Points of Order – Standing Committee on Finance

Nathan Cullen: Mr. Speaker, I rise today on a very specific point of order with regard to Bill C-60, an act to implement certain provisions of the budget tabled in Parliament on March 21, 2013 and other measures, and the work that was done by the committees that were studying this bill, particularly the finance committee, which invoked some measures we believe are not in order and fell well outside of its mandate.

As some context for those Canadians who are not familiar with Bill C-60, this is another piece of omnibus legislation. We rose earlier on similar points of order with respect to how the bill was handled.

In its nature, being an omnibus bill under the current government’s watch, with the expansion of omnibus legislation to include so many different matters, the government has faced a difficulty of its own making in that it is not purely a financial bill and it is not simply a bill to implement the budget; it would do much more. While it has an anti-democratic nature and tone for us, in various ways we have struggled with the ability for members of Parliament to properly study and amend legislation that is so broad.

I wish that you would review the motion adopted by the standing committee on May 7, as well as the proceedings that resulted from this specific motion, and that you rule to determine whether these proceedings were in order or not and whether the committee overstepped its authority when adopting this particular motion. I will refer in detail to what the motion accomplished and how it fell outside of the mandate of the committee.

We raised a very similar point of order, if you will remember, around Bill C-45. That was the second omnibus bill that followed on Bill C-38. We had deep concerns about the fact that the Standing Committee on Finance, during its consideration of that massive omnibus bill, went beyond its mandate and usurped the authority of the House when it invited other standing committees to study particular sections of Bill C-45. On their own mandate they started to carve the bill up and send it out. It then allowed these committees that were studying the bill to move amendments and then saw it as if those amendments had been moved by members of the finance committee.

We argued at the time that this went beyond the mandate and the reference from the House, from you as the Speaker.

A similar argument could be made about Bill C-60. It was introduced on April 29.

On May 7, after the government used time allocation to shut down the debate once again on discussions at second reading, it ended with the passage of the following motion, which stated:

 …that Bill C-60, An Act to implement certain provisions of the budget tabled in Parliament on March 21, 2013 and other measures, be read the second time and referred to [the Standing Committee on Finance].

Hansard on that day of May 7 specifically quotes you as saying:

I declare the motion carried. Accordingly, the bill stands referred to the Standing Committee on Finance.

It is pro forma and it is how bills are referred to the committee.

The committee acted outside of its powers and authority, those powers conferred on it by this House, when it adopted a motion on that very same day asking other committees to study sections of the bill, namely the standing committees on industry, science and technology; veterans affairs; human resources, skills and development; the status of persons with disabilities; citizenship and immigration; as well as foreign affairs and international development. That is where the government sought to parse out the bill.

It is very difficult to deal with omnibus legislation that is so obviously varied that it implicates so many different committees. The government has pushed, and I would argue broken the democratic limits of our legislature, by packing so much into these individual bills. In essence it is hiding from Canadians what its agenda is as these bills then come back to the House for one single vote on so many matters. This was something that the Conservatives concerned themselves with greatly when they were in opposition. You have heard me mention many of the quotes from the Prime Minister and various ministers in his cabinet on how much they disliked this tactic when the Liberals used it. It is now a tactic that the Conservatives seem to enjoy using with much relish.

Although I believe the Standing Committee on Finance went beyond its mandate to ask these five other committees to study the bill, this is not the principal concern that I want to raise with you today.

The committee went even further this time in going beyond its mandate, by adopting a motion to allow members of Parliament who are not members of a caucus represented on the committee to file amendments to the bill. It went further by directing that any amendments suggested to the committee would be deemed to be proposed during the clause-by-clause consideration on Bill C-60, even if the member who presented the amendment was not present.

Let us take a moment with this. Out of some seeking of convenience, the committee members passed the motion at their own discretion, not by any power given to them by the House, to allow amendments that came from people who do not sit on the committee, who are not recognized parties in the House. They allowed amendments to suddenly appear and be presented as if they came from somebody on committee. This goes against three fundamental principles that we hold dear in the House.

Only the House can appoint committee members. This is well known. It is done at the beginning of every session when we constitute our committees. No committee can self-appoint members.

It has to come from an order in the House.

Only committee members who have been appointed by the House can move a motion. In order to move a motion, a member must be present at the time the motion is moved. We just dealt with a piece of private member’s legislation before my point of order. A seconder was missing from her particular seat. The House properly waited until that member took her seat so that she was present. Motions cannot be moved if people are not here.

The rules of committee as established by the House specifically prescribe that members of a committee are designated by the House and cannot include members of a non-recognized party.

This is a practice and a procedure we have used for many years. The rules established by the House also specifically prescribe that only a member of a committee can move a motion.

