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Speech in Senate Chamber: Rules, Procedures and the Rights of Parliament, Motion to Authorize Committee to Study the Powers and Responsibilities of the Officers of Parliament and Their Reporting Relationships to the Two Houses

Rules, Procedures and the Rights of Parliament

Motion to Authorize Committee to Study the Powers and Responsibilities of the Officers of Parliament and Their Reporting Relationships to the Two Houses—Debate Suspended

On the Order:

Resuming debate on the motion, as amended, of the Honourable Senator Comeau, seconded by the Honourable Senator Di Nino:

That the Standing Committee on Rules, Procedures and the Rights of Parliament be authorized to examine and report on the powers and responsibilities of the officers of parliament, and their reporting relationships to the two houses; and

That the committee present its final report no later than March 31, 2013.

Senator Cools: Honourable senators, I rise to support Senator Comeau's motion, as amended, to refer the powers and role, and this letter of the seven self-styled agents of Parliament, to our Rules Committee. Today, as on December 11, I hold that self-styling and self-designation are no part of our constitutional order. Our lex parliamenti and its parent, lex prerogativa, know no class of persons styled "agents" or "officers of Parliament," as applied to these seven offices with bureaucracies. The lex and the rex will reveal if they are our agents, our officers, or neither. They will explain how and by whom these officers are designated and styled, and how such affiliation to Parliament is decided. They will tell if such self-styling can pass from one to the next, and if they are "agents" of all our 41 Parliaments held. I note that the Privy Council website has a PowerPoint piece by former clerk Kevin Lynch that speaks of 12, not 7, such offices. Even their number is in doubt.

Honourable senators, the word "Parliament" is used as a fixed thing, like its buildings, but it is a transitory assembly, summoned and dissolved at the pleasure of, and for the causes declared by, the sovereign. Parliaments come and go. The old terms "a Parliament" and "the Parliaments" are better. Parliament is the Queen, this upper house styled the Senate, and the House of Commons. It works by absolute concurrence among these three independent parts, each of which holds and exercises its powers jealously. A single, highly structured unity, it is indivisible and inseparable, but its two houses are separate and independent. Its enacting power is our liege Lady Queen Elizabeth II. She is head of Parliament, head of state, head of government, and the actuating power in our constitution. Our seat of government is Government House, the Governor General's quarters in Ottawa. Neither house, nor the two, are "Parliament." Their names, "Senate" and "House of Commons," describe their history and independence. The term "officers of Parliament" is unclear and could be why the seven authors prefer the newer, but still self-assigned, "agents of Parliament."

Honourable senators, it is not well known that the houses of Parliament have no power to appoint or style their own officers. By the lex prerogativa, the Queen, by commissions and letters patent, appoints them. These crown servants serve her by serving their assigned house. Her Royal hand affiliates and attaches them by name, inseparably, to the house they are sworn to serve and attend, unalterable but by her. The exception is the Commons speaker, who is the only high office of state not appointed by the Queen, and there is a long history to that. He is its mouth, not its officer. The term "officers of Parliament" is not helpful, even to describe the total of both houses' officers. There is no united affiliation and no united or aggregate commission to Parliament. Our constitutional order is independence. The Queen's houses are masters of their proceedings, members and servants, officers. House officers, like members, are defined by their individual legal attachment and affiliation to their house. The Queen grants the force of law to house officers. Constituting house officers, like house membership, is deeply personal. She commissions individual human persons, not buildings, not animals, but human persons, by name as officers for each house. These royal grants, as grants in property, are theirs to hold, hence the words "holding office" and "officeholders." Tenure is the time of personal tenancy in the office. I repeat there is no legal aggregate attachment of officers to Parliament, no "officers of Parliament." It is slang.

Honourable senators, these parliamentary principles, settled in the seventeenth century in Britain, were received in Canada by the Constitution Act, 1867. That century, one of bitter contest over power, taxation, the public revenue, representation and members' free speech, brought the independence of Parliament, the houses, their members and their officers. The Commons House resisted the king`s absolute control by his numerous officeholders, placemen and servants, but it still needed officers with legal force, power only the king could give by royal grant since all executive power was, then as now, the king. Large constitutional questions were settled, and therein began the notion of the subjects' birthright and entailed inheritance of these inviolable rights, as the royal power, the rex, adapted to the common power of the subjects.

