Peter Milliken

[Points of Order, March 13th, 2008]

I am now prepared to rule on the point of order raised by the hon. member for Pickering—Scarborough East on March 11 concerning the admissibility of the ways and means motion to implement certain provisions of the budget tabled in Parliament on February 26 and to enact provisions to preserve the fiscal plan set out in that budget for which the hon. Minister of Finance gave notice on that day.

I would like to thank the hon. member for Pickering—Scarborough East for initially bringing this matter to the attention of the House, as well as for his subsequent intervention, and I would also like to thank the hon. member for Markham—Unionville, the hon. government House leader, and the hon. House leader for the Bloc Québécois for their submissions.

The member for Pickering—Scarborough East, in raising the matter, claimed that Ways and Means Motion No. 10, standing on the order paper in the name of the Minister of Finance, seeks to have the House decide upon a matter which it had already voted on.

That vote took place on March 5, 2008, when Bill C-253, An Act to amend the Income Tax Act (deductibility of RESP contributions) was adopted at third reading. To this issue, the member for Markham—Unionville has added the contention that Ways and Means Motion No. 10, by including provisions related to Bill C-253, seeks to implement a measure that does not flow from the most recent budget, thus, he alleges, enlarging the usual parameters of budget implementation ways and means motions.

He further contended that this was a backdoor attempt to circumvent the rights of private members as provided for in the rules governing this category of business.

For the sake of clarity, I should state that sections 45 to 48 of Ways and Means Motion No. 10 are the subject of this point of order. They are conditional amendments that seek to amend or repeal the amendments to the Income Tax Act contained in Bill C-253 should the latter receive royal assent. The stated objective of these ways and means measures is, to quote the Minister of Finance at page 3971 of the Debates, “--to protect Canada's fiscal framework”.

The government House leader asserted that the broad scope of Ways and Means Motion No. 10, and the wide range of taxation and fiscal measures it seeks to implement are clear evidence that the motion is fundamentally a different matter than was Bill C-253, and therefore, that it should be allowed to proceed.

In support of his arguments a number of procedural authorities were cited, some of which I will return to later in this ruling.

Let me first deal with the argument that the inclusion of provisions regarding Bill C-253 in Ways and Means Motion No. 10 does not respect our conventions regarding the content of such motions.

The Chair wishes to remind the House that the budget speech and bills based on ways and means motions tabled at a later date are not necessarily linked. House of Commons Procedure and Practice states at page 748:

While a Budget is normally followed by the introduction of Ways and Means bills, such bills do not have to be preceded by a Budget presentation. Generally, taxation legislation can be introduced at any time during a session; the only prerequisite being prior concurrence in a Ways and Means motion.

At page 759, Marleau and Montpetit goes on to state:

The adoption of a Ways and Means motion stands as an order of the House either to bring in a bill or bills based on the provisions of that motion or to propose an amendment or amendments to a bill then before the House.

That text footnotes examples from 1971, 1973, and 1997. Furthermore, in the case before us, it must be noted that the title of Ways and Means Motion No. 10 states clearly that it not only implements certain provisions of the February 26, 2008 budget, but that it also aims to:

--enact provisions to preserve the fiscal plan set out in that budget.

On this point, namely the objection that the motion includes provisions that were not contained in the budget, the Chair must conclude that Ways and Means Motion No. 10 is not procedurally flawed.

Let us now turn to the argument that the decision of the House to adopt Bill C-253 at third reading must stand since the House cannot be asked to pronounce itself again in the same session on the same subject.

The Chair wishes to remind hon. members that while a part of Ways and Means Motion No. 10 touches on Bill C-253, the question that the House will actually be asked to vote on today, assuming it is called today, is not the same as the question it agreed to on March 5, 2008, when it adopted the bill at third reading.

In this regard the Chair has found a number of examples where a bill repeals sections of an act already amended by another bill adopted by the House in the same session.

For example, in the first session of the 38th Parliament, Bill C-18, An Act to amend the Telefilm Canada Act and another Act, and Bill C-43, An Act to implement certain provisions of the budget tabled in Parliament on February 23, 2005, both proposed to amend subsection 85(1) of the Financial Administration Act.

In addition, there are also examples of bills proceeding concurrently even though some of their provisions are dependent upon one another.

As mentioned by the government House leader, Mr. Speaker Lamoureux ruled on February 24, 1971, on such a situation at page 3712 of the Debates. He stated:

There is, therefore, in my view, nothing procedurally wrong in having before the House at the same time concurrent or related bills which might be in contradiction with one another either because of the terms of the proposed legislation itself or in relation to proposed amendments.

