Somehow, I suspect this isn’t over.


As expected, the Speaker ruled that the latest report from the Ethics committee – which recommends that the Code of Conduct be amended so that a libel suit against a sitting member would not be considered a conflict of interest – was out of order, as the Code falls under the aegis of Procedure and House Affairs, and as such, cannot be taken up by another committee.

This, even though, as he and everyone else in the House is all too aware, Procedure and House Affairs is completely and utterly broken. It’s so broken, in fact, that it can’t even be 106(4)’d back to life with a formal request for a meeting from four members, since such a request has to be received by the chair, and it doesn’t have one of those anymore.

Anyway, this really wasn’t a surprise — the ruling, that is — and somehow, I’m doubting that this is the end of the line, as far as changing the Code of Conduct goes, but it’s not clear what the next logical step would be. Obviously, a member could raise it as a question of privilege – the Code, that is, not the Speaker’s ruling, which can’t be challenged except via motion of non-confidence in Milliken himself, and I don’t think anyone is quite ready to do that yet. With the break week looming, though, I wouldn’t expect any developments until the House gets back.

In any case, here’s (some of) what the Speaker had to say:

This is a reality that continues to this day, a reality that cannot be simply set aside because of existing circumstances in another committee or by invoking the urgent need to address a subject or by arguing the gravity of that subject.

As hon. members know and as explained in House of Commons Procedure and Practice at page 857, decisions of committee chairs may be appealed to the committee. However, as hon. members may recall, in my ruling of March 14 last I raised serious concerns about committees overturning procedurally sound decisions by their chairs and the problems that may arise from such actions. I find it particularly troubling in this instance that the committee chose to proceed as it did with the clear knowledge that what it was doing was beyond the committee’s mandate.

Some of the arguments presented in this case suggested that the Seventh Report of the Standing Committee on Access to Information, Privacy and Ethics was the only venue possible to deal with this important and urgent matter in an expeditious fashion. In my view, there are other mechanisms available to debate and resolve the matter at hand. Furthermore, as I mentioned on May 14 when this issue was raised, the fact that the procedure and House affairs committee is not functioning at the moment does not permit other committees to usurp their mandates.

I wish to remind hon. members that the Chair can apply the rules of the House only as they are written. The subject matter of the Seventh Report of the Standing Committee on Access to Information, Privacy and Ethics is clearly not within the mandate of that committee, as spelled out in Standing Order 108, and, therefore, in my view, it is out of order.

For this reason, I rule that the Seventh Report of the Standing Committee on Access to Information, Privacy and Ethics be deemed withdrawn and that no subsequent proceedings may be taken in relation thereto. Accordingly, the two notices of motions for concurrence in this report currently on the notice paper standing in the name of the hon. member for MonctonRiverviewDieppe and the hon. member for Halifax West will be withdrawn.


Somehow, I suspect this isn’t over.

  1. No one’s going to challenge the honourable member from Kingston and the Islands (one of my favourite members – a really nice guy), though I would love to see some major changes come down the pipe.

    I think the Speaker could though, without any changes to the house rules, use a little more of his power to bring things under control both at the committee level and during house business (esp. Question Period). He can suspend QP, name members, etc. but shows an amazing reluctance to do so.

    It is disappointing to see things continue to degenerate without end…

  2. there was a time when the Speaker could and did use his power to keep debate ‘civilized’. Now, an insult has to be used at least twice before an honourable member will be rebuked.

  3. Oh, I’m a Milliken fan too – both as a person and a speaker. The trouble is that he actually *is* facing an unprecedented situation, and he has shown himself to be less than comfortable setting precedent. We have never had a situation before where the Procedure and House Affairs committee is, for all intents and purposes, dead. I understand why he wants to give the house leaders as much leeway as possible, as far as resuscitation, but I think at this point, it’s unlikely that will happen. As a result, other committees *are* going to be faced with picking up the slack, as far as that goes — and who knows how that will go when the government finally wants to pass a Justice bill, speaking of committees that aren’t quite dead, but are in a persistent vegetative state.

