Evidence of meeting #55 for Procedure and House Affairs in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was opposition.
A video is available from Parliament.
12:55 p.m.
Some hon. members
Agreed.
12:55 p.m.
Liberal
12:55 p.m.
Liberal
12:55 p.m.
Conservative
12:55 p.m.
Liberal
The Chair Liberal Larry Bagnell
Okay. That's agreed.
We'll try again [Inaudible—Editor] Mr. Kmiec for his—
12:55 p.m.
Liberal
The Chair Liberal Larry Bagnell
—continuation of his exciting speech on the amendment to Mr. Simms' motion.
12:55 p.m.
Conservative
Tom Kmiec Conservative Calgary Shepard, AB
Because we have Mr. Housefather here and he knows of my great love for Yiddish proverbs, I have this: “Before you utter a word you are the master. After words you are a fool.”
I hope I haven't been a fool so far and that I have made a substantive contribution to the debate with the research I have used to demonstrate that we do have an opportunity to find common ground and to have the amendment to the motion pass. It's based on a substantive reasoning that we should do it where we unanimously agree on changes to the Standing Orders as they may come.
Now what I want to do is refer to an article that deals with time allocation in the House of Commons, “Silencing Parliamentary Democracy or Effective Time Management? Time Allocation in the House of Commons”, which I think is to the point of efficiency that's in the government's “Reforming the Standing Orders of the House of Commons” document. Efficiency keeps being brought up in this document as the reason for the motion Mr. Simms tabled and the amendment that was thereafter moved.
This article is written by Yves Yvon J. Pelletier, who was a parliamentary intern from 1999 to 2000. It's based on his research essay, which was awarded the Alf Hales prize as the best paper submitted by the 1999-2000 interns. I have gone through this article, and I made a few notes to myself, because it deals substantively with what we are dealing with here today, which is the role of members of Parliament and the Standing Orders of the House and how they enable us to have the rights and privileges we enjoy to do the work of parliamentarians.
Our privileges as members don't come from the Standing Orders. The Standing Orders don't grant us those privileges. We have those from our traditions and our customs. Some of them are written into statute, and some of them simply are practice. As I mentioned before, we come to learn about them mostly from the more experienced members of Parliament, who tell us about decorum in the House, whether or not we can wear ties in the House, and when we can be recognized to speak by the Speaker or the person in the Speaker's chair.
In this article, he mentions that the changes to the Standing Orders of the House of Commons have limited the opportunities of private members to influence the final wording of government bills. This has happened over time. Successive parliamentary procedural changes have made it a priority of the government and of the majority of the members. They have limited the ability of private members to influence the final wording of government bills. That has given the government some certainty about what the final product will look like once it goes to the Senate.
There has always been a need to balance the right to speak for an appropriate length of time and Parliament's right to reach decisions. It's Parliament's right to reach a decision, not the government's right to reach a decision. Government should have no expectation that there is an end date to the debate. Only once each member has spoken in the House, if he or she chooses to speak on a particular amendment or subamendment or piece of legislation, could we then say that Parliament has reached a point of making a decision. We know this. The Speaker rises, goes through the yeas and nays, and then we have the request: is it on division?
Maybe I'll segue just for a moment. “On division”, the two most beautiful words in parliamentary procedure, which we should use much more often than we do right now, are when we stand by for a recorded vote. On division at committee is the reason we're able to process amendments so much faster than we would if we had recorded votes for everything. On division is the reason we are able to go through a witness list at committee so much faster than if we went through a recorded vote. You could request a recorded vote on all those things and grind a committee to a halt. Sometimes the opposition may do that, if none of their witnesses have been accepted, in which case there is a valid reason to obstruct a committee solely to prove a point that you should compromise, co-operate, and at least show good faith toward the other political caucus at the table to reach a compromise and move forward.
You can build trust over time, or you might find situations where persons at the table are willing to forgo a particular witness or an amendment or whatever reason they have found for obstructing. “On division” are the two most beautiful words in parliamentary language.
