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Speech in Senate Chamber: Senator Cools raises a point of order on the First Report of the Standing Committee on Rules, Procedures and the Rights of Parliament (Revised Rules of the Senate), because the rule changes were not part of the Report, the Report imposed closure on debate in the Senate, and the Report exceeded the Committee's mandate.

 

Rules, Procedures and the Rights of Parliament

First Report of Committee—Point of Order—Speaker's Ruling Reserved

 On the Order:

Resuming debate on the motion of the Honourable Senator Smith P.C. (Cobourg), seconded by the Honourable Senator Cordy, for the adoption of the first report of the Standing Committee on Rules, Procedures and the Rights of Parliament (Revised Rules of the Senate), presented in the Senate on November 16, 2011.

  Hon. Anne C. Cools: Honourable senators, I rise on a point of order regarding the First Report of the Standing Senate Committee on Rules, Procedures and the Rights of Parliament presented here on November 16, 2011, and currently before us in respect of proposed recommendations to the Senate for rule changes. I assert that this report is irregular and out of order as it is contrary to well-established Senate and Senate committee practices and procedures for recommending rule changes. I submit that these irregularities are major and in three distinct areas.

  First, the report exceeds the scope and mandate authorized by rule 86(1)(d)(i), on which the committee depends for these rule changes.

  Second, the report purports, most improperly, to impose closure on Senate debate, and orders a date for the coming into force of the new rules.

  Third, contrary to well-established Senate practice, the committee's recommended rule changes are not part of and are not included in this report. They are contained in a separate document, alien to the report, named an appendix.

  This appendix, because of the nature of this motion and of this form of proceeding presently before us, is procedurally incapable of and precluded from putting the proposed rule changes before the Senate for consideration and debate.

  These three distinct sets of irregularities are major and organic and are so compelling as to demand that the prosecution of this proceeding be arrested forthwith.

  I submit that the report before us is defective and irregular and is inadmissible for our consideration, debate and vote here. I ask His Honour to rule the report out of order on these grounds.

  Honourable senators, first I wish to acknowledge the subcommittee and its three members, Senator Carignan, Senator Stratton, and Senator Fraser, the chair.

  I thank them for their labours and their hard work. I commend their efforts. I laud them and accord them all that they should be accorded and more. At the same time, I maintain and uphold our duty as senators to subject their findings and conclusions to our careful and diligent examination and to uphold the rules, rights and privileges of this house. It is in light of this responsibility, shared by every individual senator, that I feel bound to call attention to these three procedural breaches of this report.

  Honourable senators, I shall move to the first breach. This report exceeds the scope of mandate authorized by rule 86(1)(d)(i), the rule on which this committee depends for authority to present this report to the senators and the Senate for consideration. By this rule, our Committee on Rules, Procedures and the Rights of Parliament is empowered:

. . . on its own initiative to propose, from time to time, amendments to the rules for consideration by the Senate;

  Our Senate rules are the tools, the mechanics by which we actuate and exercise our privileges. Rule 86(1)(d)(i) was born of the Senate's notion that our rules are our privileges and that we should hold them jealously and closely and keep them under constant study. This rule intended an enlarged role for senators in rule changes, not a shrunken or reduced one.

  Honourable senators, this rule grants a limited power to the committee to initiate rule changes in close concert with senators. It does not intend nor contemplate such voluminous and massive change as the total repeal of the status quo. A total repeal is not an amendment, and no amendment can negate the whole of that which it amends. These proposed rule changes — 174 pages of them — are the single largest, most voluminous changes to our Senate rules ever, in 145 years. It would repeal in one massive 174-page fell swoop the entire rule book in toto and replace it with a new one, by one sentence in the report and one motion.

  This one-shot bulk approach, this total repeal, this total reframing and recasting of the rules is not, even to the widely imaginative, ''amendments from time to time.''

  Honourable senators, the subcommittee was first created on April 13, 2010, following debate on concerns that I raised about the legal and parliamentary probity of a small, self-selected group of senators and selected staff meeting privately, without Senate authority and with no record, yet with a stated intention to use this rule to bring their proposals to the Senate. Vital to that debate was the necessity of the subcommittee's records of its deliberations. I had questioned the committee's persistent use of in camera meetings and its routine and undesirable use of secrecy. That day, I agreed; I voted to constitute a subcommittee whose mandate was limited to changes of a grammatical nature and of clarity, with a much needed focus on harmonizing the English and French versions.

  The subcommittee received no power and no authority to touch the substance or content of the rules, as it clearly has. I support the undoubted linguistic fact that the French and English versions of our rules must be harmonized. This, by itself, is a huge undertaking and a worthy one, but the subcommittee, without authority, chose to extend its reach beyond its mandate and waded into deep waters, making a good many substantive and major changes, including some to our ancient privileges granted by the British North America Act, 1867, section 18.

  The consequence is that the report exceeds the mandate of the committee and is, therefore, out of order.

  Honourable senators, I turn now to the report's second breach of order. A committee is a creature of the Senate, and, as such, it has no powers other than those expressly delegated to it by the Senate. The first recommendation reads as follows:

That the existing Rules of the Senate be replaced by the revised Rules of the Senate contained in the First Appendix to this report, including the associated appendices to the Rules, effective from September 1, 2012;

  Honourable senators, by imposing an end date for adoption, expressed as the date for the coming into force of the revised rules, the committee, in practical terms, has given an instruction to the Senate limiting debate and imposing a form of closure. This exceeds the powers delegated to it by the Senate. The proper procedures for imposing time limits on debate are clearly stated in our rules 38, 39 and 40. The Senate has never delegated to any of its committees any power to limit debate here in the Senate. It is most improper for a committee to impose a deadline on a Senate proceeding.

