Two more Conservative backbenchers support Mark Warawa's question of privilege - Macleans.ca

Two more Conservative backbenchers support Mark Warawa’s question of privilege

Stephen Woodworth and John Williamson add their concerns

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Earlier this afternoon, Conservative MPs Stephen Woodworth and John Williamson added their views to the discussion around Mark Warawa’s question of privilege about the ability of MPs to speak during the time allotted for statements by members.

They follow Brent Rathgeber, Nathan Cullen and Kyle Seeback.

Interestingly, Mr. Williamson extends his concern to the power of party whips to determine who asks questions during QP. That is a concern that Michael Chong’s proposed QP reforms sought to deal with.

Stephen Woodworth: Mr. Speaker, I do indeed rise to speak to the point of privilege raised by the member for Langley and discern the following two very important issues.

First, does Standing Order 31 give a right to every member equally to make a statement or does it give a right to make a statement only to the party whip and his or her designates?

Second, does Standing Order give you as Speaker the right to deny a member the opportunity to make a statement because you disagree with the content of it? If you as Speaker do not have the right to deny a member the opportunity to make an S. O. 31 statement for such a reason, how could you delegate such a prerogative to any whip or anyone else?

Delegating the right to deny what the Standing Order gives to members is altogether different from delegating mere administrative assistance to the whips.

If Standing Order 31 gives every member the equal right to make a statement, except for usual reasons relating to unparliamentary conduct, surely the House would need to amend the Standing Orders if the House wants to restrict such statements to only the whips and their designates.

Before proceeding, I offer two qualifications to my remarks. The first is that I have no personal knowledge of the facts on which the member for Langley raises his point of privilege. I have never been refused my place in the rotation of private members’ statements, so I leave it to you to determine the facts of the member for Langley’s case from the record before you.

My remarks will be based on the premise that a member has been denied the opportunity to make a member’s statement pursuant to S. O. 31 for no other reason except that his whip did not agree with his point of view. As such, this issue transcends the case of the member for Langley and transcends party boundaries.

I heard that a former NDP member reported to the media that the NDP whip or leader refused him an S. O. 31 opportunity for similar reasons. I am quite certain that this is possible in every party.

The Liberal member for Papineau expressed concern about empowering members of Parliament. I am sure many will no doubt be deeply disappointed if he does not intervene on this point to urge you to empower MPs in this matter now that the opportunity has arisen for him to do so.

I am sure that the member for Langley really would not care very much about losing a mere 60 seconds of airtime. I am convinced that his concern is not simply about his 60 seconds but about the democratic governance of this House.

Many Canadians have voiced concerns that members of all parties are becoming mere proxies for party leaders. Will that phenomena now extend even to 60-second statements?

Such democratic safeguards are more important than any single issue, even that of abortion. Such democratic safeguards also transcend partisan boundaries.

My second caution is that I do not hold myself out as an expert in the arcane precedents which govern the interpretation of the Standing Orders. I caught some of the remarks of the member for Edmonton—St. Albert on this issue. He seemed to be doing a good lawyerly job of reviewing the effect of those precedents. To that extent, I agree with and adopt his submissions.

My remarks on the other hand will be simply based on a common-sense reading of Standing Order 31.

After having practised law for almost 30 years, I am well aware of how arcane precedents can lead one away from a common-sense interpretation and even away from the very spirit of the enactment in question. However, I hope the precedents in this matter do not have such an unfortunate result with you.

I have three observations to the first of the two questions I have discerned in this, that being does Standing Order 31 give an equal right to every member to make a statement or does it give a right to make a statement only to the party whips and their designates.

First, Standing Order 31 itself clearly does not state that only a whip and his or her designate may be recognized. To my knowledge, that proposition has never before even been proposed until the government whip rose to speak to the member for Langley’s point of privilege.

The practice whereby the Chair is guided by lists provided by party whips surely cannot compel the Speaker to deny a member the opportunity to speak, which Standing Order 31 itself provides to the member. Surely, an administrative aid cannot now be cited as support for negating the Standing Order itself. If the House wishes to amend Standing Order 31 to limit opportunities to speak to only party whips and their designates, surely the House would give that direction to you by the ordinary process of amending the Standing Orders. Such as an important amendment cannot be accomplished by stealth without any debate or vote.

