House of Commons Debates VOLUME 146 Ï NUMBER 083 Ï 1st SESSION Ï 41st PARLIAMENT OFFICIAL REPORT (HANSARD) Friday, February 17, 2012 Speaker: The Honourable Andrew Scheer CONTENTS (Table of Contents appears at back of this issue.) 5439 HOUSE OF COMMONS Friday, February 17, 2012 The House met at 10 a.m. In the case of Parliament, the adjudicator is the Speaker. In each of these three systems there is a series of key decisions or Prayers key rulings which focus on previous precedents and draw them together. ORDERS OF THE DAY In the case of the courts, we refer to these as leading decisions or leading rulings that attempt to summarize these precedents and Ï (1005) detect patterns that have a morally binding authority and that reflect [English] the great weight of where the institution as a whole would like to go. We refer to these as leading or landmark cases. STANDING ORDERS AND PROCEDURE The Deputy Speaker: Pursuant to Standing Order 51(1), and the In the case of the House of Commons, these would be key order made Thursday, February 16, 2012, the following motion is decisions of the various Speakers. Certain decisions that are cited now deemed to have been proposed: more frequently are seen as more effectively jelling those that came That, this House take note of the Standing Orders and procedure of the House and its before them. Committees; that the Standing Committee on Procedure and House Affairs be instructed to study the Standing Orders and procedures of the House and its Committees, including the proceedings on the debate pursuant to Standing Order 51; In the case of our constitutional conventions, I have to confess that and that the Committee report its finding to the House no later than May 18, 2012. it is less easy to pick out these leading or key cases. Mr. Scott Reid (Lanark—Frontenac—Lennox and Addington, CPC): Madam Speaker, we are looking today at the Standing Orders, which are the formal and structured rules that guide us here. In each case, our common institutional history with the rest of the Commonwealth and with the provinces allows the precedence of In Commonwealth countries, formal institutions are structured other jurisdictions to be persuasive, although not necessarily around three great precedent-based systems of law. The first system binding. That is true with the common law. Our courts will refer is the common law. The second system is our constitutional to cases decided elsewhere. That is certainly true with our conventions, which are the unwritten rules that guide the unwritten constitutional conventions. We think it entirely appropriate. We institutions of our Constitution such as the rule of cabinet thought it entirely appropriate a couple of years ago when we were government. The third system is parliamentary practices, which dealing with the question of prorogation to look at how other guide us here, in the other place and in the provincial legislatures. jurisdictions in the Commonwealth dealt with prorogation. It is true as well with respect to the House of Commons that we look to In each of these three systems there is an arbitrator who has the precedents from other chambers. authority to make rulings as to which precedent ought to apply, in the event there is a dispute as to what the rules might actually be. We also look to writers to summarize these precedents for us. In the case of the common law, the arbitrator is the courts, which These would have been known in medieval times as “glossators”, is to say judges who are selected based upon their wisdom and people who gathered to get their glossaries of the great precedents. In experience, as well as juries selected randomly or by lottery as a way the common law we would have great names in the past such as of trying to create the best possible cross-section of reasonably Glanville, Bracton and, in the 18th century, Sir William Blackstone. minded persons. There are modern commentators who have written volumes that In the case of constitutional conventions, the arbitrator or continue to be used and are referred to under the name of their adjudicator is the Queen. Because we are across the ocean, in her author, such as Craies, Maxwell and Bennion. absence, it would fall to the Governor General or the Lieutenant Governor, as the case may be. Final say as to what the conventions In the case of our constitutional conventions, the great writers are might be is decided by the voters themselves at the next election, people like Albert Venn Dicey, in the 19th century, Walter Bagehot should there be any great question as to whether or not a government or, if we are looking at the United States, people like Tocqueville and has acted constitutionally in the sense of the unwritten constitution. Lord Bryce. 5440 COMMONS DEBATES February 17, 2012 Orders of the Day Ï (1010) However, there is a third possibility. There are many areas where it is best not to adopt a formal rule that locks us in at this time. It is In the case of our parliamentary institutions we look to texts better to allow the precedents to continue to develop and improve. compiled by Erskine May, looking at the British Parliament and their This allows us to collectively exercise our wisdom through the kinds practices. In Canada, the leading text is a volume that was known as of interventions that all members make when they are advising the Marleau and Montpetit, after its two authors. It is now referred to as Chair as to how the Speaker ought to rule. That gradual O'Brien and Bosc, after the most recent editors of that volume. accumulation will continue to improve the rules of the House. Each of these three great systems of rules brought together the As a concluding remark, I want to observe that we sometimes tend rules as they exist based upon the precedents. In each of these three to wax nostalgic in this place about the great days of our great systems, it is possible to encode or formalize the rules, rather parliamentary past, now lost. I want to suggest that it is a myth. than simply turning to precedent. In the case of our laws, acts of Parliament can encode what We think back to the great days of Macdonald debating Edward formerly had been dealt with by means of the common law. In the Blake, or Churchill versus Lady Astor, or Gladstone versus Disraeli. case of the unwritten constitution, it is possible to formalize the The truth is that these were often times as ill-tempered as the present, unwritten conventions and turn them into written constitutional sometimes more so. The long-term trend, as our standing rules grow, rules. We have not done that for many rules in Canada, but we have as the body of precedence on which they are based grows, is that done it for some. In Britain they are still dealt with on an entirely actually we are producing a set of rules that govern us in a better way unwritten basis. than Gladstone, Disraeli or any of the others I have mentioned were governed by their rules. We have gone a great deal less far of course than the Americans, or to pick an example that is closer to home, than the Irish when they The truth is that we are moving forward. This is a positive exercise converted from being a monarchy and a member of the and the rules that we leave to our successors will, I think, be better Commonwealth, to being a republic, so this can be done. We can than those that were left to us. also, in case of the Constitution, make formal amendments, as I said. Ï (1015) In the case of the House, we can change our Standing Orders and adopt Standing Orders. When we do so we are codifying that which Ms. Chris Charlton (Hamilton Mountain, NDP): Madam was dealt with by precedent in the past. In so doing, we tend to do Speaker, I listened carefully to my colleague's comments. We both one of two things. This is perhaps why we are turning now directly sit on the procedure and House affairs committee so I know he cares to the Standing Orders themselves. passionately about the Standing Orders, as we all do. In the case of each of those practices and precedents that has I wonder if the member could tell me how he feels about the existed, it seems to me that, on the one hand, we might want to Standing Orders relating to time allocation in particular, as well as conclude that the practice, the precedent, is one which is sufficiently committee proceedings in camera, which are two of the issues that crystallized that it is time now to enact a formal rule. A formal rule are of most concern to members on this side of the House. would capture our best practices, which we will then have to apply when we find that we are not at our best. Mr. Scott Reid: Madam Speaker, with regard to the in camera rules, I suppose the obvious thing to mention is that our rules for Anybody who has been around here for a few years knows that we going in camera and coming out of in camera to a public session are are not always at our best. We are not always as solicitous of the based upon the rules that were developed for this chamber. These opinions of the minority point of view.