I'll mention, too, as part of this segue, Bill S-201, the anti-discrimination bill. I was mentioning this to Mr. Graham. When the votes happen, we all get to count the votes and see who voted how, and it's part of the pageantry of the House. After having lost two votes, the executive members—the executive council, the cabinet ministers—rose to request a recorded vote after it was plainly evident that they had lost the voice vote. I was scratching my head the first time they did it, because I didn't quite understand the political reasoning for doing it. When they did it a second time, I thought to myself that I must have dozed off and missed something, because it was very confusing. They consumed another 10 minutes of time in the House, when there was no need for it.
This is about policing ourselves. The efficiency of the House was not hurt by parliamentarians. It was actually hurt by the executive. We could have been more efficient in managing our time if the executive team, the parliamentarians who also serve on the executive council or are members of the cabinet, had simply not risen and had accepted it “on division”, those two beautiful words.
We could pass, perhaps, this amendment to the main motion on division, and it would be beautiful, as long as it was accepted and passed on the yea side, not on the negative side.
I wanted to mention that the right to reach a decision is a right of Parliament, not the right of the government. They should never expect that Parliament will pass their legislation in the shape or form that they present it and table it before the House.
Now, the legislative role of MPs has declined as a result of time allocation. We know this. We've all experienced it. We've complained about it. A certain political party and caucus on the other side made a lot of hay out of it politically, and it was very successful for them.
When I reach the end of these notes, you'll realize I'll mention the government of Prime Minister Chrétien and will compare it to Mr. Mulroney's when time allocation was used, and it won't be as positive comparison for the members of the government caucus.
Prime ministers take advantage of the loyalty and inexperience of their members. I make this as an opinion statement, but it's also repeated in this article, which goes on to say that prime ministers use “...persuasion skills to limit, if not silence, their opposition to government measures on the public stage.”
Although I can see in the government caucus there are a lot of independent thinkers, which I appreciate very much, I hope they see on our side a lot of independent thinkers as well.
I voted with you, Mr. Chair, on your private member's bill, which I thought was an excellent idea. I know we had a side conversation about it. I was in the minority in my party. I was happy to do that because the idea, the policy goal, was the right one. That's what I thought at the time, and I expressed to my caucus colleagues and to my supporters that I would be doing that.
The Prime Minister and the executive team have a lot of tools they can use in order to limit the ability of the government caucus to express itself.
Maybe this is a good time to mention the free votes concept. We've all heard about free votes, that we should have more free votes. I have a lot of constituents come to me and tell me we should have more free votes.
We have free votes. Every vote is free, even the ones at committee, but all votes have consequences.
12:55 p.m.
An hon. member
Hear, hear!
12:55 p.m.
Conservative
Tom Kmiec Conservative Calgary Shepard, AB
As long as you can bear the consequences of your decisions, then you are free. If you can't, that's when you are not free. If you remember before we suspended, I mentioned that freedom is the right to be wrong, not the right to do wrong. We should never do wrong with how we vote, and what we vote for, just like on this amendment.
This amendment will help us avoid doing wrong. I think the members here, the members of the government caucus, as well as the members of the opposition parties represented at the table, have that ability to vote freely, and we will accept the consequences of those votes. I will. I'll vote my conscience on this if I am substituted in for the vote of this committee.
There is an idea that Canadian MPs are not elected to govern, but to ensure those who do are held accountable for their decisions. When we elect members of Parliament, when our constituents, our voters, go to the polls, although there is a lot of confusion about this, and a lot of people say they're electing the government, the prime minister, that's what they're voting for. It's a very presidential focus. It's come over time in Canada. It's Americanized our system further a great deal. Part of it is also the medium that we communicate with, such as television and social media. It makes it more about the person, the personality, than it does about the system and how we reach decisions.
