Inkless Wells

Paul Wells on all the latest out of Ottawa—along with the occasional post about jazz. Follow Paul on Twitter: @InklessPW
He also offers his thoughtful perspective of Stephen Harper’s last 10 years in his recent eBook, The Harper Decade.

Categories: Capital Read, Inkless Wells, Uncategorized

Let's argue heatedly about Part X of the Rules of the Senate of Canada!

by Paul Wells on Wednesday, December 30, 2009 1:30pm - 58 Comments

Here you go. I see the government’s court blogger is making an unaccustomed venture into arguments of constitutional law, asserting — unbidden by anyone at Langevin I’m sure (UPDATE: Stephen Taylor has sent me a good-natured note assuring me that his analysis is his alone; I’m happy to take him at his word) — that Prime Minister Harper has to prorogue if the promised Senate majority of bold Conservative stalwarts is to take the upper hand on committees against the old Senate majority of wheezy Liberal patronage hacks. And I must say, on the face of it there seems to be a case for this. Highlights from Part X (emphasis mine):

Committee of Selection	85. (1) At the commencement of each session, a Committee of Selection consisting of nine Senators shall be appointed whose duties shall be to nominate: (a) a Senator to preside as Speaker pro tempore; and (b) the Senators to serve on the several select committees, except the Committee on Conflict of Interest for Senators.
Separate report	(2) The Committee of Selection shall, within the first five sitting days of each session, present a separate report to the Senate in respect of its nomination of a Senator to preside as Speaker pro tempore pursuant to paragraph (1)(a) above.
Report by the Leader of the Government	(2.1) The Leader of the Government shall present a motion, seconded by the Leader of the Opposition, to the Senate on the membership of the Committee on Conflict of Interest for Senators at the beginning of each session and this motion will be deemed adopted without debate or vote when moved and a similar motion will be moved for any substitution in the membership of the Committee.
Term of appointment	(3) Subject to subsection (4) below, the Senators nominated under this rule shall, when their appointments are confirmed by the Senate, serve for the duration of the session for which they are appointed.

So this would seem an open-and-shut situation: a new session (what you get after you prorogue a Parliament) is needed for new, upstanding, fine, Conservative-majority committees to begin doing the work of pushing back against the Grit hordes in the Senate. But then there’s this section, which seems to suggest committee membership can be changed at any time in mid-course.

Change in Membership	(4) Except as provided in subsection (2.1) above and subject to subsection (5) below, a change in the membership of a committee may be made by a notice filed with the Clerk of the Senate who shall cause such change to be recorded in the Journals of the Senate.

I’m not the one who’ll be able to judge all of this properly. Comments are welcome (I’ve learned they’re hard to stop), and especially welcome from readers with any authority in parliamentary procedure. Have at ‘er, ladies and gents.

Tags: debating is fun, Don Boudria has his hand up, proroguies are tasty with sour cream, rules, Senate

More by Paul Wells

Jesse

What's the formula for changing senate rules ?

In the states its something like two thirds. I wonder if its a simple majority here.

So I suppose they could always change the rules mid-session but that strikes me as extremely bad form.

http://intensedebate.com/people/PhilCP PhilCP

Why would it matter if changing the rules mid-session was extremely bad form?

http://bigcitylib.blogspot.com bigcitylib

If the count right after the 5 new appointees is 51 tories and 51 of everyone else, how does Harper even know that he will wind up with committees rejigged to his liking?

http://intensedebate.com/people/robert_mccl6309 Robert McClelland

I was wondering about that myself. I was also wondering if any of the Tory Senators appointed by Mulroney might be disgusted enough with Harper's tactics to cross the floor so to speak.

Loraine Lamontagne

Or those appointed by Paul Martin. We used to regularly hear from Hugh Segal – on TV, on radio. Where is he now? How does he feel about his role these days?
Mark

Like who? Marjory LaBreton? Come on. The primary difference that separates a Mulroney Senator from a Harper Senator, is that pork has become an acquired taste for the latter, while it is a lifelong obsession for the former. The only thing ever known to separate a Mulroney Senator from teh trappings of high office is confinement to a jail cell.

http://intensedebate.com/people/Scott_Tribe Scott_Tribe

I believe the count in the Senate would be 51 Cons, 49 Libs, and then 6 independent Senators (independents, and Progressive Conservatives like Senator McCoy from Alberta)
http://bigcitylib.blogspot.com bigcitylib

OK, which is to say a majority of enemies to the cause. So why would the make-up of the committees tilt in the Tories favor now? As opposed to whenever they get their absolute majority.

http://intensedebate.com/people/Scott_Tribe Scott_Tribe

These are 6 independents – individual senators not really part of any party, unless you count McCoy and the other PC senator Lowell Murray as being in a "party".

