Good morning, everyone. I'd like to call the meeting to order.
First, I'd like to wish a very happy birthday to Ms. Normandin. This is probably not the way you imagined spending your birthday, but we're very happy to be in your presence today. We hope your day goes well.
Welcome to meeting 13 of the House of Commons Standing Committee on Procedure and House Affairs. Pursuant to the order of reference of Saturday, April 11, the committee is meeting to discuss the parliamentary duties in the context of the COVID-19 pandemic.
Before we start, I want to inform members that pursuant to the order of reference, the committee is meeting for two reasons. Number one is for the purpose of undertaking a study and receiving evidence concerning matters related to the conduct of parliamentary duties in the context of COVID-19. Number two is to prepare and present a report to the House of Commons by May 15 on the said study. The order of reference also stipulates that only motions needed to determine witnesses, and motions related to the adoption of the report, are in order.
Today's meeting is taking place by video conference. The proceedings will be made available via the House of Commons website. Just so you are aware, the webcast will always show the person speaking rather than the entirety of the committee as you see it on your Zoom screen right now. That is the online screen that people can stream and watch. It will just be focused on the speaker when they are speaking.
In order to facilitate the work of our interpreters and ensure an orderly meeting, I would like to outline a few rules. This is mainly for the benefit of the new witnesses we have before us today, although we know they are probably well versed in procedural rules like these and etiquette for these meetings.
Interpretation in this video conference will work very much like it does in a regular committee meeting. You have the choice, at the bottom of your screen, of floor, English or French. We have noticed that it is best, if possible, to remain speaking in one language and to select that language at the bottom of your screen. If you are going to switch from one language to another, please also pause in between and switch that language at the bottom of your screen. Remaining on floor language sometimes has caused some difficulties.
Before speaking, please wait until I recognize you by name. When you are ready to speak, you can either click on the microphone icon to activate your mike or hold down the space bar while you are speaking. When you release the space bar, your mike will mute itself, just like a walkie-talkie.
I would remind you that all comments by members and witnesses should be addressed through the chair. Should members need to request the floor outside the designated time for questions, they should activate their microphone and state that they have a point of order. If a member wishes to intervene on a point of order that has been raised by another member, the member should use the “raise hand” function. This will signal to the chair your interest to speak. In order to do so, you should click on “Participants” at the bottom of your screen. When the list pops up, please click the “raise hand” icon.
When speaking, please speak slowly and clearly. When you are not speaking, your mike should be on mute. The use of a headset is strongly encouraged.
Should any technical challenges arise—for example, in relation to interpretation or any problem with your audio—please advise me immediately. The technical team will work to resolve your problem. Please note that we may need to suspend during these times, as we want to ensure that all members can participate fully.
Before we get started, can you all click on your screen in the top right-hand corner and ensure that you are on gallery view? This view should enable you to see all participants in one view. It will ensure that participants can see one another.
During this meeting, we will follow the same rules that apply to opening statements and the questioning of witnesses during our regular meetings. As per the routine motions of the committee, each witness has up to 10 minutes for an opening statement, followed by the usual rounds of questions from members. Just as we usually would in a regular committee meeting, we will suspend in between panels in order to allow the first group of witnesses to depart and the next panel to join the meeting.
I'd like to welcome our witnesses here today.
We have with us Matthew Hamlyn, strategic director of the chamber business team from the House of Commons of the United Kingdom of Great Britain and Northern Ireland.
We also have with us Siwan Davies from the National Assembly for Wales and Ian McCowan from the Privy Council Office. From the Scottish Parliament, we have two witnesses: David McGill and Bill Ward.
Welcome to all of you.
We will start with you, Mr. Hamlyn, for your 10-minute opening statement, please.
That greatly suits me, as I don't have a prepared presentation, apart from what I've written in the last 15 minutes during the sound checks.
It might be helpful if I explain what I'm doing in this context and then talk the committee through, very briefly, what we've done in the last four weeks, which has probably been the biggest set of changes to how the House of Commons works in the last 700 years.
I was asked by the Clerk of the House, John Benger, to coordinate all the different work streams that are going on to deliver what we are loosely calling “virtual Parliament”. That's across the work of our select committees, the chamber coming on stream, electronic remote voting, and then beyond that the virtual legislation committees, which in our system are different from our policy-based select committees.
That's quite a lot of work. We've also had to liaise closely with our colleagues in the House of Lords, as we have a shared parliamentary digital service and a shared broadcasting service, which support both Houses. Those two teams have been under particular pressure in the last few weeks.
So, what happened? Just before our Easter recess, so late March, the House passed a motion allowing for select committees to meet virtually, that is, to allow participation by electronic means under the authority of the Speaker. The first virtual select committee took place two or three days after that. Appropriately enough it was the Health Select Committee, talking about the coronavirus with the health secretary.
Over the Easter recess, which was slightly longer than usual because of the pandemic, we had an increasing number of virtual select committee meetings. In parallel, the Speaker wrote to the Clerk of the House on March 31 asking him to ensure that by the time the House returned on April 21, we had arrangements in place to allow for remote participation in questions to ministers and for statements by ministers in the House on the basis that members could participate either physically or virtually, which is why we are calling this a hybrid model or hybrid proceedings.
We worked exceptionally fast to work out whether this was possible, what was possible, and then to deliver it. We also worked in parallel with the government, the Leader of the House and the party managers to ensure consensus with what we were proposing, and the Speaker played a very active role in doing that.
We had to agree to procedural motions that were required to enable all of this to happen, so on our first day back, April 21, by special agreement with the Speaker, we chucked out that day's business and just agreed to motions moved without notice to enable what we call hybrid scrutiny proceedings to take place the next day.
The next day, April 22, so still not very long ago—like last week I think it must be now—we had our first virtual question time and virtual Prime Minister's question time. We then immediately passed motions to extend this hybrid model further to other classes of business, including legislation. We also agreed in principle to electronic remote voting so members would not need to come to Westminster to vote. We have now had four of what we call our hybrid chamber days. We've had the second readings of three bills on three days this week.
One thing I'd like to mention at this point in particular is that we've done everything with incredible speed, and that has been a real challenge for the House service and digital service. We have risen to this challenge, I would say, magnificently, and the Speaker and everyone else have said the same thing.
