Peter Milliken

[Private Members' Business, May 31st, 2006]

With the indulgence of the House, since we are about to take up private members' business for the first time in this session later this afternoon, and indeed in this Parliament, I wish to make a statement regarding the management of such business, particularly with regard to how it has evolved over the past few years.

In March 2003 the House adopted provisionally a series of new procedures for the conduct of private members' business. I need not go into all the details here except to say that one of the main principles of this reform was that, over the course of a Parliament, each eligible member would have the opportunity to have an item debated and voted upon. These rules have since been made permanent. While it can be argued that such a system creates more opportunities for private members, it is important to note that such possibilities are not limitless. Certain constitutional procedural realities constrain the Speaker and members insofar as legislation is concerned.

At the beginning of the last Parliament, on November 18, 2004, I reminded all hon. members about the new procedures governing Private Members’ Business and the responsibilities of the Chair in the management of this process. One procedural principle that I underscored in that statement, and in others over the course of the 38th Parliament, concerned the possibility that certain private member’s bills may require a royal recommendation.

While it may seem that this preoccupation of the Chair is new, in fact it is grounded in constitutional principles found in the Constitution Act, 1867. The language of section 54 of that act is echoed in Standing Order 79(1), which reads:

This House shall not adopt or pass any vote, resolution, address or bill for the appropriation of any part of the public revenue, or of any tax or impost, to any purpose that has not been first recommended to the House by a message from the Governor General in the session in which such vote, resolution, address or bill is proposed.

Any bill which authorizes the spending of public funds or effects an appropriation of public funds must be accompanied by a message from the Governor General recommending the expenditure to the House. This message, known formally as the royal recommendation, can only be transmitted to the House by a Minister of the Crown.

This provision protects a fundamental element of responsible government. While all spending must be authorized by Parliament, only the Crown, that is to say the government, may initiate requests for funds.

The government is subsequently held accountable for the spending of such funds.

Recent changes in House procedure have resulted in more attention being paid to the royal recommendation. Until a few years ago, a private member could not even introduce a bill which involved spending provisions. Since 1994, such bills may be introduced and considered right up until third reading, on the assumption that a royal recommendation would be provided by a minister. If none is produced by the conclusion of the third reading stage, the Speaker is required to stop proceedings and rule the bill out of order.

The reforms adopted in 2003 have resulted in more private members' bills being votable, thereby increasing the number of bills with the potential to reach the third reading stage. In addition, as members have only one opportunity to sponsor an item over the course of a Parliament, the Chair wishes to provide members with ample opportunity to address possible procedural issues in relation to their bills. For these reasons, a number of new practices have been instituted.

Where it seems likely that a bill may need a royal recommendation, the member who has requested to have it drafted will be informed of that fact by the legislative counsel responsible for drafting the bill. A table officer will also send a letter to advise the member that the bill may require a royal recommendation.

Should the member decide to proceed with the bill and select it for inclusion in the order of precedence, then, at the beginning of the second reading debate, the Speaker will draw to the attention of the House concerns regarding the royal recommendation. Members may then make submissions regarding the royal recommendation and, if necessary, the Chair will return with a definitive ruling later in the legislative process.

As is stated in House of Commons Procedure and Practice at page 712,

The Speaker has the duty and responsibility to ensure that the Standing Orders on the royal recommendation as well as the constitutional requirements are upheld. There is no provision under the rules of financial procedure which would permit the Speaker to leave it to the House to decide or to allow the House to do so by unanimous consent.

There are a number of bills on the order of precedence which cause the Chair some concern. At first glance, certain provisions of these bills raise questions about the need for a royal recommendation.