This is further supported by the 23rd edition of Erskine May at page 580, which affirms that:

There is no rule against the amendment or the repeal of an act of the same session.

Most compelling are the rulings of Mr. Speaker Fraser from June 8, 1988, and I refer to the Debates at pages 16252 to 16258, and on November 28, 1991, pages 5513 to 5514, both of which were quoted by the government House leader. These rulings clearly support the view that the progress of any bill flowing from Ways and Means Motion No. 10 rests with the House.

As Mr. Speaker Fraser put it on November 28, 1991:

The legislative process affords ample opportunity for amending proposed legislation during the detailed clause by clause study in committee and again at the report stage in the House.

Insofar as this process affects private members' business as a category of business or indeed the rights of individual members to propose initiatives, I must point out that it is not the Speaker but the House which ultimately decides such matters.

For the reasons stated above, the Chair finds that Ways and Means Motion No. 10, as tabled by the Minister of Finance, may proceed in its current form.

Once again, I would like to thank the hon. member for Pickering—Scarborough East for having raised this matter.

[Points of Order, March 12th, 2008]

The Chair is prepared to rule on the point of order raised by the hon. member for Vancouver East.

I point out that contrary to past practice, and I have been here a number of years and remember when there were never any opposition motions sitting on the order paper, we now have 30 opposition motions sitting on the order paper, all of which have been placed on notice with more than 48 hours notice and are therefore eligible to be called for debate on days that have been awarded to that party based on the division of opposition days.

These opposition days are assigned to the different parties of the House following meetings between the House leaders and the whips. It is not the Speaker who decides all this.

The other important thing about this is that the government can choose the topic for debate at any time.

I point out that page 406 of Marleau and Montpetit says:

The business that the House is to consider during Government Orders is determined solely by the government. On occasions when the Opposition has protested a change in the projected order of business for a specific sitting day, the Chair has reminded Members of the government's prerogative.

In other words, if the government decided that tomorrow instead of bill X it decided to call bill Y, it could announce it at 10 o'clock tomorrow morning, in effect with no notice, and proceed with bill Y instead of bill X, as long as bill Y is on the order paper and 48 hours notice of its introduction has been given and it is before the House.

We have in this case, in my view, a similar situation in respect of the opposition. The opposition has placed notices of motions for supply days on the order paper, as I have indicated. Apparently the choice was not made until earlier this afternoon. I just became aware of it once the point of order was raised. However, whichever one it is, notice has been given, so technically the members are aware that the subject is one that could be called for debate at a certain time on a certain opposition day, and that is what has happened today.

Accordingly, in my view, the motion that we are about to debate, whenever we complete routine proceedings, assuming we get through them before 5:30 p.m., will be the one that is the subject for debate today, and I so rule.

I will not speculate on whether a motion that had not been placed on notice would be eligible. I will that for another argument for another day, and possibly for one of my fellow Chair occupants.

[Points of Order, March 6th, 2008]

I am now prepared to rule on the point of order raised on Monday, March 3 by the hon. member for Malpeque concerning the admissibility of Bill C-46, An Act to amend the Canadian Wheat Board Act and chapter 17 of the Statutes of Canada, 1998, standing on the order paper in the name of the hon. Minister of Agriculture and Agri-Food and Minister for the Canadian Wheat Board.

I would like to thank the hon. member for Malpeque for raising this matter, as well as the Leader of the Government in the House of Commons and the Minister of Agriculture and Agri-Food and Minister for the Canadian Wheat Board for their contributions on the issue.

The member for Malpeque contends that Bill C-46 is inadmissible because it contravenes section 47.1 of the Canadian Wheat Board Act which states:

The Minister shall not cause to be introduced in Parliament a bill that would exclude any kind, type, class or grade of wheat or barley, or wheat or barley produced in any area in Canada....unless

(a) the Minister has consulted with the board about the exclusion or extension, and

(b) the producers of the grain have voted in favour of the exclusion or extension, the voting process having been determined by the Minister.

In particular, the member for Malpeque alleges that the consultations referred to in paragraph (a) of section 47.1 of the Canadian Wheat Board Act have not taken place.

In arguing that the bill is in order, the government House leader pointed out that the bill does not propose to amend the mandate of the Canadian Wheat Board. The Minister of Agriculture and Agri-Food added that the intention of Bill C-46 is, in fact, to amend section 47 of the existing Act and, therefore, that the provisions of section 47.1 do not apply in this matter.