We've learned very fast completely new ways of doing things, and this is supported by large numbers of staff working remotely from their front rooms and rooms like the ones we're sitting in now, but it has also required a lot of staff still to come to the Palace of Westminster. They work in the broadcasting studios in the chamber because we have physical participation, and to some extent in committee rooms. It still does mean we have a lot of colleagues who have to come and work in the building.
We've had to be very frank with members about what is deliverable, both due to technical capacity and due to the human resource capacity of how long you can keep people for setting up. We have seen how much time colleagues spent on the set-up for this committee meeting. We are having to do that for maybe 60 members at a time for a full day's proceedings, and that's quite a large staff undertaking.
The other thing we've done is adapt practices. We've dropped large classes of business from our agenda for now, and we have dropped, for technical reasons, a lot of the traditional ways we do business. There are no interventions in speeches. We have published lists of speakers so that everyone knows who is coming next, so that the broadcasters know whom to queue in, and so that we know who is speaking virtually or physically. We've set much longer deadlines for members wishing to participate in proceedings, because we need to do all the planning and make sure their connections work, and all the rest of it. That's made a very big change to the feel of how things work.
It is also weird, I have to say, sitting at the table of the House in a chamber built for 400 people with 20 members present, with the member speaking beaming data, and eight large screens suspended from the galleries. I'm now wearing headphones at the table of the House, as is the Speaker's secretary, so that we stay in touch with the broadcasting team, who are in a different building.
I can't underestimate how big the cultural, technical and political change has been. The things that I would say are essential are consensus among the parties about what's happening and an agreement on what is doable, an agreement among the political parties on how we extend and build going forward so that we can do more of this in the medium term, and also really strong and effective leadership of the staff involved, to ensure that we, as very senior managers and leaders in the organization, can have those frank conversations with members about what we can and can't do, but also to ensure that we support and motivate our staff to keep on delivering this more or less impossible stuff.
The next big challenge will be electronic remote voting. Literally, as I speak, we are doing the first live test with several hundred members of Parliament. Planning for that has been.... Well, it's been interesting, I would say.
I'm very happy to stop there and answer further questions.
Thank you very much, Madam Chair.
Good afternoon from Wales, where the Senedd has been continuing to meet virtually since we had the lockdown here in the U.K.
I'd like to talk briefly about how we've made changes. I'll structure my talking under four headings: the political will that was required to have the Senedd continue to meet during these times, the procedural ability to do so in terms of the changes that we made and those changes that we did not need to make, how we got it up and running, and how we will keep it up. A lot of the points that Matthew raised are also pertinent to our experiences here in Wales.
First, where there's a political will, there's a way. Our Llywydd or Speaker and the First Minister of Wales were determined that the Senedd would continue to meet during the COVID-19 emergency. They decided that we would suspend our planned Easter recess and that the Senedd would continue to meet. That was for two reasons.
The nature of the devolution settlement in Wales is such that, at times like these, the assembly in Wales and the legislatures in the U.K. had agreed that certain powers would be taken up to the United Kingdom level for coordination across the United Kingdom. That led to an unprecedented situation where the U.K. Parliament was legislating for Welsh ministers to have powers to make subordinate legislation that would not necessarily require the approval of the assembly. The First Minister and the Llywydd were very keen that the Senedd could continue to meet to look into how that was going to happen in operation.
There was cross-party support for a continuation, so no members objected to this on the grounds of public health. By political agreement there was a smaller, emergency Senedd, a smaller number of members to come together to meet to continue business. This was all premised on physical meeting prior to the lockdown in the United Kingdom.
We indeed had a meeting of the Senedd in a smaller form, and at that time we agreed to a raft of emergency standing orders to enable the continuity of the business of the Senedd going forward. They included new recall provisions where the Llywydd could recall the assembly—hitherto it had been the First Minister who could recall the assembly—and a reduced quorum. The quorum for 60 members usually is 10, and we reduced the quorum to four, enabling business continuity in an extreme scenario.
We also introduced weighted voting. Previously, there was no ability for any form of proxy voting, so we introduced the ability for block voting by groups of parties or individuals casting their own votes. We restricted public access to the building when it was open, and this enabled us to go online later on. We agreed to relax some of the requirements in the Standing Orders for questions to be taken on a weekly basis, and we had a provision for the functions of the legislation committee to be undertaken by the whole assembly, if that was necessary. Finally, we had provisions to elect a temporary presiding officer or a temporary chair of the proceedings in the event that the Speaker and the deputy were unavailable. Those provisions were agreed on, and that was all premised on physical meeting.
Post-lockdown, the business committee was keen that the Senedd continue to meet in virtual form, and there was no requirement for us to change our Standing Orders. The statute and Standing Orders here in Wales do not require any physical presence for meeting. There is no specification of a place of meeting, and there is no requirement for members to be present. Rather, they are required to participate, so we didn't need any additional provision for virtual meetings.
The only requirement we had that determined the practicality of certain mechanisms for virtual meeting was our statutory requirement to have bilingual proceedings, Welsh and English, which is similar to the situation you have for the need for translation. Therefore, we were able to continue to meet as a Senedd post-lockdown by turning to a virtual platform, and we used Zoom, as you are now.
We have had four meeting of the virtual Senedd. The first was on April 1. We were the first U.K. legislature to have virtual plenary proceedings. We have had four virtual meetings of the plenary, one per week, increasing the number of members who are participating. The first meeting was recorded. Subsequent meetings have been live. We've had voting online from the second meeting, and we had another vote yesterday by weighted voting. We've had various interesting procedural and other issues arise along the way, so we've been learning as we go along.
We've had virtual committees starting to meet from this week. We have had meetings of the health, education, economy and legislation committees. We're currently running a timetable of two committees on Tuesday, two on Thursday and the virtual plenary meetings on Wednesdays.
What enabled us to get it up and running, in addition to the lack of a procedural prohibition on meeting virtually, was the fact that we're a young institution. We're a small institution; we're unicameral. That means we're young, and our members and staff are used to working electronically in an electronic chamber. They're used to electronic committee meetings. We're small, and therefore, in contrast to Matthew's contribution, it's feasible for all members to participate, albeit, as you know, a bit of a challenge.
Because we're unicameral, all the staff work for the same organization. The ICT, broadcast and the clerks all work together, which I think has made it much quicker for us to be able to get up and running. I suppose it's just a can-do attitude. On a Friday, the business committee said they would like to meet virtually the next Wednesday, and we just made it happen. It was a bit of a challenge, but we got on with it. The challenges, I suppose, were mainly technical rather than political or procedural. There was a political will, and there was no procedural barrier, so it was just a question of making the technology work. We're using a licensed version of Zoom with the translation capability.
