred copies.
Have you finished your presentation?
Mr. Robert: With respect to that, yes. Do you want to move on?
The Chair: No, I think there will be questions on the first part.
Senator Fraser: We all want to save public money, but $5 dollars times 500 copies is $2,500 and $9 dollars times 500 copies is $4,500. If you make the initial investment in binders, then presumably, as time goes on, you will be able to save on reprints. Have you made that calculation?
Mr. Robert: The real problem is we do not know who has the red binders. We know that the senators have them, but that is not all who have them.
One may say the thing to do would be to rely on the website copy or version as opposed to reprinting at all, but that is not a real option. Our challenge is that we want to offer a service. We are trying to inform everyone who wants to know the current edition of our Rules. This piecemeal reprinting creates too great a challenge for us.
Senator Fraser: Is it that you just do not know how to track down who should get the updates?
Mr. Robert: That is correct.
Senator Fraser: Apart from actual senators and table officers, the people you know who are getting Rules, would it not be possible then to put the onus on those people to come to you for the revised copy?
Mr. Robert: I suppose.
The Chair: Has the administration given any thought to the size, the length and other options, some of which may not be as expensive, or are you sticking with the binder?
Mr. Robert: This is an 8.5 by 11 inch sheet of paper, cut in half and inserted in a Cerlox or a binder. The cheaper way to go would be with 8.5 by 11 inch paper with perfect binding. That would be the cheapest way to produce the Rules, in the same way that the Standing Orders of the House of Commons are produced. It would be a somewhat thinner document. It would be one-half this size. It would be larger, the size of a bill in terms of its format. Perfect binding is the most cost effective because we do not need Cerlox systems.
The Chair: What is perfect binding?
Mr. Robert: Perfect binding is just a glue binding, like a paperback. It would be the cheapest way to go.
The Chair: Is it like this book from the House of Commons?
Mr. Robert: Yes, it is.
The Chair: Have there been any complaints with the House of Commons, in that the books are falling apart or that they are not user-friendly? Are there any complaints about this format?
Mr. Robert: No senator, I am not aware of any complaints from the House of Commons. The House of Commons used our current format in the early 1980s, and abandoned it very quickly because it was too much trouble.
The Chair: Why are we still using the copy you have in your hand and why not this form which works well and is cheaper?
Mr. Robert: I cannot answer that question.
Senator Cools: This is out of order.
[Translation]
Senator Losier-Cool: I have two questions. The first one is whether we have to decide today about what format the committee would like to have, whether it is this one or that one. Does the committee have to decide that today?
Mr. Robert: The reason I am here is really for the decision on whether to authorize the reprinting of the Rules. The way in which that will be done, or the format to use, those are other things that you will have to decide.
Senator Losier-Cool: My second question: except for senators and their offices, how are the 500 copies distributed? Is it by request?
Mr. Robert: It is usually by request.
Senator Losier-Cool: You do not have a list?
Mr. Robert: There is no master list. That would be too much work. We do not have enough staff to keep distribution records. Normally, we just give them out when we are asked, because we think that the request is legitimate.
Senator Losier-Cool: Are five hundred copies enough to handle all the requests?
Mr. Robert: The number is based on the possibility that we might have to reprint it more often, just in case there might be other changes in the Rules. There are some reports before the Senate already; we do not know what might happen with them. There have already been several requests to reprint this edition.
The last reprint was four or five years ago, and last summer, we ran out. We ordered 150 or 200 new ones; today, we do not have many left.
[English]
The Chair: Mr. Robert, the briefing note you prepared for the committee is entitled, Reprint of the Rules of the Senate. Has this committee approved in principle all of the items that you have listed on this document?
Mr. Robert: Yes, senator and they have Senate approval as well.
The Chair: The only reason they are here today is that these are the changes that would be put in the new Rules when they are reprinted.
Mr. Robert: Correct.
The Chair: Are there any comments?
Senator Cordy: Mr. Robert, you gave us the format cost for the current document. Do you know the cost for an 8 by 10 document similar to the one used in the House of Commons?
Mr. Robert: I would have to look into it, but I can assure you it would be less. How much less I cannot say.
Senator Cordy: Thank you.
[Translation]
Senator Nolin: I understand that it would be less. But if we were only doing this once, if we were never going to amend the Rules in the future, I would understand the expense. But I do not understand why the House of Commons has abandoned the idea of a loose-leaf format when their Standing Orders are amended at least once a year, if not twice. I do not understand. I think that we should just spend money once. I think we should buy binders. I understand that this is more work for your team, but you would keep a record of everyone with a copy of the Rules. You could have a few bound copies for people who just need to consult the Rules every now and then. But the important thing is to update the Rules as quickly as possible for people who use them almost every day. That way, they would not have to always be wondering whether their copy was only up-to-date two years ago, or five, and is now missing all the Senate's more recent changes.
I do not understand why we would not spend the money now. One day, we are going to reprint the Rules. If it is not next year, it will be the year after.