The Chair has looked at Bill C-46 bearing in mind the arguments made. In light of the circumstances, it is perhaps helpful to highlight the bill's main objectives, as contained in its four clauses. Clause 1 amends the act to confirm that the government may repeal or amend any regulation it makes under the act. Clause 2 establishes a dispute resolution regime which does not relate to the point of order of the hon. member for Malpeque. Clause 4 is the coming into force provision found in most bills, regardless of their subject matter.

It is clause 3 that is at issue in this point of order. Clause 3 repeals a section of a 1998 amending statute; the effect of clause 3 is to cause the repeal of section 47.1, which I just read, and nowhere in the bill can the Chair find reference to any matter prohibited within section 47.1.

The Chair must conclude that, as Bill C-46 does not appear to propose the exclusion of any wheat or barley product from the provisions of part III or IV of the act, nor the extension of the application of these parts to any other grain, it is not subject to the requirements of section 47.1 of the act.

Accordingly, the Chair cannot find that the bill offends the requirements contained in section 47.1 and I am ruling that the bill has therefore been properly introduced and may proceed.

Naturally, the member for Malpeque will have the opportunity to debate the principle of the bill at the second reading stage and, if the House adopts the bill at that stage, the committee to which the bill is referred will no doubt want to examine his arguments during its clause by clause consideration.

I thank the member for Malpeque for bringing this matter to the attention of the House.

[Points of Order, March 6th, 2008]

I am now prepared to rule on the point of order raised earlier today by the hon. Leader of the Government in the House of Commons alleging the inadmissibility of the opposition motion currently being debated, standing in the name of the hon. member for Beaches—East York.

The hon. government House leader has raised a number of arguments, but has principally focused on two main points. First, he has argued that an opposition day motion cannot bring into question the conduct of an opposition party and, second, he has suggested that the use of the word “condemn” in relation to an opposition party brings the confidence convention into play, with the intended consequences on that opposition party.

On the first point, the Chair is extremely reluctant to intervene in view of the fact that Standing Order 81(13) and House of Commons Procedure and Practice, at page 724, make it very clear that such motions “may relate to any matter within the jurisdiction of the Parliament of Canada” and that members “enjoy a very wide scope in proposing opposition motions on Supply days and, unless the motion is clearly and undoubtedly irregular (e.g., where the procedural aspect is not open to reasonable argument), the Chair does not intervene”.

As I stated in a ruling delivered on March 29, 2007:

Past interventions from the Chair have, accordingly, been rare, restricted to cases in which a motion is “clearly and undoubtedly irregular”. Speaking to this principle, Mr. Speaker Fraser declared that “the use of an allotted day ought not to be interfered with except on the clearest and most certain procedural grounds.” (Debates, June 8, 1987, p. 6820).

The government House leader's reference to a ruling from 1983, while interesting, speaks to a different era, when anyone, even the government, could move amendments to supply day opposition motions. In that particular case, it was a Progressive Conservative Party motion to which the New Democratic Party moved an amendment that did not respect the Standing Orders in that it did not “relate to any matter within the jurisdiction of the Parliament of Canada”.

Of course, Standing Order 85, which requires the consent of the mover for an amendment, now makes that kind of manoeuvre impossible. In the circumstances, it seems unreasonable to extend this 1983 precedent to a motion which clearly has as its central theme a subject matter which falls squarely within the jurisdiction of Parliament.

The Chair does recognize, however, that it must remain vigilant in these matters. As I indicated in the March 2007 ruling referred to earlier, the original purpose of opposition motions was for “…airing grievances before voting supply to fund the Crown’s programme”. At that time, I went on to suggest that perhaps the Standing Committee on Procedure and House Affairs could review the relevant Standing Orders to consider whether revisions to their wording might be helpful in realigning current practice on opposition motions with their original mission.

Almost a year has elapsed since I made that suggestion and I will reiterate that request again today.

On the second point raised by the government House leader, specifically the use of the word “condemn” and its significance, the Chair has considerably less sympathy with the argument being presented. I refer the House to House of Commons Procedure and Practice, at page 37, where it is stated:

What constitutes a question of confidence in the government varies with the circumstances. Confidence is not a matter of parliamentary procedure, nor is it something on which the Speaker can be asked to rule.

This seems rather conclusive and I do not see what I could usefully add.

Accordingly, for the reasons I have just explained, the Chair will allow debate to continue on the motion. I thank hon. members for their attention.