Going forward, I think the challenges for us, as for you and other legislatures, are ones of capacity. Once you have a system up and running, there's a demand to try to get all the business up and running again and, as Matthew just said, that's simply not feasible.
Also, as you will find, Chair, there are challenges around chairing virtual meetings, around providing advice to virtual meetings when clerks and advisers are not in the same space as members, and also around maintenance of order in a virtual plenary. There are upsides and downsides to that. Clearly, there is the concern behind all of this that the technology will fail, that Internet connections fail, that the proceedings are at the mercy of some external providers to some extent.
I think the final challenge is trying to do business as usual in an unusual way: how we can flexibly apply different practices and procedures in the new normal, and then, going forward, how we move back to business as usual when we've had our experience of working online, and whether that leads to an increased appetite for online delivery of assembly businesses going forward.
That's our experience here in Wales. I'm happy to answer any questions.
Thanks very much, Madam Chair.
Members of the committee, I never thought I'd get a chance to appear in front of a parliamentary committee from my dining room. There can be no doubt we're in some interesting times. That said, it's an honour to appear to try to sort through how best to approach the pandemic.
I've been asked to provide some remarks as part of a panel from some other jurisdictions, and I'm going to try to fit into that framework by focusing my remarks on three areas: first, how government business has adapted; second, how cabinet has adapted; and finally, how parliaments seem to be adapting, particularly ours.
In each of these areas, I'm going to try to draw on what we're seeing in provincial and international experiences. Clearly, different jurisdictions are adopting different approaches suited to their own particular context. That said, comparisons are always helpful, and I'll do my best to sketch out a few that may be of interest.
I should say at the outset that all jurisdictions have slightly different parliamentary traditions, and they're in slightly different positions combatting the virus. We're all trying to figure out how to find the best path forward and stay true to our democratic traditions. I should also say at the outset that, from a governance perspective, it seems clear that all levels of government in Canada have come together collaboratively to combat COVID-19.
Before I turn to Parliament, I have a couple of comments on government operations. They are going to have to be, of necessity, comments at a high level. The story of the pandemic is still being written, and governance energy is still focused on managing it. Once we get through the pandemic and the smoke clears a little bit, there will undoubtedly be a chance for the world to look at lessons learned from this extraordinary crisis. In that context, I note that in addition to this committee's examination of the ways and means of how the House can now meet virtually, there are now, after yesterday, seven House committees authorized to undertake reviews of the effectiveness of government measures to address the pandemic, and in like manner, the Senate has authorized both the finance and the social affairs committees to study the implementation of COVID-19 measures. The Senate is also going to have a special committee do a retrospective study in the fall.
Even at this early stage, it is already apparent from a public service perspective that the pandemic has forced an acceleration of some existing trends that we had in government operations. Nowhere is this more apparent than in the use of technology to work remotely. Literally overnight, work groups across government, like most of their private sector peers, have been required to work from home. This acceleration of existing trends is a huge, unplanned experiment in teleworking and video conferencing. Of course, it's too early to determine conclusively the emerging best practices from the experiment, but some early returns from it seem promising, with potential implications not just for continuity planning but more generally for how government goes about its business day to day.
As with a lot of the innovations that are taking place, we're going to have to do lessons learned reviews to see what practitioners feel are the lessons that can be pulled from the new technology. This might be particularly important in terms of organizations with a national footprint that need to be connected regionally but also, most importantly, with their citizens.
On government services, public service has needed to operate in new ways to match the urgency of the crisis in order to get desperately needed supports out the door. That is happening.
Governments throughout the world have been challenged to transform their practices in such areas as improving health care systems, delivering supports, speeding up procurement, engaging the public, securing borders and ramping up coronavirus testing. There are best practices emerging in all these areas. Some of the best practices will be Canadian, but it would be myopic if we limited our learning experience to our own borders, even if you add in the very good examples of excellent provincial and municipal innovation in Canada.
In the race to speedily identify best practices, the Organization for Economic Co-operation and Development is an important source of good ideas. As they did following the great recession of 2008, the OECD is assessing country practices in response to COVID-19 with a view to identifying best practices to inform government decision-making. They've already developed a country policy tracker, which charts the actions of more than 90 nation-states to combat COVID-19. In addition, they've developed 12 streams of work to assess country responses for issues such as resilient health care, inequalities and social challenges. This is a good example of the type of international experience and lessons learned exercises we're going to be following closely.
In regard to cabinet, approaches to conducting cabinet business have also been agile. Since the outset of the pandemic, including the need for the to self-isolate in March, cabinet operations have changed in a number of ways.
On March 4, the Prime Minister created the cabinet committee on the federal response to the coronavirus disease, or the COVID-19 committee. This committee is chaired, as you know, by the , and it has been very active. Their meeting rate has been higher than the norm for a cabinet committee, in keeping with the nature of the crisis we're facing. Another important feature from a governance perspective has been the government's extensive use of first ministers' meetings to ensure a close link and collaboration with the provinces, in addition to innumerable bilateral discussions. This helps ensure a national integrated response, as different orders of governments have managed to work very successfully together.
In terms of full cabinet operations, they've had to rely on technology, as have all other organizations in society, given both the realities of social distancing and the challenges that all of you face as parliamentarians from across the country.
For parliaments around the world, many of the same issues are arising. All jurisdictions are trying to think through the implications of COVID-19 for their operations.
I'm going to touch on four key issues in terms of what seemed to be commonalities across the board: reduced sitting times and frequency, implementing social distancing, passing emergency legislation, and the use of virtual meetings.
First, it's interesting to note that most legislatures in Canada and around the world responded to the onset of the COVID-19 crisis by adjourning or reducing hours, thereby adhering to the medical guidance. This includes all provincial legislatures that were in session at the time. For those provincial legislatures that were not in session when the virus hit, the Speaker made a determination to adjourn, as happened in P.E.I., where the Speaker cancelled the spring session. All provincial legislatures stand adjourned.
