Procedure and House Affairs Committee on March 21st, 2017

[Some hon. members]

Oh, oh!

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

—but am just making the point that it's a very long piece of legislation and deals with a wide variety of very disparate themes.

It is natural that the budget would touch on a broad range of themes, and I'm not yet ready to pronounce on whether it covers more themes than are appropriate for the budget or not. That's something I would have to make a more thorough study of than I've had a chance to do in the intervening time. Every budget that comes forward touches on many themes.

I notice that there is a subheading on Canada-U.S. relations; there's discussion of Canada's role in the world. If in the context of a budget you're talking about foreign affairs issues and Canada's role in the world, of course there's expenditure involved in foreign affairs, but I can only assume that when you're speaking of Canada's role in the world, the discussion is going to cover some basic philosophy as well as a discussion of expenditure items.

Very likely, this budget is an omnibus bill, at least insofar as omnibus bills are defined in the discussion paper.

I have to say that the definition of omnibus bill given in this discussion paper actually illustrates the problem with some of the discussion that is so critical of omnibus bills, in the absence of having a clear definition of what an omnibus bill is: it's actually very difficult to define what kind of bill you don't like.

I guess you could identify as such a bill that dealt with completely unrelated themes, with absolutely no plausible connection between the two or need for them to be connected. Omnibus bills are described in the discussion paper in this way:

The Government committed to end the improper use of omnibus legislation.

Even there, they're committed to end the “improper use” of omnibus legislation. Presumably they will replace it with the proper use of omnibus legislation, and it's not at all clear what in their mind the difference is.

They say:

Omnibus bills can be defined as a bill that contains separate and unrelated themes packaged into one bill. Members are then forced to vote for or against a bill that could have elements that Members would support or oppose.

Let's be clear. Members are required all the time to vote for or against bills that have elements they support and oppose. Even very short bills contain elements you might agree with and disagree with as well. That's very common.

For example, there was a bill before the House recently. I can't remember the number of it, but it was a bill that dealt in some clauses with the opioid crisis that we face. It also made some specific changes to the community consultation provisions, and we took real issue with those changes. This was an issue for us as a caucus. We said there were many provisions in this bill around the importation of pill presses, around the opening of certain kinds of packages that are being imported, and around the enhancing of the inspection process that we agreed with, but then there was one provision that we didn't agree with. We proposed to split that bill, and the government refused to allow us to split it, even though it was emphatic about the urgency of moving this bill forward. We agreed to actually expedite both halves of the bill if they were split, and yet the government was still unwilling to accept that.

Was that an omnibus bill? It some sense it was, in that dealt with separate and unrelated themes. It dealt with the importation of drug paraphernalia, and then it also dealt with issues of community consultation around supervised consumption sites. In a certain sense we're talking about different themes, but in a certain sense of course we're not talking about different themes, because both of those deal with prospective responses to the opioid crisis that we face.

Was that bill an omnibus bill? Actually, it was in the public interest for that bill to be split. It did create a situation in which members were forced, to quote from the discussion paper, to “vote for or against a bill that could have elements that Members would support or oppose”. That's all well and good, but then how do you make the determination about what is and is not an omnibus bill? I know that the previous government attracted a great deal of criticism for what some regarded as the inappropriate use of omnibus legislation. The proposals that the previous government made and passed in our budgets were not at all dissimilar to the proposals advanced by this government in each of its budgets.

Any budget includes a broad range of different changes to taxation, to regulatory environments, and to expenditure in the name of advancing the government's economic objectives. Of course, every budget has a common theme. The common theme of the budget is the fiscal and economic plan of the government. That is a common theme. That's a theme that has a relationship to all sorts of other themes. It's not a theme that can exist in isolation from the other things that governments do, but it certainly is a theme. Yes, when a government proposes a budget or a budget implementation act, there are a lot of different things in there that would generally be around a common theme.

I think it's fair to say that in some people's minds, there is a lot of difference between the improper combination of things of a similar theme and the proper combination of things of a similar theme, but it's not easy to actually put your finger on the distinguishing feature of improper versus proper omnibus legislation. Perhaps if the amendment is supported and we proceed to a study, we'll get some further clarity around what the proper and improper are meant to be in that context. You've got to have a bit of a sense of what you're talking about, especially if the discussion paper envisions that this is a judgment call that would have to be made by the Speaker.

