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Speech in Senate Chamber: Motion to Recognize the Necessity of Fully Integrated Security throughout the Parliamentary Precinct and the Grounds of Parliament Hill and to Invite the RCMP to Lead Operational Security—Allotment of Time

Motion to Recognize the Necessity of Fully Integrated Security throughout the Parliamentary Precinct and the Grounds of Parliament Hill and to Invite the RCMP to Lead Operational Security—Allotment of Time—Motion Adopted

Hon. Yonah Martin (Deputy Leader of the Government), pursuant to notice of February 19, 2015, moved:

That, pursuant to rule 7-2, not more than a further six hours of debate be allocated for the consideration of motion No. 82 under "Government business", concerning security on Parliament Hill.

The Hon. the Speaker pro tempore: Honourable senators, before starting debate, let me note the special provisions governing Motion No. 86. First, the debate lasts a maximum of two and a half hours. Second, no amendments can be received. Neither the debate, nor the Senate, can adjourn until the motion is decided on. The leaders can each speak for 30 minutes and other senators for 10 minutes. Finally, if a standing vote is requested, the bells are for one hour unless there is a leave for shorter bells. The vote cannot be deferred.

On debate

. . .

Hon. Anne C. Cools: I have a little problem because I was not aware that we only had ten minutes, so I prepared my usual speech. Perhaps, colleagues, I will read as much of it as I can with my time and then I will use the rest on the next speech. That will preserve it.

Honourable senators, I rise to speak in opposition to Deputy Leader Senator Martin's motion of today, pursuant to Senate Rule 7-2. Her time allocation motion will limit and terminate debate on Senator Carignan's February 17 motion to unite Senate and House of Commons protective forces. Time allocation, and all closure motions, are unsatisfactory and displeasing. On principle, I assert that motions that unnecessarily abrogate and terminate Senate debate are undesirable, objectionable, and always liable to my opposition. Closure, in any and all of its forms, should be used rarely, in extreme cases, and only by necessity; never in debates that have barely begun. Never to be used on a whim, they must be moved only by ministers of the Crown, of whom there are none in this Senate. I repeat: Time allocation motions are supposed to be moved only by ministers of the Crown. There are none here.

Honourable senators, closure procedures need some explanation. Chapter 12 of Beauchesne's Parliamentary Rules and Forms, sixth edition, is so dedicated. Titled "Closure, The Previous Question, Time Limits on Speeches, and Time," its paragraph 519.(1) states, at page 159:

Closure is a method of procedure which brings debate to a conclusion and enables the House to secure a decision upon the subject under discussion. Closure was introduced as a rule to the Standing Orders in 1913.

Remember this book is about our Commons House. Paragraph 518 informs:

The closure rule in Standing Order 57 permits a Minister to move a motion intended to bring debate on any question to an end with the House deciding that question under consideration. The "previous question" may be moved by any Member, pursuant to Standing Order 61(1), to attempt to preclude the moving of amendments to the question then before the House. . . . When considering bills, a Minister, pursuant to Standing Order 78, may bring forward a motion to allocate specified amounts of time to various stages of a bill.

Honourable senators, as I said, there are no government members here, no ministers of the Crown in this place. Consequently, there are no personnel here who have the power to make an item a government measure, and government business. Only a minister credentialed and appointed by our sovereign can do this.

If adopted, Senator Martin's Rule 7-2, closure motion, will abrogate and limit to six hours, the scant debate on private member Senator Carignan's motion. He is a private member. On the Order Paper, this will be listed as an order of the day under the rubric "Government Motions." But it is clear and well-established law, that the closure procedure may only be used by ministers of the Crown, which Senators Carignan and Martin are not. As all of us, they are private members, who at best may be described as government supporters, but they are not members of her Majesty's government. This has created huge difficulties for the Senate. I wish the Prime Minister would resolve these difficulties, and recommend our worthy colleague Senator Carignan to the Governor General for ministerial appointment, thereby resolving this legal and constitutional grey zone in which the Senate has been compelled to function for the last many years. This is not good.

Honourable senators, our books of authorities agree that only government members, ministers of the Crown, may lead the two houses of parliament, and may move such measures. As I said, there is no such a member here. No senator here is a member of the cabinet and government. Senators Carignan and Martin, both good people, are not ministers. The result is that no senator here is authorized or credentialed by our sovereign to move such motions. The Senate is perpetually in a legal bind. Our Senate rules prescribe that the government has priority in and over Senate business. Senate Rule 4-13.(1) states:

Except as otherwise provided, Government Business shall have priority over all other business before the Senate.

I am probably the only person left here — I think Senator Tkachuk did as well — who voted on that rule in 1991.

This rule, on government business priority, was only adopted in 1991. Then, and for many decades before, our constitutional regime and practice presupposed, for sound constitutional and parliamentary reasons, the understanding that the Government Leader in the Senate must be a minister of the Crown.

Honourable senators, I shall review the conditions for ministers to access these closure motions. Josef Redlich wrote on this closure and its origins, begun in 1881 by then-British Prime Minister William Gladstone, to respond to an unprecedented and large Irish obstruction in the House of Commons on the Coercion Bill. I shall cite Mr. Redlich in his 1903 three volume work, The Procedure of the House of Commons. In Volume 1, Chapter 3, titled, "The Urgency Procedure and the Introduction of Closure 1881-1888," Mr. Redlich wrote, at page 164:

The resolution brought in by Mr. Gladstone with the object of preventing further Irish obstruction upon the Coercion bill is one of the most remarkable documents in English parliamentary history. Its contents may be characterised in one word. It proclaimed a parliamentary state of siege and introduced a dictatorship into the House of Commons. The new rule, called for shortness, the urgency rule, reads as follows:

That, if upon notice given a motion be made by a minister of the Crown that the state of public business is urgent, upon which motion such minister shall declare in his place that any bill, motion, or other question then before the House is urgent, and that it is of importance to the public interest that the same should be proceeded with without delay . . .

