Procedure and House Affairs Committee on Nov. 21st, 2006

[The Chair, Conservative, Gary Goodyear]

Good morning, members. I call the meeting to order. Thank you all for coming out this morning.

I wish to advise colleagues and witnesses alike that this meeting is being held in public. I would also advise the members that we have business to discuss at the end of this meeting. I will try to leave 15 to 20 minutes at the end of the meeting to do that.

Today we have three witnesses who were invited to appear before the committee based on their appearance in 1992 when the initial report was formulated.

The Honourable Senator Champagne is with us this morning. Thank you.

Ms. Dawn Black, thank you very much for coming.

Mr. Marleau, a former Clerk of the House from 1987 to 2000, it's a pleasure to have you here as well.

If the witnesses have opening statements, keeping them to five minutes or less will be very helpful. Then we will proceed with our usual round of questioning.

Ms. Black, would you like to start please?

Welcome.

[Dawn Black, NDP, New Westminster—Coquitlam, BC]

Thank you very much, Mr. Chair.

Thank you to the committee for inviting the three of us here to go through a little bit of the history of why that committee was struck in the first place back in 1992.

What happened then was that a number of particularly nasty and vicious racist and sexist remarks had been hurled around in the House of Commons. My colleague Howard McCurdy, a black member of Parliament, was told to “Shut up, Sambo” in the House. Some of the women had been called the very demeaning “bitch”, and there were other sexist slurs.

The Speaker came to all of the parties represented in the House at that time and asked them to participate in an advisory committee to the Speaker. Each of the parties did put people forward to sit on that committee. Andrée and I were just trying to remember how many meetings we had, but I think it was four or five.

Every party was represented--the Conservatives, the Liberals, the NDP, the Bloc, and the Reform Party. The Minister of Status of Women participated in the committee. The committee was assisted by the Deputy Clerk of the House and also by the House of Commons human resources director. So there was some expert help to the committee members as well.

Each of you has seen the report and the recommendations, but since 1992, when that report was tabled to the Speaker, the Standing Orders have changed. I know they have changed over the years, and they have been amended in other ways. However, I believe the report is still relevant. We've had a number of incidents in the House of inappropriate gestures and sexist comments.

Amendments to the Standing Orders could be made quite easily I think to implement some kind of change that would help the Speaker. I think you're all aware that Speaker Milliken has asked members of Parliament, asked the House, to make things better for him and to give him the tools that would help him maintain decorum and order in the House.

In this original report that was done, a number of recommendations were made and changes were agreed to. One was that the Speaker could name a member and also suspend a member. There was a progressive measure of discipline, if you like, much like many of the large corporations or institutions in Canada have today in terms of human rights and anti-discrimination procedures and policies. Progressive measures of suspension or discipline were called for. The first was suspension for a day. If no apology came or there was no change in behaviour, there would be a suspension for five days, up to and including, finally, a suspension for 20 days.

We also talked a lot during those meetings about whether or not there should be a financial penalty. There was heated discussion around that, as I recall. In the end, we agreed that there should be, that for some people perhaps only a financial penalty would help them mend their ways.

The report adds a prohibition against racist, sexist, and homophobic language, which has not been in the Standing Orders.

I think we really need to move in some way. Whether it's this report or whether it's parts of this report incorporated into some changes to the Standing Orders isn't really that important; I just think it's very important that we do address this issue. Parliament is very negatively affected each time one of these incidents happens and is reported across the country. I believe very strongly that we as parliamentarians have a real responsibility to address this, to address the lack of decorum, to take some really effective action on changes that would increase the decorum in the House and give the Speaker the tools he says he needs.

In 1992 we had five parties in the House, and it wasn't particularly easy to get all-party agreement, but we did. I think this Parliament again could come to an agreement on ways to effectively improve the decorum in the House of Commons through the Standing Orders.

Thanks very much.

[The Chair, Conservative, Gary Goodyear]

Thank you very much.

Senator, please.

[Andrée Champagne]

Thank you, Mr. Chair.

When I was called to appear before this committee, it unleashed a flood of memories. I realized that I had managed to forget most of the unpleasant moments and remembered only the good ones. This is probably more understandable if I tell you that the six or seven years during which I shared the Speaker’s Chair were part of another era. We are talking about 20 years ago, in the fall of 1986.

In 1984, when I arrived in the House of Commons, the House had just been though the horrors of the rat pack era. It was absolutely terrible. A certain measure of calm had returned with the arrival of Mr. John Fraser, the first Speaker to be elected by the House.