Mr. Robert: I was with the House of Commons in the 1980s and, if I recall correctly, they eventually found that it was too difficult. They received complaints because you could not just change the content; you also had to change the table of contents and the index.
Senator Nolin: But everyone involved in amending legislation does it: the Civil Code, the Criminal Code, the Labour Code, everyone. I understand that it is complicated, but it is not impossible. This is not rocket science, as they say.
Mr. Robert: I am just stating the facts as I recall them: back then, the House decided that it was too difficult.
Senator Nolin: Just because they are idiots does not mean that we have to be! Oh, are we in open session now? I apologize.
Just because they made that decision one day does not mean that we must not try to be efficient. I understand that it will take an employee who will occasionally need to make sure that updates are sent with the right pages in the right place and with the right updating instructions. It is already being done; there is nothing magic about it. That is my recommendation, Mr. Chair.
[English]
The Chair: Well, he raises a good point. Senator Joyal, please.
Senator Joyal: In one of our meetings last spring, we formed a subcommittee to clarify the standing rules either in terms of the quality of the English or the French or certain sections that might raise some interpretation issues. Should we recommend a decision to reprint the Rules with the changes that were brought in the last month? Would it not be better to reprint the Rules of the Senate after we have the report of that subcommittee so that we could blend the two and ensure there is only one expense for an initiative that covers exactly the same objective?
The Chair: That subcommittee is meeting tomorrow and the work will not be finalized tomorrow. As I understand it from Mr. Robert, some of the rules that have been made by your committee, the Conflict of Interest Committee, should be in the Rules. There is some urgency. I do not think that we should have to wait until we have new rules before we can put the conflict of interest amendments in our current rules.
Mr. Robert, is that correct?
Mr. Robert: Yes.
Senator Joyal: Thank you. You answered my question. I just wanted to raise the other deadline, which is a review of the standing rules based on the objective that I described in my intervention.
Senator Cools: Much of this conversation makes me uncomfortable. Mr. Chair, could this committee have a discussion one day on the purpose of the rules? Could we have a discussion on how many times we might create more rules in the future? I ask this question because we are in a situation where no senator knows the rules and most senators find themselves heavily reliant on staff.
Perhaps this committee could address this very important issue before we gallop off on creating yet another set of rules that no senator will know. We should deal with this as a question that really confronts this committee in a profound way.
There are many rules in our rule book that are not rules at all; they are policies. The Rules of the Senate are supposed to guide proceedings on the floor. The purposes and uses of these rules has been greatly expanded beyond anything that they should be. At what point in time will we have a discussion on the limits of the use of the Rules of the Senate? I am just curious because it is something that has been bothering me for quite some time.
When I came to the Senate, which is not too long ago, the Rules of the Senate was a little book. Every senator knew the rules. Now the book has increased exponentially in size, as well as the number of rules therein. Has anyone given this any thought? Many of the items in the rule book are not rules.
The Chair: Could you give us an example of some of the things that are not rules?
Senator Cools: For example, some of them are policy. The rules around senators' illness and doctors' excuses and all of those kinds of things are not rules of the Senate. The Rules of the Senate were intended to govern what the Bill of Rights calls proceedings in Parliament. I have been concerned for a long time that these rules are being used to control senators' behaviours and activities in a thousand different ways. Many of those policies are good and necessary, but they are not rules.
Chairman, the matter has gone beyond Senate rules. We now have another group. We now have another massive document called the Senate Administrative Rules. No senator knows what is contained in that book. I find the whole matter out of control, and perhaps we should discuss this issue in this committee.
I would also like to point out to honourable senators that there is something wrong with this committee needing a staff to inform us of the situation. I think this committee should be informed at all times, preferably through its chair, of the real situation. I have great difficulty finding myself in this situation again and again.
It is as though someone has a bottle of powder called "instant rules" and takes a teaspoon and puts some of it in water. It grows and blooms, a document flowers and senators vote on it. The truth of the matter is that most of the reports coming from this committee no senator knows, no senator understands. Senators are given no explanation on the floor of the house. For the most part, they vote for propositions that have never arisen from them; however, they are binding on them. I do not think that is a desirable situation.
I do not mind appealing to you, Mr. Chair. I am not saying to change this, but at least we can begin to admit that it exists and begin to look at it. Quite frankly, these rules are filled with much verbiage, unnecessary verbiage too, but we are not going into how well or how poorly they are written.
I am not a new senator, but many new senators are afraid to get up and speak. This is a new phenomenon, with these new senators speaking a week after being sworn in. Those poor creatures are intimidated. I am reminded of a very lovely senator who is now retired and passed away, Senator Finlay MacDonald, who was a very good senator. I remember us having a discussion, when he said that it took him three years before he felt comfortable to speak. I think we should be sensitive and pay attention to the development of senators.
Principles are what should be guiding us. Maybe this process is going on everywhere, in every department of government. More and more, the Senate is beginning to feel like another department of government headed by a minister with tons of staff; even the staff have increased exponentially. We, senators, are not a department of government, and we should conduct ourselves as independent senators managing our own affairs. This may not strike a chord with many, but it is an important matter.
