Dear colleagues, I rise on a point of order regarding Motion No. 26. Motion No. 26 would give the Leader of the Opposition in the Senate the unilateral authority to summon a minister of the Crown to testify in the Committee of the Whole without any prior consultation with the other committee members or with the Senate leadership, including the government representative and the representatives of the largest groups. Motion No. 26 is inconsistent with the Rules of the Senate, Senate traditions and Senate practices regarding proceedings of the Committee of the Whole. The Committee of the Whole is just that — a committee.

Page 182 of Senate Procedure in Practice states the following:

A Committee of the Whole is a committee composed of all senators.

Rule 12-32(3) provides that:

The Rules and practices of the Senate shall apply in a Committee of the Whole . . . .

In practice, committees’ witnesses are typically selected by steering committees and, alternatively, by full committees. When it comes to the Committee of the Whole, the invitation must come from the committee itself, which is the Senate as a whole.

Rule 12-32 deals precisely with the situation of ministers participating in the proceedings of a Committee of the Whole as well as other witnesses before a Committee of the Whole. Rule 12-32(4) is clear:

When a bill or other matter relating to the administrative responsibility of the government is being considered by a Committee of the Whole, a minister who is not a Senator may, on invitation of the committee, enter the chamber and take part in debate.

This is consistent, honourable senators, with rule 2-12(1), the general rule applying to Senate proceedings:

When a bill or other matter relating to the administrative responsibility of the government is being considered by the Senate, a minister who is not a Senator may, on invitation of the Senate, enter the chamber and take part in debate.

The principle behind 12-32(4) is that, both in theory and in practice, decisions on witnesses for the Committee of the Whole are made by the full Senate, where all senators are equal. Motion 26 would undermine that principle.

In this vein, Bourinot’s Parliamentary Procedure, fourth edition states at page 70:

The Senate and the House of Commons have the right, inherent in them as legislative bodies, to summon and compel the attendance of all persons, within the limits of their jurisdiction, as witnesses, and to order them to bring with them such papers and records as may be required for the purpose of an inquiry.

Motion 26 is out of order because it would practically delegate to a single senator a right that is inherent in the Senate as a whole. Indeed, Motion 26 plainly confers upon the Leader of the Opposition a standing power to send for persons on behalf of the full Senate for the duration of this Parliament with respect to the appearances of ministers before Committee of the Whole.

Honourable senators, I would add further as a technical point that Motion 26 does not contain a clause stating that the process proposed is to apply notwithstanding other rules and practices of the Senate.

With Committee of the Whole it has been a consistent historical practice for witnesses to be determined by the full Senate. For example, on May 31, 2016, the full Senate decided, by motion, that the Senate resolve itself into a Committee of the Whole to consider the subject matter of Bill C-14 and to receive the Minister of Justice and Attorney General of Canada and the Minister of Health. On December 13, 2017, the full Senate decided, by motion, to resolve itself into a Committee of the Whole to consider the subject matter of Bill C-45 and to receive the Minister of Justice and Attorney General of Canada, the Minister of Health and the Minister of Public Safety and Emergency Preparedness. In the case of back-to-work legislation, the full Senate has consistently decided collectively to receive ministers in Committee of the Whole.

I also want to bring the attention of the chair to the section of Motion 26 that would authorize the Leader of the Opposition to make “a short statement” during Question Period. Rule 4-8(1) provides:

During Question Period, a Senator may, without notice, ask a question . . . .

And under rule 4-8(2):

There is no debate during Question Period, and only brief comments or explanatory remarks shall be allowed.

Page 73 of the Companion to the Rules of the Senate further states:

The rules of conduct and decorum apply to Question Period. Only brief explanatory remarks may accompany questions or answers; however, they should not give rise to debate.

Motion 26 does not specify what constitutes a short statement and could be quantified as nothing more than a form of debate, which could exhaust time that is afforded to senators under our Rules to pose questions, whether to myself or to committee chairs.

A ruling by Speaker Kinsella, on May 10, 2006, reflected that:

The rationale for prohibiting debate during Question Period and for creating Delayed Answers is due, in part, to the limited time given to Question Period. The 30 minutes allotted for questions and answers is to promote the immediate exchange of information about the policies of the government or the work of a committee.

Your Honour, I believe I’ve identified several issues that warrant your review, and I would respectfully submit that Motion 26 is out of order.

Your Honour, the government leader has brought up a number of points, and he has reached into a number of elements of the Rules which I think might or might not apply. With the indulgence of the chair, I would like to know if it’s possible to have the chair allow me some time to research some of the claims made by the government leader and provide a response at the next sitting, if I have the indulgence of the Speaker.

Honourable senators will know that I have, on two occasions — one in the last Parliament and one already in this Parliament — allowed debate to continue when I heard, after debate had closed off and I took the matter under advisement, that there were new matters that could be raised or may be raised. In both those incidents, I came back and informed the chamber that I was prepared to hear more new evidence on the matter.

I think it’s important that we have some flexibility because, otherwise, this could go on and on and on. I don’t like the idea of delaying a debate, but I do understand what Senator Housakos is saying. There is some very technical information that’s been raised by the Government Representative. If Senator Housakos were to reply now and find out later that he has some new information, we’re back to square one again.

With the indulgence of the house, I think I will grant Senator Housakos’s request. When we return following next week, we will return to debate on Senator Gold’s point of order.