Committees / Mandate

Scope of a standing committee’s mandate: participation of independent Members

June 6, 2013

Debates, pp. 17795–8

On May 29, 2013, Nathan Cullen (Skeena—Bulkley Valley) rose on a point of order regarding the Standing Committee on Finance’s consideration of Bill C-60, An Act to implement certain provisions of the budget tabled in Parliament on March 21, 2013 and other measures. Mr. Cullen suggested that the Committee had exceeded its mandate by inviting Members who were not members of a caucus represented on the Committee to submit motions in amendment which would then be deemed moved. He argued that only the House could appoint Members, that only committee members were entitled to move motions and that a Member must be present to move a motion. Further, he suggested that the rules of committees as established by the House do not allow for Members of non-recognized parties to be designated as members of committees. In response, Peter Van Loan (Leader of the Government in the House of Commons) argued that the Committee had devised a mechanism within the rules which would allow independent Members to participate where an opportunity did not previously exist. He indicated that the Standing Orders contained many examples of motions being deemed moved, and that the process in the Committee was in direct response to a previous ruling of December 12, 2012.^[1] Other Members also made comments. On May 30, 2013, Elizabeth May (Saanich—Gulf Islands) and André Bellavance (Richmond—Arthabaska) expressed dissatisfaction with the arrangement, noting that the Committee’s invitation had not permitted independent Members to move the motions themselves, to speak at length to them, or to vote on them. The Speaker took the matter under advisement.^[2]

Resolution

On June 6, 2013, the Speaker delivered his ruling. Noting that the House had recently been faced with lengthy report stage proceedings, he referred to his ruling of December 12, 2012, in which he had invited the House to consider ways to involve independent Members in the committee process so that their motions could be considered in committee rather than at report stage. He stated that Standing Order 119^[3] had not been violated by deeming the motions moved. Finally, while acknowledging that some Members may not have been satisfied with the mechanism developed by the Committee, the Speaker did, exceptionally, comment on committees’ proceedings in the absence of a report. He concluded that Bill C-60 was properly before the House and that the Standing Committee on Finance had not violated any procedural practices.

Decision of the Chair

The Speaker: I am now prepared to rule on a point of order raised on May 29 by the hon. House Leader of the Official Opposition regarding the process followed by the Standing Committee on Finance with respect to its consideration of Bill C-60, An Act to implement certain provisions of the budget tabled in Parliament on March 21, 2013 and other measures.

I would like to thank the hon. House Leader of the Official Opposition for having raised this issue, and the hon. Leader of the Government in the House of Commons and the Members for Winnipeg North, Richmond—Arthabaska and Saanich—Gulf Islands for their interventions.

In raising this point of order, the Opposition House Leader claimed that the order adopted by the Standing Committee on Finance on May 7, respecting its consideration of Bill C-60, went beyond the Committee’s authority as conferred by the House. Specifically, he explained that the Committee order invited certain other standing committees to study different parts of the Bill and, along with independent Members, to submit amendments to the Standing Committee on Finance.

He explained further that the Committee order also provided that such amendments would be deemed moved so that the Committee could consider and vote on them. This, he argued, was an instance of a committee exceeding its prescribed authority, since the House had determined that the Bill was sent to the Finance Committee only and since House rules dictate that committee membership is determined solely by the House and cannot include Members of non-recognized parties. In addition, he noted that it contravened the rule that only committee members can move motions and that even they must, in fact, be present at the committee to do so.

The Leader of the Government in the House of Commons contended that it was an established practice that one standing committee could invite other standing committees to consider the subject matter of relevant sections of a bill it is studying with a view to submitting amendments. Furthermore, he suggested that the inclusion of independent Members in the Committee’s proceedings was part of an evolutionary process, one that was in no way discriminatory since the deadline for submitting amendments was the same for all concerned: independent Members, other committees and even members of the Committee itself. He explained that, in effect, this process was simply an effort by the Committee to respond directly to the suggestion that I had made in a ruling on December 12, 2012, on a similar matter.

For her part, the hon. Member for Saanich—Gulf Islands questioned whether the Committee process was in procedural conformity with my ruling, as well as whether, as a result of the Committee order, her rights as a Member had somehow been restricted, even put aside. The hon. Member for Richmond—Arthabaska made similar arguments, highlighting what he perceived to have been an erosion of his rights with regard to the submission of amendments at report stage.