The Chair: It is an interesting subject, and I am glad that you raised it.
Senator Cools: Mr. Chair, I wish you could take the lead on this. In addition, it is not even proper that one of our staff should be coming before the committee as a witness making recommendations. Staff have no capacity to make recommendations that are then turned around and made into motions. These are sacred systems. I sincerely believe that this Constitution was passed onto us as an entailed inheritance, entailing the old days of entailed property.
Maybe now is not the time, but we must address this issue. Will the size of this rule book double in another year or two? Where are we going? This is happening with the Criminal Code. I have important criminal lawyers in Toronto who keep telling me that it is time for us to take a major look at the Criminal Code in its totality. We have to look at this, more rules? It is ridiculous. Maybe I am prolonging the intervention, but this is disturbing. I think I have made the point.
Some of these issues are very valid policy. For example, all that policy on sickness and all that came about as a result of a very bad situation, but still, good law does not rely on bad things. Maybe other senators have some opinions. In these matters I tend to be reserved a little, so I leave it in your good hands.
Senator Furey: Thank you. I wanted to comment on Senator Cools' remarks.
I am intrigued by what you are saying, Senator Cools. If, in fact, there should be a booklet regarding procedures within the chamber, you are quite right. I just opened the book randomly and rule 104 talks about reporting expenses of committees to the Senate, which has nothing to do with procedure within the chamber.
I do not, however, share your comments with respect to staff. I am sure the staff would prefer not being called before committees to give evidence, but we have to rely on their expertise. Perhaps we could ask Mr. Robert while he is here what his thoughts are with respect to a rule book for the Senate. Should the Rules of the Senate be limited to procedure within the chamber, or include, as Senator Cools points out, policy issues?
Senator Cools: I wonder if I can object to that, because Mr. Robert is not here to debate senators. He is a witness. He is providing testimony. If we want to engage in a debate, it should be in an informal meeting, without a record.
The Chair: Mr. Robert is competent to answer the question that was put by Senator Furey. I am asking Mr. Robert if he wishes to comment in response to the question.
Mr. Robert: Staff has no control over the Rules. The Senate adopts the Rules, and we are here to assist you in putting them into a format that you have accepted and want to have. We have no voice with respect to that.
Staff did not put in rule 104. That was a decision of the Senate. If the Senate does not want to have rule 104, if they accept the position that policies belong in another book and not in a book that, as has been correctly pointed out, deals with what happens on the floor of the Senate, that is a decision this committee can recommend to the Senate and the Senate can adopt.
We are here to do whatever it is you wish us to do, whatever you decide. If you ask us for advice, we try to give it to you impartially based on the experience we have had serving you.
Senator Furey: Thank you very much, Mr. Robert.
Senator Cools: I think Mr. Robert is correct, but I would like to say that Senator Furey, in his interpretation of rule 104 is not correct. Rule 104 is not only a good rule but also a necessary rule because it governs proceedings in Parliament, proceedings in committee. The Senate is supposed to manage its own affairs and also manage its own money, which is why we have an Internal Economy Committee, as the House of Commons has. I think they call it the Board of Internal Economy. There is no judge. No one in the world would ever say that having independent senators, which we all are, make decisions about how to spend money in respect of how committees and their proceedings are run, et cetera, is not in order. Indeed, it is absolutely vital and necessary.
Senator Furey, your intention is good, and I admire that, but your example is not the best.
Senator Fraser: Senator Cools, as is so often the case, raises some extremely interesting points. It is true that the Rules are huge, often opaque, sometimes contradictory and sometimes just unintelligible. It is a series of courses designed by committees over the decades.
I think Senator Cool's fundamental point about examining which rules belong in the Rules of the Senate and which ones belong somewhere else would be easier to address for all of us after the subcommittee has finished its work. The subcommittee's job is simply to take the rules as they are, without changing their content, but rewriting them and reorganizing them to make them intelligible. As I understand it, that is the mandate of the subcommittee. Once they are clearer, then it will be easier for all of us to say this one really does not belong here.
My question comes back to what we are doing here today. The briefing note, as I understand it, consists of those rule changes that have been adopted by the Senate since the last reprint. The draft that is before us is a report the substance of which this committee has already discussed. That is, we should not have to go through this every time we need to reprint the Rules. The draft report would authorize the clerk to prepare and reprint the rules.
What I want to know is, would that report, if we adopt it, authorize the reprinting of these?
The Chair: Yes.
Senator Fraser: In that case, could we not move to discuss it?
The Chair: I am trying to do that, and I have been trying for more than 20 minutes.
Senator Fraser: My humble apologies.
The Chair: If I may, I started twice to try to get to this, and I would like to do that now.
Mr. Robert, we have a second document before us, which deals with changes to the Rules that take effect when the Senate adopts them. Can you take us through this and explain what this is, please?
