Information & Ethics Committee on Oct. 29th, 2013

[The Chair, NDP, Pat Martin]

No.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

Okay, that was my only question. We will have time to get to those as well then, right?

[The Chair, NDP, Pat Martin]

That was the plan, that we would deal with routine motions today, Mr. Calandra.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

I just wanted to make sure. I was uncertain. The honourable member seems to—

[The Chair, NDP, Pat Martin]

It was more of a point of information than a point of order.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

Well, a point of information. He seems to be nervous that we might not get to it, so I'm prepared to vote on this motion right now.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I have the floor.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

In the spirit of honey, Mr. Chair, I won't put up any members on our side so that we can deal with this, and then we can get on to the other routine proceedings that are so important to the honourable member.

[The Chair, NDP, Pat Martin]

We've ranged from a point of order to a point of information to a personal view or opinion.

Mr. Angus does have the floor.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you, Mr. Chair.

I'm appealing here to my honourable colleague. This committee shouldn't be a joke. We're dealing with a very serious issue that I believe breaches the rights of members within the House of Commons, so I'm going to go through this. Some members might not want to debate it; in fact, I would be surprised if they did want to debate it, because when they're trying to take away rights of the members, they'd certainly want to move it as fast as they could.

In terms of the issue of in camera, that would be part of the regular issues of routine motions, so we were certainly willing to work with them on that. There's a real difference between ensuring accountability and transparency and voting in camera, and using the committee to strip the rights of independent members.

We're going to get to those rights in a moment, but I first want to go through what we're not dealing with, such as working meals and witnesses' expenses. It's reasonable that requests for travel, accommodation and living expenses be reimbursed to witnesses, not exceeding two representatives per organization. Also, under exceptional circumstances, payment for more representatives should be made at the discretion of the chair, including if requested, reimbursement for reasonable child care expenses. I thought we could have dealt with that.

Regarding staff at in camera meetings, unless otherwise allowed, each committee member may be accompanied by one staff person at an in camera meeting. In addition, each party shall be permitted to have one party staff member in attendance. That seems perfectly reasonable. I would have thought we would have had that. As our staff can probably point out, we would all be pretty lost without them, like sailors at sea, even in our in camera meetings.

With respect to in camera meeting transcripts, one copy of the transcript of each in camera meeting should be kept in the committee clerk's office for consultations by members of the committee. That's a routine motion.

What I'm doing for the folks back home is to say that these are the normal things you set up. You set up the ground rules of the committee and then you get into the discussion. What we're seeing is that our colleagues on the government side are not interested in discussing how we set up a working committee, because again, their orders from the Prime Minister's Office—it's no longer Nigel Wright; I don't know who's calling the shots there right now—are to undermine the rights of the independent members. We're going to get to the undermining of those rights.

The notice of motions is another thing we would normally be dealing with this morning: that notice be required for any substantive motion to be considered by the committee, unless the substantive motion relates directly to business then under consideration; that the notice of motion be filed with the clerk of the committee and distributed to members in both official languages at least 48 hours prior to the start time of a meeting where the motion may be moved. I would have thought we would have dealt with that by now.

In regard to the rounds of questioning, the order of questions for the first round of questioning shall be as follows: New Democratic Party, Conservative, Liberal, Conservative; during the second round it shall alternate between government members and opposition members in the following fashion: New Democrat, Conservative, New Democrat, Conservative, New Democrat, Conservative, Liberal, and then Conservative. Based on the principle that each committee member shall have full opportunity to question the witnesses, if time permits, further rounds shall repeat the pattern of the first two, at the discretion of the chair.

You'll notice in this issue of the round of questioning, which is very interesting, independents have no standing at our committees. Independents have no right to question witnesses. Independents have no right to bring motions to our committee for debate. Independents exist in the shadows at the committees. This is a very important issue here.

Independent members of the House of Commons, and there are a number of them now, do not have the right to bring motions, to vote on motions, or to question witnesses. What they're now being offered is to write a letter to the committee if they have potential amendments on a bill. Once they've brought that letter to committee, the committee then decides, and I believe they are allowed to make a brief presentation in support of it. They have no ability to direct the committee. They have no ability to vote in committee. What this government is doing, Mr. Chairman, by sleight of hand, is saying to the independent, "If you have any concerns, write to the committee”, a committee where they have no standing, where they are a shadow person. It strips them of their right as an independent member of the House of Commons to bring amendments for a vote. That's the issue here. They're not being offered anything to come to our committee or to be part of our committee.