According to O’Brien and Bosc’s House of Commons Procedure and Practice:

Only a member of the committee, or his or her designated substitute, may move an amendment or vote on an amendment.

Standing Order No. 119 stipulates that:

Any member of the House who is not a member of a standing, special or legislative committee, may, unless the House or the committee concerned otherwise orders, take part in the public proceedings of the committee, but may not vote or move any motion, nor be part of any quorum.

The O’Brien and Bosc text, on page 1019, states:

It is the House, and the House alone, that appoints the members and associate members of its committees, as well as the members who will represent it on joint committees.

The status of member of a committee is accorded to Members of the House of Commons who belong officially to that committee. This status allows them to participate fully in their committee’s proceedings: members may move motions, vote and be counted for purposes of a quorum.

The Speaker has ruled that this is a fundamental right of the House. It cannot be taken away. A committee simply cannot move a motion to take such a power away from the House. I am quoting now:

The committees themselves have no powers at all in this regard.

I would like at this point to mention your ruling, Mr. Speaker, from last December. You will recall that at the time, we moved our point of order regarding the last omnibus bill, Bill C-45, specifically with respect to the role and rights of independent members in the context of report stage.

The government House leader argued that the current process by which independent members are not allowed to present motions at committee means that at report stage of bills, a single independent member has the ability, in his words, “to hold the House hostage in a voting marathon”, as if voting were somehow connected to a hostage-taking, by submitting numerous report stage amendments.

In response, Mr. Speaker, you suggested that members may try to find ways to accommodate independent members at committee in order to allow them to present motions. You said the following:

Were a satisfactory mechanism found that would afford independent members an opportunity to move motions to move bills in committee, the Chair has no doubt that its report stage selection process would adapt to the new reality.

I understand that the motion adopted for Bill C-60 at committee was somehow a response to this ruling and an attempt by the Conservative Party to cut short the proceedings at report stage. However, I believe that the Conservatives fundamentally misinterpreted your ruling to in fact allow independent members to move motions to amend bills at committees. The Conservatives should have, and must have, sought agreement of the House to allow the members to sit on that committee. That is a power they cannot take away simply by a motion at committee.

Indeed, it is from the House that committees derive this power. Committees on their own do not have absolute powers.

While committees are often quoted as being masters of their own fate, I will cite from O’Brien and Bosc at page 1047:

The concept refers to the freedom committees normally have to organize their work as they see fit and the option they have of defining, on their own, certain rules of procedure that facilitate their proceedings.

A second quote, on page 1048 of O’Brien and Bosc, states:

These freedoms are not, however, total or absolute…. 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/empowered to do so by the House.

A second quote on that same page states:

…committees are free to organize their proceedings as they see fit…. committees may adopt procedural rules to govern…but only to the extent the House does not prescribe anything specific.

Members of a committee, and only members of a committee, as well as associate members when they replace those members, are able to attend the committee and thus move a motion at committee.

O’Brien and Bosc further tells us that:

Standing Orders specifically exclude a non-member from voting, moving motions or being counted for purposes of quorum. 

The rules also clearly state that a member must be present for the motion. This is a fact. We have never moved away from this fact or this rule or procedure. To suddenly invent a process by which a motion can be moved but the member may be absent contravenes the basic tenets of democracy and representation. We could suddenly have votes where people just call in and speak their intentions rather than be here themselves.

Where a notice of motion has been given, the Speaker will first ensure that the Member wishes to proceed with the moving of the motion. If the sponsor of a motion chooses not to proceed (either by not being present or by being present but declining to move the motion), then the motion is not proceeded with….

This has happened many times in the House. We have seen private member’s bills that members chose not to move. They either made themselves absent from the House or they remained in their seats and the motion was not moved forward. Nobody else can do it on their behalf. No one can simply come in and say, “The member intended to be here, but is not. Please allow the member’s private member’s bill or motion to be considered”.

There is a precedent for a Speaker overruling a committee matter, because sometimes Speakers, often, and I think for good reason, have been loath to involve themselves in committee business.

I quote from O’Brien and Bosc, page 775:

Since a committee may appeal the decision of its Chair and reverse that decision, it may happen that a committee will report a bill with amendments that were initially ruled out of order by the Chair. The admissibility of those amendments, and of any other amendments made by a committee, may therefore be challenged on procedural grounds when the House resumes its consideration of the bill at report stage. The admissibility of the amendments is then determined by the Speaker of the House, whether in response to a point of order or on his or her own initiative.

Amendments were moved with no member present who was actually intent on moving that motion. People were made members of the committee, one assumes, by a motion the committee did not have the power to designate.