In the case before us, in many respects, is a logical evolution of procedural events that have unfolded in the last year, and indeed of events of over 10 years ago. In fact, to place the matter in its proper context, it is necessary to refer to the March 21, 2001, statement by Speaker Milliken, found at page 1991 of the Debates, which set us on a path to where we are today with respect to the committee and report stages of the legislative process. That statement clearly established the guidelines that the Chair now uses to discharge its responsibility with respect to the selection of amendments at report stage. Indeed, the very process of selection was born out of a need to return report stage to its original purpose, that is, the consideration of only those amendments that could not have been moved in committee.

Speaker Milliken was clear in his intent when he urged:

 ... all Members and all parties to avail themselves fully of the opportunity to propose amendments during committee stage so that the report stage can return to the purpose for which it was created, namely for the House to consider the committee report and the work the committee has done ... 

These guiding principles are embodied in the interpretive notes attached to Standing Orders 76(5) and 76.1(5),^[4] which have allowed committees to a large extent to remain the central focus for the detailed study of bills, thereby ensuring that report stage not become a repetition of committee stage.

House of Commons Procedure and Practice, Second Edition, explains, at pages 783 and 784:

As a general principle, the Speaker seeks to forestall debate on the floor of the House which is simply a repetition of the debate in committee … Furthermore, the Speaker will normally only select motions in amendment that could not have been presented in committee. A motion previously defeated in committee will only be selected if the Speaker judges it to be of such significance to Members as to warrant further consideration at report stage.

However, the strength of these guidelines has been tested in the recent past as the House faced voluminous report stage proceedings, first in June 2012 with Bill C-38, An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures, and then in November 2012 with C-45, A second Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures.

These two cases brought into sharp relief the difficulties faced by independent Members with respect to committee proceedings on bills, specifically in reference to the provisions of Standing Order 119,^[5] which do not permit a Member who is not a member of the committee to move any motion, nor to vote, nor to be part of any quorum. These circumstances cause some Members to call into question the ability of the House’s rules and practices to safeguard the intended purpose of report stage.

They also gave rise to a ruling on December 12, 2012, in which I addressed the issue of the participation of independent Members in the process of amending bills, particularly in committee. In that ruling, I suggested that, until committees found a way to enable independent Members to have their amendments considered at the committee stage, the Chair would continue to allow them to do so at report stage. I stated at that time, at page 13224 of the House of Commons Debates:

The Standing Orders currently in place offer committees wide latitude to deal with bills in an inclusive and thorough manner that would balance the rights of all Members.

and

 … there is no doubt that any number of procedural arrangements could be developed that would ensure that the amendments that independent Members wish to propose to legislation could be put in committee.

To answer this fully would be to ask the Chair to reach into and adjudicate upon committee matters, a practice the House has long resisted, given that committees are masters of their own proceedings, as we are apt to say.

In my ruling of November 29, 2012, on a similar case, consistent with these long-standing practices of the House, I informed Members that in the absence of a report from the Committee, the Chair would not delve further into committee matters. In doing so, I quoted Speaker Milliken, who on November 27, 2002, stated:

As Speaker, I appreciate the responsibility that I have to defend the rights of all Members and especially those of Members who represent minority views in the House. At the same time, it is a long tradition in this place that committees are masters of their own proceedings. Ordinarily the House is only seized of a committee matter when the committee reports to the House outlining the situation that must be addressed.

He then added:

That being said, it is true as well that committees are permitted a greater latitude in the conduct of their proceedings than might be allowed in the House. It may not always be clear in a particular set of circumstances how best to proceed and so the ultimate decision is left to the Committee itself.

At the same time, the Chair is also cognizant of its responsibility for the selection of report stage motions and the fact that what happened in the Finance Committee in this instance has had a direct bearing on my selection decisions in the case of the report stage of Bill C-60 and on independent Members. Accordingly, the Chair feels compelled to address some of the issues raised, particularly as they relate to their impact on independent Members.