Second, I understand from the commentary in O’Brien and Bosc that Standing Order 31 apparently replaced previous opportunities for members to move motions in the House. Did the House really intend to remove every member’s right to make a motion and not at least give, in return, every member the right to make a mere 60-second statement? It seems to me that it was a quid pro quo at that time. That bargain having been made cannot be unmade now without an amendment to the Standing Order sanctioned by the whole House.

Third, I understand that even independent members are offered the opportunity afforded by S. O. 31. They are not recognized as parties in the House and have no recognized whip. Therefore, are they offered S. O. 31 statements merely as designates of some other party’s whip? I suggest not. Rather, they are offered S. O. 31 statements in their own right as members since that is what S. O. 31 provides to every member equally. 

As to the second question, does Standing Order 31 give you as Speaker the prerogative to deny a member the right to make a statement simply because you disagree with the content of it? It seems obvious to me the answer to that question is that I find no evidence that you possess such a tyrannical and anti-democratic prerogative to deny a member the right to make a statement simply because you disagree as Speaker with the content of it. In fact, the commentary in O’Brien and Bosc suggests that only a very limited list of reasons entitle you to disallow a member’s S. O. 31 statement.

This is my next question. If you do not, as Speaker, possess such a tyrannical, anti-democratic prerogative, then how can you delegate it to anyone else, party whip or otherwise? Further, if you were to insist that you do have such a prerogative, the effect would be to make you and your opinion about statements more equal than any other member of Parliament or their opinion, to purloin a phrase from George Orwell, and to delegate such a power to anyone else would make that member more equal than any other member of Parliament. I have to wonder if that is really what we have come to in this Parliament.

John Williamson: Mr. Speaker, I wish to join the debate on the matter raised by the member of Parliament for Langley regarding speaking rights in the House. I am going to turn to a number of reference documents, so if the House will bear with me I will try not to sound or look too much like a professor flipping through volumes quickly.

From O’Brien and Bosc we begin with: Members are expected to show respect for one another and for viewpoints differing from their own. Offensive or rude behaviour or language is not tolerated. Emotions are to be expressed verbally rather than acted out. Opinions are to be expressed with civility and freely without fear of punishment or reprisal. Most importantly, freedom of speech is one of the most important privileges enjoyed by members of Parliament.

Turning now to some of these privileges.

With respect to the classic definition of parliamentary privilege, O’Brien and Bosc on page 60 states:

The classic definition of parliamentary privilege is found in Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament: Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively…and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.

The rights and immunities accorded to Members individually are generally categorized under the following headings:…

The first being listed is freedom of speech.

Page 212 reads: Members sit in the House of Commons to serve as representatives of the people who have elected them to that office.

The member of parliament represents his constituency through service in the House of Commons.

Later we find, “The privileges of the Commons are designed to safeguard the rights of each and every elector. For example, the privilege of freedom of speech is secured to members not for their personal benefits, but to enable them to discharge their functions of representing their constituents without fear…”.

It goes on, “Privilege essentially belongs to the House as a whole. Individual members can only claim privilege insofar as any denial of their rights or threat made to them would impede the functioning of the House”. I would put to the House that that is where we are.

I would like to turn next to a report which really is the genesis of the S. O. 31, or the member’s statement. It is the third report of the special committee that dates back to 1982. There is one paragraph that I will draw your attention to, sir, and I quote here although I will jump through it and not read the whole thing. This is effectively what it says, “Under the new recommended procedure the 15 minutes preceding the question period will be reserved for members to raise matters of concern for the purpose of place them on the record. Every member recognized by the Chair would be given a maximum of one minute”. I will just highlight. It is members that are “recognized by the Chair”. That is to say, you, Mr. Speaker.

Then later we see in debate the hon. Yvon Pellaude stated, and I think this encaptures the intention of this reform, “I hope that the Chair, mindful of the intent of the committee report, will recognize hon. members without any regard for party affiliation and that the time available will be equally distributed between both sides of the House”.

Then if we turn quickly to page 423 of O’Brien and Bosc just to summarize where we are at today, 30 years later: The opportunity to speak during Statements by Members is allocated to private Members of all parties. In according Members the opportunity to participate in this period, the Chair is guided by lists provided by the Whips of the various parties and attempts to recognize those Members supporting the government and those Members in opposition on an equitable basis.

There are others who have gone before me, in particular, the member for Edmonton—St. Albert, who have gone through a good overview of how those rules today are to be interpreted.

