Peter Milliken

[Points of Order, December 15th, 2010]

I am now prepared to rule on the point of order raised on December 8, 2010, by the hon. parliamentary secretary to the government House leader concerning the length of Order Paper Question No. 614, standing in the name of the member for Honoré-Mercier.

I would like to thank the hon. Parliamentary Secretary for bringing this matter to the attention of the House, as well as the hon. Parliamentary Secretary to the Minister of Canadian Heritage, and the members for Honoré—Mercier, Windsor—Tecumseh, and Kitchener—Conestoga for their contributions.

The parliamentary secretary to the government House leader argued that Question No. 614 was too lengthy to meet the definition of “concise”, as required by our rules, and emphasized the difficulty the government would have in responding to so lengthy a question in its current form within the prescribed 45 days.

As all hon. members know, written questions are one of the key tools that members have at their disposal to help them seek detailed information from the government. At the same time, the practice of submitting lengthy written questions has become commonplace, particularly since the implementation of the recommendation of the 1985 report of the Special Committee on the Reform of the House, the McGrath committee, to limit members to a maximum of four written questions on the order paper at any given time.

It is in this context that the parliamentary secretary has raised the issue of what constitutes a “concise” question for the purposes of Standing Order 39(2). The Standing Order confers upon the Clerk of the House, acting for the Speaker:

...full authority to ensure that coherent and concise questions are placed on the Notice Paper in accordance with the practices of the House, and may, on behalf of the Speaker, order certain questions to be posed separately.

House of Commons Procedure and Practice, second edition, at page 520, specifies that:

Since questions must be coherent and concise, the Clerk may split a question into two or more questions if it is too broad or if it contains unrelated subquestions.

Speaker Parent added further clarification to what defines coherent and concise when, in relation to the procedural acceptability of a written question, he pointed out, on February 8, 1999, at page 11532 of Debates, that:

The issue was not the length of the question but rather the fact that it contained unrelated sub questions.

Indeed, when ruling on a similar matter on October 18, 2006, at page 3934 of the Debates, I found that very interpretation to still be valid and in keeping with our practice, noting that:

...the term concise in Standing Order 39(2) has evolved since this rule was first adopted. It is no longer interpreted to mean short or brief but rather comprehensible. Undoubtedly, this practice has evolved as a means of getting around the limit of four questions per member.

I also emphasized that in order for a question with multiple subquestions to be found admissible, there must be a common element connecting the various parts. Thus, we see that conciseness is not a matter of length, but rather of breadth and the absence of unrelated subquestions.

When written questions are submitted to the Journals Branch for inclusion in the notice paper, they are examined with a view to ensuring that all of their parts are interrelated, that they are not too broad, and that they meet various other criteria for written questions.

Because of the concerns raised with respect to Question No. 614, I took it upon myself to review it with care in light of how our practice has evolved in this regard. I am satisfied that its subquestions are indeed interrelated and that therefore there were no procedural impediments as to form and content in placing the question on the notice paper.

In short, the scope of this question is sufficiently narrow to satisfy established procedural requirements. Accordingly, the question will be allowed to stand in its present form on the order paper.

I thank hon. members for their attention to this matter.

[Points of Order, December 14th, 2010]

I am now prepared to rule on the point of order raised on November 30, 2010 by the member for Scarborough—Rouge River concerning a statement pursuant to Standing Order 31 made by the member for Brant with regard to the member for Ajax—Pickering.

I would like to thank the hon. member for Scarborough—Rouge River for bringing this matter to the attention of the House, as well as the hon. parliamentary secretary to the government House leader for his intervention.

The member for Scarborough—Rouge River claimed that the member for Brant had delivered what could only be regarded as a “negative attack” on the member for Ajax—Pickering, and argued that it was in disregard of previous rulings and the rules of the House.

In reviewing this matter it was immediately apparent to the Chair that the statement complained of related directly to committee proceedings. In a very similar case in which the conduct of a member in committee was called into question, I reminded the House in a ruling on June 14, 2010 that it is incumbent upon committees themselves to deal with issues that arise from their proceedings.

With regard to the content of the statement itself, I would like to draw the attention of the House to page 618 of House of Commons Procedure and Practice, Second Edition, where we are clearly reminded that:

The proceedings of the House are based on a long-standing tradition of respect for the integrity of all Members. Thus, the use of offensive, provocative or threatening language in the House is strictly forbidden. Personal attacks, insults and obscenities are not in order.

House of Commons Procedure and Practice, Second Edition, at page 614, goes even further in stating that:

Remarks directed specifically at another Member which question that Member's integrity, honesty or character are not in order. A Member will be requested to withdraw offensive remarks, allegations, or accusations of impropriety directed towards another Member.

This is why in my ruling from June 14, 2010, at page 3779 of the Debates, I stressed that:

When speaking in the House, Members must remain ever cognizant of these fundamental rules. They exist to safeguard the reputation and dignity not only of the House itself but also that of all its Members.

Furthermore, on page 3778, I noted, as have other Speakers:

...that the privilege of freedom of speech that members enjoy confers responsibilities on those who are protected by it, and members must use great care in exercising their right to speak freely in the House.

At that time I also expressed the Chair’s concern with the “continuing and unsettling trend toward using members’ statements as a vehicle to criticize other members”.