[Points of Order, February 28th, 2008]

I am now prepared to rule on the point of order raised on February 14, 2008 by the hon. Parliamentary Secretary to the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians concerning committee amendments to Bill C-21, An Act to amend the Canadian Human Rights Act.

I wish to thank the hon. parliamentary secretary as well as the hon. members forArgenteuil—Papineau—Mirabel, Nunavut and Winnipeg South Centre for their submissions on this matter.

In his intervention, the hon. parliamentary secretary indicated that he was seeking a ruling as to whether two amendments to Bill C-21, adopted by the Standing Committee on Aboriginal Affairs and Northern Development, are in order. He argued that these two amendments are beyond the scope of the bill and should not be allowed to stand.

The hon. parliamentary secretary went on to describe the main components of Bill C-21 as follows: a provision for the repeal of section 67 of the Canadian Human Rights Act, a statutory review provision and, finally, a transitional provision with respect to aboriginal authorities. In essence, he stated—in my view, correctly—that the principle and scope of the bill therefore relate to the repeal of section 67.

In his submission, the hon. parliamentary secretary further contended that in reviewing the legislation which has received the approval of the House at second reading, committees are limited to making amendments that respect the principle and are within the scope of the legislative proposal. Here as well, the Chair shares the view expressed by the hon. parliamentary secretary.

However, before going further, it is perhaps useful to review what the two contested amendments seek to achieve. The first is a non-derogation clause added as a new clause 1.1. This amendment indicates that the repeal of section 67 of the Canadian Human Rights Act shall not be construed so as to abrogate or derogate from existing aboriginal treaty or other rights or freedoms that pertain to the first nations peoples of Canada and goes on to list certain rights or freedoms.

The hon. parliamentary secretary argues that this amendment adds a new purpose to the bill and is therefore beyond the scope of Bill C-21.

The second amendment that is in dispute is an interpretive clause added as a new clause 1.2. This clause mandates that in relation to human rights complaints, the act be interpreted and applied with due regard to “first nations legal traditions and customary laws”.

This amendment was ruled by the chair of the committee to be inadmissible because it was beyond the scope of the bill. Following a successful appeal of the chair's ruling, the amendment was subsequently adopted by the committee.

In her submission, the hon. member for Nunavut expressed the view that these amendments represent an improvement to Bill C-21, inspired by the desire, in her words, “to make sure that the rights of people are protected”.

The Chair has examined the two amendments in question, as well as the proceedings on this bill in the Standing Committee on Aboriginal Affairs and Northern Development with reference to the text of Bill C-21 as adopted at second reading. There is no doubt that this committee’s lengthy deliberations reflect the seriousness with which members have approached this issue.

In cases such as this one, the Speaker may be asked to review, on strictly procedural grounds, what went on in committee with reference to the correctness of a chair's ruling, or even the overturning of a ruling in committee.

As I explained when the matter was first raised:

...the Speaker acts as a court of appeal, as it were, from decisions of committees in respect of admissibility of amendments for certain purposes that they can be arguably beyond the scope of the bill or beyond the principles of the bill that was sent to committee at second reading.

In this case, I am simply being asked whether or not the two amendments in question are admissible, more precisely, whether the two amendments in question are within or beyond the scope of Bill C-21.

I said earlier that I agreed with the hon. parliamentary secretary that the principle and scope of the bill relate to the repeal of section 67 of the Canadian Human Rights Act. Now, after due consideration of the procedural issues involved, I have concluded that neither of the disputed amendments, namely new clauses 1.1 and 1.2, interfere with that principle.

In the view of the Chair, the two amendments neither restrict nor expand nor conflict with the repeal of section 67 of the Canadian Human Rights Act, which we all seem to agree is the principle of Bill C-21.

New clause 1.1 describes the existing aboriginal rights framework. New clause 1.2 refers to the due regard that is to be given to first nations legal traditions and customary laws in the adjudication of future complaints made possible under the act by the repeal of section 67.

In the words of the hon. member for Winnipeg South Centre, “The bill, as amended, still proposes to repeal section 67 of the Canadian Human Rights Act; it still proposes a review and a transitional period for the said repeal”. In short, neither amendment introduces conditions whereby the repeal of section 67 would not take effect. Rather, both amendments provide guidance of a general nature and in a context specific to first nations.

For these reasons, I find the two amendments to Bill C-21 adopted at committee stage to be admissible. I thank the parliamentary secretary for having raised this matter.

[Points of Order, February 15th, 2008]

I am now prepared to rule on the point of order raised on Monday, February 11, 2008 by the hon. House leader for the New Democratic Party concerning the admissibility of Government Motion No. 4 standing on the order paper in the name of the Leader of the Government in the House of Commons and Minister for Democratic Reform.

