Parliamentary Privilege / Rights of Members

Freedom from obstruction and interference: right to participate at report stage; non-recognized party

October 18, 2016

Debates, pp. 5797–8

On June 6, 2016, Elizabeth May (Saanich—Gulf Islands) rose on a question of privilege regarding the right of members of non-recognized parties to move amendments to bills at report stage.^[1] Ms. May pointed out that standing committees had all passed motions inviting independent members to present their proposed amendments to bills during clause-by-clause consideration of the bill in committee, which prevents them from doing so at report stage. In her opinion, the fact that every committee passed a motion with identical wording shows that committees were no longer masters of their own proceedings. She added that, since various bills could appear before various committees at the same time, members of non-recognized parties were at a disadvantage, because they could not appear before multiple committees simultaneously. She said that this relegated members of non-recognized parties to a separate category. On June 10, 2016, Kevin Lamoureux (Parliamentary Secretary to the Leader of the Government in the House of Commons) contended that, to the contrary, the passing of these motions in committee made it easier for members of non-recognized parties to participate in the consideration of bills.^[2] The Deputy Speaker (Bruce Stanton) took the matter under advisement.

Resolution

On October 18, 2016, the Speaker delivered his ruling. He explained that members have two opportunities to propose amendments to bills: in committee during clause-by-clause consideration and in the House at report stage. He stated that parliamentary procedure had changed over time so that motions that had previously been ruled out of order in committee or that could have been proposed at committee stage would not be selected again at report stage. As to the way committees chose to allow members of non-recognized parties to participate in the consideration of a bill, the Speaker explained that committees regularly pass motions affecting the management of their proceedings. In his opinion, this practice reflects the evolution of committee procedure. Since committees are and remain the masters of their proceedings, the Speaker must presume that the motions were passed following the correct procedures. In his view, the rights of members of non-recognized parties had not been impeded. As a result, the Speaker found that there was no prima facie question of privilege.

Decision of the Chair

The Speaker: I am now prepared to rule on the question of privilege raised on June 6, 2016, by the hon. member for Saanich—Gulf Islands concerning the rights of members from unrecognized parties to propose amendments to bills at report stage.

I would like to thank the hon. member for having raised the matter, as well as the hon. Parliamentary Secretary to the Leader of the Government in the House of Commons and the member for Beloeil—Chambly for their comments.

In raising this question of privilege, the member for Saanich—Gulf Islands pointed out that independent members had once had the right to submit motions to amend bills at report stage. She contended that this situation changed when every committee adopted identical motions which required independent members instead to submit their amendments during clause-by-clause consideration of bills in committee. By committees doing so in concert, she surmised that they were no longer masters of their proceedings and had supplanted the role of the Standing Committee on Procedure and House Affairs, which has the mandate to review House procedures, including report stage. With different bills at different committees, she characterized the new process as “…impractical, unworkable, and prejudicial to my rights”. She contended that the result of the procedure in question was that members from non-recognized parties were subject to a different category of rights and privileges.

The Parliamentary Secretary to the Leader of the Government in the House of Commons suggested that, on the contrary, the member’s ability to participate in the process of amending legislation and thus discharge her parliamentary functions … has been facilitated by committees having adopted such motions so as to allow members from non-recognized parties to propose amendments in committee.

The matter raised by the member for Saanich—Gulf Islands calls into question the legitimacy of the manner in which members from non-recognized parties are required to participate in the process of amending legislation. The member is asking the Chair to agree that there is greater legitimacy in allowing such members to propose their amendments at report stage rather than in committee.

As has always been the case, there are two opportunities in the legislative process for members to propose amendments to the actual text of a bill—first, during a committee’s clause-by-clause consideration of a bill and, second, at report stage. That is not to say that both opportunities are the same in all respects. In fact, over time our rules and practices have evolved such that committees are and have been for some time the primary vehicle for amending legislation. Speaker Milliken’s ruling of March 21, 2001, emphasized this reality when he stated at page 1993 of the House of Commons Debates:

…I would strongly urge 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, and to do such further work as it deems necessary to complete detailed consideration of the bill.