When I first occupied the Speaker’s Chair, I must admit that as an actress who had spent the last 20 or 25 years of her life showing every emotion, I sometimes had a very hard time hiding my impatience with some members who made life hard for me. When a new person takes the Chair, they try to see how far they can push her, and believe me; they don’t cut you any slack when you’re a woman.

From 1984 to 1986, when Mr. John Bosley was Speaker of the House of Commons, naming a member who was behaving badly had become a very common practice. Mr. Marleau reminded me a short while ago that

John Bosley named more honourable members during that year and a half or two years than had been named since Confederation. It became an everyday affair.

When John Fraser arrived, he said to his three assistants that they were not naming anyone and they were not throwing anybody out. That was for one reason. When the members were thrown out, they would go to committee; they would go back to their office and make phone calls; and they would eat at the cafeteria, where it was much cheaper. They would still have all the advantages and none of the problems. More than that, they were sure to be on television that very day, not only live in the House, but also on the news. So being named became,

a feather in their cap, and not a shame.

The only means at the Speaker’s disposal was to refuse to recognize a member, which provoked endless questions of order. We witnessed the arrival of the first Bloc Québécois members, who were all defectors, except Mr. Gilles Duceppe. There was Mr. Jean Lapierre, who didn’t give way any for anyone. He was a past master in the art of talking about anything else but the subject under review. When you tried to tell him he was supposed to talk about such and such an amendment, or bill, he would switch back to his subject in no time.

I remember during a plenary committee, I had to stop him at each amendment. It was pure hell. There wasn’t much I could do, because he was trying to be obstructionist.

Some people gave us a hard time with their lack of courtesy. I remember Mr. John Nunziata, whom some of you may have known. We had decided that we would no longer recognize him, but all it took was for me to leave to answer an urgent call of nature for someone else to take the Chair and recognize him. There was nothing we could do.

I remember that once when John had been extremely brutal towards another member. I called him into my office, and he told me that when he was attacked, he would counter-attack even more brutally. I answer that the House of Commons was not a schoolyard and perhaps he should learn to act differently.

Don will surely remember the moment when a committee had recommended that Mr. Waddell be called to the Bar. It was a notable moment, an exceptional situation. Mr. John Fraser was surely the more uncomfortable of the two.

Robert, you could tell us a lot more than Mr. Waddell, who found the situation quite funny.

The advisory committee I chaired had no follow-up, because shortly afterwards, there were the 1993 elections.

Some of the suggestions that are in the report could be used. Please study them. Go slowly--not everything at the same time. But mostly I think that all parties must be doing something. It really is the responsibility of the whips, of the House leaders, because as long as it is something fantastic to be named and ejected from the House, and not shameful, this is not the way to go. So the communication people could be at work as well, because it is a shame not to act decently in the House when you represent people who sent you there.

Thank you for inviting me. I hope I can be helpful with answers.

I thank you and wish you courage. You have your hands full.

[The Chair, Conservative, Gary Goodyear]

Merci, Senator.

Mr. Marleau, please.

[Robert Marleau, Former Clerk of the House of Commons, As an Individual]

Thank you, Mr. Chair.

I don't have a lengthy statement to make. Clerks are mute in debate, and I haven't lost that habit, unfortunately, since I retired.

I thought what I would take is a clerk's tag and first advise that you proceed with caution, which are usually the first words a new Speaker hears once elected to the chair. In my almost 15 years at the head of the table I've seen the House collectively rise to unbelievable levels of humanity, dignity, and even solemnity. So we mustn't forget that dimension as you look at your rules in the context of disciplining one of your own. At the same time, I went home some nights quite upset at the comportment of few, who bring the institution into some disrepute--usually for a little while. You'll be going back to your ridings over the longer Christmas break, and you'll hear from Canadians then. By and large, they don't like the extreme partisanship. They certainly don't like the sexism and any of the antics that unfortunately human beings are capable of from time to time.

I'd like to position the Speaker in this discussion for you. The Speaker really has only two tools or two arrows in his quiver for maintaining in a disciplinary way decorum in the House.

To begin with, the Speaker must be diplomatic and courteous, or risk aggravating things when the temperature rises in the House.

The two instruments at his disposal are as follows—the first is the authority to recognize a member or not recognize him. The second is to name a member for misconduct. It is not the misconduct that is being punished when a member is named. In reality, the member is being punished for not recognizing the authority of the Chair.

The Speaker usually says, “I name you for disregarding the authority of the chair”, which is vested in him by the whole House.

In my view, both those powers have been diminished over the last 25 years.

It first began in 1980, when Madam Sauvé accepted a list for question period from the whips. I'm not blaming her; it was a collective decision.