Regardless… if they're individual senators and not part of a party per se, there's no requirement they be included on any Senate Committees, I'd guess.

http://intensedebate.com/people/DallanInvictus Dallan Invictus

I'm not a procedural wonk, but reading it like a statute it seems pretty clear that ss. (4) will supersede the normal terms of committee members, so it can be used to replace any committee member with another. To rebalance committee composition, it needs the Government and Opposition leaders to agree (along with any third party leaders for those you're deleting or adding), but both those members sit on the normal Selection Committee anyway, so you'd need to run the initial change by them too.

It might be marginally easier to get a new committee setup through the start-of-session process than the mid-session-process, but the Senate is noticably more collegial than the HoC, so I don't really agree with that. Besides, you don't need the extra month break to start a new Senate session pro forma, so this isn't the whole story.
http://accidentaldeliberations.blogspot.com The Jurist

The rules may be different in the Senate than in the House. But wasn't there talk around this fall's by-elections about the results potentially shifting the allotment of seats on House of Commons committees? And wasn't it effectively assumed that could happen without prorogation being required?

http://intensedebate.com/people/Be_rad Be_rad

I may be way out on a limb here, but I don't think byelections often effect the Senate – directly, anyway.

http://intensedebate.com/people/JCherniak JCherniak

I don't see why it matters. They could have prorogued as of the day before Parliament was scheduled to return for 24 hours. The fact that they did not do this is evidence that there is more to the story.

ADF

Doesn't a new session require a new Throne Speech? or no? Presumably they would want to at least appear to have put more than 24hrs thought into the new speech.

http://intensedebate.com/people/DallanInvictus Dallan Invictus

They could have announced a single-day break today, for that matter, and gotten both the appearance of preparing for a new Throne Speech _and_ not looking like they're specifically trying to rid themselves of a turbulent Parliamentary committee.
http://intensedebate.com/people/JCherniak JCherniak

Making it a 24 hour break does not mean they only have 24 hours to write. They need merely decide today and announce later.

Also, let's assume this is about the Senate. Why not let Parliament return as scheduled then just proroge before the Olympics? If they are waiting till March either way, the only reason to prorogue now is to stop MPs from meeting and holding the government to account until then.
http://intensedebate.com/people/Jenn_ Jenn_

Seriously? You are going with this? The Conservatives have such a great plan that they need two months to come up with a plan? If they don't have a plan, why not carry on with last year's throne speech. If they do have a plan, why do they need so much time to write it down?

Holly Stick

The crayons keep breaking.

http://intensedebate.com/people/Jenn_ Jenn_

Again, even if they can't put the new Senators in committees right away (but Paul appears to my non-legal eye to show that's nonsense), why a two-month break?

Do you not think the rest of the world will find it strange to the point of hilarity that Canada can't run both an Olympics and a government at the same time? What an embarrassment.

The only thing it does do is remove all members from all committees (as well as kill all bills) the moment prorogation starts, i.e., today-ish. So, two months without an Afghan committee hearing. I guess they were stymied with why Conservative members couldn't appear once the holidays were over because you know committee members wouldn't have waited until January twenty-something before calling another special meeting.

Jesse

"Do you not think the rest of the world will find it strange to the point of hilarity that Canada can't run both an Olympics and a government at the same time? What an embarrassment."

The crown is always in place. You mean that parliement won't be sitting, not that the gov't won't be running.

And I truly doubt the rest of the world will care whether we are in session or not.

PS – Paul is reading a rule that is almost exclusively used for shuffling around senators who are trading committee responsibilites or after a retirement or so forth.

Its not used to change oppo members to gov't members and doing so require the consent of the Liberals which is something they would never give.

http://intensedebate.com/people/Jenn_ Jenn_

What year did you graduate law school, and which school was it? Or did you get this fine legal ruling from that woman in the Justice Department?

Jesse

I really doubt they study senate rules in law school …

Orson Bean

I can confirm that they do not.
orval

Put simply, ss. 85 (1), (2), (2.1) and (3) are "shall" clauses (what must happen) whereas ss (5) is a "may" (what can happen) clause. Jesse's reading is correct. Ss (5) is designed to accommodate a necessary change to committee membership during a session due to absence, retirement etc. To make the change, there would have to be unanimous consent of the committee members authorizing the Chair to file the notice of the change with the Clerk of the Senate.

Yes, this stuff was taught in law school at the graduate level (LL.M in Legislative Drafting) when I was there.
orval

sorry for typo.it's subsection (4) of Rule 85, not (5).

Anon

This is not, nor has it ever been, about the Senate. That's a head-fake.

This is about Harper prancing through photo-ops unchallenged, and hoping to get enough of a boost from the Olympics to launch into an election.