Another common feature of the federal, provincial and international response has been to consider emergency legislation. As you know, this happened at the federal level with the passing of Bill and Bill , and again this week with another bill. It also happened in Alberta, with the passing of Bill 10, the Public Health (Emergency Powers) Amendment Act. Passage of emergency legislation has occurred in other provinces. Ontario—
The passage of emergency legislation has happened, as I mentioned, right across the board provincially—in Ontario, New Brunswick, Saskatchewan—and internationally you're seeing it in New Zealand, Australia and the United Kingdom.
I'll give you a couple of points of comparison in other Westminster parliaments. On March 25, the New Zealand Parliament met with a reduced number of MPs. They received and debated a formal epidemic notice from Prime Minister Ardern, and at that time they passed some COVID response bills.
Australia's House of Representatives last met on April 8, with a reduced proportional number of representatives. The purpose of the sitting was to pass supply and some bills for COVID-19, and then, following the adoption of these measures, the House was adjourned at the call of the Speaker. The Australian Senate met later that day, passed the legislation, and then they, too, adjourned.
What you're seeing—and this won't be a surprise to committee members—is parliaments doing what they do well, which is, in times of crisis, trying to figure out how to adapt to and address matters of public urgency in a timely and effective way. It's a strong tradition in Westminster parliaments.
The public service has also tried to adapt in its interactions with parliamentarians. A good illustration is the daily call with parliamentarians that's led by the Public Health Agency. Since these calls started on March 16, they have become an important conduit for information.
I'll give you just a couple of quick metrics. There have been as many as 226 parliamentarians on that call, with an average attendance of about 141 each day, and there have been 91 MPs and senators who have asked questions. These questions have originated from representatives from every province and two territories. The public service effort to support the call has had about 18 departments and agencies involved.
For those working in the group focused on governance, it won't surprise you to learn that we're very interested in seeing what responses your committee comes up with in response to the motion the House adopted on April 11. The issues you're grappling with are being faced around the world, and the solutions you come up with, frankly, might be of interest to other jurisdictions.
I have just a couple more comments. In order to respond to social distancing, there have been sittings of legislatures with reduced proportional attendance and shortened sessions, often one-day sittings, to deal with emergency legislation. That seems to be the pattern. Legislatures at the provincial level that have adopted these practices include B.C., which met on March 23 to address the crisis and pass supply. Other provinces that have adopted sitting practices consistent with social distancing are New Brunswick, Newfoundland, Ontario and Quebec. Internationally, these practices are seen all over the place in England, France, Germany—the Westminster countries.
The continuation of committee business is another point that seems to be a commonality. Virtual meetings like the one we're having right now seem to be a very common feature of various legislatures. For example, it's the case in Quebec and it's the case in a number of international jurisdictions—Argentina, Spain, France, Luxembourg, the EU, New Zealand and the U.K.
Madam Chair, I think I'll leave it there in the interest of time. I apologize for the sound being wobbly, but I am happy to answer any questions, and I'll leave it at that point.
Yes, thank you, Chair, and I'll maybe ask Bill Ward to say a few words just at the end.
Thank you for the invitation to give evidence. I'm delighted to contribute to this discussion on behalf of the Scottish Parliament.
Bill Ward is our head of the broadcasting service, and his team has been completely instrumental in enabling us to support the Parliament in continuing to meet during this time. Bill will be able to answer questions of a technical nature that will be beyond me.
Just initially, by way of background so that you can understand the context in which we've been trying to meet these challenges, I will say that the Scottish Parliament, like the Welsh assembly, is a unicameral Parliament. We have 129 members. We currently have 19 committees, consisting of between five and 11 members. The Parliament normally meets in plenary session on Tuesday, Wednesday and Thursday afternoons, with committees meeting those mornings. Voting is normally done in plenary session by electronic means, using consoles on each member’s desk. In committees, voting is by show of hands.
In terms of decision-making, the Parliament’s “House Commission” is known as the Scottish Parliamentary Corporate Body, or SPCB. It's chaired by our speaker, the Presiding Officer, and has a representative of each of the five political parties that we have. On the business side, the business committee is called the “Parliamentary Bureau”, which is also chaired by the Presiding Officer and consists of the party whips. This is where the majority of the decisions and discussions have taken place about when and how and indeed whether the Parliament and its committees meet during this pandemic.
Turning to our response to the pandemic, public safety measures, including lockdown, were introduced on March 23 by the U.K. government and were adopted by the Scottish Government. As with other Parliaments and organizations, we already had business continuity plans, but we just never imagined that we would have to implement rules on the scale that we subsequently have.
Prior to full lockdown, we had taken some early actions, such as ceasing parliamentary events, tours and access to the public and so on. With lockdown in place, we took the decision to close the building to all but essential maintenance staff on non-sitting days. That included those members who use their parliamentary office as their constituency office. We gave early advice to members about how to go about closing their local offices and how to engage with their constituents remotely.
Turning to parliamentary proceedings, our strategy from the outset has been to continue to meet in some forum to hold the government to account. The Parliamentary Bureau shared our view that it was more important than ever that our democracy continue to function at this time.
On April 1, Parliament met physically to consider the methods of legislation that we've just been hearing about—in our case, the Coronavirus (Scotland) bill. This meant having to consider all stages of the legislation in a single day. Because this bill was considered in the chamber, we wanted to observe social distancing arrangements, so we reduced the number of seats available from 129 to 79, and we configured them in such a way that we met the social distancing requirements. A proportional share of those 79 seats was given to the parties.
That said, the Presiding Officer was still reluctant to go as far as barring any elected member beyond those who turned up to attend proceedings, so we also made arrangements for voting to take place in the vicinity of the chamber, and not just at the seats as normal. As it transpired, we didn't require those extra arrangements, because at no point did more than 79 members turn up.
I'm pleased to say the arrangements worked well and the bill was passed that same day. While we were meeting that day to pass that legislation, we also took the opportunity to elect an additional Deputy Presiding Officer in case any of our other three Presiding Officers couldn't undertake their duties, particularly because one of them was already self-isolating due to her age.
At the same time as we were continuing to stage physical proceedings with reduced members, we continued to work on how the Parliament could hold the government to account without physically meeting. Bill and his team worked around the clock to investigate different platforms and liaised with procedural colleagues on what might work for us. Our international relations office also undertook a considerable amount of work in identifying what other legislatures were doing.
The immediate result of that was that on April 9 we staged our first leaders' virtual question time, where party leaders had the opportunity to question the First Minister on the Scottish Government's response to the outbreak, all conducted on a video conferencing platform. The session involved a short opening statement from the First Minister on the latest developments, before opening to questions from the four opposition party leaders. We streamed it live on the Parliament's television service, and the BBC also carried it live. It was also covered in some form by several other broadcasters.
