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Speech in Senate Chamber: Rules, Procedures and the Rights of Parliament First Report of Committee—Consideration in Committee of the Whole

Rules, Procedures and the Rights of Parliament

First Report of Committee—Consideration in Committee of the Whole

On the Order:

The Senate in Committee of the Whole on the consideration 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.

(The Senate was accordingly adjourned

(The Senate was accordingly adjourned during pleasure and put into Committee of the Whole, the Honourable Donald H. Oliver in the chair.)

[Translation]

The Chair: Honourable senators, the Senate is resolved into a Committee of the Whole to consider the first report of the Standing Committee on Rules, Procedures and the Rights of Parliament, pursuant to the order adopted by the Senate on May 17.

The pages can give you copies of the Journals, which contain the report.

The business of this Committee of the Whole shall be conducted according to the following schedule:

During the initial period of the meeting, for a maximum of one hour, the senators may ask questions of representatives of the Standing Committee on Rules, Procedures and the Rights of Parliament, with the time for the question and response being counted as part of the ten minutes' speaking time allowed under rule 84(1)(b).

My understanding is that upon completion of consultations, honourable senators Carignan, Fraser and Stratton will be available to answer questions from the honourable senators.

During the second portion of the meeting, the committee shall consider chapters one, two, three and four of Appendix I of the report for a maximum of one additional hour.

Honourable senators, rule 83 states that:

When the Senate is put into Committee of the Whole every Senator shall sit in the place assigned to that Senator. A Senator who desires to speak shall rise and address the Chair.

Is it agreed, honourable senators, that rule 83 be waived?

Hon. Senators: Agreed.

The Chair: Senators Fraser, Stratton and Carignan, I invite you to make your introductory remarks.

[English]

Senator Cools: Mr. Chair, I would like to ask a question first. I notice that the reference calls for representatives of the committee, and I notice you have just made reference to particular members of the committee, being Senators Fraser, Carignan and Stratton. I wonder if you could explain to us what a "representative" of a committee is and how a representative is chosen to be a representative.

The Chair: A representative is a member of the committee and I presume the three people called are members of that committee.

Senator Cools: Mr. Chair, I am interested in knowing how they were chosen to represent the committee. The reason I ask is because we are quite unused to the process that is unfolding before us. It is our habit and our expectation that the chairman of a committee usually sponsors and squires the reports of their committees through the chamber. This is a most unusual event to the extent that the committee's chairman, who is the voice of the committee, so to speak, is not performing those functions. I wonder why that is and how that business of sponsoring has been transferred to other persons now called "representatives."

The Chair: Senator Cools, I think those are great questions. It seems to me that one of the things that the three honourable senators first want to do is give a brief exposition of the position of the rules and, second, they are open and available for questions from all honourable senators. I think those would be good questions to put to the three senators.

Senator Fraser, you have the floor.

Honourable Joan Fraser, Senator, The Senate of Canada: Honourable senators, it is a rather daunting privilege to appear before you in this way.

To answer Senator Cools' question, the three of us were asked to represent the Rules Committee because we constitute the subcommittee of the Rules Committee that did the final work on this proposal to rewrite the Rules of the Senate. The members of the committee, the chair and the deputy chair of the committee in particular, asked us, therefore, to represent the whole committee here today.

[Translation]

I would like to point out that the report before you is the result of many years of work, which began approximately 13 or 14 years ago, under the direction of Senator Molgat. In that time, I cannot say how many senators have worked on this project; I do not wish to name them for fear of forgetting someone. It was a tremendous amount of work carried out by many senators.

As I indicated, the subcommittee consisted of myself and Senators Carignan and Stratton, who will address you in a moment.

[English]

I wish to pay homage to Senators Carignan and Stratton who worked incredibly hard on this report, and I would also like to utter profound thanks to the table officers — I think in the end all of them were involved — who did so much to help us as we moved forward.

I want to stress that what honourable senators see is the product of a rule of consensus. There was nothing in this report that we did not have consensus on. If we did not achieve consensus, it did not go into the report.

The goal of this report, of the work we did that produced this report, is to make the Rules of Senate clearer and more user friendly. The object was not to change the substance of the rules, except in a few specific circumstances. For example, where changes were necessary, according to law or the Constitution. For example, the Constitution says that votes in the Senate are won or lost by majority vote. Our rules say at the moment that in order to rescind a vote that has happened in the same session, one needs a two-thirds majority. That is not according to the Constitution, so we would propose to adjust our rules to reflect the Constitution.

We proposed substantive changes where upon examination it became apparent that our rules, as they now stand, are internally contradictory. All senators, I think, are familiar, for example, with the thorny way in which we have tried to address the contradictions in present rules on questions of privilege.

We proposed changes where there was an obvious omission — glaringly obvious and not controversial.

[Translation]

For example, nowhere in the existing Rules does it state that the Speaker must preside over Senate sittings. The Rules refer to the fact that the Speaker pro tempore or even other senators can sometimes preside over Senate sittings. We thought it was a good idea to mention the fact that it is the Speaker himself who presides.

[English]

Finally, where there is clear and established, settled practice in the Senate, and where it seemed appropriate to adjust the rules to reflect that practice, we have done so. For example, the rules say that written questions will appear in the Orders of the Day, I think it is, every day. However, for 30 years, following a report from the Internal Economy Committee, it has been our practice to publish them only once a week after the first publication. The proposed report would reflect that practice.

To make the rules clearer, we did several things. Honourable senators will have observed that we proposed a rather different format. The page size is different, apparently much cheaper to print. We have done a significant amount of work to regroup the rules so that rules on a single topic, to the extent that is humanly possible, appear together. For example, proposed new rule 2-1, which concerns the duties of the Speaker, takes items from the present rules 18, 43 and 60, which seemed logically grouped together in a single rule.

Honourable senators will note the new numbering system that we would propose. Like the present rules, the new report proposes grouping the rules into chapters, but we propose renumbering the rules to reflect the chapter in which they appear, so that, for example, anyone who looks at rule 9-3 will know that it is in Chapter Nine, and it appears as rule 3 in Chapter Nine.

We have done as much work as we could to ensure that the marginal notes are accurate reflections of the rules to which they refer, and the table of contents includes all those notes, subheadings and marginal notes. We believe it is much clearer. It is, in a sense, a mini index, as it is now proposed.

Finally, we have taken out from the body of the rules the series of definitions that now occur and would propose to append to the rules an appendix that would be a greatly expanded series of definitions, an appendix on terminology.

We believe that the language in the proposed report is much clearer than in the present rules. I will give one example. The phrase "the Senate's customs, usages, forms and proceedings" would be reasonably replaced, we suggest, with the phrase "the Senate's practices."

[Translation]

We worked hard, particularly Senator Carignan who worked very hard to improve the French version of our Rules. Honourable senators are aware that, for now, the French version is essentially a translation — one that is often inaccurate — of the English version. There are even some places where the French and English versions of the same rule contradict each other. So, we really wanted to write the French version of the Rules in French, in accordance with parliamentary practice.

Senator Losier-Cool: Hear, hear!

Senator Fraser: You will also see an innovation that will be useful for Senators.

[English]

When there are exceptions elsewhere in the rules to any particular rule, those exceptions are listed immediately following the first rule and they are signalled by the introductory phrase "except where otherwise provided."

We have also provided, where appropriate, legal references. For example, if a given rule is based on the Constitution Act, 1867 or on the Parliament of Canada Act, we have included that legal reference so that senators may know where to go to get the reference.

[Translation]

Honourable Claude Carignan, Senator, The Senate of Canada: Clearly, this was a fairly big job. As Senator Fraser said earlier, many teams have worked on the Rules over a period of approximately 12 years, so we did have a significant amount of material to get us started.

In subcommittee, we also worked with Senator Carstairs until she retired.

Most of the work involved trying to make the two versions as intelligible and understandable as possible. We tried to abide by the primary definition of a rule. A rule is a standard that is general and impersonal and that is supposed to be intelligible. I thought about this when I read the Rules for the first time. If I, as a lawyer, had a hard time understanding certain passages, then it is probably because there is a problem with the way those passages are written. In a number of places, we realized that the way the text is written, the double exceptions and the stilted French translations have made the Rules, particularly in the French version, very difficult to understand. There are even provisions that contradict each other. We therefore tried to draft the French Rules in French while staying as true as possible to the existing rules and practices, except for the few exceptions that were mentioned by Senator Fraser and that are included in the report.

Senator Stratton also gave his point of view on certain parts, even on the French language. The teamwork that was done was very much appreciated. I think the Rules of the Senate are now much easier to use and understand. The text is now more logical.

I would like to give an example of the kind of revisions that were made. Consider the new subsection 2-5(2), which has to do with the explanation of rulings. It now reads:

In ruling on a point of order or a question of privilege, the Speaker shall give the reasons for the ruling and cite any rules, practices or authorities on which the ruling is based.