  The established practice for adopting rule changes in this house is that they either come into effect by a separate resolution of the Senate, as was the case when significant changes were made in 1906 and 1968, or upon adoption of the motion that seeks to amend the rules itself.

  For example, in the 1991 rule changes, recommendation 19 of the then Rules Committee report stated:

That changes in the Rules of the Senate, contained in this Report of the Standing Committee on Standing Rules and Orders, come into force when the Senate next meets after the adoption of this report by the Senate.

  Honourable senators, the Senate is not subject or subordinate to the authority of its committees. A recommendation in this report dictating a specific date by which the revised rules should come into force is irregular and, in itself, is grounds for the report to be ruled out of order.

  I come now, honourable senators, to the third, and by far the most important, profound and far-reaching breach.

  This report does not contain the substantive matter that is the subject and purpose of the report, specifically, the text of its proposed rule changes.

  Instead, the substantive portion of the report is found in what has been styled the first appendix to the report. This motion to adopt the report does not put the actual recommended rule changes before us for debate. That is a very serious matter. Simply put, we cannot debate the proposed rule changes because they are not part of or included in the report that this motion asks us to adopt.

  This report, by its form of proceeding, has placed its substantive matter, the actual proposed rule changes, beyond the procedural ability of senators to consider, debate, amend and vote on the actual words, paragraph by paragraph, of the rule changes. It is, therefore, out of order.

  Honourable senators, let us examine what a committee report is. Marleau and Montpetit, in their House of Commons Procedure and Practice, First Edition, tell us on page 879 that:

Committees make their views and recommendations known to the House by way of reports.

  It is pretty clear. The report is the means to deliver, to present their recommendations to the house. That is what the report is. It comes out of an oral tradition where members would rise and make the report orally, presenting to senators.

  A committee report is the form of proceeding by which Senate committees present or deliver their findings and recommendations to senators and the Senate. A report is structured as a cluster of clearly designated paragraphs in seriatim, often numbered, and clearly signed by the committee chair. Let us understand this, honourable senators. This entire system is a very profound one. A committee report is those words — those paragraphs — below the title ''Report'' and above the chair's signature, which certifies that those words and those paragraphs are the committee's words, the words seeking Senate adoption. Those words, in those paragraphs, and no other words in any other text, are the report. No other words over there in another document or over here or wherever are the report. It is within the pages of the report that we find the substantive questions or recommendations for which the committee is seeking the Senate's acknowledgement and approval.

  The report before us is a mere page and a half. Instead, the recommendations are to be found without the chairman's signature in the first appendix, a mere 174 pages of recommended changes to the Rules of the Senate.

  Honourable senators, most senators do not even realize that these recommended rule changes are 174 pages and that they are the single largest, in quantum and volume, amount of rule changes ever put before this house, and God knows I have reviewed endless Rules Committee reports in the last while.

  Honourable senators, unlike a report, an appendix is not a ''form of proceeding'' that Senate committees use to put their hard laboured recommendations, their choice conclusions, before the Senate and senators for their judgment. The Oxford Dictionary defines ''appendix'' as:

An addition subjoined to a document or book, having some contributory value in connexion with the subject-matter of the work, but not essential to its completeness.

  An appendix is of limited and narrow use. It is a subsidiary, a non-substantive piece deployed usually for information purposes only.

  Honourable senators, no lawyer would put his most important arguments in an appendix to his main document. Why would he hide them?

  An appendix is inconsequential and non-substantive to any decision or judgment that the house or any court is asked to make. In our experience in this chamber, an appendix usually contains information like lists of witnesses who appear before the committee or other factual information, but which is not central to the main purpose of the report itself.

  House of Commons Standing Order 108(1)(a) is instructive. It permits a committee to print a brief appendix to any report with opinions and recommendations that dissent from or that supplement the report while it maintains and upholds the integrity of house procedure on committee reports by defining that such brief appendix is not part of the report. There were many problems with those issues some years back.

  The Commons annotated Standing Orders, second edition, at page 387, state:

Such appendices are attached after the signature of the Chair, and do not form part of the report in a procedural sense.

  Similarly, Senate rule 98 states, in part:

When any amendment to the bill has been recommended by the committee, such amendment shall be stated in the report.

  No chairman will put amendments to a bill in the appendix to a committee report, but they do it in a committee report here on rule changes. Interesting, is it not.

  Rule 98 specifically states ''in the report,'' honourable senators, not in an appendix to the report because an amendment to a bill is a substantive matter which requires the Senate to consider, debate, amend, reject or adopt specific words. They must be in the report.

  Clearly, the wholesale replacement of the existing Rules of the Senate with these proposed revised rules should be more than an appendix, an afterthought placed not in its place, not quickly observed.

  Honourable senators, the procedural problem is that the two-page report before us, signed by the chairman, does not contain a single paragraph, not a single word of the committee's recommended rule changes, the proposed rule changes themselves. We cannot debate them. We cannot actuate and amend them because they are not before the Senate for actual debate and amendment, as is the report. This is a serious problem. In other words, any senator cannot rise and say, ''I move to amend the committee report by deleting these words and inserting those.'' The actual words of the rule changes are not in the report. I shall show it to you. The report is a page and a half. I am informed that most senators do not even know that this is the case.

