Procedure and House Affairs Committee on March 21st, 2017

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

It's a good point.

[Luc Berthold, Conservative, Mégantic—L'Érable, QC]

I look forward to hearing how Mr. Genuis responds to Mr. Simms.

I would nevertheless encourage you once again to have faith in yourselves.

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

Let's vote.

[Luc Berthold, Conservative, Mégantic—L'Érable, QC]

Thank you.

[The Chair, Liberal, Larry Bagnell]

Thank you, Mr. Berthold.

Mr. Genuis.

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

Thank you, Mr. Chair.

I completely agree with my colleague Mr. Berthold. We can indeed debate a good many topics. Some people might even change their opinion on certain topics. We cannot continue this study, however, without being sure that our opinions will be included in it.

With that, I'll return to the language in which I am more comfortable.

[Some hon. members]

Hear, hear!

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

I probably will have to cancel French lessons tomorrow as a result of this.

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

You've earned it.

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

You can tell my French teacher I at least have been practising.

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

She just called. She's proud.

[Luc Berthold, Conservative, Mégantic—L'Érable, QC]

You should be proud.

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

I will respond directly to the points that Mr. Simms made, but first I want to set the stage on that point by making the underlying philosophical argument I wanted to make with respect to programming. This was an argument made explicitly by Ms. O'Malley in the podcast. She made a point that made me develop, I think, what may or may not be her thinking on the same point.

I have a broader concern about programming, even then about the potential strategic implications vis-à-vis government and opposition. That's a concern, but that's not the only concern.

Ms. O'Malley pointed out in this podcast I was listening to that programming doesn't just limit the opposition, but it limits the government, obviously. In advance you say there are a certain number of days that we're going to spend debating this, and then studying it, and then debating it again, and then we have a vote. That's limiting for everybody. That's limiting for the institution. It limits flexibility. It limits the ability to respond to new information and new events that come forward.

I think the idea of programming fundamentally misunderstands what we're supposed to be doing when we study and debate a bill. I think it's most evident in a situation that Mr. Simms described. He described a situation in which a person had prepared a certain set of arguments, and they brought those arguments in and were frustrated by the fact that the argument was cut off midway through. They hadn't been able to make all the arguments they were going to make. Okay, fair enough.

Actually, the point of a debate or a discussion isn't that we all come in with our arguments, deliver them, and then move on. The point of a discussion or a debate is where, yes, both sides perhaps begin with certain propositions that they want to put on the record, that they want to put forward for the discussion, and then each side responds to each other's propositions, and then there is counter-response back and forth.

Eventually there is a resolution of certain points, agreement, perhaps just a recognition that the differences actually relate to more fundamental philosophical differences that are not reconcilable. In that process, perhaps evidence is presented in support of one set of arguments, which is then countered by another side's arguments. This process unfolds as arguments, as evidence, perhaps personal experience are all related and compared against each other and used in support of different arguments.

Either way that process, if done properly, is necessarily unpredictable because unless I know exactly the arguments that people on the other side of the question are going to bring forward, and I know exactly how I'm going to respond, and I know exactly how they are going to respond, that's the only way you could possibly predict exactly how long it's going to take.

That is true of even a simple question that one might debate. It's that much more true in discussion about legislation. Very often it happens that legislation is brought forward. It may be that the government sees the legislation as a simple matter of housekeeping, but the opposition has some fundamental objections to it, and then the discussion proceeds in a different direction than was initially anticipated. Maybe the government frames the introduction of the bill in a way that the opposition didn't expect, with new original arguments that the opposition has to then respond to. This is only in the process of debate as it happens in the House of Commons, which is the unpredictable process ideally of refutation and counter-refutation.

Unfortunately, sometimes that doesn't happen. Unfortunately, debate in the House of Commons looks more like people reading speeches and ships passing in the night, but that's not what it's supposed to be. What it's supposed to be is constructive refutation back and forth about substantive questions.

If you're doing it right, you can't predict where that debate is going to go. You can estimate, but you have to have the flexibility to say that, if, for example, Mr. Berthold brought forward a point in debate on that issue, more government speakers are needed to respond to that point because that wasn't a point that we knew would come up, or a new study has been released that says something different and we have to now evaluate and discuss that. This is particularly true in the context of committees, where committees hear from expert witnesses who may say things that are a complete surprise to members of Parliament.

Sometimes, we may find ourselves here in a little bit of a bubble. We have conversations with a certain set of people, a certain set of stakeholders. The legislation has a path. It goes to committee. All of a sudden we hear from someone from industry who says, “Hey, this bill you thought was just a slam dunk matter of housekeeping actually creates some problems for our industry.”