As the Chair has indicated in the past, personal attacks in Statements by Members pursuant to Standing Order 31 are of particular concern in that the members targeted are left without an opportunity to respond to or deal directly with the accusations that are made.

For all of these reasons, after careful review of the Statement of the member for Brant, the Chair finds that it constituted a personal attack on the member for Ajax—Pickering and that it was an inappropriate use of a statement made pursuant to Standing Order 31. Therefore, I call upon the member for Brant to withdraw his comments.

[Points of Order, December 3rd, 2010]

I am now prepared to rule on the point of order raised by the Parliamentary Secretary to the Leader of the Government in the House of Commons on November 5, 2010, concerning the requirements for a royal recommendation for Bill C-568, An Act to amend the Statistics Act (mandatory long-form census), standing in the name of the hon. member for St. Paul's.

I would like to thank the parliamentary secretary for having drawn this matter to the attention of the House as well as the member for York South—Weston for his comments.

In raising this issue, the parliamentary secretary explained that Bill C-568 would add two requirements to the Statistics Act. First, it would prescribe that in 20% of the cases, the long form census questionnaire be used and second, that the questions in the long form questionnaire be similar in length and scope to the ones contained in the 1971 census. He stated that in his view, this would constitute a new obligation for Statistics Canada given that even though the statutory authority for including a long form census questionnaire already exists, Bill C-568 would make its use mandatory instead of discretionary. He also argued that this requirement would compel the government to spend a minimum of $50 million. He concluded that since Bill C-568 would alter the conditions and qualifications of Statistics Canada's existing mandate in addition to imposing a new statutory obligation, a royal recommendation is required.

In support of his view, the parliamentary secretary made reference to a series of precedents involving bills that were found by the Chair to require a royal recommendation because they were either changing the purpose of a spending authority or adding a new function to an existing mandate.

In his intervention, the member for York South—Weston argued that Bill C-568 does not change the current mandate of Statistics Canada, nor does it add a new responsibility or a new function to the department. He contended that the bill only requires Statistics Canada to fulfill its existing mandate. He also argued that, contrary to the arguments raised by the parliamentary secretary, Bill C-568 would not entail additional expenses; in fact, he claimed that it would actually cost less.

The Chair has examined carefully the provisions of Bill C-568, An Act to amend the Statistics Act (mandatory long-form census) as well as the Statistics Act and the precedents enumerated by the parliamentary secretary.

The precedents cited by the parliamentary secretary involved bills that required a royal recommendation because they were proposing new purposes or new functions not currently authorized. Such is not the case for Bill C-568 since it does not appear to be adding to or expanding the current mandate of Statistics Canada.

This mandate may be found in paragraphs (a) and (c) of section 3 of the Statistics Act, which reads as follows:

3. There shall continue to be a statistics bureau under the Minister, to be known as Statistics Canada, the duties of which are

(a) to collect, compile, analyse, abstract and publish statistical information relating to the commercial, industrial, financial, social, economic and general activities and condition of the people;...

(c) to take the census of population of Canada and the census of agriculture of Canada as provided in this Act;

With regard to the issue of costs associated with the mandatory use of the long form as prescribed by Bill C-568, the key question for the Chair is whether what the bill proposes constitutes a new appropriation of public funds.

Section 19 of the Statistics Act states:

A census of population of Canada shall be taken by Statistics Canada in the month of June in the year 1971, and every fifth year thereafter in a month to be fixed by the Governor in Council.

In my view, this section, along with section 3 cited earlier, constitutes the statutory spending authority for Statistics Canada to conduct the census using either the short or the long form questionnaire.

Bill C-568 would require the Chief Statistician to include a long form questionnaire in 20% of the cases whenever a population census is conducted.

Even though there is now no such requirement in the Statistics Act, the Chief Statistician is currently authorized to include a long form questionnaire.

Therefore, it is my view that this would not constitute a new spending authority, nor would it alter the terms and conditions of Statistic Canada's mandate.

Consequently, from a strictly procedural point of view, the Chair cannot find that Bill C-568 requires the expenditure of public funds for a new and distinct purpose. I therefore rule that there is no requirement that the bill be accompanied by a royal recommendation and that the House may continue to consider it in accordance with the rules governing private members' business.

I thank the hon. members for their attention.

[Privilege, November 29th, 2010]

I am now prepared to rule on the question of privilege raised on November 23, 2010 by the hon. member for Outremont concerning the premature disclosure on November 18, 2010, of the confidential draft report on the prebudget consultations of the Standing Committee on Finance by an employee of the hon. member for Saskatoon—Rosetown—Biggar.

I would like to thank the hon. member for Outremont for having raised this matter, as well as the hon. Parliamentary Secretary to the Leader of the Government in the House of Commons and the hon. members for Hochelaga, Mississauga South, Kings—Hants, Saint-Léonard—Saint-Michel and Acadie—Bathurst for their interventions.

As the House well knows, normally the Chair does not get involved in matters that arise out of committee proceedings. In this case, however, the House is in receipt in the seventh report of the Standing Committee on Finance, which was tabled on Tuesday, November 23, 2010. That report contains the following motion that was adopted unanimously by the committee:

That the Committee report to the House of Commons the potential breach of privilege resulting from the release of the confidential draft report of the House of Commons Standing Committee on Finance in respect of its pre-budget consultations for 2010, entitled “Canada's Continuing Economic Recovery: What People, Businesses and Communities Need”, prior to its presentation to the House.