  Here, last November 29, Senator Fraser indicated to us her mistaken belief that senators may debate and amend the text of the proposed rule changes. She said:

. . . the important thing is that the Senate itself . . . must examine this work and decide whether it wants to adopt all of it, some elements of it or some of it amended.

  Senator Fraser obviously believes that in this form of proceeding we can amend the report, but we cannot. Though reassuring that there is no sinister ploy at work here, Senator Fraser seems unaware that this proceeding permits no amendment to a single rule of the proposed rule changes and does not even put them before us.

  Honourable senators, this first report deviates from long-established Senate practice and from the Rules Committee's own consistent practice, which has been that the report itself contains the actual text of its recommended rule changes, paragraph by paragraph and word by word. By this practice of inclusion in the report, the motion to adopt the report will adopt the proposed rule changes. There is a reason the customary practice is to include the rule changes within the text of the report, not appended as an appendix. Rules are fundamental to parliamentary practices and procedures and to the function of this chamber. The Rules of the Senate are not explanatory or supplementary. They are substantive in nature and do not belong in the appendix but in the main text, the main body of the report.

  In other words, honourable senators, the committee masterpiece production should be before us for debate. The star of the show should be on the stage; do you not agree?

  Honourable senators, as an example, the last major revision to the rules occurred in 1991. At that time, the report, presented by Senator Robertson, contained the text of every single proposed rule change, paragraph by paragraph: 38 pages of them structured and numbered as 19 recommendations, each one showing clearly every amendment made and proposed, all above her signature. I have a picture of it here to show honourable senators.

  However, the 1991 changes were not the only example of the recommended rule changes being in the body of the report. I have reviewed the most significant rule changes in Senate history, be it 1991, 1975, 1972, 1968, 1915 or 1906. I went back to 1894. I have also examined 75 of our Rules Committee reports recommending rule changes to the Senate from the present, 2012, back to 1969; 68 of these 75 included the recommended rule changes in the report.

  My 43-year review informs that our Senate Rules Committee's practice has been diligent to include the actual text of their recommended rule changes, paragraph by paragraph, in their committee reports, thereby putting them before senators for consideration.

  Honourable senators, do not misunderstand; I am not being slavish in any way because I am going to give an example where recommendations were put in a different document. However, that document was moved directly before the house for senators' consideration. It is important to note, honourable senators, that in particular instances, such as in 1968 and 1906, where the substantive proposed rule changes were contained in a schedule or another paper different from the report, that schedule or paper was referred to Committee of the Whole, thereby putting the substantive matter of these separate documents directly before the house for consideration.

  Some of us remember Senator Molson. On December 10, 1968, Senator Molson, an independent senator and Chairman of the Special Committee, moved:

. . . that consideration of the Fourth Report of the Special Committee on the Rules of the Senate be postponed until Thursday next, but that the schedule thereto containing a proposed revision of the Rules of the Senate be referred to the Committee of the Whole for consideration forthwith.

  Honourable senators, we can do things sometimes differently. The point is that whatever we do, what we are asking the house to adopt has to be put before the house directly by motion.

  Honourable senators, in Committee of the Whole, senators considered those rule changes in seriatim, moving and voting on them individually, one by one. Interestingly, I was talking about reports and oral process. Committee of the Whole continues the tradition of the report by the committee chairman being an oral presentation. There is no written report brought forward. The schedule, as amended in Committee of the Whole, was orally reported back to the chamber and adopted. In 1906, it was a draft set of rules or a list, and the Senate did the same thing. That document, that piece of paper, was referred to Committee of the Whole. Honourable senators, I shall establish later that rule 86, which put these rule changes before us, was anticipated and intended to work in conjunction with Committee of the Whole. By referring a schedule or a paper to the Committee of the Whole, the proposed rule changes were put before the Senate for consideration and debate. That has not been done in this instance. As a matter of fact, when the report was presented, none of the proposed rule changes were put before the house whatsoever.

  Honourable senators, we cannot adopt any measure that is not seen and known by us and is not put before us by motion for debate and vote. We have a right, a privilege and a duty to know and examine every single word of the proposals that any motion asks us to adopt and vote on. This is our duty and our privilege in law. In the Law of Parliament, this process of knowing is called ''reading'' or ''a reading.'' It is the parliamentary process by which the actual proposed text put by motion before us is considered, debated, amended and voted. Long before easy access to printing, the parliamentary procedure of ''reading'' took its name from the physical act of reading aloud every word of every bill and motion so that every member could have cognitive knowledge, and the house cognizance, of the proposal before them. Individually as senators and collectively as the Senate, we ''read'' every single word, paragraph by paragraph, in the case of reports, and clause by clause in the case of bills, to express our judgment by our vote. Under the oath we took as senators, we verify or we swear that those words and our votes on them are true. The question now before us is the motion to adopt the report, but we cannot ''read'' the recommended rule changes because this report, this form of proceeding, does not make the recommended rule changes available to us. They are not within the pages of the report. Only the report is before us. Therefore, the proposed rule changes are not before us for debate.

  Honourable senators, the recommended rule changes are unavailable to us and beyond our procedural reach. We cannot consider them, amend them or vote on them. This procedural exclusion, this procedural absence of the substantive, actual recommended rule changes from this report, renders the report defective, irregular, out of order and even void, ab initio. The proposed rule changes are the centrepiece of the report. The star of the show must be on the stage. The recommended rule changes are not on the stage at all.

  I put a lot of work into this, honourable senators, because I am aware that any rule change is an enormous challenge for the most experienced senator and I am aware that there are scores of new senators here. I could easily have presented the same material differently, but I have tried to make it intelligible to be understood.

