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Speech in Senate Chamber: Senator Martin's Motion No. 117, to end debate on Bill C-377, An Act to amend the Income Tax Act (requirements for labour organizations),

Bill to Amend—Disposition of Bill—Motion and Motion in Amendment—Vote Deferred

On the Order:

Resuming debate on the motion of the Honourable Senator Martin, seconded by the Honourable Senator Marshall:

That notwithstanding any provisions of the Rules or usual practice, immediately following the adoption of this motion:

1. the Speaker interrupt any proceedings in order to put all questions necessary to dispose of bill C-377, An Act to amend the Income Tax Act (requirements for labour organizations), without further debate, amendment or adjournment;

2. if a standing vote is requested in relation to any question necessary to dispose of bill under this order, the bells to call in the senators ring only once and for 15 minutes, without the further ringing of the bells in relation to any subsequent standing votes requested under this order;

3. no vote requested in relation to the disposition of the bill under this order be deferred;

4. no motion to adjourn the Senate or to take up any other item of business be received until the bill subject has been decided upon; and

5. the provisions of the Rules relating to the time of automatic adjournment of the Senate and the suspension of the sitting at 6 p.m. be suspended until all questions necessary to dispose of bill have been dealt with;

And on the motion in amendment of the Honourable Senator Cowan, seconded by the Honourable Senator Hubley, that this motion be not now adopted, but it be amended by replacing the words:

"immediately following the adoption of this motion"

with the words:

"following the adoption of this motion, but no earlier than October 20, 2015".

Senator Cools: Honourable senators, I rise to strenuously oppose Senator Martin's draconian Motion No. 117. This motion will abrogate and end debate on Bill C-377, An Act to amend the Income Tax Act (requirements for labour organizations). The government wants this bill urgently but will not give its reasons why. Deputy Leader of the Government Senator Martin has invoked large and harsh urgency powers available only to Crown ministers, of whom there are none in this place. These procedures are most unusual and are even irregular.

Last Friday, senators here divided on the government supporters' appeal of Speaker Senator Housakos' ruling on Opposition Leader Senator Cowan's point of order respecting Senator Martin's questionable Motion 117. I voted to sustain our Senate Speaker's ruling. The majority government supporters voted to defeat his ruling. They did and they won.

Honourable senators, the Senate Speaker is not the Senate's man, he is the Queen's man. Overruling and defeating him should rarely be done, and when done, should be founded only on clearly identified errors of fact and law in his ruling, but never because the government has a need.

I note that unlike the House of Commons Speaker, our Senate Speaker is not the mouth and voice of the Senate. The Commons Speaker is that house's man and also its voice and mouth. The Senate Speaker is the Queen's man in this upper, the royal and the federal house of Parliament. The nature and character of the office of the Senate Speaker is that of a vice regal. His authority and powers are derived solely from the monarch. The American constitution retains this sovereign fact. Their Senate Speaker is the Vice President of the United States of America. I note that our Gentleman Usher of the Black Rod, like the Senate Speaker, is also the Queen's man. He is the personal attendant and guardian of Her Majesty.

Honourable senators, the House of Commons Speaker is the voice and mouth of that house. Like that house, his powers and authority were born in the constitutional fact we call "representation by population" and its "no taxation without representation." Representation by population was achieved by the electoral franchise, also called "suffrage." By this franchise, our sovereign monarchs had granted a piece of their prerogative power to their subject citizens. By this, they acquired their individually held powers and rights to vote for the members of the House of Commons, the peoples' house, in representation by population.

Jowitt's Dictionary of English Law, Volume 1, defines "franchise" at page 831 as:

. . . a liberty or privilege. At common law, a franchise is a royal privilege or branch of the Crown's prerogative, subsisting in the hands of a subject, either by grant or by prescription.

Honourable senators, to defeat our Speaker's ruling is a matter of some gravity. I am not sure that many colleagues here really grasp the nature of the gravity. I think that it would be far better if our leaders would find resolutions without such harsh and extreme means to coerce the adoption of private member's Bill C-377, which amends the Income Tax Act. This is a tax act. We are forgetting that. This is a tax act, which means it brings in the whole business of representation by population. We are not that kind of house. Amendments to the Income Tax Act engage the Constitution Act, 1867, sections 53 and 54, and command adherence to the two foundational parliamentary principles. These are the financial initiatives of the Crown and no taxation without representation.

