Committees / Mandate

Standing committee exceeding its mandate

March 14, 2008

Debates, pp. 4181-3

On March 3, 2008, Paul Szabo (Mississauga South) rose on a point of order with respect to the proceedings of the Standing Committee on Access to Information, Privacy and Ethics on February 28, 2008. At that meeting, Mr. Szabo, as Chair of the Committee, had ruled out of order a motion calling for a study on fundraising practices of the Liberal Party of Canada. In his ruling, he had stated that the motion did not include any reference to the Conflict of Interest Code for Members of the House of Commons nor did it raise any violation of ethical standards but rather made direct reference to potential violations of the Canada Elections Act. He had concluded, accordingly, that the motion proposed a study that was within the mandate of the Standing Committee on Procedure and House Affairs as set out in Standing Order 108. Mr. Szabo’s ruling had been appealed and overturned, and the motion subsequently adopted along with another motion to proceed with the study immediately.^[1] Mr. Szabo appealed to the Speaker to rule on the matter. Tom Lukiwski (Parliamentary Secretary to the Leader of the Government in the House of Commons and Minister for Democratic Reform) argued that committees were masters of their own proceedings and, since there was no report on the matter before the House, it would be presumptuous to assume the direction the proposed study would take. After hearing from other Members, the Speaker took the matter under advisement.^[2]

The Speaker delivered his ruling on March 14, 2008. He declared that the House had gone to considerable effort to define the responsibilities of its committees while allowing them the flexibility and power to conduct their studies. He noted that it is a basic principle that committees, in exercising the powers granted to them by the House, will respect their mandates and also took note of Mr. Lukiwski’s reminder of the inadvisability of presuming the direction that the Committee’s study might take. He stated that it was difficult for the Chair to ascertain whether the Committee had acted appropriately given that the Chair was not in a position to know the interpretation the Committee would give to the motion. In the absence of a report from the Committee and given the long held practice of Speakers not intervening in the proceedings of committees, he found that there were not sufficient grounds to usurp the role of the members of the Committee. He also advised Members that when the Committee presented its report, any Member with concerns about the Committee respecting its mandate would have the opportunity to raise them in the House. The Speaker concluded his remarks by raising serious concerns over the dysfunction in committees during the Thirty-Ninth Parliament, in particular instances of procedurally sound rulings delivered by Chairs of committees being appealed and overturned, and urged Members to work together.

Decision of the Chair

The Speaker: I am now prepared to rule on the point of order raised by the hon. Member for Mississauga South on March 3, 2008, concerning the proceedings in the Standing Committee on Access to Information, Privacy and Ethics at its meeting of February 28, 2008.

I would like to thank the hon. Member for Mississauga South for having raised this matter, as well as the hon. Parliamentary Secretary to the Leader of the Government in the House of Commons, the hon. Member for Hull–Aylmer, and the hon. Member for Scarborough–Rouge River for their contributions.

In raising his point of order, the Member for Mississauga South expressed concerns about motions adopted by the Access to Information, Privacy and Ethics Committee at its meeting of February 28, 2008. Of particular concern was the motion ordering the Committee, pursuant to Standing Order 108(1)(a), to investigate the fundraising practices of the Liberal Party of Canada. The Member for Mississauga South, indicated that, as Chair of the Committee, he had ruled this motion inadmissible as it did not include any reference to the Conflict of Interest Code for Members or any ethical standards that may have been violated but rather actually made direct reference to potential violations of the Canada Elections Act. His ruling was appealed and overturned, and the motion was adopted.

The Member for Mississauga South contended that the Access to Information, Privacy and Ethics Committee has now embarked on a study which is beyond its mandate as set out in Standing Order 108. Questioning the Committee’s authority to disregard the Standing Orders in this way, he maintained that his Committee was encroaching on the mandate of the Standing Committee on Procedure and House Affairs. The Member for Hull–Aylmer and the Member for Scarborough–Rouge River voiced their support for these arguments.

In his comments, the Parliamentary Secretary to the Leader of the Government in the House of Commons and Minister for Democratic Reform spoke of the well-recognized procedural principle that committees are masters of their own proceedings.

In the absence of a report from the Committee, he suggested that it would be inappropriate for the Speaker to pass judgment on the question raised by the Member for Mississauga South and cautioned against prejudging the direction that the Committee study might take.

