The Backbench Spring

After Question Period today, Conservative MPs Michael Chong and Pierre Lemieux stood in the House and expressed their support for Mark Warawa’s question of privilege. Their statements are below.

This makes eight Conservative backbenchers who have spoke up in this regard: Warawa, Chong, Lemieux, Leon Benoit, Brent Rathgeber, Kyle Seeback, Stephen Woodworth and John Williamson. Rod Bruinooge, as well, seemed at least open to the idea of change.

The involvement of Mr. Chong, who has pushed for QP reform, would seem to undermine the idea that this is merely a pro-life cause masquerading as a push for parliamentary reform—he voted for Motion 312, but said at the time that he was not in favour of banning abortion and Campaign Life Coalition considers him “not supportable.”

Mr. Lemieux extended his concerns to include the fact that Mark Warawa’s Motion 408 had been ruled out of order by the Procedure and House Affairs committee. Mr. Warawa has not yet announced whether he will appeal that ruling to the House.

Michael Chong: Mr. Speaker, I appreciate being allowed to speak to this point of privilege. It is the first opportunity I have had to speak to the point raised by the member for Langley, so I would like to add my thoughts for your consideration.

Speaking in the House of Commons is a fundamental right of members of this place. That is the most important starting point for all of us in this chamber. It is fundamental to what this chamber is all about. The real question in front of you, Mr. Speaker, on this point of privilege is really this: who gets to decide who speaks on the floor of this House? Is it the parliamentary party House leaders, the parliamentary party Whips or is it you, the Speaker, who ultimately has the power of recognition? That really is the heart of the fundamental question that the member for Langley raised. It is the question as to whether or not you, as Speaker, still have the power of recognition over members’ statements. The most important point to make in the context of this point of privilege is that the fundamental right of all members in this place is speech, the ability to use words to articulate points of view in this place, whether the members are independent members of Parliament not recognized as a parliamentary party, or whether they are members of Parliament who are part of recognized parliamentary parties.

House of Commons Procedure and Practice, also affectionately known as “O’Brien and Bosc” states: By far the most important right accorded to members of the House is the exercise of freedom in parliamentary proceedings. It has been described as a fundamental right, without which they would be hampered in the performance of their duties. It permits them to speak in the House without inhibition, to refer to any matter or express any opinion as they see fit, to say what they feel needs to be said in the furtherance of the national interest and the aspirations of their constituents.

It is the reason why members in this House enjoy immunity from libel and slander laws. It is the reason why it is a breach of a member’s privilege to prevent a member from physically getting to this House to speak on the floor. It is a reason why all these privileges exist. It is for us to be able to speak freely on this floor of the people’s place, the House of Commons. Speaking is what we do here. In a democracy, we do not solve our debates or disagreements through the tip of a sword or through violence. We solve them through words: words of praise, words of caution, words of criticism. That is why this point of privilege is so important. We settle debates in a democracy through words, and the ability of members to express those words on this floor is the heart of the matter.

Party whips and party House leaders for decades have served a coordinating and scheduling function as to who gets to speak on the floor of this House of Commons. They have played for decades the role of coordination and scheduling in terms of who gets to speak during debates and who gets to speak during other parts of Parliament’s life. For example, during debate, the party’s House leaders and the party whips coordinate among the three recognized parliamentary parties as to who is going to speak when during the debate, which members and which rotation. However, if a member of a recognized parliamentary party caucus were to rise at the very end of that list of members that had been coordinated by the three recognized parliamentary parties, a member who had not yet spoken to the bill and who is not on the list that had been prepared by the respective parliamentary House leaders, you, Mr. Speaker, would recognize him or her, even if the party whip or the party House leader sent you a note in the chamber and said, “Do not recognize this member”. Why? Because it is a fundamental right for a member to rise in his or her spot to speak to the chamber.

Unfortunately, over the decades the coordinating and scheduling function of party House leaders and party whips has shifted to that of a command and control function.

I want to draw everyone’s attention in the Chamber to what has happened to question period over the last 30 years. Before the 1980s, any member of the House could pose a question of the government. After the leader’s round was finished, any member of the Chamber had the fundamental right to rise in his or her place and ask a question of the government, both opposition and government members. Therefore, six or seven members would pop up at once, like we do in questions and comments, to ask questions of the government.

After the introduction of television in 1977, a significant change to question period was introduced by Speaker Sauvé. According to Mr. Marleau, the former clerk of the House, in the interests of making things more orderly, the speaker decided to request lists of members from the respective parliamentary parties in order to better organize question period. This was done to assist the speaker in the scheduling and coordinating of which members were going to ask what questions during the 45 minutes of oral questions. It was not intended to serve as a stripping away the power of recognition of the speaker to recognize or not recognize members during question period. It was not intended to give command and control over who got to ask questions during question period in the Chamber.