This section replaces two sections: the former 18(2) and 43(12), which were in completely different sections of the old text. I think those sections were written in a strange manner. Rule 18(2) reads as follows:

The Speaker shall decide points of order and when so doing shall state the reasons for the decision together with references to the rule or other written authority applicable to the case.

Rule 43(12) states:

The Speaker shall determine whether a prima facie case of privilege has been made out. In making a ruling, the Speaker shall state the reasons for that ruling, together with references to any rule or other written authority relevant to the case.

I need not point out that the wording was much more complex. The main idea of the rule became clear after a little effort, both in English and in French, and then the idea was simplified and worded as clearly as possible.

Personally, as Deputy Leader, I am already using the new version, which sometimes makes it easier to understand certain passages of the Rules of the Senate. This simply illustrates that it is already a very useful tool. I hope all honourable senators will find it as useful as I do.

I would of course like to thank the members of the committee, and particularly Senator Fraser, an expert writer with an excellent command of both official languages, which enabled us to clearly express our ideas on several occasions. I wish to thank her for her outstanding contribution. Thank you to everyone.

[English]

Honourable Terry Stratton, Senator, Senate of Canada: My role in this whole affair was more or less to be the wagon master to ensure we kept this thing moving along, and that was a critical element, as far as I was concerned. We have been using this set of rules since 1991, and it got more and more frustrating when I was playing the role of the whip, in both opposition and government, and as deputy leader for a year in opposition. The rules needed to be dealt with. I was determined that it needed to be done, as a matter of fact, in order for all senators to understand, not just a few who knew the ins and outs of the existing code. It is more important for everyone in this chamber to understand what these rules are about. The reorganization that has been done is quite exceptional.

When His Honour, Senator Kinsella, first recommended that we have this Committee of the Whole, I was a little chagrined, and then I realized that this was a different era than 1991 when that set of rules was adopted. This is the 21st century, so we have to be democratic about it. We have insisted, when we have been dealing with this in the subcommittee and in the Rules Committee, that we had to deal with it in a democratic fashion. I think Senator Kinsella was bang on when he suggested that we do this. I think it will help everyone to understand and comprehend just what this means and the impact it will have in the future.

I would like to thank Senator Kinsella for this recommendation.

What got me more than anything was the question of privilege issue that I was personally involved with twice, once on a written question of privilege and, then, quite a short time later, having to go and actually find another alternative on another question of privilege, which was in an entirely different section of the rules. When you think about it, it is pretty ludicrous.

I highly recommend the adoption of this new set of rules. An incredible amount of work has been done by all who have been involved over the years, not just these three sitting here. We represent those who have worked on this before. To all those, thank you; in particular, the chair, who, as honourable senators know, is the former editor of the Montreal Gazette; and, of course, Senator Carignan, who is a lawyer and a francophone in the truest sense, who worked hard to ensure that we had the French language properly written. That was essential. I want to thank all those who have participated.

The Chair: Honourable senators, the floor is now open for all honourable senators to pose questions or ask questions of the three presenters. If you would indicate to the chair, the table officer will take your name down and I will call you in order.

Senator Cools: Thank you, Mr. Chair.

I would like to begin by thanking the three members of the subcommittee for all their work. Toil is a worthwhile thing and a good thing, but we all have a duty to judge the work by the quality and the righteousness of the work rather than the fact that it was done. I admire labour and industry. My mother was Methodist, so you can understand my preoccupation.

I was hoping that our three colleagues would have answered the question as to what a representative of a committee is and how come the chairman, who should be sponsoring this matter through the house, seems to have disappeared from the proceedings. I was hoping that question would be addressed, because this is the first time in my career that I have seen a chairman reluctant or disinclined to carry his product through the house.

I would like to come to a few important issues, colleagues. I notice that the committee representatives have thanked the staff of the committee and all those who have contributed. However, I did not hear mention of any involvement of the law clerk's office in the drafting of these rules. I wonder if I could find out whether or not the law clerk's office was involved in the drafting of the rules.

I will tell you why, colleagues. One of the things that has been created here — and there are numerous things — is what I would call the "enumeration" of the rules themselves. The change that is proposed here is an extremely unusual style for enumeration. I have looked through statutes trying to find an equivalent. I have found one, but not in any statute. I will come to that.

I find it difficult to pronounce them, the enumerations. For example, I would have called the first rule "1 hyphen 1" instead of the enumeration following the usual practice, which would be usually single numbers, perhaps followed by a period, then single numbers again, then bracketed numbers, and on by bracketed a's. This enumeration is a novel creature. I have never heard in my parliamentary career of a rule referred to a "1 hyphen 1(1)."

Maybe few senators have taken note of this, and perhaps I can put two questions. What was the thinking behind this revolutionary style of numbering? It is even clumsy to use. One has to say either "1 hyphen 1," rather than "1 sub 1," because this is a hyphen. We must remember that whereas in enumeration, in the process of drafting, commas and full stops usually have significance, but I do not know what hyphens and dashes mean.

Maybe Senator Carignan, who is one of the lawyers involved, could explain. First, were the legalists from the law clerk's office involved in this at all and consulted on this enumeration? This is totally novel.

Second, why did anyone feel a need to change a system of numbering that has been with us for over 100 years? If there was an urgent need to do it, I would be happy to be convinced, but it begs the question as to what is involved here. I do not think anything is clarified when an entirely new numbering system is invoked that can hardly be pronounced or uttered or articulated. I am listening.

The Chair: The Honourable Senator Cools has asked two questions: Was the law clerk's office involved in the drafting, and what is this new system of numbering? Perhaps the honourable senator could take the two questions in order.

Senator Fraser: The law clerk was involved when we were considering matters of actual law. We did consult the law clerk's office. One that comes to mind, for example, had to do with the way the rules are phrased in connection with petitions for private bills. However, the Rules of the Senate are the Rules of the Senate. They are not statute law. We believed it was not necessary to have a representative of the law clerk with us at all times as we considered every element of the rules.

We believed it would be a helpful change to provide this kind of numeration because, as I suggested a few moments ago, it would at least provide a guide as to where to go in the rule book to find a given rule. I do not think that saying "rule 11(1)" is any more peculiar than saying "notwithstanding rule 58(1)(h)," which I believe the Deputy Leader of the Government says just about every day. I do not think it is any more complicated. The idea was to assist senators. If senators do not find it of assistance, then do not do it.

[Translation]

Senator Carignan: As a supplementary answer to the question on numbering, we tried to use a numbering system that is logical and will allow senators to find a subject quickly without necessarily using the index.

Often in the Rules we had to try to find the key word in the index. We had to consult five or six rules or sections that might have to do with a particular subject. We grouped the subjects into chapters, so now when we want to know about the voting procedure, we know that we have to go to Chapter Nine.

Everything having to do with a vote is in Chapter Nine. There is a logical order to the information and the provisions relating to the vote and its conditions.

We know that everything having to do with the Speaker and the decorum of the Speaker's role is in Chapter Two. We refer to the table of contents and go directly to Chapter Two.

The idea was to be able to find a subject quickly, especially because questions about the Rules are often raised during a meeting. This new approach allows senators to get to the subjects more directly, to intervene and participate in the debates, which was not necessarily the case before.

When it came to the Rules, people would get lost in the index and dared not intervene because they were unable to find the relevant sections. And when they found them, they were not sure whether there might be another section somewhere that said the opposite or complemented the point.

If a question about the Rules has to do with voting, everything is in Chapter Nine. Chapter Nine is arranged logically so we can get the answers to our questions and then make our arguments.

[English]

Senator Stratton: Referring back to the legality issue, Mr. Sebastien Spano, who is a lawyer with the Library of Parliament, sat with us every day and ensured that we complied. As well, Mr. Michel Patrice, a lawyer with the Senate, has reviewed this document. We have had sufficient backing on the legal side to carry this forward.

Senator Cools: I knew Senator Molgat very well and I sat in the Liberal caucus with him for many years. I would like honourable senators to know that right up to 2004, there was no Liberal Leader of the Government in the Senate who was going to tolerate any rule changes. We should get the record straight on the Liberal wishes at the time.

I have been trying to find out for quite some time the source of these rules. The only thing I am ever told is that it began during Senator Molgat's time. I was very familiar with Senator Molgat's interest in good and fair translations from English into French and vice versa. However, honourable senators, anything to do with rule changes, such as a comprehensive overhaul, never came to the Liberal caucus and I rarely missed a meeting.

Honourable senators should know some of the background to some of these at some other point in time. The bitterness after the GST debate was so profound that there was a great sense of bringing peace and harmony. In addition, the Liberals were in a minority position and the Conservatives in a majority position. Remember: the Liberals did not vote for these rules in 1991, and I was among them. I can also tell honourable senators that they would have tolerated no hint, suggestion, motion or anything in that way to change the rules. This is a very new development.

