Peter Milliken

[Privilege, May 13th, 2008]

I am now prepared to rule on the question of privilege raised by the hon. member for Rimouski-Neigette—Témiscouata—Les Basques about the remarks made on Tuesday, May 6, 2008, by the hon. Parliamentary Secretary to the Minister of Human Resources and Social Development.

I would like to thank the hon. member for raising this issue, as well as the hon. Leader of the Government in the House of Commons and the hon. member for Joliette for their contributions.

During the adjournment debate on May 6, 2008, the hon. member for Rimouski-Neigette—Témiscouata—Les Basques asked a question about seniors and felt that some of the remarks contained in the response from the hon. Parliamentary Secretary to the Minister of Human Resources and Social Development were unacceptable because, she believes, they reflected on her reputation. In her opinion, such remarks should not be tolerated and she therefore asks the hon. parliamentary secretary to retract them.

As it says on page 503 of House of Commons Procedure and Practice:

One of the basic principles of parliamentary procedure is that proceedings in the House of Commons are conducted in terms of a free and civil discourse.

The Chair has frequently reminded hon. members to be judicious in the comments they make in this House.

In this instance, however, I do not believe that this is a matter of privilege, because the remarks deemed offensive did not obstruct her in the performance of her parliamentary duties. Accordingly, I cannot find that there is a prima facie question of privilege in this case.

I would nevertheless like to take this opportunity to reiterate my request to all the hon. members to choose their words more judiciously in order to avoid remarks such as this that, unfortunately, occur too frequently in this House, in my view. It is perfectly normal to have divergent political opinions, but remarks that question the integrity, effectiveness or utility of another member are bound to be provocative and do nothing to enhance the image of this institution.

I thank the hon. member for Rimouski-Neigette—Témiscouata—Les Basques for bringing this matter to the attention of the House.

[Climate Change Accountability Act, May 12th, 2008]

There are four motions in amendment standing on the notice paper for the report stage of Bill C-377, An Act to ensure Canada assumes its responsibilities in preventing dangerous climate change.

The Chair does not ordinarily provide reasons for its selection of report stage motions in amendment. However, in light of the point of order raised on Thursday, May 8, 2008 by the hon. member for Windsor—Tecumseh and the subsequent intervention of the hon. deputy government House leader, I would like to convey to the House the reasoning involved in considering these motions.

In his submission, the hon. member for Windsor—Tecumseh described the particular circumstances surrounding the committee consideration of Bill C-377.

During its consideration of the bill, the Standing Committee on Environment and Sustainable Development presented three separate reports. In the first of these reports, presented on April 14, 2008, the committee described procedural difficulties it had encountered in the course of its study of Bill C-377 and recommended some action that the House might wish to take.

On April 29, 2008, in its second report relating to this bill, the committee reported Bill C-377 with eight amendments. On the same day, the committee presented a third report. This report explained that having begun its clause by clause study on March 3, 2008, prolonged debate on clause 10 of the bill resulted in an impasse; and that as no further progress seemed possible, the committee turned to the consideration of a motion, the effect of which was to deem adopted the remaining parts of the bill and to agree that the bill be reported to the House without further debate or amendment. This motion was adopted on division by the committee.

The hon. member for Windsor—Tecumseh also referred to previous Speaker's rulings where motions in amendment at report stage were selected on the basis that members involved did not have the opportunity to present motions during the committee consideration stage. Specifically, he cited a ruling given on January 28, 2003, regarding Bill C-13, An Act respecting assisted human reproduction, and a ruling given on November 6, 2001, regarding Bill C-10, An Act respecting the national marine conservation areas of Canada.

In his intervention on Friday, May 9, 2008, the hon. deputy government House leader also reviewed the sequence of events surrounding the committee consideration of the bill and referred to the two rulings just cited. He went on to argue that, in his view, the committee's decision to report the bill back to the House prior to the May 7, 2008 deadline represents a conscious decision of the majority of the committee not to make full usage of the time remaining and thus to forego further opportunities to propose amendments at the committee stage. On this basis, he concluded that the motions at report stage should not be selected.

Four report stage motions have been submitted. These motions are identical to committee amendments which were not considered due to the impasse, as described in the committee's report and the adoption by the committee of the motion to report the bill. The motions relate to clauses of the bill which were deemed carried at the committee stage, quite clearly as a way out of the impasse.

The Chair is now faced with the matter of selection. The note accompanying S. O. 76(5) reads, in part: “The Speaker ... will normally only select motions which were not or could not be presented [in committee].”

