Good morning. This is meeting number 20 of the Standing Committee of Procedure and House Affairs for the first session of the 42nd Parliament. This meeting is in public and is being televised.
In our first 15 minutes today, we'll continue our inquiry into the question of privilege related to the matter of premature disclosure of the contents of Bill . In the second hour, we will resume our study of initiatives towards a family-friendly House of Commons. The Clerk of the Ontario Legislative Assembly will appear by video conference.
What we're planning to do, because our time has been truncated, is to just have the opening statements by the Clerk and the Law Clerk.
You have lots of time, because we're not going to do the hour of questioning now. We'll postpone that to another time—so we don't infringe on anyone's privilege by not getting questions and start another case.
Voices: Oh, oh!
The Chair: We'd like to welcome again our regular visitor, Marc Bosc, the Acting Clerk of the House of Commons.
Thank you for making so much time for us on our study and for other reasons.
We also have Philippe Dufresne, Law Clerk and Parliamentary Counsel.
Hopefully you'll both have a few things to say to us.
Whoever wants to start could start.
Thank you, Mr. Chairman.
In fact, I have prepared remarks. We were both prepared to answer your questions, but we will obviously put that off to another time.
We're pleased to be here to follow up on the question of privilege that was referred to the committee on April 19, 2016.
Questions of privilege are important opportunities for the House to debate and define both individual and collective privileges and, if the case warrants, to consider how a specific breach of privilege may be avoided in future. In order to fully understand the role that the committee plays in this process, it may be helpful to review the procedures governing questions of privilege and, particularly, the difference between the role of the Speaker and role of the House and its committees in this regard.
As Speaker Regan clearly stated in his ruling of April 19, the role of the Speaker in relation to questions of privilege is a very defined and limited one.
The citation from page 141 of House of Commons Procedure and Practice, Second Edition, cited by the Speaker in his ruling bears repeating:
Great importance is attached to matters involving privilege. A Member wishing to raise a question of privilege in the House must first convince the Speaker that his or her concern is prima facie (on the first impression or at first glance) a question of privilege. The function of the Speaker is limited to deciding whether the matter is of such a character as to entitle the Member who has raised the question to move a motion, which will have priority over Orders of the Day; that is, in the Speaker's opinion, there is a prima facie question of privilege. If there is, the House must take the matter into immediate consideration. Ultimately, it is the House which decides whether a breach of privilege or a contempt has been committed.
In short, the role of the Speaker is limited to deciding whether, at first glance, the matter complained of merits priority treatment. It is then up to the House itself to decide on the matter. In most instances where the Speaker finds a prima facie case of privilege, the resulting motion debated in the House directs the Standing Committee on Procedure and House Affairs to consider the matter, where a more detailed examination of the circumstances surrounding the breach can be considered.
In many ways, a study on a question of privilege is analogous to any other study conducted by the committee. The Standing Orders permit the committee to send for the necessary persons, papers, and records, and, as “master of its own agenda”, the committee is free to organize its study as it wishes. The committee may choose to dedicate one or several meetings to the consideration of the matter, and may, but is not required to, report back to the House with its findings or recommendations.
On previous occasions where this standing committee has undertaken a study on a question of privilege, the committee has often invited the member who raised the question of privilege to appear as a witness. If other members are directly implicated or affected by a question of privilege, they are often also invited to appear to describe the effect of the breach on their work. When departments or ministries of the government may have relevant information to provide, the appropriate minister has appeared before the committee, accompanied by senior departmental officials.
In 2001, a similar question of privilege was referred to the Standing Committee on Procedure and House Affairs by the House after the Speaker ruled that the disclosure of details about a bill to the media before its introduction in the House constituted a prima facie question of privilege.
In conducting its study, the committee heard from the member who initially raised the question and ultimately moved the motion. The Minister of Justice, as well as senior officials from the Privy Council Office, also appeared.