In fact, modifications to Standing Order 76.1, adopted in 2001, provided that the Speaker would not normally select at report stage any amendments that were either previously ruled out of order in committee or that could have been proposed during the committee stage.

More recently, in a ruling delivered on June 9, 2015, on page 14830 of the Debates, my predecessor, the member for Regina—Qu’Appelle, reminded members that report stage:

…is not meant to be another opportunity for detailed consideration of the clauses of the bill. For this reason, the Chair rigorously limits the types of motions that could be considered at report stage. In so doing, the Chair rests on the presumption that a committee’s clause-by-clause consideration provides ample opportunity to scrutinize the clauses of the bill and have amendments considered accordingly.

Thus, there can be no mistaking either the will of the House or the role of the Speaker when it comes to the purpose of report stage compared to that of committees with respect to amending legislation.

While the member for Saanich—Gulf Islands may recognize this in principle, she has argued that its practical application for members of non-recognized parties is fraught with difficulties, to the point of impeding her ability to fulfill her parliamentary functions. She has concluded that the adoption of identical motions by all committees constitutes proof that they are no longer masters of their own proceedings.

House of Commons Procedure and Practice, Second Edition, explains on page 1047:

The concept refers to the freedom committees normally have to organize their work as they see fit and the option they have of defining, on their own, certain rules of procedure that facilitate their proceedings.

As recently as May 9, 2016, in a report stage ruling, I addressed this very issue. In doing so, it was made clear that, as committees continue using their flexibility as masters of their proceedings to allow all members the opportunity to propose amendments, the Chair expects members, in turn, to avail themselves of that opportunity.

At page 3045 of Debates, I stated:

…the Chair will be stricter in exercising his authority at report stage. Unless truly exceptional circumstances arise, the Chair will not select report stage motions that could have been moved in committee. I encourage all members to make efforts to have amendments dealt with in committee, so that report stage does not become a repetition of the committee clause-by-clause study of a bill.

In being asked to determine the procedural validity of committees’ actions in adopting these motions, the Chair is ever mindful of the longstanding practice that it must refrain from reaching into the internal procedures of committees, except where a committee reports back to the House requesting such intervention.

Thus, in the absence of a report from any of the committees about this matter, the Chair must presume that the correct procedures—including the requisite notice, debate, amendment and decision—were followed and that a majority of the members of each committee supported the adoption of the motions in question.

That committees are left to determine how best to proceed in order to carry out their mandate is an embedded principle. In a ruling delivered on June 6, 2013, on a similar motion adopted by the Standing Committee on Finance in the previous Parliament, my predecessor noted, on page 17797 of the Debates:

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.

In fact, committees frequently adopt substantive motions with text that is virtually identical on a variety of subjects. For instance, at an organization meeting, many committees adopt routine motions related to the distribution of documents to committee members, the treatment of in camera transcripts, the presence of staff during in camera meetings, and the reimbursement of witnesses, to name a few. That these motions are often substantially similar or even identical speaks to the development of best practices in committee procedure and to the need for the adaptation of procedure to changing circumstances.

Moreover, the Chair is unable to conclude that the various committees, by way of adopting these motions, have in any way usurped the role of the Standing Committee on Procedure and House Affairs. In fact, the role of that committee remains distinct and intact, as its authority in reviewing procedures and practices continues to stand concurrently with, yet separately from, committees’ authority to determine their internal procedures. It is only the House that could decide otherwise.

The role of the Speaker in protecting the rights and privileges of all members is indisputably of the highest importance and one that I take very seriously. In the present circumstances, the Chair believes that the right of members of non-recognized parties to amend legislation has neither been diminished nor removed. Instead, it has been safeguarded, albeit through a process that the member for Saanich—Gulf Islands evidently dislikes and finds difficult to manage.

Accordingly, I cannot find that a prima facie question of privilege exists in this case. I thank the House for its attention in this matter.