The Chair: I remind the honourable senator that her 10 minutes for questioning has expired. Do other honourable senators wish to intervene?

Senator Fraser: For the sake of the record, may I say briefly that a first draft of this complete revision of the rules was begun under Senator Molgat acting as Speaker of the Senate, not acting as a Liberal. Senator Hays, when he became Speaker of the Senate, presented a draft complete rewriting of the rules to the Rules Committee but not to the caucus of either party, as I understand it.

The Chair: Do other honourable senators wish to pose questions to the three senators on the subcommittee?

Senator Kinsella: Could the honourable senators explicate the difference between what is proposed in rule 1-2 and the existing rule 2. As I was reading it, what we are proposing relates to privilege.

Senator Fraser: Yes.

Senator Kinsella: Proposed rule 1-2 states:

These Rules shall not limit the Senate in the exercise and preservation of its powers, privileges and immunities.

Rule 2 states:

Except so far as is expressly provided, these rules shall in no way restrict the mode in which the Senate may exercise and uphold its powers, privileges and immunities.

Would the honourable senator explain the rationale for making that change? The existing rule makes it clear that the Senate can make rules, "Except so far as is expressly provided, these rules shall in no way restrict . . ."

Senator Fraser: "Except so far as is expressly provided" is gone in large measure because we have taken that phrase in the proposed new version to be a signal that there will be exceptions and it will be followed immediately by a list of the exceptions.

In terms of the substantive difference, I would submit that it is not great. In fact, I do not think there is any substantive difference. To say that the Senate will not be limited by these rules in the exercise and preservation of its powers, privileges and immunities is, to my way of thinking, a more concise way of saying that the Senate shall not be restricted in the mode in which it may "exercise and uphold," as distinct from "preserve."

I admire the honourable senator's dedication to fine detail, but I would suggest that we do not really have a difference of substance.

[Translation]

Senator Carignan: The current version of Rule 2 states "Except so far as is expressly provided, these rules shall in no way restrict the mode in which the Senate may exercise and uphold its powers, privileges and immunities."

It says, "Except so far as is expressly provided," which suggests that in some instances the Rules might restrict the privilege of a senator. However, the privilege stems from legislation and a rule cannot restrict legislation. That is why we expressed 1-2 as a form of interpretation, "These Rules shall not limit the Senate in the exercise and preservation of its powers, privileges and immunities." And it was not necessary to say "except as provided in the Rule," because a rule cannot contradict the law.

Senator Kinsella: I would like to ask Senator Carignan a supplementary question.

In the revised version of the French Rules, Rule 1-1(2) uses the wording "Dans les cas non prévus" whereas the existing version uses the wording "Dans tous les cas non prévus."

Can you tell me the difference between these two phrases?

Senator Carignan: It is often just a matter of semantics. The phrase "Dans les cas non prévus" implies all cases not provided for.

This is a good example of poorly written text because one instance implies that we are referring to all cases not provided for while the other implies that we are referring to just certain cases. Since "Dans les cas non prévus" is used in some places and "Dans tous les cas non prévus" is used in others, we assume there must be a difference between the two and we start looking for differences that do not exist. The different wording merely reflects the fact that the text is poorly written. We tried to make the text more consistent. You have just pointed out a good example of what we did. There is no difference between "Dans les cas non prévus" and "Dans tous les cas non prévus." It is just a matter of writing more clearly.

[English]

Senator Kinsella: Chair, do I have time to ask a second question?

The Chair: Yes.

Senator Kinsella: It is relative to revised text 1-1(1), primacy of rules, and our current version 1(2). The current rule 1(2) provides that:

The Rules of the Senate shall in all cases be interpreted as having priority over any practice, custom or usage described in any of the appendices to the rules. Any conflict between the appendices and the rules shall be resolved by reference to the rules alone.

In the revised version, rule 1-1(1) provides that:

The Rules of the Senate shall govern the proceedings of the Senate and its committees and shall prevail over any practice and the appendices to these Rules.

Currently, rule 1(1), says:

In all cases not provided for in these rules, the customs, usages, forms and proceedings of either house of Parliament of Canada shall, mutatis mutandis, be followed in the Senate or in any committee thereof.

It is the word "committee."

The proposed rule 1-1(2) says:

In any case not provided for in these Rules, the practices of the Senate, its committees and the House of Commons . . .

Could you explain what your thinking was? Is my reading of that correct? If some practice has been developed in some standing committee and if the rules are not dealing with an issue, can an honourable senator get up and say "Well, in our committee on whatever, this is how we operate," and that will become instructive to the chamber?

Senator Fraser: No, honourable senators. This comes back to the, shall we say, vigorous discussion we had about whether or not to preserve the phrase mutatis mutandis. We have, instead, used the phrase "with such modifications as the circumstances require," which we believed to have the same meaning in English as the shorter, familiar Latin phrase, mutatis mutandis. If you put mutatis mutandis back in, I think it would be quite clear. I believe that, even as now formulated, it is clear that the long-standing practice in a committee, where the rules are silent, shall be followed in committees. However, there was certainly no intention at all of suggesting that committees could tell the chamber how to function. That was why the phrase "with such modifications as the circumstances require" was used. The idea was to say that chamber practices are relevant to the chamber. Committee practices are relevant to committees. House of Commons practices may be relevant, with some adjustments as the circumstances require. Indeed, other equivalent bodies may also have practices that are relevant to us, or they may not. As Senator Kinsella knows better than any of us, Speakers' rulings often refer to the practices of other legislative chambers or bodies. That is in there to reflect what has been done, for many decades, in Speakers' rulings.

[Translation]

Senator Joyal: First, I would like to make a comment and then I would like to ask the committee members a question. Those of us who use the French version of the Rules have certainly noticed that most of the French version is a literal translation of the English. The English syntax was followed in the French translation, which quite often makes it difficult to understand. Often, you have to refer to the English version to be able to understand the meaning of the French.

As the committee was making changes, did it take French syntax into account to provide us with a version that is as clear as possible in French? Am I expressing myself clearly enough to be understood?

Senator Carignan: Yes, absolutely. And that is what the committee did. The purpose was, first of all, to identify the idea behind the rule, agree on that in English and French, and then draft the rule in both languages.

The funny thing was that, once we came up with the best possible French wording, we sometimes translated the rule from French into English to better express the meaning of the rule. But what it boils down to is that you are right and, as you can see from reading the rules, the French rule was conceived in French and the English rule in English.

Senator Joyal: The reason I ask, honourable senators, as I am sure you will have no trouble understanding, is that back when the rules were written, the Justice Department did not have the parallel approach to drafting in English and in French that it does now. The rules were formulated in English and translated into French. While the translation was equally valid, it did not make quite the same impression as the original.

It has always seemed to me that the purpose of revising the rules was essentially to work backwards and get to the heart of the message underlying each rule in both languages so that a francophone reading in French would immediately have the same understanding of the text as an anglophone reading in English and not have to muddle through sentences that are much clumsier in one language than in the other.

As I mentioned just now, the first few times I read the rules in French, I had to refer to the English version to understand what the French meant, to be sure that I had correctly understood the French wording. As you were working through the rules, did you consult linguists or resource people who might have suggested a way to formulate the rules in order to achieve the desirable goal I have described?

Senator Carignan: Yes, we heard from experts, particularly experts in linguistics, who were asked to propose a draft in French or English, depending on the case, that corresponded most to our idea. Sometimes we had to reject their suggestion, for instance, because they had a tendency on occasion to use words from France, which did not take into account the British parliamentary system. We therefore sometimes had to refuse the suggested French version, which we did because it came from French-language dictionaries from France, translating a French legislative tradition, failing to take into account our British traditions. So, we did have the occasional conflict regarding how it was drafted.

I can tell you that the terms used in Quebec legislation were very helpful when it came time to select the most appropriate word.

Senator Joyal: Can you give us an example?

Senator Carignan: I am looking for one; I know it happened.

Senator Joyal: I am not trying to put you on the spot, senator; I understand very clearly what you are saying.

Senator Fraser: I have one that we discussed at length. You will note that, in the report, we used the French word "comité" when talking about standing Senate committees. In France and even in Quebec, the word used would be "commission." However, after considerable discussion, we concluded that it would be useful to maintain the distinction between a committee and a commission, as we have always done in the federal government, because a commission of inquiry, a royal commission or anything like that is not at all the same thing as a parliamentary committee.

Senator Joyal: Of course.

Senator Fraser: So, in this case we decided to look at the tradition in the federal Parliament, even though the expert really wanted everything to be called a "commission."

Senator Joyal: Indeed, in Quebec, they use the expression "parliamentary commission rather than "committee."

Senator Fraser: And sometimes members of the public, and even the media, are confused between the various types of commissions proposed to deal with issues.

