Madam Speaker, I rise on a point of order concerning the fifth and seventh reports of the Standing Committee on Procedure and House Affairs. I respectfully submit that the reports each exceeded the committee's mandates and therefore should be found out of order.
Let me begin with the fifth report.
In its order of reference on Saturday, April 11, the House instructed the committee, “to study ways in which members can fulfill their parliamentary duties while the House stands adjourned on account of public health concerns caused by the COVID-19 pandemic, including the temporary modification of certain procedures...”, and yet the committee in its fifth report has gone well outside the scope of that mandate.
In the interest of time, I will simply work from the recommendations the committee put forward in its report.
On page 27, the committee recommended, “That the House create a Pandemic and Disaster Plan...and that it is rehearsed and updated on a regular basis.” That sounds like something meant to last well beyond the current pandemic.
Next, on page 29, the committee recommended, “That the House of Commons establish an alternative set of Standing Orders which enables the implementation of a virtual Parliament so that the House can continue with its business in the event of a crisis or exceptional circumstances such as those arising from the current pandemic....” The current pandemic is cited as merely an example, not the limit, for that recommendation.
Meanwhile, on page 31, the committee made a couple of other procedurally questionable recommendations, “That the House of Commons undertake the necessary steps to expand its capacity and operations to achieve a fully virtual Parliament...in the event of exceptional circumstances” and “That the House of Commons continue to take an incremental approach, during exceptional circumstances, to the adoption of added parliamentary activities by virtual means....” Again, the committee looked beyond the current pandemic.
Then, over to page 40, we read that the committee recommended, “That the Clerk of the House of Commons ensure that all committees and party caucus meetings have access to a private, secure platform for in-camera meetings during the current and future emergency situations....”
The theme continues in recommending, on page 42, “during exceptional circumstances, virtual presence of members meets the requirements for quorum....”
Moving along to page 48, the committee recommended, “That the House of Commons set up a secure electronic voting system for conducting votes in virtual sittings as soon as possible...in the event of a pandemic or any other exceptional circumstances....” That one does refer to a pandemic, but simply a generic one, not specifically the current one we are confronting, before then extending into, “other exceptional circumstances.”
Finally, on page 50, the committee recommended, “That the Committee continue its study...in order to be ready to respond quickly to a new crisis.”
All these recommendations contemplate actions well beyond a response to the current COVID-19 pandemic and ensuring that members can fulfill their duties as parliamentarians during it.
Again for reference, on April 11, the House instructed the committee, “to study ways in which members can fulfill their parliamentary duties while the House stands adjourned on account of public health concerns caused by the COVID-19 pandemic, including the temporary modification of certain procedures....”
If I put the House's order into plain language, it would be saying to deal with one crisis at a time.
Perhaps this was, dare I say, the Speaker's thinking too when he told the committee on April 21, at page 11 of the evidence:
Once this is over and they have reported, they should continue looking at different options that would keep Parliament running if something like this or something worse should happen again, and look at all of the worst-case scenarios.
There are good policy reasons for a step-by-step approach too. If we can avoid it, we should not be using our management of one crisis, mid-course, as a guide to solving the next one. We would not book, for example, CPR lessons while treading water to stay afloat. However, I am now straying into arguments beyond the scope of this point of order, so let me get back to that.
I will now switch to the seventh report and speak to my concerns there, before getting into procedural concerns which are common to both reports.
Before covering the new content of the seventh report, let me draw the Chair's attention to the final two recommendations on pages 71 and 72:
That the House consider all the work the Committee carried out for the pandemic- and procedure-related studies it conducted. The Committee wishes to ensure all its recommendations are taken into account in the development of any virtual Parliament and in the implementation and use of any electronic systems it might use if adopted. Note that this report supplements the preceding report, entitled Parliamentary Duties and the COVID-19 Pandemic (presented to the House on 15 May 2020), and that all the recommendations are important to preserving the parliamentary rights and privileges of the House and its members.
That, except in cases of clear incompatibility, the recommendations of the previous report, entitled Parliamentary Duties and the COVID-19 Pandemic, be deemed, mutatis mutandis, part of this report.