This was our first step, but we recognized that it was limited to party leaders, and other members should also have the opportunity to question the government, so we arranged two subsequent sessions the following week, consisting of leaders’ virtual question time as a first session and the members’ virtual question time as a second session, where up to 20 members had the chance to put questions to four different cabinet secretaries.
I think it's probably important to say that these first few virtual question times were informal meetings to allow members some access to ministers. Despite looking and sounding like formal parliamentary proceedings, we weren't governed by our Standing Orders and, therefore, they don't qualify as formal parliamentary proceedings. That said, an official report, our Hansard, produced transcripts of these virtual question times, and we published them on our website alongside other official reports or proceedings.
We have also now established a specific ad hoc committee to scrutinize the government's response, and that committee held its first virtual meeting on April 23, last week. This committee has been established to complement, rather than replace, the work of other committees, which are all keen to continue to meet.
As mentioned, our focus and efforts have been aimed at finding ways of ensuring that members can scrutinize the government within the bounds of formal proceedings. Standing Orders changes, now agreed to, enable formal committee proceedings to take place on a virtual platform and also enable formal virtual meetings of the Parliament. Unlike the Welsh assembly, our Standing Orders did restrict where the Parliament could meet, so we had to change our Standing Orders to allow the Parliament to meet either in its normal debating chamber or in a virtual debating chamber, and we did the same for our committees.
For voting, we've also changed references in the Standing Orders from “the electronic voting system” to “an electronic voting system”. That's a small but important change, because it allows us to adopt any system that can be used remotely. Similarly, for committees, we've changed the rules there to make sure that they can operate on any platform that we provide.
To bring you right up to date, on Tuesday of this week, the Parliament met again physically in the chamber. A number of points of order were raised by members about the lack of opportunities to ask questions and also about our plans for remote participation. We recognize these frustrations and, as a consequence, we're increasing the time allocated for questions to the First Minister next week. We're holding additional virtual sessions. We're looking to stage sessions that do allow all members to participate, not just those who are listed to ask a question. We're also expanding the number of virtual committee meetings to meet demand and are planning to test options for remote voting and remote participation in business at Holyrood, in other words the hybrid proceedings that have been mentioned earlier as well.
Looking ahead, like others, we still have a number of challenges before us. The main ones are how we scrutinize legislation, how we stage online debates and particularly how we vote. As others have said, that's the biggest challenge that we still have to resolve. I'll be really interested to hear how the tests that Matthew mentioned earlier go today.
Our Parliamentary Bureau, unlike the Welsh assembly, has rejected block voting quite firmly, and it's currently taking soundings from members on proxy voting. The response so far to that consultation has been mixed, with even many members who are in support of proxy voting qualifying that support by saying that they don't want party whips to have a role in exercising proxies. We have some way to go to get a system that can be agreed to by members, and that leaves us trying to identify and test a system of remote voting that is secure and allows votes to be conducted quickly and be properly recorded.
Madam Chair, I would now like to hand it over to Bill, who will very quickly say a few words about the technical approach we've taken. After that, Bill and I would be more than happy to take questions.
Thank you, Madam Chair and David.
Trying to broadcast colleagues from across the world has placed a huge demand on the staff. We have a small department of nine technicians, and we've had to bring ourselves up to speed very quickly to find ways to support members and look at their user issues, while also understanding technical issues, connectivity issues and equipment and how to resolve those problems with members.
Our strategy has been to start small, as quickly as we possibly can, using the experience we had at each meeting and then debrief. This has allowed us to scale up week by week. We decided not to use Zoom in consultation with assemblies in Europe. Instead we've used a combination of a virtual vision mixer platform called vMix and another similar video conferencing system called BlueJeans. I can talk more about them if you find it useful.
There are two principles we've worked on. One, wherever possible we have kept all operators out of the building and working at home, and all the virtual meetings are operated in this way. Two, we have a very small skeleton staff working in the building when we are actually on the premises.
The other service we felt was very important to keep running during this time is the British sign language service. All our key proceedings have been signed virtually. We've had a lot of feedback from the deaf audience, and we realize the importance of keeping them informed at this time.
That's all I will say for now, and I will take questions.
I suppose the main thing is that the plenary has continued to meet. I suppose we took it a different way around from many legislatures, where the business committee took a decision that it would continue the business of the plenary in preference to the committees. We allocated our resources towards virtual continuation of the business, where the first minister and ministers could be scrutinized and where we could continue to pass legislation.
The concern was that we didn't want to establish committees that didn't have the full functionality of the assembly itself. I suppose, because we're small, we were able to make it happen in a way that perhaps would be more of a challenge for larger legislatures.
We have retained the ability for all members to question the executive. That was the principal driver, as well as to just ensure that we could continue, where it was applicable, the legislative program of government. That was, of course, primarily COVID related. Also, it was to continue with the statutory requirements of the assembly, and to an extent, any time-critical business. We foresee in the coming period some matters that are not COVID related that we will need to get through. That was our priority, first, to ensure that could continue.
Second, committees, now, this week, have started. There was pressure placed on the business committee to reactivate, if you like, the committee business. Effectively, the pause we had would have reflected the Easter recess, in any case. We've tried to prioritize those committees that are scrutinizing the ministers responsible, primarily, for the COVID response and to enable stakeholders to come and assist the committees to undertake that scrutiny function.
In summary, what we kept going was the plenary and scrutiny in relation to COVID and legislative functions.
That's a very good question.
In Westminister, we have a government with a majority of 80, having had quite a long period of minority government. This has meant, obviously, that at the end of the day if the government wanted certain changes to procedure, it could get them. The government could table the relevant motion and force it through. That's not been the approach. There's been a lot of very thorough consultation between parties.
It is noticeable, to give a very live example, in the testing, which a colleague mentioned earlier, of our electronic remote voting. We've been doing that. We've been trying to reach out to members to ensure as many as possible take part. We've been collaborating very closely with the whips of all the main parties to ensure that happens. They've all been very happy to help. Obviously, it's in their interest, as whips, to make sure that members are able to vote.