As I understand it, the principal concern raised about the Committee process was the Committee’s decision to deem moved any amendments submitted by independent Members and certain other committees during the Committee’s clause-by-clause consideration. The main concern expressed by the Opposition House Leader with this manner of proceeding is that in his view it exceeded the Committee’s mandate. He argued that to deem motions to be moved is a clear violation of Standing Order 119,^[6] which stipulates that only permanent members of a standing committee can move motions. The Opposition House Leader stated that as a result, the process adopted by the Finance Committee was fundamentally flawed.

It should come as no surprise to Members that the House and its committees frequently resort to procedural motions to facilitate the flow of business. Procedure in committee is particularly fluid and varied, and many committees routinely use a wide array of processes to organize their work. Deeming things to have taken place is part of that body of precedent.

In the House, this is often achieved by deciding to forgo the usual procedural steps and to assume that certain procedural transactions have taken place even if they have not. For example, it happens from time to time that the House will see fit to adopt a bill at all stages, deeming that each stage has been agreed to. No movers’ names are attached to the motions for second reading, concurrence at report stage, or third reading.

Similarly, practically on a weekly basis, recorded divisions are deemed demanded and deferred. Again, no Members’ names are attached to the motions that make this possible. In fact, the House has even been known to tinker with the time-space continuum by deeming it to be a certain time, even when it is not, and by making, say, a Tuesday to be a Monday, as was done a few weeks ago on May 21. Again, no names of Members are attached to the motions that make this possible.

Our House and committee annals are rife with examples of this kind. These commonly used procedural instruments are even provided for in some of our Standing Orders. What may be causing difficulty in this case is that while the practice of “deeming” is most often achieved through unanimous consent, it can also occur by majority decision, but of course at greater cost in House or committee time.

In the case before us, it appears that this is the approach that was used by the Finance Committee. A motion setting out the process to be followed was proposed, debated and ultimately agreed to. As far as the Chair can see, in the absence of a report from the Committee to the contrary, Standing Order 119^[7] was not flouted in the process. Instead, it appears rather that a procedural instrument was devised to provide for the manner in which the Committee would conduct its business.

Turning to the issue of the rights of independent Members, the Chair can only observe that the decision of the Finance Committee permitted them to do something they could not do before: namely, to have their amendments considered in the Committee and, indeed, to be granted, pursuant to Standing Order 119,^[8] an opportunity to speak in Committee. This is something that was not open to them before. In that sense, they succeeded in obtaining a form of participation in committee proceedings, as imperfect as it may have been in their eyes.

As Speaker, I can only speculate on whether other committees will emulate or, dare I say, perhaps even expand on the spirit of inclusion witnessed in the Standing Committee on Finance.

In summary then, while I am entirely sympathetic to the procedural consequence of this development for independent Members at report stage, I must remind the House again of my obligation to ensure that report stage not become a repeat of the committee stage.

As a guardian of the rights and privileges of all Members, it is also my duty in this case to ensure that the rules, practices and expectations of the House are upheld and, in so doing, ensure that Members are afforded an opportunity to participate in the legislative process. To protect the integrity of report stage, the Chair would have to know that there was no mechanism at all, not just an unsatisfactory one, for a Member to move motions in committee.

It is true that the rules of the House may result in varying degrees of participation for Members, depending on the proceeding and depending on the status of that Member for that proceeding. For instance, members of committees enjoy opportunities that non-committee members do not, and even committee members have varying opportunities to participate.

What the Chair must protect is Members’ rights to have some mechanism to put forward their ideas.

It is for these reasons that the Chair did not select any motions at report stage that could have been considered, or were considered, in committee.

Accordingly, for all these reasons, I cannot conclude that the rights of independent Members have been diminished as a result of the proceedings in the Standing Committee on Finance, particularly when scores of Members who were not members of the Finance Committee, and thus not in a position to propose amendments there, are likewise subjected to the very same report stage restrictions.

In addition, noting that this is a departure from the Chair’s long-established practice of not commenting on committee proceedings, again in the absence of a report to the contrary on which to base its interventions, the Chair concludes that Bill C-60 is properly before the House and that it cannot find that a procedurally improper proceeding has taken place in the Standing Committee on Finance.

I would like to thank all hon. Members for their attention on this matter.