Mr. Speaker, I am rising today on a question of privilege following yesterday's proceedings concerning the question of privilege raised by the members for Milton and Beauce. As I will establish in my argument, no other government in history has treated a Speaker's finding of a prima facie case of privilege in such a reckless and cavalier manner as we saw yesterday. The way the Liberals tried to cover it, by trying to have the committee self-initiate a privilege study, could lead to unintended but very dangerous consequences.
As we know, the Speaker found a prima facie case of privilege on this matter. The hon. member for Milton then moved the appropriate motion, and a debate ensued. After question period, the hon. member for Brossard—Saint-Lambert moved that the House do now proceed to orders of the day, and the motion was adopted.
Mr. Speaker, I am now asking that you again find a prima facie case of privilege on the basis of the evidence and submissions tendered last month as well as the very relevant precedent of the Speaker's own ruling yesterday morning.
Last evening, following proceedings in the House, which I outlined, I gave notice to the Speaker, via the table, and pursuant to Standing Order 48, of my intention to rise on this question of privilege this morning when the House opened. In other words, I am raising this at the earliest opportunity.
This might seem like the movie Groundhog Day. I am asking that we have a do-over of yesterday. Let me explain why and why it is procedurally in order.
Page 148 of House of Commons Procedure and Practice, second edition, makes it clear that motions to proceed to orders of the day are in order during debate on a privilege motion. Page 149 explains the consequences of such a motion being adopted. It states:
[Should] a motion to proceed to Orders of the Day be adopted, then the privilege motion is superseded and dropped from the Order Paper.
The same point is reiterated at page 541. That is why the privilege motion is not printed in today's Order Paper and is not under debate today, even though the House has not come to a decision one way or the other.
What we got yesterday from the hon. member for Brossard—Saint-Lambert was some procedural legerdemain, a magic trick. She said that her colleague filed a notice of motion to initiate a study on this issue at the procedure and House affairs committee.
Though we are not generally supposed to trouble the chair with procedural matters in committee, I will say that a point of order was raised last evening concerning the inadmissibility of that notice of motion. In short, and for the context of the House, the concern is that it goes beyond the order of reference for the procedure and House Affairs committee found in Standing Order 108(3)(a). The deputy government whip noted at committee last evening that the rule contains the words “among other matters”, which she believes gives her good authority to proceed with her notice.
In my view, that phrase captures those things that are provided for in the Standing Orders, such as the automatic referral of statutory reports under Standing Order 32, such as the Chief Electoral Officer's report on the 2015 general election and the time-sensitive review of it, which has been held hostage by the government House leader's discussion paper; or by an order of reference from the House, such as bills and cases of privileges.
The chair, mere moments before midnight, informed the committee that the clerk ruled it in order. Make of that what you will, Mr. Speaker. On the strength of that so-called ruling, a majority at the procedure and House affairs committee can now, and in the future, simply decide, anytime it wishes, to study some issue and write a report leading to recommendations to find someone in contempt of Parliament, to jail people, or even to expel members. Imagine what Parliament is going to become during a minority government. As I said in my opening comments, this is an unintended but very dangerous consequence.
Let me be very clear. The Conservative Party, Her Majesty's loyal opposition, wants to see this critical issue studied by the procedure and House affairs committee. Our main concern here is that the government not disregard the rules of this place, and we feel the need to clarify whether the committee can deal with the privilege matter without a proper reference from the House.
By reviving the question of privilege in the House, we take the opportunity to ensure that the procedure and House affairs committee can study this important issue, this question of our rights as parliamentarians, with the full confidence of a sturdy procedural footing.
Turning to an explanation of the procedural consequences of yesterday's manoeuver by the government, the House did not decide for or against the merits of a committee study on this question of privilege. Therefore, the so-called “same question rule” is not triggered.
Citation 558(1) of Beauchesne's Parliamentary Rules and Forms of the House of Commons of Canada, sixth edition, states:
An old rule of Parliament reads: “That a question being once made and carried in the affirmative or negative, cannot be questioned again but must stand as the judgment of the House.”
In re-finding a prima facie case of privilege, you would not risk contravening this ancient rule. In fact, a consequence of the motion adopted yesterday is, I would submit, to put us back to where we started. For example, if that motion was moved during concurrence debate, it would take the actual motion debated off the Order Paper, but any other motion on notice concerning the same report could be moved the very next day. The member whose motion was flushed, so to speak, could simply re-file another notice of motion and begin anew.
The same goes for motions of instruction, which can be moved during routine proceedings. That is to say, one is back where one began and can reinitiate the same identical proceeding in the usual fashion appropriate to that class of motion. In the case of concurrence and instruction motions, that, of course, would be giving 48-hours' notice by way of the Notice Paper. In the case of a privilege motion, I say it would be in raising a question of privilege asking you to find a prima facie case of privilege and moving the appropriate privilege motion.
