Thank you very much, Madam Chair, for your invitation to appear. I seem to have an unstable Internet connection, so I hope I can get through this without any problem.
I would like to discuss some of the procedural issues relating to the implementation of a platform for full virtual sittings.
As I understand it, the proposal for virtual sittings is being offered as a temporary solution to balance parliamentary duties with caution over the COVID-19 pandemic. Although the intention is to make such sittings temporary, I think nonetheless that it would be helpful for the committee to have a detailed analysis or, even better, an audit of how these new technologies may impact the various procedures of the House and, more importantly, the consequences flowing from those changes. This way your committee would have a big picture of what is at stake.
The testimony you have received to date from Speakers, former speakers, clerks and law clerks is invaluable, but perhaps a comprehensive study undertaken by your table research team with the participation of members of the House will allow you to better assess what changes will have minimal impact versus those that may come close to altering the chamber's fundamental procedural characteristics. Such an analysis may assist you in recommending the kinds of hybrid processes or first steps in going forward to implement a virtual sittings platform.
Studying proposed revisions to standing orders during a crisis without having the time to understand which amendments may transform the chamber's essential characteristics is never the best practice for policy-making. I acknowledge that your institution may be under important peer pressure at the moment, as other legislatures around the world are moving to virtual operations in response to the challenges posed by the pandemic, but given the hand you are dealt, at the very least it may be helpful to identify which procedures may be most affected and which are not, if a virtual platform is to be adopted.
I fully agree with the testimony given by the former acting clerk a few days ago that it may be more efficient to build on existing practices. Please keep in mind that other legislatures are also exploring alternatives to physical meetings, but within the constitutional, statutory and rules-based constraints of their legislative processes.
Clearly, some procedures allow for certain parts of the chamber's business to be taken virtually. At Westminster, the House of Commons has agreed that remote technology can be used for key items in business, such as questions, urgent questions and ministerial statements. The Samara Centre for Democracy, in its brief to your committee, has identified take-note debates, during which members give their views on a topic but do not take binding votes, as a procedure appropriate for a virtual Parliament.
However, in my own assessment, the ultimate goal of allowing Parliament to operate as virtually as possible without a continued physical presence in Ottawa appears to go beyond changing just the work ways of the House. The introduction of technologies permitting members to absent themselves from the institution, allowing them to attend via video link, seems a much more fundamental change, and I would like to identify three procedures that may undergo significant alteration.
My first fundamental concern is with the rule of attendance.
The marginal note of Standing Order 15 states that attendance is required. I am confident that advice can be given so that the wording of the rule can be amended to procedurally allow for the use of virtual platforms. Setting aside the legal argument, a question must be raised about whether the intention of the rule would be fundamentally altered.
In the research I prepared for my doctorate on parliamentary practice in pre-Confederation Canada, I came upon an entry, for September 16, 1842, from the Legislative Assembly of the united Province of Canada. The House used to fix a day for the call of the House, requiring that all members attend. If any members were absent, the Speaker sent them a letter, as he did this day, saying, “The House, in directing me to give you notice, is actuated by the greatest unwillingness to believe that such unexplained absence would have arisen from any such neglect or indifference as would render an Honourable Member liable to the censure of the House”.
From the beginning of legislative practice in Canada, the first duty of any member of Parliament was to attend sittings and, for many decades, failure to do so without a valid reason brought censure from their colleagues.
Standing Order 15 has been a permanent rule of the House since 1867. Notwithstanding the many demands and obstacles that members of Parliament have always had to face, the principle that the physical attendance of members is required for the House to fulfill its constitutional duties has been a constant theme as to how the legislature should operate. This may now change. What the consequences are should be explored.
My second concern is with counting a quorum. O'Brien and Bosc, second edition, states the following with regard to quorum: “Under the Constitution Act, 1867, a quorum of 20 Members, including the Speaker, is required 'to constitute a meeting of the House for the exercise of its powers'.... In this regard, the Deputy Speaker [said]:
...the Speaker is not in a position to tell members from either side of the House who should be in his or her place or how many members should be available for any debate [in counting a quorum].”
In accordance with this citation, a member, to be counted for quorum, must be physically in his or her place. If a virtual platform is implemented for legislative sittings, a different process would have to be established. Please keep in mind that the standing order on quorum is also a constitutional provision and is part of the Constitution Act, 1867.
Historically, before the Act of Union of 1840, which united Ontario and Quebec to become the united Province of Canada, the issue of quorum was of great controversy. There had often been heated discussion and uncertainty in the assemblies of Upper and Lower Canada as to what an appropriate quorum should be, given the pioneer conditions of the country and the linguistic and religious divisions within society. The rules of both assemblies were amended many times in this respect. By making it a statutory regulation and including it in the constitution of the province, it was hoped that the controversies over quorum would cease.
Finally, I'm concerned with proposals permitting electronic voting. Measures that allow for the use of electronic voting to the exclusion of other components of conducting a legislative debate in Parliament misunderstand the nature of parliamentary procedure. Voting is a crucial stage, but it is only one of two others that go into the making of the decision on a bill, and all three stages are linked. The other two stages are the proposing of a motion and then its debate.
In theory, as per the rules of the House, all members are to attend the sitting so that they know about the motion through the reading of the Order Paper—for example, the introduction of bills—and to think about it for two days in order to prepare their thoughts and then to commence its debate. Some classical political theorists believe that legislative debate is the most important constitutional principle there can possibly be and is the basis for democracy.
Parliaments are steeped in tradition, because those traditions are meaningful. Allowing for only electronic voting may belittle other aspects of making a legislative decision and may not respect the important principle of parliamentary procedure.
In conclusion, as I have mentioned, I believe a detailed analysis or audit of how these new technologies may impact various House procedures could be of assistance to you. In addition to those subjects I've discussed, the audit could include the rules of order and debate, how the Speaker will recognize those who wish to participate in debate, what a virtual Parliament would actually look like in the assignment of seats, how to appropriately acknowledge national and international tragedies, and the procedure for royal assent. A full analysis will obviously be a longer-term project, but one that your committee may want to pursue.
Thank you very much.