In response to a previous question of privilege that same year on a similar topic, the government had already initiated an administrative review by a private company regarding the disclosure. Therefore, to aid in its study, the committee exercised its right to request documents and receive a copy of the report.
As a result, in terms of process, a summary of the committee's hearings, or any other documents or reports examined in the course of its study, then becomes the basis for a report should the committee wish to prepare one. The report may then be presented to the House, and a motion for concurrence in the report may eventually be moved, debated, and ultimately subject to a decision by the House. In the past, reports on questions of privilege have usually included the context surrounding the question of privilege and any concrete recommendations that the committee feels are helpful.
The committee may, but is not required to, recommend specific sanctions against a particular member of the House, a member of the public, or any other agency or group. As an example, the 40th report of the committee prepared in 2001, in relation to the case I described earlier, summarized its findings but did not recommend any sanctions. Ultimately, the committee concluded that it could not find that a contempt of the House had been committed or that the privileges of the House and its members had been breached.
If the House of Commons then proceeds to concur in the committee's report, either by unanimous consent or following the normal rules of debate for such matters, its contents are formally adopted by the House, and, where the recommendations or sanctions are specific, they become formal orders of the House requiring action or response.
As the committee considers how it would like to approach its study of this question of privilege, the House administration remains ready to provide the committee with the process support it requires.
We look forward to answering any questions you may have next time.
There's actually no legal journalistic privilege. That is a convention, and I have no doubt she'll honour that convention.
But it is very hard to believe, reading what's written here, that this was not meant as very much a deliberate strategy that came from the very top. About the information that was leaked, Mr. Chan asserted at a previous meeting that it was purely negative—that is, it only said what wasn't in the bill—but it said so in a very thorough and exhaustive manner.
I'm reading from the article, that says it's “a bill that will exclude those who only experience mental suffering, such as people with psychiatric conditions”. It goes on to say this:
The bill also won’t allow for advance consent, a request to end one’s life in the future, for those suffering with debilitating conditions such as dementia. In addition, there will be no exceptions for “mature minors” who have not yet reached 18 but wish to end their own lives.
These prompted, in the very same story in which this was leaked, a response from Kay Carter's daughter, and that set the tone for all initial discussion of the legislation—which was that such condemnation as occurred, such criticism as occurred, was entirely on the bill not going far enough.
So this was a brilliant exercise, I think a brilliant and very successful exercise, in misdirection of the public debate on what is the most important piece of legislation in the 42nd Parliament. That could not have occurred because some low-level staffer leaked it out. This was very much part of a strategy. My guess is that it came directly out of the Prime Minister's Office. I do not blame the Minister of Justice, per se, for this, although she may or may not have known what was going on.
This deserves a proper investigation. Speaking to the reporter seems a reasonable place to start.
Mr. Chair, I would like to deal with something that Mr. Christopherson didn't say but must be on his mind.
It is not my intention to put the reporter in the kind of position that has occurred in the past, where an assertion is made that if they fail to reveal their source, we're going to take some kind of...they're in contempt of Parliament or something like that. That's not my purpose. My purpose is to try to get more information about how this happened.
This is, I fear, the first of what might become a pattern if it's allowed to go on—that is, not the revelation of all information in the bill in advance but rather of select details that help frame the debate, so as to effectively mislead the public and redirect debate, through the selective release of information, to a body other than Parliament.
There's a reason why bills are introduced in Parliament first, and there's a reason why the entire bill is released, not just the bits the government wants to get out in order to set the stage so they can get the best publicity when dealing with a piece of legislation. That's without reference to the actual content of this bill. I'm trying to be agnostic as to what I think of the bill itself when I make this explanation.
My statement will be fairly brief. I'm not sure how much our experience here at the Ontario Legislative Assembly can help you.
In and around 2008, we had a committee that was having similar discussions to yours around how to improve work-life balance for MPPs. I will say I think it was clear through the deliberations of that committee that the job that you folks do is by its very nature not particularly family friendly. There are challenges that are different, depending on whether you're an in-town member, for example, or an out-of-town member, and whether you have families where your children are school-aged or younger than that.