We can expect the Speaker to make decisions that reflect what is dictated in the context of a standing order on the basis of precedent. However, in the absence of any clear precedent for making some kind of a formal distinction between the proper and the improper use of omnibus legislation, I think you would be putting the Speaker in a particularly difficult position unless this committee could arrive at a clear definition of what was and was not acceptable omnibus legislation.

Perhaps some people might say it's all in the length, and that was some of the criticism of some of the previous government's legislation. It was just too long. However, if you're trying to roll out a comprehensive economic plan, it could well be that it would all be thematically related to the same thing and would indeed, in that context, still be quite long.

It's not at all clear to me where this intends to go, but I'll tell you what I suspect it's planning to do. The government made a lot of commitments in opposition about institutional changes they would wish to make. Sometimes opposition parties make commitments about changes to institutions that they don't actually want to implement. We've seen that, certainly on the electoral reform issue and on others as well.

When it comes to omnibus legislation, they have used omnibus legislation. They want to continue to use omnibus legislation. In this day and age, given the complexity of governments, it's hard to imagine not having a budget that dealt with a certain diversity of themes, but in the context of an overarching theme. However, they want to be able to cling to this distinction between proper and improper use of omnibus legislation, just as they want to distinguish between proper and improper deficits and proper and improper uses of time allocation. Really, what they're applying is not an objective filter at all about what constitutes the proper or the improper. Actually, what they are applying is a wholly partisan filter. We get the sense that when it says the government is committed to ending ”the improper use of omnibus legislation”, they're just speaking about trying to establish a distinction between what they do and what the previous government did, which is a difference of party but not a clear difference at all in terms of the substance of what is involved there.

This then puts the Speaker, the neutral officer of the House, in a particularly difficult situation, in that he or she has to adjudicate on the balance of properness or not, when it's something that can't even be clearly defined by the government. How is it fair for them to expect a neutral person who is acting on behalf of the institution to be able to make a fine, defined distinction, when it's not clear at all that they even have a real sense or grasp on what that distinction is?

The next section, theme 3 in the discussion paper, is management of committees. I have to just shake my head a bit at the title of this section. As I go through this discussion paper from the government House leader, there is what the discussion paper says directly in terms of the arguments it makes and the issues one can and should raise about those, but there is also the tone, the language through which things are expressed, that really sets off the kind of perspective that's being brought to it and why we need to have consensus at this committee. I would prefer, frankly, that we have this committee generate the ideas and the path forward, rather than having the framing of the debate coming immediately from the government House leader.

We get phrases like “management of committees”. That's something that someone in a leader's office would say: “Okay, we have to manage the committees.” Those of us here on a committee would say that we have to consider the “governance” of the committee, the committee as a self-governing entity, not as a group of potentially stray children who have to be managed, but as a vital organ of our democracy that has to consider the way in which it's governed.

Some of these turns of phrase are disappointing. However, in a way, they're useful because of how revealing they are and how they hopefully will draw the attention of all members, government members as well as opposition members, to the need to pass an amendment that allows us to proceed with a discussion that is framed in a fundamentally different way, and that we need to start that discussion on a bit of a different foot.

Nonetheless, on “Theme 3: Management of Committees”, as it's called, there are a few other turns of phrase here that I think should jump out at members in terms of illustrating the problems with the tone taken by the government House leader, and therefore why protecting the input of the opposition through this amendment is so vital. It reads, “Members who are focused on substantive issues are less [likely] to resort to tactics.”

Let's be clear. What we had is the introduction of a discussion paper, so-called, with all these problems with it, during a break week, and then a refusal to support an amendment that would establish the conditions in which the government would seek to unilaterally impose dramatic changes to the way in which our parliamentary institutions operate. If you want to talk about resorting to tactics, that's certainly resorting to tactics, although it's still a rather strange and awkward turn of phrase.

The discussion paper continues, “As a result, the House could examine ways to make committees more inclusive as well as ways to ensure that obstructionist tactics do not crowd out the substantive work of committees.” This is, I think, setting up a justification for limiting such things as members talking at length about particular issues. Really, what is envisioned here are changes that would still leave in place the ability of the government to resort to tactics. In fact, that's what they're doing, through their motion, discussion paper, and refusal to support our amendment. It would simply eliminate the ability of the opposition to have tools to use in response.