    When it comes to the Code of Conduct, I just find it hard to see any persuasive argument that this is *not* a question of privilege, not just for Thibault but for all members. There is rare (and heartening) unanimity on the opposition benches that Dawson’s ruling, although directed at a single member, represents a genuine threat. How can the Speaker, then, argue that such a threat – no matter how legitimate – should not be taken up by the House simply because the conventional forum for doing so is currently unavailable? Extraordinary parliamentary times call for extraordinary procedural measures.

  4. You’d think if he found the question of privilidge (which could easily be brought directly to the house if it hasn’t already) in order he could make a direct ruling on it without need to refer to PROC.

    And, for that matter, he could convene a Committee of the whole if he found it necessary to address the problem. Or, for that matter, I’m fairly certain he could (outside the rules, but nonetheless) call a meeting of PROC and chair it himself.

    In fact, having the speaker as the chair of the procedure and house affairs committee might not be a bad idea.

  5. You know, I don’t think he’s even gotten to the point where he has considered the privilege question itself — his ruling was entirely based on the fact that it was improper for Ethics to have reported back to the House on the motion, particularly since the chair initially ruled it out of order before his decision was overturned.

    You’re absolutely right, though, that there are powers within his discretion that could end the standoff at PROC, or leapfrog it to bring the matter to the House as committee of the whole; the trouble is that he just doesn’t seem to want to take the next step.

  6. You know, I don’t think he’s even gotten to the point where he has considered the privilege question itself — his ruling was entirely based on the fact that it was improper for Ethics to have reported back to the House on the motion, particularly since the chair initially ruled it out of order before his decision was overturned.

    You’re absolutely right, though, that there are powers within his discretion that could end the standoff at PROC, or leapfrog it to bring the matter to the House as committee of the whole; the trouble is that he just doesn’t seem to want to take the next step.

  7. It is not for the Speaker to make a determination as to redress for a Question of Privilege. That falls to the House. His only role in a Question of Privilege is to determine whether or not there is a prima facie question.

    Once he makes that determination (and I would agree in this case, it seems like a no brainer, and I don’t know why Thibault didn’t do it right away), normally the member in question would move a motion to refer it to Procedure and House Affairs. But there is nothing to stop the member’s motion from referring it to committee of the whole, or of going straight to the question of redress. But again, the Speaker’s hands are tied. The only role he has is determining whether the issue should take precedence over the other business of the House.

  8. Okay, I’m a little confused by something. Has a question of privilege been raised? I didn’t think one had, only the report from Ethics.

  9. No, as yet, no one has raised a Question of Privilege; I meant that it appears, to me, to be a pretty clearcut question of privilege and, as such, when it *is* eventually raised in the House, which I suspect it will, the Speaker will almost certainly agree. At which point, as you point out, the member could then move the appropriate motion – or, in this case, the most appropriate motion possible under the circumstances, since it would usually go to Procedure. I can’t even remember the last time a QoP went to the House – as the House, or as committee of the whole. We really are in a brave, new world (and with such people in it).

  10. Normally motions of that sort breeze through, but if the member moved that the CotW or the House deal with it, I suspect there’d be a division. Then it would land so far down the order paper it wouldn’t see the light of day until an octogenarian Harper starts wagging his fist at rollerbladers whizzing by his electric scooter.

    The only viable option is for the Speaker to kickstart PROC. I’d *love* it if the Honourable member were to pop by and share his feelings on it… :)

  11. Well, if the motion were made as a part of question of privilege it wouldn’t be on the order paper. When the Speaker rules it a prima facie question of privilege, the motion takes precedence over the orders of the day. Yes, it would require a division and there are some procedural games that could be played, but it would be virtually impossible, if all of the opposition parties are united, to prevent the question from being put in a reasonable amount of time.

    Unfortunately, if the question of privilege hasn’t been raised yet, then they’ve missed the boat. One of the fundamental elements of a question of privilege is that it must be raised at the first opportunity. By playing games in the Ethics committee instead of going straight to a question of privilege in the House, they’ve lost that option. They can still deal with it through other channels, but then they run into the order paper problems you point out.

  12. Maybe I am a big jerk for saying this but I can’t help but find Peter Miliken unwilling to “stir the pot” and force honourable members to behave themselves because he hopes to end his long career in politics with an Ambassadorship to the U.K. Certainly, he won’t get such a thing if he makes decisions that stick in the PM’s craw.

