Procedure and House Affairs Committee on May 15th, 2007

[The Chair, Conservative, Gary Goodyear]

Thank you, Mr. Hill.

I have one more name on my list. It's a bit out of the usual routine, but since I have only one name left, I'm going to offer the floor to Mr. Owen.

I'm sorry, we have more names coming up, so we're going to go back to our order.

Please go ahead, Mr. Owen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you, Chair.

I'm going to try to stay on exclusively procedural grounds. I know there's a variety of opinion on the substance of this type of legislation and its purpose.

There are three issues of procedure that I think are very important, and Mr. Hill brings up, properly, one of those.

Procedural fairness and natural justice, first of all, require that someone has an opportunity to do two things, at least: one is to know the case against that person, and by way of a decision, there's an administrative hearing or another type of hearing; and the other is that they have a chance to answer the case. We seem to have got ourselves into a position here where we're denying that procedural fairness.

It goes to a conversation we had, I believe—and I'll be quickly corrected if I'm not right—in open session last week, about what should be in camera and what shouldn't be and what should the penalties be, as Mr. Hill and Mr. Lukiwski mentioned earlier, for breaching that confidence of in camera meetings. And I think we came to some agreement that, first of all, we should limit the situations where we are in camera to where it's really necessary and not just get into the habit of going in camera because it's just easier, or whatever, or it's the way it's been done in the past. So on the one hand and against clear criteria, limit why we go in camera and then go very harshly on the people who breach that confidentiality, having decided it in a very reasoned and restrictive way.

We have a situation now where we get to the second procedural problem, which is that there is an opportunity for a member to challenge the decision of a subcommittee before the full committee, which is what we're doing today, but that person was never--nor even are we, in the fullness of our size--able to know the reasons for the decision that is being appealed to us. That's a second illogic here. There's the procedural unfairness, but there's also an illogic to it.

The third is the illogic I mentioned previously, which I won't dwell on, but I think that as members of the committee and looking at the Standing Orders, we should try to deal with a situation, if it's in the future, if it's not now, where you have an amendment ruled out of order because it's beyond the scope and yet it's before the subcommittee, unacceptable in the form of a bill because it's substantially beyond the scope. There just seems to be something there that's inconsistent, to me.

So whether it's for now and on this issue or for the future, I think we have some procedural work to do. I'm grateful for Mr. Hill's description of the evolution of private members' bills and I'm grateful that we've evolved this far, but I think we have to be careful in a real, legitimate concern not to take up the time of the House improperly or unnecessarily and still deal with some of these procedural issues.

I think Mr. Silva is caught in this procedural illogic at the moment. I'm not sure how we solve that now other than just voting on the issue, but those are my feelings of the general procedure we're in.

[The Chair, Conservative, Gary Goodyear]

Thank you.

I'm not sure it's the appropriate time to remind members, but there is an appeal process, and that's what Mr. Silva is here for today. Depending on the outcome, the member has a third option to appeal to the main House, to the House of Commons, as I'm sure Mr. Silva knows. Just to remind members who may not know, Mr. Silva can appeal to the House whereby he would need the signatures of five members from the majority of the parties in the House, and then a secret ballot would be held on the votability of this.

So despite the fact that there may be some need to review this procedure in the future, the subcommittee did present its report. The drafting of that report is typically held in camera by all committees. The outcome of that report has now been made public. And perhaps the discussions within committee are something we might want to discuss at a later date. This is not the appropriate time, but we can certainly consider that. It's just as a reminder to members.

Next on my list is Mr. Preston. And I'm still looking for any members who want to talk.

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

I have a point of order, Mr. Chairman. I'm not sure whether it's a point of order, but I just don't want to leave the misperception with our witness, with a colleague, that I was questioning his right under the process and the procedure to be here today and make his appeal. That wasn't my point, so I just wanted that to be clear.

[The Chair, Conservative, Gary Goodyear]

Understood. I think that's fair.

Mr. Preston, please.

Are there more points of order? Next on my list is Mr. Preston.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Mr. Chair, I did put my hand up a couple of times.

[The Chair, Conservative, Gary Goodyear]

I apologize. I did not see you.

Mr. Preston next, followed by Mr. Lukiwski and then Mr. Reid.

Mr. Preston, please.

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

It's simply to answer a couple of points, and I do agree with Mr. Owen. I take no offence to what he's just said, but even at the outset of this meeting the criterion that was used and why the subcommittee ruled the current matter non-votable were stated, so it's not as if what criterion was used or how it was arrived at is an unknown factor.