It would be a fascinating exercise if my colleagues in the Conservative Party had any kind of democratic notion to allow the independents to participate or bring a motion, if they wanted to. We could debate it. That would be an interesting discussion in democracy, but that's not what they're offering.

They're offering the poison chalice to the independents, saying they'll let them write a letter to the committee. This will strip the ability of an independent member, who is elected by people in this country, to bring forward amendments at report stage in the House. It's just another attempt to steamroll our democracy.

I want to go to the actual problems with this motion and why it's such a poisonous thing to bring forward.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

You must be clear and concise in your arguments. That's my advice.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Let's call it a procedural rattlesnake in a bag. Perhaps a poison chalice isn't correct. We're offering a procedural rattlesnake in a bag with a little flower attached to it and giving it to the independent members. Is that better? Okay, I'm going to work on these metaphors. When I go over the line, I'll pull them back and say they're just similes. I think procedurally I can use similes more than metaphors.

[The Chair, NDP, Pat Martin]

Similize all you like.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I will certainly similize.

Mr. Chair, we strongly oppose this motion. This is another attempt originating in the Prime Minister's Office. I certainly don't think my colleagues on the other side have any backing on something as odious as this. This is coming out of the Prime Minister's Office, the notion of absolute control. It's frustrating them that the few independents we have actually have a right in the House to stand up and make amendments at report stage.

I certainly agree with you, Mr. Chair, and I think you will find that this is completely out of order. I would invite my independent colleagues to get an independent opinion from the law clerk on whether or not their privileges as members are being undermined by not having the right to be heard here. I think this is a breach of the privileges of the members of this House. They are not allowed standing and their rights are being taken away. I certainly will be trying to get a legal opinion from the law clerk on the legality of what is being done here. Of course, the issue of legality is something that hasn't bothered the Prime Minister's Office of late, as we've seen.

Let's continue on with the problem with this motion. The proposed motion that will be voted on here without the representation of the independent members of Parliament would result in a significant change in the way the House operates. It would also undermine the rights of specific members of Parliament. O'Brien and Bosc make it clear that:

It is the House, and the House alone, that appoints the members and associate members of its committees, as well as the Members who represent it on joint committees.

The Speaker has ruled that this is a fundamental right of the House.

[The Chair, NDP, Pat Martin]

Mr. Angus, could you please quote the chapter and verse so that we can follow along with you.

[Charlie Angus, NDP, Timmins—James Bay, ON]

It is on page 1019 in the parliamentary good book, my honourable Chair.

[The Chair, NDP, Pat Martin]

Thank you. I was on another reference.

[Charlie Angus, NDP, Timmins—James Bay, ON]

If you want to interrupt me with your reference, I certainly don't mind giving the floor to you for a few minutes, as long as I have it back. I would like to continue on page 1019.

All my colleagues, if you have the hymnal, it is page 1019 that we are reading from.

[The Chair, NDP, Pat Martin]

Thank you.

[Charlie Angus, NDP, Timmins—James Bay, ON]

It is the House, and the House alone, that appoints the members and associate members of its committees, as well as the Members who will represent it on joint committees. The Speaker has ruled that this is a fundamental right of the House. The committees themselves have no powers at all in this regard.

Further, going back one page to page 1018—actually I think “further” sounds odd if we're going backwards—it says:

The Standing Orders specifically exclude a non-member from voting, moving motions or being counted for purposes of a quorum.

In other words, the committee has no power to make this sort of procedural change on its own. The powers lie within the House and its Speaker, because the independent members have no standing at committee. So a move to take away the rights that they have in the House at committee is a breach of their fundamental rights as members of this House.

Mr. Chair, the Conservatives claim there would be no infringement on their rights as independent members, but that's clearly not the case, because once they submit motions, they would be excluded from voting on those motions. Within the House itself now when an independent member brings forward an amendment at report stage, they have the right to vote on their own amendment, but that right is not given to them within the committee process.

In addition, Mr. Chair, during last spring's committee study of Bill C-60, the committee members were given a choice with regard to including independent members, but the independent members were prohibited from participating in the debate and study on the content of the bill unless an opposition member was willing to give them their seat. What we are seeing again is that even if the committee were attempting to include the independent members, it would certainly infringe on rights that existed, the rights of the members who were sitting at the table.

Surely it can be argued that independent members cannot be required to submit amendments to the committee when they are not permitted to participate in the study, or that opposition committee members should be required to give up their seats in participation in order to accommodate independents. That would certainly trample on their rights as well as those of committee members.