Senator Joyal: So, I can conclude, based on what you are proposing, that the French has been "standardized" based on a similar approach to the one used at the Department of Justice for the drafting of bills.

Senator Fraser: Precisely.

Senator Joyal: Thank you.

Senator Comeau: Honourable senators, I too would like to congratulate you for the attention paid to put the French language on an equal footing with the English language. I myself, when I have to look at the Rules, refer to the English version. Indeed, I have sometime been very frustrated with the way the French version was drafted. It is very frustrating for a francophone to have to refer to the English version when looking at the Rules. I congratulate you for ensuring that the linguistic equality of our two official languages is respected. Thank you very much for doing that.

[English]

Senator D. Smith: First, a brief comment on the issue which was raised as to why I, Chair of the Rules Committee, was not on this panel. I would like to point out that I was not on the subcommittee that did the review. It was chaired by Senator Fraser and countless hours were put in to that process. It seemed appropriate that those who did the heavy lifting and the grunt work should be here to give the most thorough possible answers as to any of the changes that are in there. That is the situation there.

I have two questions. First, it would be helpful if you could enlarge a bit on what I refer to as the "consensus culture." In the Rules Committee as a whole we avoid partisanship and try to do the right thing for the institution. On this, we had consensus on both sides, with both government members and opposition members. We were just not going down that road, whether it be one side outvoted by the other or something else. When it came to the subcommittee, you would literally have unity because it would be two to one. Actually, we had unity in the committee as a whole when the report came back and was adopted and tabled in November. It has taken a long time to get from November to today, but maybe you could comment on that.

Second, there was some reference to changes made in the early 1990s and the position of the parties, and it did not seem to connect with my recollection. If the honourable senator has his research there, could he clarify what did happen then?

Senator Stratton: If I may answer this one. I have never sat on a committee or subcommittee — and I have sat on a few subcommittees — that worked as well as this one has over the time frame. It was quite a while. They were long, intensive hours. Mondays for the entire day were a fairly regular occurrence.

It was remarkable in the fact that we used consensus. The definition of "consensus" is not unanimity. It is called consensus, a give and take. On some issues I would take a certain position and Senator Fraser would feel another way, and vice versa. We would come to a compromise to ensure the entire project moved forward. It was remarkable and frustrating for senators at times who had to yield to their point, but we accepted that this was the appropriate way to go. That really is the background. Completely all the way through this, it was by consensus.

When we tabled the document in the Rules Committee and reviewed the document, the same thing occurred. It was by consensus that the committee approved the report and brought it to the chamber, and that, in itself, was quite remarkable.

With respect to the issue of the background of this, the rules were brought forward in 1991 and were adopted after a very short period of time. I do not care to give the summary right now, but if I may seek leave at the end of this whole session — not just today, but at the completion of it — I will give some of the history.

Essentially, in 1991, after the GST debate, indeed, things were rather terse and tough, and the rules were adopted on a standing vote, and they were put into effect the day after the vote occurred. It went like this: Here is the report and the committee reported the new rules. The rules were debated over one day, voted on, passed and adopted the next day.

We are proposing that these rules take effect in the fall, not to give us the time to adapt but rather to give the administration time to adapt and to look at how this would work and will work in their whole process. It was important to recognize that. That is really the brief history in a nutshell of how the revision to the rules of 1991 took place.

Senator Fraser: We have insisted on the degree to which we operated on consensus because it was a remarkable feature of the work. I would like to go further on that and say that what was really quite amazing about the consensus is that it was always a consensus in the service, as Senator Smith suggested, of the institution.

I do not recall a single case where the disagreements we had were in the slightest way partisan. They were based upon experience among members of the subcommittee — both in government and in opposition — and a true belief that the rules must serve the institution and all senators on all sides, including independent senators.

I think I have not ever had such a prolonged experience in this place of that nature, and it was a great privilege.

[Translation]

Senator Robichaud: I notice that the existing rule 1(3) talks about grammatical "gender," but I do not see it in the version you are proposing. Perhaps it appears later on, because we use the masculine form in French to refer to "a senator" and "the Speaker." Is that part of the rules an obsolete form that was deemed unnecessary in the new rules?

Senator Fraser: When you refer to section 1(3) in the rules, you are alluding to the current version of the rules, as they refer to gender.

[English]

In English we say "masculine, marked genders." If I may answer in English, Senator Robichaud, even francophones had trouble actually understanding the grammatical paragraph that is in the present rules about marked genders.

[Translation]

"Marked" and "unmarked" genders: it seems the only people who could understand this were the interpreters. They were very pleased to learn why it was done that way. However, we found that it was not worth putting something that no one understood into the rules, particularly since we had agreed that it would be useful to include all the definitions in Appendix I, Terminology. If you look at our report, we point out at the very beginning of this appendix that:

In the French version, the masculine gender is used throughout, without any intent to discriminate but solely to make the text easier to read.

That seemed to us to be the core of the issue and we are leaving it to grammar experts to debate the "marked" and "unmarked" genders.

Senator Robichaud: I thank you for your answer. It is just that I had not made it to the appendixes. You are saying we did not understand, but I thought it was quite clear.

Senator Fraser: For you. Surely, you are more of an expert than I am.

Senator Robichaud: I do not believe that it is a question of expertise because the masculine forms "le sénateur" and "le président" are everywhere in the French version of the Rules. To understand that these terms apply to both genders, you must refer to the Appendix. In the current Rules, the explanation is found at the very beginning which, I believe, made it clear that the masculine term applied to both genders. Thank you.

Senator Fraser: That is true. However, Senator Carignan may perhaps also wish to comment on this matter. I have to say that I was definitely influenced by my experience on the Standing Senate Committee on Legal and Constitutional Affairs. There is no mention at the beginning of each bill that the masculine applies to both genders. It is assumed. It may be a certain professional habit.

Senator Carignan: I agree. The rules apply to both genders, even though only the masculine is used. It does not apply to just male senators

Senator Robichaud: I realize that. Had you wanted to do that, there would have been an uproar in the chamber and I would have supported those who opposed it. I completely understand what you did.

[English]

The Chair: Honourable senators, there being no other senators on my list, we have two minutes to go in this hour under the order the Senate that says we have 60 minutes for this.

Senator Cools: I have two very quick questions. The first has to do with the devotion expressed by the members of the subcommittee and their obvious success in fraternal relations. I just wondered, since they were so successful in those relations, why did they not come to the house for a reference to do a full scale study involving the whole Rules Committee, with the power to travel, if necessary, on these rules?

The second question speaks to with the order of reference itself. As honourable senators would know, it is that portion of the motion which states the purpose for which the committee is appointed. In other words, it is that part which specifies the purpose of the committee.

I wonder if Senator Carignan could answer why his motion — which set out the order of reference — did not specify the purpose for this Committee of the Whole study. Why was it excluded? As honourable senators know, the purpose was to investigate or study whether the mandate provided under 86(1)(d)(i) of the committee extended to subcommittees in respect of studying and revising our rules. As we know, the rules are the mechanics which actuate our privileges.

I am sure the successes my honourable friend speaks about are to be commended, but I must tell honourable senators that I have attended many Rules Committee meetings and have never been greeted by anything I would consider warm or friendly feelings. As a matter of fact, I have never noticed the situation that is being described, but perhaps my absence creates that cosiness.

The Chair: Honourable senators, the hour available under the order of the Senate to ask questions has expired, but with the leave of honourable senators, I would ask that the three witnesses have a brief opportunity to respond to the recent question from Senator Cools. Is that agreed, honourable senators?

Hon. Senators: Agreed.

[Translation]

Senator Carignan: We are in Committee of the Whole because the Speaker's ruling clearly states that we must or that we can study the Rules. The Speaker's ruling was quick and clear, and established that we can review the Rules.

As for the warm welcome, I do not know what things were like before, but I must say that the Rules Committee works well together.

[English]

The Chair: Thank you very much.

Honourable senators, it now remains for me, on behalf of all honourable senators, to thank our three honourable senators for the excellence of their presentation to outline what took place in the drafting and redrafting of these rules. I would like to say thank you very much to Senators Fraser, Stratton and Carignan.

[Translation]

Second portion: Honourable senators, I would like to remind you that, pursuant to the order adopted by the Senate, we have a maximum of one hour to consider Chapters one, two, three and four of the First Appendix of the report. In order for all senators to have the opportunity to propose their amendments, I suggest that we proceed as follows:

[English]

I would ask senators who intend to propose amendments to any of these chapters to do so now, but the consideration of the amendments will be suspended until we dispose of the appropriate chapter — that is Chapters One, Two, Three or Four. This would ensure that the committee is seized of the amendments should we run out of time.

After receiving the amendments, we would then proceed to debate the chapters. After having debated the chapters, we would then deal with the motions necessary to dispose of them.

Are there any amendments?

Senator Tardif: Thank you, Mr. Chair.