I think it is quite a difficult subject to kind of come to terms with. I think what we found, too, was that there really isn't any kind of cookie-cutter approach that could be applied that would solve the problem for all members. Every member has a different situation. What we at the Legislative Assembly, in terms of the administration, have tried to do is to offer whatever assistance and service we can to try to improve that for members.
That being said, I will give you a little bit of commentary on what kinds of procedures we have in place and what kind of services are available to members in an attempt to try to improve work-life balance. I can start with the administrative or physical plant area that you're considering. I've looked at the questions you've provided me, and I can tell you that we have an employee assistance program at the Ontario Legislature. It's available to all employees and it's available to the members as well. That program will provide individuals with financial advisers, elder care resources, mental health counselling referrals, and in some instances child care referrals.
We are corporate members of an organization called Kids and Company. That organization provides child care options that can be tailored to suit specific needs. This is particularly beneficial to members, or would be particularly beneficial to members; it provides full-time and part-time child care. There is an emergency child care backup service. There's a nanny placement service. There is extended child care for hours outside the regular nine to five. There are some summer programs that are offered and, again, this organization also provides some elder care.
Having said that, it is a service that is available to all members and all staff. We have found, though, that there is very little uptake in that service. There is a day care that is in the Queen's Park complex. It is not in the legislative building; it's two buildings east of us. It is a day care that is privately run. The Legislative Assembly has no involvement in the operation of that day care, but it is available to members and staff.
In terms of the physical plant, we have over the last several years converted all of our washrooms to make them family friendly. They all, including the male washrooms, have change tables for babies. There are highchairs in the dining room. We have a quiet room that's really intended for meditation and religious rites. Then, in terms of the members' allowances, there is an allowance that is provided for family trips between their residence and Queen's Park.
I should probably add here that there is a very tolerant legislative staff who sometimes get pressed into service for short periods of time when a member might have his or her child in attendance and has to run to the House for a vote. We also provide lots of children's programs, March break programs, tour programs, and that kind of thing that members' children are certainly allowed to avail themselves of.
In terms of our procedure or our schedule, in 2008 the House hours were changed and the calendar was changed somewhat. Our calendar currently sees the House sitting from the Tuesday following Family Day, which is the third Tuesday in February, to the first Thursday in June, except this year where they've extended it to the second Thursday in June, then from the Monday after Labour Day in September to the second Thursday in December.
The sitting schedule was changed in 2008, so we currently sit four days a week, Monday through Thursday. On Monday we start at 10:30 in the morning going right into question period. The House meets until roughly noon. We come back then at 1 p.m. and sit through until 6 p.m. On Tuesday and Wednesday, the House commences at 9 o'clock in the morning. We sit until 10:15 a.m., break for a short 15 minutes, and come back for question period until roughly noon. Then the House reconvenes again at 3 p.m., again until 6 p.m. Thursday it is 9 a.m. until noon, and then 1 p.m. to 6 p.m. for private members' business.
The morning meetings that we now have replaced what was probably an average of two meetings in the evening every week, and that was the discussion about whether it was more family friendly to sit more regular hours. I will say that the reviews on that have been mixed. I think it's still the subject of debate. I think family-friendly hours mean something entirely different to an out-of-town member than to an in-town member.
On your list of things to talk about, you also had voting. Our voting is much like yours. It's either a voice vote or a recorded division. A recorded division always takes place immediately or it can be deferred by any whip of any party to the next sessional day, so we have a proceeding on each sessional day that is called deferred votes. Any votes held over from the previous day will be taken up at that point.
Members must be in the chamber to vote, and in committees the votes occur very similarly. They are immediate, although any member can ask for a 20-minute waiting period before the vote is taken.