These bills are as follows: Bill C-292, standing in the name of the right hon. member for LaSalle—Émard; Bill C-257, standing in the name of the hon. member for Gatineau; Bill C-293, standing in the name of the hon. member for Scarborough—Guildwood; Bill C-286, standing in the name of the hon. member for Lévis—Bellechasse; Bill C-284, standing in the name of the hon. member for Halifax West; Bill C-278, standing in the name of the hon. member for Sydney—Victoria; Bill C-269, standing in the name of the hon. member for Laurentides—Labelle; Bill C-295, standing in the name of the hon. member for Vancouver Island North; Bill C-303, standing in the name of the hon. member for Victoria; and Bill C-279, standing in the name of the hon. member for Burlington.

While these bills cause me concern, I am not prepared at this point to make a definitive ruling on them. As always, the Chair remains open-minded on these questions. If members wish to present arguments as to why they feel these bills do or do not require a royal recommendation, I certainly would be prepared to hear them. I would then return to the House at the appropriate time with a final decision.

In closing, let me say that while I have no doubt that it is my responsibility as Speaker to uphold the requirements of the Standing Orders and exceptionally, in cases such as these, the Constitution, the duty of reviewing private members' bills for spending provisions is an increasingly onerous one. For this reason, I would welcome any suggestions from the House, House leaders or, indeed, from the Standing Committee on Procedure and House Affairs, on how to improve our process in relation to this aspect of the management of private members' business.

I thank all hon. members for their attention.

The hon. member for Hochelaga on a point of order.

[Privilege, May 10th, 2006]

I am now prepared to rule on the question of privilege raised on Thursday, April 27, by the hon. member for Winnipeg Centre, alleging that the privileges of the House as a collectivity had been breached by the government's refusal to lower the flags within the parliamentary precincts to half-mast to mark the deaths of Canadian soldiers in Afghanistan.

I would like to thank the hon. member for raising this matter, as well as the hon. government House leader and the hon. opposition House leader for their interventions.

To recapitulate briefly the arguments presented, the hon. member for Winnipeg Centre contends that it is the Speaker of the House of Commons, on behalf of the Parliament of Canada, who has the authority to determine when the flag on the Peace Tower is lowered and not the Department of Canadian Heritage or the Department of Public Works and Government Services Canada.

The hon. member cited a passage from page 170 of the second edition of Joseph Maingot's Parliamentary Privilege in Canada, which states:

Each House of Parliament is entitled to the administration of affairs within its own precincts free from interference....Control of the accommodation and services within the Parliament Buildings is therefore vested in the Speakers on behalf of their respective Houses.

The hon. member then argued that control of the accommodations and services of the parliamentary buildings, including the flagpole, is vested in the Speakers of the Senate and the House of Commons. He concluded that the government had overstepped its authority by dictating whether or not the flag on the Peace Tower should be lowered, thus usurping the privileges of the House.

The hon. government House leader argued that the lowering of the flag is the prerogative of the Crown and that it is up to the Government of Canada to exercise that prerogative. For his part, the hon. opposition House leader requested that the Speaker seek a legal interpretation of the authority of government departments vis-à-vis Parliament.

Let me clarify at the outset that it is not the role of the Speaker to give a legal opinion. Furthermore, I need hardly remind members that ours is a bicameral Parliament so that, were I to find that as Speaker of the House of Commons I have some role in this matter, it would follow that the other place would also need to be consulted on any decision concerning the flag that flies on a building shared by both Houses.

For the moment, though, this matter has been raised as a question of privilege in this House and my only role is to determine whether the privileges of members have been breached.

I believe it would be useful to all members if I summarized quickly the status of the Parliament buildings from an administrative perspective.

As I noted when the matter arose, the House of Commons and the Senate are tenants of the Department of Public Works and Government Services. Title to the buildings and land is in the name of Her Majesty in Right of Canada. By virtue of section 10 of the Department of Public Works and Government Services Act, the administration of federal property falls under the jurisdiction of the minister of that department.

That being said, because the Senate and the House of Commons are not government departments but constituent elements of Parliament with the right to administer their own affairs free from interference, the Speakers of the Senate and of the House of Commons have control over the accommodation and services within those areas of the parliamentary precinct occupied and used by senators and members.