This means that tax measures must originate in the Commons House by motion of a Crown minister who is a member of the house, mainly the Revenue Minister, but Bill C-377, a tax measure, was not sponsored by a Crown minister in the Commons or here, but by private members in both houses.

This is most unusual for a tax bill. Bill C-377 seeks not to raise or collect taxes, nor to regulate tax collection. It seeks to regulate, and even to restrict, one specific class of people, being the labour unions or the labour organizations, one group only. It is a federal entry into regulating the unions. Undoubtedly, this will interfere with the collective bargaining process. Income tax is a federal matter, but collective bargaining is not.

Bill C-377 is quite transparent. It is a vehicle to bring collective bargaining, a provincial matter, into the federal government's regulatory reach. Not purview, reach. Someone has thought much about this. Discovering that they had only two statutory options, the Criminal Code or the Income Tax Act, they chose the Income Tax Act because it was more furtive.

Honourable senators, the House of Commons should be up in arms on this bill's misuse of its taxing power. Motion 117 is most severe. It is not good use of the supposed-to-be-rarely-used government powers in time allocation and urgency motions.

To senators here who may not know this, I will never vote "yes" on time allocation, especially one as harsh and draconian as this.

Honourable senators, Bill C-377 was adopted in the Commons, where it was presented and moved as a private member's bill. The same is true here, until only days ago when government supporters suddenly made this a government bill. They set out to render this private member's bill liable to time allocation, closure and urgency procedures that only a government Crown minister can move. Senator Martin is not a Crown minister. But the Senate has no government ministers. These inordinate actions are unparliamentary.

Our Senate Speaker upheld Senator Cowan's just concerns, but the government supporters here voted to overturn his ruling, which had upheld Senate Speaker Kinsella's ruling of October 30, 2013.

Honourable senators, I come now to the constitutional question known as the legislative rights of the Crown in the Houses of Parliament. Yes, Her Majesty and the Governor General have legislative rights in these two houses.

On October 17, 2013, Senator Cowan asked Senator Carignan, not a minister, questions about his ability to answer for the government in our Question Period. Senator Carignan answered that he was a member of the Privy Council, and had access to information.

The great Alpheus Todd explains Parliament's necessity for Crown ministers' presence and membership in its two houses. This is not something that any Prime Minister or senators can dismiss.

He tells why government leaders in the two houses must be Crown ministers. The reason is the monarch Crown's rights in legislation known as the legislative rights of the Crown.

In his 1869 work, On Parliamentary Government in England, Volume II, under the margin heading "Legislative Rights of the Crown," Todd explains the unique features of parliamentary responsible government. He wrote 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.

Let me read that again:

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. . . . 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.

Honourable senators, Mr. Todd is clear that the parliamentary reason for Crown ministers' membership in the two houses is the fact that Crown ministers embody and personify the sovereign monarch's authority. The sovereign monarch's legislative role is now executed by the membership of Crown ministers in Parliament's two houses.

In his op. cit. work, 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.

Colleagues, what I am trying to impress upon you is the gross parliamentary affront that these kinds of motions represent. I do not believe that many senators here fully grasp the significance and the gravity of this fact. This government has the habit of using these severe motions habitually. It is a bad habit. If senators were really aware of its wrongness, they might try to stop it. For years we had difficult situations in this Senate., We never used those kinds of motions. Now we use them far too often.

Honourable senators, the practice for years has been that the leaders of both houses must be members of cabinet. Our Senate rule 4-13(1), which gives government business priority over all Senate business, was created in 1991, expectant that Senate government leaders will continue to be cabinet ministers.

The many propositions in Senator Martin's Motion 117 terminate debate for reasons of urgency. This critical motion presupposes that the government will put the house into a dictatorship.

Chapter III headed "The Urgency Procedure and the Introduction of Closure (1881-1888)" of Josef Redlich's 1903 book, The Procedure of the House of Commons, Volume I, is on this matter, the urgency procedure.

About the famous 1880's closure motion by the Great Commoner, the Liberal, William Gladstone, Redlich tells, at page 164:

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, the Speaker shall forthwith put the question, no debate, amendment, or adjournment being allowed; . . .