When I was a political staffer, I was a parliamentary secretary's assistant when Tony Clement was the minister. I was working with Mike Lake, who was the parliamentary secretary at the time. We were working on anti-spam legislation. Nobody is pro-spam, except perhaps the meat, but nobody is pro-spam in terms of the kind that you get in your email inbox. It is something that I think we as members of Parliament know quite a bit about.

When we had this issue come up at committee though, there were people who came forward and said that the way in which we were defining spam for the purposes of this legislation raised some questions about people who are engaged in certain kinds of marketing, even people who may have been given a referral. It could be that someone may just be reaching out to an individual on the basis of a referral, but this legislation would catch them in the net of spam, when really, I think what the legislation most intended to target were those who are sending emails out to hundreds of thousands of people, perhaps with a malicious intent, such as spyware, phishing, and these kinds of things.

That's just an example of something where, if you had programming in that case, you might have had the government say, “Okay, this is really simple. We're going to have two committee meetings. We're going to have one day at report stage and one day at third reading. It's just going to sail through.” Perhaps opposition parties would have agreed. They would have said, “Well, of course, it's a simple matter.”

Then, all of a sudden, you end up at committee, and you have witnesses who say, “You know what? Agree or disagree, it's actually not that simple.” Then you think, “Well, okay, what do we do here? We've had one meeting, and two meetings have been allotted. We would like to be able to call more witnesses who can clarify whether the concern raised by this particular industry group is representative of the entire industry. Are they correct? Are there things we can clarify in this legislation? We need more meetings.”

It's not just a matter in that case of the government using this against the opposition, although that's a definite concern. It's a matter of the institution in that case having potentially imposed limitations upon itself which prevent the effective deliberation of that legislation.

What do you do in that case? Either you just push it through or you push it through on the basis of limited information. You try to make some kind of amendments or perhaps you defeat the bill and force the government to reintroduce it and program it differently. That's not very productive. That's not a good use of the House's time.

There has to be a recognition in the way we structure the House, that of course we want to have discussions about how much time is spent discussing particular matters and that there are certain issues that may be more time-sensitive than others.

The amount of time that is required for debate in the House, as well as for study, is going to vary and change throughout the process in response to the kinds of arguments that you're having. You don't necessarily know how long it's going to take you to resolve a conversation, especially about something as complex as a bill, before that process is actually complete.

This is, I think, a point that members need to think about with respect to programming. Again, it's not just about government versus opposition; it's about whether the institution has the breathing room to do the kind of work that Canadians expect us to do, which is to conduct detailed studies of legislation.

That was the underlying point I wanted to make at this juncture on the issue of programming, but to respond more specifically to Mr. Simms' points, I always think we need to be careful about comparisons between the British system and the Canadian system. We have countries, societies, and political institutions that, on their face, are very similar. However, there are very dramatic differences in political culture that inform the way those institutions behave in practice and the way people within those institutions behave in practice.

This hit home for me in a particular way when I was a master's student in the U.K. This was right after the coalition between David Cameron and Nick Clegg was created. It was interesting that here we had minority governments that did not automatically seek coalitions. It was presumed they would work with opposition parties on a case-by-case basis. The presumption on the other side of the pond, so to speak, was that immediately there would be a movement toward a coalition. You might say this is a way in which British political culture has been influenced by observing debates and political configurations in continental Europe, where there is a prevalence of PR systems and more use of coalitions, so coalitions were seen as more of the normal thing in light of the experience of proximate countries.

One of the biggest differences—and this reflects a lot of different aspects of their system—is the greater presumption of members of Parliament acting independently from their party or their leader. In our system, for a long time we have had political parties as mass membership movements that elect leaders. That leader then has to have a relationship with the parliamentary caucus. That leader may not have been the choice of the parliamentary caucus. I will resist the temptation to talk about some examples closer to home in that respect and what's happening.

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

Even I'll resist it.

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

We might hope that the new leader is the one who is also the choice of the parliamentary caucus.

The point here is, this is a big difference in terms of our political culture because you have that leader who connects with the caucus. Of course, they have to work with the caucus, and the caucus can hold them accountable, and there's an interplay there. The leader is a reflection of the will of the membership of the party; whereas, in the British system, there is a different culture around this.