The report also names persons to whom the confidential draft report was sent and identifies who sent it to them. Significantly, the House has since learned that two additional persons have received the confidential draft report.

At the same time, it is important to note that prior to the tabling of this report, on Monday, November 22, 2010, the hon. member for Saskatoon—Rosetown—Biggar came to the House to explain that the individual identified as being responsible for the premature release of the committee's draft report was a former member of her staff, that she had dismissed him upon learning of his actions and that she was “sincerely sorry for the leak of the report”. See the Debates, on page 6268. The Chair wishes to state at the outset that the actions she has taken are entirely to her credit. Indeed, this has been acknowledged by colleagues from all parties.

In his intervention, the hon. member for Outremont noted that the premature disclosure of this clearly marked confidential report to a number of lobbyists, in exposing the positions of the parties, may have had the effect of impeding members in their ability to discharge their responsibilities freely. Readily acknowledging that the committee accepted the apology of the member for Saskatoon—Rosetown—Biggar, the member underscored the fact that “...this is not an individual issue, but an institutional issue that directly affects our ability to do our work as parliamentarians unimpeded”.

Thus, the committee, having done all that it could do, unanimously agreed to place the matter before the House for its consideration.

The amount of time that had elapsed, reportedly four days, before the lobbyists were approached to return or destroy the copies in their possession was a particular concern to other members who intervened. This is of particular concern to the Chair, especially in light of the speed and ease of dissemination of electronic information.

For his part, the parliamentary secretary contended that it had become the usual practice of the House in recent years to consider a matter of privilege closed upon receipt of an apology by the offending member and that therefore there was no prima facie case of privilege in this instance given the member's immediate and proactive actions.

In deciding on matters of this kind, the Chair is of course guided by our rules and practices. In this regard, House of Commons Procedure and Practice, second edition, at page 1073, unequivocally states the following.

Committee reports must be presented to the House before they can be released to the public. Even when a report is concurred in at a public meeting, the report itself is considered confidential until it has actually been presented to the House. In addition, any disclosure of the contents of a report prior to presentation, either by Members or non-Members, may be judged to be a breach of privilege.

It is with good reason that draft committee reports are treated as confidential. To do otherwise might well prejudice the ability of committee members to engage in candid deliberations free from outside interference. Violation of this principle of confidentiality can thus be seen as direct interference with the ability of members to discharge their duties.

While it is true that an apology has on occasion been deemed sufficient to resolve a possible breach of privilege, each instance must be assessed on its own merits. Today, we are faced with a situation where a committee has taken the rare step of reporting to the House the matter of a premature disclosure, unanimously believing that it may warrant further consideration.

This matter is thus not merely of direct personal concern to the member from whose office the leak came or even of concern to the finance committee which reported the leak. As I see it, this is a situation that is of importance to the whole House and all hon. members. It has an institutional dimension that cannot be ignored given the circumstances. The Chair must therefore determine whether it appears that the ability of members to carry out their parliamentary duties has been impeded.

Having considered carefully the arguments presented, I have reached the conclusion that, in this instance, members of the Standing Committee on Finance, individually and collectively, appear to have been impeded in their work. Accordingly, I have no alternative but to find that a prima facie breach of privilege has occurred.

Before I call on the member for Outremont to move the appropriate motion, I wish to again stress the institutional nature of this matter and to commend the member for Saskatoon—Rosetown—Biggar for her poise, sincerity and proactivity in being the first member to inform the House of this vexing situation.

I now recognize the hon. member for Outremont and invite him to move his motion.

[Points of Order, October 26th, 2010]

I am now prepared to rule on the point of order raised on Monday, September 20, 2010, by the hon. Parliamentary Secretary to the Leader of the Government in the House of Commons concerning the need for a royal recommendation to accompany Bill C-300, An Act respecting Corporate Accountability for the Activities of Mining, Oil or Gas in Developing Countries, standing in the name of the hon. member for Scarborough—Guildwood.

I would like to thank the Parliamentary Secretary to the Leader of the Government in the House of Commons for having drawn this matter to the attention of the House as well as the hon. members for Scarborough—Guildwood and Mississauga South and the Parliamentary Secretary to the Minister of International Cooperation for their comments.

In raising this issue, the Parliamentary Secretary to the Leader of the Government in the House of Commons argued that Bill C-300 established a new, quasi-judicial function regarding Canadian companies engaged in mining, oil or gas activities in developing countries to be exercised by the ministers of foreign affairs and international trade. He also contended that the framework required to implement the provisions of the bill was not foreseen by the Department of Foreign Affairs and International Trade Act and that considerable expense would be required to put it in place. In supporting this point, the Parliamentary Secretary to the Minister of International Cooperation noted that during 2009 the World Bank had expended $3.3 million conducting what he described as “parallel investigations” to those he believed would be required by Bill C-300.

