Question of Privilege
Speaker’s Ruling Reserved
June 16, 2020
Honourable senators, I am now prepared to hear further new arguments in relation to the question of privilege raised by Senator Plett on May 1st. As I indicated previously, I wish to hear new information only, and I would again ask senators to please be brief in their interventions.
Your Honour, thank you for allowing me the opportunity to comment on this important question of privilege.
From the transcript of the May 1 sitting, Senator Plett relied on three distinct arguments: first, the calling of the meeting, despite the refusal of the deputy chair of the Selection Committee and her inability to attend due to travel restrictions from New Brunswick; two, a lack of proper notice sent to Senator Seidman; and three, an improper notice of meeting, because it did not correctly refer to what would be debated.
I propose to deal only with the third argument, as it raises, in my opinion, an issue of great importance. It relates to the proper functioning of every committee of the Senate and to the rights and privileges of all the members of this chamber.
What is at stake is the proper interpretation of rule 12-15 of the Rules of the Senate, which reads as follows:
(1) A public notice shall be posted of every committee meeting.
(2) Except as otherwise provided, all meetings shall be held in public. Unless otherwise ordered, the public may attend a public meeting of a committee or a subcommittee.
The rule deals with two aspects: the need for a public notice and a public sitting; not a meeting held in camera. The origin of rule 12-15 goes back over 50 years. In the Companion to the Rules of the Senate, at page 306, it says that the Senate rules were amended in 1968 to make sure that members of the public could attend any sitting. This was an important milestone, considering that since 1867, following old British parliamentary practices, meetings of committees of each house were considered private unless ordered otherwise. From then onward, they were to be public unless otherwise; the exact reverse. On June 18, 1991, the clause of the current rule was adopted, and the current version of the rule was adopted in June 2012.
In connection with the notice of meeting of any committee, the rule is short and clear: A notice must be posted before any committee meeting and this motion must be made public. Thus, a notice sent only to members of the committee, or some of them, will not suffice. A public notice must be posted.
In the present case, on Wednesday, April 29 at 9:08 p.m., the clerk of the Selection Committee, at the request of the chair, posted on the Senate website, under the heading “Calendar”, a notice providing for the name of the committee, the date and place of the meeting and the following description of the purpose of the meeting:
Agenda: Consideration of a draft agenda (future business)
The question is then, was it sufficient notice? To answer that question, I would humbly submit that we must take into consideration the purpose of the public notice mandated by rule 12-15. This purpose was described in a ruling rendered by former Speaker Hays on October 20, 2005, found in the Journals of the Senate of that date at page 1217:
A fundamental purpose of the rules and practices followed in the Senate is to provide for openness and accessibility. For this reason, the rules require that public notice be given, interpretation services provided, and proper records of decisions kept. It is also why rule 91 allows Senators who are not members of the committee to attend and participate.
It follows that the purpose of mandated public notice prior to any committee meeting is two-fold. First, to provide the public an opportunity to follow meetings by attending or, nowadays, by watching or listening remotely; second, to allow all senators, including those who are not members of the committee, to attend and participate, and to prepare for meetings.
As we all know, each of us in this chamber has the absolute right to attend any committee meeting and to fully participate in the committee’s deliberations. The only limitation is that we cannot propose a motion or vote unless we are a member of the committee; apart from that, we can participate fully.
It is worth noting that Speaker Hays’ referenced ruling uses an approach both accepted and followed in previous Speaker’s rulings with regard to the purpose of a prior notice in the Senate Chamber, mandated in rule 5-1. This makes perfect sense since, pursuant to rule 12-20, no Senate committee may adopt procedures inconsistent with the rules and practices of the Senate.
In the Companion to the Rules of the Senate, we can find a lot of interesting comments about the proper functioning of this place under rule 5-1, especially the following:
The purpose of notice is to give senators time to prepare for debate.
This commentary is supported by quotes from previous rulings and extracts from books, including the following ones that are short but to the point. In a ruling made on June 21, 1995, at page 1092 of the Journals of the Senate, Speaker Hays said:
The purpose of giving notice is to enable Honourable Senators to know what is coming so that they can have an opportunity to prepare. Why else would there be notice? They must have an opportunity to get themselves ready for the discussion. It is not meant to delay the work of the Senate. It is simply meant to bring order.
In another ruling made on October 26, 2006, found in the Journals of the Senate of that day at page 557, Speaker Kinsella said:
It is not adequate, as a notice, to state simply an intention to move a motion or to propose an inquiry. To suggest otherwise would seriously distort the meaning and intent of the notice. As an example, who would accept as adequate notice a Senator’s declaration to move a motion without any indication of its content or to have a committee undertake a study without knowing what it was about? Notice must include some content indicating the subject being proposed for debate and decision.