These areas are defined in the second edition of Maingot's Parliamentary Privilege in Canada, at page 163, as, and I quote:

—the premises that the House of Commons and the Senate occupy from time to time for their corporate purposes. It includes those premises where each House, through its Speaker, exercises physical control to enable the members to perform their parliamentary work without obstruction or interference.

The hon. member for Winnipeg Centre argued that the House's collective rights were breached because the government assumed direction and control over the parliamentary precinct. The House of Commons has a number of rights which it claims and which have been accorded to it by statute. The right to regulate its internal affairs is the collective right that is pertinent in this matter.

The essential question is whether the half-masting of the flag on the Peace Tower is an internal affair falling within the privileges of the House, or an external matter under the jurisdiction of the owner of the building.

It appears clear to me that this is a matter falling within the jurisdiction of the Government of Canada since the Department of Public Works and Government Services has administrative responsibility for the building. Just as that department, as our landlord, carries out the upkeep of the parliamentary buildings, so too an official from Public Works and Government Services Canada is responsible for raising and lowering the flag each day on the Peace Tower.

The protocol for the flying of the Canadian flag falls under the Department of Canadian Heritage, which is generally responsible for Canadian symbols. Members can find on the heritage website the rules concerning half-masting of the flag on federal buildings, including the Parliament buildings. These rules and their application are a matter for the executive; they are not matters over which the Speaker has any control.

While it is my role as Speaker to protect the House's control over its premises and to protect the access of members to these premises, I cannot find that the government's control of the flag on the Peace Tower infringes on the privileges of the House. Specifically, this is not a matter that relates to the internal affairs of the House in that it does not prevent the House from carrying out its work or prevent members from carrying out their parliamentary duties.

Accordingly I cannot find a prima facie case of privilege. I thank the hon. member for Winnipeg Centre for bringing this matter to the attention of the house.

[Privilege, May 3rd, 2006]

I am now prepared to rule on the question of privilege raised on Thursday, April 6, 2006 by the hon. member for Scarborough Southwest, alleging that public servants refused to communicate with him during the recent election campaign.

I would like to thank the hon. member for raising this matter, as well as the hon. member for Prince George—Peace River, the hon. member for Saint-Hyacinthe—Bagot and the hon. member for Halifax for their interventions. I also want to thank the hon. Parliamentary Secretary to the Government House Leader and Minister for Democratic Reform for his intervention on April 7, 2006.

In presenting his case, the hon. member for Scarborough Southwest stated that departmental officials refused to meet with him during the recent general election to discuss the Anti-terrorism Act. In the last Parliament, the hon. member had been a member of the Subcommittee on Public Safety and National Security of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness. The subcommittee had been reviewing the operations of the Anti-terrorism Act, but before it had the opportunity to finalize its report, the 38th Parliament was dissolved on November 29, 2005.

After dissolution, the hon. member attempted unsuccessfully to contact departmental officials from various departments to discuss some of his proposed recommendations. He was advised on two separate occasions that a policy directive had been issued prohibiting public servants from communicating with members of Parliament during the campaign period.

The member alleged that this directive impeded his ability to discharge his duties as a member of Parliament. In support of his position, the hon. member argued that, after dissolution, members of Parliament remain in office until election day, and thereafter if re-elected, and during this period are still considered by their constituents to be members.

In his intervention, the hon. parliamentary secretary indicated that the Privy Council Office did not have a policy prohibiting public servants from communicating with members during a dissolution period. That being said, he went on to argue that a member of Parliament is a member only for such period as the Parliament exists, referring in particular to the Parliament of Canada Act, which deems that members continue in office for purposes of allowances payable only. He posited that the dissolution of Parliament terminates all parliamentary business, including committee work, and concluded that the member's parliamentary privileges were not breached.

The hon. member for Scarborough Southwest has raised two important issues, namely, the status of a member during a general election period and the issue of the relationship between members of Parliament and public servants. Let me deal first with the matter of whether or not a member remains a member during a dissolution period.