What we have right now is a certain kind of equilibrium that is shaped by the Standing Orders. This means that the government has certain tools available to them. The opposition has certain tools available to them. We calibrate our use of these tools in response to certain circumstances, to certain situations. We use them in response to what's in front of us. We use them more or less. If we're wise, we use them sparingly, only to draw attention to very particular concerns we have that are indeed things we think have resonance with the wider public.

We have every incentive, as elected officials, to use the tactics available to us in a way that is wise, that is judicious, and that is measured. Instead, through the process they have set up, in the context of what's happening in this committee, the government is establishing the circumstances in which the opposition would not be able to use tactics, even while the government would be able to use tactics.

The language specifically refers to “obstructionist tactics do not crowd out the substantive work of committees.” It doesn't refer to the alternative set of tactics, which is dropping a motion on a Friday. Having a timeline, at this point, so that if the amendment passes and we were to go forward, even if it still limits the amount of time that could be used for debate, is not an obstructionist tactic. That's the inverse of the government tactic to try to inappropriately push something through that would merit a greater length and depth of conversation.

I think I've already objected to the title “Management of Committees”. I think a better title would be “Governance of Committees”, but a more accurate title, a more descriptive title of the content here, would be “Management of the Opposition in Committees”, or “Management of the Opposition's Desire to Represent Their Constituents”. It is important that we be able to use tactics to challenge the government and to challenge the ways in which they do things that are injurious to the interests of our constituency.

Now there is a proposal that I think one can probably see the value of in principle but some problems with in practice, and then immediately after see that it is actually about setting up the justification for something else the government wants to do that I have a real problem with. This theme 3 that we're dealing with talks about creating the space for “one independent Member [to be] an ex officio member of committees with all privileges except for the ability to vote, or to constitute quorum.”

I'm quoting, of course, and the quote continues, “This would allow independent Members to participate in in camera proceedings, question witnesses, and travel with committees.”

Now, on a few issues here, yes, there might be a need for provisions that would allow for greater opportunities for questioning and for travel, although I believe it should be the practice that we allow elected members to attend in camera meetings of committees. That hasn't always happened, and in the case of one particular bill early on in this Parliament that didn't happen, and I was very concerned about that. Generally speaking, it should already be the case that any member of Parliament who wants to sit in on the proceedings of the committee, whether they are public or in camera, should be able to do that, provided, of course, they respect the provisions that we know are associated with being in camera and the use of documents that are produced in camera. I think all members know about that and have an understanding of what's expected of them in that context, and if they're not a member of a particular committee, they may be a member of another committee.

The issue of in camera proceedings, I think, wouldn't necessarily be a dramatic change. I do want to ask a couple of questions, though, about this question of the involvement of independent members on committees with some of these privileges. I guess the question would be this: who gets to determine which independent members are on the committee? Who gets to determine which independents get to sit or be part of which committees?

The other question is that if the process would allow independent members of Parliament to choose which committee they wanted to affiliate themselves with, then it would actually have an effect of giving independent members of Parliament powers that members of Parliament who are members of political parties don't have because, as I'm sure government members know, typically the process is that they don't choose which committees they are on. It is the whip and their office who assigns them to committees. It's possible that some of the members who are here today didn't choose to be on the procedure and House affairs committee. I'm sure that's unlikely, but it's possible, yet, what is envisioned by the process that is imagined by the House Leader here is that the decision about who goes to which committee would be something that the independent member could choose.

It's not stated, but I think it's implied. They could say they wanted to be on the finance committee or they wanted to be on the foreign affairs committee. Then I guess we would end up with one of two problems. One, it would be at the government's discretion which independents ended up on which committees. I don't think you would want that, but the alternative would be to give independent members of Parliament in a sense a greater level of influence than members who are members of parties, because of the issue of committee selection.

There would be ways to address this. I think it would be interesting to imagine a committee system in which, independent of parties, members could signal their interest in being on particular committees. Then that allocation could be done in a more independent way. You could imagine that as being a possible alternative that would both engage independent members of Parliament in the process and at the same time ensure a certain equality of those who were members of parties and those who were not members of parties.

This is a concern I had around the government's legislation, Bill C-22, but it applies in this case as well. Bill C-22 says that for the security intelligence committee—I'm not getting the name exactly right, but it's the intelligence review committee—the Prime Minister appoints a certain number of members, only a certain number of whom can be members of the government caucus. That, though, creates an issue in which you could have independents who, for whatever reason, left the government caucus, but then they are, in a sense, quasi-members of the government caucus. They are being used by the government, because the rules provide for only a certain number of government members to be on a committee, yet the government could appoint someone as a non-member of the government who is effectively acting as a member of the government in that context.