The hon. Parliamentary Secretary to the Leader of the Government in the House of Commons noted that in other cases, the Speaker had found that bills mandating an expansion of the functions of an existing department or agency required a royal recommendation. He referred in that regard to the ruling concerning Bill C-280, An Act to amend the Employment Insurance Act (Employment Insurance Account and rate setting) Debates, June 13, 2005, pages 6990-1, as well as to the ruling concerning Bill C-474, National Sustainable Development Act, Debates, February 11, 2008, but I will not cite the pages.

It is in that context that the Parliamentary Secretary to the Leader of the Government in the House of Commons maintained that the terms and conditions of the Department of Foreign Affairs and International Trade Act were therefore being altered by Bill C-300 and that funds would need to be appropriated to carry out the new function imposed by the bill. He concluded that for these reasons, a royal recommendation would be required for Bill C-300.

In his remarks, the hon. member for Scarborough—Guildwood asserted that the bill had been carefully drafted with a view to avoiding any requirement for a royal recommendation. He acknowledged that some reorganization of existing resources would be necessary, but that new resources would not be required.

The Chair takes very seriously the need to respect the requirements for a recommendation of the Crown to accompany any legislation requiring new expenditures. The Chair has therefore examined with care the details of Bill C-300, An Act respecting Corporate Accountability for the Activities of Mining, Oil or Gas in Developing Countries, as well as the precedents enumerated by the parliamentary secretary.

The case of Bill C-280, cited by the Parliamentary Secretary to the Leader of the Government in the House of Commons, involved the creation of a new employment insurance account outside the consolidated revenue fund. Bill C-474, to which he also referred, assigned new functions to the Commissioner of the Environment and Sustainable Development, including the assessing of provincial performance in the meeting of sustainable development goals, which was clearly a significant expansion of the existing mandate.

The Parliamentary Secretary to the Leader of the Government in the House of Commons was correct in saying that both Bill C-280 and Bill C-474 required a royal recommendation. In the first instance, the bill created an employment insurance account outside the consolidated revenue fund as well as several other proposals. These included lowering the threshold for becoming a major attachment claimant; setting benefits payable to 55% of the average weekly insurable earnings during the highest paid 12 weeks of the 12 month period preceding the interruption of earnings; reducing the qualifying period before receiving benefits; and removing the distinctions made in the qualifying period on the basis of the regional unemployment rate. From a mere listing of the measures in the bill, one must clearly conclude that the bill had the effect of authorizing increased expenditures from the consolidated revenue fund in a manner and for purposes not currently authorized.

As for Bill C-474, it sought among other things, to modify the mandate of a new independent Commissioner of the Environment and Sustainable Development. Specifically, it sought to develop “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. There is no doubt that extending the commissioner’s mandate into the provincial arena was clearly a significant expansion of the existing mandate.

Thus, we are in agreement on the issues raised by these two bills, however, it seems to me that the situation presented by Bill C-300, the case now before the House, is not analogous to the circumstances just described.

Bill C-300 does require the Ministers of Foreign Affairs and International Trade to examine bona fide complaints concerning possible contraventions of the guidelines to be established under clause 5, but the bill is silent with respect to the manner in which such examinations are to be conducted. The respective ministers appear to have entire discretion in this regard. Furthermore, the Chair is of the view that the examination of such complaints is not a departure from or expansion of the current ministerial mandate under the Department of Foreign Affairs and International Trade Act to carry out such examinations. Bill C-300 may put forth more stringent requirements, but it does not expand the mandate per se. Hence, a parallel cannot be made to Bill C-474.

In addition, Bill C-300 does not actually call for the establishment of the quasi-judicial process referred to in testimony by departmental officials. Nor does it require that investigations be carried out in other jurisdictions. It may be that a reorganization of resources or even additional funds would be required, however, it appears these would be operational in nature. In short, there is little ground for comparison of Bill C-300 with Bill C-280 and Bill C-474.

Consequently, from a strictly procedural point of view, the Chair cannot find that Bill C-300 requires the expenditure of public funds for a new and distinct purpose. I therefore rule that there is no requirement that the bill be accompanied by a royal recommendation. The House may continue to consider it in accordance with the rules governing private members' business.

I thank hon. members for their attention.

[Points of Order, October 25th, 2010]

I am now prepared to rule on the point of order raised by the hon. member for Eglinton—Lawrence on October 20, 2010, concerning amendments contained in the third report of the Standing Committee on Transport, Infrastructure and Communities on Bill C-442, An Act to establish a National Holocaust Monument, presented in the House on June 9, 2010.

I would like to thank the member for Eglinton—Lawrence for having raised this important matter. I would also like to thank the hon. Parliamentary Secretary to the Leader of the Government in the House of Commons and the hon. member for Mississauga South for their contributions.

In raising his point of order, the member for Eglinton—Lawrence noted that the bill had been adopted by the House unanimously at second reading on March 3, 2010 and reported from the Standing Committee on Transport, Infrastructure and Communities on June 9, 2010. The member for Eglinton—Lawrence drew to the attention of the Speaker three of the amendments contained in that report. He pointed out that the chair of the transport, infrastructure and communities committee had ruled all three of these amendments inadmissible, judging them to be beyond the scope of the bill as approved by the House at second reading. Each of these rulings was appealed and overturned in the committee by a majority vote, as is reflected in the minutes of proceedings of the committee at a meeting held on June 3, 2010.