Honourable senators, I come to our houses' officers, their affiliations, their commissions and oaths to attend the houses. "Attend" is a key word. All senators must attend, appear, in the Senate. John George Bourinot, at page 100 of his 1916 Parliamentary Procedure and Practice, writes that for the throne speech, our Black Rod informs the Commons of His Excellency's pleasure that they ". . . do forthwith attend him in the Senate. . . ." Dissolution proclamations state at his page 104 that ". . . the senators and members of the House of Commons are discharged from their attendance . . ." Our Senate Clerk is sworn to "attend upon the Senate."

Honourable senators, our Senate Clerk, like past and present House of Lords Clerks, is styled the "Clerk of the Parliaments." Note the plural: "of the Parliaments," not "of Parliament." However, our Clerk swears the oath, not of the Lords Clerk, but of the ancient British Commons Clerk, then styled the "Under Clerk of the Parliaments." This is because our Constitution Act, section 18, defines our Senate and Commons privileges, immunities and powers as those of the British Commons House. This oath of the ancient British Commons Clerk, sworn by our Clerk, was adapted from the oath of the Lords Clerk, then styled "Clerk of the Parliaments." The phrase "to attend upon the Commons" was added to it. This Commons Clerk's office is found in early Journals.

Honourable senators, John Hatsell, Commons Clerk, in his 1781 Precedents of Proceeding in the House of Commons, Volume II, states, at page 168:

The office of Clerk of the House of Commons, or, as it is sometimes called, "Clerk of the Commons House of Parliament," or, perhaps still more properly, as it is stiled in the patent, "Under Clerk of the Parliaments, to attend upon the Commons," is an office granted by the King . . . by letters patent . . . Before the Clerk enters upon his office, he takes the following oath, kneeling . . . before the Lord Chancellor; which oath is administered by the Clerk of the Crown.

(Debate suspended.)

Debate Continued

Hon. Anne C. Cools:
Honourable senators, I had been saying that the Under Clerk took his oath before the Lord Chancellor on his knees.

This Under Clerk's oath reads, in part, at page 169 of Precedents of Proceeding in the House of Commons, Volume II:

Ye shall also well and truly serve his Highness, in the office of Under Clerk of his Parliaments, to attend upon the Commons of this realm of Great Britain, making true entries, remembrances, and journals of the things done and past in the same.

Hatsell prompts us to compare this oath to that of the `Clerk of his Parliaments' in the 1620 Journals of the House of Lords, at page 59. These oaths, the same in substance except for "to attend upon the Commons," show the emerging independence of the houses.

Honourable senators, in his 1966 book The Officers of the Commons 1363-1965, Philip Marsden, once a British Commons Speaker staff, wrote on the separation and origin of the two distinct houses and officers. He tells at page 29:

It fell to the Lord Chancellor to provide the earliest clerical assistance to the Commons, though the precise date of this innovation is not known — principally because we do not know exactly when the Commons were first recognised as a "House" with rights of its own as well as duties to the Crown . . . it was probably early in the fourteenth century that the Chancellor was ordered to provide "a clerk" for the service of the Lower House and it is almost certain that one or other of his own Clerks in Chancery was seconded to the . . . task. A "clerk" . . . was simply one who could read and write; a Clerk in Chancery possessed, in addition, legal training and qualifications.

. . . the original appointment (made by the Chancellor but on behalf of the Crown) was not made directly to the Commons; the new officer was designated as Under-Clerk of the Parliament . . .

The early Under Clerks were assistants to their superior, the Clerk of the Parliaments, and, like him, were Chancery Clerks.

Honourable senators, on September 16, 2009 our beloved Speaker Kinsella told us that a commission by letters patent under the Great Seal of Canada was granted to Gary O'Brien, then sworn as Clerk of the Senate, and Clerk of the Parliaments. His Commission at Senate Journals page 1229 reads:

KNOW YOU that, reposing special trust and confidence in your loyalty, integrity and ability, We, by and with the advice of Our Privy Council for Canada, did, on the ninth day of September in the year of Our Lord two thousand and nine and in the fifty-eighth year of Our Reign, constitute and appoint you, Gary William O'Brien, Clerk of the Senate and Clerk of the Parliaments.

TO HAVE, hold, exercise and enjoy the office of Clerk of the Senate and Clerk of the Parliaments unto you, Gary William O'Brien, with all the powers, rights, authority, privileges, profits, emoluments and advantages unto that office of right and by law appertaining during Our Pleasure for a term of seven years, effective the sixteenth day of September in the year of Our Lord two thousand and nine.