In terms of technology, probably our experience hasn't been particularly great. We haven't leveraged technology to the fullest extent that we maybe could. We are currently working on a mobile strategy, which we hope will allow greater access to parliamentary documents from members' tablets and phones. Members currently do have access to the Assembly's network from home or from their constituency offices via VPN, and our broadcast and web streaming of House proceedings allows offsite monitoring of the business of the House.
Last, you also had some discussions about alternate debating chambers, and I'm assuming by that you mean the Federation Chamber in Australia and Westminster Hall in the U.K. I don't have much to add on that except we do not have an alternate debating chamber. It has been discussed from time to time in legislative committee, but so far the members haven't really settled on a particular usefulness of that idea.
That's all I have by way of presentation. I'm happy to answer questions.
Now, during this process, I spoke to a few staff members who had talked about question period being moved to earlier in the day. Many said that means their day starts early, but the end time did not change. They were actually working longer.
I see you smirking, so probably you have heard that too.
For families, I can see that for those with children, it would be very difficult to spend the morning with their child, even see them in the morning at all, if they're working as staff and have to be ready for question period right at around 10:30 or 11:00, I believe you said.
That's a good question.
Look, you have to be careful, I think, when you're thinking about hours, because as I say, what suits some members doesn't suit others, and there is an impact on staff as well.
What we did was that we effectively traded two evenings a week, which was the average that the House would sit during any sitting period, for three mornings a week, three two-hour periods, that are always.... We ended up in fact increasing the number of hours that the House actually sits.
You're right, it does create this situation where the staff in and around the chamber can't just arrive right at the time that the House is scheduled to sit. They have to be there ahead of time to make sure that they're prepared, that the microphones are all working and so on. So I think for the staff, it created some issues around scheduling for us—for Hansard staff, broadcast staff, some of the clerks. They might have previously been able to come in a bit later in the morning to compensate for the later night, but now we can't do that, so we've had to alter shifts.
With all of that said, though, one of the things I said to the committee, when they were considering that here, is that we will make the adjustment to make sure the House works. The more important thing is that the House works for the members.
Seven? We're nowhere near seven. My goodness.
Voices: Oh, oh!
Mr. David Christopherson: It reminds me of my mom's saying, which was, “Don't go away mad, just go away.”
Moving on, another issue that came up, Deb, was the number of points. You may recall that back in the day—I think you were deputy clerk at the time—we brought in the point system. We adopted the system that's here. We transported that to Queen's Park, and I understand it's working well. One of the issues that has come up—and it's one that stays with me, again, just from having been around so long—is the number of members who are maybe not bringing their family here as often as they would like because of the politics around the reporting mechanism.
Again, you will recall that back in the day we moved to the point system because there was an inherent unfairness in reporting dollar values. Howie Hampton, who had to come from Rainy River, spent a lot more money going to the capital than I did when I was an hour or so down the road from Toronto. We moved to that point system, but now what we're finding is that especially younger members—they're getting younger—with a number of kids are worried about the politics of that reporting mechanism.
The suggestion was made about whether there is some way we can modify the point system, not in any way to prevent the transparency that's there now, but so there isn't this standout number that one of my counterparts with three or four kids is going to generate. Denise is coming up in June, and I think it's the first time this year she's had a chance to come up, but that's one or two points over the course of the year. It hardly even gets noticed, but if I had three kids, that one trip alone.... Also, the younger your kids are, the more you want them to be with you to experience it.
Anyway, there are two points. One, do you have this issue? Has it come up at all since the point system has been in place at Queen's Park? Second, do you have any thoughts that come to your mind as to how that can be reported in a way that doesn't make it stand out for the member but the public still doesn't lose their right to transparency and accountability?
Well, get ready, because you're probably not quite caught up to the full disclosure pattern we're into, but if you're not there yet, it's coming. Take that with you.
By the way, it's so great to see you again. It really is. It has been a long time. I was Deputy Speaker for a year as part of the 13 years I was there, and I was a House leader, so we worked together very closely. It's great to see a long-time friend.