I understand that because it was an in camera session it sure seems that way, but we do at least come out with the criterion as to what happened there.

I would also like to refer to the fact that the similarity between these two bills is what we're trying to discuss today. But I would remind the group that we got here somewhat a different way too, because Bill C-257, which we're preparing, was also similar to another bill. Bill C-257 was Mr. Nadeau's bill and the other one Ms. Bell's, and we were even charged by the Speaker to come up with a way of making sure this doesn't happen again, so that we find it non-votable at the appropriate time in the process rather than both of them getting to the House and having to be ruled out of order there--to come up with some remedy. And that's truly what happened with Ms. Bell's bill, which was substantially similar to Mr. Nadeau's bill. We couldn't find one of them non-votable, so we had to rewrite the criteria.

We've now rewritten the criteria so that we catch it at the appropriate spot in the process so it can't happen again, and we've tried to write--and it's been accepted as a report of this committee---the remedies for how we could address it if it does happen again.

We certainly have spent a lot of time on the subject matter of a bill respecting the Labour Code/replacement workers. We've seen three bills in the House that came forward with some substantial similarity on that, and that's why we looked at it that way.

To answer one of the questions that Mr. Silva brought forward about some previous Speakers' rulings--I understand that there are some there--as Mr. Hill said, some of these rulings took place during the time when private members' bills were treated substantially differently from the way they are treated today. So I recognize that a ruling made in 1980 was maybe under the rules that Mr. Hill was talking about, where you went and pleaded your case before whole committees and so on, and so I'll have to assume that maybe it was before the time....

To address Mr. Hill's point, I believe that the subcommittee will not take it personally but will certainly keep in the back of its mind that this committee is here for us to report to, and that's why the levels of appeal first bring it back to this committee for right of appeal. However, if that's just going to be the case each and every time, then why does the subcommittee actually exist and why don't we do the business at the full committee?

[The Chair, Conservative, Gary Goodyear]

I do have some other members on the list, but I just want to put across my viewpoint.

I think we're now discussing process versus the actual votability of this particular bill. So I'm going to maybe ask members to focus it back on track, which is fine. We can have this discussion at another time, but let's focus on the business at hand.

With respect to that, Mr. Lukiwski is next, and then Mr. Reid.

I'm sorry, Mr. Reid, but I did not see your hand. I don't deny that it was up, but I'm going in order.

Mr. Lukiwski, please.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

You need to get your peripheral vision checked. I'm not sure it's safe for you to drive. If an object should come out of the right-hand side, I'm not sure--

[The Chair, Conservative, Gary Goodyear]

Would that be a red Ford 1957?

Mr. Lukiwski, please.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you, Chair. And I think the term I heard the Speaker of the House use is that clearly Mr. Reid is invisible to the chair.

[The Chair, Conservative, Gary Goodyear]

And is becoming more so.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

I want to reiterate some of the procedural arguments I raised originally, and I want to speak to Mr. Owen's point.

Yes, I totally agree there's at least an apparent contradiction in what we're doing here, because of the Speaker's ruling that Bill C-415 contained elements of the bill that are beyond the scope of Bill C-257. One could then argue--as have Mr. Owen, Madam Robillard, and Ms. Davis--that this clearly means they are two different bills. I think that type of situation perhaps has to be addressed, but at some time in the future. I don't think it's incumbent upon this committee to try to address that situation right now. I agree there seems to be a bit of a problem there, and somehow Parliament has to work out a system in which there can be consistency rather than inconsistency in a ruling of a Speaker, as opposed to a ruling of a subcommittee. However, I don't think this committee is charged with that responsibility right now.

What we have is a situation where the subcommittee, charged with the responsibility of determining votability or non-votability, came back with its decision that Bill C-415 was non-votable. I would like to have been part of the discussion, or at least had knowledge of the decision and how the subcommittee came to it. Obviously Mr. Silva would like to know that as well. If we had been able to understand the decision-making process, it might have made this discussion at little easier and perhaps influenced some of the members a little more appropriately.

But we don't have that luxury, and we always need to remember that a decision made by a subcommittee really should not be overruled unless there is overwhelming and compelling new evidence and new information, and it can be demonstrated that the subcommittee was perhaps unaware of it at the time of their decision. I don't think it's sufficient to just say we disagree with the decision of the subcommittee, for whatever reasons. It is incumbent upon this committee, if they wish to overrule the subcommittee's decision, to come up with some very substantive reasons why--not just “I disagree”, but that they erred in terms of substance or lack of information, or they had some piece of information denied them that might have changed their decision-making process.