I think that so far it's gone well. We may see difficulties as pressure builds, as I think Siwan mentioned earlier. As members want more and more business to be done, if we start saying we have a limited capacity, the opposition will say to the government it would like some opposition time rather than doing just government legislation. That's where we might start getting difficulties. We will be under pressure to make more time available in order to allow a wider range of business. We will do that when we know we have the capacity to do it.
So far, I haven't really seen that happening. There are very good relations, as far as I can see, between the Leader of the House, who's in charge of parliamentary business as a minister, and his shadow.
Welcome back, everyone. We're going to get started.
I just want to make sure at the beginning that everyone clicks at the top right-hand corner of their screen to ensure that they're on gallery view. This is the view in which you should be able to see all of the participants. For those of you who are just joining us, before speaking, please wait until I recognize you by name. When you are ready to speak, you can either click on the microphone icon to activate your mike, or hold down the space bar while you're speaking. When you release the space bar, your mike will mute itself. This is just like a walkie-talkie.
I remind you that all comments should be addressed through the chair. When speaking, please speak slowly and clearly. When you are not speaking, your mike should be on mute. The use of headsets is strongly encouraged.
I would now like to welcome our second panel of witnesses to today's committee hearing. We've very pleased to have Mr. Gordon Barnhart, former clerk of the Senate, and Mr. Joseph Maingot, former law clerk and parliamentary counsel. He's also the author of Parliamentary Privilege in Canada. We're sure to learn a lot from your experience. Third, we have Mr. Gary O'Brien, former clerk of the Senate.
Welcome to the committee. We'd like to start by hearing from Mr. Barnhart, please.
Mr. Barnhart, please unmute your mike and give your opening statement.
Thank you very much, Madam Chair and members of the committee. It is my pleasure to be here and to be able to share some ideas with you.
Also, I'm deeply honoured to be sharing the panel with Joe Maingot and Gary O'Brien, two long-time colleagues, so it feels just like home, even if I'm in Saskatchewan and everyone else is spread across Canada.
I want to thank you for the invitation to appear before your committee to discuss ways that members can fulfill their duties while the House is adjourned due to COVID-19. I have to declare a bias, though. First, as a former clerk of the Saskatchewan legislative assembly and then the Senate of Canada, I have 25 years of accumulated service; thus, I am a huge supporter of the Canadian parliamentary system.
As members of Parliament will know, you have various roles to fulfill: one, to represent your constituents; two, to review legislation; three, to express grievance before supply, in other words financial review; and finally, to hold the government accountable. These are no easy tasks when the House is sitting in the usual way, and that makes it even more difficult now. When you're able to meet in person, that encourages rigorous and healthy debate. With the physical distancing requirements due to COVID-19, that old normal doesn't apply now. I therefore strongly recommend that Parliament continue to meet, especially during abnormal times, and thus I want to explore with you some options that I think should be considered and that I think are being tested in some way.
First, over the last six weeks the House has met with a limited number of members to allow for physical distancing. I support this action and encourage the House to meet like this on a regular basis. The House with a limited number of members will lack the intensity of the debate, but I think that is better than having no meetings at all.
How often should the House meet? Well, that is a political decision. I know that by nature the government wants fewer meetings, and by nature the opposition tends to want more meetings. I will leave it with you as to how you find that compromise, but I think a compromise must be found so that Parliament will meet on a regular basis. In the interest of good governance, I think we need to find a way for Parliament to be able to meet on a regular basis. The drawback to the option of meeting with a limited number of people is that the members who are farther away from Ottawa are limited in their ability to attend.
I also think that an option of meeting by distance would be good. I'll use the word “Zoom” because that's what we're using here, but there could be many different ways of doing it. In Saskatchewan, through the Municipalities of Saskatchewan, we're having meetings of up to 400 people at a time. They are able to listen, to see the speaker, to offer comments and to ask questions.
The drawback to that is that it doesn't allow for freewheeling debate as you would have if you were meeting in person, but again, I make the argument that it's better than nothing at all. One of the advantages, I guess, of this system is that there's no heckling, but maybe that is a drawback as well. One of the possible drawbacks of meeting by distance is for those members who don't have Wi-Fi. Saskatchewan is a vast province with a small population, yet we are able to make virtual meetings happen. I'm encouraging you to make every effort to do that across Canada. Today I'm doing this presentation, by the way, without Wi-Fi. Thanks to a personal hotspot, I'm able to connect through my iPhone and see you here today.
Committee hearings, on the other hand, are well adapted to virtual meetings because of the smaller size. Thus, I would encourage Parliament to make greater use of committees. They can be connected through Zoom without much difficulty, and even though we miss that personal approach, I think that from now on a lot of the business could be done through committees virtually.
The question now is, with the House with the physical spacing and the virtual meetings—perhaps a combination would be the appropriate way to go—is the Constitution or the Standing Orders being violated? I would argue not.
It could be offered that, if Parliament is not able to meet, then the members are not able to fulfill their roles and the spirit of the Constitution is not being followed. With a virtual meeting of the House, for example, as long as a quorum is present at the House in person, that requirement to sit and to meet quorum would be met. Members attending electronically would be in addition to that quorum. Since all of the members can meet, and if all the members can meet under those two circumstances, then there needs to be an agreement. In terms of the minority Parliament, if there's going to be a division of a smaller number meeting in the House, if you had a confidence vote, you would have to make sure that the agreement is followed so that there is no defeat of a government.
If there was a defeat, if there was a breakdown of that agreement just because of the limited number meeting in the House, I would argue that the Governor General would take into account the circumstances in deciding whether another election would be called, if the government would be defeated or if they would carry on. I would argue, too, that any political party that is playing games with the numbers during a pandemic would face a negative outcry. Thus, I am sure that would not happen. If all the members were allowed to meet virtually, as well as those in the House, I think that would be the easiest way, because you would avoid that division of how many members could be there. The possibility of defeat of government would be much, much less.
Particularly in times of crisis, the public wants its Parliament to function well. I cannot see any constitutional or procedural reasons why a combination of those two options shouldn't be followed.
A possible objection to virtual meetings would be how a vote is counted. At present, as you know, a member must be present and standing in the House to declare their vote. I know that voting can happen by virtual meetings. A vote can have a great significance in the House. “Stand and be counted” is a common phrase, but during these unusual times you may not have that show of public support. You have to be able to vote, and that electronic system will show that it has been valid. The electronic system will show how many people have voted and how they have voted. I think that is well within the rules.