Mr. Robert: This arises from a comment initiated by Senator Corbin last spring. Senator Corbin asked why this committee was obliged to go through this process of authorizing a reprint of the Rules for changes to the Rules that have already been adopted by the Senate. He thought that perhaps it was cumbersome and that there might be another approach that could be taken that would respect the will of the Senate as already expressed and would avoid engaging this committee in, if you like, rubber-stamping the obvious. If the Senate has already adopted the Rules and trying to keep them up to date and make them as readily accessible to the Senate and senators as possible, it does not make much sense — I am now arguing the position of Senator Corbin — to take up the time of this committee to seek authorization for a reprint. His point of view was, as I understood it, no, it does not make much sense. That seemed to be the general sentiment of the committee. I was asked to come back with a motion that would address that issue. That is what this attempts to do.
The Chair: In the first point:
That the Clerk of the Senate be authorized to prepare and print from time to time, as required, for tabling in the Senate by the Speaker, consolidated versions of the Rules of the Senate containing any changes approved by the Senate to that time and any minor typographical corrections.
Is that what you are proposing?
Mr. Robert: Yes, sir.
The Chair: The second point is:
That the Clerk of the Senate be authorized to update the on-line version of the Rules of the Senate from the time any change is approved by the Senate.
Honourable senators, is there discussion on the language in items 1 and 2 of that proposal?
Senator Cools: Yes, I have many questions. It is not clear at all. He says it is quite clear; it is not the least bit clear, and I have many difficulties with it.
If the fundamental problem has been that printing is not being authorized in a regular way, whether it is the actual fact of printing itself or the expenses therein, I really do not understand why this committee is even dealing with this issue, which should be coming from Internal Economy.
Does this committee deal with the printing of everything else in the Senate? I am asking you. As an example, the report from the Agriculture Committee, Soil at Risk, was so popular that we had to come back to authorize the printing of more batches of those reports. However, printing is not rules and does not concern the Rules of the Senate or the Rules Committee. It is printing. That is largely an administrative matter and Internal Economy should be bringing it forward. Senator Furey should actually be looking at this problem as we speak. It is not even rules. That part is clear, right?
The Chair: Senator Furey?
Senator Cools: Senator Furey does not have to respond.
Senator Furey: Somehow, I got into Senator Cools' cross-hairs this morning.
Senator Cools: No. All I have to offer, my friends, is my mind.
Senator Losier-Cool: So moved.
The Chair: It is moved by Senator Losier-Cool that the proposal before us, the amendments to items 1 and 2 that I just read, be adopted. Is there further debate and discussion?
Senator Cools: There is debate. We have not had a debate yet. You cannot stop debate by someone moving a motion. Moving a motion merely begins debate.
The Chair: I know that, believe it or not. Does anyone else wish to participate in the debate?
Senator Cools: I would like to speak on this.
The Chair: Please do.
Senator Cools: Mr. Chair, since these rules were not scripted by a member of this committee or under the authority of this committee, could you explain to me why it would be the Speaker of the Senate who tables these rules? First, I do not understand the word "table." I understand what "present" means. "Table" is such a misused word. Why are we giving the Speaker of the Senate that responsibility according to this proposal?
The Chair: Who would you like to give the responsibility to? You are a member of the Senate and therefore are entitled to your opinions.
Senator Cools: I would like not to have this rule at all. I would like these matters to come through as administrative matters in a proper way, not tied up to the content per se.
The Chair: That is what this is designed to do. It is designed to make it administrative so things like this do not have to come before the committee but that the clerk can do it from time to time.
Senator Cools: I think I understand the intentions. I am not questioning anyone's motivations or intentions. I think I understand them quite clearly. I am saying that this can be done without making this a rule in the Senate or another rule in this bulk. That is all I will say.
I have made this quite clear again and again. We have this process in the Senate that has been sped up in the last many years of enlarging the powers of the Senate by using the Rules of the Senate. I keep saying that this is improper, unparliamentary and unconstitutional. I do not know why we have had to involve the Speaker in this at all, quite frankly. I do not think we should be doing that. Has anyone discussed it with the Speaker?
Senator Fraser: To which rule do you refer, Senator Cools?
Senator Cools: Perhaps we should all begin by reading to ensure we are talking about the same thing. Is this not Mr. Robert's first proposal?
Senator Fraser: I am with you now. I am sorry.
Senator Cools: It is not a good thing we are admitting on the record that we have not read it.
The Chair: It is the same way that documents in the House of Commons and other places are introduced on a daily basis by the Speaker.
Senator Cools: That is my point. The Speaker does not introduce other things to do with printing of the matters around the Senate. Perhaps no one cares. Perhaps no one has thought about it, but the Speaker is not in the business of introducing the bureaucracy or acting as a bureaucrat in the Senate. He gives messages coming from the House of Commons, he does that sort of thing, but the Speaker is not supposed to be doing this. Maybe no one cares.
Senator Nolin: No, we care. We care.
Senator Cools: I just do not know why the Speaker is involved.
Senator Fraser: Someone has to do it. Someone has to present to the Senate in some form the new version of the Rules, which are to do with the functioning of the chamber. Someone has to do it, and there are not many candidates. It could be the chair of this committee, or it could be —
Senator Cools: Or, it could be the chair of Internal Economy.