Let me briefly remind the House of the nature of the amendments that are in dispute. The first amendment, to clause 2 of the bill, provides the minister with the authority to require that the National Holocaust Monument Development Council constitute itself as a legal entity.

The second amendment, to clause 7, provides that the council’s role in raising funds for the construction of the national Holocaust monument be expanded to include fundraising for maintaining the monument and for the council’s own costs. I should note here that, as provided for in clause 5 of Bill C-442, the council members are unpaid and must apply for their positions.

The third amendment, to clause 8, allows the minister to delegate his responsibilities for overseeing the planning and design of the monument, for consulting the public concerning the design and site of the monument and for the construction and maintenance of the monument to the council.

In his comments on the point of order, the parliamentary secretary to the government House leader contended that the amendments in question were consistent with the principle of the bill as well as within its scope. In his view, the amendment to clause 2 served only to clarify the definition and did not constitute a substantive amendment.

He argued that the amendment to clause 7 was similarly best regarded as a clarification of the source of funding for expenses entailed by the bill. He noted that the member for Eglinton—Lawrence had himself introduced an amendment to the effect that the minister's responsibility included both the construction and the maintenance of the monument and that this amendment was not found to contain any procedural defect.

With respect to the amendment to clause 8, the parliamentary secretary went on to state that it served to elaborate on concepts already contained in Bill C-442 and did not attempt to introduce a new concept. On the contrary, he contended that since clause 8 followed immediately upon those clauses which set out the minister’s responsibilities, it was completely appropriate to deal with the delegation of those responsibilities in clause 8.

In summary, the parliamentary secretary argued that the three disputed amendments were matters of clarification and elaboration, that they were within the scope of the bill and that they were therefore entirely acceptable from a procedural point of view.

In his remarks, the member for Mississauga South reviewed the procedural principles on which the Speaker should base his ruling. He pointed out certain differences between the bill as introduced and as reported from the standing committee and supported the position of the member for Eglinton—Lawrence that the amendments objected to were inadmissible.

As hon. members will agree and as has been frequently pointed out in the past, the Speaker's responsibility is clear in cases concerning procedural irregularities in a committee's consideration of a bill. As Mr. Speaker Fraser stated in a ruling in reference to amendments adopted by a committee after the committee chair's rulings on the amendments were overturned, in the Debates on April 28, 1992, at page 9801:

In cases in which the Chair is asked to rule on the admissibility of committee amendments to bills, any modifications which offend a basic principle in the legislative process are struck from the bill.

With reference to the three amendments contested by the member for Eglinton—Lawrence, I have examined the third report of the Standing Committee on Transport, Infrastructure and Communities carefully, as well as Bill C-442 both in its first reading version and in the reprint containing the committee's amendments. I have also consulted the minutes of the proceedings of the committee related to its clause-by-clause consideration of the bill.

Bill C-442, as stated in the summary to the bill, “requires the Minister responsible for the National Capital Act to establish and work in cooperation with a National Holocaust Monument Development Council to design and build a National Holocaust Monument to be located in the National Capital Region”.

The amendment to clause 2 of the bill empowers the minister to require the council to “form a legal entity”, by amending the definition of Council contained in the bill. In committee, it was ruled inadmissible on the basis that it constitutes a substantive amendment to the bill by way of a modification of the interpretation clause.

House of Commons Procedure and Practice, Second Edition, at page 769, states:

The interpretation clause of a bill is not the place to propose a substantive amendment to a bill. In addition, an amendment to the interpretation clause of a bill that was referred to a committee after second reading must always relate to the bill and may neither exceed the scope of nor be contrary to the principle of the bill.

I can see nothing in the bill as amended by the committee which requires that such a power be provided to the minister. It appears to me to be a new concept and on that basis to constitute a substantive amendment to the interpretation clause of Bill C-442.

Clause 7 of the bill originally required the council to spearhead a fundraising campaign for the sole purpose of funding the construction of the monument. The amendment added the additional purposes of funding the planning, designing, installing and maintaining of the monument, as well as “any other costs incurred by the Council”.

While certain of these elements may constitute an elaboration or clarification of the purpose for which the council was to raise funds, I do not regard the maintenance of the monument as an aspect of its construction. It seems to me that it is only once the monument has been constructed that maintenance may be required. Further, there do not appear to be any grounds on which the original bill might be said to allow money raised for construction to be used for the costs of the council, whatever they may be. Therefore, it is my view that these two elements are clearly beyond the scope of Bill C-442 and were rightly judged inadmissible by the chair of the transport, infrastructure and communities committee.

The amendment to clause 8 of the bill authorized the minister to delegate to the council certain of his responsibilities. In particular, this delegation would include the planning and design of the monument, its construction and its maintenance. There are no provisions in the bill as adopted by the House at second reading for any delegation of the minister's responsibilities. As such, this notion of delegation seems to be a new concept that is beyond the scope of the bill. Indeed, the delegation of the minister's responsibilities to the council seems to be directly contrary to the principle of the bill, which requires the minister to design and build the National Holocaust Memorial Monument, in co-operation with the national council, rather than have the national council do it in his stead.

