Parliamentary Privilege / Rights of the House

April 19, 1993

Debates, pp. 18104-6

On February 24, 1993, Mr.Derek Lee (Scarborough—Rouge River) rose on a question of privilege regarding “the failure of the Minister of Finance to lay before Parliament an order made pursuant to subsection 59(2) of the Customs Tariff” which was by subsection 59(5) of the same act required “to be laid before Parliament on any of the first 15 days after the making thereof that either House of Parliament is sitting.” Mr. Lee noted that one year earlier he had raised a similar question of privilege concerning the late tabling of an order required by statute to be tabled by a certain date. He then informed the House of the adoption by the Governor in Council on December 29, 1992 of order in council P.C. 1992-2715, which revoked the order referred to in his earlier question of privilege on February 3, 1992. He claimed that this revocation order should have been laid before Parliament by February 15, 1993, that it was not and that this omission amounted to a contempt of the House.

While indicating that it was not his intention to repeat at length the arguments he had presented in his earlier question of privilege, Mr. Lee requested that the Speaker take them into consideration. He emphasized that he was not rising “in any capacity other than that of a Member of Parliament seeking to uphold the collective right of this House to have a copy of any order made pursuant to subsection 59(2) of the Customs Tariff laid before it.” He expressed his belief that the Minister of Finance had not intentionally disobeyed the statutory tabling requirement, but indicated that intention was not relevant to a finding of contempt and submitted that “the Minister’s failure to table a document required to be tabled…whether intentional or accidental, tends to diminish the authority of the House of Commons and is something that might reasonably be held to constitute contempt by this House.” Referring to the Speaker’s ruling of February 5, 1992, on this issue, he remarked that departmental officials appeared to have ignored the caution delivered by the Speaker regarding adherence to tabling requirements but noted that under the doctrine of ministerial responsibility the Minister is accountable to the House for the acts or omissions of officials. In conclusion, Mr. Lee indicated that he was prepared to move an appropriate motion should the Speaker find a prima facie case of privilege. Mr. Don Mazankowski (Deputy Prime Minister and Minister of Finance) indicated that he would look into the matter and report back to the House.^[1]

On the following day, February 25, 1993, Mr. Charles Langlois (Parliamentary Secretary to the Minister of State and Leader of the Government in the House of Commons) tabled Order in Council P.C. 1992-2715, which was the subject of Mr. Lee’s question of privilege.^[2]

The Speaker, having reserved on the matter, delivered his ruling, which is reproduced below, on April 19, 1993. At the same time, the Speaker dealt with the issue of Government non-compliance with deadlines for responses to Committee reports.

Decision of the Chair

The Speaker: …I would like to advise all honourable Members that I am now ready to rule on the question of privilege raised on Wednesday, February 24 by the honourable Member for Scarborough—Rouge River regarding the failure of the Minister of Finance to table an Order in Council pursuant to section 59(5) of the Customs Tariff.

Regrettably this issue is not new to this House, having been raised by the honourable Member just over a year ago. I would like to thank the honourable Member for bringing this matter to the attention of the House again and the Deputy Prime Minister and Minister of Finance for the response.

I will deal as well in this ruling with the question of privilege raised on March 29, 1993 by the honourable member for Winnipeg South Centre (Hon. Lloyd Axworthy) concerning the late tabling of Government response to a committee report from the Standing Committee on External Affairs and International Trade.

In presenting his claim for breach of privilege the honourable Member for Scarborough—Rouge River explained that on December 29, 1992, pursuant to section 59(2) of the Customs Tariff, the Governor in Council adopted Order in Council 1992-2715.

The honourable Member’s question of privilege concerned section 59(5) of the Customs Tariff which explicitly states: “The Minister of Finance shall cause a copy of any order made pursuant to subsection (2) to be [laid] before Parliament on any of the first 15 days after the making thereof that either House of Parliament is sitting”.

Pursuant to this statute, the order referred to by the honourable Member should have been tabled on or before February 15, 1993. However, as the honourable Member noted, the Minister of Finance failed to do so.

For the information of all Members I would like to note that the document cited was tabled subsequent to the question of privilege being raised on February 25, 1993. Nonetheless, this eventual tabling of the order does not correct the situation or resolve the fundamental problem.

Let me begin by saying that I find this situation particularly disheartening because of the striking resemblance it bears to the situation which gave rise to the question of privilege raised a year ago. In both cases the Minister of Finance was required by section 59(5) of the Customs Tariff to table an order in council within a prescribed time.

I am not making any of these comments in any personal sense and Members will understand that but there are people in departments who know these rules and are supposed to ensure they are carried out.

In both of these cases the government failed to do so until after the matter was brought to the attention of this House.