Mr. Chair, as the official opposition, we've attempted to work with this government numerous times, despite the fact that in the House they continually abrogate our rights to represent the people we were elected to represent. They continually shut down debate on form. They continually use in camera and abuse it to get their way, but when we see the attempt to breach the fundamental rights of a member in the House and to use a back door like this, well, Mr. Chair, it's just not acceptable.

I have to say that politically I have very little in common with the independent members. I'm a proud member of the New Democratic Party. I'm proud to be in the caucus. I don't share the particular viewpoints of the independent members who are sitting on the back benches. Nonetheless, they were democratically elected by people in this country and they have as much right to be in the House as I do. I might not agree with them, just as I don't agree with many of my Conservative colleagues on very much, except maybe that it is still morning, if they're willing to concede that to me.

But Mr. Chair, I certainly am willing to defend the right of any member of this House, because if we do not stand up for the privileges of the members, then we are betraying the long history of the Westminster tradition. I think this is what my colleagues in the Conservatives need to understand. They have all the nasty little apparatchiks in the Prime Minister's Office who believe that politics is some kind of perennial war game. It's about who wins. Believing that the rules don't matter is what's gotten our Prime Minister into the deep, deep, deep trouble he's in right now.

I was astounded. Probably the clearest thing we've ever heard from our Prime Minister, we heard second-hand through Mike Duffy, and that was that the base don't understand rules and they're not interested in them. Well, the rule is the rule of law, Mr. Chair, which is why perhaps they did think they could break the law, because to them, the base doesn't understand rules; they don't understand procedures. Well, procedures are how we ensure democratic accountability.

When it comes to moving motions, independents in the House have the right to move motions for amendments and to speak to them. That's their right, Mr. Chair, but in committee, if they are offered this, that right will be taken away from them.

What will also be taken away from them is their ability to.... Well, the right that they will not have is the right to vote on their own amendments. How can they bring forward an amendment and have to be a second-class parliamentarian, such that you would have to come in and hope someone would take your case for you? Then—and my honourable colleague from the Liberal Party talked this morning about how partisan this committee is—you're having to be at the mercy of the political parties sitting around the table. That's not right for an independent.

As I said, I certainly don't have much in common politically with any of the independents, and I don't feel that it's my job to have to press their case on an amendment to a bill at report stage. I might not agree with any of their amendments, or I might agree with some of them, but I do believe they have a right to bring forward those amendments, and they have a right to vote on those amendments. Otherwise, what is being offered are no rights at all.

Mr. Chair, our experience with this process so far is very concerning, because we're talking about the infringement of rights. I think it is particularly undemocratic of the Conservatives to bring this motion to committee, which has no power to actually make this procedural change and where the members, in question and motion, are excluded from both debate and voting.

Mr. Chair, I would ask you again, so that this is not a kangaroo court and that our rights as members are not infringed upon by having to participate in another bully court of the Conservative PMO.... I believe that our fundamental rights as members are being infringed upon by being asked to take away the rights of members in the House of Commons. I do not believe that this is proper. I believe it's an abuse of this standing committee, particularly when this is the committee that is entrusted with the issues of ethics and accountability.

For us to be using this committee, of all committees, to take away that right of an independent member, I believe, is absolutely unconscionable, Mr. Chair. I'm asking you to get a legal opinion for us from the clerk's office, because you could rule this out of order, but we again will see that the members on the other side will just overrule you. This is how they.... They're not interested in the long-standing traditions. They will get what they want because they're being told from the boys upstairs how to act.

What happens, Mr. Chair, if these committees establish a precedent? It's not just for the Canadian parliamentary system that it's at stake. We're talking about the Westminster tradition. These are rules that come into effect and then are judged, just as in a court of law, in other jurisdictions. The other parliamentary traditions will ask, “What did they do in Canada?” They will say that in Canada it was considered okay for a committee to be used to take away the rights of members in the House.

For the concern over the issue of precedent, Mr. Chair, this is simply not acceptable, so I'm asking you before we vote on this.... I'm certainly not willing to vote on this until we have a legal opinion, because I'm not willing to sit here and have my rights as a member undermined by this kind of bogus representation.

I'd like to know, Mr. Chair, if it's possible for us to get this opinion. I certainly will be seeking it myself, and I will be encouraging my independent colleagues, who are not here and who have no right to speak here, in that they have a right to have that legal opinion heard before any kind of vote like this proceeds.

[The Chair, NDP, Pat Martin]

Thank you, Mr. Angus.

In answer to that request, I don't think I have the right or the ability to hold up the vote while waiting for a legal opinion from the House of Commons law clerk. There are ample precedents. You pointed to one. You might want to refer to page 783 of the same document as well and also to the Speaker's ruling. The Speaker ruled on a similar one on June 6, 2013. You might find that useful as a reference as well.