This urgency rule has three requirements. These three are: that the measure is moved by a Crown minister, that the measure itself must be urgent, and that the measure must be of urgent importance to the public interest. Senator Martin's motion 117 meets none of these three criteria. That is a serious problem.

Mr. Gladstone laid out these principles in the face of the extreme and prolonged Irish obstruction. It was famous. He upheld freedom of speech in debate. Noting the prolonged obstruction, he described liberty of speech as "a precious inheritance of Parliament."

Mr. Gladstone noted that these rights should be exercised in the possibilities that must limit the condition and action of representative assemblies. With due respect, colleagues, this Senate has not seen any obstruction of any bill here for a long period, far less a prolonged one.

The frequency with which this government employs these extreme closure procedures is alarming, especially on this bill, which the responsible revenue minister ignored, and deferred his sponsorship to a private member.

It is very questionable. Nobody has answered that question. Nobody has asked it.

Honourable senators, we should know that, in this Gladstone instance, there was huge unanimity on what was happening then, because the obstruction had been so bad.

The Hon. the Speaker pro tempore: Do you need more time?

Senator Cools: Yes, I do, thank you.

All agreed that the government — this is very important — should not execute the dictatorship itself. Redlich tells us, at page 165:

The Government, then, had made their choice between the two alternatives; it was not to be the majority of the House, the Government party, but the Speaker who was to exercise the dictatorship that had become necessary.

Honourable senators, the U.K. house took a decision that this dictatorship in the House of Commons should not be conducted by the majority party themselves. They set a minimum of members, 300, who must be present in the house for such process. Redlich adds, at page 165:

During the time of parliamentary urgency the whole of the regular order of business was suspended, and in its place the Speaker was to lay down whatever rules he considered necessary for the speedy despatch of business.

As I said, the House of Commons Speaker is a different constitutional animal from the Senate Speaker. Their Speaker is their mouth and their voice. Ours is not.

Honourable senators, interestingly, here, Senator Martin's motion charges the Speaker and orders him to execute the dictatorship she has invoked by closure. Every item in Motion No. 117 is an order to our Speaker. This is the very same Senate Speaker whom the very same government supporters just overruled on the very same questions only three days ago. It is very interesting. This alone should be proof to most of us that something very wrong is going on here. That should be proof.

Our Senate Speaker can take hope, though. Gilbert Campion, a former Clerk of the House of Commons in the U.K., writes on the Speaker's right to refuse unjust closure motions. In his 1958 book An Introduction to the Procedure of the House of Commons, third edition, he informs, at page 186:

It lies in the discretion of the Chair to "refuse the closure if in his opinion the motion is an abuse of the rules of the House or an infringement of the rights of the minority." He is not obliged to assign any reason for his refusal.

This is confirmed by another great Englishman, Sir Reginald Palgrave, also a former Clerk of the U.K. House of Commons. In his famous 1933 book The Chairman's Handbook, he says:

A Chairman is bound to decline to put from the Chair a Motion or Amendment which is out of Order . . .

Colleagues, I would like to appeal to your senatorial side, to your sense of the high place in our community that we occupy — most of us do — and that we are supposed to occupy. I would like us to pay attention to the fact that the British system of governance has always been concerned with how we play the game. The British common law and our parliamentary system are always more attentive to the rules of the game and how we play the game than to who wins the game.

I suggest that perhaps at some point some of us should examine this whole business of the sudden closure motion and see if we cannot come up with some better and less painful, less draconian way to do business. Something is terribly wrong with all of this, and very out of order. Senator Martin's Motion 117 begins by dismissing every rule of the Senate, every single provision of every rule. That is unheard of. That is ungodly. Something is very wrong and out of order with her harsh closure motion. I urge colleagues to vote against it because, as a species of motion, it is very wrong.

Honourable senators, I have deliberately not gone on to the substance of the bill because this debate is on Motion 117, not on the substance of Bill C-377. I would ask senators this: These matters, the business of the process and how we do it, should be given a lot more attention. We should be studying it very deeply, because this motion is a terrible affront against the Senate, senators, and even the Senate Speaker.

Thank you.

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