We are not elected to govern, that's true. The executive council governs. That's why they have orders of the day and government business. They get to decide government business. They set the agenda, and we on the opposition side respond. But the government caucus responds too to the agenda of the day. Obviously, you are much closer and have a bit more intuition, maybe psychic knowledge, over what the government will decide to do, and we accept that.
The introduction of time allocation was an example of the executive's desire to maintain control over the legislative process of the House of Commons. This was granted back in 1969, to my knowledge, if I'm not getting the year incorrect. I have a quote here from 1956 preceding this.
Progressive Conservative Member of Parliament Donald Fleming said “the Canadian House of Commons has been gagged and fettered in this debate by a despotic government”. Speaking of the government, he said:
...you are jeopardizing the institutions that have proven themselves the bastions of democratic freedom, and destroying the rights of the minority in the house....This strategem was not given birth in any democratic mentality.
This was in response to St. Laurent's government imposing closure at each stage of a bill on public funding for a pipeline partly owned by American interests. The bill was passed in less than 15 days as a result. I bring it up because I'm from Alberta. We have a great love of pipelines in all forms and shapes, especially when they help our fellow Albertans get jobs.
I raise that as an issue because at the time they used time allocation—closure specifically, the proceeding name—in order to meet the government's agenda and their need for efficiency. Those rules still exist today in a slightly different format.
What has changed from 1956, when you could pass a bill in 15 days, to today, when we can't have at least 15 days of debate when members would like to rise and speak to a bill? I acknowledge that there are more members today, so there are more opportunities to speak to government business, but we all come here as generalists on parliamentary procedure and parliamentary policy, and then we specialize through the committee work we do.
We should not, though, give up the opportunity to speak on things we may know a little bit less about in the House of Commons outside of our area of specialization that our caucuses have asked us to undertake. I'm worried that this motion, without the very reasoned and reasonable amendment, may result in taking away the opportunity at committee to do just that, to avoid a situation where you could in the name of efficiency pass a piece of government legislation extremely quickly, perhaps without enough deliberative debate like we're having now, and without an opportunity to consider the clauses in the bill and the contents of the bill.
The member of Parliament in question, Donald Fleming, was probably excessive. Hyperbole is something our profession is known for. I always joke with my constituents that it's the 99% who ruin it for the 1% of us. It's true that we sometimes resort to language that might be considered hysterical. All sides do it. All sides have done it. We're supposed to police ourselves, just like members of the public who are working for a corporation or a professional organization, wherever that is, police themselves.
When I worked in human resources, there was always a question of difficult employees that a company or an organization might have. The number one thing they would tell them first, after seeing them, was “police yourself.” Self-censorship is not a vice, it's a virtue. It means you have learned a couple of lessons. It's when a government tries to censor you that it's a vice from the government side, but self-censorship, the knowledge not to be rude, not to be obnoxious, not to be a jerk, is a virtue that should be practised far more in public.
If they limit our debate at committee—they limit us already in the House in terms of how long we can speak—those opportunities to gain the experience and the judgment to practise this virtue and gain it are limited.
There would be far more opportunities for members of the opposition. Perhaps free-thinking members of the government caucus will then choose to go to the media, and maybe post something on social media they should not post, make a comment they should not make, or disparage a member they should not disparage.
I would like to take you back to the article here and to get a bit into the more technical reforms that happened in June 1969.
Between 1964 and 1969, the procedural committees examined “modernization”. This is the term used by the author, not my favourite term. It says:
...in the absence of a unanimous decision, they all agreed that the Standing Orders of the House of Commons could not be amended without unanimous consent. In June 1969
—that was the reform—
...Standing order 75A would permit the allocation of a specified period of time, when “there is agreement among the representatives of all parties”; Standing Order 75B would apply when “a majority of the representatives of several parties have come to an agreement in respect of a proposed allotment of days or hours”; and Standing Order 75C...would permit “[when no] agreement could be reached under the provisions of Standing Order 75A or 75B (...), that a minister of the Crown [may] propose a motion for allotting time”.