  Honourable senators, I have outlined three distinct areas where this report is defective and irregular. I will repeat them. First, the report exceeds the scope and mandate authorized by rule 86(1)(d) (i). Second, the report purports to impose closure on Senate debate and orders a date for the coming into force of the new rules. Third, contrary to well-established Senate practice, the most important item, the committee's recommended rule changes, are not part of and are not included in this report. They are contained in an appendix to the report, which is, by this particular form of proceeding, procedurally beyond the reach of senators to be debated or amended. These three distinct sets of irregularities are so major that I ask His Honour to rule the report out of order on these grounds.

[Translation]

  Hon. Claude Carignan (Deputy Leader of the Government): Honourable senators, I would like to speak to the point of order raised by Senator Cools. I have a great deal of respect for the work done by Senator Cools, who always puts a great deal of time and energy into her research, into strengthening her arguments and into her presentations. We always learn something from her arguments.

  However, I would like to point out, first of all, the inadmissibility of this point of order, given that a point of order must be raised at the earliest opportunity, which was obviously not the case here.

  Indeed, on November 16, on behalf of the committee, Senator Smith presented the first report — and I will address the definition of a report in a moment — of the committee, and on a Senate motion, the report was placed on the Orders of the Day for consideration at the next sitting, as usual. The motion was adopted without objection.

  If we look at the Journals of the Senate from November 16, 2011, on page 407 we see that the honourable Senator Smith, P.C., Chair of the Standing Committee on Rules, Procedures and the Rights of Parliament presented that committee's first report, entitled Revised Rules of the Senate. His motion was seconded by Senator Cordy and the report was placed on the Orders of the Day for consideration at the next sitting. The question was put on the motion and was adopted.

  In citation 321, Beauchesne states:

A point of order against procedure must be raised promptly and before the question has passed to a stage at which the objection would be out of place.

  Any objections concerning the committee procedure up to the point of adopting the motion on November 16 are therefore out of place and, honourable senators, you may take these arguments into consideration. Therefore it would be important to draw His Honour the Speaker's attention to these infringements, before the Senate reached a decision regarding the presentation of the report.

  Then there are the other questions concerning the substance of the report and the committee's mandate.

  The Standing Senate Committee on Rules, Procedures and the Rights of Parliament has the power to act on its own initiative. I believe that applies to the Standing Senate Committee on Internal Economy, Budgets and Administration as well. Even if the Senate's mandate had not been clear — which I do not believe to be the case because it seems to me that the mandate was quite specific — Rule 86(1)(d)(i) gives the committee the following power:

(i) on its own initiative to propose, from time to time, amendments to the rules for consideration by the Senate;

  The first part is ''on its own initiative.'' Even if the Senate does not give the committee a mandate, it can give itself a mandate. It does not need a specific order from the Senate.

  The second part is ''to propose. . .amendments.'' The rule says nothing about the scope of the amendments. It does not say ''minor'' or ''major'' or ''significant amendments.'' It says ''amendments,'' which gives the committee the power to initiate major amendments to form or content. Nor does the rule say that the amendments arising from the committee's initiative are restricted to form.

  I think that the committee's mandate with respect to revising the rules is clear.

  As to the substance of the report, the first recommendation, which is on page 412 of the Journals of the Senate, reads as follows:

1. That the existing Rules of the Senate be replaced by the revised Rules of the Senate contained in the First Appendix to this report, including the associated appendices to the Rules, effective from September 1, 2012;

  Clearly, Senator Cools is defining a report according to the Standing Orders of the House of Commons. I would very respectfully suggest that the Standing Orders of the House of Commons do not apply to the Senate, and that nowhere in the Rules of the Senate is there a definition of what constitutes a report. A report, in the regular sense of the word, is an account or a statement. A committee conducts an examination and then presents or reports the results to the people who requested the examination or to those to whom it is supposed to present the report. The Rules therefore do not contain a definition of report nor do they specify any standards pertaining to reports.

  Here we have a two-page report that refers to appendices that are a few hundred pages long. The Rules do not indicate that a report cannot have an appendix nor do they provide any specifications regarding the length of such documents.

  This is a complete revision of the Rules. So, although the appendix is longer than two pages, I do not believe that this constitutes a defect in form or substance that would affect the validity of the report. Amendments can be proposed to the appendix or to the first two pages, which consist of recommendations. Additions, changes and deletions can be made. So, the Senate, in its sovereignty, has full power to change the first two pages of the report and the related appendices. There is absolutely nothing stopping the members of this chamber from asking questions about or changing parts of the appendices that they feel are unsatisfactory or need improvement.

  As for the date of September 1, 2012, this is clearly a recommendation from the committee. It is not an order. The committee does not have the authority to give orders or instructions to the Senate. The Senate is sovereign. The committee has made recommendations to the Senate. Together, we will be free to discuss whether or not to accept those recommendations.

  We can also decide to implement this rule later or even earlier, given what I would call the exceptional work done by the Standing Committee on Rules, Procedures and the Rights of Parliament to simplify and more clearly define the Rules. It is in our interests to implement these changes as quickly as possible.

As far as the date is concerned, it is a recommendation, not an instruction. I do not see how the Senate would be bound by it.

  For all these reasons respectfully submitted, I believe that the point of order is out of order because it was not raised in time. As far as the substance of the point of order raised at length by Senator Cools is concerned, I have to say that it is not valid. We may say that it is not before us or pretend that we did not know anything about it, but we all have read it; it is in the Journals of the Senate. In any case, if it does not exist, it certainly took a long time to read.

I think the point of order must be rejected.

