Wednesday 3 November 1993

Role of the independent member

Peter Sibenik, procedural research clerk, committees branch, Office of the Assembly


*Chair / Président: Hansen, Ron (Lincoln ND)

*Vice-Chair / Vice-Président: Wessenger, Paul (Simcoe Centre ND)

Dadamo, George (Windsor-Sandwich ND)

*Johnson, Paul R. (Prince Edward-Lennox-South Hastings/Prince Edward-Lennox-Hastings-Sud ND)

*MacKinnon, Ellen (Lambton ND)

*Mathyssen, Irene (Middlesex ND)

McClelland, Carman (Brampton North/-Nord L)

*Morin, Gilles E. (Carleton East/-Est L)

*Sterling, Norman W. (Carleton PC)

Sullivan, Barbara (Halton Centre L)

Sutherland, Kimble (Oxford ND)

Villeneuve, Noble (S-D-G & East Grenville/S-D-G & Grenville-Est PC)

*In attendance / présents

Substitutions present/ Membres remplaçants présents:

Poole, Dianne (Eglinton L) for Mrs Sullivan

Winninger, David (London South/-Sud ND) for Mr Sutherland

Clerk / Greffière: Freedman, Lisa

The committee met at 1537 in committee room 1.


The Chair (Mr Ron Hansen): We'll bring this standing committee on the Legislative Assembly together. I have here in my hand a sub slip given to me for Peter North to be substituted for Noble Villeneuve. I will rule that --

Mr Norman W. Sterling (Carleton): Just a minute, Mr Chair. Before you rule, I think it's only fair to undertake argument vis-à-vis whether this is in order or it's not in order.

The Chair: Go ahead.

Mr Sterling: Perhaps if the clerk can provide me with section 110(b) of the standing orders, I'd like to read it as to who can or cannot be substituted into a committee.

Clerk of the Committee (Ms Lisa Freedman): It's (c).

Mr Sterling: It's clause 110(c), I guess.

"A temporary substitution in the membership of a standing or select committee may be made provided a notification thereof, signed by the member acting as the whip of a recognized party," -- I believe that is signed by Bob Runciman, the whip of our Progressive Conservative Party -- "is filed with the clerk of the committee either before or within 30 minutes of a committee meeting being called to order."

There's nothing in the standing order saying that it must be a member of our party. Mr North is not presently a member of the Progressive Conservative caucus. He is an independent member. I thought it most appropriate that Mr North, being an independent member, have the right to participate in discussions and vote on this particular matter dealing with an independent member.

Who has a greater interest than the independent members as to whether or not they should or should not have rights or privileges vis-à-vis the goings-on in the Legislature of our province? Also, by being substituted as a member of one of the opposition parties, this in no way affects, of course, the majority of the governing party, if that is a concern, and therefore I would argue very strenuously that there's nothing in the standing orders which goes against the allowance of this substitute at this time.

The Chair: Any other comments?

Mr Paul Wessenger (Simcoe Centre): The question is, is it in order or not?

Mr Gilles E. Morin (Carleton East): The question I'd like to ask is, can he do that for any party, or is it only for the Conservative Party?

Mr Sterling: My argument is that the standing order allows the whip of any party to allow a substitution of one member for another member.

We've heard a lot, most recently in our federal election, about our parliamentary structures changing, the idea that participation in those structures be done on a free basis, that members have more of a role and less along a party line. Therefore, my party feels on this particular matter that these deliberations, dealing with the independent matter, should have an independent member sitting on this committee to deal with those matters. Now, whether or not a party would feel, on another subject matter, that this was appropriate, it would be up to that political party to make that decision.

The Chair: Any other comments?

Mr Sterling: I want to add, Mr Chairman, that I did give the clerk notice that I was going to raise this this afternoon in the House. I notified the clerk ahead of time so that people would not be taken unaware that I was going to attempt to substitute Mr North in this afternoon.

Mr David Winninger (London South): Mr Chair, could we hear from the clerk perhaps on this matter of the rules and what they provide?