Over the last 30 or so years, that is precisely what has happened. Today in the Chamber, members of Parliament cannot ask questions of the government to hold it to account. They no longer have that fundamental right, whether they sit on that side of the aisle or on this side of the aisle. The only people who get to ask questions in the Chamber during oral questions are those who are given approval by the House leader or party whips, who create these lists which are submitted to you, Mr. Speaker, before 2:15 p.m. on Monday through Thursday and before 11:15 on Friday.

Despite Speaker Jerome’s ruling of April 14, 1975 that it is a right of members to put questions to the government during question period, today members of the House of Commons no longer have that right to ask questions of the government and to hold it to account.

That shift from the early 1980s to the present during question period from a coordinating and scheduling function on the part of the House leaders and party whips to you, Mr. Speaker, to one of command and control over who gets to ask and answer questions in this place, is instructive of the question in front of us today as to what we should do with members’ statements. That shift has eroded the basic principle on which modern Canadian political institutions are based. That is the basic concept of responsible government, the idea that the executive branch of government is accountable back to the legislature and that members in the House have to play that fundamental role, including members in the government caucus.

This shift from scheduling and coordinating to command and control has stripped members of the right to ask questions during question period and is now threatening to do the same during members’ statements. It has also eroded the power to hold the government to account, the fundamental concept of responsible government. It is something that our forebears felt important enough that a monument to Louis-Hippolyte Lafontaine and Robert Baldwin, figures in Canadian history in building these institutions, was erected behind Centre Block overlooking the Ottawa River, proclaiming responsible government in Canada.

It is something that the rebellions of 1837 were all about, the idea that crown prerogative was not unfettered and unchecked and that ultimately, the executive branch was accountable to the legislature.

In short, the idea that the executive is accountable to members of a legislature is a fundamental underpinning of modern political institutions in Canada, and the shift that has happened in question period and is starting to happen in members’ statements is eroding this very fundamental principle. This shift, Mr. Speaker, has also eroded your power of recognition in a corollary of which is your power of non-recognition.

Some in the Chamber have argued that parties have the right to discipline members and that parties have the right to curtail members if they say something the party has not approved of, and I agree with that principle. I agree that parliamentary parties, parliamentary leadership, has the right to discipline members for saying things either in the Chamber or outside the Chamber that they do not approve of. That discipline could involve removing a member of a parliamentary committee. That discipline could involve removing a member as chair of a committee. That discipline could involve removing a member from his or her duties associated with Parliament. But that discipline should take place after this fact of speaking in the Chamber and, most important, that discipline cannot include preventing a member from speaking in the Chamber.

It is clear to me that there exists a case of privilege. I ask that you, Mr. Speaker, see it also and that you take over the scheduling of S. O. 31 members’ statements from the party whips, party house leaders, restore your powers of recognition during members’ statements and strengthen this House of Commons.

Pierre Lemieux: Mr. Speaker, I rise today as a member of Parliament for Glengarry—Prescott—Russell and I am pleased that you have recognized me as such regarding this matter before you concerning member statements, also known as S. O. 31s, and the rights of members of Parliament, a matter which is of interest and which affects each member in this House.

As an elected member of Parliament, I greatly value our right to freedom of speech here in the House. It is a right that is strongly protected and defended by the rules governing this place. O’Brien and Bosc on page 59 states that:

The rights accorded to the House and its Members to allow them to perform their parliamentary functions unimpeded are referred to as privileges or immunities.

Also, on page 89: By far, the most important right accorded to Members of the House is the exercise of freedom of speech in parliamentary proceedings.

It goes on to say: […] a fundamental right without which they would be hampered in the performance of their duties. It permits them to speak in the House without inhibition, to refer to any matter or express any opinion as they see fit, to say what they feel needs to be said in the furtherance of the national interest and the aspirations of their constituents.

Mr. Speaker, it is evident that members have certain privileges and immunities to allow the maximum use of this freedom of speech. Some members have risen to indicate to you that there have been occasions where they have been denied the opportunity to raise certain subject matters in their S. O. 31 statements. It is clear that the House considers it extremely important for an MP to have freedom of speech to the fullest extent possible and that this fullest extent would naturally extend to the freedom to raise a subject matter on which to speak as one cannot utilize the freedom of speech privileges and immunities established in the House if one cannot rise to speak in the first place. I believe that this highlights the importance of the S. O. 31 issue presently before you.

