Speaker of the Senate
Speaker's Ruling – Question of Privilege - Report of the Committee of Selection
Honourable senators,
I am prepared to rule on the question of privilege raised by Senator Wallace on January 26. His concern focused on the second report of the Committee of Selection, presented to the Senate on December 9, 2015, and adopted the following day. The report recommended the members of the various standing committees. Senator Wallace’s question of privilege was motivated by the fact that the report only recommended two independent senators to serve on these committees. This, he argued, denied him, and other independent senators, the right to participate in an essential parliamentary function. In his view, the independent senators are, consequently, prevented from fully contributing to the Senate’s role as a legislative chamber of sober second thought.
Senator Wallace characterized this limitation on independent senators as unreasonable, unfair, inequitable and discriminatory; this is an affront to Parliament. He rejected the current system for establishing and managing committee memberships, in which the two whips play a key role. Several senators who intervened later shared at least some of Senator Wallace’s concerns.
Other senators, however, were not convinced that Senator Wallace’s grievance amounted to a question of privilege. Senator Fraser, for example, provided references to various parliamentary authorities in arguing that the current practices are actually well established and quite normal. She also suggested that the most important role for senators is in the Senate Chamber itself, not in committees. In addition, Senator Fraser explained how the Senate has the right to organize its work as it sees fit, and has established the present system for dealing with committee memberships. Senator Joyal later underscored this point, while also emphasizing the importance of debate in shaping the outcome of parliamentary business. Debate allows all senators to contribute to the final decision reached by the Senate, and, he argued, it would be preferable to deal with Senator Wallace’s complaint through a motion rather than rely on a question of privilege.
Senators Baker, McCoy, Smith (Cobourg), Cools, Dyck and Ringuette also participated in debate, and I thank all of them. Allowing all senators an opportunity to contribute to committees is an issue on which senators obviously have strong views. Even those interveners who did not think there was a question of privilege sympathized with Senator Wallace.
As Speaker, my role at this stage is to evaluate the issue in terms of the four criteria of rule 13-2(1), all of which must be met for a prima facie case of privilege to be established. That rule indicates that “a question of privilege must:
a) be raised at the earliest opportunity;
b) be a matter that directly concerns the privileges of the Senate, any of its committees or any Senator;
c) be raised to correct a grave and serious breach; and
d) be raised to seek a genuine remedy that the Senate has the power to provide and for which no other parliamentary process is reasonably available.”
In terms of the first criterion, the contested report was presented to the Senate on Wednesday, December 9, 2015. The Selection Committee’s recommendations about committee members were known to all senators from that time. A senator could have initiated the process for a question of privilege on the following day, which would have been the earliest opportunity. Therefore, the first criterion is not met.
The second and third criteria can generally be evaluated together, since they are so closely interconnected. Senators are familiar with the definition, from Appendix I of our Rules. Privilege is “[t]he rights, powers and immunities enjoyed by each house collectively, and by members of each house individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.” The privileges of individual members do not exist in a vacuum. They exist so that we can perform our role as members of the Senate. Our privileges as individuals cannot trump those of the Senate itself. As stated in Erskine May, at page 203 of the 24th edition, “Fundamentally … it is only as a means to the effective discharge of the collective functions of the House that the individual privileges are enjoyed by Members.” Senate Procedure in Practice makes the same point at page 224, when it notes that “Privilege belongs properly to the assembly or house as a collective.”
With this question of privilege, Senator Wallace is arguing that the Committee of Selection’s report was a breach of privilege, even though the Senate actually adopted the report. So the senator is claiming that the Senate breached its own privileges or the privileges of individual members. To repeat, these privileges exist to serve the institution itself. The Senate’s decisions cannot breach the Senate’s privileges. Neither the second nor the third criterion has therefore been met.
In relation to the final criterion, Senator Wallace has indicated a willingness to move a motion to seek an effective remedy. We should, however, also consider the requirement that it must be established that “no other parliamentary process is reasonably available” to deal with the matter. In this case, there were and are alternate processes to deal with the issues senators have noted about the way in which senators are named to committees and how memberships are managed. Under rule 12-14, any senator can attend and participate in the work of the Selection Committee and any other committee, except the Ethics and Conflict of Interest Committee. In this particular case, when the Selection Committee’s report was before the Senate Senator McCoy proposed that it be returned to the committee. Other senators could also have moved amendments, and the Senate could have rejected the report if dissatisfied with its contents. Even now, after the adoption of the report, other remedies are still available. A senator could, for example, move a substantive motion, after notice, to amend relevant provisions in the Rules or to adjust the memberships of some or all committees. Accordingly, the fourth criterion has not been met.
Although Senator Wallace has raised a concern shared by many colleagues, an analysis of the question in terms of parliamentary procedure leads to the conclusion that there is no prima facie case of privilege. This being said, my decision in no way precludes either Senator Wallace or other honourable senators from seeking to address this important matter through other mechanisms. As has already been noted, many colleagues share a wish to find ways to allow independent senators to contribute fully to every aspect of our work. It is within the power of the Senate to adapt its Rules and practices as it sees fit to take into account the increasing number of independent senators in our Chamber.