After careful review of all the interventions on this point of order, it seems to me that the crux of the matter is determining first, to whom the House has given a mandate in matters related to ethics, and second, what differentiates one mandate from another.

Standing Order 108(3)(h) states that the Standing Committee on Access to Information, Privacy and Ethics has responsibility for overseeing the effectiveness, management and operation, together with the operational and expenditure plans, of the Conflict of Interest and Ethics Commissioner, as well the Commissioner’s annual reports on activities in relation to public office holders. It is important to note that reports on complaints involving public office holders are provided for in the Parliament of Canada Act and are filed with the Prime Minister, with no provisions to have them referred to a committee.

This Committee mandate is not to be confused with that of the Office of the Conflict of Interest and Ethics Commissioner whose remit is twofold: first, to support the House of Commons in governing the conduct of its Members by administering the Conflict of Interest Code for Members of the House of Commons which has been in effect since 2004; and second, to administer the Conflict of Interest Act for public office holders which came into effect on July 9, 2007.

Oversight of the Conflict of Interest and Ethics Commissioner’s work related to Members under the Parliament of Canada Act and with respect to the Conflict of Interest Code for Members is the responsibility of the Standing Committee on Procedure and House Affairs. This is clearly indicated in Standing Order 108(3)(a)(vii) and (viii). The Procedure and House Affairs Committee is also responsible for matters relating to the election of Members as set out in subparagraph (vi) of Standing Order 108(3)(a).

As was pointed out in a ruling given by the then Deputy Speaker on June 3, 2003, at page 6775 of the Debates, concerning alleged irregularities in the proceedings of the Standing Committee on Transport:

I have said that committees are granted much liberty by the House but, along with the right to conduct their proceedings in a way that facilitates their deliberations, committees have a concomitant responsibility to see that the necessary rules and procedures are followed—

Similarly, House of Commons Procedure and Practice, at page 879 explains that:

Committees are entitled to report to the House only with respect to matters within their mandate. When reporting to the House, committees must indicate the authority under which the study was done (i.e., the Standing Order or the order of reference). If the committee’s report has exceeded or has been outside its order of reference, the Speaker has judged such a report, or the offending section, to be out of order.

Two particularly illustrative examples are included in the footnote to this citation. The first involves a report by the then Standing Committee on Finance, Trade and Economic Affairs regarding the radio and television broadcasting of all committee proceedings, which Mr. Speaker Bosley, in a ruling given on December 14, 1984, Debates page 1243, ruled out of order on the grounds that the Committee had exceeded its Order of Reference. The second relates to a report presented by the then Standing Committee on Labour, Manpower and Immigration which likewise was ruled inadmissible by Mr. Speaker Bosley in the Debates on February 28, 1985, page 2603, again because the Committee had exceeded its terms of reference.

Even this brief overview serves to remind us all that the House has taken great care to define and differentiate the responsibilities of its committees, particularly where there might at first glance appear to be overlapping jurisdictions. That said, it is also clear that the House has chosen to allow committees great flexibility and considerable powers, including the power to use their own initiative by undertaking studies within their mandates.

Inherent in the power the House grants to its committees is the basic principle that each committee will respect its mandate. Implicit in the flexibility that committees have traditionally enjoyed is the understanding that they will be judicious in the exercise of their powers. Can it be said that the Ethics Committee, measured against these standards, is acting appropriately in this instance? Frankly I find it hard to answer that question for a number of reasons.

First, as the hon. Parliamentary Secretary to the Government House Leader has reminded the Chair, successive Speakers have been reluctant to intervene in the proceedings of committees except in highly exceptional circumstances. The hon. Parliamentary Secretary goes on to caution against presuming on the direction that the Committee’s study might take and jumping to conclusions about the nature of any report it might present.

I must acknowledge the validity of that argument. The Chair is not in a position to determine what interpretation the Committee will give to the motions that gave rise to the point of order raised by the hon. Member for Mississauga South. However, I do wish to make clear to the House that the question of committees respecting their mandates is not one which the House should take lightly.

For the present, I cannot find sufficient grounds to usurp the role of committee members in regulating the affairs of the Standing Committee on Access to Information, Privacy and Ethics. However, if and when the Committee presents a report, should Members continue to have concerns about the work of the Committee, they will have an opportunity to raise them in the House and I will revisit the question at that time.