You can see how it goes. First, we talk amongst everybody. Can we seek some type of agreement? If we can't, you've already failed. At that point the House leadership has failed.
They then move on to the next one. Can we find an opportunity for several of the parties to come together and find a compromise? Is there sufficient trust maintained to still reach some type of agreement? Perhaps not everybody gets what they want. Perhaps it's something between the initial position of the government caucus and something the opposition parties wanted, or perhaps an independent member did not give consent.
The final point is that the minister of the crown comes in and simply demands that a certain time be allotted.
At the time, the opposition described these amendments as “the will of the government only”, and it was a previous Liberal government, led by Mr. Pierre Elliott Trudeau, that invoked closure on this debate.
I've quoted Diefenbaker substantially, so I want to give Conservative leader Robert Stanfield a chance here. Mr. Stanfield said:
The use of closure to force through rule changes, which are opposed by every member of the opposition, is of course an aggravation, and the use of this method of forcing through rules is so completely foreign to the traditions of this House as to constitute a breach of privilege.... [W]e are in a very sorry state indeed in so far as democracy and freedom are concerned.
This article deals with how we pass changes to the Standing Orders, which is the motion and the amendment to the motion. The article says:
...the opposition [parties] argued as one that parliamentary procedure should give all parties equal privilege in a limited debate and that amendments to Standing Orders should be based on a consensus.
You could almost exchange “unanimously agreed” with “consensus”. That's the idea behind it, if you have to put terminology in—“consensus”. This place runs on consensus built through trust.
Ironically, the time allocation [motion] was passed only through the use of closure, the very rule it was...suppose[d] to lighten.
After the House leadership had failed twice to reach a compromise—this is the last one—“the opposition described the use of...Standing Order 75C as anti democratic”. The article goes on:
...the government had promised that, despite the imposition of closure to ensure the passage of the time allocation rule, this measure would never be implemented.
They said one thing at the time, promised one thing, and subsequently did not follow through on it. I've quoted Diefenbaker enough, so I want to give Mr. Stanfield a chance. Stanfield called the use of Standing Order 75C a tactic “to save the political face of the Prime Minister and the Minister of Finance”.
My personal opinion—not the opinion of my caucus or anybody else—is that this motion, without the amendment, is a tactic, a stratagem, to attempt to save the political face of your House leader, just as it was in Stanfield's day. That is what I, not my caucus, personally believe. It's just a personal opinion, and I'm expressing it.
With the amendment, I think we can actually achieve the goal that may exist amongst some.
At the time, “[t]he opposition feared that 'If, some day, Canada should live under a government with more pronounced dictatorial ideas'”—I don't like using that term in this House—“'then, our parliamentary system might be ruined'.”
Efficiency comes to mind. The word “efficiency” means different things to different people. I've mentioned this before, but I truly believe that in the context of this reform package produced by the government, the reform of the Standing Orders of the House of Commons, what it actually means is “faster”—faster, faster, faster.
At the time,
...it was argued that, if this motion meant the slow but gradual decay of Parliament, “the Commons will no longer represent a forum for public debate but will flounder and disintegrate as an anachronistic tower of Babel, scorned by the Canadian people”.
All opposition parties “considered this initial use of time allocation to be closure and compared it to a guillotine or imposition by force.” The timelines proposed in the motion, without having the amendment, are essentially the same thing. By process—and Mr. Genuis mentioned this—you can achieve a lot of your goals anyway. You could limit debate just by rushing this report through.
I also mentioned the Standing Committee on Foreign Affairs, which I serve on as a permanent member. Mr. Michael Levitt, who was here yesterday, serves with me on that committee. We took a year-long study to review a piece of government legislation. It was a mandatory review. We were not in a rush to provide the government with feedback and a complete report with recommendations inside. Our goal wasn't to be efficient in our time. It was to deliberate accordingly and deliver a complete and finished product to the government so it could determine whether these were recommendations it would take up.
