Interventions in Committee
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View Scott Reid Profile
I will just read some notes I made, Mr. Chair.
We're in public now?
The Chair: Yes.
Mr. Scott Reid: Okay, thank you.
First of all, Mr. Chair, thank you for agreeing to set aside some time today for me to lay out concerns regarding the conduct of the epic month-long meeting of this committee that began on March 21 of this year and concluded on May 2.
On May 4, I indicated in a letter to you that it was my intention to raise the matter at the earliest possible convenient moment. Verbal interaction with members from all parties caused us to agree to set aside that discussion until this moment.
I'm grateful to all members of recognized parties for having accommodated me in this matter, and I'm particularly grateful to you, Mr. Chair, for the degree to which you've accommodated me in providing a forum in which to raise these concerns.
The concerns revolved around three specifics. The first concern is the manner in which, at the time of normal adjournment on March 21, you did not adjourn, citing the need for a consent from a majority of committee members. My second concern is the manner in which, on several subsequent occasions, you suspended the meeting for periods of up to two weeks at a time. The third concern is the manner in which you adjourned the final sitting of the meeting on May 2 without seeking the explicit consent of the committee.
In my own well-publicized remarks of May 2, I also raised another issue, which was whether or not you had adjourned the meeting after I had already sought to raise a point of order. With the permission of the committee, I will set that issue aside, as it is not strictly speaking closely linked to the narrower theme that unites the three points I raised a moment ago.
These three points are united by the fact that each of them involved an action or a series of actions that were not, in my view, prohibited by any standing order but contravened a norm or standard that has thus far been only articulated in the House of Commons Procedure and Practice, colloquially known as O'Brien and Bosc.
For me, the goal of today's intervention is to get on the record a further articulation of the problem that such actions could represent if they are repeated in the future here or elsewhere. My intention is, at a minimum, to ensure that the way in which adjournment and suspension were used during the meeting that started on March 21 is not seen as normalizing this way of doing things. In other words, I want to ensure that these actions are not seen as precedents that establish that any further meetings in the future conducted in this manner at this committee or at another committee are falling within the norms of generally accepted House of Commons behaviour.
At a maximum, I can imagine a situation in which the Standing Orders are amended in order to bring complete clarity to the manner in which committee adjournment and suspensions ought to take place. The remarks that follow lay out some guidelines that might prove useful to this committee, should it see fit to attempt to draft said amendments at a future time.
Let me now turn to the three specific matters I raised earlier. In so doing, I will merge the first and third items, both of which deal with the manner in which a committee meeting is appropriately adjourned. After dealing with this, I will turn to the issue of suspension.
At 1 p.m. on March 21, you declined to suspend the meeting at the appointed hour of adjournment. When I queried you as to your rationale, you stated that a chair may not suspend a meeting against the will of the majority of the members. A survey of the will of the committee, which was taken immediately thereafter, established that a majority did not wish to adjourn.
On May 2, the same meeting, which had at that point had been under way for over a month, was adjourned by you without attempting to determine whether or not members wanted to adjourn.
The Standing Orders do not explicitly rule out either of these two actions, but it is clear that they are incompatible with each other. In one case, adjournment was not acceptable, even after the scheduled hour of adjournment, without a careful canvass of the membership first being entertained. In the second instance, the exercise of establishing the will of the committee was deliberately avoided.
My view is that both of these actions were a violation of the spirit of our practices, although to be clear, neither instance was a violation of the Standing Orders nor of any clearly established and universally exercised practice of this House as codified in O'Brien and Bosc.
The closest thing we have to a defined practice is the following, and I quote from page 1087 of O'Brien and Bosc, 2009 edition:
A committee meeting is normally adjourned by the adoption of a motion to that effect. However, most meetings are adjourned more informally, when the Chair receives the implied consent of members to adjourn. The committee Chair cannot adjourn the meeting without the consent of a majority of the members, unless the Chair decides that a case of disorder or misconduct is so serious as to prevent the committee from continuing its work.
This is the same passage, Mr. Chair, that you cited in part at 1:05 p.m. on March 21 in explaining that, as you put it then, “In response to your question, the clerk informs me that the committee adjourns with the consent of the committee and, unless that's available, the committee doesn't adjourn.”