The British Conservative Party had just moved to a system where the caucus.... This was an innovation. Before, it was the caucus who selected the leader, but the system they moved to, through which the current Prime Minister May was selected, was the caucus kind of winnowing the field down to two people, and then those people.... There would be a vote among party members on who that person would be. It happened in this case, after all that, that the prospective opponent in that runoff race to Prime Minister May actually dropped out. It was effectively the caucus again continuing with this tradition that made Theresa May the prime minister.

That creates a huge difference in terms of the dynamic that exists between members of Parliament and the leadership, and that informs every aspect of our institutions. It's something that we debated here in terms of the Reform Act, 2014, in the last Parliament, whether or not we should put in place rules that formalize the convention in Canada, which have been used in Australia and the U.K., of having the leader potentially be removed by the caucus. That is something that would be new as a convention in our system. Certainly, I don't think there's anybody involved in active politics who is proposing that caucuses should choose the leaders. I think many individual members of all of our parties would be concerned about that idea because we have that idea of member engagement.

When we talk about the way in which our system functions, we have to take that on board and we have to realize that the importance of strengthening members of Parliament is perhaps a more difficult task in the context of our system, recognizing that difference. Maybe in the British system you can say party leaders can have these conversations because they necessarily have to reflect the will of their caucuses. In our system, I think we need to be much more concerned about the impact that programming could have in an environment where our leaders are selected quite differently. There are many other differences.

I talked earlier in my remarks about the way in which nomination contests happen in the British system. It's very different from the way they happen in our system. In our system it's reflective of the geography. In the British system it would be fairly common for a person seeking public office to interview in a number of different constituencies before being selected in one. That doesn't work as well in our system because our constituencies are so far apart. There's a greater emphasis on the immediate local experience that members of Parliament bring from their ridings because of how far apart and therefore how different our ridings are from each other.

It is not enough to say that we can push this through quickly without requiring unanimity and all these things, that we can just move it on through because it's the way it happens in the British Parliament. The British experience is different. It reflects different realities and different aspects of the way in which those institutions operate, even institutions that appear to be relatively similar.

I will say this as well to Mr. Simms' point, that we already have the ability for what he talked about to happen at an informal level. I mentioned some potential concerns about that, but at an informal level, of course, House leaders can get together and say they're going to work with their caucus, and hopefully there's agreement to allocate a certain number of days informally for discussion of certain bills.

When folks are getting along, that happens. We say, “Okay, we're going to let this bill collapse at the end of the day, and we're going to let it go to a vote because that's what we agreed here. We need more days on this bill, fewer days on that bill”, and so on. Of course, that can happen now. If you want to call that programming, then it's programming, I guess, but it isn't the kind of programming that's envisioned by the discussion paper—again, a discussion paper that the government wants to be able to implement changes from entirely unilaterally.

I think the informal process in place can work and should work. It gives the opposition options to go nuclear and not co-operate. It gives the government an ability to go nuclear by bringing in time allocation. But because of the risks associated with either of those options—the political risks, the risks of public criticism—we have an incentive to try to co-operate as much as possible, and if we are not co-operating, to make sure that it's the other side that's looking unreasonable, and not we. That's the incentive that we have in place. I'm not saying that changes couldn't be discussed and perhaps made, with a consensus, but broadly speaking the system works. There is an ability for both sides to ratchet up the pressure, but there are disincentives for doing so and there is an incentive for people to co-operate.

Finally, I'll say this with respect to Mr. Simms' points. Of course, we can say that there are changes we should consider. I welcome the opportunity to hear from witnesses, to maybe have here some of the people who are acquainted with the British experience, and to pose some of the questions that I've posed. However, their political culture is different because of the way they select leaders, the way the nominations happen, the expectations around members of Parliament, and the number of members of Parliament. That actually makes a substantial difference. When you have about twice as many members of Parliament, that changes the opportunities that exist for members of Parliament to be a little more independent. There is also the existence of other kinds of committees, committees of backbenchers that hold the front bench of their parties accountable in a particular way.

There are differences, but I'd love to be able to proceed with this study and have the opportunity to pose those questions to people from the British system who were involved in the front bench—in government, in opposition, or perhaps both, at different times in their career—and to talk to people whose politics have been more characterized by activity on the backbench, and who perhaps found themselves seeing things differently from their front bench.

During the coalition time in the U.K., this was a particularly interesting dynamic. I think some people in the Conservative Party suspected that David Cameron really liked the coalition with the Liberal Democrats because it allowed him to govern in the way that he kind of wanted to govern anyway. There were Conservative backbenchers who were quite unhappy with some of the decisions that the coalition made, and this was part of that ongoing dynamic. During the Tony Blair government, we had the Iraq war, which of course was very controversial within British society broadly speaking but in particular within the Labour Party.