When this report is tabled in the House, Parliament will be able to see it and then debate it, if a member so chooses, by moving a motion.
At that time, they'll be able to determine whether they want to proceed with it, but it has taken over a year. I think that's okay. Many people in the private sector would say this is really inefficient. Why does it take you a year to do something like this? It's because we deliberate. Our goal is not to produce a final....
Like, I'm not going to go back to my constituency and be able to tell them, listen, in my four years in the House of Commons, on your behalf, I produced 20 government reports with recommendations in them, 20 reports of Parliament. Nobody will give me a gold star for 21, or penalize me for 19. They will probably say they've never heard of a single one of them. But I know that there's a public servant somewhere in those departments whose responsibility it is to review the reports and see whether there's anything valuable that should be implemented. They can look at the contact information, potentially, for witnesses. They can review the witness list that was provided and discuss with those individuals how they can implement the recommendations provided to the government.
I'm an Albertan, and the national energy program in 1981 is an example of controversial bills passed more quickly, more efficiently, as a result of time allocation. We all know how deep an impact it had on Alberta, and on Alberta's political culture as well. Alberta has two political cultures, one in the north and one in the south. I'd refer you to the early 1970s. There's a great article written by Tom Flanagan describing these two political cultures. If you look at a political map of Alberta, you will see that in the voting patterns of Albertans.
The national energy program had a deep, lasting impact on the political culture of Alberta and the political fate of many Liberals and many Conservatives. It was passed with time allocation, efficiently moved through the House. The president of the Privy Council in 1971 promised that no precedent would be created by the initial use of time allocation, which turned out to be totally false. Again, in this article, “Silencing Parliamentary Democracy or Effective Time Management? Time Allocation in the House of Commons”, by Mr. Pelletier. It's in the Canadian Parliamentary Review, winter 2000-01 edition.
Prime Minister Chrétien promised to govern without guillotining the opposition. “Guillotining” is the terminology from the article. This promise was broken barely two months after the start of the first session of the 35th Parliament, on a bill to change electoral boundaries. His government then also limited debate on gun control, constitutional protections for the LGBT community, and “imposed Standing Order 75c”, which is when, as I mentioned, the House leadership failed to reach an agreement by consensus 20 times.
The acting leader of the Canadian Alliance at the time, a great, great Albertan, Deborah Grey, spoke for over three hours on May 16, 2000, about the Chrétien government's lack of respect for the primacy of the House of Commons. She argued that the government's use of time allocation was to simply brush issues out of the way in the name of efficiency. In six years the Chrétien government used time allocation as much as the Mulroney government did in nine years. This is common to the government side, to refer to the previous Conservative government's use of time allocation.
Every government has started off with the best of intentions and eventually used time allocation more and more often as their term has gone on in Parliament. Typically, it's because they ram through their agenda, as opposed to trying to seek conciliation of some sort and build trust with the opposition parties. There will be times when we can't agree, and there will be times when we have to disagree and the government executive will have to use time allocation.
We will hum and we will haw, but I hope we've been pretty measured in our comments, when we have risen in those 30 minutes of debate, not to accuse you hysterically of shutting down democracy too many times.
12:55 p.m.
Some hon. members
Oh, oh!
12:55 p.m.
Conservative
Tom Kmiec Conservative Calgary Shepard, AB
I've watched enough Yes Minister to know that I need caveats.
12:55 p.m.
An hon. member
You're too young for that.
12:55 p.m.
Conservative
Tom Kmiec Conservative Calgary Shepard, AB
Oh, never too young. These things are on iPads now.
I think it's important to remember, too, that the members of the government caucus made it an issue during the political campaign in the previous election, and now the government caucus sees the same things we do. The executive has used time allocation 13 times so far.
I think Mr. Chan has a correction he'd like to make. Was that 14, or...?