This is true, but I think it misses the point I stated then in words that I will use again today:
my interpretation of those words
these words from O'Brien and Bosc
unless I'm corrected, would be that the chair cannot in the midst of a meeting—say at 12:30 rather than at 1—say, “I'm adjourning the meeting”. He has to get consent. This committee has ended its meetings early on numerous occasions under your chairmanship. You've always seen whether there was consent to end the meeting, and then we adjourned at that time.
My understanding is that the purpose [of this passage from O'Brien and Bosc] is to prevent you from adjourning early. It's not to say that a meeting scheduled from 11 to 1 is actually an indefinite meeting....
Today I stand by my interpretation of that passage, specifically the first sentence I quoted from O'Brien and Bosc. Actively seeking the consent of members to end a meeting early is a recommended practice even if it is not actually required by the Standing Orders. The mirror image of that rule, actively seeking the consent of the members to continue a meeting beyond its scheduled time of adjournment, ought as well to be seen as a recommended practice.
Now let me cite practices used by another chair that I think serve as a good example. I always admired the practice of Joe Preston, your predecessor as chair of this committee. In the 41st Parliament he was in the habit of saying, before adjourning meetings whether ahead of schedule or at the scheduled hour, loudly so that all could hear, “Is there anything else for the good of the committee?” This provided an opportunity for anyone who needed to do so to raise any matter of business. If this was 1 p.m. this item of business would be pursued only if the membership expressed its willingness to continue on past the normal hour of adjournment. We never had to resort to a vote, at least, in my recollection.
But there were occasions when an individual would raise objections to continuing onwards past 1 p.m. and by general consent it was now appropriate for the chair to gavel the meeting to a close. I can remember, for example, on one occasion myself raising a verbal reminder to the committee that we could not in all propriety continue because the room was needed for the meeting of the subcommittee on international human rights of which I was the chair. I think Mr. Preston's practice was a good one and could profitably be followed explicitly. Doing so would not have prevented this committee from sitting beyond 1 p.m. on March 21, but the continued sitting would have been carried on following an explicit demonstration of that consent.
On May 2 the seeking of such consent would have made it clear that one member, myself, had an item of business that he wished to pursue. This item of business was a motion that could not have been approved by the committee without a majority vote anyway. So I'm at a loss to determine what good was achieved by peremptorily adjourning without first seeking consent on this motion.
Let me, therefore, recommend Mr. Preston's practice to yourself, Mr. Chair, as our minimalist response to the issue of adjournment. If at some future point the committee deems it appropriate to consider amending the Standing Orders to require that explicit majority consent be sought prior to adjournment as is required, for example, under Robert's Rules of Order, then I would be in favour of making that change to the Standing Orders. A change to the Standing Orders that requires explicit consent for any business other than the business of determining whether or not to delay the hour of adjournment would also find my favour.
Now let me turn to the question of the manner in which the March 21 meeting was repeatedly suspended. I have a list with me, Mr. Chair, of all of the suspensions that took place—it's three pages long—between March 21 and May 2. While I will not regale the committee with every suspension and its length, you can quickly see that they fall into two categories.
Starting on March 21 itself, we have a suspension at 4 p.m. for 50 minutes. Another one then takes place at 6:50 in the evening for three hours and 30 minutes. The meeting reconvenes and then is suspended again at 9:30 p.m. for one hour and 10 minutes. There is a further suspension for five minutes a bit later on.
Then at three in the morning on March 22, it's suspended for nine hours, the same calendar day but effectively a new day of sitting. People went home, went to bed, and came back. A suspension of four hours and 30 minutes occurred later on for votes and question period that day, and then a suspension of 12 hours and 15 minutes until the 23rd, an overnight suspension.
After this we see suspensions from the 23rd to the 24th, from the 24th to the 25th, from the 25th to April 3 to incorporate a break week, from April 3 to April 5, from April 5 to April 6, from April 6 to April 7, from April 7 to April 11, and then the big one—actually there are several in between, but I'll skip them—from April 13 to May 2. I think I am correct in saying that if there were a gold medal for long suspensions, this would have to win it. It was several weeks long and not what suspensions are intended for.
Turning back now to O'Brien and Bosc, they make it clear that suspensions are intended for brief, temporary interruptions. On page 1086 of House of Commons Procedure and Practice, they write the following:Meetings are suspended, for example, to change from public to in camera mode, or the reverse, to enable witnesses to be seated or to hear witnesses by video conference, to put an end to disorder, to resolve a problem with the simultaneous interpretation system, or to move from one item on the agenda to the next.