The key element of the question of privilege raised by the honourable Member for Scarborough—Rouge River is based on a statutory requirement. That is, the Ministry was legally obliged to table a copy of an order made by the Governor in Council within a time limit determined by the Customs Tariff.

I find it necessary to also repeat the honourable Member’s statement of one year ago that, and I quote the honourable Member : “It is difficult to conceive of any command of this House that could have more legitimacy [than] one contained in a law passed by this House”.

As the honourable Member succinctly stated when this very issue was raised in February 1992: “Subsection 59(5) of the Customs Tariff is a statutory provision and statutes are the highest form of command that can be given by this House. In my view, the disregard of that legislative command, even if unintentional, is an affront to the authority and dignity of Parliament as a whole and of this House in particular”.^[3]

It is an opinion that I share and that I expect to prevail in this Chamber. The statutory laws which have been agreed to by Members of this House do serve a purpose and are meant to be respected.

As a servant of the House of Commons it is my duty to uphold the dignity and authority of this place. It is an obligation of the Speaker with, of course, the support of the Members. At the very beginning of a Parliament every Speaker addresses the Crown as represented by the Governor General, by claiming all the rights and privileges, in particular that Members may have freedom of speech in their debates, access to His Excellency’s person at all seasonable times and that their proceedings may receive from His Excellency the most favourable construction.

In the present case it is not merely an order of the House that has been violated, but a law duly assented to by the Crown as a constituent part of Parliament. The delegate of the Crown has not met the exigencies of the law of Parliament.

As I have said before, Canada is not an executive democracy nor an administrative democracy, but a parliamentary democracy. If the Speaker has to remind the Crown [formally] at the opening of every Parliament then those who serve it should take note.

As Members are well aware, the tabling of documents constitutes a fundamental procedure of this House. It is a part of our rules and ensures that Members have access to the information necessary to them to effectively deal with the issues before Parliament.

In addition, as I mentioned a year ago, the rules of the House specify that all reports, returns and papers to be laid before the House in accordance with the requirements of the statute are automatically referred to a standing committee, pursuant to Standing Order 32(5). Consequently, ministers and departmental officials must ensure that required documents are tabled so the House has a copy for the information of Members and for review by one of its committees.

The requirements contained in our rules and statutory laws have been agreed upon by this House and constitute an agreement which I think all of us realize must be respected.

There has been a growing number of complaints raised by Members in the past year about responses to petitions not being filed within the required time and answers to written questions being answered late. I understand that we live in an imperfect world. Nonetheless, what I refer to is all on the record and today I am dealing yet again with a document not being tabled within the legally prescribed time period.

In addition, the Member for Winnipeg South Centre raised the issue on March 29, 1993 that the Government was in breach of Standing Order 109 by not presenting the comprehensive response to the report of the Standing Committee on External Affairs and International Trade on the future of Canadian military goods, production and export to the House within the 150 days required.

Members cannot function if they do not have access to the material they need for their work and if our rules are being ignored and even statutory instruments are being disregarded.

I believe the House management committee should be given the opportunity to look into this whole question of late tablings. I am therefore prepared to find a prima facie case of breach of privilege and allow the honourable Member for Scarborough—Rouge River to move a motion referring this matter to committee.

In this way I am allowing the House to decide whether or not it shares my concern about the growing severity of this problem. The House may then decide whether or not it feels the House Management Committee should be tasked with considering the issue.

The motion was immediately put and adopted without debate. Accordingly, it was ordered that the matter of the non-observance of the tabling requirements for Order in Council P.C. 1992-2715 and other documents in the House of Commons be referred to the Standing Committee on House Management.

The Standing Committee on House Management in its 101st report deemed to have been laid on the Table on June 17, 1993, after reviewing the facts, stated in its last four substantial paragraphs:

The Speaker’s ruling clearly sets out the issues involved. There are provisions in the Standing Orders of the House as well as many statutes passed by the House that require documents to be tabled in the House within certain time periods. Non-compliance with a deadline set out in a statute or the Standing Orders is a serious matter. It constitutes a breach of a law, or of a rule of the House.

The Committee believes that the statutory and procedural time limits must be complied with. If a document cannot be tabled within the prescribed time, the responsible Minister should advise the House accordingly before the deadline; it is not acceptable that the deadline is ignored.

It may be that the time periods set out in the Standing Orders and certain statutes need to be reviewed and, where necessary am ended. Until this is done, however; it is essential that the deadlines be respected.

With respect to the specific issue raised by Mr. Lee, the Committee believes that further study of the matter should be considered. In particular; we would like to hear from witnesses who can shed some light on the late tabling of Order in Council 1992-2715.^[4]

No motion for concurrence in the report was presented. The House adjourned on June 23, 1993 which was the last sitting day of the 34th Parliament.

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1993-04-19