But, if the House will bear with me, I said earlier that I was not comfortable deciding on whether or not what the Ethics Committee had done was appropriate. I would like to return to that statement and I ask for Members’ indulgence in hearing me out.

Any observer of the Thirty-Ninth Parliament will realize that the problem of the Ethics Committee is only one of the recent manifestations of the need for crisis management in committees.

Almost a year ago, in a ruling given on March 29, 2007, I referred to the challenges encountered in this minority Parliament, saying, in part:

… neither the political realities of the moment nor the sheer force of numbers should force us to set aside the values inherent in the parliamentary conventions and procedures by which we govern our deliberations.

I went on to refer to situations in committee where, because decisions of the Chair are subject to appeal, decisions that were procedurally sound had been overturned by the majority.

Since that time, appeals of decisions by Chairs appear to have proliferated, with the result that having decided to ignore our usual procedure and practices, committees have found themselves in situations that verge on anarchy. Even the prestigious Standing Committee on Procedure and House Affairs, which, as the Striking Committee is the very heartbeat of the committee system, has not escaped the general lawlessness. Last week, I understand that the Committee elected as its Chair a Member who stated unequivocally that he did not want the nomination.

What responsibility does the Speaker bear for quelling this anarchy that appears to be serially afflicting committees in recent weeks? I would refer hon. Members to a comment of Mr. Speaker Lamoureux on July 24, 1969 when he said:

What hon. Members would like the Chair to do… is to substitute his judgment for the judgment of certain hon. Members. Can I do this in accordance with the traditions of Canada… where the Speaker is not the master of the house…? The Speaker is a servant of the house. Honourable Members may want me to be the master of the house today but tomorrow, when, perhaps in other circumstances I might claim this privilege, they might have a different opinion… It would make me a hero, I suppose, if I were to adopt the attitude that I could judge political situations such as this and substitute my judgment for that of certain hon. Members… But I do not believe that this is the role of a Speaker under our system…

The rules that govern our deliberations and the practices that have evolved over time generally serve the House and its committees very well. As your Speaker, I will sometimes suggest that Members take their grievances to the Standing Committee on Procedure and House Affairs and ask them to look at whether changes to our Standing Orders might alleviate such difficulties in the future. But that would not be a helpful suggestion in the present circumstances.

Honourable Members know as well as I do, or even better than I do since they are living with the consequences daily, that it is not by tinkering with the rules that we will solve our current difficulties. Nor do I believe, whatever certain media commentators may say, that our difficulties would be resolved if only I, as your Speaker, agreed to act in loco parentis and scolded hon. Members into seeing reason. Frankly speaking, I do not think it is overly dramatic to say that many of our committees are suffering from a dysfunctional virus that, if allowed to propagate unchecked, risks preventing Members from fulfilling the mandate given to them by their constituents.

To quote House of Commons Procedure and Practice at page 210:

… it remains true that parliamentary procedure is intended to ensure that there is a balance between the government’s need to get its business through the House, and the opposition’s responsibility to debate that business without completely immobilizing the proceedings of the House.

The Speaker must remain ever mindful of the first principles of our parliamentary tradition which Bourinot described thus:

To protect the minority and restrain the improvidence and tyranny of the majority, to secure the transaction of public business in a decent and orderly manner—^[3]

It matters not that the minority in the Thirty-Ninth Parliament happens to be the Government, not the opposition, or that the majority is held by the combined opposition parties, not the Government.

The Shakespearean quote, “The fault… is not in our stars, but in ourselves…” seems sadly apt in the circumstances.

Like all Canadians, and indeed all hon. Members, I realize and respect that political exigencies often dictate the strategies adopted by parties in the House. However, as your Speaker, I appeal to those to whom the management of the business of the Parliament has been entrusted—the House Leaders and the Whips of all parties—to take leadership on this matter. I ask that they address themselves to the crisis in the committee system that is teetering dangerously close to the precipice at the moment. I ask them to work together to find a balance that will allow the parties to pursue their political objectives and will permit all Members to carry on their work. I am confident that working together in good faith they can come to an agreement that will return us to the equilibrium that our procedures and practices have been designed to protect. As your Speaker, I stand ready to lend whatever assistance I can.

I would like to thank the hon. Member for Mississauga South for having raised the matters relating to the Standing Committee he chairs and the opportunity to address the larger picture.

I thank the House for its attention.