Prior to that, all members rose and the Speaker recognized them in what appeared to be a random manner. It was actually quite scientific for most Speakers in terms of an impartial and balanced way to recognize members. But we had introduced TV three years before and all the members popping up and down didn't look good on camera. Furthermore, the thumping on tables, which was the tradition for applause, didn't look good on camera.

With the full interest of protecting the dignity of the House, Madam Sauvé, with the whips, agreed on a process whereby you would give the Speaker a list, and, by and large, the Speaker respected that list.

I'm not advocating that we go back because I don't think we can. But you have to realize that if a member misbehaves in question period and the next day his or her party puts him back on the list, the Speaker has very little room to manoeuvre. That has happened and it will happen.

The second thing was the naming procedure that was changed in 1985. Madam Champagne alluded to the change that occurred prior to 1985 when Mr. Bosley named over 25 MPs in a span of 18 months. That was more than had been named since the beginning of Confederation. Why did it happen?

There was the conjecture in 1984 of the biggest Conservative minority in history, with the Liberal Party as official opposition, and the party tactic of the rat pack. The rat pack was very much a role that was leadership sanctioned, which made it very hard for the Speaker of the day, regardless of his qualities as a diplomat or a chairperson.

The McGrath committee tried to reinforce the Speaker's hand by giving the Speaker the power to unilaterally name a member. Prior to that, a motion had to be moved, usually by the government House leader, and the entire House voted on the conduct of the member. If the motion passed, the member was ejected. It was quite a significant gesture to vote against one of your own in your caucus to respect the authority of the chair.

There was an incident where Speaker Jerome in 1977 named the minister during question period for not withdrawing the word “lie”. He refused categorically. The government House leader was in a position of having to move a motion against his own colleague sitting right next to him. There was a long silence in the House. Ultimately, MacEachen got up and moved the motion. It passed, and Mr. Ouellet was ejected.

The House participated in the discipline. You now had the House as a witness to a struggle between the chair and a member, who sometimes was not even paying any attention to what was going on.

The intent of strengthening the Speaker in 1985, in my view, in fact weakened the Speaker. That's why Speakers since John Bosley reluctantly name, because they feel they're weakened. They have to at one point.

The member can leave, as Madam Champagne said, and go to committee, go back to his office, or get on an airplane and go home for the weekend, if it's a Thursday afternoon.

My comments to you are to say that there are two examples that I believe were well-intentioned changes but in fact reduced the authority of the chair in terms of disciplining members.

It's why I say, Mr. Chairman, proceed with caution.

[The Chair, Conservative, Gary Goodyear]

Thank you very much.

Colleagues, we'll begin our first round of questions. As a gentle reminder, keep your comments short and we'll have lots of time for questions and answers.

We'll begin with Monsieur Proulx.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Thank you, Mr. Chair.

Thank you, Ms. Black.

Thank you, Madam Champagne and Mr. Marleau.

Mr. Marleau, you are a specialist in procedure in the Parliament of Canada. Would you agree with me that the Speaker of the House has the necessary tools to interpret the rules so as to bring peace to the House?

Neither the Speaker, nor the new rules, nor the existing rules can prevent a member from standing up and doing things that are wrong, although the discipline imposed by the Speaker can certainly discourage misconduct and improper language.

Does the Speaker have sufficient tools to deal with the great majority of problems?

[Robert Marleau]

Mr. Chair, I’d say yes. I think the Speaker has the necessary tools to ensure that debates in the House of Commons take place with the greatest dignity possible. But this responsibility does not rest solely with the Speaker. He must act in partnership with the party leaders, the whips and the House leaders, who are, in my opinion, House officials. It is their duty to support the Chair within their caucus.

To get back to the rat pack mentioned by Madam Champagne earlier. That was a deliberate and political strategy adopted by an opposition party. Under such circumstances, the Speaker is badly equipped if the leader does not support him when he intervenes.

What are perhaps missing in this report are the consequences of the Speaker’s actions. A member who is named can return to his office and work there; he is not obliged to attend the committee meeting his whip wanted to send him to, or he can take an earlier plane and go back to his riding. There are no Parliamentary consequences.

You could perhaps review some elements of this report

with caution, so that there is some consequence to the Speaker using the naming procedure.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Isn't not recognizing a member already a major tool? I agree with you that part of this should come from the party leadership. However, the Speaker has the power to not recognize a member in the House, even if his name is on the list for Question Period or during statements. Don’t you think it’s already a lot?