For the House to now consider, at report stage, Bill C-60, with these amendments in place, is strictly out of order. It is the proper role of the Speaker of the House to intervene to say that things were done improperly and have to be done right.

In 2007, a point of order was raised in the House dealing with the admissibility of three amendments contained in a bill at report stage from the Standing Committee on Human Resources, Social Development and the Status of Persons with Disabilities.

Speaker Milliken ruled two of the amendments out of order, finding that they imported into the bill concepts and terms not present in the bill and were therefore beyond the scope of the bill.

I quote from Speaker Milliken’s ruling on February 27, 2007:

…the Speaker does not intervene on matters upon which committees are competent to take decisions. However, in cases where a committee has exceeded its authority, particularly in relation to bills, the Speaker has been called upon to deal with such matters after a report has been presented to the House.

That has happened here today.

In terms of amendments adopted by committees on bills, if they were judged to be inadmissible by the Speaker, those amendments would be struck from the bill as amended because the committee did not have the authority to adopt such provisions.

This means there exists a precedent for the Speaker rejecting amendments to a bill and the process by which it was there.

Mr. Speaker, I ask you to rule and review the motion adopted by the standing committee on May 7, 2013, as well as the proceedings that resulted from that motion, and that you rule to determine whether these proceedings were in order and whether the committee overstepped its authority when it adopted the motion.

The House of Commons and Parliament, and democracy in general, have suffered much abuse under this tactic and use of omnibus legislation. We have presented ourselves many times in defence of the institution and the right of members to speak and the people we represent to clearly understand the legislation the government is attempting to move.

The abuse of omnibus legislation has been a decision by the government. The difficulty it is having in the way amendments are moved and the process by which a bill goes through are of its own making, and it has only itself to blame.

A committee cannot take powers the House did not give it. Simply accepting motions from members who are not part of a committee and are not present to move the motion, contravenes the basic tenets of this place. The presence and acknowledged presence of a standing member of any of these committees is required—it is a basic, fundamental requirement—for a motion to proceed. These motions were considered improperly. We ask that you rule in this matter.

Kevin Lamoureux: Mr. Speaker, this is the first time I have had the opportunity to go over some of the things that took place in committee, and we should be concerned.

When the government House leader talks about the evolution of process, what we have witnessed is an evolution that takes away the ability of individual members to perform their duties on numerous occasions.

For example, the government House leader could argue that the usage of time allocation is an evolution of process. That evolution that the government has adopted works against, what we would argue, the best interests of Canadians in limiting the opportunity for individuals to express themselves on a wide variety of bills, including Bill C-60.

Let us take a look at what the government has now proposed to do.

The Conservatives are saying that inside the committee they now want to mandate all members of the House, whether they are part of an officially recognized party or not, to bring forward their amendments to the committee well in advance. However, as one can easily imagine by the way the government has managed this evolution of process, the Conservatives are really trying to prevent independent members who are not part of a recognized political party the opportunity to present their amendments at report stage. This raises a whole spectrum of issues that really needs to be addressed.

I am concerned that if the government were trying to demonstrate good will based on a Speaker’s ruling, with all due respect, then this should have been was raised at one of the House leader’s meetings and received a consensus of support. We have to be very careful when we look at changing rules, which is ultimately what the government House leader has proposed to do. We have to be very careful that there is a consensus from all political entities inside the House to do that. If we take a look at what took place at the committee, members will find that there was not unanimous consent in passing the motion in question, which is important to recognize.

The second issue I would like to raise is the letter that I understand the leader of the Green Party received. Imagine receiving a letter which gives a very clear indication that one has x amount of time to get all of one’s information gathered and amendments in place. The letter suggests that must be done by Monday, May 27, at nine o’clock in the morning. Again, I call into question the legitimacy of this.

This issue came up through a point of order by the New Democratic opposition House leader, and there is great merit for that. We will take a look at this matter in more detail and we might want to add further comment on the issue as time progresses.

However, I want to emphasize how important it is when the government House leader makes reference to the evolution of process or rules. Whenever he starts to fantasize or talk about it, in the past, it has not been a positive thing in democracy in the House of Commons.

I raise this issue as a red flag. We need to tread very carefully before making any sort of ruling on that which seeks to deprive individual members, or collective members, the opportunity to do something they have done in the past because the government deems it as not as clean or quick as it would like to see things take place. The Conservatives are bringing in these draconian-type changes or proposals, which are not healthy for democracy in the House of Commons.

André Bellavance: Mr. Speaker, since the point of order raised by the House leader of the official opposition concerns the non-recognized parties, it is appropriate for us to have our say today. I will reserve the right to add more arguments later because we were not aware that this point of order would be raised today.