However, my point to you, Mr. Speaker, is that rules and convention cannot trump a parliamentary privilege. That is to say that whether the situation in which we find ourselves today evolved to where it is or was actually passed, and can be found, in the Standing Orders, is irrelevant, simply because anything that comes along that blocks or impedes members from acting on their rights ought to be placed out of order. Blocking any MP from delivering a statement known as an S. O. 31, is a violation of privilege or right.

The Speaker recognizes MPs. He or she does not do so through any other authority or any other institution. We have heard an analogy of a hockey game, who decides to play and who does not. That decision was made by voters. They chose who will be on the ice in this House of Commons.

If we were to accept the analogy we heard that the Speaker does not decide, and I would urge him or her not to, it would mean the Speaker does not have the ultimate authority to recognize members. That actually goes against our entire set of rules, laws and institutions that govern this House.

What is being proposed by that flawed analogy is that in additional to removing the rights of MPs to speak, the argument also extinguishes the authority of the Speaker, because it suggests there is a higher authority. I ask you, Mr. Speaker, are you prepared to yield this ground?

Earlier, one of my hon. colleagues in the House further expanded on this analogy and likened it to a house league, and that we all ought to have equal time on the ice. That is an apt analogy. I will go in a different direction which I think is a better one.

I view this Parliament as the NHL, the top league in terms of law-making in this country, and the government is the Stanley Cup champion. It wins in large part through team discipline. Parties have great authority and great powers. They can rotate members in and off committees. The whip can cajole and he or she can intimidate. Ultimately, these teams can decide who will sit on the team and who will not. However, the teams do not decide who is able to speak in this House.

I believe there are limits that have been crossed that involve removing speaking rights and that suddenly now involve veto rights over who is able to be recognized as a member of Parliament.

Earlier today we heard from the opposition House leader. He very nearly missed the point. His focus was on decorum, and all members of Parliament would like to see that improve. Let us not forget that even the opposition party has begun to move into territory where S. O. 31s are being used by the opposition. Similarly the opposition whip picks and chooses who will speak. I believe it is one out of every five is used in this manner.

The point that was nearly missed, and the House leader came through in the end, was that in addition to decorum, this also involves our democratic principles. If we, or the Speaker, reinforce the authority of members of Parliament by reaffirming their right to speak and the Speaker’s right to recognize them, we will together strengthen democracy in this chamber, the power of representation and, in turn, I believe decorum will be improved. This brings me to my final point.

Mr. Speaker, your review of the S. O. 31 and how it is governed will logically take you into another area, and that involves question period and how you recognize members.

There is a wonderful daily spectacle in Westminster of MPs bobbing up and down hoping to catch the Speaker’s attention. The Speaker uses a combination of judgment and skill to select members to speak, and that could include party affiliation, the region the member comes from, the rural-urban balance, gender and ethnicity. These are the balls the Speaker must juggle in determining who will be recognized. On that, I would like to recite few lines from a book called, How Parliament Works, 6th edition authored by Rogers and Walters. On the Speaker’s power of the chamber, on page 50:

First, there is the power to call MPs to speak in a debate or to ask a question, described by Speaker Thomas as his most potent weapon. Of course, Speakers strive to be fair to every member of Parliament.

Later, regarding questions in the commons, it states on page 337: One of the main opportunities for backbench MPs on all sides of the House to pursue and expose issues and to get the government of the day to put information on the public record is the question period. The very existence of parliamentary questions and the opportunities that they provide for the representatives of the people to question the government of the day are of constitutional importance. Their effectiveness has always been down to the tenacity and skill of individual MPs, but whether the system can survive the strains that are now being put upon it is also in the hands of MPs generally.

I feel like that last line is perhaps foreshadowing the decision that you face here, Mr. Speaker.

On that note, as I ask you to expand your review of this question to not just consider S. O. 31s but questions in the House, I would remind you again, sir, that rules and convention cannot trump a parliamentary privilege, a right.

What we have seen over the last 30 years has all happened very slowly. To use an analogy, it is a bit like a frog in a pot of water. Toss a frog in hot water, it will quickly recoil and jump out, but slowly increase the heat, the frog will not jump out and instead the increasing heat will eventually kill it.

As I said, sir, I propose that your review go further and that you are guided both by your judgment and authority on these questions and yield to no one.