[Robert Marleau]

It's a lot, but this power can’t be exercised absolutely without the support of the party in question. I’ll give you an example. I won’t name the former member involved, because he’s still around, and he could come back one day.

A member had accused the Prime Minister of being a liar. Mr. John Fraser, at the very beginning of his term, had decided that he would not name members, that he would bring back some degree of dignity through his exercise of impartiality and his sense of justice in the conduct of debates. The member squarely refused, and Mr. Fraser decided not to name him. He called me over, as you often see a Speaker do.

“Help, Monsieur Marleau. Please take your message to the House leader of that party and tell him that I will not be recognizing the honourable member in debate for as long as he chooses to not apologize to the House.”

Two weeks went by. The member was present for Question Period every week, and his name was not on the party list, which created some brouhaha within the party in question. At the beginning of the third week, I received a message informing me that that day; the only name on the list of the party in question would be that of the member who had been suspended by the Speaker.

The message? The party no longer recognized the Speaker’s authority to carry out such acts. I advised Mr. Fraser not to let the situation drag on indefinitely, because the right to speak in the House, which one earns when elected, is very precious.

Until what point can the Speaker continue to not recognize a member?

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Mr. Marleau, I hear what you’re saying, but Mr. Fraser had the right to act in this way. This doesn’t mean that all speakers have to do the same thing.

But let’s get back to the issue of party support for the Speaker of the House. Could this issue be resolved by rules? I don’t think so. There must be a will on the part of all parties to ensure decorum and respect for the rules and the Speaker. What is currently being submitted to the committee is the work that was done then, which suggested that certain changes be made to the Rules of the House to resolve the problem.

Could the parties’ support be set out in an amendment or addition to the Rules?

[The Chair, Conservative, Gary Goodyear]

I'm sorry, but we're out of time on that round, Monsieur Proulx. We're way over the seven minutes. Perhaps you'd like to ask that question or finish that on the next round.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Merci.

[The Chair, Conservative, Gary Goodyear]

Mr. Hill, please.

[Jay Hill, Conservative, Prince George—Peace River, BC]

Thank you, Mr. Chair.

Thank you to our witnesses for appearing today. At the outset, I would have to agree with Mr. Marleau's comment. Proceed with caution, I heard you say at the outset of your remarks, and then you laid out the two tools the Speakers do have. One is do not recognize a member, and the other is you recognize them, you name them, and eject them from the House.

I'm a little concerned with one of the clauses in these amendments in this proposal we're considering from the 1992 report, in that, “A Member who has been suspended from the service of the House shall be suspended...shall forfeit the right of access to the Chamber”.

My concern with regard to that is it's very dangerous, and I'm specifically addressing this to Mr. Marleau as a renowned co-author of a book on procedure and process in the House of Commons. My concern is, in the last minority Parliament we ended up with a tie vote on a confidence measure where the Speaker had to, and rightly so, vote for the status quo, which is his role, and he maintained the government. The Speaker could find himself--especially in a minority situation, I would suggest--in a situation where if he were to impose that type of sanction to effectively disenfranchise a member, if he did it on the part of one opposition member, it's conceivable in that particular situation that the government would be maintained, or arguably, if it were a government member who was the problem and lost the right to vote in the chamber, then the government would fall, and it would be determined by the Speaker.

I would ask you to comment on that. When you say proceed with caution, I would think this is the one area you're getting at, if I could use that term and ask for your comments on that particular scenario. We were in that situation in the last Parliament and could easily be in it in this Parliament.

[Robert Marleau]

Yes, sir. If I had known I was going to be here today I would have kept my 1992 notes. As I recall, this particular draft, I think it's paragraph 11(1)(d)--I met with the committee and gave evidence--followed my recommendation. What it does is it simply--the first part, not the last part of forfeiting a monetary sum of some kind.... In fact, the practice right now, Mr. Chair, is that if a member is ejected from the House by the Speaker, he's out for the day; whether there's a vote subsequently or not, he's not to return to the House. That's just stating in the Standing Orders what the practice has been.

The point you make about minority governments is a very valid one. I can assure you that Speakers I've worked with would have it first and foremost in their minds on how to deal with such a situation, including taking the matter under advisement, which is the Speaker's prerogative, putting it over to another day, letting the member cool off, and maybe the next day the member is feeling a little bit better about it. So the Speaker has a mood management role as well in that situation. If he moves too fast, sometimes he makes the situation worse. In a minority context, I would say the Speaker would have that first and foremost in his or her mind.

[Jay Hill, Conservative, Prince George—Peace River, BC]

I appreciate that response.