I would also like to take this opportunity to clarify a certain confusion which appears to exist concerning the ruling that the amendment to clause 8 was offered at the wrong place in the bill. As I noted, the Parliamentary Secretary to the Leader of the Government in the House of Commons felt that an amendment to delegate powers was appropriately placed if it followed those provisions which set out the powers to be delegated. While that is a reasonable position, it is not the point that is at issue here. Clause 8, in its original form, read:

The Historic Sites and Monuments Board of Canada may assist the Council in the performance of its functions under this Act.

A provision for the minister to delegate powers to the national council seems to me to be well beyond the scope of clause 8, which deals with the role of the Historic Sites and Monuments Board of Canada. Clause 8 is not the appropriate place to attempt the insertion of such a provision, even if it were otherwise admissible.

For all these reasons, I therefore rule that the amendments to clauses 2, 7 and 8 of Bill C-442 are null and void and no longer form part of the bill as reported to the House. In addition, I am ordering that a reprint of Bill C-442 be published to replace the reprint ordered by the committee.

I would like to once again thank the hon. member for Eglinton—Lawrence for having raised this important matter.

[Privilege, October 5th, 2010]

I am now prepared to rule on the question of privilege raised on September 22, 2010, by the hon. member for Portage—Lisgar concerning an emailed media release issued by the Press Secretary to the Leader of the Official Opposition.

I would like to thank the hon. member for Portage—Lisgar for having raised this matter, as well as the hon. Government House Leader, the hon. House Leader of the Official Opposition and the hon. member for Outremont, for their interventions.

The member for Portage—Lisgar, in presenting her question of privilege, stated that she believed that in addition to containing comments about her, which she called a grave slur upon her reputation, the media release at issue constituted an improper use of House resources.

The House Leader for the Official Opposition argued that, read carefully in their full context, the statements contained in the media release were reasonable interpretations of comments the member for Portage—Lisgar had made in a CBC radio interview and, thus, were simply matters of public discourse and debate.

Let me deal first with the member for Portage—Lisgar's contention that House of Commons resources were misused in this case. I wish to remind the House that in a ruling on February 12, 2009, at pages 713-4 of Debates, I stated that it is not the role of the Chair to monitor the contents of emails and other electronic communications. I added that:

...one important consideration members must take into account is that communications via the Internet and email may not be protected by privilege and may expose members to the possibility of legal action for material they disseminate.

Obviously, in cases where the staff of a member is involved, it is ultimately the member who bears responsibility for ensuring that House resources are used appropriately.

With regard to the main argument raised by the member for Portage—Lisgar, the Chair wishes to state at the outset that it takes very seriously matters in which the reputation of a member is involved. In adjudicating such cases, the Chair is guided by well-established principles. As is stated in House of Commons Procedure and Practice, Second Edition, at page 111:

In ruling on such matters, the Speaker examines the effect the incident or event had on the member's ability to fulfill his or her parliamentary responsibilities. If, in the Speaker's view, the member was not obstructed in the performance of his or her parliamentary duties and functions, then a prima facie breach of privilege cannot be found.

Consistent with this, in a ruling by Mr. Speaker Fraser from May 5, 1987, at page 5766 of the Debates, which can also be found at pages 111 to 112 of O'Brien and Bosc, it states:

The privileges of a member are violated by any action which might impede him or her in the fulfilment of his or her duties and functions. It is obvious that the unjust damaging of a reputation could constitute such an impediment. The normal course of a Member who felt himself or herself to be defamed would be the same as that available to any other citizen, recourse to the courts under the laws of defamation with the possibility of damages to substitute for the harm that might be done.

In support of her argument, the member for Portage—Lisgar referred to a ruling by Speaker Sauvé from October 29, 1980. But I would invite the House to a closer reading of the ruling at pages 4213-4 of Debates, in which the Speaker stated:

...it seems to me that to amount to contempt, representations or statements about our proceedings, or of the participation of members should not only be erroneous or incorrect, but rather should be purposely untrue and improper and import a ring of deceit.... My role, therefore, is to interpret the extracts of the document in question not in terms of their substance, but to find whether, on their face, they represent such a distorted interpretation of the events or remarks in our proceedings that they obviously attract the characterization of false.

Members will note that in this 1980 case, Madam Speaker Sauvé is speaking about the interpretation of statements made in the course of our proceedings; in the case now before us, the statements at issue were made in the context of a media interview. This is a significant difference.

In the past, when members have raised concerns about comments made outside the House and whether or not they constituted breaches of privilege, successive Speakers have been consistent in ruling that these are not matters in which the Chair intervenes. In support of that, I refer members to the House of Commons Procedure and Practice, Second Edition, page 614.

Speaker Sauvé succinctly summarized the issue in an October 12, 1983, ruling (Debates, p. 27945), when she stated:

Parliamentary privilege is limited in its application.... If members engage in public debate outside the House, they enjoy no special protection. To invoke privilege, the offence must be attached to a parliamentary proceeding.

In view of these key precedents, it is therefore not surprising that there have been very few instances where the Speaker has found a prima facie breach of privilege related to the damaging of a member's reputation. The member for Portage—Lisgar recalled one such instance in my ruling of November 19, 2009, which can be found at page 6982 of the Debates, concerning mailings sent into the constituency of Sackville—Eastern Shore.