Senator Fraser: For rules, I would prefer it to be the chair of this committee, or it could be the Speaker, whose job it is, after all, to oversee the application of the Rules. I know your views on this, Senator Cools, so we do not need to have that particular discussion right now.
Senator Cools: There are all these false assumptions.
Senator Fraser: Other than those two candidates, I cannot think of any other suitable candidates for this job. I have no problem at all with having the Speaker do it, but I would have no problem with having the chair of the committee do it, either, if that were deemed appropriate.
Senator Cools: Hopefully we say, "tabled." Hopefully these things should be discussed every time. "Tabled" does not mean the same thing as "introduce" or "present." I do not think it is fair to the Speaker to have to introduce something, put something before the Senate that he would then have to take another action to move into a debate, if necessary.
Senator Nolin: The French version is quite right. I rely on the French version, and it says "deposit" in the Senate. I am quite happy with that.
Senator Cools: Does anyone know the difference between "tabling" and "presenting?"
Senator Losier-Cool: We all do.
Senator Cools: You do? Good.
The Chair: Any further debate on this motion?
Senator Cordy: Basically what we are doing is presenting to the Senate an update of rules that have already been passed by the chamber. If we change it to the chair of the committee presenting the updated rules, I would not have a problem with that, rather than the Speaker.
Senator Cools: Then we should do that because it does not say "presenting," it says "tabling," which means it does not come forth in debate.
Senator Cordy: I was about to say that in French it says "deposit," so if in English we change it to "present" —
Senator Nolin: I am not an expert in English, but I can tell you the French version is very good.
Senator Cordy: "Present" or "deposit" would work for me in English.
Senator Cools: It has to be put forward in order for it to be debated. For example, if something is tabled, it does not appear in the Journals of the Senate at all.
Senator Cordy: I am not sure it would need debate. The information contained in it has already been passed by the committee and it has been passed by the Senate. All we are doing is presenting it in the printed form. That is all we are doing, correct? I am not sure it would need debate in the Senate.
The Chair: No, it does not.
Senator Furey: With respect to this debate, it is a tempest in a teapot. Can we move on? Can we vote on this?
Senator Cools: Maybe, Mr. Chair, I should just stop coming to these committee meetings. Every time I raise an issue, someone moves a motion to cut off debate.
Senator Furey: No, I am not moving a motion to cut off debate.
Senator Cools: Move on. Get off my back. This should be coming forward from you. This should not be coming forward the way it is. As chair of the Internal Economy Committee, you should have taken charge of this. Yes, you should have.
Senator Furey: The matter is before the Rules Committee, not before Internal Economy. We have a motion. Can we move on? I think we have had enough debate on it. That is my opinion. You want to cut that off, Senator Cools? Cut it off.
Senator McCoy: I would like to move an amendment to the motion that is on the floor, and that is that we change paragraph 1 of this draft report to read "for presenting in the Senate by the chair of the Standing Committee on Rules, Procedures, and the Rights of Parliament."
The Chair: Can you read the whole paragraph the way it would be? That the Clerk of the Senate be...
Senator McCoy: The amendment would read:
That the Clerk of the Senate be authorized to prepare and print from time to time, as required, for presenting in the Senate by the chair of the Standing Committee on Rules, Procedures, and the Rights of Parliament, consolidated versions of the Rules of the Senate containing any changes approved by the Senate to that time and any minor typographical corrections.
Senator Cordy: I will second that amendment.
The Chair: Seconded by Senator Cordy.
Senator Cools: Could we read it one more time before the vote, please?
The Chair: I am instructed that the word "presenting" has a special and very specific meaning and that "tabling" has a specific meaning. When something is "presented," it means that a discussion is required. This is something that has already been decided by this committee and by the Senate, so why do we have to present it and have a debate? That is the problem with the amendment.
We are now having a debate and discussion on the amendment to the motion. Is there any further discussion on the amendment with the use of the words "presented to the Senate by the chair?"
Senator McCoy: There is always the possibility of unanticipated gremlins arriving in your text. Although a discussion may be invited, it does not have to be indulged. I am not sure that is a show-stopper.
Senator Fraser: As Senator Nolin has pointed out, the French version refers to the "deposit" in the chamber. Is that a word we could adopt in English?
Senator Nolin: "Deposit" in French means "tabling."
Senator Fraser: It means "tabling?"
Senator Nolin: Yes.
Blair Armitage, Clerk of the Committee: "Tabling" is for the information of the Senate. When you table a rule 104 report, as Senator Furey has brought —
Senator Cools: We should give the clerk proper permission to speak on the record.
The Chair: I am giving the clerk permission to speak. Please continue.
Senator Cools: It takes all of us. I give mine.
Mr. Armitage: "Tabling" in the Senate has a specific meaning. It means for the information of the Senate. That is why when committees choose between either "presenting" or "tabling" a report, they do so on the basis of whether or not it is for the information of the Senate, which is "tabling," or if a decision is required, which is "presenting." Examples of tabled reports typically are the rule 104 reports or special study reports where the adoption of that report is not required by the nature of it and it is primarily meant for the information of the Senate. A presented report, such as a report on a bill with amendments, requires a decision of the Senate for it to take effect, so those reports are presented.