Having carefully reviewed the sequence of events and the submissions made by the hon. member for Windsor—Tecumseh and the hon. deputy government House leader, the Chair is of the opinion that we are facing very exceptional circumstances. The committee recognized that the impasse was significant and wanted to bring that situation to the attention of the House. It did so in a report which states in part:

Given the impasse, the Committee opted not to consider the remaining clauses and parts of the Bill....

Therefore, 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. Accordingly, Motions Nos. 1 to 4 will be grouped for debate and voted upon according to the voting pattern available at the Table.

I shall now propose motions numbered 1 to 4 to the House.

[Points of Order, May 8th, 2008]

I am now prepared to rule on the point of order raised on Friday, May 2, 2008, by the hon. Leader of the Government in the House of Commons concerning the admissibility of the amendment to the motion for third reading of Bill C-33, An Act to amend the Canadian Environmental Protection Act, 1999, moved by the hon. member for Western Arctic.

I would like to thank the government House leader for raising this matter, as well as the hon. member for Vancouver East for her intervention.

The hon. government House leader contended that the amendment proposed by the hon. member for Western Arctic was inadmissible because it sought to provide a mandatory instruction to the committee. He was of the opinion that the use of the words “with a view to making sure that” in the amendment constituted a mandatory instruction on how the committee should dispose of the bill.

The hon. member for Vancouver East, for her part, felt that the proposed amendment was clearly permissive. In her opinion, the words “with a view to”, contained in the amendment, support that argument.

As stated in the House of Commons Procedure and Practice on pages 672 and 673, regarding amendments to the motion for third reading of a bill:

The purpose of such an amendment may be to enable the committee to add a new clause, to reconsider a specific clause of the bill or to reconsider previous amendments. However, an amendment to recommit a bill should not seek to give a mandatory instruction to a committee.

House of Commons Procedure and Practice also mentions further on page 793, with respect to instructions to committees of the whole, which also applies to standing committees:

Instructions to a committee of the whole dealing with legislation are not mandatory but permissive, that is the committee has the discretion to decide if it will exercise the power given to it by the House to do something which it otherwise would have no authority to do.

The issue before us today is to determine if the amendment proposed by the hon. member for Western Arctic meets the requirements as set out in our rules and practices, and more specifically, if it indeed constitutes a mandatory instruction to the committee.

There are many precedents of similar amendments to the motion for third reading that have included the words “with a view to” combined with various action verbs akin to “making sure”. For example, amendments moved in the past have used the verbs “to ensure” on November 8, 2001, “to change” on January 31, 2003, “to eliminate” on March 4, 2004, and “to incorporate” on June 22, 2005, and all were ruled admissible. In fact, with time, this has become an established and accepted form for an amendment at third reading that seeks to recommit all or certain clauses of a bill.

In reviewing the texts of the amendment and of Bill C-33, I find that the amendment does not, in my view, infringe on any of the principles that I mentioned earlier and that form the basis of past practices of the House. The amendment asks the committee to reconsider a clause of the bill, taking into consideration certain issues, but it does not specify that any amendment is required or exactly how the committee should modify the bill to attain that objective. In my opinion, the text of the amendment provides the committee ample discretion in how it wishes to reconsider the particular clause in question.

As such, I declare the amendment in order. I thank the hon. Leader of the Government in the House of Commons for bringing this issue to the attention of the House.

[Points of Order, May 8th, 2008]

Before we proceed to orders of the day, I have a ruling I would like to give.

On April 8, 2008, the Leader of the Government in the House of Commons and Minister for Democratic Reform rose on a point of order to argue that Bill C-490, An Act to amend the Old Age Security Act (application for supplement, retroactive payments and other amendments) required a royal recommendation.

On April 15, 2008, the hon. member for Joliette made an intervention arguing that this bill did not infringe on the financial initiative of the Crown.

In his submission, the government House leader argued that clauses 1, 2, 3 and 6 of the bill would result in increased spending by extending old age security benefits to surviving spouses for a period of six months and by eliminating the requirement to make an application for a supplement for old age security benefits. He pointed out that the increased monthly guaranteed income supplement benefits and increased retroactive payments would also entail additional spending.

Citing rulings delivered on December 8, 2004 and October 24, 2005, the government House leader stated that these precedents illustrate the principle that a royal recommendation is required when a bill alters the manner in which retroactive payments are handled or when the extensions of program benefits are proposed.

The hon. member for Joliette expressed the view that section 54 of the Constitution Act, 1867 only called for a royal recommendation to accompany a bill in the event that it proposed new program spending.

He argued that this was clearly not the case since Bill C-490 did not authorize a new appropriation but simply allowed monies previously authorized by Parliament to be returned to the rightful beneficiaries.