[Translation]

Senator Tardif: I would like to begin my comments —

[English]

Senator Cools: — natural order to proceed in this way? I would think that, if we follow the natural order, since that is what the order of reference laid out, we will find that there are some rules some honourable senators want to make amendments to. However, I do not understand the purpose of banking or collecting amendments in advance of the order being called in its rightful place.

The Chair: After this initial period that just took place, which shall be a maximum of one hour, the order calls for the committee to consider Chapters One, Two, Three and Four of the First Appendix of the report for a maximum of one additional hour.

I have now called for amendments. The Honourable Senator Tardif has indicated that she has an amendment. We will hear that and any other amendments, and then begin within the hour the debate of Chapters One, Two, Three and Four.

[Translation]

Senator Tardif: I would like to begin my comments by thanking the committee, which has worked energetically and vigorously on this major project. I thank it very sincerely and I am convinced that the changes presented to us will allow the Senate to work more efficiently. The wording of the revised version is better, and I am very pleased to see a much more comprehensible French version.

[English]

As the chair has indicated, we will be looking today at Chapters One through Four, and I want to draw attention to two particular issues that I have identified as requiring the attention of the Senate.

I have spoken about this matter with honourable senators opposite, as well as within my own caucus, and I will present them. I would ask that the pages circulate the two amendments, if they could.

The amendment I will be presenting pertains to rule 2-5(3). I would like to draw attention to proposed new rule 2-5(3), which addresses the appeal of a Speaker's ruling and reads in part:

The appeal shall be decided immediately using the procedure for a vote on a non-debatable motion.

This proposed new rule makes, in my estimation, substantive changes to what is currently in place. I think something as important as an appeal of a Speaker's ruling requires a maximum amount of time and flexibility for honourable senators to consider the matter at hand. I believe, therefore, that it is more appropriate to use the normal procedure for bells for such a vote rather than the procedure for voting on non-debatable motions.

Therefore, honourable senators, I move:

That the first report of the Standing Committee on Rules, Procedures and the Rights of Parliament be not now adopted but that it be amended in the First Appendix of the report to read as follows:

That chapter two of the First Appendix of the report be not now adopted but that it be amended by replacing rule 2-5(3), at page 25 of the Appendix (page 441 of the Journals of the Senate), with the following:

"Appeals of rulings

2-5. (3) Any Senator may appeal a Speaker's ruling at the time it is given, except one relating to the expiry of speaking times. The appeal shall be decided immediately using the ordinary procedure for determining the duration of the bells."

I would ask the pages to also circulate my second amendment. In that one, I draw attention to Chapter Four, which deals with the ordering of government business. I would like to first remind the chamber of the wording of the current rule. Rule 27(1) reads in part:

Government Business shall be called and considered in such sequence as the Leader of the Government in the Senate or the Deputy Leader of the Government in the Senate shall determine.

The wording proposed by the Rules Committee found in new rule 4-13(3) says:

At any time during Government Business, either the Leader or the Deputy Leader of the Government may indicate the order in which the remaining items of Government Business are to be called.

In practice, it has been my experience that if the sequence of government business set out in the Order Paper and Notice Paper was to be reordered, usually there would have been an earlier discussion between the deputy government and deputy opposition leaders. The Deputy Leader of the Government would then rise when Orders of the Day were called to inform the Senate in what sequence the various items of government business would be called.

However, this is not the practice described in the new proposed rule. In fact, the word "sequence" is dropped from the new rule. The word "sequence" certainly strengthens the impression that the order of items should not be determined on the run, one at a time. In my own experience and from my examination of practice prior to my assuming this role, I cannot find any occasion where the Deputy Leader of the Government changed the agreed-to or understood sequence of events or items while in the middle of government business.

I believe it would be beneficial if all honourable senators knew from the start what the new order of government business will be if it is to be changed from what is in our Order Paper and Notice Paper. That has certainly been the unbroken practice during the current wording of rule 27(1).

Consequently, I feel this wording should be retained in our new rules. Therefore, honourable senators, I move:

That the first report of the Standing Committee on Rules, Procedures and the Rights of Parliament be not now adopted but that it be amended in the First Appendix to the report as follows:

That chapter four of the First Appendix of the report be not now adopted but that it be amended by replacing rule 4-13(3), at page 43 of the Appendix (page 459 of the Journals of the Senate), with the following:

"Ordering of Government Business

4-13. (3) Government Business shall be called in such sequence as the Leader or the Deputy Leader of the Government shall determine."

The Chair: Are there further amendments to Chapters One, Two, Three or Four that honourable senators wish to put forward?

Senator Cools: No, I withdraw.

Senator Kinsella: My difficulty is that the French version of rule 1(1) is the same in both the revised text and the actual text. Regarding the revised text, it is the issue of committees and procedures in committees being used as authority for procedures in the chamber. The current rule 1(1) does not make reference to drawing on practices or procedures in Senate committees.

In my opinion, the current rule is preferred, although it is interesting that the French version of the current rule does say "ses comités."

I will listen to the discussion, but I am signaling that I might move an amendment to maintain the present version that has worked for several decades.

The Chair: Senator Kinsella, as long as it is understood that we have some 50 minutes left, by order of the Senate, to deal with Chapters One, Two, Three and Four. If the honourable senator does, in fact, wish to make an amendment to rule 1(1), either in the French or the English, or both, he would have the 50 minutes to do it. I thank him for bringing that to our attention.

Senator Kinsella: The amendment technically will be to maintain the present wording.

The Chair: In both the English and the French?

Senator Kinsella: No. I would want the French to say the same thing as the English.

Senator Tardif: Which one?

Senator Kinsella: Current rule 1(1).

[Translation]

Senator Fraser: Which version?

Senator Kinsella: The English version.

[English]

The Chair: I will come back to you again, Senator Kinsella.

Honourable senators, we have before us to date two amendments made by Senator Tardif and seconded by Senator Cowan. Instead of reading them, shall I dispense, honourable senators, and is it agreed that they are now lawfully before this Committee of the Whole?

An Hon. Senator: Yes.

The Chair: Moved by Senator Tardif, seconded by Senator Cowan; agreed.

Senator Cools: I am trying to follow this process. Right now are you banking the amendments?

The Chair: That is correct.

Senator Cools: Then you will begin debate afterwards on the amendments?

The Chair: Right now I am calling for amendments to Chapters One, Two, Three and Four.

Senator Cools: I understand that.

The Chair: We have amendments to Chapters Two and Four, and I am still calling for other amendments. Senator Kinsella is considering an amendment to No. 1.

Senator Cools: I also have an amendment on a similar ground as that of Senator Kinsella. Maybe I should move it, too.

The Chair: Maybe you and Senator Kinsella could get together —

Senator Cools: No. It would be best if the house could have the choice of the better. We are not as cozy.

Senator Duffy: As a member of the Rules Committee, I rise on a point of information. As our colleagues who testified earlier have told us, there was extensive consultation and I must say at times vigorous debate in the Rules Committee, both in public and in camera, in discussion of all of this. The reports that are presented to the house today have been subject to a fairly rigorous process.

My question to the leadership or to Senator Tardif perhaps, is the following: Has the senator's amendment been discussed with the so-called leadership? Were members of the Rules Committee on our side aware that this amendment would be made in advance? Is there a reason that it did not come to the Rules Committee itself?

Senator Tardif: Yes. Further to the Speaker's ruling, we felt that the Speaker had given a very strong recommendation. We took the opportunity to examine the rules once again. We read them very carefully. In that reflection and in that rereading, certain elements did come up. We did mention them to the committee members on the other side, as well as to my honourable colleague Senator Carignan, who has agreed that these are reasonable amendments to put forward and to support.

Senator Fraser: I also had discussions with Senator Stratton from the other side, not about the precise wording of the amendments but about the substance of the amendments. I think he would confirm that we were in agreement as to the substance. What I am trying to say is that there was bipartisan discussion.

Senator Stratton: If I may, senator, what happens with amendments is that in this particular case they were being massaged right up until this morning, virtually. To try to take a set of amendments to the Rules Committee was not possible. Rather, what we tried to do was to work with the subcommittee on the sense of the amendments and the principle of the amendments. Having reached agreement on that, we then proceeded to do the wordsmithing, which quite often takes a while.

Senator Duffy: Allow me, Mr. Chair, to finish by making the point that it seems regrettable that, for something on which there has been such teamwork going on for so long not only by the steering committee but also by the regular members of that committee, time was not found even for an email update, a conference call or a brief meeting to say here is where we are going, or here is what is being suggested. I file as a note of regret that that extra step was not taken.

[Translation]

Senator Carignan: I apologize and take part of the blame regarding the sending of information on the proposed amendments. We discussed the appropriate way to bring amendments and the government leadership agrees with the amendments proposed by Senator Tardif on the ground that, in practice, the existing situations are clear and reflect an adequate process.