We have three other speakers on the list. Next is Charmaine Borg.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Thank you, Mr. Chair.

The first problem that this motion raises is how it was presented. Mr. Calandra presented it by saying that he wanted to give more authority to independent members of the House. How he presented it is all fine, but in concrete terms, the motion before us does not give the independent members of Parliament more power. It does exactly the opposite by taking a very important power away from them, namely, the ability to suggest amendments at the report stage in the House of Commons. That means that they would not have the right to explain their amendments to the House of Commons. More significantly, they will not be able to vote when their own amendments are brought to a vote, because they obviously do not have the authority to vote in committee.

When an independent member of Parliament sends a letter to indicate that he or she wants to suggest an amendment, the MP can provide explanations. However, the MP will not even be able to vote when his or her own amendments are brought to a vote. We obviously don't know details about every position of the independent MPs. But we will be required to vote on amendments that they themselves suggested, that will reflect their thinking and that will show their desire to represent their constituents, while they themselves will not be able to.

The second problem with this motion is that it fundamentally changes how the House of Commons operates. As my colleague, Mr. Angus, mentioned a few times, the legality of this motion is seriously questionable. This committee cannot change the parliamentary process, which is based on the Westminster system. It does not have this power, and I highly doubt that this respects the procedures and Standing Orders of the House of Commons.

The government claims that this motion gives the independent members more power by allowing them to submit a letter to explain their amendments but it's the opposite: it is taking power away from them.

What this government is doing today is particularly contradictory. When the big omnibus Bill C-60 was tabled, independent MPs wanted to attend the committee meeting and be heard. We know that the government loves omnibus bills and that it has very little respect for democracy. The government prohibited independent parliamentarians to sit on the committee and attend the meeting. Instead, the government told the official opposition and other opposition members that if they wanted an independent member to be present, they had to give up one of their own seats.

In the past, the government never wanted to give the independent members any power or give them the right to sit on this committee. Today it claims it wants to give them more power. In concrete terms, that is exactly the opposite of what is going to happen. The independent members will no longer have the power to suggest amendments at the report stage, a fundamental power that has always been granted them in our parliamentary system, which is based on the Westminster system. What the government is actually presenting here makes no sense.

I would like to again quote from page 1019 of O'Brien and Bosc:

... It is the House, and the House alone, that appoints the members and associate members of its committees, as well as the Members who will represent it on joint committees. The Speaker has ruled that this is a fundamental right of the House. The committees themselves have no powers at all in this regard.

I repeat: we have no power here to decide how the House of Commons operates. Another committee, the Standing Committee on Procedure and House Affairs, might be able to, but this is the Standing Committee on Access to Information, Privacy and Ethics. Why are we debating an issue that would change how the House of Commons operates? It's really out of line, Madam Chair.

I would like to point out something else, since our motion to oppose meeting in camera was just defeated. The clause-by-clause study of bills is usually done in camera. Therefore, the independent members are now going to submit letters and they might get a quick minute to explain their amendments, but they will not even be seen by the public. The constituents of these MPs will not know what the MPs have presented. This aspect is very important. It explains why we are so opposed to this motion. The independent members already have very little power in the House of Commons, and we want to reduce it even further.

This is the only place they can give an opinion on a bill or show their constituents that they have stood up to defend an important issue for them. We are suggesting they submit a letter and then appear for a quick minute to talk about the reasoning behind their amendments, but that will be done in camera. Basically, the MPs' constituents will not know whether they oppose it. These members will not even be able to speak about the fact that they submitted amendments. I find that fundamentally problematic. They will no longer be able to rise in the House to say that they are submitting amendments and show that they are standing up for their constituents. They already have so little opportunity to do so, not counting voting when their own amendments are brought to a vote.

I would also like to point out, as my colleagues have already, that our Westminster-based system includes rules and procedures that are not always clear. They often depend on our interpretation of them. It is largely the responsibility of the Speaker of the House and the committee chairs to ensure that the standing orders are interpreted correctly.

Having said that, there are precedents. I quoted O'Brien and Bosc in that respect. In this case, we would be changing a fundamental principle of the tradition and operation of our Parliament, which operates based on the Westminster system. As my colleague mentioned, will that create a precedent? Once other countries see that Canada's House of Commons committees have taken away the ability of independent MPs to submit amendments during report stage in the House of Commons, will they say that they can as well? There would be a precedent. I think all members of this committee should be extremely concerned about the idea of creating a precedent as significant as this.