I have carefully reviewed Bill C-490 and have come to the following conclusions. Clause 1 of the bill, which seeks to extend old age security benefits to surviving spouses for a period of six months, would, in my view, clearly result in additional spending for a new and distinct purpose. Furthermore, clauses 2, 3 and 6 of the bill seek to alter the conditions and manner in which compensation is awarded to old age security recipients by increasing monthly guaranteed income supplement benefits, modifying retroactive payments and removing the requirement to make an application to receive benefits.

It is true that, as the hon. member for Joliette pointed out, the proposed changes do not call for the actual creation of a new program. However, they would alter the conditions and qualifications that were originally placed on public spending on old age security payments when those benefits were approved by Parliament.

As I have reminded the House on a number of occasions, funds may only be appropriated by Parliament in the manner and, as explicitly stated in Standing Order 79(1), for purposes covered by a royal recommendation. In my view, Bill C-490 alters the original purposes of the benefits and therefore the bill does require a royal recommendation.

Consequently, the Chair will decline to put the question on third reading of this bill in its present form unless a royal recommendation is received.

At the moment, the debate is on the motion for second reading, and this motion shall be put to a vote at the close of the second reading debate.

I thank the hon. Government House Leader and the hon. member for Joliette for their interventions on this matter.

[Nuclear Liability and Compensation Act, May 6th, 2008]

I declare the motion carried.

It being 6:13 p.m., the House will now proceed to the consideration of private members' business as listed on today's order paper.

[Points of Order, May 6th, 2008]

Order, please. I am now ready to rule on the point of order raised by the hon. Parliamentary Secretary to the Minister of Natural Resources and for the Canadian Wheat Board regarding the report stage motions standing on the notice paper for Bill C-5.

Bill C-5 would establish a liability regime applicable in the event of a nuclear incident that makes operators of nuclear installations entirely liable for damages up to a maximum of $650 million. Operators are required to maintain financial security equal to the financial liability of $650 million. The security is in the form of insurance from an approved insurer but may also, by agreement with the minister, be in alternative form. The risk insured by an approved insurer can be reinsured by the federal government through a special account called the nuclear liability reinsurance account.

The hon. parliamentary secretary argued that Motions Nos. 1, 4, 6, 7, 8, 9 and 10 could have been moved in committee and therefore should not be selected by the Speaker. I am in agreement that Motion No. 10 could have been moved in committee and accordingly, as indicated in the ruling delivered yesterday, I have not selected it for debate.

However, the hon. parliamentary secretary went on to argue that these same motions, all of them deletions, infringe upon the royal recommendation that accompanies the bill. It should be noted that this is a highly unusual argument. It is a long-standing practice that motions to delete clauses are normally admissible and selected at report stage.

In this case, however, as the usual report stage was about to be delivered regarding the selection from the 21 motions in amendment, 19 of them deletions, concerns were raised that some deletions provoked concerns relative to the royal recommendation. Such requirements are rarely associated with motions to delete clauses so I ask for the House's indulgence as I explain the conclusions I have reached in this matter.

Motion No. 1 is a motion to delete clause 21. Motions of this type cannot be proposed in committee but are normally selected at the report stage.

Motions Nos. 2, 3, 4, 8, 11, 12 and 16 are consequential to Motion No. 1. House of Commons Procedure and Practice at page 666 states:

—a motion in amendment to delete a clause from a bill has always been considered by the Chair to be in order, even if such a motion would alter or go against the principle of the bill as approved at second reading.

However, motions submitted at report stage still need to meet the requirements of Standing Order 79(1) with respect to the need for a royal recommendation.

Motion No. 1 proposes to delete clause 21, which sets the liability limit of $650 million. The hon. parliamentary secretary has argued that deleting this clause would cause the potential liability on agents of the Crown, such as Atomic Energy of Canada Limited, to be increased. He goes on to argue that the deletion of clause 21 without the deletion of clause 26 would increase the liability on the government and would infringe on the financial initiative of the Crown.

The Chair is not persuaded by the arguments presented that there is an infringement on the conditions and qualifications set out in the royal recommendation attached to the bill. That said, however, I take the point that the deletion of clause 21 and of clause 26 are inextricably linked.

The Chair cannot agree that Motion No. 1, which would delete clause 21, is not admissible. Accordingly, I have maintained the original decision to select it to go forward for debate and decision. However, in recognition of the link between Motion No. 1 and Motion No. 5 which would delete clause 26, I have amended the voting pattern so that a vote on Motion No. 1 will be applied to Motion No. 5 which would delete clause 26, as well as the several consequential motions enumerated in the original decision delivered yesterday by the Deputy Speaker.