Neither of the above options is as effective and as attractive as meeting in person, but, for now, these options are better than no parliamentary sitting at all. Once the pandemic has passed, Parliament must return to its former method of meeting. The Canadian parliamentary system has existed since before Confederation, through world wars and economic depressions. It must find a way to function during this pandemic.
Thank you very much, Madam Chair.
Thank you, Madam Chair.
I'm going to deal with the question of immunity that's involved in the proceedings of the House and of the committee. I'll give you a brief history and then try to come down to the present.
Parliamentary privilege is a branch of the law of Parliament. It's an elusive subject, and it has a long history, as long as Parliament's. Canada's parliamentary privileges are based on those of Westminister. During the days of the High Court of Parliament in England, the concern was to get the member to Parliament. He had the privilege of protection for actions against his person in the beginning. He did not have to worry about what the public would say about his words or actions in Parliament, because the public was not privy to Parliament or its proceedings, but the king was, through his mouthpiece, the Speaker. Consequently, the next step was to be protected from the king for words and actions in Parliament. That was eventually resolved by article 9 of the Bill of Rights, in 1689, which says more or less that whatever is said in Parliament or in a proceeding may not be questioned in any place outside of Parliament. That arose from the time of the late 1640s, when Charles I lost his head.
Article 9 of the Bill of Rights provided freedom of speech to the member and protection from third party liability for what he said or did in a parliamentary proceeding. Although the member could publish for his own use, members were prohibited by House resolutions of the time from repeating outside Parliament what they or others had said or done in Parliament. A member repeated what he did and said in the House outside of the House of Commons at his legal peril. Any publishing of his own, such as householder mailings, was not protected.
While parliamentary privilege protected the member in Parliament, it was the common law that protected the use of Hansard. A faithful report in a public newspaper of a debate containing disparaging matter to the character of an individual that had been spoken in the course of a debate was quite proper. It is privilege on the same principle as an accurate report of proceedings in a court of justice. That is, the advantage of publicity to the community at large outweighs any private injury resulting from the publication. Defamatory matter contained in a report tabled in the House, but otherwise forming no part of the proceedings of Parliament that were printed, was not protected.
That item was because of the famous case in 1839 in Stockdale v. Hansard, which every parliamentary clerk and officer would be aware of. Now, of course, such a report, tabled in the House and published by an order of the House, would be protected by the Parliament of Canada Act.
When the proceedings of Parliament were broadcast, it was provided the persons producing radio and television were employees of Parliament and they produced an electronic Hansard: that is, an audiovisual report of the House without embellishment or editorial. The sittings of committees of the House are also now broadcast. As in the case of the printed Hansard, the electronic Hansard now provided in the House of Commons is a verbatim report of what has transpired audibly and, in the case of television, visually. The debates, whether broadcast or not, nevertheless are still part of debates in Parliament, per article 9 of the Bill of Rights, 1689.
In a study of the privileges of members of the Parliament in Britain, the Select Committee on Broadcasting, in 1966, said that a member of Parliament whose speech is broadcast would continue to be protected by absolute privilege in respect of what she or he said in debate in the House. The member is, in law, speaking on an occasion of absolute privilege, and the means of publication is irrelevant.
Parliamentary privilege is the necessary immunity that the law provides for members to do their legislative work, including the assembly's work in holding the government to account. It is also the necessary immunity that the law provides for anyone taking part in a proceeding in Parliament.
To the question “necessary in relation to what?”, therefore, the answer is necessary to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly’s work in holding the government to account for the conduct of the country’s business.
In addition, it is the right, power and authority of each House of Parliament to perform its constitutional functions.
The Supreme Court of Canada pointed out that in the U.K., privileges of Parliament are rights “absolutely necessary for the due execution of its power”, and that “Canadian legislative bodies properly claim as inherent privileges those rights which are necessary to their capacity to function as legislative bodies. There is no dispute in the case law that necessity is the test.”
The sittings of the House of Commons itself and the sittings of a committee of Parliament are constitutionally inherent. Their exercise is not subject to a judicial review and constitutes one of the internal proceedings, and all who participate in them are protected. So anyone participating in a committee of the House or in the House is protected.
The Supreme Court of Canada confirmed that the courts defer to the internal proceedings of legislative bodies, affirmed that the House of Parliament is “the sole judge of the lawfulness of its proceedings” and that this is “fully established” in the United Kingdom, while also approving that “[i]n settling or departing from its own procedure, the House can 'practically change or practically supersede the law'”.
The dictionary definition of “virtual” says, “having the essence or effect but not the appearance or form of”. As in the case of the House of Commons, a virtual sitting of a committee of the House constitutes a sitting and part of the internal proceedings of the House. Parliamentary privilege prevails, in line with the principle that prevails in a proceeding of a virtual court of justice.
Thank you very much, Madam Chair, for your invitation to appear. I seem to have an unstable Internet connection, so I hope I can get through this without any problem.
I would like to discuss some of the procedural issues relating to the implementation of a platform for full virtual sittings.
As I understand it, the proposal for virtual sittings is being offered as a temporary solution to balance parliamentary duties with caution over the COVID-19 pandemic. Although the intention is to make such sittings temporary, I think nonetheless that it would be helpful for the committee to have a detailed analysis or, even better, an audit of how these new technologies may impact the various procedures of the House and, more importantly, the consequences flowing from those changes. This way your committee would have a big picture of what is at stake.
The testimony you have received to date from Speakers, former speakers, clerks and law clerks is invaluable, but perhaps a comprehensive study undertaken by your table research team with the participation of members of the House will allow you to better assess what changes will have minimal impact versus those that may come close to altering the chamber's fundamental procedural characteristics. Such an analysis may assist you in recommending the kinds of hybrid processes or first steps in going forward to implement a virtual sittings platform.
Studying proposed revisions to standing orders during a crisis without having the time to understand which amendments may transform the chamber's essential characteristics is never the best practice for policy-making. I acknowledge that your institution may be under important peer pressure at the moment, as other legislatures around the world are moving to virtual operations in response to the challenges posed by the pandemic, but given the hand you are dealt, at the very least it may be helpful to identify which procedures may be most affected and which are not, if a virtual platform is to be adopted.
I fully agree with the testimony given by the former acting clerk a few days ago that it may be more efficient to build on existing practices. Please keep in mind that other legislatures are also exploring alternatives to physical meetings, but within the constitutional, statutory and rules-based constraints of their legislative processes.