This is not an exhaustive list, but it's obvious that, in each case enumerated above, the intention is to keep matters that are of a purely administrative and non-parliamentary nature from becoming part of the formal record, remembering of course that parliamentary speech is different from normal speech. It is protected in a certain manner and needs to be treated respectfully.
O'Brien and Bosc concede—and again, I'm quoting—that “Suspensions may last a few seconds, or several hours, depending on the circumstances, and a meeting may be suspended more than once.” So there's nothing irregular in the fact that there are multiple suspensions here, but rather in their length.
The key point that O'Brien and Bosc are drawing to our attention is that “The committee Chair must clearly announce the suspension, so that transcription ceases until the meeting resumes.” The cessation of transcription, the ending of parliamentary speech is the whole point of suspensions.
The serial suspensions of the March 21 meeting do not fit this pattern. They were de facto adjournments that served an entirely different purpose. Without exploring that purpose, I will simply observe that O'Brien and Bosc cite an interesting example, which may serve as a bit of a guideline for us.
On May 28, 2003, the Standing Committee on Transport met late in the evening and then suspended, resuming its meeting the next day. The practice was protested, and on June 3, 2003, Speaker Milliken addressed the matter. He indicated that no Standing Order had been violated and therefore the entire proceedings of the committee were part of the parliamentary record, but that the practice of suspending from one day to the next was, quite literally, unprecedented; that is, there was no precedent for it.
He was anxious not to allow this meeting to set a precedent. He said, “Your Speaker is...somewhat troubled by the notion of an overnight suspension of proceedings.... I would not consider the unorthodox actions of the transport committee in this particular instance to be a precedent in committee practice.” This means that, as of the date of our epic meeting, this was an unprecedented action.
I agree with Speaker Milliken's ruling, and it's my view that the serial suspensions of our committee between March 21 and May 2 ought similarly to be regarded as having no weight as precedents.
Therefore, as a minimal response, I would be grateful to you if you would consider not using overnight suspensions in the future, and if the committee is willing, at some point in the future, I might suggest adding a change to the Standing Orders to eliminate the possibility of overnight suspensions.
That concludes my prepared remarks, Mr. Chair. I just want to say again that, in drawing these to the attention of the committee, I am not suggesting that I regard your overall chairmanship of this committee.... It was very flexible and open, in ways that are not really possible to raise in a proceeding of this sort because they are not breaches of our practices; they are actually creative additions to it. Those are admirable, and I want to indicate my respect for them. I similarly respect and admire the way members of all parties conducted themselves during that period. I know I'm not alone in feeling this way, because other members of this committee have suggested that the House leader, for example, might profit from reading some of the proceedings that took place during those long meetings and some of the thoughts that were captured there.
I'll stop at this point. Thank you very much.
View Scott Reid Profile
The answer was not in camera. The answer was a letter, was it not?
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For the good of the committee, is there anything else?
View Scott Reid Profile
Thank you.
Yes, it's something that got started by guys on your side, actually. Greg Fergus was the originator of this practice. It's an excellent practice, if I may say, and I encourage my colleagues of all—
An hon. member: Stripes?
Mr. Scott Reid: —partisan stripes, and also paisleys and whatever else, to do this.
View Scott Reid Profile
That's right.
Welcome, Minister. I'm glad to have you here.
First of all, I wonder if I could start by giving notice of a motion.
The motion is as follows:
That, in relation to its consideration of the proposed appointment of Charles Robert to be Clerk of the House of Commons, the Committee invite former Clerks of the House of Commons, Robert Marleau and Audrey O'Brien, to appear in order to gain a better understanding of the role, duties and responsibilities of the Clerk of the House of Commons.
Minister, if I could turn to the proposed appointment of Mr. Robert as the Clerk of the House, do you think it's reasonable that we should hear from these two former clerks prior to making this appointment?
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You'd have no objection to us having the two former clerks here prior to actually making a recommendation apropos of the proposed appointment of Mr. Robert.
View Scott Reid Profile
All right. Well, I hope we'll get consent from other members of the committee to bring in these two former clerks. That's actually a message for the rest of the committee members.
I'll be asking them for their consent on this point, but please go ahead, Minister.
View Scott Reid Profile
Thank you.
Perhaps, then, we could also make the request of the various House leaders. If they're willing to share the responses they gave to you, we can add those to the mix. That would be very reasonable. I can't really ask you to provide those to us, because of course those presumably were sent back to you confidentially, and that would be putting you in an awkward position. We'll make that request of the various House leaders.