We did not want to include a new section that would change this practice, both as regards section 4-13(3), dealing with the reordering of Government Business, and regarding an appeal of a Speaker's ruling, which has an impact on the bells. To appeal a Speaker's ruling is a very serious matter. It is rather unusual, but it can happen because the rules allow it.

It seemed acceptable and even desirable to draw attention on the seriousness of appealing a Speaker's ruling and requiring the bells. However, in its desire to be productive, functional and efficient, the committee may have omitted a few things. In fact, we were reminded of that, and appropriately so.

As for reordering Government Business, the current practice provides that this must be done at the beginning of Government Business, to avoid taking people by surprise and to clarify the situation. We are comfortable with the practice that applies to the current version. Should there be a dispute later on regarding the change made to the order or to the time, it would then be possible to simply call on the Speaker, who could decide whether the current wording of the section allows the leader or the deputy leader to amend the order without consent, or at a time other than at the beginning of Government Business.

Since this practically never happens, and since the current practice is rather well established, it seems appropriate to keep the current version.

[English]

The Chair: Thank you, Senator Carignan.

Honourable senators, are there any further amendments to Chapters 1, 2, 3 or 4?

Senator Mahovlich: I just want to mention that I agree wholeheartedly with Senator Kinsella to leave No. 1 alone. I think it is very important to leave that Latin alone; it has worked so well all these years. However, if you can install the Latin in the French version, I think we would have it.

Senator Cools: Yes, I have a couple of amendments, moved by myself, obviously, seconded by Senator Watt. It is on the same issue as Senator Kinsella's. Just in case the time goes by quickly, I would like to move mine as well.

(1650)

I move, seconded by the Honourable Senator Watt:

That the First Report of the Standing Committee on Rules, Procedures and the Rights of Parliament be not now adopted, but that it be amended, in Appendix I, chapter 1, on page 21, by replacing section 1-1 with the following:

"1-1. (1) The Rules of the Senate shall govern the proceedings of the Senate and its committees and shall prevail over any practice described in the appendices to these Rules.

1-1. (2) In any case not provided for in these Rules, the practices of the Senate and the House of Commons shall be followed, with such modifications as the circumstances require.".

We are not in debate; we are just banking. Is that it?

The Chair: That is correct.

Senator Cools: It is essentially the same issue that a Senate committee is a delegated authority, so the Senate should not be following practices or precedents set in committees.

It is essentially the same concern, but it is just to put it in the bank. It is a bank and banks, as we know, are good holders of valuable things.

The Chair: Could the table have a copy?

Senator Cools: Absolutely.

The Chair: Honourable senators, it has been moved by the Honourable Senator Cools, seconded by the Honourable Senator Watt:

That the First Report of the Standing Committee on Rules, Procedures and the Rights of Parliament be not now adopted, but that it be amended, in Appendix I, chapter 1, on page 21, by replacing section 1-1 with the following:

"1-1. (1) The Rules of the Senate shall govern the proceedings of the Senate and its committees and shall prevail over any practice described in the appendices to these Rules.

1-1. (2) In any case not provided for in these Rules, the practices of the Senate and the House of Commons shall be followed, with such modifications as the circumstances require.".

It is now moved and seconded and before the chamber. Is it adopted as a motion before this chamber, honourable senators?

Hon. Senators: Agreed.

The Chair: It is agreed that it is before the chamber for debate.

I now call for further amendments on Chapters 1, 2, 3 or 4. Are there any further amendments?

There being none, the floor is open for debate on any of the amendments on the floor.

We have 39 minutes. I will hear Senator Carignan and Senator Fraser.

[Translation]

Senator Carignan: I disagree with Senator Cools' proposed amendment. It is not unlike the idea Senator Kinsella raised earlier.

I had the chance to speak with Senator Kinsella. The idea of adding committees came from the fact that in the former English and French versions, there was a contradiction. The phrase "or its committees" was included in the French but not in the English. We decided to uphold the idea that the Rules also govern the committees because in any event, we have the phrase "as the circumstances require." This concept of adapting the Rules allows the committee to be governed by the Rules. If there were a rule that was not appropriate for a committee, it could make the necessary adaptations to make the rule applicable to the committee.

It is the content of the current rule that is being upheld. By eliminating the notion of committee, we amend the very substance of the current rule. The revised text clarifies this situation to make this the case both in French and in English. By removing the notion of committee, oddly, we would amend the current version with regard to the one that should have rule of law, because it is clear enough in the current French version that this also applies to the committees.

[English]

Senator Fraser: Along similar lines, Mr. Chair, the present rules say — actually, in both English and French, although the ordering of the wording is different — that both the Senate and its committees, in any case that is not provided for in these Rules, will, mutatis mutandis, follow the practices of the Senate or its committees, mutatis mutandis.

[Translation]

And it says roughly the same thing in French.

[English]

If I had to choose between the two similar amendments that have been put forward to us, I would choose the one presented by the Speaker, because it would follow the operating principle we had, that if we did not have agreement, then we would revert to the substance of the rules as they stand.

That would take care of what would be the second paragraph of Senator Cools' amendment. I would opt for the Speaker's amendment.

For the first paragraph of Senator Cools' amendment, my difficulty is the "Rules of the Senate shall govern the proceedings of the Senate and its committees and shall prevail over any practice described in the appendices to these Rules."

Part of the difficulty is that some of the appendices to the rules now, which would be reproduced in the new version, actually have been adopted by order of the Senate. They are more than practices, and I think it just becomes complicated and possibly confusing to get into a discussion of "practices described in the appendices." I think it was useful to keep the distinction between practice and appendices.

Finally, I do not know whether we are heading for consensus here or not, but I wonder if the Speaker would contemplate a friendly amendment to his proposed amendment. He has not made it, but I think he said he was going to — or he did, sort of — which would be to pick up the second sentence of proposed new rule 1-1(2), which says, "The practices of other equivalent bodies may also be followed as necessary."

[Translation]

What is more, the practices of other equivalent bodies may also be followed as necessary.

[English]

As I tried to say in the earlier portion of this meeting, the fact is that, when matters go so far as requiring a Speaker's ruling, the Speaker will frequently refer to practices in other equivalent bodies, such as Westminster or provincial legislatures. That being the practice, I would still think it would be not a bad idea to include that.

Senator Cools: That rule has a very long history. In its original form years ago, it used to include the House of Lords. Then, later, as it developed, it included the House of Commons. However, it has never before included the committees.

The important point that Senator Fraser is making is, I think, a very different kind of point. The fact of the matter is that we do not know what an equivalent body is to the Senate, in this country or in any other country. We would not want a case where a ruling in the Senate of some unknown land that we do not know much about could be applied. The intention of that rule was always ever to refer to practices of bodies higher, mostly in the House of Lords or equal to, since the Senate is equal to the House of Commons, since it has coordinate powers with it. It was never intended to be for unnamed equivalent bodies.

What could be contemplated there and used to be used in practice was an appeal to what they will call all those assemblies and parliaments that use the common law. They would call it the common law of Parliament. I suggested my amendment wording as I did because it is unclear, selective and subjective opinion as to what body is an equivalent body to the Senate.

I have no emotion or sentiment or anything wrapped up in this. I am prepared to accept the decision. We know I always accept the decisions of the house; right, Senator Comeau? I always do, even when they are wrong.

Senator Ogilvie: I wish to speak briefly to one of the amendments that I have in my hand that deals with section 1-1(1) and section 1-1(2). I personally think it is a mistake to delete reference to the practices of committees in this section. In the short time I have been here, the very limited examples of practice in committees that lie outside the formal rules have been put to good experience in the committees. I would like to see the actual reference to committees remain within this section, and I will be voting against this amendment.

[Translation]

Senator Carignan: I would like to clarify something regarding the amendments currently before us. Senator Kinsella did not propose any amendments, and my understanding is that he had no intention of doing so. Thus, it is not correct to talk about Senator Kinsella's amendment, or amendment to the amendment, as this could create confusion. To my knowledge, there are currently three proposed amendments, and I think we need to focus on those for the moment.

As for similar assemblies and the notion of this addition in the revised text, the former text talked about "usages, forms and proceedings of either House of the Parliament of Canada." However, speakers' rulings are often based on rulings handed down in other chambers. All authorities cited often use rulings from other chambers, particularly other Commonwealth assemblies, but not necessarily limited to Commonwealth countries.

That is why we changed this part of the Rules — in order to clearly indicate that referring to similar assemblies in the context of speakers' rulings is a well-established practice. The purpose of this section is to formalize a rule that is already a well-established practice: drawing inspiration from other institutions.

[English]

The Chair: Honourable senators, we have just a little over 20 minutes left in this 60-minute section or the hour available to consider Chapters One, Two, Three and Four. It is almost over. I would remind senators that once the hour has run out, no further amendments can be received. I would therefore invite honourable senators who intend to propose amendments to do so now. If there are no further amendments now, the floor will still be open for further debate.