[English]

  Hon. Joan Fraser: Honourable senators, like everyone else in this chamber, specifically Senator Carignan who just spoke, I hold Senator Cools in great respect for her dedication to the integrity of Parliament, more particularly of the Senate, and for the depth of her research and reflection. When she raises these points, it behooves us all to take them very seriously.

  I listened very carefully to her arguments and I would like to respond to the three objections that she raised. She said, first, that this report and its appendices, taken as a whole, exceed the mandate of the committee and of the subcommittee. I think this is not accurate. There is no limit in our rules to the initiative that the Rules Committee may take in proposing, from time to time, amendments to the rules for consideration by the Senate. That is an unlimited authority. The decision about whether the proposals will be adopted remains with the Senate, of course, but the Rules Committee is free to recommend changes that are as minor or as major as the members of that committee, after study and reflection, think is appropriate.

  The subcommittee's mandate was equally broad. In both 2010 and 2011, it was simply ''to review the rules of the Senate,'' and we did that. We undertook — and I personally undertook — to make that review as thorough as seemed appropriate. Except where we believed substantive change was truly necessary or appropriate according to the practices already in place in this chamber, we undertook that we would clarify the language and reorganize the rules in the attempt to make them clearer and easier to use. I believe that was fully within the mandate both of the Rules Committee and of the subcommittee.

  Senator Cools mentioned that the record of the proceedings was absent. That is, of course, because the subcommittee met in camera, and the subcommittee had the undoubted right to meet in camera. By our rules, rule 92(3) says that meetings of subcommittees may be held in camera at the discretion of the subcommittee members. Further, of course, rule 92(2) authorizes committees, and therefore presumably subcommittees, by extension, to hold in camera meetings when considering any draft report. Every single one of the 29 meetings that the subcommittee held, long meetings, consisted of the consideration of a draft report. That was what the subcommittee was doing.

  Beauchesne, sixth edition, at citation 850(2) says:

The purpose of in camera sittings is to allow members to feel free to negotiate, discuss, deliberate and, sometimes, compromise without the glare of publicity, which might add to the difficulties of agreeing . . .

  It exactly covers what we were engaged in doing. I would submit that Senator Cools' first objection that we exceeded our mandate is not valid.

  Senator Cools' second objection is that this amounts to a form of closure because the report includes a suggested date of September 1 for these rules to take effect if the Senate chooses to adopt them. I cannot agree that this is in fact a direct or indirect form of closure of debate. This matter has been before the Senate already for more than four months. Every senator has had the chance to speak, every senator will continue to have, if that is the will of the Senate, more chances to speak, although I wonder if after nearly four and a half months very many more senators are interested in speaking. The point of inserting a suggestion of September 1 was precisely to avoid the situation that Senator Cools referred to when a previous change to the rules was made, when any change to the rules is made, unless there is a date of coming into force. She referred to one where she specifically quoted the provision that this rule will take effect when the Senate next meets, and normally —

  Senator Cools: After adoption.

  Senator Fraser: After adoption. Normally anything that we adopt takes effect immediately unless we have said no, give people time. The object of suggesting a date of September 1, which of course the Senate can vary or reject if it wishes, was precisely to give even more time to senators and staff to familiarize themselves with the new formulation of the rules. I do not think that that constitutes closure.

  Finally, Senator Cools raises an interesting and serious point when she says that the recommendation for the actual proposed new formulation of the rules is not part of the report and therefore is beyond the reach of the Senate, not before the Senate, unavailable to the Senate. I was interested to hear her refer to a past set of rule changes that was contained in a schedule to a report. It seems to me that the difference between a schedule and an appendix is not substantively serious. The point of putting these proposed changes in an appendix was to present them in an intelligible form as a coherent whole because among other things, this proposed reformulation of the rules rearranges many of the existing rules, and to have presented them paragraph by paragraph would have been a very cumbersome way to proceed.

  On the other hand, it was clean and neat, we believed, to present as an appendix the entire document that would become the new formulation of the rules if the Senate approved it.

  That appendix can, of course, be amended. A report of a committee can be amended. If the Senate wishes to amend this report, it can do so. It can say, ''We adopt the report except that the proposed new rule 16(3)(g)'' — I made that up, I do not know if there is such a rule — ''will be amended as follows.'' The Senate can do whatever it wishes with this document. No element of it is beyond the reach of this chamber in deliberation.

Therefore, I cannot agree, much though I respect her argument, that this point of order is valid, and I hope Your Honour will so rule.

  Hon. Mac Harb: Honourable senators, initially I did not want to say anything about this matter being brought by my colleague, but I think now I may want to add a few words. First, I very much appreciate what Senator Cools has brought to the attention to the Senate. This is an extremely important point and a very important question. Frankly, it justifies the reasons that the Rules Committee had to look at the rules in order to specifically clarify what can and cannot be said, what can and cannot be done by a committee or by the Senate, by individual members of the Senate or by the Senate as a whole.

  She raised three points, including the scope of the report and whether or not it fit in the mandate, and she pointed out rule 86(1) (d)(i) regarding whether on its own initiative the committee can make substantive amendments, or a few amendments, or can change the whole rule. I think this is something very important for the Speaker as well as our legal team to look at. It is an important point.

  As for the second point, closure, I suppose I agree with what has been brought forward, that the Senate can decide not to implement the recommendations by September 1, 2012. They can put it indefinitely. However, I find troubling a comment made by my esteemed colleague, the chair, when he presented the first report of the Standing Committee on Rules, Procedures and the Rights of Parliament. He said:

Honourable senators, I note that some useful background documents comparing the current and revised rules and explaining the more significant changes will be circulated to senators' offices in electronic form during the coming days.

