I rise on a point of order, Your Honour.

Honourable Senator Housakos, on a point of order.

Your Honour, I appreciate that we have made certain allowances within our rules over the past few years in order to accommodate the mess that has been created as a result of the current Prime Minister’s political decision to remove senators from his national caucus in an attempt to insulate himself from the fallout of the Auditor General’s report, which we experienced here a few years ago. And I appreciate that there may be more to come. I also appreciate I have certainly spoken in praise of this chamber being the master of its own domain. We are an independent chamber within our bicameral Westminster system. That affords us the privilege of setting and enforcing our own rules. However, colleagues, there are clear limits. From the Senate Procedure in Practice, page 15:

The Senate is the master of its own proceedings, subject to limitations of the Constitution and law.

From the Companion to the Rules of the Senate, the then Clerk of the Senate, Gary O’Brien, stated:

The Rules of the Senate derive from the constitutional and statutory sources, as well as parliamentary conventions, traditions and usages . . . . The status of individual rules is relevant in terms of their legal implications and the procedures for amending them.

Let’s first talk about the Constitution and our rules, colleagues. All of the rules assigned to the Senate and to the government and the opposition in the Senate are the ones that are constitutionally mandated and recognized in our rules and governing principles. In Canada’s federation, the Senate represents the country’s regions and its provinces at the federal level, a function that is core to the Senate’s existence. If the Senate is prevented from carrying out that function, Your Honour, then its raison d’être is truly in question. Central to the ability of the Senate to properly carry out its core functions are the roles played by both government and opposition senators.

Under our rules, there are those who propose and those who oppose. This is no more evident than in the assigned roles of sponsor and/or critics which, to this day, is the functioning practice of all Westminster bodies. In any Westminster legislative body, which is reflected in our rules, an effective opposition is essential not only so that it can ask questions of the government, but also to enable it to speak on behalf of Canadians throughout the legislative process. This requires an organized and a recognized opposition caucus that is able to raise questions at second reading, follow that approach with witnesses and questioning at committee, and mobilize support of potential amendments.

An effective opposition is also one that can utilize legislative procedures to highlight and bring attention to major issues of contention. This requires both consistency and a willingness to challenge the government. Indeed, challenging the government must be part of such a caucus’s raison d’être. The role of the government and opposition leaders must be protected and set apart from the roles of other caucuses and parliamentary group leaders in order to preserve and ensure this dichotomy, which is part and parcel of the Westminster system. It is an essential principle of every Westminster legislature all around the world. And make no mistake, while the Senate of Canada is not a confidence chamber, it shares the role and obligation of holding the government of the day to account. In order to fulfill this obligation, the Constitution gives the Senate the necessary powers as enjoyed by the House of Commons of Westminster.

That’s an important point, colleagues. In order to fulfill this obligation, our Constitution — our governance — by which we exist, gives the Senate the necessary powers as enjoyed by the House of Commons at Westminster.

Senator Woo, I’m not making this up. Read it. It’s in section 18 of our Constitution, stated in black and white:

The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament —

I’m on a point of order, Your Honour.

Honourable senators, Senator Housakos is on a point of order. Unless you are claiming some point of privilege with respect to commentaries that are being made, I’m going to allow Senator Housakos to continue with his point of order following which, if you wish to raise another point of order, you may well do that.

Thank you, Your Honour. I will take the liberty of quoting section 18:

The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the Members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the Members thereof.

Senator Woo’s motion seeks to change the powers of the Senate and senators, in particular as they pertain to government and opposition. Whereas the Parliament of Canada Act is reflective of the elements in section 18, it makes it clear that it is only through legislative changes to this statute that these powers can be amended, and that includes the responsibilities afforded the government and opposition in the various positions of their leadership. Simply changing our rules is not adequate or, for that matter, legal. It is clear that the law itself must change and not only in relation to the role of government and opposition. As already noted in a report of the Special Senate Committee on Senate Modernization, some changes to our rules must require changes to the Parliament of Canada Act and other federal legislation in relation to the constitutional and statutory role of specific senators.

To be blunt, in this chamber, according to the law, not all senators and not all leaders are equal. In the Parliament of Canada Act, it does recognize senators with additional roles and responsibilities. This recognition provides additional allowances for those in leadership roles, such as the Leader of the Government and the Leader of the Opposition.

If this motion was adopted and our rules were amended, it would reduce the role of these positions without legally requiring legislative changes, colleagues. Quite simply, it again goes against the law and the Constitution.

Since our rules are subject to statutory limitations, this motion anticipates any legislative changes that have not yet been introduced.

It has been stated that the government on the other side is planning changes to several laws, including the Parliament of Canada Act. As a consequence, Your Honour, this motion, as currently structured, is defective in its application and substance, and I ask respectfully that you rule it out of order and have it discharged from the Order Paper.

Senator Woo, did you wish to reply?

I would like to reply.

Contrary to procedure, honourable senators, even though it appeared at one point that another point of order was going to be raised — and indeed it may well be — the proper procedure is to finish debate on Senator Housakos’s point of order until we move to another one.