They had these dynamics, and we could hear about them in committee, if we proceeded to those studies. We could hear from people involved in all those different debates back and forth, and ask them how the different aspects of their standing orders inform the way in which those front bench-backbench debates happen. How did they use the standing orders to their advantage? How were the standing orders used against them to their disadvantage? Those are all things that we could hear and that I would be very interested in hearing. I think all of us would.

We can have that discussion, as long as we agree on some ground rules that say all parties will be involved in a decisive way, not just involved in the committee hearings, but actually involved in the decision.

It is right and sensible. It's not just one party—the entire opposition is united in saying that we will not go forward unless we can agree on those basic ground rules of the discussion. Then absolutely we can have a discussion. We can proceed and explore these issues in a deeper way, and we should. Nobody here is saying that the Standing Orders—

[The Chair, Liberal, Larry Bagnell]

Alistair MacGregor.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Mr. Chair, I was listening with interest to what Mr. Genuis was saying, and I think the key part of his speech centres on the word “rules”. It's very important for all members of this committee, and indeed all parliamentarians, to sometimes take what was done in our past, in our history, and use it as a guide and a road map. What I want to do is draw this committee's attention to what has been said about the rules. Mr. Genuis might be particularly interested in this.

Back on March 21, 1957, Stanley Howard Knowles gave an address to the Empire Club. Of course, Mr. Knowles was very well known, but he was introduced at the time before he delivered his speech as “one of the colourful figures whose skill in opposition is of inestimable value to the parliamentary life of this country.... As Chief Whip of CCF since 1944, he enjoys a length and breadth of parliamentary experience seldom equalled, and as he has always been in opposition to the government of the day, he is rarely qualified to talk to us on 'The Role of the Opposition in Parliament'."

Mr. Chair, I just want to fast-forward to a part of his speech that has a particular significance here, which is as follows:

It must be recognized that it is the opposition's right, indeed it is its duty, whenever it feels strongly about any matter of public policy, whether it be something the government is proposing or concern over something the government is failing to propose, to criticize and attack the government for all it is worth. It should be recognized that it is the opposition's right to keep parliament in session months on end, if in doing what its members believe to be their duty it chooses to do so.

He goes on to say:

It is the opposition's right to insist at all times on the full protection of the rules of debate. The government is entitled to that same protection, but in addition it has its majority with which to establish its will. The opposition has only the rules for its protection, hence the authorities on parliamentary procedure emphasize the greater importance to the opposition of the only protection it has, the protection of the rules. Only by according such rights to the opposition is it possible to achieve anything even approaching equality of strength between the two sides, and I suggest that unless we approach equality of strength--there cannot be absolute equality for in the end the majority must prevail, hence I say unless we approach equality of strength--between those who support and those who oppose the government of the day, there will not be that cut and thrust, that "attack, defence and counter-attack" which, as Sir Lyman Duff put it, are "the breath of life" of our parliamentary institutions.

Mr. Chair, no wiser words have been spoken. He emphasized exactly how important these rules are, and our Liberal colleagues need to understand this is why we're going to the wall on this. There is no retreat on this side of the House, and the exit ramps are all on the government side. They have to decide if this committee is going to be stuck in the mud for the foreseeable future—the Standing Committee on Procedure and House Affairs, arguably one of the most important committees our Parliament has.

We're backed into a corner. We must fight for these rules. We fight not only for ourselves, but we fight also for government members who may one day be in opposition.

Mr. Chair, I just want to bring my honourable colleague's attention to those particular comments. In light of where he was going in his discussion about the rules, he can use history as a great road map going forward.

Thank you.

[The Chair, Liberal, Larry Bagnell]

Thank you, Mr. MacGregor, for that new piece of information. Even after 544 hours, you brought in something new, so that's great. It was very interesting.

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

Is that a precise account of hours thus far?

[The Chair, Liberal, Larry Bagnell]

Yes.

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

Okay.

[The Chair, Liberal, Larry Bagnell]

That was up to when we started today at 4:30.

Using the Simms procedure, we get nice interventions like that.

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

I'm very flexible.

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

It may well be, Mr. Chair, that we are approaching one of the longest filibusters in this country's history, if we've not already surpassed that mark. I can think of no principle more important than preserving our institutions in terms of the responsible government dimension that is so critical to them. What better cause for a parliamentary filibuster than Parliament itself?

Now, at the same time, my NDP colleague referred to us being “stuck in the mud”. It's not all bad. I mean, they get the benefit of hearing my reflections on things, right?

[Voices]

Oh, oh!