Senator Cools: Honourable senators, I have an amendment to the new 2-13(1). Maybe I should put it first. Actually, it is sub (1), (2) and (3). I move:

That the First Report of the Standing Committee on Rules, Procedures and the Rights of Parliament be not now adopted, but that it be amended, in Appendix I, chapter 2, on page 27, by replacing sections 2-13 with the following:

"2-13. (1) If at any sitting of the Senate, or in Committee of the Whole, a Senator shall take notice that strangers are present, the Speaker or the Chairman (as the case may be) shall forthwith put the question "That strangers be ordered to withdraw", without permitting any debate or amendment.

2-13. (2) When the Speaker or the Chairman shall think fit, either of them may order the withdrawal of strangers from any part of the Senate, without a prior order of the Senate to that effect.

2-13. (3) When the Senate orders the withdrawal of strangers, the galleries shall be cleared, but those authorized to enter the Senate Chamber and to be on the floor of the Senate while it is in session shall continue to have free access to the Senate.".

It is seconded by Senator Watt.

The Chair: Honourable senators, it has been moved by Senator Cools and seconded by Honourable Senator Watt:

That the First Report of the Standing Committee on Rules, Procedures and the Rights of Parliament be not now adopted, but that it be amended, in Appendix I, chapter 2, on page 27, by replacing sections 2-13 with the following:

"2-13. (1) If at any sitting of the Senate, or in Committee of the Whole, a Senator shall take notice that strangers are present, the Speaker or the Chairman (as the case may be) shall forthwith put the question "That strangers be ordered to withdraw", without permitting any debate or amendment.

2-13. (2) When the Speaker or the Chairman shall think fit, either of them may order the withdrawal of strangers from any part of the Senate, without a prior order of the Senate to that effect.

2-13. (3) When the Senate orders the withdrawal of strangers, the galleries shall be cleared, but those authorized to enter the Senate Chamber and to be on the floor of the Senate while it is in session shall continue to have free access to the Senate.".

Honourable senators, this amendment has been moved and seconded, and it is now before us for further debate.

Senator Cools, did you wish to say something?

Senator Cools: Thank you, honourable senators. This particular rule, formerly rule 20, has stood in essentially the same words as it is now for about 100 years, and it has stood in the same words almost in the House of Commons. The reason I have moved this amendment, honourable senators, is not just nostalgia but to uphold the dignity of all of those who have gone before us, who worked hard to create this system for us and who have passed this on to us as an entailed inheritance. This rule that someone has rewritten is taken from the actual words of Benjamin Disraeli in 1875. There is something wrong with passing judgment retroactively on people's grammar or style, just like there is something wrong with someone changing things because the style is not likeable. There is something wrong with that.

What I am trying to say to honourable senators is in those days and until very recently, most of these rules that we were deforming in this go-round were actually moved by the original people who set the precedents themselves, by those individuals standing on the floors of the houses making those motions.

If you read the earlier editions of Bourinot and Beauchesne, you see them being very slavish to the actual words of the original precedent, which I have for those who are interested in looking at it. It was moved in 1875 by Mr. Disraeli, then British Prime Minister, on an important question of strangers. It was changed slightly here in 1991 when divided into two parts. Quite frankly, the words of Disraeli set the precedent, defined and articulated it and were carried right across the Commonwealth. In that particular way, they bear something worthy of preservation in our history. I would like to move that for the sake of preserving those words. Some of those gentlemen spoke well and they spoke long; and I have great respect for them. I do not understand manipulating or deforming other people's words for nothing other than style.

This committee change is not substantive; it is stylistic. I understand there is a fair amount of vanity tied up in much of this, understandably because people worked hard. This rule needed no change, neither in substance nor in form. I just wanted to record that. Many of these changes have not been premised on their origins where they were originally spoken and adopted by us in "the colonies." If anyone is interested, those words spoken by Mr. Disraeli in debate in 1875 were adopted verbatim by the House of Commons of Canada and the Senate.

Senator Stratton: Briefly, the whole intent was not to insult anybody from the past. That was not the intent of this at all. Rather, it was to take a 21stcentury look at the way the language is written and interpreted today. It is simply that and has nothing to do with our taking what was written at that time and deeming it inappropriate. We simply want to move it into the 21st century.

Senator Cools: Perhaps then one should begin with a blank paper and pencil and start writing from scratch. That would take some skill.

Senator Stratton: You would not want to do that either. We take what was previously written, with respect, look at it and see how it can be improved so that it makes more sense under today's usage of the English language — simply that.

Senator Cools: Perhaps you could explain the improvement. That is the characteristic of this movement and this proceeding.

Senator Stratton: I think I just did that.

Senator Cools: They are not explained.

Senator Stratton: I think I just did that.

Senator Cools: That was not an explanation.

The Chair: Is there further debate, honourable senators?

[Translation]

Senator Carignan: Clearly, there was no change to the substance of the text in that part. Whether we are referring to the report or the notes, the new version does not change the substance of the old Rule. The new version states "That strangers do withdraw" rather than "That strangers be ordered to withdraw." The substance is the same. The only changes we made were to the form, the style or the words used to translate the Rules.

Although I think it is noble to want to return to tradition or to the spirit of tradition, the problem with copying some of the old articles into the new version without using the same words or style as the rest of the new version is that it creates interpretation issues because the same wording is not being used. The entire team worked on the writing — and I use the word "team" because there were senators, table officers and staff — to try to ensure that the words used in one article were the same as those used in another. So, I think it is dangerous to import text directly. Upon reading the amendment, I find it hard to imagine what problems it could cause. However, in future practice, problems could well arise.

I therefore disagree with the proposed amendment because it is not a substantive change; it is simply a return to the former style. There is a risk of error that, for now, I am unable to identify. However, it is very likely that there would be a risk of error.

Often, during a trial or ruling, those who are interpreting a law realize that it was amended in this fashion at the last minute by a committee, which makes the law confusing. They try to find meaning in that amendment but there is none; it was made simply as a result of a desire to change something.

It is risky to cut and paste. I would prefer to stick to the logical way it has already been written.

[English]

Senator Cools: In that instance, I simply proposed a reversion to the original. However, if we really want to look at updating and clarifying the rules, we would certainly look at the proposed new rule 2-13(3), which says:

When strangers are ordered to withdraw, the public galleries shall be cleared, but individuals authorized to be in any part of the chamber during a sitting shall continue to have access to it.

If there was a rule that needed revising, it was that one. As the event showed some months back during the Speech from the Throne on June 3, 2011, if the Speaker had ordered the galleries or the floor cleared of strangers, the offensive individual would have been allowed to stay. Let us understand: There was a time when that rule did not allow any strangers whatsoever to stay. It has been amended to include many strangers. In ancient days that one person had only to say, "I spy a stranger," and that was the immediate order to clear all strangers out. It has been modified over time, but in today's community we are facing equal chances that the offender will be one of those strangers authorized to be on the floor of the house.

I am looking for the opportunity in this debate to raise that issue and to address the fact that all of us that day sat here hoping and wishing that nothing bad would happen; but some action should have been taken. If we want to look at bringing something into modernity, the rule of automatically admitting every stranger here because they work for the Senate perhaps should be reviewed.

Just think about it, Senator Carignan: If that had been invoked, that offensive person could have claimed a right to remain here. I ask you to think.

The Chair: Is there further debate, honourable senators?

[Translation]

Senator Carignan: The last part of Rule 2-13(3) states: "but individuals authorized to be in any part of the chamber during a sitting shall continue to have access to it." It goes without saying that those who are authorized to be there are not strangers. If the Rule was applied to or targeted a specific individual, it would not fall under the section about clearing the galleries.

The Speaker could exercise his or her authority to order a person to withdraw because that person is being disruptive or could have powers other than the power to exclude strangers. For example, if a page created a disruption, the Speaker, by virtue of the power to maintain order, could direct the Usher to remove that person.

[English]

Senator Cools: That rule is not the rule that is required to eject a disorderly person. That rule is an emergency rule to empty the place of strangers, and a stranger is a person who is not a member of this house. There was an instance in the House of Commons, a long time ago, where a senator was ordered out of the House of Commons because one member called, "I spy a stranger." That rule has a long history and, with all due respect to the honourable senator, many of these rules are older than we are. If I were convinced that the committee had done that study and research, it would be a different matter. However, honourable senators will recall that I did sit in on a few of those meetings, and I saw no such penetration of the history, purpose and foundation of these rules. Some of them for which alteration and change is proposed go back to pre-Confederation, to the old legislative councils.

Let us be aware, when we are revising, that we are now living in an era when security is a question uppermost in most people's minds and that rule, the clearing of strangers, is a very important rule. That is all I was saying, and I would say that the words that maintain the tradition are worth keeping.