Canvassing O'Brien and Bosc for precedent privilege debates, where the motion offered by the hon. member for Brossard—Saint-Lambert was carried, and Appendix 15 of the volume, which offers a handy table of cases between 1958 and when our current privilege procedure was set down in 2008, shows that it has never been done before. Each prima facie case of privilege catalogued from pages 1289 to 1297 shows that every privilege motion debated was either adopted or defeated by the House of Commons. Each case of privilege since 2008, again, saw the relevant motion come to a vote, with only one exception. That exception was the case of the privilege motion moved by the hon. minister of fisheries and oceans on June 18, 2013, which happened to be the last sitting day of the session. The debate had been adjourned, as governments are much more likely to propose during privilege debates. A prorogation followed before the House sat again.
Let me state clearly that never has a motion to proceed to orders of the day been before adopted during a privilege debate. This is completely unprecedented, and, I would argue, is an extremely dangerous precedent that denies members their fundamental right to vote in this place. Why is that? As a matter of logistics, I would say that it is to avoid this Groundhog Day atmosphere I described earlier. As a matter of principle, it is a simple acknowledgement of the importance of allowing the House to take a decision on a motion concerning the privileges of this House. These privileges are guaranteed in section 18 of the Constitution Act, 1867, often referred to by its original title, the British North America Act. The law of parliamentary privilege has been held by the Supreme Court of Canada to be a body of constitutional law, a body of law on equal footing with that of the charter.
As I said, this situation is entirely unprecedented. I think the appropriate path forward lies in the analogous situation of privilege cases that get revived following prorogation. Allow me to offer the Chair two examples.
On May 26, 2003, at page 6413 of the Debates, Mr. Speaker Milliken found a prima facie case of privilege initiated by Mr. Boudria, and the procedure and House affairs committee was tasked with a study. Parliament was prorogued that November, before the committee could report. On February 6, 2004, at page 243 of the Debates, Mr. Speaker Milliken found a prima facie case of privilege raised by Mr. Breitkreuz, which revived the earlier case.
The Chair ruled at the time, stating:
As I indicated in the previous session, this was a bona fide question of privilege. Accordingly, in my view, the question remains a question of privilege. The committee did not completely report on the matter which it is entitled to do. Accordingly I give the hon. member leave to move his motion.
In a second incident, one I referenced a moment ago, on June 18, 2013, at page 18550 of the Debates, the Speaker's predecessor, the hon. member for Regina—Qu'Appelle, found a prima facie case of privilege raised by the hon. minister of fisheries and oceans. That case, in fact, had actually been raised by the hon. member for Coast of Bays—Central—Notre Dame, the member whose motion has sparked the very debate going on at the procedure and House affairs committee, on the unprecedented power grab proposed by the Liberals.
In any event, as I mentioned earlier, prorogation followed before debate could be concluded and a vote taken, so on October 17, 2013, the member made a request to revive the case of privilege, and at page 66 of the Debates, the hon. member for Regina—Qu'Appelle said:
For the same reasons given in my ruling last session, in my view, the matter remains a prima facie question of privilege, and accordingly, I now invite the hon. member...to move his motion.
These two precedent situations stand for two different propositions I want you to consider, Mr. Speaker. First, as I mentioned in introducing them, they are analogous to the situation in which we find ourselves this morning. A prima facie case of privilege had been found, a motion had been proceeded with, and some subsequent procedural interruption came along before the privilege process could come full circle.
Second, you will note that members who raised the second question of privilege to revive the matter were not the same members who raised the initial prima facie case of privilege. For that matter, in those cases, the second motion was moved by a member of an entirely different political party.
To conclude, I do not believe that the Liberal trick yesterday was procedurally appropriate, and worse, it could create a dangerous precedent if it becomes standing operating procedure around this place.
You, Mr. Speaker, are currently seized with a couple of other questions of privilege raised by my colleague on which we eagerly await rulings. However, it becomes a natural concern to me if the Liberal government's go-to move will now be quickly to move to proceed to orders of the day, killing the privilege motions, should you find prima facie cases while there is an offer of a fig leaf of a procedurally suspect notice of motion at committee.
This is not the way to handle the serious matters raised by the Speaker's ruling, serious matters which, as a prima facie case of privilege, warrant priority consideration over all other business of this House. In fact, it smacks of utter arrogance by the government against the Speaker, the guardian of the rights and privileges of members of this House as an institution. No other government in history has, as I related moments ago, treated a Speaker's finding of a prima facie case of privilege in such a reckless and cavalier manner.
If we think about it, we are in an ironic situation. We debated a motion respecting two members being denied the opportunity to vote because of the issues addressed in yesterday's ruling. The government then resorted to a too-clever-by-half manoeuvre, which attempted to deny all 338 members of this House the right to vote on the issue concerning our privileges as parliamentarians that allow us to represent our constituents. This shocking development is sadly consistent with the earlier steps we saw in Motion No. 6 last year, and now the unilateral power grab cloaked in a pleasant-sounding label of a discussion paper.
Please note that we, Her Majesty's Loyal Opposition, support our Speaker, and we understand the challenging role the Chair has and most certainly support the Speaker's first ruling. In fact, we supported it to the point of wanting to be absolutely certain that it receives the priority it deserves at the procedure and House affairs committee.
Mr. Speaker, assuming your assessment has not changed since yesterday morning's ruling, I am now prepared to move the appropriate motion to vindicate the Chair's established role in deciding prima facie questions of privilege so the House can make decisions on these serious topics.