I would like to thank the House leader for the New Democratic Party for raising this matter, as well as the hon. member for Mississauga South and the hon. Parliamentary Secretary to the Leader of the Government in the House of Commons for their contributions on the issue.

The House Leader of the New Democratic Party argued that the preamble of Government Motion No. 4 amounted to a series of arguments that are really debating points. This, she said, is contrary to the practices of this House, which do not allow for motions to be in the form of a speech or to include argumentative clauses.

In support of her argument, she quoted Beauchesne, 6th Edition, citation 565, as well as House of Commons Procedure and Practice, p. 449, which states:

A motion should not contain any objectionable or irregular wording. It should not be argumentative or written in the style of a speech.

In addition, she expressed concern about the procedural viability of the motion due to its length and the fact that it includes conditions that are outside the House’s control.

For these reasons, the House leader for the New Democratic Party requested that the government either withdraw Motion No. 4 and replace it with a motion reworded such that the offending parts are removed, or failing any indication on the part of the government that it would do so, that the Chair rule this motion inadmissible and allow the government to present a new one.

The member for Mississauga South agreed that the preamble to the motion was tantamount to argument which, instead, should be raised during the course of debate. He added that in his experience preambles are discouraged and contended that allowing debate to proceed on this motion in its current form would set a precedent that could lead to some degree of confusion with respect to the procedural acceptability of motions placed on notice in future. In his submission, the Parliamentary Secretary to the Leader of the Government in the House pointed out that in fact there have been examples of motions that were very broad in scope and that on that basis, the motion in question is procedurally appropriate.

In some respects, the House is not unfamiliar with the arguments raised in this case as the whole notion of the procedural acceptability of motions which contain preambles has been raised several times in the past. A survey of relevant precedents, as well as of relevant rulings, reveals that the House has debated numerous motions that were accompanied by a preamble.

While the precedents reach far back into our parliamentary history--the parliamentary secretary correctly referred to a fairly recent example regarding distinct society which occurred on December 6, 1995--in the last session alone there were two supply day motions that are especially pertinent to the present discussion. The first, standing in the name of the hon. member for Bourassa, dealt with Canada's involvement in Afghanistan and was debated on April 19, 2007. The second, on the same subject, was, as the hon. parliamentary secretary pointed out on Thursday, February 14, 2008, sponsored by the hon. member for Toronto—Danforth and was debated on April 26, 2007. Both these motions contained a preamble of considerable length made up of several clauses not unlike those contained in Government Motion No. 4. Their procedural acceptability was not contested. This is consistent with the ruling given by Mr. Speaker Michener on January 16, 1961, on page 1074 of Debates where he indicated that “it is amply established that a preamble is in accordance with our practice”.

In that same ruling, Mr. Speaker Michener also dealt conclusively, although with some reluctance, with the issue of length when he went on to say:

The use of the preamble can lead to absurd lengths. By way of example I have only to cite one instance which I found in 1899 of a motion the preamble of which covers 21 pages of the journals. It is, I might say, a procedural monstrosity, but there it is as a precedent.

Clearly, the procedural acceptability of motions is not gauged by their length.

With regard to the inclusion of conditions in motions, it is perhaps useful for the Chair to remind the House that it is not the Speaker's role to judge the effectiveness of proposals brought forward for debate.

As House of Commons Procedure and Practice states at page 448:

A resolution of the House makes a declaration of opinion or purpose; it does not have the effect of requiring that any action be taken--nor is it binding. The House has frequently brought forth resolutions in order to show support for some action.

The Chair is therefore not in a position to conclude that the inclusion of conditions in the motion currently in question renders it inadmissible. Rather, they are simply an additional aspect of the issue contained in the motion that honourable members will need to consider as they debate and, ultimately, decide.

Under the circumstances, I must conclude, therefore, that government motion No. 4 is admissible and may be proposed to the House in its current form.

That being said, the point raised by the hon. member for Mississauga South regarding his experience that preambles in motions are discouraged is one into which I will enquire further. In the meantime, this is certainly an issue the Standing Committee on Procedure and House Affairs may wish to look into with a view, ultimately, to making recommendations.

I thank the House leader of the New Democratic Party for bringing this matter forward and to the attention of the House.

[Points of Order, February 12th, 2008]

The Chair certainly appreciates the diligence of the hon. member for Simcoe North in this matter. Having anticipated that this might be his point of order, I have the text of the question before me.