The last point would be, again, the presentations from staff talking about their kids and their participation, and how much it meant to them as a staff member to be able to bring their children here. We have gone in the opposite direction over the last while. Stoffer's no longer here to give us the all-party party, and “Hilloween” is gone, although there's some semblance of it. But it's not like it used to be.
It sounds like it's still going full steam ahead at Queen's Park. I wondered if you would either recap or elaborate on that for us.
For debate time, each caucus gets a one-hour lead-off on any piece of legislation; thereafter it's a 20-minute allotment of time. After seven hours of debate, it reduces to 10 minutes per member. Following every speech, there is then a 10-minute period for questions and comments.
As to the length of time for a typical bill, we see many bills now being time-allocated. In order to time-allocate a bill, the government has to have allowed for.... Second reading either has to have occurred, with the debate having collapsed naturally, or they have to allow for at least six and a half hours of debate at second reading before they can move a time allocation motion. Time allocation then requires a two-hour debate, and after that, whatever amount of time they've allocated to the further consideration of that bill is what we'll see.
I guess typically we would see.... I've seen bills, with unanimous consent, pass in the blink of an eye and others take months and months. If the government were pressed and wanted to get a bill through the House and committees, they could usually do it in about six days.
It's about a third, then, of what we have in the House of Commons. I was noting, looking at your typical calendar for a week, that the hours you sit on Monday to Thursday, I would say, are quite similar to the number of total hours we would sit Monday through Thursday here in the House of Commons. Of course, we have a Friday on which we sit as well.
It looks as though the main difference is that there would be one fewer question period by not having a Friday sitting. Also, you have about two and a half hours less time for private members' business in the Legislative Assembly there than we have. Of course, you have a third of the members, so proportionally that still probably gives you more per member by way of time for private members' business.
I can see the impact we would have here, if we were to approach this the way the Liberal government is hoping to do, which is to get rid of the Fridays; that's something they're seeking to do. I think the effect we would have would be to see less time for private members' business here. We would also see less time for question period, and therefore the opposition would lose those opportunities and so would individual members of the governing party. That's obviously a concern that I have.
I want to move to question period. Typically, your question period now is at 10:30 Monday through Thursday. When would it have been held prior to the changes that you made?
You know, it's always a fear. It's too bad. I'm going to be completely blunt here and say that I think this bashing of politicians and the work they do has become a popular sport. It's really unfortunate. I wish members would stand up for themselves. The hours are terrible. They spend lots of time away from their families, particularly out-of-town members.
And you're right that frequently, whenever there is a change, there is an attempt by those who are commenting on it to suggest that maybe the change is made in order to somehow give the members some undeserved benefit. What happened here in 2008, when they wanted to get rid of the night sittings, was that they felt they wouldn't be able to withstand the public criticism of having fewer hours in the legislative chamber, so the question was not so much about whether they needed that many hours in the legislative chamber, but about what would have the least negative reaction from the public. That's why they were keen to replace the evening sittings with morning sittings. We ended up, in fact, with more hours of House time in the week rather than fewer hours. I'm not sure in the end how that necessarily improved work-life balance.
You made a comment at the beginning of your question about resistance to change. I think that's largely true, especially in a parliament. However, I think it has to be considered change, and you have to think about what might be the unintended consequences.
A small example of that is what happened here in 2008. Initially they had every day, including Monday, start at 9 a.m. Those were the hours when the House first adopted them. The out-of-town members then argued that previously they might have been able to travel on Monday morning to get to Queen's Park on time. With a 9 o'clock start time, they were now having to leave their homes Sunday evening, in many cases missing Sunday dinner with their families in order to be here for 9 o'clock on Monday morning. There was an amendment made to the hours, so now on Monday we start at 10:30. It was a small compromise, but it was something the committee hadn't really considered when it made the recommendation to change the hours.