Clearly, some procedures allow for certain parts of the chamber's business to be taken virtually. At Westminster, the House of Commons has agreed that remote technology can be used for key items in business, such as questions, urgent questions and ministerial statements. The Samara Centre for Democracy, in its brief to your committee, has identified take-note debates, during which members give their views on a topic but do not take binding votes, as a procedure appropriate for a virtual Parliament.
However, in my own assessment, the ultimate goal of allowing Parliament to operate as virtually as possible without a continued physical presence in Ottawa appears to go beyond changing just the work ways of the House. The introduction of technologies permitting members to absent themselves from the institution, allowing them to attend via video link, seems a much more fundamental change, and I would like to identify three procedures that may undergo significant alteration.
My first fundamental concern is with the rule of attendance.
The marginal note of Standing Order 15 states that attendance is required. I am confident that advice can be given so that the wording of the rule can be amended to procedurally allow for the use of virtual platforms. Setting aside the legal argument, a question must be raised about whether the intention of the rule would be fundamentally altered.
In the research I prepared for my doctorate on parliamentary practice in pre-Confederation Canada, I came upon an entry, for September 16, 1842, from the Legislative Assembly of the united Province of Canada. The House used to fix a day for the call of the House, requiring that all members attend. If any members were absent, the Speaker sent them a letter, as he did this day, saying, “The House, in directing me to give you notice, is actuated by the greatest unwillingness to believe that such unexplained absence would have arisen from any such neglect or indifference as would render an Honourable Member liable to the censure of the House”.
From the beginning of legislative practice in Canada, the first duty of any member of Parliament was to attend sittings and, for many decades, failure to do so without a valid reason brought censure from their colleagues.
Standing Order 15 has been a permanent rule of the House since 1867. Notwithstanding the many demands and obstacles that members of Parliament have always had to face, the principle that the physical attendance of members is required for the House to fulfill its constitutional duties has been a constant theme as to how the legislature should operate. This may now change. What the consequences are should be explored.
My second concern is with counting a quorum. O'Brien and Bosc, second edition, states the following with regard to quorum: “Under the Constitution Act, 1867, a quorum of 20 Members, including the Speaker, is required 'to constitute a meeting of the House for the exercise of its powers'.... In this regard, the Deputy Speaker [said]:
...the Speaker is not in a position to tell members from either side of the House who should be in his or her place or how many members should be available for any debate [in counting a quorum].”
In accordance with this citation, a member, to be counted for quorum, must be physically in his or her place. If a virtual platform is implemented for legislative sittings, a different process would have to be established. Please keep in mind that the standing order on quorum is also a constitutional provision and is part of the Constitution Act, 1867.
Historically, before the Act of Union of 1840, which united Ontario and Quebec to become the united Province of Canada, the issue of quorum was of great controversy. There had often been heated discussion and uncertainty in the assemblies of Upper and Lower Canada as to what an appropriate quorum should be, given the pioneer conditions of the country and the linguistic and religious divisions within society. The rules of both assemblies were amended many times in this respect. By making it a statutory regulation and including it in the constitution of the province, it was hoped that the controversies over quorum would cease.
Finally, I'm concerned with proposals permitting electronic voting. Measures that allow for the use of electronic voting to the exclusion of other components of conducting a legislative debate in Parliament misunderstand the nature of parliamentary procedure. Voting is a crucial stage, but it is only one of two others that go into the making of the decision on a bill, and all three stages are linked. The other two stages are the proposing of a motion and then its debate.
In theory, as per the rules of the House, all members are to attend the sitting so that they know about the motion through the reading of the Order Paper—for example, the introduction of bills—and to think about it for two days in order to prepare their thoughts and then to commence its debate. Some classical political theorists believe that legislative debate is the most important constitutional principle there can possibly be and is the basis for democracy.
Parliaments are steeped in tradition, because those traditions are meaningful. Allowing for only electronic voting may belittle other aspects of making a legislative decision and may not respect the important principle of parliamentary procedure.
In conclusion, as I have mentioned, I believe a detailed analysis or audit of how these new technologies may impact various House procedures could be of assistance to you. In addition to those subjects I've discussed, the audit could include the rules of order and debate, how the Speaker will recognize those who wish to participate in debate, what a virtual Parliament would actually look like in the assignment of seats, how to appropriately acknowledge national and international tragedies, and the procedure for royal assent. A full analysis will obviously be a longer-term project, but one that your committee may want to pursue.
Thank you very much.
Thank you, Madam Chair.
Mr. Barnhart, Mr. O'Brien and Mr. Maingot, thank you so much for being here. I found your insight really valuable.
I want to pick up on the theme of Parliament within a pandemic. The challenge that we have is that this is, presumably, a temporary measure. There's very little in the way of government business that is being done. Most of it is in response to the pandemic.
As it relates to what we're dealing with now, it's a temporary version, and then, as Ms. Blaney said—and this is really the direction I want to go—it's about flipping the switch, if you will. We have to look at this as temporary, given the situation we're in now, and what trigger points would occur in the future. I want to get your perspective on both of those.
I have one question, Mr. O'Brien, that I want to ask you. If you could make it quick, both of you, I would appreciate that.
What would be those trigger points, in your opinion?
Before we end, I just want to bring up a couple of housekeeping items. I mentioned them briefly yesterday as well, just to flag them for you.
First, Mr. Richards, we have invited the International Association of Conference Interpreters and the Canadian Association of Professional Employees for the first panel of the May 4 meeting. On the second panel, we will be having the Speaker, the Clerk of the House and the various administrative witnesses we have agreed on. Because we have only two witnesses for the first panel, I and the clerk thought it best to have them in for an hour, and then leave two hours for the Speaker and the Clerk, because they are vital and essential to our getting our report done at the very end. I'm sure there are many questions we have for them from what we've learned.
After that, I want to remind all of you that we're really going to require the committee to be efficient in the use of time. We essentially have only two meetings left to consider the draft report, agree to changes and then adopt it no later than May 12 or 13. It's a very tight timeline.
I'd like to also mention that submitting dissenting or supplementary opinions will also be tight. We need those by May 13 so that there's enough time to prepare and have our report presented to the House on May 15.
Are there any comments or questions about that?
Seeing as there are none, we will adjourn today's meeting. I look forward to seeing all of you on May 4 for our final meeting with witnesses.