The hon. member for Beaches—East York in her question asked this:

Does the chairperson plan an early meeting of the committee to consider how the Minister of Canadian Heritage, Status of Women and Official Languages misled the committee this week during her appearance regarding equality?

In other words, the question did, in my view, deal with the schedule and agenda of the committee, which is a question that is permitted. The question did ask, is there going to be an early meeting of the committee? It did go on to ask about the business of the committee, but the agenda is properly part of the question. The question was, is there going to be an early meeting of the committee to consider this item on the agenda? In my view, that kind of question is in order.

The answer did not have much to do with the question, but Speakers are stuck on answers, as the hon. member knows. I am sure he is very sympathetic to the position of the Chair, because frequently we have questions that are asked and a response is given that does not answer the question and in fact has nothing to do with the question. But it is not for the Speaker to decide whether those answers are in order or not in the circumstances.

The provisions in Marleau and Montpetit deal with questions. The hon. member will notice that they do not tend to deal with answers. Some have suggested that question period in the House is called question period, not answer period, because the response does not necessarily answer the question that is asked.

In this case I agree that the response from the chairperson of the committee was not an answer, using the usual expression of answer, to the question that was asked. It was a response, but it had relatively little to do with the question.

I believe the question met the exigencies of our procedure in that it did deal with the schedule. It asked when the committee might meet and about the agenda for that meeting. In my view, therefore, it was in order. It may have had other undertones in it that Speakers would prefer not to have in there, but the fact is, in my view, that it did deal with those two items and therefore I allowed the question.

I can only sympathize with the hon. member when we deal with answers. As I have said, Speakers have very little to say over what constitutes the response to a question. If the response is not an answer to the question, I cannot rule the response out of order unless unparliamentary language is used in the response, which would of course be out of order and which he has not suggested occurred in this case. I sympathize, but there we will leave that one.

I appreciate the member's diligence in checking this out and raising the matter.

[National Sustainable Development Act, February 11th, 2008]

I am now prepared to rule on the point of order raised by the hon. Parliamentary Secretary to the Leader of the Government in the House of Commons on December 11, 2007, concerning the national sustainable development act, Bill C-474, standing in the name of the hon. member for Don Valley West, and its requirement for a royal recommendation. I wish to thank both the hon. parliamentary secretary as well as the member for Don Valley West for their submissions on this matter.

In his intervention, the hon. parliamentary secretary contended that the bill's provisions to establish a new and independent Commissioner of the Environment and Sustainable Development would not only require new government spending but also represent a change in the conditions and qualifications of the royal recommendation that accompanied the 1995 amendments to the Auditor General Act.

He also contended that the establishment of a new Commissioner of the Environment and Sustainable Development was similar to the creation of a new government department and that such provisions needed to be accompanied by a royal recommendation. He cited a ruling of July 11, 1988 when two report stage motions, the first of which proposed the establishment of a separate department of government and the second a separate commissioner of multiculturalism, were ruled out of order on the basis that they offended the royal recommendation which accompanied that bill.

Finally, citing a ruling of September 19, 2006 on the Development Assistance Accountability Act, Bill C-293, which concluded that a royal recommendation was required for the establishment of an advisory committee for international cooperation, the parliamentary secretary argued that the creation of an advisory council on sustainable development also requires a royal recommendation on the basis that it would result in the expenditure of public funds in a manner and for a purpose not currently authorized.

In his submission on January 31, 2008, the hon. member for Don Valley West conceded that the bill needed to be accompanied by a royal recommendation. He indicated that he would work with other members at the committee stage to amend the bill in such a way that any impediments to its progress would be removed. The Chair wishes to commend the hon. member for his constructive approach.

In order to assist the House, the Chair has carefully reviewed the provisions contained in Bill C-474 to identify the provisions that caused concern regarding the royal recommendation while at the same time responding to the point of order raised by the hon. parliamentary secretary .

The appointment of the Commissioner of the Environment and Sustainable Development is currently carried out under section 15.1 of the Auditor General Act. It states:

15.1(1) The Auditor General shall, in accordance with the Public Service Employment Act, appoint a senior officer to be called the Commissioner of the Environment and Sustainable Development who shall report directly to the Auditor General.

Bill C-474, on the other hand, would provide for the Commissioner of the Environment and Sustainable Development to be appointed by the governor in council as an independent commissioner instead of being appointed by and reporting to the Auditor General. Although funds may have already been appropriated for the position of Commissioner of the Environment and Sustainable Development under the Auditor General Act, the Chair agrees with the arguments put forward by the hon. parliamentary secretary to the effect that the provisions contained in Bill C-474 would clearly alter the conditions under which these appropriations were originally authorized.