There are three prerequisites to the use of time allocation motions, none of which apply in these instances. I repeat: These three prerequisites for the proper use of closure procedures do not apply to Senator Carignan's measure. Closure may be moved only by a minister of the Crown, on a government measure or bill, and only for an urgent and pressing need, which is that of the public interest. The books of authorities agree on these three pre-conditions, particularly that of the minister of the Crown.

Honourable senators, Senator Carignan's measure cannot be assisted here by the closure and time allocation process of Rule 4-13.(1). This Rule gave government business priority over all Senate business, and was adopted in 1991 largely on the premise that the Senate government leader would always be a member of the government. I voted on all of that.

In short, a minister of the Crown would always be a member of the Senate. Senator Carignan, dear, good man that he is, is a private member in this place, not a minister. He has no power from Her Majesty to move a government measure in this place.

Alpheus Todd explains that the parliamentary reason for Crown ministers' membership in the two houses, which is their embodiment of the monarch, the sovereign's authority. The legislative role of the Queen, the sovereign in the two houses of parliament, is now executed by the membership of Crown ministers in parliament's two houses. In 1869's, On Parliamentary Government in England, Volume I, Mr. Todd wrote, at page 2:

It is the distinguishing feature of parliamentary government that it requires the powers belonging to the Crown to be exercised through ministers, who are held responsible for the manner in which they are used, who are expected to be members of the two Houses of Parliament, the proceedings of which they must be able generally to guide, and who are considered entitled to hold their offices only while they possess the confidence of Parliament, and more especially of the House of Commons.

That the Leader of the Government in the Senate must be a Crown minister is a distinguishing feature of parliamentary and responsible government. Mr. Todd, in Volume II of the same work, with the margin heading "Legislative Rights of the Crown," informs at page 316:

Since the establishment of parliamentary government, the Crown has ceased to exercise its undoubted prerogatives, as an essential part of the legislature, by the direct and personal intervention of the sovereign. Its legislative powers are now effectually put forth in both Houses, and especially in the House of Commons, by means of responsible ministers, who, availing, themselves of the influence which they possess as members of Parliament, serve as the mouthpiece and representatives therein of the monarchical element in our constitution. Contemporaneously with the introduction into our political system of the constitutional usage whereby the sovereign abstains from exercising direct and external authority over the Houses of Parliament, in matters of legislation, we find the modern machinery for the control of business in Parliament on behalf of the Crown coming into play.

Honourable senators, I come now to the vital fact that Senator Carignan's motion to unite the two parliament house's protective and defensive staffs needs a Royal Consent to be debated here by us. This Royal Consent may only be signified here by a Crown minister.

This absence of a minister in the Senate is a constant problem. The Royal Consent is required here to permit debate on anything that affects or touches Her Majesty's prerogatives, as the third constituent of parliament, and as its head.

The Governor General, as chief commander of all our land and sea forces, and as the power source for all peace officers, police forces, holds an important role in the defence of her parliament, and its environments. So does the Queen's and the Governor General's man, the Senate gentleman Usher of the Black Rod, an officeholder by letters patent, always well trained in the defence and protective arts.

Canada's whole defence and protection is contained in the ancient common law phrase, pacem domini regis, the peace of the lord king, now the peace of our sovereign lady, Queen Elizabeth II. Our sovereign queen is the head of Parliament, described as caput, principium, et finis, that is the head, the beginning and the end. We must be mindful that privileges, lex privilegia, are the words chosen to express the queen's prerogatives that are delegated to chosen officeholders, for example, judges' privileges. Our privileges are derived of the king's royal prerogative, the lex prerogativa. The Royal Consent, like the Royal Recommendation, is required before a minister can move his measure, but in this Senate, it must be signified by a minister.

Honourable senators, about the royal consent, Beauchesne's Rules & Forms of the House of Commons of Canada, 6th Edition, says, at paragraph 727.(1):

727.(1) The consent of the Crown is always necessary in matters involving the prerogatives of the Crown. . . . This consent may be given by a special message or by a verbal statement by a Minister,. . . . if the consent be withheld, the Speaker has no alternative open except to withdraw the measure.

On the prior signification of the royal consent and the royal recommendation, Alpheus Todd, in his already cited, Volume II, wrote at page 317:

Thenceforth, the rules of Parliament, which prohibit the introduction of a Bill to appropriate any portion of the public revenue, except at the recommendation of the crown, through a responsible minister, and which require the consent of the crown before either House can agree to a Bill affecting the royal prerogative — together with the admitted right of ministers, so long as they retain the confidence of the House of Commons, to regulate the course of public business — have secured the rights of the sovereign, as a constituent part of the legislative body, as unmistakably, if not more effectually than by the direct interposition of a personal veto. `The authority of the crown in England,' says Lord Derby, `does not depend upon the veto which her Majesty theoretically possesses to impose upon Acts of Parliament after they have passed, but upon the right and proper influence which she exercises over her ministers, and through them, over both branches of the legislature, which gives her the opportunity of exercising her judgment upon measures before they have been submitted to Parliament, not after they have received its assent.

The Hon. the Speaker pro tempore: Senator Cools, unfortunately your 10 minutes have run out.

Senator Cools: It would concern Senator Carignan very deeply.

The Hon. the Speaker pro tempore: The rules are clear in this case that there are only 10 minutes allocated.

Senator Cools: The whole motion is unfair.

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