The hon. parliamentary secretary has also argued that Motions Nos. 6, 7 and 9, if adopted, would have the effect of increasing the tribunal's operating costs. The Chair believes that, with regard to Motions Nos. 7 and 9, such increases, if any, would be provided for through the usual appropriations secured through the main or supplementary estimates. These two motions shall therefore remain before the House.

Motion No. 6 proposes to delete clause 30 which would establish time limits on bringing claims for compensation. Motion No. 21 is consequential to Motion No. 6. The Chair is not of the view that doing away with these time limits infringes on the royal recommendation attached to the bill.

The revised voting pattern is available at the table. I thank hon. members for their patience in allowing me to consider the important matters raised by the hon. parliamentary secretary.

[Points of Order, May 2nd, 2008]

I am now prepared to rule on the point of order raised by the government House leader and minister for democratic reform on April 8, 2008 concerning the requirement for a royal recommendation for Bill C-445, An Act to amend the Income Tax Act (tax credit for loss of retirement income) standing in the name of the member for Richmond-Arthabaska.

I would like to thank the hon. government House leader as well as the hon. member for Richmond--Arthabaska for their contributions on this issue.

In his intervention, the hon. government House leader stated that refundable tax credits are direct benefits paid to individuals regardless of whether tax is owed or not and are paid out of the consolidated revenue fund. He argued that a legislative proposal creating such a tax credit therefore needed to be accompanied by a royal recommendation.

In support of his argument, he pointed to a Speaker's ruling of June 4, 2007, which did not select a report stage amendment to Bill C-52, the Budget Implementation Act, 2007, that sought to create a refundable tax credit because it required a royal recommendation. He also referred to a ruling of May 11, 2006 from the Speaker of the Senate that ruled out of order Bill S-212, an Act to amend the Income Tax Act (tax relief) on the basis that it increased a refundable tax credit.

In response, the hon. member for Richmond--Arthabaska argued that legislation proposing a reduction in taxes has always been permitted under our parliamentary rules, even if this leads to reimbursements being made to taxpayers.

To support his arguments, he pointed to a ruling by Mr. Speaker Parent of October 16, 1995 regarding Bill S-9, An Act to amend the Canada-United States Tax Convention Act, 1984.

The Chair has carefully reviewed Bill C-445, the previous rulings that were cited as well as the comments from the hon. members and believes that the central issue in the present case is whether the creation of the tax credit found in Bill C-445 is strictly an alleviation of taxation or an authorization to spend for a new and distinct purpose. If it is the latter, the bill would need to be accompanied by a royal recommendation before the third reading motion can be proposed to the House.

The bill standing in the name of the hon. member of Richmond--Arthabaska seeks to amend the Income Tax Act by providing for a tax credit to a taxpayer in respect of whom an employer and the employees failed to make required registered pension plan contributions. Whether or not the tax credit is refundable or non-refundable is the key issue in determining the need for a royal recommendation.

Non-refundable credits are deducted from a person's tax payable rather than being calculated separately: they simply reduce the amount of tax payable by an individual. The amount of the credit is limited to the amount of the tax payable.

This is not the case for refundable tax credits, which are unique in the Income Tax Act: they provide for a taxpayer to receive an amount from the government due to a low amount of taxable income and tax payable. Such credits are calculated separately on an income tax return because they are not simply alleviations of taxes otherwise payable.

Bill C-445 is proposing a refundable tax credit. The Chair is of the opinion that the bill would not only alleviate taxation but also potentially allow monies to be disbursed from the consolidated revenue fund, in the event the taxpayer had taxable income for the year that yielded taxes less than the amount of the credit.

The circumstances of Bill C-445 are quite different from those referred by the hon. member for Richmond--Arthabaska in the ruling concerning Bill S-9. There, reimbursements were limited to tax payable. By making a tax credit refundable, Bill C-445 could lead to refunds that are greater than taxes paid. Such spending, for a new and distinct purpose, would need to be accompanied by a royal recommendation.

Accordingly, the Chair will decline to put the question on third reading of this bill in its present form unless a royal recommendation is received.

The debate, later today or on Monday, is currently on the motion for second reading and, as usual, this motion will be put to a vote at the close of the second reading debate.

I thank the hon. government House leader and the member for Richmond—Arthabaska for their comments on this matter.

[Points of Order, April 17th, 2008]

I am now prepared to rule on a point of order raised on April 9, 2008 by the hon. member for Scarborough—Rouge River concerning Bill C-505, An Act to amend the Canadian Multiculturalism Act (non-application in Quebec).

I would like to thank the member for Scarborough—Rouge River for having drawn this matter to the attention of the House, as well as the hon. whip of the Bloc Québécois, the hon. House leader of the Bloc Québécois, and the hon. member for Mississauga South for their comments.