  13. … but, as I understand it, the motion that would be put to the house would be for the house to take up the topic (similar to a reference to PROC). Unless it was worded such that the house suspend all other business and proceed straight to debating the redress, the referral would become a part of the normal order of business.

    Wouldn’t it be out of order to actually debate the redress within the QoP as opposed to debating the referral for redress?

  14. (See? See Kady? You’re not the only procedural wonk around here…) :)

  15. This entire thread brings tears of joy to my eyes. I’m not alone!

    As for the time lapse — remember, it was Pat Martin who brought the motion at committee, so neither Thibault – nor, for that matter, any other member – has yet tried to argue a Question. Could he – or, really, any MP – not make the case that they were attempting to follow the advice given by the Ethics Commissioner in her ruling to change the Code, but were thwarted, and consequently must bring the matter to the House as a privilege issue?

  16. That would, in effect, be arguing that it was the Speaker’s ruling that raised the QoP, which would, I think, be out of order.

    But hey, it’s worth a shot.

  17. Well, they could *also* raise the larger Question of Privilege to all members, on all matters related thereto, by the continuing non-existence of the Procedure and House Affairs committee, which is supposed to deal with privilege matters. Sort of a Question of Metaprivilege.

  18. I absolutley love this entire situation and personally think that it is the best way to keep our parliamentarians busy at something other than thinking up ways to ” SHIFT ” our taxes or worse to stick theri noses into our past relationships. What I really do not understand is the problem – the Chair and the Speaker have made clear their positions but the Lib’s keep trying to flip pages over from Flanagan’s book trying to figure out how Harper has manipulated them.

  19. What Chair? PROC has a chair now?

    (BTW, I didn’t know you had a past relationship with M. Bernier, Wayne!)

    I think the question of Metapriviledge would be entertaining to hear, but I think it would be conisdered a “matter of debate, not priviledge”.

  20. Just when ya get a good hearty civil-like discussion goin’ along comes Wayne the troll….

  21. One of the more informed discussions I have seen. Point of Privilege will come when House returns and if that doesn’t work, the matter likely will come up as an Opposition Day Motion and a House vote. No it is not over.

  22. As someone who appreciates nothing more than a good procedural wrangle, I can only say: Yay!

    Really, though, it would be downright irresponsible for the House to allow the post-Dawson ruling status quo to stand. Even Conservatives, surely, can appreciate that they, too, could very easily find themselves gagged, and unable to comment on matters of public interest if the current situation persists. This is actually beyond partisan politics; it goes to the heart of the rights and responsibilities of a Member of Parliament.

  23. I’m confused- what exactly is a ‘Point of Privilege’? Unfortunately for the government obsessed, that is one word not covered in ESL classes. Particularly mandatory high school ESl classes.

  24. Okay, you know how after Question Period, the Speaker usually has to deal with a raft of complaints about the behaviour of other MPs? Everything from rude hand gestures to ministerial answers of dubious accuracy? Or particularly nasty heckles? Those are Points of Order, and they happen *all the time*. A Point of Privilege is a little more serious than that – it takes precedence over all other business in the House, which should give you some idea of *how* potentially serious it can be – and involves a member arguing that his or her privileges, as a Member, have been breached.

    Basically, you raise a Point of Privilege so you can argue that you have a legitimate Question of Privilege, which is then, as OttawaGuy noted earlier in this, the geekiest parliamentary procedure thread in the history of the internet, left in the hands of the Speaker to decide whether you do, indeed, have a prima facie Question of Privilege. If he agrees with you, he invites you to move the customary motion, which ordinarily is to refer the matter to the Procedure and House Affairs Committee, which then considers the matter and reports back to the House.

  25. I think it`s time to bring in Super Nanny and a whole lot of “naughty benches”

  26. So … uh… is there some place to read up on this? I mean, other than House of Commons Procedure and Practice. Unless that’s surprisingly a great fun read that I could follow without needing to resort to drink and video tapes of past meetings of the house.

  27. Thanks guys! I’ll give those a go. And Kady, I’m not necessarily against reading the whole P&P, I just was thinking you (and others here, thanks OG) would have some protips on getting started.

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