We have the case of at least one former member of the government caucus who votes very frequently with the government. The government could recognize, in the context of having an independent who's outside of their caucus, that they can actually use that person to do things that government members can't do, such as be an additional person on a committee. If we were to see a government use those kinds of tactics, I think that would be a concern. I think that would be a misuse of process and of what it is to be an independent.

Right now, of course, there aren't many advantages to being an independent. Primarily, in the way our system is constructed, it's principally a matter of disadvantages associated with being an independent. There are potential concerns that are created, both by the framework established by Bill C-22 and by some of the language that's used here, that illustrate the need for that broader discussion. The opposition needs an opportunity to raise, to pronounce on, and in the context of the unanimity provisions to be involved in a discussion about some potential concerns that the government may not have thought of around some of these questions that may be more technical in nature. They may just be matters of not necessarily foreseeing something.

Why not build into the process a more ground-up, consensus-based approach to decision-making than the one that has been set up by the motion in the absence of the amendment?

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Perhaps I could ask for a point of order, Mr. Chair, while we have a minute, and let my friend Garnett take a drink.

Maybe we could give a quick shout-out to our translation crew for doing a great job tonight.

Thank you for everything you're doing and for putting up with us. Keep up the good work.

[The Chair, Liberal, Larry Bagnell]

I will add our clerks and our researchers.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Our clerks, yes, and multimedia—all the staff here. Well done, everyone. Thanks for hanging in there.

[Some hon. members]

Hear, hear!

[David Graham, Liberal, Laurentides—Labelle, QC]

Thank you to all our sponsors.

[Blake Richards, Conservative, Banff—Airdrie, AB]

While we're thanking people, our chair has a really difficult job. He's the one who's had a gun strapped to his chair the whole time and is in a really difficult position here.

[Some hon. members]

Hear, hear!

[Blake Richards, Conservative, Banff—Airdrie, AB]

I'd be okay if you want to suspend for a little while, as long as you need, Mr. Chair.

[The Chair, Liberal, Larry Bagnell]

It's okay.

Go ahead, Mr. Genuis.

[Blake Richards, Conservative, Banff—Airdrie, AB]

Since we're in the spirit of co-operation, I'd like to try one more time.

I think it's critically important that Canadians have an opportunity to know what's going on, what's being debated here, and get a chance to see it for themselves. It's really good stuff, obviously.

Liberal members might reconsider. This is about accountability. It's a perfect opportunity for them to show they're listening to others, and they may even be convinced and offer the accountability we're asking for. This would be a great opportunity for all members if you could ask again for unanimous consent to see this meeting televised.

[David Christopherson, NDP, Hamilton Centre, ON]

Agreed.

[An hon. member]

It sounds like unanimous consent.

[An hon. member]

I didn't see anyone disagreeing.

[The Chair, Liberal, Larry Bagnell]

There was Mr. Graham.

[Blake Richards, Conservative, Banff—Airdrie, AB]

It's Mr. Graham, so Liberals are again refusing this. It's unfortunate, but we'll keep trying. We've tried three or four times now, Mr. Chair.

[The Chair, Liberal, Larry Bagnell]

Mr. Genuis, you're on.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Can we have unanimous consent to suspend for 15 minutes while the chair and staff take a quick breather?

[The Chair, Liberal, Larry Bagnell]

Okay, we'll have a health break. It's for 10 minutes only, though.

[The Chair, Liberal, Larry Bagnell]

I call the meeting back to order.

Mr. Genuis can continue on his short speech.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Thank you, Mr. Chair.

I don't want to put anyone on the spot, but if there's someone in the room—I won't say who—with a particular knowledge of this area, and they want to take the opportunity to make a few comments to the committee, I would be willing to propose a unanimous consent motion to allow that person to make a few remarks to the committee.

I won't put them on the spot if they would rather not, either, so I will just put that out there as an option. It might be interesting to hear some comments on some of the thinking behind this discussion paper.

[The Chair, Liberal, Larry Bagnell]

Does the committee give unanimous consent to have an interested person...?

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

We can do anything we want with unanimous consent.

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons]

Wouldn't it be better for me to come as a witness?