Bill C-474 also proposes a new mandate for the commissioner. The current mandate is spelled out in section 21.1 of the Auditor General Act. It states:21.1 The purpose of the Commissioner is to provide sustainable development monitoring and reporting on the progress of category 1 departments towards sustainable development—

Category I departments are defined in the act as any departments named in Schedule I of the Financial Administration Act, in the schedule to the Auditor General Act or identified by the governor in council under subsection 24(3).

However, clause 13 of Bill C-474 would modify the mandate of this new independent commissioner to require, namely, the development of “a national sustainability monitoring system to assess...the state of the Canadian environment, nationally and by province” as well as “...the national and provincial performance in meeting each sustainable development goal...” listed in the bill.

Goals listed in the bill include “generating genuine wealth, shifting to clean energy, producing healthy food and building sustainable cities”, to quote the bill.

As House of Commons Procedure and Practice points out, on page 711:

A Royal Recommendation not only fixes the allowable charge, but also its objects, purposes, conditions and qualifications.

The clause 13 requirements would impose additional functions on the commissioner that are substantially different from those foreseen in the current mandate. In the Chair's view, clause 13 thus alters the conditions set out in the original bill to which a royal recommendation was attached.

Finally, the hon. parliamentary secretary argued that the creation of the sustainable development advisory council provided for in Bill C-474 requires a royal recommendation since this would require the expenditure of public funds in a manner and for a purpose not currently authorized.

Clause 7 of the bill provides for the governor in council to appoint 25 representatives to the advisory council. Section 23 of the Interpretation Act makes it clear that the power to appoint includes the power to pay. As the provision in Bill C-474 is such that the governor in council could choose to pay a salary to these representatives, this involves an appropriation of a part of the public revenue and should be accompanied by a royal recommendation. If the intention of the bill is that these representatives would not be paid, then this should be clearly expressed in the bill.

For all of these reasons, I will decline to put the question on third reading of this bill in its present form unless a royal recommendation is received.

However, debate is currently on the motion for second reading and this motion shall be put to a vote at the close of the second reading debate, of course in conformity with the Standing Orders of the House.

Resuming debate, the hon. Parliamentary Secretary to the Minister of Transport.

[Points of Order, February 8th, 2008]

I have indicated that I am going to consider the remarks and look at what he said. If necessary, I will come back to the House to address this. That is the end of the question. I do not believe there are any other points to raise. I have to look at what he said. I will do so and, if necessary, I will come back to it.

I would now like to come back to the question of privilege raised by the hon. member for Wascana.

Yesterday, when this happened, no one rose except the government House leader to answer the question concerning the business of this committee, so I recognized the government House leader. I did not see the chair of the committee. I do not know whether he left the House or not. In any event, he did not rise to answer the question, and I do not believe he was in his seat. I do not know who the deputy chair of the committee is off the top of my head, but no other member rose to answer, so I recognized the government House leader.

I do not think the question is whether anyone else is allowed to answer or not. The question for the Speaker of the House is to take a look at those who are standing to answer and choose who is going to answer.

The chair, as I say, did not rise. The House leader did. No one else did so I recognized the House leader to answer the question. I assumed the member would prefer to get an answer from the House leader than none whatsoever, and on we went.

If the Committee on Procedure and House Affairs wishes to make recommendations on how the Speaker should deal with those questions in future, I am more than happy to receive recommendations from it. Of course the House leaders and whips can have a little meeting and tell me what they think. I am happy to hear on this, but in my view, when no one else rises, it is reasonable to expect an answer to a question, even if it comes from on high. Yesterday that is exactly what we got.

Therefore, I do not think it was an error in that sense if the chair was not here and the deputy chair did not rise.

[Privilege, February 4th, 2008]

Before we turn to government orders, I have a ruling to give.

I am now prepared to rule on the question of privilege raised on Tuesday, January 29, by the hon. member for Mississauga South alleging that members of the opposition were impeded in carrying out their responsibilities when requesting information from public servants.

I would like to thank the hon. member for raising this matter and for providing the Chair with further comments since that time. I also want to thank the hon. member for Joliette, the hon. member for Vancouver East, and the hon. Parliamentary Secretary to the Leader of the Government in the House for their interventions when the matter was raised as well as the hon. member for Yukon and the hon. member for Scarborough—Rouge River who later provided their views on this issue. Finally, I thank the hon. Minister of Health for rising twice in the House to provide clarification on the procedures in his department and on steps the department is taking to ameliorate its practices.