IN TESTIMONY WHEREOF, We have caused these Our Letters to be made Patent and the Great Seal of Canada to be hereunto affixed.

Honourable senators, I now read our Clerk's solemn oath sworn in this deeply personal rite of passage in his life, which has been a life of faithful service to this place. Journals at page 1230 reads:

Ye shall be true and faithful, and troth ye shall bear to our Sovereign Lady Queen Elizabeth the Second, by the Grace of God of the United Kingdom, Canada and her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith, and to Her Heirs and Successors; Ye shall nothing know, that shall be prejudicial to Her Highness, the Crown, Estate, and Dignity Royal, but that you shall resist it to your power, and with all speed ye shall advertise Her Excellency the Governor General thereof, or at least some of Her Council, in such wise as the same may come to Her Knowledge. Ye shall also well and truly serve Her Highness in the Office of Clerk of the Senate of Canada, to attend upon the Senate of Canada, making true entries and records of the things done and passed in the same. Ye shall keep secret all such matters as shall be treated in the said Senate, and not disclose the same before they shall be published, but to such as they ought to be disclosed unto; and generally Ye shall well and truly do and execute all things belonging to you to be done appertaining to the Office of Clerk of the said Senate. As God you help.

Honourable senators, our Clerk, the highest officer, is constituted to attend upon the Senate. He is a royal gift, affirming the Senate's independent and representative role in our federal constitutional order and its national finance. Enacted by Queen Victoria, this design — this order — reveals the mind of British North American and British statecraft and the genius of the BNA Act, 1867. That year, November 6, the day before our first Throne Speech, the first Senate Clerk, John Fennings Taylor the Elder, swore the same oath as Gary O'Brien. The Senate Speaker said that, by usage, the Senate Clerk, at Journals page 57:

. . . is required to take the oath of office before the Chancellor or the Honourable the Speaker of this House.

His oath reads partly:

Ye shall also well and truly serve Her Highness in the Office of Clerk of the Senate of Canada, to attend upon the Senate of Canada, making true entries and Records of the things done and passed in the same. . . . As God you help.

Honourable senators, the Senate Speaker also reported the first Black Rod's commission. It reads in part, at Journals page 56:

Know You, that having confidence in the loyalty, integrity and ability of you, the said René Kimber, We . . . by these Presents do nominate, constitute and appoint you to the office and place of Gentleman Usher of the Black Rod of the Senate . . . to perform the duties incumbent . . . of and attending upon the said Senate. . . .

Next day, after the Throne Speech, the Speaker reported commissions for three Masters in Chancery. They were Senate Clerk John Fennings Taylor the Elder, Robert LeMoine and Fennings Taylor. The Elder Taylor's commission, in Journals at page 61, reads partly:

Know Ye, that reposing especial trust and confidence in the fidelity, ability, and integrity of you . . . we . . . by these presents do nominate, constitute and appoint you, the said John Fennings Taylor, the Elder, to be Master in the Chancery of Our Dominion . . . to attend our Senate . . . and to do, perform, and execute all such acts . . . in Our Parliament as appertain to the said office, and as you shall be required and ordered to do in the said office of Master in the Chancery by us, or by the said Senate . . . sitting in Our Parliament. . . .

Honourable senators, vacant until 1884 and ended on May 26, 1926, the Senate Sergeant-at-Arms' commission, at page 76, Journals of the Senate, February 22, read:

Know You, that reposing trust and confidence in your loyalty, integrity and ability, We . . . by these presents Do nominate, constitute and appoint you the said Juchereau St. Denis LeMoine to be Sergeant-at-Arms of the Honourable the Senate. . . .

Honourable senators, en passant, I have not found the commission for the Clerk of the Crown in Chancery, Edouard Langevin, appointed July 13, 1867, who signed the commissions for the newly appointed senators. About this office, which ended in 1920, John George Bourinot, in his 1916 Parliamentary Procedure and Practice, said at page 189 that he:

. . . is appointed by the Crown to perform certain duties by its command in connection with elections, and also to attend in the upper house on the occasion of the exercise of certain royal prerogatives. . . .

And, at page 188, that he:

. . . is always present at the table of the House of Commons. . . .