I don't want to impute motives, but I sincerely wonder whether this motion is a way of punishing former Conservative MPs who left because they were being very controlled by the Prime Minister. I sincerely wonder. If that is the case, I think it is really sad. That is not an appropriate way of doing things. It does not reflect a willingness to co-operate, to consider how things are done or to respect the members and former colleagues of the Conservative Party.

Madam Chair, I have already given the example of Bill C-60, which prevented independent MPs from participating. However, we often see that this government is changing how things are done, for example, presenting closure motions to limit debate or going in camera. The government regularly shows a lack of respect for democratic processes.

This is another example that shows us that these Conservative members have no respect for democracy or parliamentary procedure and regulations, which are fundamental for the functioning of the House of Commons and the way we do things.

We should be seriously concerned seeing such a motion. It will change how we do things and the House of Commons procedures. Basically, it will take away a very important right from independent members.

Furthermore, the independent members of Parliament are not here today and do not have the right to speak. We are discussing their rights, their future and how they will represent their constituents, without even having them present. I highly doubt that the Conservative members who moved this motion consulted them. I highly doubt that any independent members of Parliament were consulted about the content of the motion and said they were in favour of it. Can we stop deciding how other members of Parliament are going to represent their constituents? We are in the process of taking away that essential power.

So I invite my Conservative colleagues to consult the independent members of Parliament to see what they think of the motion. Since they aren't here, they can't vote against the motion or say that it will take away a fundamental right and influence how they represent the Canadians who elected them. I doubt they support how things are being done in this committee and how this motion was presented. We are claiming that we are giving them more power, but that is not true. We are in the process of taking away a fundamental right, and in its place, letting them submit a simple letter and speak for one minute to explain why they are suggesting amendments, which will probably take place in camera in any case. As a result, no one will know that these independent members spoke about an important matter.

Mr. Chair, I issued an invitation to the members of the Conservative Party. I invite them to consult their former colleagues and the other independent members of the House of Commons to see what they think about it. We cannot make a decision about their future and how they are going to represent their constituents.

Moreover, I emphatically demand that we get a legal opinion on this, because I highly doubt that this motion is in order. As members of this committee, we cannot decide how the House of Commons will operate nor can we fundamentally change the Westminster tradition here, in the Standing Committee on Access to Information, Privacy and Ethics. That is not our role. That would exceed our mandate. I highly doubt that it is in order. So I ask you to seek a legal opinion.

I again invite the Conservative members of the committee to go and ask their former colleagues and the other independent members of Parliament what they think about the motion. I guarantee you that they will take issue and will not see it as a way of giving them more power. It is exactly the opposite. They will see it as taking away a fundamental right, the right to express their opinion at the report stage of a bill, to submit amendments to the House of Commons publicly, and to debate and vote when their own amendments are brought to a vote.

[The Chair, NDP, Pat Martin]

Thank you, Ms. Borg.

While we can't provide here a legal opinion from the law clerk of the House of Commons, we fortunately do have a very competent and capable and highly respected clerk who may have an opinion as to whether or not this motion is in order.

Could we ask Chad to give us a brief opinion on the motion as we see it? Is it properly before this committee, and is there anything that he sees as an obstacle to our dealing with this motion at this committee?

[Mathieu Ravignat, NDP, Pontiac, QC]

Mr. Chair, could I say one thing? We're dealing with a fundamental sea change to the way our parliamentary institutions function and the rights of certain parliamentarians, both in the House and in committee.

The opinion of our clerk, with all due respect to his expertise, may very well be the changing fact as to whether or not we can actually vote on this. I don't think it's particularly right for us to be putting this decision on the shoulders of our clerk.

The fundamental question that I have is on whose role it is to deliberate on such an issue. Is it the committee or the Speaker? I think we need clarity on those two roles, on the relationship between the committee and the Speaker when we're dealing with the rights of parliamentarians. Therefore, I'm hesitant to put the burden of this opinion on our clerk.

[The Chair, NDP, Pat Martin]

Thank you, Mr. Ravignat.

I understand your point, but I think I would still benefit from the clerk's advice as to his opinion. It doesn't preclude us from seeking others' advice or taking guidance from the two references that have been cited, from the current O'Brien and Bosc, and also from the Speaker's ruling from June 2013 when the NDP House leader raised similar objections in the House because of the occurrences at the finance committee on Bill C-60. Many of the same points you're raising were brought to the attention of the Speaker at the time, and he ruled on them. I have the ruling here if you're interested in seeing it.

The clerk is aware of those three aspects, and perhaps he could comment briefly on his view as to whether it's appropriately before this committee.

Go ahead, Chad.