Therefore, it follows that if the fifth report is to be ruled null and void, so too would the seventh report since it too sampled the tainted fruit, so to speak. Nonetheless, there are several new recommendations in the seventh report that also fall wide of the mandate of the committee that was given by the House.
On May 26, after the imposition of closure, a majority voted for the following instruction of the procedure and House affairs committee, found at paragraph (f) of Government Business No. 7, “to review and make recommendations on how to modify the Standing Orders for the duration of the COVID-19 pandemic as part of an incremental approach beginning with hybrid sittings of the House as outlined by the report provided to the committee by the Speaker on Monday, May 11, 2020, including how to enact remote voting....”
Turning to the recommendations themselves, let us turn to page 55, with this one that speaks to events beyond the current pandemic, “That the House of Commons adopt a gradual and progressive approach to setting up a virtual or hybrid parliament so that the House may continue its parliamentary proceedings in the event of a pandemic or exceptional circumstances.”
However, the biggest and most substantive recommendation on pages 68 to 71 flagrantly defies the House's instructions. Here, a proposed new and permanent Standing Order 1.2 is recommended by the committee. There is no sunset clause. There is no deadline for it to expire. There is no provisional nature to it. It is a change that will sit on the books permanently. While the Liberals may argue that Standing Order 1.2 itself contemplates being applied on a one-time limited basis, this is still not limited to the current pandemic.
According to section (1), it would apply “In the event of a crisis or exceptional circumstances.” This does not refer to COVID-19; it does not even speak to a pandemic. It bears remembering that the House's May 26 instruction called for the committee to “make recommendations on how to modify the standing orders for the duration of the COVID-19 pandemic....”
The seventh report contains a litany of other recommendations referring to situations when the House may have virtual or hybrid sittings. In the interest of time I will not read them all out, but suffice to say that when read in combination with Standing Order 1.2 in its current form, these other recommendations are similarly tainted, as speaking to House proceedings beyond the current COVID-19 pandemic. This is not simply a concern we have, and I would refer the Chair, for example, to the New Democratic Party's supplementary opinions on page 95 of the seventh report, where it said:
...the NDP believes that the scope of this report wavered beyond its boundaries. The committee was tasked with finding solutions for remote participation of members specifically related to the COVID-19 pandemic. Some recommendations were outside of those lines, and while the NDP doesn’t disagree with the idea of exploring other options and preparing for the future, it does not consider those to be part of the work the committee was asked to do by the House of Commons.
That is especially noteworthy, because it was the NDP that was the Liberal government's dance partner in negotiating passing Government Business No. 7. It would be difficult to find someone in a better position to speak to the intention underpinning the House's instruction to the committee.
Turning to the procedural framework, which undermines each of the procedure and house affairs committee's reports, the committee could normally have considered and made recommendations like these under its mandate pursuant to Standing Order 108(2)(a). However, as the Liberals have liked to point out, these are not normal times. Many things around here are quite different, to say the least, but one of the things that has quietly flown under the radar is that our committee system has not simply migrated over to Zoom to keep their work going.
In order for any committee to hold virtual meetings, it has to have special permission from the House to do so. However, the House has not granted blanket permission to all committees. Instead, under the Liberal motions to date, only specifically named committees have been empowered to use Zoom, and only to do the things spelled out in the Liberals' motions.
That approach extended to the procedural and House affairs committee when subparagraph (m) (i) of the House's order on April 11 stated:
During the period the House stands adjourned pursuant to this order, the provisions applying to committees enumerated in paragraph (l) shall also apply to the committee, however, the committee may consider motions related to the adoption of a draft report in relation to this study.
That topic is the April 11 mandate I have quoted twice already. Under paragraph (l), which was cross-referenced there, the committee was explicitly given a limit to “hold meetings for the sole purpose of receiving evidence related to the COVID-19 pandemic.”
These provisions were, of course, renewed by subparagraph (f) (iii) of the House's order on April 20 which was, in effect, when the committee adopted its fifth report.
To simplify the procedural point here, committees meeting virtually are not allowed to do as they please within their usual range of activities. Similarly, for the seventh report, the committee only held virtual meetings because it was authorized by the House on May 26 to do so, as part of the House's instruction to study procedural changes “for the duration of the COVID-19 pandemic.” While the government might respond to my point of order by saying that committees are masters of their own proceedings, it just is not as simple as that.