12:55 p.m.
Liberal
Arnold Chan Liberal Scarborough—Agincourt, ON
No, no, I'm just saying that it's the tool we have, right?
12:55 p.m.
Conservative
Tom Kmiec Conservative Calgary Shepard, AB
Right. Exactly.
There are times when we will not be able to agree. I think the government should have the right occasionally, not always.... My worry with this document is that it will become an “always”.
With regard to programming, as it is explained here, I'll get to the reason it's a bad idea. The examples used do not translate well to our House of Commons. I'm worried that it will become a permanent feature of this House and a permanent feature at the committee level. We already see it during committee of the whole: we don't actually debate directly the amendments; everything is on division, as much of the work the committee of the whole used to do is now done at the committee level.
Is it an anachronism? You could have an entire study on whether committee of the whole still serves a relevant purpose, but it should not be done within the context of this, rushed by June 2.
As Mr. Christopherson said when he was here—and I see that Mr. Donnelly has joined us—I simply don't see what the rush is to do it by June 2, with such a massive change to the way the House, Parliament, gets through its business.
To get back to the point, it's not the government's business, it's Parliament's business. They come to us for approval and we grant our approval when we so wish. The government represents the crown, after all. They're acting on behalf of the crown. We shouldn't be automatically accepting of everything they propose, even those members of the government caucus.
I had discussions with certain members on Bill C-14, and I'm sure they were kind enough to pass on my comments to the justice minister, because I saw some of what I had mentioned in private appear in the bill. I still appreciate very much that it was done.
Those types of opportunities will vanish, because we will have been programmed. Why would we then come to talk to government caucus members in the hopes of having influence over government legislation? The process is predetermined. The fate of the government bill is assured. When it gets to the Senate, who knows? They have a different way of doing things. They are more independent now—autonomous maybe. Our Senate is now turning into something more like the U.S. Senate.
For all those individuals who complain about the gridlock in the American system, just be careful: 10 or 15 years from now, Canada might have exactly the same type of problems, with senators holding up appointments, senators holding up bills, senators filibustering in the Senate for excessive amounts of time or passing huge amounts of legislation in Senate bills and them sending them to us to deal with during private members time. We will simply not have rules in place to deal with the volume, just as has happened in the U.S. system when they don't have a House leader to lead these issues through on behalf of the government because they're all independent thinkers.
I'll mention, because I have a few examples I want to use, how they changed their rules and the regrets many of them have after they change sides. Someday the government caucus will be on this side, as the opposition caucus, not as a government caucus. I don't think you just switch sides like that. But you'll be on our side.
12:55 p.m.
Conservative
Tom Kmiec Conservative Calgary Shepard, AB
Well, you're always welcome. It's a big family on this side. You're always welcome to join our side.
This, then, is my concern, if we proceed with this motion without this amendment. This amendment ensures that we parliamentarians protect Parliament—from ourselves, from our vices, but also to edify an institution that we've been given to steward. That's our primary role. We have a responsibility to our constituents, but we also have a responsibility to leave this place better for the next person who takes our seat in the House of Commons.
We had the Daughters of the Vote. These young ladies came. Someday some of them may sit. We're stewarding it for their generation and for the generation that comes afterwards.
I have another article that I want to refer to, again on procedures and politics. It concerns government motion 6. I know that this has been mentioned before by other speakers. I don't want to so much mention the content of it as take a couple of the ideas in this article, because it speaks to the way we do amendments to the Standing Orders and where our rights and privileges as members come from.
As I mentioned before, Standing Orders are meant to give voice to our privileges as members, they don't grant us privileges. One of our privileges is the freedom to speak. I have that opportunity now to speak and express myself.
In the House of Commons, it's not unlimited. Standing Orders constrain me. I agree to the constraint, quite obviously, because other members have the right as well to be heard.
We just had a motion that a member be heard, because they had an important point to make.