Honourable senators, the point of order that I was going to raise, which I will now turn to in response, is that Senator Housakos is not making a point of order. He is actually debating my motion before I have even had the chance to speak to it. I believe that his argument is flawed, and if he gave me the chance to speak to the motion, I would explain to all colleagues here why he is wrong in that interpretation.

Your Honour, I would respectfully ask you to reject the point of order, give me the chance to explain the motion, and invite Senator Housakos and other colleagues in this chamber who wish to follow up on Senator Housakos’s argument to make those arguments, and we can have a healthy debate about them, but I reject unequivocally that this motion is somehow ultra vires, that it does away with the opposition or in any other respect is not respectful of the rules and statutes of this country.

Honourable senators, I want to take a brief moment to indicate that beyond the quote that Senator Housakos read from the Senate Procedure in Practice, from the same page, page 14 and 15, I want to indicate that it speaks clearly to the fact that:

The Senate adopted its first Rules shortly after Confederation. They have been regularly amended to reflect evolving circumstances and needs. . . . Changes to the Rules must be approved by the Senate.

It continues, and as Senator Housakos quoted:

The Senate is the master of its own proceedings, subject to the limitations of the Constitution and law.

Constitution in law does not speak to the procedural operations of this chamber, and as we know, there have been many rule changes since Confederation, and circumstances have evolved and changed, and they are continuing to evolve and change, and the Senate must be brought into a state of modernization to go along with that.

I agree with Senator Woo that this is an attempt to dash the debate on this and that the points that Senator Housakos raised are a valuable contribution for consideration by the Senate, but it is not, in fact, an appropriate point of order.

Honourable senators, I wish to speak briefly in support of Senator Housakos’s point of order.

Your Honour, I wish to draw to your attention a few portions of the 2014 Reference re Senate Reform, a unanimous decision of the Supreme Court of Canada. In that decision, paragraph 48 states:

. . . ss. 44 and 45 give the federal and provincial legislatures the ability to unilaterally amend certain aspects of the Constitution that relate to their own level of government, but which do not engage the interests of the other level of government. This limited ability to make changes unilaterally reflects the principle that Parliament and the provinces are equal stakeholders in the Canadian constitutional design. Neither level of government acting alone can alter the fundamental nature and role of the institutions provided for in the Constitution. This said, those institutions can be maintained and even changed to some extent under ss. 44 and 45 , provided that their fundamental nature and role remain intact.

Further, paragraph 77 of that decision states:

The Senate is a core component of the Canadian federal structure of government. As such, changes that affect its fundamental nature and role engage the interests of the stakeholders in our constitutional design — i.e. the federal government and the provinces — and cannot be achieved by Parliament acting alone.

Your Honour, I would argue today that few things are more fundamental to the core of the Senate of Canada — this particular political institution, which is based on the Westminster system and the constitutional elements that Senator Housakos laid out — than the government-opposition setup which has been in place in this place for more than 150 years. As such, I would contend that, for that additional reason, this motion is out of order because it contravenes those particular sections.

Your Honour, I want to add that Senator Lankin appropriately read the rule book and pointed out that since day one when this institution was founded, there have been rules and procedural changes that have been debated and that have evolved and changed. However, never once has this body unilaterally changed elements of the rules that are in the Parliament of Canada Act. That requires a change of the law and the Parliament of Canada Act, and we all know it’s not done unilaterally through a private member’s bill in the upper chamber.

I want to be clear: That is the core of the problem. This is not some procedural rule that we send to the Rules Committee for review and we change as this place has evolved in the past and will continue to. This is about the fundamental governance of our country. The Constitution and the Parliament of Canada Act is not determined by Senator Housakos, Senator Lankin or Senator Woo. There are procedures to amend the Parliament of Canada Act, and they have to be respected or else we are living in a complete state of anarchy.

Honourable senators, thank you for allowing me to speak on this point of order. The first element that I would like to point out is that Senator Housakos has not pointed to the rule where this particular motion is out of order.

There is nothing in the motion of Senator Woo that is out of order. Senator Housakos has not pointed to any current rules in our Senate rule book or companion or practice that he can reference. The only issue that he referenced is the Parliament of Canada Act. The Parliament of Canada Act only recognizes special funding, additional funding, for people who have a particular job. It has nothing to do with the Rules of the Senate. Actually, again on page 14 of the Senate Procedure in Practice, it states clearly that the Senate “. . . establish the framework within which most Senate business is conducted,” and “The Senate is the master . . . .” So we — not the official opposition and not the government representative — decide which rule we want to operate under. That is what we want to consider with the motion from Senator Woo — another option, and probably a better option. Thank you.

I find myself a little perplexed. We’re debating a motion that has not been debated, and my very respectable colleagues on my left already seem to have derived some conclusions to which we are not party. I would ask you to rule against the point of order and let us have a fulsome debate with the pros and cons in this chamber as is our normal process.

I would like to thank all senators for their input into this particular issue. Senators will know that it is a very lengthy motion and, on the face of it, what appears to be a somewhat complicated point of order.

I understand, Senator Woo, that you wish to get on with your debate, but unfortunately, I will take the matter under advisement.