However tempting it is to regard that particular instance as analogous to the one currently before us, it did differ materially in several respects. First, that case involved mailings paid for from a central budget in the House. Then, these mailings were sent directly by another member into the complaining member's riding to large numbers of his constituents. Finally, the information in those mailings was factually incorrect, thereby directly distorting the member's position on an issue.

Instead of the case just described, I believe that the ruling I gave on February 12, 2009, at pages 765-6 of the Debates, is more helpful in this case. On that occasion, I stated:

In adjudicating questions of privilege of this kind, the Speaker is bound to assess whether or not the member's ability to fulfill his parliamentary functions effectively has been undermined.... [W]ithout minimizing the seriousness of the complaint or dismissing the gravity of the situation raised by the hon. member, it is difficult for the Chair to determine, given the nature of what has occurred that the member is unable to carry out his parliamentary duties as a result.

On balance, based on the arguments presented in this instance, and given the relevant precedents, I cannot find that the member has been impeded or obstructed in carrying out her duties. While the Chair is sympathetic to the concerns of the member for Portage—Lisgar, in view of the strict exigencies the Chair is bound to observe in cases of this kind, I cannot find a prima facie question of privilege.

The House will have noted that in rising on her question of privilege, the member for Portage—Lisgar did get an opportunity to correct the record: she has been able to dispel any wrong impression of what her true position is on the issue raised in the email media release at the centre of this controversy.

I therefore thank hon. members for their attention on this matter.

[Points of Order, October 5th, 2010]

I am now prepared to rule on the point of order raised on September 30, 2010, by the Parliamentary Secretary to the Government House Leader concerning the disposition of the order for resuming debate on the motion to concur in the seventh report of the Standing Committee on Industry, Science and Technology.

I would like to thank the parliamentary secretary for bringing the matter to the attention of the House and the member for Windsor—Tecumseh for his contribution to the discussion.

The parliamentary secretary, in raising this matter, pointed out that the motion to concur in the seventh report is essentially the same as the supply motion moved by the hon. member for Westmount—Ville-Marie on September 28, 2010 and adopted by the House on September 29, 2010.

Quoting House of Commons Procedure and Practice, Second Edition, at page 560 on the rule of anticipation, the parliamentary secretary argued that to allow the debate to resume on the concurrence motion would violate the principle which forbids the same question from being decided twice within the same session.

Noting that it would be redundant to resume the debate on the concurrence motion at a later date, as required by Standing Order 66(2), he requested that the Chair strike the motion to concur from the order paper to prevent an unnecessary debate and vote.

The Chair has examined the motions in question and agrees with the Parliamentary Secretary to the Leader of the Government in the House of Commons that they are substantially the same. In his arguments, the hon. member for Windsor—Tecumseh pointed out that, in his view, this does not mean that the rule of anticipation would necessarily apply and outlined reasons for why he believes that in this case it does not.

I listened to the intervention of the hon. member for Windsor—Tecumseh with great interest. As he noted, the debate on the motion for concurrence in the committee report had already begun when the opposition motion was moved.

In deciding that the opposition motion could proceed, the Chair was guided by the long-standing approach of my predecessors who, as described on page 560 of O’Brien-Bosc, have consistently

“...ruled that the opposition prerogative in the use of an allotted day is very broad and ought to be interfered with only on the clearest and most certain of procedural grounds.”

As I see it, at this stage, the Chair is now left to decide how best to proceed so as to respect the principle behind the rule of anticipation which forbids the same question from being decided twice within the same session.

In the present circumstances the House has actually adopted one of the two motions, namely the supply motion of the official opposition. As such, to allow the proceedings on the concurrence motion to continue would violate the fundamental principle by which we are guided. The Chair cannot overlook the critical importance of unwritten practices and conventions in the conduct of business in this chamber.

Accordingly, I have directed the Clerk to remove the order for resuming consideration of the motion to concur in the seventh report from the order paper.

I thank hon. members for their attention.

[Corporate Accountability of Mining, Oil and Gas Corporations in Developing Countries Act, September 20th, 2010]

I thank the hon. parliamentary secretary, the hon. member for Scarborough—Guildwood, and the hon. member for Mississauga South for their submissions on this point. I will examine the bill in light of their submissions and return to the House in due course with a ruling in respect to this matter.

There are 16 motions and amendments standing on the notice paper for the report stage of Bill C-300.

Motions Nos. 1 to 16 will be grouped for debate and voted upon according to the voting patterns available at the table.

The Chair does not ordinarily provide reasons for its selection of report stage motions. However, having been made aware of the exceptional circumstances surrounding the committee study of this bill, I would like to convey to the House the reasoning involved in considering these motions.

The note accompanying Standing Order 76(5) reads, in part:

The Speaker...will normally only select motions which were not or could not be presented [in committee].

The Chair takes note that the hon. member for Scarborough—Guildwood sits on the Standing Committee on Foreign Affairs and International Trade, which was mandated to study Bill C-300. Although I believe that the majority of the amendments in his name could have been proposed during the committee consideration of the bill, they were not.

In a written submission to the Chair, the member outlined his efforts to overcome the committee's inability to deal with the bill in the prescribed timelines, even going so far as to move a motion that the committee begin clause-by-clause study of the bill. These efforts proved fruitless, and although the member had submitted his amendments to the committee, he was not afforded the opportunity to propose them.