In choosing the formulation "tabling" of these reprinted Rules, the table in drafting this report was taking into consideration the fact that the Senate had already been presented with recommendations, and had debated, considered and adopted them. They had been presented, and they had been decided.
The committee had directed the table to come back with a process that would bypass this very debate, which happens each time the Principal Clerk Responsible for Chamber Operations does when the backlog of changed rules has reached a point where they ought to be reprinted. The principal clerk comes back, and the same question is asked each time: Why do we have to go through this process? There is a temptation to revisit what had been done, and we realize that the Senate has taken its decision.
We simply did what the committee asked us to do, which was to come back with a process so that you would not have to go through this anymore. The Speaker typically tables in the Senate for its information other things like the accounts of the Clerk of the Senate. The table took that as a practice that seemed analogous to this, an opportunity to introduce for the Senate's attention and information a reprinted set of Rules. It seemed like an efficient process, but as Senator Fraser and others have pointed out, it could just as easily be done by the chair of this committee. However, that would start begging the question of whether or not he or she should check back to the full committee, and then you have lost the efficiency of the process you asked us to give you.
Senator Nolin: First, on the amendment, with respect to the last remark of our clerk, that is an important reason why I will not support the amendment.
Second, when a rule is amended and adopted by the Senate, it becomes the law of the Senate. The principal moderator of that law is the Speaker, not the chair of our committee. Until the rule is adopted, it is our responsibility to debate, to discuss, to question and to scrutinize the future amendments to the rule. When it becomes a rule of the Senate, it becomes the responsibility of the Speaker.
Mr. Armitage made a statement to the effect that if our chair were to move that, it would mean that we have to give him that authority. I do not think that is what we want. I will not support the amendment.
Senator McCoy: I certainly appreciate your reasoning. I do wish, though, that we are very careful when we say that it is the Speaker's responsibility. He is no more than a traffic cop. The responsibility for enforcing the rules rests with each senator.
Senator Nolin: I used the word "moderator."
Senator McCoy: Traffic cop, perhaps. When you start to segue into this principal responsibility and the Speaker is doing this and that, this is the underlying principle, which has taken me three years to learn. Because of the subtlety of the nature of the Senate's proceedings, which differ considerably from that of the other place, I think we need to be aware of it and preserve it.
I doubt if in the rule we give the responsibility to present this to the Senate by the chair that he needs this committee's permission to do so. However, I defer to others to enlighten me on that subject. I doubt that is the case, with all due respect to our clerk.
I urge support of devolving this task to the chair of the committee, but I really plead for constant awareness that it is not the Speaker, but the senators who have the responsibility for tending the rules.
The Chair: I would like to say something from the Rules of the Senate about this notion of traffic cop.
Part III
Order and Decorum
18(1) The Speaker shall preserve order and decorum in the Senate. In doing so the Speaker may act without a want of order or decorum being brought to his or her attention. Furthermore, the Speaker shall be authorized to act on his or her own initiative to interrupt any debate to restore order or to enforce the Rules of the Senate. In the case of grave disorder, the Speaker may suspend the sitting of the Senate for a period not to exceed three hours.
Is there any further debate on the amendment?
Senator Cools: Mr. Chairman, there is nothing in rule 18 that gives the Speaker the power that many senators seem to think he has. The Rules of the Senate can give the Speaker of the Senate no more power than the BNA Act gives the Speaker of the Senate. As I say again and again, the Speaker of the Senate is a different creature from the Speaker of the House of Commons. I would like, for this record, to say I support Senator McCoy's sub-amendment because it addresses the very important constitutional relationship which is the relationship between the Speaker of the Senate and the rest of the senators.
It also applies the rule of suspicion that should always be applied in new matters that always gives senators an opportunity to raise questions. I notice that Mr. Armitage referred to this as begging the question. Obviously the table has a position on this matter, and I have always found it difficult debating the table, especially in these circumstances. However, the intention of a system of debate is to keep that door open at all times so that, whether there is an error or intrigue or deception, a debate can be brought in with relative ease, and that is the whole system. I am aware that the table likes things very fixed, but that is a bureaucratic approach. We are parliamentarians. We are not supposed to go down that road.
Mr. Chair, Senator McCoy's amendment is good because it also keeps the chair of the Rules Committee involved in every action that is happening in the future. That is far more desirable than an automatic tabling of a report.
I have problems with the staff speaking like this because it is hard to debate them. The difference between tabling reports and presentation of reports is more than just a matter of convenience. The two situations, the two sets of systems have two different sets of intentions — one is intended to be available to bring on debate and the other one makes debate a bit more difficult to get at, even where they are printed as in the sessional papers.