The hon. member for Scarborough—Rouge River raised two issues in relation to this bill. First, he argued that the bill as formulated is unconstitutional in that clause 2 states, “The Government of Canada’s multiculturalism policy does not apply in Quebec”. This, he believed, was inconsistent with section 27 of the Charter of Rights and Freedoms.

Second, he argued that Bill C-505 could be seen as a de facto constitutional amendment. He based this assertion on the claim that the provisions in the Canadian Multiculturalism Act mirror the provisions concerning multiculturalism that are enshrined in the Canadian Charter of Rights and Freedoms. If the proposed measure is indeed an attempt to amend the Constitution, the member argued, as his second point, that it should not be in the form of a bill but, instead, in the form of a resolution. His conclusion is that Bill C-505 is not in the correct form and requested either clause 2 be struck from the bill or that the order for second reading of the bill be discharged and that the bill be struck from the order paper.

In his intervention, the Whip of the Bloc Québécois pointed out that one of the criteria used by the Subcommittee on Private Members’ Business in determining the votability of an item is whether or not it appears to be unconstitutional. As the subcommittee did not judge Bill C-505 to be non-votable, the member argued that the matter of constitutionality had been settled.

In his arguments on April 10, the hon. House Leader of the Bloc Québécois argued that the objections raised to the bill were of a legal nature, and not procedural, and reminded the House that the Speaker does not rule on legal matters. He also claimed that the bill seeks to amend an existing law only and has no effect on the Constitution.

The member for Mississauga South stated that the Subcommittee on Private Members' Business, in determining whether or not a bill should be votable, may not be in a position to assess fully its constitutionality. He maintained that the process for dealing with reports of that subcommittee did not afford an opportunity for members to express concerns regarding constitutionality and stated that it was therefore appropriate for the member for Scarborough—Rouge River to seek a ruling from the Speaker.

In light of the issue at hand and the arguments put forth, I would be remiss if I did not refer members to House of Commons Procedure and Practice, at page 542, which states:

Though raised on a point of order, hypothetical queries on procedure cannot be addressed to the Speaker nor may constitutional questions or questions of law.

Mr. Speaker Fraser also succinctly addressed this limited role of the Chair, when he declared in a ruling regarding a similar matter, which can be found in the Debates of September 16, 1991, at page 2179, and I quote:

It may later be for a court to decide that the House has done something that does not have the force and effect of law, but that is a matter for the court and not a matter for the Speaker.

Therefore, mindful of my limited responsibility in this case, I have undertaken to examine the bill only with respect to whether it is in the appropriate form for the purpose that it seeks to achieve.

Let me first address the contention of the hon. member for Scarborough—Rouge River that amendments to the Constitution must be in the form of a resolution. There is no disputing that the House has in recent years considered several resolutions of the type referred by the hon. member. For example, on November 18 and December 9, 1997, the House adopted resolutions dealing with the school systems in Quebec and Newfoundland respectively; and, on October 30, 2001, the House adopted a resolution changing the name of Newfoundland to Newfoundland and Labrador.

But the House has also seen bills proposing to amend the Constitution. Examples in this Parliament include Private Member’s Bill C-223 An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms and to amend the Constitution Act, 1867, standing in the name of the hon. member for Yorkton—Melville; as well as government bills C-22, An Act to amend the Constitution Act, 1867 (Democratic representation) and C-19, An Act to amend the Constitution Act, 1867 (Senate tenure), both standing in the name of the hon. Government House Leader.

I offer these examples simply to explain that this bill cannot be considered not in order simply because it is in the form of a bill and not a resolution. That said, let us examine the actual provisions of the disputed bill.

Bill C-505 consists of two clauses, both of which seek to amend provisions of the Canadian Multiculturalism Act. Clause 1 proposes the addition of a new paragraph to the preamble of the act, concerning the special situation of Quebec and clause 2 adds a subsection to section 3 of the act, exempting the province of Quebec from the government's multiculturalism policy. There is no reference in the bill to any other statute or for that matter to the Canadian Charter of Rights and Freedoms.

I have therefore concluded that, since the purpose of this bill is to restrict the application of an existing statute and since this bill proposes an amendment to the existing statute to achieve that objective, Bill C-505 is in the proper form.

As your Speaker, I have no authority to rule on the constitutionality of Bill C-505. Accordingly, given that Bill C-505 is in the proper form, deliberations on it may continue in accordance with our rules governing the consideration of private members' business.

I thank the hon. member for Scarborough—Rouge River for having raised this matter.

[Privilege, April 10th, 2008]

I am now prepared to rule on the question of privilege raised on Thursday, March 13, by the hon. member for Acadie—Bathurst alleging that the hon. Minister of Canadian Heritage, Status of Women and Official Languages misled the House with her response to an oral question the previous day.