Further, at Confederation, the British Commons Clerk was styled — this is en passant — "Under Clerk of the Parliaments to attend upon the Commons" as Erskine May was appointed in 1871. Unlike Senate unbroken custom, Bourinot says at page 167 that Canada has not used this style of British practice.

Honourable senators, our officers' commissions are specific to the Senate. In Canada's 41 parliaments assembled, the Senate has known no officer by commission styled "officer of parliament."

May I continue?

The Hon. the Speaker: Five minutes?

Hon. Senators: Agreed.

Senator Cools: I have been speeding it up trying to get through.

Our officer, the Senate Clerk, is not styled "officer of parliament." He is styled "Clerk of the Parliaments," and "attends upon" the "parliaments," right here in Parliament's house, the Senate. This is our constitutional order in its equipoise. The independence of Parliament is in its houses, members and officers. The lex prerogativa and the lex parliamenti meet in "proceedings in parliament." These, moved by members in their houses who are served therein by their house officers, are assigned and governed by this same constitutional order. There is one constitutional order in this land, carefully designed in the well-travelled journey of custom, practice and usage, received here in Canada, aboard Her Majesty's ship of state, the British North America Act 1867. This is the independence of her parliaments. Her Majesty the Queen is their absolute head and heart. She affiliates persons by name to her independent parliaments and to her independent houses, over which she stands on guard in her battleship, the HMCS lex prerogativa. This, honourable senators, is our fixed and entailed constitutional order. The question that we are asking this committee to look at is whether or not these office-holders' claims and demands for greater powers are within or outside of this constitutional order.

Thank you, honourable senators. Had I known that I would have had additional time, I would have moved more slowly, but I do want to impress upon us that this Senate was intended, in the British North America Act and in the minds of the British North Americans who created it, led by Sir John A. Macdonald, to be a strong and powerful house in the business of raising taxes and spending money. As I said some days back, this house was equipped with stronger powers than the House of Lords at the time of Confederation. Many are not aware of the important place that the Senate occupied in the Constitution design and in the Confederation debates, and even in bringing together all the legal variables to make the fruition possible.

Honourable senators, many do not know that the Queen's proclamation in 1867, which brought the BNA Act into force, lists and contains the names of the senators who were to be appointed, called to the Senate. It is fascinating. It shows that unlike members of the House of Commons who were to be elected later, the British North America Act, under Her Majesty's hand in that proclamation, left nothing to chance and listed every single individual senator by name.

So much of our past seems to be unwanted and ignored, and so many novel creations seem to be emerging daily that I find that not only have we lost the thread of the law, but we have even lost the lexicon and the language of the law.

Honourable senators, this has been my tiny little effort to bring some of this information forward and to try to crush it into very few minutes. It really is a matter of enormous complexity. As I said, it will be a huge intellectual and legal challenge, particularly as now these terms, "officers of Parliament" and "agents of Parliament," have acquired political currency. Much work will have to be done.

Once again, I thank Senator Tardif for supporting this initiative, and I thank Senator Comeau for his very thoughtful work and thoughtful efforts in bringing this before our attention. Thank you very much, honourable senators.

Hon. George J. Furey: Would the honourable senator take a question?

Senator Cools: Happily.

Senator Furey: To begin, I wish to thank Senator Cools for her erudite commentary. When we refer to the Clerk of the Senate as the Clerk of the Parliaments, we use the plural. Can you tell us why we do that? What Parliament other than the Parliament of Canada are we referring to with the plural?

Senator Cools: Honourable senators, when I began, I hastened to state that the term "Parliament" is used nowadays as a fixed, inert thing. If you read the old literature, you will read many references to the King about summoning a Parliament and to his Parliaments.

There have been 41 Parliaments since 1867. When our Clerk is constituted as the Clerk of the Parliaments, we know exactly what that means. It does not mean sitting in these houses day in and day out, year in and year out as now. Sessions were shorter.

Our Clerk's commission means that when Her Majesty calls her councils and her members into her Parliaments assembled in the upper house, our Clerk, assigned by her, not another person named by anybody else, will be the clerk of that meeting, that assembly. This is what that means. It does not mean that he, Gary O'Brien, was the clerk of the past 41 Parliaments. From the day he is constituted and appointed, which is a very personal thing, there is no doubt as to who is in charge of reporting and certifying things done. Her Majesty has named and defined that individual person to that task, that is what that means. I hope I explained that satisfactorily. It is an awfully difficult thing to explain.

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