Having carefully reviewed the sequence of events and the submission made by the hon. member for Scarborough—Guildwood, I am satisfied that these motions could not be presented during the committee consideration of the bill and, accordingly, I have selected them for debate at report stage.

I shall now propose Motions Nos. 1 to 16 to the House.

[Points of Order, June 17th, 2010]

I am now prepared to rule on the point of order raised on June 10, 2010 by the hon. member for Mississauga South concerning the admissibility of a third report of the Standing Committee on Government Operations and Estimates which was presented to the House earlier that day.

I would like to thank the member for Mississauga South for bringing this matter to the attention of the House and the member for Eglinton—Lawrence for his comments.

In his remarks, the member for Mississauga South explained that the subject matter of the third report of the Standing Committee on Government Operations and Estimates was based on a study of claims that the member for Scarborough—Rouge River was actively lobbying the Government of Canada while sitting as a member of Parliament. He argued that the authority to look into any claims related to the Conflict of Interest Code or the conduct of members of Parliament lay with the Standing Committee on Procedure and House Affairs pursuant to Standing Order 108(3)(a)(viii) and not the Standing Committee on Government Operations and Estimates.

He claimed that the committee had strayed beyond its mandate and that the report was therefore out of order.

The member also complained that the dissenting opinion to the report, which he understood had been submitted by the member for Scarborough—Rouge River, had not been appended to the report and so rendered the report incomplete.

Let me deal with this matter immediately. Pursuant to Standing Order 108(1)(a) such appendices to reports must be proposed by committee members only. As the member for Scarborough--Rouge River is not a member of the committee, his dissenting opinion could not be appended to the report. This in no way invalidates the report nor does it render it incomplete.

Now, let us turn to what I see as the central question the Chair faces: whether the report in question is procedurally invalid by virtue of the committee having undertaken to study and report on a matter that is beyond its mandate as prescribed by the House.

That committees are empowered to deal with issues delegated to it by the House is indisputable. As House of Commons Procedure and Practice, Second Edition, states at page 985:

Like all other powers of standing committees, the power to report is limited to issues that fall within their mandate or that have been specifically assigned to them by the House. Every report must identify the authority under which it is presented.

The member for Eglinton—Lawrence was correct when he stated that even though committees are masters of their own agenda and they can do what they wish, they have been created by the House and must reflect the intent of the House in carrying out their work.

Limitations on committees are again spelled out in House of Commons Procedure and Practice, second edition, which states at page 1048:

These freedoms are not, however, total or absolute. First, it is useful to bear in mind that committees are creatures of the House. This means that they have no independent existence and are not permitted to take action unless they have been authorized/empowered to do so by the House.

It continues to read:

...committees are free to organize their proceedings as they see fit provided that their studies and the motions and reports they adopt comply with the orders of reference and instructions issued by the House.

The text further emphasizes that orders of reference, instructions, the standing orders and rulings by the Speaker take precedence over any rules a committee may adopt.

In other words, while the actual decision to proceed with a study may be taken according to established committee procedures, the fact remains that no committee can simply usurp the powers of another. Rather, a committee must seek the authority from the House to widen an order of reference. Beauchesne's 6th edition, on page 233, citation 831(3) states:

When it has been thought desirable to do so, the House has enlarged the Order of Reference of a committee by means of an instruction.

Objections to committees acting beyond their mandate are nothing new. For example, on May 15, 2008—see debates, page 5924—during the 39th Parliament, the Chair determined that the seventh report of the Standing Committee on Access to Information, Privacy and Ethics went beyond the committee’s mandate and thus was out of order. An identical conclusion was reached in relation to the second report of the Standing Committee on Finance when I ruled that report out of order on April 2, 2009—see debates, pages 2301-2.

In that ruling, I acknowledged that

...the House has taken great care to define and differentiate the responsibilities of its committees, particularly where there might at first glance appear to be overlapping jurisdictions.

In the case before us, I have carefully reviewed Standing Order 108 (3)(c), which delineates the powers of the Standing Committee on Government Operations and Estimates.

It is clear to the Chair that the House did not grant that committee the authority to study issues related to lobbying. The member for Mississauga South is right in his assertion that the Standing Committee on Procedure and House Affairs, pursuant to Standing Order 108(3)(a)(viii), has been given the necessary authority to look into any claims related to the Conflict of Interest Code or the Conduct of Members of Parliament. Authority for considering other issues related to lobbying have been conferred upon the Standing Committee on Information, Privacy and Ethics, including examination of reports from the Commissioner of Lobbying.

Therefore, for those reasons I must conclude that the third report of the Standing Committee on Government Operations and Estimates is out of order. Accordingly, I rule that the report be deemed withdrawn. Furthermore, with regard to the motion on the order paper standing in the name of the hon. member for Winnipeg Centre, I am ordering that this motion for concurrence in the third report be deemed withdrawn and that no further proceedings may take place in relation to this report.

In conjunction with this, I will reiterate an important message contained in my ruling on April 2, 2009, when I stated:

While it is true that the House has given its committees broad mandates and significant powers, with such power and authority comes the responsibility of committees to respect their mandates and not exceed the limits of their authority.

I thank hon. members for their attention.