As the hon. Parliamentary Secretary noted, this gives rise to certain questions. At dissolution, Parliament, comprised of the Crown, the Senate and the House of Commons, no longer exercises its powers; however, the government continues to exist and Ministers remain in office until they are replaced. Members are discharged from their parliamentary duties, in other words, from the requirement to attend sittings of the House and its committees.

One could argue, as did the hon. parliamentary secretary, that the wording of the Parliament of Canada Act implies that once Parliament is dissolved, members are only members for purposes of allowances payable. Section 69 of the Parliament of Canada Act states that for purposes of allowances payable under sections 55.1 and 63, anyone who was a member as of dissolution “shall be deemed to continue to be a member of the House until the date of the next following election”.

Nonetheless, as all returning members and their staff are aware, constituents do not stop requiring assistance just because Parliament is dissolved. To this end, bylaw 305 of the Board of Internal Economy permits members to continue to use their offices to serve their constituents.

It might be argued, therefore, that during the election period, a member's role in assisting constituents continues, and this might include contacting government departments on behalf of their constituents.

This brings us to the second matter: the relationship between members and government departments. Specifically, if Parliament had not been dissolved, would the difficulties experienced by the member in meeting with public service officials constitute a prima facie breach of privilege or contempt of the House?

For the sake of new members in the House, I believe it would be useful if I briefly described what is meant by parliamentary privilege. The classic definition of parliamentary privilege is found in Erskine May's Treatise on the Law, Privileges, Proceedings and Usages of Parliament:

Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively...and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.

Obstructing members in the discharge of their responsibilities to the House or in their participation in its proceedings is considered a contempt of the House. My predecessors have consistently upheld the right of the House to the services of its members free from intimidation, obstruction and interference. However, before the protection of parliamentary privilege can be invoked, the member's activity must be linked to a proceeding in Parliament.

The 22nd edition of Erskine May, on page 121, puts the matter succinctly:

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 privilege will be measured.

As I have already indicated, members have risen on numerous occasions over the years on questions of privilege, alleging that they have been obstructed by government officials in fulfilling their responsibilities. For example, on May 15, 1985, two members, Mr. Frith, Sudbury, and Mr. Malépart, Montréal--Sainte-Marie, rose in the House to claim that their privileges had been breached, alleging that the Department of Employment and Immigration had directed its officials not to release information on certain projects, thus infringing their ability to serve their constituents. Speaker Bosley ruled that a complaint about the action or inaction of government departments could not constitute a question of parliamentary privilege as it did not infringe on members' freedom of speech or prevent members from fulfilling their duties. This ruling can be found at page 4768 of the Debates for May 15, 1985.

On another occasion, in ruling on a question of privilege raised by hon. member for Wild Rose concerning information allegedly denied to him by an official of the Department of Indian Affairs and Northern Development, Speaker Parent found that the situation had not precluded the member from participating in a parliamentary proceeding. The Speaker ruled, therefore, that a contempt of Parliament had not occurred. This ruling is found at pages 687 to 689 of the Debates for October 9, 1997.

These precedents, where no prima facie case of privilege was found, arise in cases where the House was actually in session, whereas in the case before us not only was the House not in session, Parliament was actually dissolved. Accordingly, while I will concede that the hon. member may very well have a grievance, I have to conclude that the hon. member has not been obstructed in the performance of his parliamentary duties. I cannot, therefore, find a prima facie case of privilege.

I thank the hon. member for Scarborough Southwest for bringing this matter to the attention of the House as well as those members who contributed to the discussion.

[Privilege, April 6th, 2006]

I think I have heard enough on this point for the moment. I will deal with the second question of privilege first.

The hon. member for Scarborough Southwest has raised a question about advertising that, in my view, has nothing to do with his privileges as a member. The rights granted to him by the Board of Internal Economy to advertise, to give him a budget and so on are not privileges of members of Parliament. They are rights that are granted by the board and by statute and do not come with the package of privileges that we normally claim as privileges of members of the House. Accordingly, I will treat the matter as referred to the Board of Internal Economy.