With great respect, Mr. Speaker, the ruling you made in December 2012 reminds me of what happened in 2001 when your predecessor, Speaker Milliken, also made a ruling that restricted the use of report stage amendments. Between 1968 and 2001, successive Speakers were rather flexible with regard to report stage amendments.

In your ruling, you asked the government to show some openness to participation by members from non-recognized parties or independent members in certain committees, enabling them to propose amendments in committee. There is an important distinction, Mr. Speaker, and you are well placed to be aware of it. The Conservatives also know this, because in 1993 they were a non-recognized party. The NDP knows it too, because the NDP was also a non-recognized party in 1993.

The problem is that the members of this House fall into two categories. In the House we have an opportunity to ask questions and make speeches. We even have some speaking rights, which unfortunately we can no longer exercise because the government has been imposing time allocation motions on nearly all bills. Still, we feel we have proportional equality with our counterparts in the other parties. It is natural that we will be allocated fewer minutes because we have fewer members.

In committee, on the other hand, it is not the same as in the Quebec National Assembly, where the other parties have given the non-recognized parties—such as Québec solidaire and Action démocratique before it—the right to sit on committees, speak at committee meetings and even vote. Here, none of that is possible. I do not want the non-recognized parties to be treated like a ping pong ball in this dispute between the government and the recognized parties in this House. I think we have something to say on the subject.

The existence of the report stage simply allows us to propose the amendments we were unable to propose in committee, the amendments we have not had an opportunity to discuss. It is the only right we have left, Mr. Speaker, and I would like you to preserve it. We must be careful. The government says this is an invitation, but no party in the House has given us anything since May 2, 2011, and we are not asking for any gifts. We do not want additional privileges; we simply want our rights to be respected.

In committee, however, as happened in the committee studying Bill C-60, the only committee where we have been able to propose amendments, we had a few short minutes to do so, but no opportunity to speak at all. We were not allowed to ask questions of the public servants who were present or vote on the amendments we were proposing. If the government thinks it was giving us a gift, it is mistaken.

We want to preserve our rights. Therefore, we must be able to propose an amendment, discuss it, debate it and vote on it, and be aware of all committee activities, as it is possible to do in the House at report stage.

My first request, Mr. Speaker, is that you ensure that the rights of all members of the House are preserved, especially those who are less numerous, like the members of non-recognized parties.

Nathan Cullen: Mr. Speaker, I have two very small points. I appreciate the new-found passion that the Conservatives have for independent members, because we can recall that when an independent member’s bill was at committee, the Conservatives were gutting that very same legislation and denied her the ability to even address her own piece of legislation, claiming the very rules  that we are talking about here today.

My specific point, and I am not sure if my hon. colleague was present for the entire citation that I used, is that the main argument that we used is if this is the remedy by which the government seeks to satisfy the involvement of independent members at the committee stage, that is a remedy that can be sought, but the power rests here with the House of Commons. It simply does not rest with the committee to invent the power to appoint or adopt motions from members who are not part of a committee. That is a fact.

The committee itself is a creation of the House of Commons. The members who are involved in that committee and any standing members who may be a part of it come from here, not come from any chair or from any motion that has passed.

In his response—and I know he is going to come back and deliberate further on the points that we raised—my hon. colleague needs to address this specific point, because it is the argument that we are making to you, Mr. Speaker. The argument is that the committee has the powers that are vested to it from the House of Commons. It is exclusive of that power to just invent who gets to sit on that committee. To suddenly invite amendments from members who are not there is also exclusive of that power. We cannot move motions of people who are not present.

That is a fact. It is true here and it is true at committee.

I do not see why the Leader of the Government in the House of Commons has such a problem understanding that, other than that he has found some convenient article. If the government chooses to do it this way, it can, but it has to come from here. For goodness’ sake, let us protect some of the privileges and powers of the House of Commons.

The instruction from the House of Commons did not allow the committee to do that. It did not. I read out the citation and reference to the committee. It did not say that the committee chair can suddenly appoint whomever they like and take whatever amendments they like. It did not. It is in black and white. If my hon. colleague across the way would like me to read it to him, I can.

The fact of the matter is that the power rests with you, Mr. Speaker, as you refer a bill, and it rests with the House in designating which committees are instructed to study the bill, and how. How the committee does everything beyond that is its business, and we respect that right, of course.

However, to ignore the central point of our argument today in this point of order means either there is no counter-argument or they are going to search around for one for a couple of days. Obviously the decision rests with you, Mr. Speaker, and I appreciate the comments from my colleague for Saanich—Gulf Islands.

Kevin Lamoureux: Mr. Speaker, this is just a very quick point. The Leader of the Government in the House of Commons tried to give a false impression. The Liberal Party voted against the motion. I do not want to take words out of context, but we voted against the motion in committee. That is an important point.