I am convinced, without the benefit of knowing what happened in that committee, that the subcommittee took its work seriously, examined all aspects of the two bills in question, and came up with a majority ruling that should be upheld by this committee.

I would also point out the obvious: that the subcommittee is comprised of members from all four political parties. So there really isn't an argument to be made that they were unduly influenced by one political party, one political view. Some members of that subcommittee represent parties that like replacement worker legislation, some don't like it, and some are divided. But representatives from each of the four political parties carefully considered the question and came up with a ruling.

Before anything else, we should take the view that we will respect the subcommittee's decision unless there is overwhelming evidence to suggest they did not have possession of information that could have changed their decision. I've yet to see any discussion at this table that suggests to me they did not have all of the information at their disposal. I believe they did. I believe they carefully considered both Bill C-257 and Bill C-415 and came to a decision that they thought was the correct one.

I also want to point out that from a procedural standpoint there is a reason why private members' bills are only allowed to be brought forward once in a session. I don't know how many years this replacement worker legislation has been brought forward, but I think similar bills have come forward before Parliament about eleven times. They have been voted against every time.

Several times, I'm sure, when the Liberal Party was in government, they would have considered replacement worker legislation that came before them, even in private members' legislation. I'm sure if we went back to the voting record of some of the members on this committee, we would find that they voted against replacement worker legislation. Everything being equal, they certainly have a perfect right to change their minds and vote in favour of a piece of legislation that they previously voted against.

The point is that private members' bills should only be brought forward once every session, and this is substantively the same bill, even though there are elements of it that are quite clearly different. The essential services portion of this private member's bill is different, but I believe it is substantively a similar bill, and only one bill of its kind can be discussed in one session.

However, Mr. Silva's recourse, as correctly pointed out by the chair, is that there is yet another option. That is to bring this for appeal to the entire Parliament, where that bill can be voted upon by secret ballot. I think we need to respect the procedures we currently have in place and the decision of the subcommittee, because they do not deny Mr. Silva the right to further pursue his quest to get this bill deemed votable. He can still take it.

Frankly, if the general will at that time is completely out of the hands of this committee and in the hands of all parliamentarians, it will almost be like having a vote on the original bill. I'm quite sure that if a majority of the House deems this bill to be votable, when the bill comes to an actual vote you will see the same results.

So I think Mr. Silva does have options before him, and therefore I do not think this committee needs to overrule a carefully considered decision by a subcommittee.

Thank you, Chair.

[The Chair, Conservative, Gary Goodyear]

Thank you.

Mr. Reid and Madam Redman, I'll give you seven minutes each, because it seems we're wrapping up.

Mr. Reid, please.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Thank you.

I hope my seven minutes doesn't include the exchange with Ms. Davies.

It seems to me there's a difference between what the Speaker was ruling on and what we're dealing with. As I mentioned before, he has a narrower basis in which to work and therefore a more serious sanction in which items are simply returned and are not even allowed to be put on the notice paper. We have the lesser sanction of taking away votability. The word “sanction” isn't really the best word; it's only what comes to my mind. The “remedy at our disposal” might be a better way of putting it.

The real difference and the reason, as we've been talking and reviewing these things, is that one deals with bills or motions, items as they're described in the order, that are substantial. The other one deals with items that concern questions that are substantially the same. I think you can see the difference. One deals with the subject matter, and the other one deals with the actual bill itself. Clearly, the subject matter is constructed more broadly, and substantial similarity is therefore more likely to occur.

I think it's what's going on here, particularly when you reread what the Speaker said in his ruling. It's about the bill itself as opposed to its subject matter, and it's about the similarity of the bill as opposed to the similarity of the subject matter. I think it's important to mention.

If you don't mind, I have to turn to defend the honour of those of us who were on the subcommittee from what I'm sure were inadvertent comments on Mr. Silva's part.

I can understand his frustration. He said he doesn't know why these meetings have to occur in secret. I actually looked at the Standing Orders after he made mention of this. There is actually no requirement for the meetings to occur in secret. It's one of those things that have always been done that way and may well deserve re-examination. But it's not done out of ill will on the part of any of the people who are involved in it.

I had an item brought, as many have been, before the relevance of committee... This was in the last Parliament, under the current rules. An item of my private member's business was specifically a motion to amend the Constitution. What happened with the motion is that they announced a series of things that could be made votable. On the list, the one thing that wasn't being made votable was my motion. They were bringing it back for further consideration.