The member could write to the board and make it clear but I think the board could receive the Hansard of today, look at it and decide whether or not the member has an argument. However it is purely a technical argument with the board. It has nothing to do with privileges and, accordingly, in my view it ought not to be raised as a question of privilege and I dismiss it out of hand.

On the first question of privilege we have heard submissions from various parties in the House and I thank hon. members for their submissions. I will take the matter under advisement so that if the Parliamentary Secretary to the Leader of the Government in the House of Commons wishes to come back later he will have an opportunity to make further argument on it. It need not necessarily be today. Then, if the hon. member for Scarborough Southwest wishes to respond to his arguments, I will hear more.

I will take the matter under advisement. I will look into it and come back to the House with a ruling in due course.

[Election of Speaker, April 3rd, 2006]

Hon. members, I beg to return my humble acknowledgments to the House for the great honour you have been pleased to confer upon me by choosing me to be your Speaker.

I must say it is a pleasure to be back in the House after our absence of several months and to have this chance to express my thanks to the electors of Kingston and the Islands for returning me once again to be their member of Parliament.

It is a pleasure to have the opportunity to serve in this chamber, as those of us who have been here for a while have discovered, and for those who are newly elected will find out over the next few days. I look forward very much to the sittings of the House for the next while.

As I mentioned this morning, the change in the seating arrangements is one that some of us find a little more dramatic because there has been quite a shift. I recognize the advantages of sitting on either side having done it before, so I appreciate the chance to recognize members from different sides. I hope I do not make too many errors in calling members by former titles or names. There has been a shift and I will try to be correct about that.

I also want to say how much I look forward to the official opening of the House tomorrow and the debates that will follow.

Thank you for electing me as your Speaker. I have spoken with a number of you. I appreciate the support you have given me in the past and the support you have shown for me today. The Speaker cannot do his job without the strong backing of all the members. I hope that you will help me during the session that will open tomorrow.

I also want to acknowledge the presence in the gallery of three of my sisters, Katherine, Amanda and Elizabeth, and the husbands of Kathy and Elizabeth. My mother is also present with my brother and his wife, Pat. I am delighted they could be here today, as they have been in the past.

I look forward very much to our opportunities to meet over the next few days.

I hope that we will have many opportunities to meet at receptions and other events that will follow the opening of Parliament. The work that the members do is extremely important to the House, the Speaker and everyone and such events afford us important opportunities to get together.

I hope the new members will get to meet some of the more experienced ones over the course of the next week or two. In the experience we have had here, it is a great group of men of women that Canadians have chosen to represent them in the House.

I look forward very much to working with all of you to make our country a better place to live. Thank you very much.

And the mace having been laid upon the table:

[Election of Speaker, April 3rd, 2006]

Mr. Chairman and hon. colleagues, I want to express to each member my congratulations on their re-election or first election to the House.

It is always a pleasure to serve the House as a member of Parliament and I am grateful to the electors of Kingston and the Islands for giving me the mandate to represent them here once again.

For those who are back, I am delighted to see them back. For those who are new, I express my congratulations, and I hope they enjoy their experience as a member of this place.

As members know, I have been considered by some as a bit of a procedural junkie since my election here in 1988. I have enjoyed working in procedural matters from the beginning, whether it was on the opposition side, the government side or in the chair. I have been a chair occupant now since 1996, either as Speaker or Deputy Speaker or Deputy Chair of Committees of the Whole House.

During that time I always appreciated the cooperation of the hon. members from every party in the House and I wish to be able to continue in the role of Speaker during this Parliament.

There are three important aspects to being the Speaker of the House. Tomorrow the Speaker will deliver a short speech to the Governor General addressing the most important aspect, namely that the Speaker is a servant of the House.