I would like to thank the hon. member for raising this matter and for his additional comments, as well as the hon. member for Gatineau, the hon. member for Ottawa—Vanier, the hon. Minister of Canadian Heritage, Status of Women and Official Languages, and the hon. Government House Leader for their interventions.

I think it might be useful to remind hon. members of the events that led the member for Acadie—Bathurst to raise his question of privilege. On February 14, 2008, the Standing Committee on Official Languages adopted a motion calling upon the minister to appear immediately before the committee in relation to its study on the action plan for official languages.

Subsequent to this, during oral questions on Wednesday, March 12, 2008, the hon. member for Ottawa—Vanier asked the hon. Minister of Canadian Heritage, Status of Women and Official Languages a question concerning this invitation to appear before the committee, claiming that the minister had declined the invitation to appear.

In her response to the House, the Minister of Canadian Heritage, Status of Women and Official Languages stated that she had not refused to appear, noting that she had appeared before the committee on December 6, 2007. Furthermore, the minister added that, once work on the next phase of the action plan for official languages is completed, she would be pleased to appear before the committee again to discuss the matter.

In addressing this matter, the hon. member for Acadie—Bathurst alleged that the minister had misled the House since her response in the House contradicted her letter of February 25, 2008, to the committee in which she declined the invitation to appear before the committee. However, on April 1 last, the Minister of Canadian Heritage, Status of Women and Official Languages responded to this allegation, describing it as an unfortunate misunderstanding and stating that she would be pleased to appear before the committee in due course.

The Chair is fortunate that the minister's letter of February 25, 2008, which lies at the centre of this dispute, has been tabled and is therefore available for review. In that letter, the minister, on the one hand, clearly declines the committee's invitation to appear immediately while, on the other hand, she clearly states that she would be “pleased to appear before the Committee to discuss the next phase of the action plan as soon as I have finished working on it”.

At the very least, I find this to be an ambivalent response, with the result that a reader may choose to put the emphasis on the minister having declined or the minister offering to appear in due course and so arrive at very different conclusions about the nature of the minister's reply in the House on March 12.

The House is often seized with disputes of this kind. As Mr. Speaker Fraser aptly stated on December 4, 1986, at page 1792 of the Debates: “Differences of opinion with respect to fact and details are not infrequent in the House and do not necessarily constitute a breach of privilege”. This lends further support to the extract I cited previously on this matter from page 433 of House of Commons Procedure and Practice:

In most instances, when a point of order or a question of privilege has been raised in regard to a response to an oral question, the Speaker has ruled that the matter is a disagreement among members over the facts surrounding the issue.

In that respect, the situation before us today is like many others the House has seen. There is obviously a disagreement between hon. members with respect to the completeness of the minister's responses in this matter.

The House has noted that part of the minister's letter to the committee certainly declined the committee's invitation to appear immediately. However, hon. members will recognize with the Chair that the minister's response to the March 12 question selectively focused on another part of the same letter where she expressed willingness to appear before the committee at a future date.

Similarly, in their subsequent interventions, both the minister and the government House leader persisted in quoting selectively from the letter rather than acknowledging the ambivalence in the letter that appears to lie at the heart of the complaints.

In summary, then, I do not doubt that hon. members are vexed by the ambivalent letter and that they are disappointed by the evasiveness they encountered when they voiced their complaints. One might have wished that, in her intervention of April 1, 2008, the minister had put the matter to rest by simply explaining her decisions more thoroughly. Nevertheless, I can only conclude that this remains a dispute as to facts and I do not see here sufficient grounds for a prima facie finding of privilege.

I thank the hon. member for Acadie—Bathurst for bringing this matter to the attention of the House.

[Points of Order, March 14th, 2008]

I am now prepared to rule on the point of order raised by the hon. member for Mississauga South on March 3, 2008, concerning the proceedings in the Standing Committee on Access to Information, Privacy and Ethics at its meeting of February 28, 2008.

I would like to thank the hon. member for Mississauga South for having raised this matter, as well as the hon. Parliamentary Secretary to the Leader of the Government in the House of Commons, the hon. member for Hull—Aylmer, and the hon. member for Scarborough—Rouge River for their contributions.

In raising his point of order, the member for Mississauga South expressed concerns about motions adopted by the Access to Information, Privacy and Ethics Committee at its meeting of February 28, 2008. Of particular concern was the motion ordering the committee, pursuant to Standing Order 108(1)(a), to investigate the fundraising practices of the Liberal Party of Canada. The member for Mississauga South, indicated that, as chair of the committee, he had ruled this motion inadmissible as it did not include any reference to the Conflict of Interest Code for Members or any ethical standards that may have been violated but rather actually made direct reference to potential violations of the Canada Elections Act. His ruling was appealed and overturned, and the motion was adopted.