That's what this is about.

Non-partisan

Indeed. We're headed for an April election and a likley Conservative majority.

Peter K

Likely Conservative majority? With the Olympic high, possibly – unless the Liberals really get their s*** together and start working right now on a good platform.

Harper is betting on a continuation of a false recovery, that the Canadian housing market won't crash until later in the spring, that Afghanistan stays pretty quiet until after the Olympics and another spring Taliban offensive.

On the other hand, several things could happen – an early crash to housing prices, more manufacturing layoffs in Eastern Canada due to the U.S. recession, a very warm winter with another big drop in energy prices, hence more layoffs in Western Canada. Also, perhaps the very public humiliation of Canada if the Whistler ski events are "warmed out" and cancelled out of existence.

Or, maybe, the feel-good policies of the Liberals will be better able to capture the mood of the nation on the post-Olympics high rather than the divide and conquer politics of Harper. "Just in it for himself" attack ads will be very incongruent with the mood of the nation after Vancouver 2010.

MJ Patchouli

Pro rate the MPs' salaries according to how much time they actually work.
http://intensedebate.com/people/MaggiesFarmboy MaggiesFarmboy

The "government’s court blogger"? You forgot to also mention; "sometime Maclean's guest blogger and member of the 'Maclean's 50"!:

http://www.macleans.ca/macleans50/index.jsp

(Don't hear much from them, ot seems, but I'm still waiting patiently for that Glen Clark bio…)

Mike T.

I didn't click the link and at first thought the government had someone who posted about court issues on a government of Canada website. And my thinking was "that seems to be a pretty tortured reading for an official position from somebody who you would think would be somewhat knowledgable about the topic."

Then I realized what Wells meant and it made a lot more sense.

Holly Stick

Actually, "courtesan" would be the more accurate term.

http://intensedebate.com/people/OntarioTown OntarioTown

He can appoint senators anytime can't he? Does it require prorogation of parliament?
shouldIsellyourwheat

This is just a big dumb stupid boring American committee. We're coming home from Afghanistan in 2011. Who cares?

Where was all this concern when Paul Martin's dithering meant that Canada ended up in Kandahar?

The Americans want a Canadian so there have a point person to apply pressure on us to stay. Harper is not obliging Canada's further entanglement in this moronic Afghan-Pakistan war. This is a good thing, and NOT a bad thing.

What Martin did was a bad thing, because his dithering meant Canada ended up in Canada totally unprepared with a pathetic detainee transfer policy that left Canada vulnerable to charges of "war crimes?

Now some media and some Liberals want to argue about how many angels can dance on Holbrooke's lapel pin. Where were all these people when Martin's dithering led to Canada's further entanglement in the American's Afghan mess?

http://intensedebate.com/people/Inkless Inkless

I get such a kick out of the people who comment in the wrong thread.

http://intensedebate.com/people/Brammer Brammer

If the GG grants Harper's request, I think it is the beginning of the end of the monarchy in Canada. Not that I would shed any tears over that, but what purpose do they serve if not to prevent PM's from using parliament as their plaything, to be put away on a whim?
Thoughtfulwords

What is interesting is the fact in the last few sitting days the Senate, Conservative senators themselves were holding up their own bills in order to ensure their passage into law following the new senate appointees.
Mike T.

whoops this is supposed to appear above.
Jesse

Ooops,

GST!
EDB

Having worked in the Senate some time ago, in the Whip's Office, my take is changes in session can only be made to a given party's own members, not to the fundamental composition – that requires a new session: Sideliner appears correct.
http://intensedebate.com/people/Inkless Inkless

Changing the composition of a committee is a matter of applying the rules, not changing them, you five-alarm moron.
Jesse

"five-alarm moron"

Stay classy Wells.

I had jumped past the question of applying the rules to other circumstances in which a majority on committees could be gained without going prorogue.

It seems quite clear that the amount of seats each party gets on committees is SET at the start of the session.

Individual members, however, may be replaced by making a notice with the clerk.

Or did you take the section on change in membership to mean that party allocation could be changed mid-session ??

Weird.
Chuck Vs 2010

"you five-alarm moron"

Rogers-Macleans custmer service at it's best.
http://intensedebate.com/people/craigola craigola

That's actually a pretty good theory.
http://intensedebate.com/people/madeyoulook madeyoulook

Paul, please take this as the observations from a fan: your writing is a delight to read. Your insult-riddled trolling, not so much.
http://intensedebate.com/people/DallanInvictus Dallan Invictus

Nothing in the rules say that you can't replace an individual government member with an individual opposition member – in fact, that's why they provide that a single notice has to be signed by multiple leaders depending on who's being added and removed.