I want to pick up on this idea that the first step for a Speaker--and when the Speaker appeared before our committee he referred to this as well, and he's used it quite effectively in the past where he didn't recognize a member. You can do that quite informally. You don't have to make a grand announcement to the chamber. Either the Speaker himself or one of his officials could talk to that member and say they weren't going to be recognized in debate. Obviously, that person would not be disenfranchised as far as his voting, but that person would not be recognized as far as debate or question period.

I want to pick up on your suggestion that to make it truly effective, what we would need is buy-in or support from the four parties, the whips, the House leaders, ultimately the leaders of those four parties, to say we will always support the Speaker in that ruling, and ensure that happens by not having the person on the list for question period, for example, and we will respect the Speaker's right not to recognize that person. Is that what you're getting at there?

[Robert Marleau]

That's what I'm getting at. And I would just couch it, in my words, a little differently and say that the leadership is supporting the authority of the chair--not necessarily the action the chair took in the particular circumstances, but the authority the House has vested in the Speaker in order to maintain decorum and dignity. And that's the fundamental issue.

In the Ouellet case of 1977--if you read Jim Jerome's memoirs--in that long pause, I think he says he was drafting his letter of resignation. If MacEachen, the government House leader, had not risen to support the chair, he would have had no choice but to resign the next day.

So I make that point that as a leadership, you're supporting the authority of the chair. The word used becomes almost--I won't say irrelevant, but secondary in the contest between the Speaker and the member.

[Jay Hill, Conservative, Prince George—Peace River, BC]

I just wanted to pick up on one point that was made by Senator Champagne, because we did discuss it privately, in camera, in the past, and that is this whole issue of it being the responsibility of the whips and the House leaders--not that I want to abdicate that responsibility. I know, working with the other whips, that we have tried to impress upon our caucus the need for improved decorum. I did make the point at that time, and I would ask for a quick comment, that really it comes down to self-discipline on the part of every one of the members of Parliament, regardless of party, and peer pressure from those around them as well. In a large caucus, in particular, the whip can only hear and see what is going on in the immediate vicinity, and it makes it pretty difficult to ride herd on somebody who is quite a ways down and might be making comments that you're not aware of. I just put that out there.

[The Chair, Conservative, Gary Goodyear]

Thank you very much.

Monsieur Guimond, you have seven minutes, please.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Thank you, Mr. Chair.

Mr. Marleau, I turn to you as the authority on Parliamentary procedure. Contrary to what my colleague Mr. Proulx stated, we aren’t here to obtain peace in the House. I am taking it for granted that we already have it, but what we are looking for is more order and decorum. This is simply a nod to my colleague Marcel Proulx.

Research has prepared us a study on how things are done in other provincial legislatures. With a few minor differences, it’s basically the same everywhere. This may be due in part to the fact that provincial legislatures, including the Quebec National Assembly, are all based on the British model, like this Parliament.

Have you ever had the opportunity to examine the issue of respect for order and decorum in other legislatures in Commonwealth countries, or do you not have any specific knowledge of the subject?

[Robert Marleau]

I couldn’t quote you a section of the rules from the Barbados legislature, for example, but I can admit that the problem is a universal one in terms of the Speaker’s position and human behaviour.

There is a saying in the Lac-Saint-Jean region to the effect that people will be people. There are no rules that can completely eliminate the human factor.

With regard to your research about the provinces, there are variations, but in some cases the motion must be moved by the House Leader, while in others, the House of Commons’ practice was adopted immediately after 1985, at the same time as the practice of having the Speaker elected by a secret vote.

In Great Britain—which was the basis for my comments to the committee in 1992—, the member is expelled from the Parliamentary precincts. He cannot return to his office. He cannot attend a committee meeting. There is a consequence. If the sergeant-at-arms sends a message to everyone saying that the Speaker has expelled such and such a member, it’s over for the day.

I don’t mean to criticize the members. You have large ridings; some of them are far away. On Thursdays, a lot of people fly out in every direction across the country. The privilege of travelling on Thursdays should at least be suspended, so that a member cannot not simply contravene the Rules to get a longer weekend and leave the next day. In other words, a member who is excluded from the House is already punished, but is only pardoned the next time he appears in the House.

That’s partly what inspired my recommendation in 1992: the British practice under which a member cannot return to the House or go to his office. In modern times, this could have unpleasant consequences.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

You went so far as to talk about pay, I believe.

[Robert Marleau]

I don’t have my notes with me, but as far as I remember, I didn’t go that far. I don’t know if Madam Champagne remembers.

I find that a monetary penalty may have no meaning for some members, depending on their means, and be very important for others.