As such, I believe the Speaker has a role to play in moderating debate and choosing who speaks next and so on, but there is also a great deal of cooperation that Speakers demand from members of the House in making the House function properly. I have always appreciated and enjoyed the opportunity to work with other members, with the whips and House leaders of the various parties and of course with the independent members to ensure that the House functions, not always smoothly, but that it does function.

The Speaker must also represent the House and the hon. members.

Over the years, I have often had the opportunity to explain to Canadians the role and responsibilities of the members of Parliament and make Canadians aware of the importance of the work that the hon. members do here in the House and in their ridings. After all, as I said, the Speaker represents the hon. members and I believe it is very important to continue to explain their role to Canadians.

I also feel that the Speaker has a role in making very impartial rulings in the House. I have had many occasions when issues have come before the House that required a decision from the Chair, including, of course, a number of ties on votes, which happens from time to time and sometimes involves the Speaker in making a decision. On each occasion I have appreciated the support of hon. members, even when they were on the losing side of the casting vote, because I think the Speaker has to try to make the decision based on procedural practice, which of course I have sought to do on the three occasions that have happened during my term as Speaker.

In every case I have worked with members in promoting the House and its values, in promoting this place as a debating chamber, as a place where we can work together, and where parties are encouraged to work with one another to ensure that the business of the House gets done.

I feel that over the past few years the House has accomplished quite a bit. We have addressed many bills presented in the House and considered every motion introduced here.

We have had considerable progress despite the fact that we have had minority governments and of course shifting seating arrangements in the House.

I would appreciate the support of hon. members in the voting later today and I appreciate the years of support they have given me in the past.

[Olympic Games, September 19th, 2000]

Mr. Speaker, my constituents in Kingston and the Islands are rejoicing at the triumph of Simon Whitfield from Kingston in the men's triathlon at the Sydney Olympics.

Mr. Whitfield's gold medal is a tribute to his dedication to his sport, where he has excelled for a number of years. All Canadians were moved to see the magnificent finish in his race when he surged ahead of his opponents to win the big prize.

Sharon Donnelly, another of Kingston's athletes at the games, participated in the women's triathlon. Ms. Donnelly was a strong and hopeful medal contender, but she was involved in a bike crash caused by other riders. Despite knowing that a top finish was gone for her and despite her injuries and pain, Sharon got back on to her bicycle and finished her Olympic triathlon showing great courage.

I know my colleagues on all sides of the House join me and my constituents in congratulating Simon Whitfield and Sharon Donnelly on their accomplishments.

[Committees Of The House, February 25th, 2000]

Mr. Speaker, this is the first time I have had an opportunity to speak from my place in the House in this parliament and I am tempted to make a speech. However, I will resist that urge because it would be out of order.

Pursuant to order of reference of Thursday, February 10, 2000 your committee has considered Bill C-20, an act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference, and has agreed, on Thursday, February 24, 2000, to report it without amendments.

[Sir John, Eh?, April 21st, 1997]

Mr. Speaker, I have the pleasure of welcoming a very special guest to the House of Commons, Canada's first Prime Minister, Sir John A. Macdonald.

My predecessor as the member for Kingston has returned to Ottawa after a 106 year absence. He has asked me to invite all members of the House to visit Kingston this summer to watch actor John Blackwood portray him in the musical "Sir John, Eh?"

This musical, written by Jim Garrard and Grant Heckman, takes place in Cataraqui Cemetery where Sir John is buried. In the musical, the Macdonald family visits present day Kingston and their story-triumphant public achievement set against personal adversity and heartbreak-is told.

The show also tells the story of Canada and how the acts of Sir John continue to affect our nation today. It is a fascinating, engaging and truly entertaining play with great music. It opens, appropriately, on Canada Day.

On behalf of Sir John, I invite all Canadians to visit Kingston this summer and take in this imaginative and humourous piece of theatre.

[Questions On The Order Paper, April 15th, 1997]

How many inmates were double-bunked in correctional facilities as of December 31, 1996?