I want to deal with something you said in your comments today in the theme you expressed. You said that, “Canadians elected a [Liberal] government with a mandate to strengthen Parliament”. That's a direct quote from you. I'm not in a position to dispute the accuracy of that, but I am in a position to say that when it comes to the appointment process, your government has been failing at this, and failing very badly.
The example of Madam Meilleur and the way in which consultation, which is legally required, was handled is the paradigm example here. It was after-the-fact consultation. It was actually advance notification, so before the House gets to find out, the leaders of the other parties get to learn what decision has been made, which is not the same thing as consultation. Consultation involves the ability to say no.
With regard to Charles Robert's proposed appointment, something very similar has occurred. He has been presented to us in the dying days of this Parliament. We have had a meeting foisted upon us so quickly—of course, as soon as you leave, he comes in and we meet with him—that we have had no opportunity to do proper research and to determine the right kind of background information that will be helpful. This has been an enormous frustration.
I told the chair that I did not give my consent to changing the agenda of the meeting to include Mr. Robert today. I asked for it to be set off until Tuesday. That was overridden, and I can't believe that was overridden at the sole discretion of the chair himself.
This is an enormous, enormous frustration for us. What I need to hear from you is that you will give us the time to have the hearings we need—I propose next Tuesday for the two clerks—so that we can then get back to you with a yes or a no as to the proposed nomination. Would that be acceptable to you?
View Scott Reid Profile
I didn't put the question quite the right way. Let me put it this way. You could give notice of motion to have his appointment through the House before you've had a favourable report back from this committee. Do you commit not to do that, not to override this committee?
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I'm not questioning the documentation you gave. I'm asking this specific question. You could introduce a motion in the House of Commons that bypasses the process here and simply causes a vote to occur without debate or amendment in the House of Commons before we rise for the summer.
View Scott Reid Profile
Will you do that without having had the prior consent of this committee to that nomination?
View Scott Reid Profile
Thank you.
Mr. Chair, because of the shortened time frame for questioning this witness, we are faced with the awkward situation that it's unlikely that a Conservative MP will have the floor again. There are seven minutes for each of the first two questioners, and seven minutes as well for the third from the New Democrats, and then five more minutes for the Liberals before it comes back to us. That takes us past 1:45 p.m., which is when we wrap up this piece of business.
This is relevant, Mr. Chair, and I know that as someone who knows the rules well, our witness, Mr. Robert, will understand the practical limitation that imposes on us. I am able to move the motion of which I gave notice earlier, without 48 hours' notice as long as it is dealing directly with business now under consideration. That's under our rules for this committee, which this committee adopted on January 26, 2016, that 48 hours' notice be required for any substantive motion to be considered by the committee, unless the substantive motion relates directly to business then under consideration.
So with that in mind, and because I have no other alternative, I apologize to our witness for the fact that instead of asking questions, I'm instead moving this motion. It's literally my only opportunity to do so since I must do so with the floor.
So I therefore move:
That, in relation to its consideration of the proposed appointment of Charles Robert to be Clerk of the House of Commons, the Committee invite former Clerks of the House of Commons, Robert Marleau and Audrey O'Brien, to appear in order to gain a better understanding of the role, duties and responsibilities of the Clerk of the House of Commons.
View Scott Reid Profile
Understood. I'll try to be as brief as I can.
The reason for moving this is we feel it's important to have a full discussion prior to making an appointment as important as this one. This is placed in the hands of this committee so that it can carry out full discussions, and the best way of doing this is to have former incumbents of this position, of which there are two at this point, giving testimony so that we can determine the appropriateness of the government's choice.
I did ask the minister earlier whether she thought this was acceptable to do. You heard her response, which sounded to me like she was saying there was no problem. We are our own masters. It's reasonable to do that. I did ask her if she was going to override us and simply introduce a motion in the House, as she is allowed to do, should we not have come to a conclusion. She was, frankly, not clear on that, but I had the impression she is willing to supersede us. She didn't say no, so I have to assume she meant that, yes, she is willing to do that.
At any rate, one of the things that means is while I think that would not be appropriate, the government does have that way of achieving its goal if it chooses. I wouldn't advise it, but it is a possibility, so this allows us to be better informed. It allows the House to be better informed when the decision comes for the House as a whole on this recommended appointment.
Thank you, Mr. Chair.
View Scott Reid Profile
Give us a second to figure out which of our two members here is voting.
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I know, but even though he's subbed in?
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