The member for Mississauga South contended that the access to information, privacy and ethics committee has now embarked on a study which is beyond its mandate as set out in Standing Order 108. Questioning the committee's authority to disregard the Standing Orders in this way, he maintained that his committee was encroaching on the mandate of the Standing Committee on Procedure and House Affairs. The member for Hull—Aylmer and the member for Scarborough—Rouge River voiced their support for these arguments.

In his comments, the Parliamentary Secretary to the Leader of the Government in the House of Commons and Minister for Democratic Reform spoke of the well-recognized procedural principle that committees are masters of their own proceedings.

In the absence of a report from the committee, he suggested that it would be inappropriate for the Speaker to pass judgment on the question raised by the member for Mississauga South and cautioned against prejudging the direction that the committee study might take.

After careful review of all the interventions on this point of order, it seems to me that the crux of the matter is determining first, to whom the House has given a mandate in matters related to ethics, and second, what differentiates one mandate from another.

Standing Order 108(3)(h) states that the Standing Committee on Access to Information, Privacy and Ethics has responsibility for overseeing the effectiveness, management and operation, together with the operational and expenditure plans, of the Conflict of Interest and Ethics Commissioner, as well the commissioner’s annual reports on activities in relation to public office holders. It is important to note that reports on complaints involving public office holders are provided for in the Parliament of Canada Act and are filed with the Prime Minister, with no provisions to have them referred to a committee.

This committee mandate is not to be confused with that of the Office of the Conflict of Interest and Ethics Commissioner whose remit is twofold: first, to support the House of Commons in governing the conduct of its members by administering the Conflict of Interest Code for Members of the House of Commons which has been in effect since 2004; and second, to administer the Conflict of Interest Act for public office holders which came into effect on July 9, 2007.

Oversight of the Conflict of Interest and Ethics Commissioner's work related to members under the Parliament of Canada Act and with respect to the Conflict of Interest Code for Members is the responsibility of the Standing Committee on Procedure and House Affairs. This is clearly indicated in Standing Order 108(3)(a)(vii) and (viii). The procedure and House affairs committee is also responsible for matters relating to the election of members as set out in subparagraph (vi) of Standing Order 108(3)(a).

As was pointed out in a ruling given by the then Deputy Speaker on June 3, 2003, at p.6775 of the Debates, concerning alleged irregularities in the proceedings of the Standing Committee on Transport:

I have said that committees are granted much liberty by the House but, along with the right to conduct their proceedings in a way that facilitates their deliberations, committees have a concomitant responsibility to see that the necessary rules and procedures are followed—

Similarly, House of Commons Procedure and Practice, at p. 879 explains that:

Committees are entitled to report to the House only with respect to matters within their mandate. When reporting to the House, committees must indicate the authority under which the study was done (i.e., the Standing Order or the order of reference). If the committee’s report has exceeded or has been outside its order of reference, the Speaker has judged such a report, or the offending section, to be out of order.

Two particularly illustrative examples are included in the footnote to this citation. The first involves a report by the then Standing Committee on Finance, Trade and Economic Affairs regarding the radio and television broadcasting of all committee proceedings, which Mr. Speaker Bosley, in a ruling given on December 14, 1984, Debates page 1243, ruled out of order on the grounds that the committee had exceeded its order of reference. The second relates to a report presented by the then Standing Committee on Labour, Manpower and Immigration which likewise was ruled inadmissible by Mr. Speaker Bosley in the Debates on February 28, 1985, page 2603, again because the committee had exceeded its terms of reference.

Even this brief overview serves to remind us all 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. That said, it is also clear that the House has chosen to allow committees great flexibility and considerable powers, including the power to use their own initiative by undertaking studies within their mandates.

Inherent in the power the House grants to its committees is the basic principle that each committee will respect its mandate. Implicit in the flexibility that committees have traditionally enjoyed is the understanding that they will be judicious in the exercise of their powers. Can it be said that the ethics committee, measured against these standards, is acting appropriately in this instance? Frankly I find it hard to answer that question for a number of reasons.

First, as the hon. Parliamentary Secretary to the Government House Leader has reminded the Chair, successive Speakers have been reluctant to intervene in the proceedings of committees except in highly exceptional circumstances. The hon. Parliamentary Secretary goes on to caution against presuming on the direction that the committee’s study might take and jumping to conclusions about the nature of any report it might present.

I must acknowledge the validity of that argument. The Chair is not in a position to determine what interpretation the committee will give to the motions that gave rise to the point of order raised by the hon. member for Mississauga South. However, I do wish to make clear to the House that the question of committees respecting their mandates is not one which the House should take lightly.