  That troubled me a bit because if I am to take this the way it is, then I am assuming that Appendix I and Appendix II may or may not have been tabled in the Senate at that time. Now, if I am to look at the actual report on the following page, it clearly states here in the first part:

Pursuant to rule 86(1)(d)(i), your committee has reviewed the Rules of the Senate, and recommends as follows:

That the existing Rules of the Senate be replaced by the revised Rules of the Senate contained in the First Appendix to this report, including the associated appendix to the Rules, effective from September 1, 2012.

  I assume that the first appendix was tabled with the report in the Senate. After point 3, the report states:

The Second Appendix to this report contains a concordance indicating the relationship between the existing Rules and the revised Rules.

  We have Appendix I and Appendix II. I submit, that in the Speaker's ruling it is imperative to look into this in the context of what we are discussing. Were Appendix I and Appendix II tabled with the report of the committee in the Senate? If so, that is one issue. If they were not tabled in the Senate and were sent electronically to members of the Senate at a later date, then Senator Cools is making a very important point that needs to be considered carefully, not only on this occasion but for future consideration of the Senate.

  Senator Fraser: Honourable senators, I want to clarify a little something. This report recommends adopting as the revised Rules of the Senate the first appendix. The further explanatory document, to which reference was made by the chair when he presented the report and to which Senator Harb refers, was circulated to all senators. It was available in printed form to anyone who wanted it, but these days we tend to circulate documents electronically, and that has been considered appropriate. It did not seem appropriate to the committee to include that as part of its formal report because that would have meant a third appendix. It seemed clearer to do it the other way, but that information was available.

Senator Cools: Honourable senators, I will make a few remarks and a few clarifications so that senators do not think I said what I did not say.

  Senator Fraser raised a question about Senator Molson and when his schedule was put before the Senate. She said there is no difference between a schedule and an appendix. Senator Fraser missed my point totally. I am not quibbling about what we call the thing. My point is that the motion must put before us that which it asks us to vote on. The situation with Senator Molson was entirely different because the schedule was moved by motion to the house. Perhaps Senator Fraser would have some ground to stand on if she or someone had moved the First Appendix before the house for consideration. She may have some ground. In point of fact, nothing has been raised here in debate whatsoever about the fact that the recommended rule changes are not in the report. Most senators have believed erroneously that they are in the report.

  I would just like to deal with that point. I do not give a scrap whether a report has a schedule or two schedules or an appendix. The point I am making is that whereas in the instance of Senator Brenda Robertson, and in 68 out of the 75 committee reports, in the last 43 years the proposed rule changes were in the report. Neither Senator Fraser nor Senator Carignan has explained the deviation from that which is Senate Rules Committee practice. The consistent practice of the Senate Rules Committee has been to put those proposed rule changes in the body of the report. I reject entirely Senator Fraser's notion that there were too many rule changes and it would have been too clumsy. Well, if there were so many rule changes, honourable senators, perhaps the committee could have considered bringing in several smaller reports so that the Senate could digest them.

  I noticed that when Senator Fraser spoke many weeks ago, she said that these changes began with Senator Molgat. Well, I would like to inform Senator Fraser that Senator Molgat strenuously opposed large scale rule  changes in a single report. Those of us who served with him would know that very well.

I also notice that the question I have put to His Honour has not been addressed by any of the senators who spoke.

  I want to show senators the report of Senator Robertson, which I happen to have here, and I shall quote from it. At the time, many of us thought that 38 pages was a lot. Senator Robertson's report, dated June 11, 1991, clearly begins by saying that the Committee on Privileges, Standing Rules and Orders has the honour to present its first report, followed by each and every of the 19 recommendations, one after the other, some with more than one rule change, and ends, ''Respectfully submitted, Brenda Robertson, Chairman.''

  Honourable senators, I would like us to be crystal clear that someone has to explain why the Senate Rules Committee has deviated from its own practice of including the recommendations in the report. If the committee chose to adopt a different practice, why was that new practice not explained to the house when the Chair of the Rules Committee presented the report and moved the report for adoption? Anything can be accepted as long as it is put before us. The committee has put very little before the house. Many new senators have been left to figure out what is really happening. I look forward to someone asking the questions.

  Honourable senators, Senator Fraser claims unlimited authority under rule 86. Rule 86 is a delegated authority. There is no such thing as an unlimited delegated authority, for those who care to understand what delegated authorities are. The Senate has delegated an authority to the Rules Committee to recommend amendments on its own initiative from time to time. The Senate, when it did that, never anticipated what I would describe as procedural excess or procedural gluttony.

  Honourable senators, first, there is never a right to do wrong. No power ever confers a right to do wrong. There is wrong going on here and it cannot be justified by referring to the rule. Every delegated authority is limited by the nature of it being a delegated authority.

  Second, Senator Fraser also raised the issue of in camera meetings and records. I would say to honourable senators that when a committee, without an order of reference from the Senate, brings forth proposals or recommendations to the Senate, they have a duty to put their evidence before the Senate for its consideration. This is well documented. It is a sad day if we need rules to tell us that. When Senator Fraser says that the committee has a right to have meetings in camera and then cites consideration of draft agendas or draft reports as justification, I think she misunderstands the rule totally.

  That rule about considering draft reports expects that, after the committee has met in camera, it comes out of camera and then does the adoption in public. That is the practice that this place used to do and is a practice I could not persuade the Senate Rules Committee to put it into force. No committee has any absolute right to secrecy. I repudiate that totally.