It is pretty clear to me that nothing I say here will be taken. I think I had an inkling of that before I began, but, if we are going to debate this, we should debate on the grounds of argument, evidence and study. It would be nice to win the arguments in debate, not by muscle but by vote. I commend that to the honourable senator. Try it.

[Translation]

Senator Carignan: I would like to clarify that we studied past practices and the history of the rules. That is why we kept the rule that a senator can object to the presence of strangers and ask them to withdraw. That rule was kept because we found it to be relevant. It was not changed. The substance of the rule has not been changed. The formulation was changed to make it clearer and stylistically similar to the other rules. The substance of the rule — that a stranger can be forced to withdraw — has not been altered.

[English]

Senator Cools: The change has altered the nature of the question that the Speaker will put.

[Translation]

Senator Carignan: Everyone could agree that the question now be "That strangers do withdraw" to maintain the tradition of the words "that strangers be ordered to withdraw." I believe we would find unanimous consent.

[English]

Senator Cools: Like the honourable senator, I am sticking to my guns.

The Chair: I would like to draw to honourable senators' attention that we have three minutes left in this hour for amendments to chapters 1, 2, 3 or 4. Are there any other amendments?

[Translation]

Senator Carignan: Since we have just three minutes left, I would move an amendment to maintain the original question on the withdrawal of strangers.

Out of respect for tradition, instead of saying, "that strangers shall withdraw," we would say, "that strangers be ordered to withdraw" given the history of the question and the wording.

[English]

Senator Fraser: That strangers be ordered to withdraw?

The Chair: It is moved by Honourable Senator Carignan, seconded by Honourable Senator Tardif:

That the First Report of the Standing Committee on Rules, Procedures and the Rights of Parliament be not now adopted, but that it be amended, in Appendix I, chapter 2, on page 27, by replacing sections 2-13. (1) with the following:

"2-13. (1) When, during a sitting of the Senate or a Committee of the Whole, a Senator objects to the presence of strangers, the question "That strangers be ordered to withdraw" shall be decided immediately.".

Is it agreed, honourable senators, that this amendment is now lawfully before this Committee of the Whole?

Hon. Senators: Agreed.

The Chair: Honourable senators, is there any further debate?

Senator Cools: Chair, the debate has been dominated by members of the committee. I am the only non-member of the committee who has participated. Perhaps you can make an appeal to any of those other senators who might want to say something.

The Chair: I have called, on many occasions, asking whether honourable senators wish to participate in the debate.

Senator Cools: I know, but I am asking if you could ask for the last time.

The Chair: I did not want to single out certain senators.

Senator Cools: I am aware of that. The Chair has been very sensitive, but I am saying that maybe he could ask one last time.

Senator Duffy: I think we have learned a lesson here today, honourable senators. Things proceed smoothly when we have proper, advanced preparation. Might I suggest that if there are other amendments coming in future weeks to this work that we have spent years on, that some of us — at least the members of the committee — be alerted in advance so that we would not have this sprung on us at the last minute? If we are going to put this through — and there are points on both sides — having a fully informed committee would be important.

[Translation]

Senator Robichaud: I agree with what Senator Duffy said. This project is now before the Senate and all senators must receive the same information. This project to change the Rules is no longer before the committee. It is before the Senate. Advance notice would be good, but it should not limit our privilege to present amendments during debate on the issue.

[English]

Senator Ogilvie: I will speak against the suggestion of the honourable senator. I think that the amendments put before this chamber are in language that is easily understandable. During the course of debate, it is entirely possible that members of a body such as this would see aspects of important issues that have not occurred to them before, and I would urge that this chamber not preclude amendments arising from the floor.

Senator Duffy: Mr. Chair, my suggestion was not that amendments be precluded, but that members of the committee who have worked on this not be excluded by the steering committee from understanding where the process is going and what arrangements have been made bilaterally.

The Chair: I think that the record will show that Honourable Senator Duffy's very first intervention made that clear. It is now very clear.

Honourable senators, the hour available, under the order of the Senate, to consider chapters 1, 2, 3 and 4 has expired and, accordingly, I must interrupt proceedings to put all questions without further debate.

Honourable senators, we are now disposing of chapter 1. The Honourable Senator Cools has moved, seconded by Honourable Senator Watt:

That the First Report of the Standing Committee on Rules, Procedures and the Rights of Parliament be not now adopted, but that it be amended, in Appendix I, chapter 1, on page 21, by replacing section 1-1 with the following:

1-1. (1) The Rules of the Senate shall govern the proceedings of the Senate and its committees and shall prevail over any practice described in the appendices to these Rules.

1-1. (2) In any case not provided for in these rules, the practices of the Senate and the House of Commons shall be followed, with such modifications as the circumstances require.

Is it your pleasure, honourable senators, that the amendment shall carry?

Some Hon. Senators: No.

The Chair: The amendment is negatived.

Shall Chapter One carry unamended?

Some Hon. Senators: Agreed.

The Chair: Carried.

Senator Cools: Mr. Chair, I am a little bit puzzled by the process. I was under the impression that we would not actually be voting on all of this today.

The Chair: That is what the order provides.

Senator Cools: No, no, the order does not tell the committee what to do; it just prescribes what it can recommend to the house. The order says it must make a recommendation to adopt or not to adopt. It is not my understanding that they are to go back with a report saying it was adopted here in the Senate. We could look at a copy of the motion.

The Chair: We are in the Committee of the Whole. I will read what the order says:

. . . after this initial period, which shall last a maximum of one hour . . . after which the chair shall interrupt proceedings —

— which I just did —

— to put all questions necessary to dispose of these chapters successively —

— meaning Chapters One, Two, Three and Four —

— without further debate or amendment, after which the committee shall rise once it has disposed of any consequential business. . . .

Honourable senators, we are now disposing of Chapter Two. The Honourable Senator Tardif moved, seconded by the Honourable Senator Cowan:

That chapter two of the First Appendix of the report be not now adopted but that it be amended by replacing rule 2-5(3) on page 25 of the Appendix (page 441 of the Journals of the Senate), with the following:

Appeals of rulings

2-5. (3) Any Senator may appeal a Speaker's ruling at the time it is given, except one relating to the expiry of speaking times. The appeal shall be decided immediately using the ordinary procedure for determining the duration of the bells.

Is it your pleasure, honourable senators, that the amendment carry?

Some Hon. Senators: Yes.

Senator Cools: Mr. Chair, you are not asking for abstentions.

The Chair: I just asked if it carried. May I finish doing that first?

Senator Cools: Absolutely, but you did not ask for abstentions for the previous one.

The Chair: Is it your pleasure, honourable senators, that the amendment carry?

Some Hon. Senators: Yes.

The Chair: Is it your pleasure that it be negatived, honourable senators?

The amendment is carried.

Senator Cools: I would like to record a series of abstentions.

The Chair: That shall be so noted.

Honourable senators, we continue disposing of Chapter Two. The Honourable Senator Cools has moved, seconded by the Honourable Senator Watt:

That the First Report of the Standing Committee on Rules, Procedures and the Rights of Parliament be not now adopted, but that it be amended in Appendix I, chapter 2, on page 27, by replacing section 2-13 with the following:

2-13. (1) If at any sitting of the Senate, or in Committee of the Whole, a Senator shall take notice that strangers are present, the Speaker or the Chairman (as the case may be) shall forthwith put the question "That strangers be ordered to withdraw", without permitting any debate or amendment.

2-13. (2) When the Speaker or the Chairman shall think fit, either of them may order the withdrawal of strangers from any part of the Senate, without a prior order of the Senate to that effect.

2-13. (3) When the Senate orders the withdrawal of strangers, the galleries shall be cleared, but those authorized to enter the Senate Chamber and to be on the floor of the Senate while it is in session shall continue to have free access to the Senate."

Honourable senators, is it your pleasure that this amendment carry?

Some Hon. Senators: No.

Senator Cools: On division.

The Chair: It is negatived.

We have noted, Senator Cools, that you wanted to have your objection recorded.

Senator Cools: I want to show I disagree with the negative vote. It is not an abstention. You did not call for a vote, so it cannot be a positive. It has to be an "on division."

The Chair: Thank you. That is noted, Senator Cools.

We continue with disposing of Chapter Two. The Honourable Senator Carignan moved, seconded by the Honourable Senator Tardif:

That the first report of the Standing Committee on Rules, Procedures and the Rights of Parliament be not now adopted but that it be amended in Appendix I, chapter 2, on page 27, by replacing section 2-13. (1) with the following:

"2-13. (1) When, during a sitting of the Senate or a Committee of the Whole, a Senator objects to the presence of strangers, the question "That strangers be ordered to withdraw" shall be decided immediately.".

Is it your pleasure, honourable senators, that the amendment carry?

Some Hon. Senators: Agreed.

The Chair: Carried.

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