I am prepared to make a ruling on the point of privilege Mr. Warawa raised on April 2. I'd like to begin by doing that.
I believe the cameras will be leaving. This is of course on television, but not by live camera, as members know.
After looking at this ruling, members, with the assistance of our clerks and senior clerks and getting a lot of advice about the rules—as they will be—I would like to go through it point by point. It certainly has been a learning experience for me, as well as for some other members, I think—of course taking some guidance from the Speaker of the House.
This ruling arises from the question that was raised by Mr. Warawa on April 2, 2008, regarding the proceedings of the meeting of Monday, April 1, 2008.
Secondly, during the debate on clause 10 of Bill C-377 at the meeting of Monday, April 1, Mr. Cullen sought the floor on a point of order and moved a motion limiting debate on Bill C-377.
The chair ruled the motion out of order based on two arguments—first, that the motion was moved on a point of order, and second, that the committee was already seized with a question on clause 10—at which point Mr. Cullen challenged the decision of the chair. The chair's decision was overruled on division, and debate was allowed on the motion of Mr. Cullen. The meeting was suspended shortly thereafter, and it was agreed unanimously to resume the meeting the next day, April 2, 2008.
Next, on resumption of debate, Mr. Warawa raised a question of privilege alleging that the rules of the House had been broken. He referred to House of Commons Procedure and Practice, which on page 454 states that when moving a superseding motion it “is not in order for such a motion to be moved when the Member has been recognized on a point of order”.
Mr. Warawa argued that overruling the chair on matters that are clearly set out in usual procedure and practice constitutes disorder and misconduct, which impinges on members' abilities to carry out their duties. Other members referred to their right to debate the bill at that point.
Mr. Cullen, Mr. McGuinty, and other members expressed the view that the committee had an obligation to consider in a serious manner the bill before it and, while acknowledging that members have the right to debate, that the right to obstruct is not unfettered. Members pointed out that the committee had spent over twelve and a half hours in filibuster at that point. They further noted that the committee was not abiding by a work plan agreed to unanimously by all parties.
As your chair, I have attempted to be fair and equitable. I interpret the procedure and practice of the House and provide guidance to the committee in order to assist it in accomplishing its work. To that effect, I have ruled several times that members may not move motions on points of order, as this goes against practice, as referenced on page 541 of House of Commons Procedure and Practice. I quote: “...Members may not rise on a point of order to move a substantive motion”.
A member cannot move a substantive motion when there is already a question before the committee, as was the case with the motion proposed by Mr. Cullen. Although these are well-known and established practices, the committee has now overruled the chair on two recent occasions.
I am not questioning the right to challenge a ruling of the chair, since this is in conformity with Standing Order 117, referenced on page 857 of House of Commons Procedure and Practice. I quote: “While the Chair's rulings are not subject to debate, they may be appealed to the committee.” This is, of course, what happened.
Members, however, must weigh carefully the impact of such actions. The committee, by not following the usual procedure and practice of the House, places itself in unchartered procedural territory. These comments are echoed in Mr. Speaker Milliken's ruling of March 14, 2008, on page 4183, concerning proceedings in the Standing Committee on Access to Information, Privacy and Ethics, in which he states:
...appeals of decisions by chairs appear to have proliferated, with the result that having decided to ignore our usual procedure and practices, committees have found themselves in situations that verge on anarchy.
By its own actions the committee finds itself in a procedural conundrum. Acting against the confines of established procedure and practice, yet having done so within the confines of procedures and practice, the committee is nearing an impasse. As Mr. Speaker Milliken stated in his ruling of Friday, March 14, 2008, as found on page 4183 of Debates:
Frankly speaking, I do not think it is overly dramatic to say that many of our committees are suffering from a dysfunctional virus that, if allowed to propagate unchecked, risks preventing members from fulfilling the mandate given to them by their constituents.
What are the options, then, for our committee? As noted on page 129 of the House of Commons Procedure and Practice, “the Chair of a committee does not have the power to censure disorder or decide questions of privilege”, and “The Chair...has no authority to rule that a breach of privilege...has occurred”. My role in this instance is to determine if the matter raised does in fact touch on a matter of privilege, and not a point of order, a grievance, or a matter of debate. If in my opinion the matter does touch privilege, then the committee can proceed to determine if it wishes to report the matter to the House. The report should capture the essential elements of the situation and include a motion that would form the text of the report. The motion is debatable and amendable and would take priority over all other committee business.
I've given a lot of thought to exactly what that would mean and what that would do and what privilege is. According to a classical definition of parliamentary privilege in Erskine May's Treatise on the Law, Privileges, Proceedings, and Usage of Parliament , “Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively...and by Members of each House individually, without which they could not discharge their functions”.
Does overruling the chair on procedurally sound decisions constitute privilege, in that by doing so members cannot discharge their functions? The answer to this question must be taken also in the context that one of the rights and powers of the House is the regulation of its own internal affairs. As I indicated, Standing Order 117 allows chairs' decisions to be appealed.
I'll just refer to a couple of things. I found very interesting the fact that on TV yesterday afternoon, Don Newman was questioning Bill Blaikie. As you know, Bill Blaikie is the senior member in our House. I thought he had some great insight into what was happening right now. He in fact suggested that rules were written for majorities, and that under majorities this sort of thing would never happen. In his opinion--and I will paraphrase--it may be time that we look at some changes to the rules in order to accommodate the kind of situation we find ourselves in at this committee and in several other committees.
I certainly found that interesting--and wish all of you had seen that--to hear from a senior member of the House.
Looking at all of that, my opinion is that although it is within the prerogative of the House to make its own rules, the use of conflicting rules may at one point impinge on members' ability to carry out their duties. To that effect, and given the seriousness of the matter, I will allow a motion--although not a motion of privilege per se--to be put to an immediate vote to report the matter to the House and recommend that the Standing Committee on Procedure and House Affairs--or possibly, as suggested by the Speaker, a special committee--consider whether changes to the Standing Orders might alleviate our current difficulties in committees.
So this goes beyond just our committee. It's all committees.
I note that the standing committee...and if I can give you a little precedence here, this has been done before. A former Standing Committee on Finance presented a report to the House of Commons on April 30, 1990, recommending that the question of rules and procedures, as they relate to the limiting of debate in cases where committee has reached an impasse, be referred to the Standing Committee on Privileges and Elections. That committee now, of course, is called the Standing Committee on Procedure and House Affairs.
I also looked at the Speaker's rulings very carefully. I found that he had suggested, without actually going further, that in fact that would be a way, possibly, to solve this. Further to that, reading the comments by the chair of the justice committee, he also is suggesting that the rules need to be re-examined to allow us to get rid of this impasse that we find ourselves in--and in an increasingly serious manner.
What I would to do, then, is invite a member of the committee to propose the following motion: That the committee report to the House inherent difficulties in the practice, procedure, and rules of the House that allow procedurally sound rulings of chairs to be overruled, and that the committee recommend that this matter be referred to the Standing Committee on Procedure and House Affairs or possibly a special committee to consider whether changes to the Standing Orders might alleviate current difficulties in committees.
Basically I'm suggesting a proactive move where we attempt to push the issue in order to solve the problem that we face. It is a compromise. It will require that the motion be voted on without debate. Then we would go back to where we were when I suspended to come up with this ruling.
Yes, Mr. Cullen.