S. O. 31s are one of the only opportunities that a member of Parliament has to speak to a matter that is not constrained by a debate already before the House. For example, when debate is on a particular bill or motion, an MP cannot raise a completely unrelated matter. I know that you are as generous as possible in allowing latitude in terms of an MP’s remarks in debate, but if the matter raised by the MP is not germane to the debate, he would be ruled out of order. In other words, when an MP rises to speak in the House, his comments must be relevant to the matter in front of the House at that time except when giving an S. O. 31.

The S. O. 31 offers a unique opportunity to an MP to speak on any matter and, as a result, MP privileges in this regard must be protected. Allow me to provide a concrete and relevant example of what I mean.

Last Thursday, March 28, the procedure and House affairs committee tabled a report in this place that rendered Motion No. 408 non-votable; a most surprising and disappointing determination. As the House knows, Motion No. 408 reads as follows: That the House condemn discrimination against females occurring through sex-selective pregnancy termination.

Mr. Speaker, as you know, there are clear criteria that had been established by the committee on procedure and House affairs by which bills and motions may be determined to be votable or non-votable. When Motion No. 408 is reviewed with respect to these criteria, one readily arrives at the conclusion that Motion No. 408 is votable and should have been deemed so.

Motion No. 408 being a motion and not a bill is an expression of condemnation, the type of which the House has expressed many times on a wide variety of issues. By inviting this House to condemn discrimination against females, Motion No. 408 is within the federal jurisdiction and it does not violate the Constitution Acts. An independent analyst, whose responsibility it is to research and be knowledgeable in these matters, was clear that Motion No. 408 does not concern questions that are substantially the same as ones already voted on by the House of Commons during this current session of Parliament. As the member for Langley pointed out, no other piece of government or private member’s business has called on Parliament to condemn discrimination against women and girls occurring through sex selective pregnancy termination.

Lastly, I would point out that there is widespread support for a motion such as Motion No. 408, and I think we saw this when the CBC televised its program on the airways.

Motion No. 408 is the first motion of its kind. It clearly meets the criteria for votability and it is therefore votable, and herein lies the problem and the importance of freedom of speech for S. O. 31s. In short, I do not support the determination that Motion No. 408 is non-votable.

It is important to note as well that this determination of non-votability infringes on my right to vote on a matter before the House that should be votable. In fact, the right to vote on a matter is the natural extension of the right to freedom of speech.

In one sense, voting for or against a motion or bill is the final word in a debate. It is a decisive action upon a matter before the House, an action that is deliberately taken once all is said and done, so to speak.

Motion No. 408 should be votable, and I believe that many Canadians and members in this place know that Motion No. 408 should indeed be votable.

As I mentioned, the determination of non-votability infringes upon the natural conclusion of freedom of speech, that of being able to vote on a matter, and because of this, it is my hope that the member for Langley will appeal this determination of Motion No. 408 being non-votable for the House so that MPs may reflect upon their rights and privileges and correct what has taken place.

The matter I have just spoken to relates to S. O. 31s, in that I am now receiving correspondence from constituents asking my view on this matter. Do I agree or disagree with the determination of non-votability? Do I defend this decision? Have I spoken publicly on this? This is indeed the challenge. If I were not to speak on this matter, it would be reasonable for my constituents to assume that I support the finding of non-votability, when this is clearly not the case. This would apply to my colleagues in all parties if they too disagreed with Motion No. 408 being declared non-votable and were prevented from saying so in this place.

Today I am fortunate to participate in the point of privilege raised by the member for Langley, but if there were no relevant point of privilege before the House, the only other opportunity to raise such a matter would be in an S. O. 31 statement. For this reason, a member of Parliament must have maximum freedom of speech in speaking to an issue such as this, but more important, being able to raise it in the first place.

I say this because it is conceivable that, if a member were prevented from being able to speak about Motion No. 408 itself, it is equally conceivable that they could also be prevented from speaking about their views on the non-votability of Motion No. 408.

It would indeed be an infringement on the rights and privileges of a member of Parliament if members were not able to rise to clarify their position on such important matters, or to give voice to the concerns of their constituents.

Last, it is possible for the current S. O. 31 convention to change, and I would suggest that it would be possible for you to manage S. O. 31s in the same way as you do petitions, Mr. Speaker. When the time comes to table petitions, it is you, Mr. Speaker, who recognizes MPs.

As Speaker, I have noted that you very capably find the appropriate balance by rotating between members of different parties. I also note that there is no pre-screening of petitions before they are tabled. A member simply rises, and when recognized, tables a petition, and it can be on any subject.

I conclude by stating that I support the point of privilege raised by the member for Langley, and that members must be afforded the greatest opportunity in latitude in being able to raise important matters and fully represent those Canadians they have been elected to represent.