So I took the option of going to the committee and actually sitting at the subcommittee meeting. That option was available. At the time, although I was very worried that my motion was about to be found non-votable because of some consideration that the subcommittee thought was important, it wasn't being done out of ill will or it wasn't a conspiracy against me; it was simply the way the committee worked. I actually came and appeared before the subcommittee. I'm not sure if anybody here was present. I think Mr. Robertson was present at the committee at that time. Of course, it all happened in camera, and I can't tell you what occurred.

But the point is that it's an option that was available then and is available now. It meets in camera simply because it always has done so, and it deals with all items in camera. I might add that it dealt with an item brought forward by the leader of the Liberal Party this time around, and it was also found to be non-votable. These things happen.

There are a number of options we have at our disposal. I very much took to heart Mr. Owen's observation in regard to natural justice and the importance of knowing the charges against your piece of legislation. He had a good point.

Because I am worried about losing the frankness that can occur in a discussion in camera, maybe we could consider starting these meetings in camera ,so that we could have a fuller review of what occurred at the in camera subcommittee meeting, and then go public. We can have meetings that go back and forth between in camera and public. We do it all the time. We recently had a meeting of a subcommittee on which a number of members of this committee serve, including Mr. Owen. We started off in camera, and we then discussed going public. We did so in the theory that we ought to be in public as much as possible.

Perhaps we could deal it that way. I suspect we would find at a full committee meeting that there would be no objection to taking what had been discussed in camera and having it made public, because we're not dealing with secret testimony, we're not dealing with people revealing documents that are confidential or that might cause embarrassment and so on, at least not in normal circumstances.

That might allow us to have the kind of fulsome discussion you can have in camera and then move into public session, as one possibility. That would allow, under the other option I'm suggesting, doing part of the full committee's meeting in camera. That would allow the person--in this case Mr. Silva, or whoever else has found their item designated non-votable--a chance to review all these matters. That could be done, if we wanted—maybe we should consider suggesting this—at a separate meeting that gives them time to go back and work on preparing an appropriate defence of their item, looking for the appropriate information precedents and so on that would allow them to move their item in a manner...to prepare a proper defence, because presumably that is very much the goal of this process.

I think on the whole the process itself was designed by all parties and I think it was intended to be fair. I've also been around long enough.... I remember in the 38th Parliament I also had an item that was automatically designated non-votable. I had to go before that committee and make an appeal. It really is a substantial improvement, so we're moving in the right direction.

I think there's goodwill on the part of all who are involved in the process. As I say, I'm sure Mr. Silva did not mean to suggest there's anything inappropriate. I think it's important that no one come out of today's meeting with the impression that something inappropriate has occurred.

That's what I wanted to say, Mr. Chairman. Thanks very much.

[The Chair, Conservative, Gary Goodyear]

Thank you, Mr. Reid.

The last name on my list is Madam Redman, please.

[Karen Redman, Liberal, Kitchener Centre, ON]

Thank you very much, Chair.

I think there have been some very valid, good points made, and then there have been lots of other points made. So I guess I would say that I am sure that with our good colleagues, this is all done in an air of collegiality. This is starting to feel like a filibuster to me, because I have to say we're deep into the weeds on the process, and whether we like or hate this process, I believe there is another time and place for it, and it's not this time.

I would respectfully ask that you call the question. I doubt that any of these learned arguments are changing anybody's opinion or vote around the table. Mr. Silva has made his best shot at a convincing argument, and I would ask that you now call the question.

[The Chair, Conservative, Gary Goodyear]

I have to agree with Madam Redman. We seem to be drifting off into a process talk, issues that should be discussed at another time and meeting. However, if I ask if we're going to call the question, I might get a lot of no votes.

Are there short comments to add to the discussion, Mr. Hill?

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

I don't know how short they will be until I get into my comments, Mr. Chair.

If you have a problem with your colleagues addressing this—

[The Chair, Conservative, Gary Goodyear]

Absolutely not.

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

I'd hate to think the chair was being arbitrary here.

[The Chair, Conservative, Gary Goodyear]

No, the chair is just trying to focus, which is fully the right of the chair, the discussion on the matter at hand.

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

I'm pleased you saw my hand go up, unlike my colleague Mr. Reid.

[The Chair, Conservative, Gary Goodyear]

It's getting blurry as we speak.

Mr. Hill, please.