Page 1058 of the House of Commons Procedure and Practice, third edition, states:
First, it is useful to bear in mind that committees are creatures of the House. This means that they have no independent existence and are not permitted to take action unless they have been authorized or empowered to do so by the House.
The freedom committees have is, in fact, a freedom limited on two levels. First, committees are free to organize their proceedings as they see fit, provided that their studies and the motions and reports they adopt comply with the orders of reference and instructions issued by the House.
Bourinot's Parliamentary Procedure and Practice, fourth edition, puts it more bluntly at page 469. It states that “a committee is bound by, and is not at liberty to depart from, the order of reference.”
Meanwhile, citation 760(2) of Beauchesne's Parliamentary Rules & Forms, sixth edition, states that, “Committees receive their authority from the House itself and the authority of the House overrides that of any committee.”
Bosc and Gagnon write at page 978 that, “The House delegates certain powers to the committees it creates in order for them to carry out their duties and fulfill their mandates. Committees have no powers other than those delegated to them in this way, and cannot assume other powers on their own initiative.”
The next page adds, “In the absence of specific instructions from the House, it is up to each committee to define the exact nature and scope of the studies it will undertake.”
As Mr. Speaker Milliken said on March 14, 2008, at page 4182 of Hansard, “Inherent in the power the House grants to its committees is the basic principle that each committee will respect its mandate.”
In the present case, the committee could, under the House's instruction, only address the issues within its precisely defined mandate while it was holding meetings by video conference. Therefore, because the committee included a recommendation in its reports that could have only been decided under Standing Order 108(2) at a physical meeting, rather than under the special orders of April 11 and May 26 at a virtual meeting, I want to turn to how this distinction has practical meaningful consequences.
I would pause to note that even if the Chair finds that the May 26 order offered more latitude than the April 11 order, the committee nonetheless reached back to incorporate the fifth report's procedurally flawed recommendation into its seventh report. Nothing the House decided on May 26 cured the defects of the report made under the April 11 order.
Also, I would note that the committee itself, on page V of the seventh report, refers to the report being adopted under the April 11 and May 26 orders of reference, and not Standing Order 108(2).
As to the consequences of the committee's choices, page 991 of Bosc and Gagnon states:
...the Speaker of the House has ruled a report or a specific part of a report to be out of order when a committee has gone beyond its order of reference or addressed issues not included in the order.
Those authors, at page 1001, speak directly to my concerns regarding the recommendations I cited from the fifth and seventh reports, and state:
Committees are bound by their orders of reference or instructions and may not undertake studies or present recommendations to the House that exceed the limits established by the House.
In support of these propositions, I would refer the Chair to the following rulings: Mr. Speaker Lemieux on June 9, 1928, at page 571 of the Journals; Madam Speaker Sauvé on June 29, 1983, at page 26943 of the Debates; Mr. Speaker Francis on June 13, 1984, at page 4624 of the Debates; Mr. Speaker Bosley on December 14, 1984, at page 1242 of the Debates and on February 28, 1985, at page 2603 of the Debates; and again, Mr. Speaker Milliken on April 2, 2009, at page 2301 of the Debates.
Had the procedure and House affairs committee wanted to report on contingency planning for future crises, and there is a legitimate reason to be interested in that, once we have resumed normal operations the committee could have taken up the subject at physical meetings here in Ottawa once it was safe for the whole membership to assemble, or it could have availed itself of the advice of Beauchesne's citation 831(4), which states:
Sometimes a committee may have to obtain leave from the House to make a special report when its order of reference is limited in scope.
To sum up my arguments in conclusion, first, the fifth report of the Standing Committee on Procedure and House Affairs exceeds the scope of the mandate given to the committee by the House on April 11, 2020.
Second, the seventh report of the Standing Committee on Procedure and House Affairs incorporates from the fifth report the same procedurally flawed recommendations, and also includes new recommendations that also exceed the scope of the mandate given to it by the House on May 26, 2020.
Third, it cannot be argued the reports are justified under Standing Order 108(2)(a), because all of the committee's meetings were held by video conferencing, thereby requiring the committee to observe all of the special conditions imposed upon it by the House and, therefore, both the fifth and seventh reports are out of order and must be withdrawn.