In presenting his case, the member for Mississauga South charged that officials at the Department of Health treated requests from members of the opposition differently than those from members of the governing party.

He indicated that when his staff tried to obtain information from the department on behalf of a constituent, officials asked his staff if the member requesting the information was a member of the opposition.

Later, the hon. member himself was informed by the department that in responding to members, officials were required to fill out a form and monitor the details of the member's request.

The hon. member argued that this requirement caused delays in his being given the information requested and he claimed further that the departmental official acknowledged that this same information would have been communicated immediately to constituents who called the department themselves. The hon. member concluded that this approach constituted an impediment to his performance as a member of Parliament.

The members for Joliette and Vancouver East expressed serious concern regarding this particular case, noting the impact of this kind of conduct on the ability of opposition Members to fulfill their duties without obstruction.

The member for Scarborough—Rouge River underlined that the process complained of constituted an obstruction to the work of members because it delayed access to information which an ordinary citizen could obtain more expeditiously. He argued that this situation undermined the members' capacity to serve their constituents efficiently and well.

For his part, the Minister of Health, in his original intervention, indicated that it was not the standard operating procedure of the department to ask callers to identify the affiliation of the member who requires the information.

Later, however, the minister rose to explain that the department did indeed have responding officials fill out a form which included party affiliation of the questioner.

He went on to explain that this practice aimed simply to keep the department's parliamentary affairs officials apprised of issues and the need for possible follow-up. He acknowledged that seeking to learn the party affiliation of inquiring MPs might be misconstrued and that the practice would be changed immediately.

The Chair sees two important issues in the case raised by the hon. member for Mississauga South. The first focuses on public service procedures when providing information to members of Parliament and the alleged difference in which such requests are processed depending on which side of the House the member sits.

The second issue relates to a possible obstruction of members' ability to provide services to their constituents in a timely fashion, an obstruction that can create a perception in the mind of constituents that members of Parliament are not able to serve their constituents effectively.

From the Chair's point of view, however, the question is a good deal simpler: does the manner in which public servants serve members of Parliament when dealing with constituency matters constitute a prima facie breach of privilege or contempt of the House?

In ruling on a question of privilege raised by two members alleging that a department had directed its officials not to release information on certain projects, thus infringing on their ability to serve their constituents, Mr. Speaker Bosley indicated on May 15, 1985, at page 4769 of the Debates:

I think it has been recognized many times in the House that a complaint about the actions or inactions of government Departments cannot constitute a question of parliamentary privilege.

The 23rd edition of Erskine May on page 143 also refers to this principle:

Correspondence with constituents or official bodies, for example, and the provision of information sought by members on matters of public concern will very often, depending on the circumstances of the case, fall outside the scope of “proceedings in Parliament“ against which a claim of breach of privilege will be measured.

Furthermore, with respect to a similar question of privilege, Mr. Speaker Parent in a ruling on October 9, 1997, at page 687 of the Debates, stated:

—in order for a member to claim that his privileges have been breached or that a contempt has occurred, he or she must have been functioning as a member at the time of the alleged offence, that is, actually participating in a proceeding of Parliament. The activities of members in their constituencies do not appear to fall within the definition of a “proceeding in Parliament”.

And he went on to say:

In instances where members have claimed that they have been obstructed or harassed, not directly in their roles as elected representatives but while being involved in matters of a political or constituency related nature, Speakers have consistently ruled that this does not constitute a breach of privilege.

Let me assure the House that the Chair understands that all hon. members wish to serve their constituents as expeditiously and efficiently as possible. Indeed, in another incarnation, as the representative for Kingston and the Islands, I share that laudable objective with all of my colleagues.

However, as Speaker, I must view matters through the rather narrow prism of parliamentary privilege. In that light, it does not appear to the Chair that the hon. member has been obstructed in the performance of his parliamentary duties and therefore, I cannot find that a prima facie breach of privilege has occurred.

That said, the hon. member for Mississauga South and other members have raised legitimate concerns regarding the efficiency of the procedures used by public servants as they relate to requests from members of Parliament. There are other avenues where members could raise these concerns, notably in the appropriate standing committees, where they might enquire about the procedures in place in various departments and agencies and make helpful recommendations for assisting them to respond more efficiently and effectively to the needs of members of Parliament seeking information to assist constituents.

I thank the hon. member for Mississauga South for bringing this matter to the attention of the House.