For the present, I cannot find sufficient grounds to usurp the role of committee members in regulating the affairs of the Standing Committee on Access to Information, Privacy and Ethics. However, if and when the committee presents a report, should members continue to have concerns about the work of the committee, they will have an opportunity to raise them in the House and I will revisit the question at that time.

But, if the House will bear with me, I said earlier that I was not comfortable deciding on whether or not what the Ethics Committee had done was appropriate. I would like to return to that statement and I ask for members’ indulgence in hearing me out.

Any observer of the 39th Parliament will realize that the problem of the ethics committee is only one of the recent manifestations of the need for crisis management in committees.

Almost a year ago, in a ruling given on March 29, 2007, I referred to the challenges encountered in this minority parliament, saying, in part:

...neither the political realities of the moment nor the sheer force of numbers should force us to set aside the values inherent in the parliamentary conventions and procedures by which we govern our deliberations.

I went on to refer to situations in committee where, because decisions of the Chair are subject to appeal, decisions that were procedurally sound had been overturned by the majority.

Since that time, appeals of decisions by chairs appear to have proliferated, with the result that having decided to ignore our usual procedure and practices, committees have found themselves in situations that verge on anarchy. Even the prestigious Standing Committee on Procedure and House Affairs, which, as the Striking Committee is the very heartbeat of the committee system, has not escaped the general lawlessness. Last week, I understand that the committee elected as its chair a member who stated unequivocally that he did not want the nomination.

What responsibility does the Speaker bear for quelling this anarchy that appears to be serially afflicting committees in recent weeks? I would refer hon. members to a comment of Mr. Speaker Lamoureux on July 24, 1969 when he said:

What hon. members would like the Chair to do...is to substitute his judgment for the judgment of certain hon. members. Can I do this in accordance with the traditions of Canada...where the Speaker is not the master of the house...? The Speaker is a servant of the house. Hon. members may want me to be the master of the house today but tomorrow, when, perhaps in other circumstances I might claim this privilege, they might have a different opinion....It would make me a hero, I suppose, if I were to adopt the attitude that I could judge political situations such as this and substitute my judgment for that of certain hon. members.... But I do not believe that this is the role of a Speaker under our system...

The rules that govern our deliberations and the practices that have evolved over time generally serve the House and its committees very well. As your Speaker, I will sometimes suggest that members take their grievances to the Standing Committee on Procedure and House Affairs and ask them to look at whether changes to our Standing Orders might alleviate such difficulties in the future. But that would not be a helpful suggestion in the present circumstances.

Hon. members know as well as I do, or even better than I do since they are living with the consequences daily, that it is not by tinkering with the rules that we will solve our current difficulties. Nor do I believe, whatever certain media commentators may say, that our difficulties would be resolved if only I, as your Speaker, agreed to act in loco parentis and scolded hon. members into seeing reason. Frankly speaking, I do not think it is overly dramatic to say that many of our committees are suffering from a dysfunctional virus that, if allowed to propagate unchecked, risks preventing members from fulfilling the mandate given to them by their constituents.

To quote House of Commons Procedure and Practice at page 210:

...it remains true that parliamentary procedure is intended to ensure that there is a balance between the government's need to get its business through the House, and the opposition's responsibility to debate that business without completely immobilizing the proceedings of the House.

The Speaker must remain ever mindful of the first principles of our parliamentary tradition which Bourinot described thus:

To protect the minority and restrain the improvidence and tyranny of the majority, to secure the transaction of public business in a decent and orderly manner—

It matters not that the minority in the 39th Parliament happens to be the government, not the opposition, or that the majority is held by the combined opposition parties, not the government.

The Shakespearean quote, “The fault...is not in our stars, but in ourselves...” seems sadly apt in the circumstances.

Like all Canadians, and indeed all hon. members, I realize and respect that political exigencies often dictate the strategies adopted by parties in the House. However, as your Speaker, I appeal to those to whom the management of the business of the Parliament has been entrusted--the House leaders and the whips of all parties--to take leadership on this matter. I ask that they address themselves to the crisis in the committee system that is teetering dangerously close to the precipice at the moment. I ask them to work together to find a balance that will allow the parties to pursue their political objectives and will permit all members to carry on their work. I am confident that working together in good faith they can come to an agreement that will return us to the equilibrium that our procedures and practices have been designed to protect. As your Speaker, I stand ready to lend whatever assistance I can.

I would like to thank the hon. member for Mississauga South for having raised the matters relating to the standing committee he chairs and the opportunity to address the larger picture.

I thank the House for its attention.