  I want to get at something that the Honourable Senator Harb touched on a little bit. I want to say to honourable senators that the record is very unclear about what was actually presented on November 16, 2011. The Debates of the Senate show that Senator Smith says, ''I have the honour to present the first report, which proposes a revised version.'' This statement in no way indicates — as did Senator Molson many years ago — that there were additional documents. Interestingly enough, honourable senators, if we were to look at Senator Brenda Robertson's presentation, we would see her very clearly asking the Senate to append the documents presented and to append the report to both the Debates and the Journals to form part of the permanent records of the house. That does not happen in this case. The Debates of the Senate say, ''For the text of the report, see Journals of the Day.''

  Honourable senators, I want to pose a very important question to you. Journals are what we call the Reports of the Senate. These fine people over here are called reporters. They are third-party reporters. They merely report that which is said, done, and spoken here.

  If Senator Smith or anyone else here do not ask that the documents be appended to the Journals, how did they spring on into Journals? Their mere presence in Journals does not put them before us for debate. Someone should take a look at this record.

  The other question is that — and I want to deal with this as gently as I can — Senator Carignan has said that one must raise a point of order at the earliest opportunity. That is not true at all. This is not a question of privilege. A point of order is raised when the person comes to terms with it and does enough research to support it. In addition, Senator Carignan certainly cannot, in all earnestness, believe that because someone did not do something that it somehow validates a most invalid action. I do not accept that at all.

  Further, I add to that my understanding that committee reports may be ruled out of order even though they have been received by the House. I cite Beauchesne, sixth edition, citation 893, at page 244:

A committee report may be ruled out of order even though it has been received by the House, and a motion to concur therein cannot then be entertained.

  We should not mix up rule 43 — earliest opportunity — and a point of order. I have a copy of it here in front of me. I might as well put it on the record here.

  Senator Fraser is a great proponent of in camera meetings. My instinct is always for the public record. In a rare record of a Rules Committee proceeding, on March 10, 2009, at page 2:9, Senator Fraser says in debate:

For those reasons — not for what is in front of us today — I would suggest an in camera practice in general.

  There is something very wrong when any colleague rises and says to me that in camera should be the natural state of Senate committee deliberations on rule changes.

  Honourable senators, I wish to answer more fully some of the objections that were raised because when Senator Carignan spoke he said that the Senate does not abide by the House of Commons rules. Yet, one of these rule changes says that now the precedence and practices of the House of Commons shall be followed in unprovided for cases. That is one of the proposed new rules that the honourable senator is eager to vote on. But he just said that the Senate should not follow the House of Commons. Make up your mind. The honourable senator should perhaps look at the proposed rules more closely.

  I would like to thank honourable senators for speaking today, and I add that I am merely trying to uphold a principle, the long-held principle that rule changes should be moved for adoption here in the Senate after there has been clearly demonstrated need, demand and agreement for such changes.

  Honourable senators, as I said before, this motion is defective. Nothing has been said to make me think differently, and no authorities have really been cited. I wish to say again that the Rules Committee report does not conform with its own customs, its own well-established practice, and its own form of proceeding on its reports that recommend changes to our Senate rules.

  Senator Carignan, or someone, should explain why 68 of the 75 Rules Committee reports — 43 years — followed the system that Rules Committee Chairman Brenda Robertson also followed, and why this committee did not.

  Honourable senators, as I said before, this form of proceeding has been followed by this committee in 68 out of the 75 reports that this committee presented to senators.

  Honourable senators, I will return to my theme of the star of the show must be on the stage.

  The committee's substantive rule changes must be put before us. Honourable senators, some may think and have argued that the proposed changes need not be in the report and that their presentation in the appendix is just fine. I would say that such an assertion diminishes the decision-making authority of the Senate because to say this is to say that the Senate and senators need not legally and constitutionally know what they are voting on and adopting. I disagree with them.

Consider, colleagues, the mischief — the horrors — that will be visited upon this country if our law of Parliament and our rules permitted this.

  Let us understand what is being said here. Is it possible that one empty bill can be presented here containing only the words that bills 1, 2, 3 and 4 be adopted as outlined in bill 1, 2, 3 and 4 still in the House of Commons? We had better be careful with what is being advocated here. Our practice in this place is that the proposal which is moved by motion to be adopted here has to be legally seen and known by us.

  Honourable senators, the crucial matter is that, however styled, every proposal before the house must be put before the house by motion for consideration. The appendix, by its nature, is not a part of the report. If we wanted to make it a formal proceeding, it would have to be moved by its own motion.

Honourable senators, I have already said that where other documents and papers contained a schedule or a list, in the past that schedule or list has been put by motion directly to the senators.

  Honourable senators, in the case that I was speaking about, when Senator Molson put his schedule before the house, we must understand that those separate papers were then referred to Committee of the Whole. In the Committee of the Whole we will discover, if we look to the record, that the proposed changes were debated, amended and voted in seriatim, one by one.

  Honourable senators, these rule changes before us are what I can only describe as a single-motion approach. By one simple little motion, this jumbo package, this combo approach, this massive document, this omnibus report — that is a good word — wants to be adopted.

Honourable senators, we have to work harder and better than that. No committee can get everything in one shot, one try.

  These proposed rule changes are simply too numerous, too comprehensive and too complex for consideration in one proceeding, in one shot. This one-shot approach, this procedural excess, this procedural greed, these are deadly sins which tend to corrupt proceedings.

  Honourable senators, I come now to the very important question that our rule changes are, de facto, always changes to our powers and privileges in the Senate.