We have had terrible problems here in the Senate with new senators who will get up and table reports that they intended to present. We have had huge difficulties, especially if it was a report. For example, I see Senator Cordy remembered a particular instance where a report had been tabled — I really object to a chairman of a committee and the Speaker of the Senate being spoken to while a senator is addressing them.
The particular report at the time was one on an appropriations bill, and the entire appropriations bill was on a very tight timeline. The person reporting for the committee had tabled the report, and it was quite a job to retrieve it from tabling to bring it back on to be presented so that the Senate could vote on it. I know about that because I helped the individuals bail out the situation.
Another fundamental difference is that these reports will not be printed in the Journals of the Senate. They will be printed in sessional papers, which are even farther away and offer less public access. If we say we favour openness and transparency, "presenting" is a far better way because it puts the subject matter before the senators, which "tabling" does not. That is the fundamental difference between the two processes.
There is no word in parliamentary proceedings more misused than the word "tabling." Tabling is also something that most people, quite frankly, ignore and most folks do not even noticed happened. If you want a process that senators would be alive and alert to, presentation is a far better system, and every chairman should be favouring presentation because it means that you present your report for an opinion, if necessary. The opinion does not have to be expressed; the debate does not have to happen, but at least the process should be open to putting the material before the Senate so that senators have a chance to debate it. If there is a big problem in this Senate these days, it is that very little is debated.
To my mind, it is more of an administrative than a substantive thing, but the table has a position on this. They have expressed that opinion quite loudly, which I think is undesirable as well. However, it seems to me that most senators will not even appreciate the difference when the actions are happening. In any process, we should always favour openness and clarity and the opportunity to speak and debate. This has not happened in this jurisdiction, but there have been many jurisdictions where initiatives like this have been taken and defects appear, mistakes happen in the rules. You must keep a door open. You also have to compensate and understand that there is intrigue. There were some challenges some years ago in the U.K. House of Commons in respect of Speakers' rulings that, because the table or members of the table did not like them, were just left out. We have to understand that we are running the Senate. We are not running someone's private backyard for anyone's personal convenience. The system should always be open to debate by the whole Senate.
Finally, just to clarify in case I did not make it clear, the arbiter, the moderator, the interpreter, the master, whatever we want, of the Rules of the Senate, of the proceedings of the Senate, has always been the Senate as a whole. It has always been the Senate as a whole whether it sits as a Committee of the Whole as it did in the old Committee of Privileges. The Senate remains the final arbiter of every decision. We should set aside this notion of power that rule 18 gives the Speaker of the Senate. It is a small role in decorum, and the decorum, when it says he can take his own initiative, is extreme disorder, like total disruption where there is danger, for example someone is attacking someone. This is rare, and that power should never be interpreted as the power to stop debate for whimsical reasons. That is intended to stop horrible disorder as we saw at one point in the GST debates.
As I said before, I have no personal interest. I am in a marvellous position. I have no personal interest in any of this, but I would say that it is an unhealthy habit, honourable senators, to believe that one should stop debate by introducing or moving a motion.
[Translation]
Senator Losier-Cool: I would like to go back to my motion; that is why I will oppose the amendment. In the motion, there is no debate on the presentation of reports. It is just about tabling a report. Nor are we giving additional powers to the chair because the amendments have been approved by the Senate. For me, it is very clear. I see no extra powers being given to the chair in order to table a report.
So I will be voting against the amendment.
[English]
The Chair: Thank you for that intervention.
Senator Duffy: Mr. Chair, I do not mean to take up much time, but I want to thank Senator Cools for her interventions. Many new senators have been appointed this year, and I think we all appreciate her wisdom. I was wondering as a side matter if we could have a luncheon and invite the senator to remind us of the independence of the Senate and all of those other foundational issues on which she feels so passionately. We would love to have that time with the senator if she could make it available.
Senator Cools: I will happily do so.
Senator Nolin: I support that.
Senator Cordy: I know I have seconded the amendment, but I am not quite sure why we would need debate on something that has already been passed by the Senate. I want to use the term "deposit." That is the word used in the French version and I believe it would serve our purposes.
We are trying to simplify things. We are getting so complicated, and I appreciate that we have to have a full and wholesome discussion on everything that we do, but we are trying, and I am new to the committee, to simplify it so that every time a rule has been passed by the Senate, in order to update the rule on the web or update the rule in print, we do not have to go through the procedure of having it passed by committee. That seems to be a pretty simple premise. Who presents it in the chamber? The chair of the committee, to me, seems reasonable, but I am not tied to that. It seems reasonable to me that if it is the rule book that is being presented in the chamber or tabled in the chamber that it be the chair of the committee, as long as we do not have to go through this within the committee again to give permission to the chair to do it, that it just be a given that whenever the update is done that the chair of the committee do that.
However, I think we have to remember we are trying to simplify. We are trying to bring forward the printed product of what we have already passed in the chamber. Is that not correct?
Senator McCoy: Do you want to amend the amendment?
Senator Cordy: Yes, amend the amendment.
Senator McCoy: I would second it if you wish.
Senator Cordy: So amend it so that it is the chair of the committee tabling the document in the Senate so that we are tabling something that has already passed the Senate.