The merit of this proposition is evident from any review of the authorities that are often used to guide the understanding of Senate procedures. Marleau-Montpetit’s House of Commons Procedure and Practice at page 464, explains that the purpose of notice “is to provide Members and the House with some prior warning so that they are not called upon to consider a matter unexpectedly.” Motions for which notice is routinely required usually seek to solicit a decision of the Senate, either to order something be done or to express a judgment on a particular matter. Such motions are always subject to debate and the notice is required in order to allow parliamentarians to inform themselves of this upcoming debate and to prepare themselves should they wish to participate in the debate.
The question in the current case is whether the description of the meeting’s agenda as “Consideration of a draft agenda (future business)” was sufficient to enable all honourable senators to know what was coming up, and whether it gave them the opportunity to prepare for the adoption of the two reports critical to the functioning of this chamber. The first report is on the nomination of the Speaker pro tempore, a very important position in this chamber. The second was aimed at nominating senators to serve on the standing committees of the Senate, pursuant to rule 12-2(2); another important point, especially for non-affiliated senators at the time. Maybe that was clear to those involved in the confidential discussions going on between those who are speaking on behalf of the recognized groups in the Senate and those privy to those discussions, but it was certainly not the case for all other senators, and even less for the public or the media.
To sum up, Your Honour, I agree with the third argument raised by Senator Plett. I therefore invite you to consider this important aspect of this question of privilege from the perspective of protecting equally the rights and privileges of all senators, of providing for openness and accessibility for those senators who may not be part of the closed discussions and, of course, for the public we serve and the journalists who bring transparency and accountability to our work.
What occurred was bad practice. It affected the ability of all senators to carry out their responsibilities, even more so at a time when this ability was already restricted by circumstances. The inadequate notice was contrary to the spirit of collegiality that we are trying to create in the new Senate, and I hope this question of privilege will give us the opportunity to take pause for a forward-looking course correction. Thank you for your attention. Meegwetch.
Thank you for giving us the opportunity to consider additional arguments concerning the question of privilege.
Senator Dalphond has questioned the suitability and appropriateness of listing future business as the agenda item and has suggested that it is not appropriate, and therefore would sustain the question of privilege.
In making his case, Your Honour, he has cited rule 12-1, and he has also cited previous rulings from Speakers such as Senator Hays, and I would ask you to reflect on precisely what Senator Dalphond said, which is that rule 12-15 talks about how notice must be posted and must be made public. But there is no mention of what the specificity of the agenda item should be, and therefore there should be no restriction on what that description would include.
I would also add that in his citation of Senator Hays, the former Speaker, in a previous ruling, Senator Dalphond mentioned three criteria that the previous Speaker listed, including public notice, interpretation, and reporting for the legitimacy of a meeting to take place and, of course, all three of these items were met in the Selection Committee meeting of May 1.
The fact of the matter, Your Honour, is that there is no rule which requires any specific description of an agenda item, and therefore there cannot be a constraint on what is put in the agenda item.
But there is more to that as well. It is not simply that the rules do not constrain us. It is also that the committees are the masters of their own destiny and if a committee decided to change an agenda item from one that was listed in the notice, it has the power to do so and, in fact, has done so on previous occasions. Therefore, any listing or any description of an agenda in the public notice of a meeting can be changed by the committee, which by definition means that we cannot be bound by the agenda item that is put in a Notice of Motion. That has been the practice of committees in the past and I can cite at least one example where on December 11, 2015, the agenda for the National Finance Committee stated that the agenda would be consideration of future business, the draft agenda, election of the chair, when in actuality not only did the election of the chair take place, but also the election of the deputy chair and nine other motions that were considered, moved and adopted. These motions had to do with travel and what might be constituted as official business, witness expenses, coverage by electronic media of the committee’s public proceedings, et cetera.
The point, colleagues, quite simply is that what is stated as the agenda item can and often is expanded, contracted and changed by the committee, because the committee has the power to do so.
Senator Plett and Senator Dalphond, colleagues, are essentially raising, to my mind, not a question of privilege but a question of rules. Now this may be a legitimate question as to whether our rules need to change, to insist that the agenda items have certain parameters around them, but that is not in our current rules, and is worthy of a separate debate. But insofar as the question of privilege is concerned, no rule has been violated. The meeting was properly called for, constituted and executed. Therefore, Your Honour, this question of privilege cannot be sustained.
Thank you.
Again, I would like to thank all honourable senators for their input into this very important question, and I’ll take it all under advisement.