  Until 1968, the Senate had a rule which expressly ordered that whenever rule changes were to be put before the house, every senator had to be summoned. I will read this. Until 1968, Senate rule 29 expressly ordered that:

No motion for making a standing rule or order can be adopted, unless two days' notice in writing has been given thereof, and the senators in attendance on the session have been summoned to consider the same.

  This is what Senator Molson and his committee were dealing with when they moved to the regime of rule 86(1)(d)(i). This special summons was repealed in 1968, on the same ground that the Senate adopted rule 86(1)(d)(i), the authority for this report before us. This new rule intended that the Rules Committee follow established practice, like the Committee of the Whole, to consider its proposed rule changes. Our Companion to the Rules of the Senate of Canada, 1994, states expressly at page 307 — this is for Senator Fraser and Senator Carignan, too:

When a report of the Committee of [Privileges,] Standing Rules and Orders recommends substantial changes in the Rules of the Senate, such report is usually referred to a Committee of the Whole for consideration.

  Let us understand, the 1968 changes had the notion that we should keep the rules under constant study. They should not be a mystery. It was intended, in the heads of the senators who proposed these rule changes under this rule, that this rule would be used in conjunction with Committee of the Whole. Now most senators do not even know that rules are privileges.

  Honourable senators, we have a right and a duty to know and examine every single word of the proposals a motion asks us to adopt. By placing the text in an appendix, the committee has placed this beyond our reach.

  Honourable senators, when Senator Molson put his schedule before the house, he also told the Senate that the schedule included the proposed rule changes, paragraph by paragraph, side by side the existing rules. The schedule was composed of two sets of rules: the current rules, the existing rules, and the proposed rule changes. Nothing like that has happened here in this instance.

  Senator Molson informed honourable senators that:

. . . the rules now recommended to the Senate are set forth in a schedule to the report showing clearly which should be repealed, the amendments proposed for others, and the new rules considered to be desirable.

Nothing like that has happened here. 

  I come finally to the importance of knowing. Honourable senators, when we come to this place, we stand here in the presence of all senators in a very solemn moment. We put our hands on a Bible and we take our oath. I have problems with such oaths being slighted.

  Honourable senators, the ancient parliamentary concept of ''reading'' is a necessary and routine feature of all consideration and debate. The senators and the Senate read and consider every committee report, just as we read every bill. A senator may move that a committee report be read again a second time or that it may be referred back to committee or be hoisted for six months or that its consideration be postponed to another day.

  Daily we read the orders of the day one after the other as the clerks call them. Rule 59(5) allows a senator to move a motion without notice to proceed to the reading of the Orders of the Day, that is, to their consideration and debate. Right now we are reading the Orders of the Day, Order No. 4 under Reports of Committees. Reading is a cognitive process of knowing cognition. Cognition is those mental processes including perception, reasoning and judgment. It is the hearing of, the setting our eyes on, and the actual reading of every word in the proposals put before us by motion. It is our oath, colleagues, that sacred and solemn invocation of our deity, divinity, to witness the truth of our actions and words. We debate and vote under sworn oath. By ''readings,'' by our cognition of the words proposed, we verify that those words we hear and read are the very same words that we vote. Under oath we verify and swear that those words and our votes on them are true.

  To this end, the Clerk of the Senate, also under oath, certifies a copy of every motion, bill and report immediately after adoption. Our business is transforming words into law, but only those particular words circumscribed by and limited to the forms of proceedings in bills and reports put before us by motions. We transform those words and only once, and this — very important to me — we transform only those words, not other words elsewhere in other documents or other proceedings, but those words limited and circumscribed by those pages we style bills and committee reports.

  In this we are sworn before God to exercise diligence, like judges in judicial proceedings, which our proceedings are. Our vote on this report will transform the designated words of the report into our rules, the law of Parliament, the law by which we make law. We are sworn to be true.

  Honourable senators, the question before us is the motion to adopt the report, but the actual proposed rule changes are not within the pages of the report. They are outside of and beyond it, in an alien document. We cannot read them.

  I ask senators in closing, can we read what we cannot see? Can we vote on what we have not read? Can we swear that the words we cannot see and read are the very words on which we vote? Can the Clerk of the Senate over at the table certify that we did that which we did not?

  The strength of our parliamentary system is that every procedure stands on moral ground — moral ground, colleagues — to preserve truth, to facilitate free speech and debate and, at the end of the day, all for the common good.

  Senator Fraser and others could explain to me the common good in secrecy and in all these processes.

  The Hon. the Speaker: Honourable senators, pursuant to the Rules of the Senate, the Speaker, at a certain point, is able to advise the house that he or she has heard the argument and has grasped the nuances.

  I was going to suggest that, having been a member of Senator Robertson's committee, I should recuse myself, but then the arguments would all have to be made over again to another Speaker. However, I did not sit on Senator Molson's committee, so maybe it balances out.

  I would like to say that there is an old principle of Nihil est in intellectu quod non prius fuerit in sensu. That is the principle that says, ''Nothing is in the intellect that was not first in the senses.'' That principle has been well articulated in the argumentations this afternoon.

  However, more importantly, honourable senators, as many of you know, in the Speaker's quarters, there is a passage from Seneca that says, ''Nothing that rushes headlong and is hurried is well ordered,'' Nihil ordinatum est quod praecipitatur et properat. It is based on that principle that I will take this matter under advisement. Thank you.

The remainder of this day's Senate Debates are available here.

The Senate Speaker ruled on April 25,2012.  The text of the ruling is available here.