The rules also say nothing about the balance between government and opposition members – that's decided by the Selection Committee, and the balance is only set out by convention.

So where exactly are you getting your conclusion?
Jesse

What you're suggesting, while technically possible, seems quite unlikely and is a very novel interpretation of the rules.

I think most of us were going with the assumption that the opposition would not co-operate with any process which saw their members being turfed from committee spots.

If the opposition is going along with this then the question of rules is meaningless, since rules can be changed at any given time anyways.

PS – Also, another problem with your scenario, even if the Liberals agree it is still possible for all the floaters to caucus together (5 members form an official party I believe).

Their leader would be able to block any switches on committees.
Jesse

Almost everyone here has a print subscription.

Myself included.

Fortunately Wells performs better in print than he does in these comments.
http://intensedebate.com/people/DallanInvictus Dallan Invictus

The problem with your assumption is that the initial setup of committees upon a new session also proceeds with "opposition co-operation", because the Opposition leader is on the selection committee by default, and Opposition members, by convention, join them. (for example, the current selection committee has 4 CPC and 5 Liberal members, in addition to the two caucus leaders sitting ex officio).

The _second_ problem with your assumption is that under ss. 5, leaders of a third party are only required to consent to changes that would remove or add their members to a committee (only 5 of the 18 senate committees have PC or Independent members.).

The _third_ problem with your assumption is that the floaters are a mix of old PCs and NDP types that aren't recognised by their party because the NDP wants to abolish the Senate, and they'd make very strange bedfellows anyway.
Jesse

I guess it comes down to convention then.

What you're suggesting for mid stream rules change is unconventional.

And what you're suggesting as a course of action in a new session seems quite untenable, being both unconventional and essentially shutting down the senate.

However, if Harper does prorogue and the Liberals try to block the reformation of committees, I wonder if appointing 8 further new senators would have any effect on the composition of selections committee.
http://intensedebate.com/people/DallanInvictus Dallan Invictus

This isn't a mid-stream rules change, it's an application of the existing rules that apply for changing members of a committee mid-session. It's unconventional only because this situation isn't common. When was the last time the Liberals didn't have a Senate majority, outside Mulroney's temporary appointments in 1989?

Similarly, cross-party approval for the initial membership of Senate committees is entirely conventional – how else would there possibly be committee members from the non-majority party? How else would the Senate operate?

In retrospect, I should have let Paul have the last word.
John Charles

The constitution makes it clear that the Senate has the right to discuss and amend legislation from the Commons, and that the Commons can have its way after a year.

Blaming this prorogation request on Senate obstruction is, as clearly stated above, a sham, but even if it were a valid reason, that is not enough of an objection to warrant a prorogation. Once Harper has appointed his new Senators, there will be a Conservative majority in the Senate which could overrule the Committee recommendations.
Mike T.

Furthermore, it would appear to be unconventional in the sense of "not often done" (if that), rather than unconventional as in "flaunting the unwritten but necessary rules of our very polity".
Jesse

I did not mean unconventional in the sense that this is rarely done.

This rule is used all the time.

Members die or retire, new members are appointed. People get bored with a committee.

The rule as it exists has been used by the parties to switch around their committee assignments.

If you know of any circumstance, EVER, in any Westminster system of a party voluntarily handing over its committee seats to another party i'd like to hear it !
Anon

"Myself included."

Does the print edition feature pop-ups now?
Mike T.

Since the plain reading of an existing rule is unlikely to be "unconventional" (in the constitutional sense), I don't feel like researching for specific examples. As pointed out above, it may even be fruitless because of the long abundance of Liberal senators.
Jesse

Didn't the Conservatives gain a majority in the senate to push through the HST ?

This rule was not used for the purpose of Conservatives handing over seats to Liberals after additional Liberals were added to the chamber.

Chretien just prorogued parliement 4 times during his leadership and that was that.
sideliner

Regarding interpretation of the Senate rules, could section 5 of Rule 85 be the key?
"The notice referred to in subsection (4) above shall be signed:
(a) with respect to Government members, by the Leader of the Government in the Senate or any Senator named by that Leader;
(b) with respect to Opposition members, by the Leader of the Opposition in the Senate or any Senator named by that Leader; and
(c) with respect to members of a recognized third party in the Senate, by the leader of that party or any Senator named by that leader.
Does this not imply that during a session, the parties can only make changes to which of their own members sit on each committee. This would not change the overall composition of the committees (X Cons+ Y Libs + Z Others) which can only be changed by the selection committee at the beginning of a session.
Also, Rule 88 states that: "The Clerk of the Senate shall, as soon as practicable after a committee has been appointed, call an organization meeting of the committee, and the committee shall at that meeting choose a chairman".
This suggests that the determination of which party will chair each committee also happens only at the beginning of a session.