The Chair: So you are making an amendment to the amendment?
Senator Cordy: Yes I am, and Senator McCoy said she would second it.
The Chair: Are you ready for the question on the amendment?
Senator Cordy: The subamendment.
Senator Cools: The sub sub.
The Chair: The question is:
That the Clerk of the Senate be authorized to prepare and print, from time to time, as required, for tabling in the Senate by the chair of the Committee on Rules, Procedures and the Rights of Parliament, consolidated versions of. . . .
All those in favour of that subamendment please raise their hands. All those opposed? The motion is defeated.
All those in favour of the motion as first amended to read:
That the Clerk of the Senate be authorized to prepare and print, from time to time, as required, for presenting in the Senate by the chair of the Standing Committee on Rules, Procedures and the Rights of Parliament, . . . .
All in favour of that amendment please raise your hands. All of those opposed? The motion is defeated.
Senator Cools: It is part of this already that has been defeated, so it need not be put because it was partially defeated.
The Chair: All of those in favour of the motion as it is before you:
That the Clerk of the Senate be authorized to prepare and print, from time to time as required, for tabling in the Senate by the Speaker, consolidated versions of the Rules of the Senate containing any changes approved by the Senate to that time and any minor typographical corrections.
All those in favour? Contrary minded? Abstentions? The motion is carried.
The second amendment reads:
That the Clerk of the Senate be authorized to update the on-line version of the Rules of the Senate from the time any change is approved by the Senate.
All of those in favour raise their hands.
Senator Fraser: Has it been moved? If not, I so move.
The Chair: Yes. All of those contrary?
The motion is carried. Honourable senators, is there further business to come before the committee at this time?
Senator Cools: Yes, I would like to make a suggestion in respect of the discussion on Senator Segal's motion. I believe that next week we go back to that question, or do we, chairman?
Senator Duffy: The motion on broadcasting.
Senator Cools: The motion on broadcasting; that is it. Last week I said that we should, and I think you invited me, chair, to put forth before the committee the name of a witness in respect of this committee study. I would like to propose to the committee — maybe I should say who she is — Martha Fusca. She is the founder, president and CEO of Stornoway Communications.
Those people around the table who deal in media probably know who she is, but in any event, she is a fairly central figure as the independent broadcasters go. She has already agreed to make herself available before this committee. My concept, my idea was fostered by the fact that we need more witnesses to give some assistance on the subject matter, and I think there is a lot of goodwill around the table to proceed.
CPAC is a non-profit organization, but still a big player and I thought we should look to some of the smaller independents because these people are extremely accomplished, and I believe that Martha Fusca is probably the only female in the country, as well, who owns a network. I will just say a little bit.
Stornoway Communications, which is her company, was founded as an independently-owned and operated Canadian television broadcaster. In 2001, they launched ichannel, which they own. Through the years, they have been preoccupied with issues of public and social policy. For example, they produce programs about what happened in Afghanistan, "End of an Empire" and "Caught in the Crossfire," examining Canadian peacekeepers and so on. Her company has a wide range of experience. I thought it would be good to hear from the independent broadcasters. They are smaller but quite often tend to be even a bit more pensive and thoughtful.
I thought that Martha could be very useful and helpful to us. I do not know if you know her, Senator Duffy.
Senator Duffy: Yes, I do.
Senator Cools: So you would know them and know their work.
We should add her to our witness list. I can give you the information where to reach her.
The Chair: If you could send that to me quite soon, I would appreciate it. The steering committee will be meeting soon to look at ongoing work of this committee and to do the planning. You read from something there.
Senator Cools: I can let you have this.
Chairman, I thank you for that. It is very important because there are not many of the independents left. They cannot simply survive in the massive media era. Their opinions become much more valid, I would say. In addition, their expertise is already in broadcasting questions and programs about public policy and social policy, so they are already in the field in a way.
The Chair: You have already spoken to her and she has indicated that she is willing to come?
Senator Cools: She is willing to come. I spoke to her. She has been around here a lot, and some of us know her and see her around. I have seen her around the Hill quite often. The name is Martha Fusca, F-U-S-C-A.
The Chair: If you give me the information, I will take it up with the steering committee.
Honourable senators, on the previous matter that we just disposed of by way of votes, do I have authority to present this report to the Senate, hopefully today?
Hon. Senators: Agreed.
Senator Cools: Authority to "present" but not to "table." Senators get up and say table all the time. They make mistakes. They do not know.
Senator Nolin: Why do you not do all that in French? It would be so easy.
The Chair: Is there any other business to come before the committee at this time? If not, thank you very much.
Senator Cools: How many more meetings can we expect on the broadcasting study?
The Chair: It will be discussed in the steering committee. We will be calling more witnesses.
Senator Cools: Does this steering committee bring its reports back to the committee for approval? I have not heard of any coming forth. They should. The steering committee is supposed to report to us for input and so on. Maybe if we do not we should start.
The Chair: This meeting is adjourned. Thank you, everyone.
(The committee adjourned.)