The Chair: Okay.

Clerk of the Committee: I could read the rules for you. In terms of interpretation or ruling on the rules, that would be the Chair's role.

The Chair: Being Chair of other committees, I would have to rule that since he's not a member of one of the three parties, as it is, it says here in 110 -- I know we're pulling apart little technical things here. I feel we've got a report here and the report was to go to the Speaker to rule on this. This is why I feel, with the last day, just to approve a report -- I read in here, it says "representation of the recognized parties in the House." Now, there could be four parties, but the recognized parties that we have presently are the Tories, the Liberals and the NDP. So looking at the standing orders, I would have to rule that he is not to be substituted in.

Mr Sterling: Just before you go to that, Mr Chairman, because what you do by --

The Chair: I want to get the point that you're challenging the Chair. This is just information you're giving to me?

Mr Sterling: No. Basically I'd like to know what the history is with regard to this matter, whether or not there has been a precedent in terms of dealing with this and whether or not you, Mr Chairman, or we, should change precedent and why we should or should not change precedent.

I believe that section 110 of the standing orders was written to protect parties, to protect proportions in committee so that the proportions in the committee would be as they were in the House. So if I am the governing party and I'm in a majority government, I want to be very concerned that I always have the majority in a committee, and I understand that. If each of the parties wants equal representation in the committee vis-à-vis what they have in the House, I understand that as well.

But if one of the parties, our party in this case, decides that we don't need our fair proportion as determined by the House leaders in a generic form at this time, because of the issue that we're dealing with, why shouldn't my party have the right to make a decision to put an independent into this committee in order to allow him to debate on a subject which is as relevant to him or more relevant to him than it is to each of us who are members of parties?

I'm making the arguments behind the logic in terms of ruling in favour of allowing Mr North's substitution. What I would like to know is, is there precedent where some party has attempted to substitute before, and if it was rejected, I'd like to know the reasoning behind that. Am I missing something?

Clerk of the Committee: There are, to the best of my knowledge, two recent precedents on this section and I anticipate that you may wish to distinguish them from the current situation. The only rulings there have been on this section were on an attempt to substitute somebody for Mr Kormos while Mr Kormos was in committee, and there was an attempt to substitute an NDP member for Mr North when Mr North was no longer a member of the NDP and that substitution slip was rejected.

The Chair: It's been the practice --

Mr Sterling: I don't think that those are --


Clerk of the Committee: In the precedent that I've stated?

Mrs Irene Mathyssen (Middlesex): Yes.

Clerk of the Committee: The substitution slip was not allowed.

Mrs Mathyssen: It wasn't challenged; it was simply not allowed.

Clerk of the Committee: It was not allowed and it was not pursued in committee. It was not allowed.

Mr Paul R. Johnson (Prince Edward-Lennox-South Hastings): Notwithstanding Mr Sterling's munificence, if --

Mr Sterling: His what?

Mr Paul Johnson: Munificence.

Mr Sterling: Oh.

Mr Winninger: Not to be confused with magnificence.

Mr Sterling: I thought it was magnificence.

Mr Paul Johnson: Notwithstanding Mr Sterling's munificence, either this is in order or it's not, and if it's not, then I suspect the Chair could ask for unanimous consent as to whether it was allowed or not, and the prerogative is certainly up to you, Mr Chair.

Ms Dianne Poole (Eglinton): I'm not a regular member of this committee, but just to try to be helpful in solving this dilemma, since we don't appear to have a previous precedent that exactly fits this case, might I suggest that Mr North would have a right to come and participate in the debate just as any member of the House does.

It is my understanding from talking to colleagues in my party that that is not going to be a contentious vote, although that's subject to change at any given moment and any given whim in this particular place. Could Mr North not just participate as a member and give us his contributions and then you could reserve judgement on this while you consult perhaps with the Speaker and with other parliamentarians? It's just a suggestion.

The Chair: The thing is that any elected member of the Legislature can participate, but not as a voting member on the committee unless substituted by a party. If it's a Conservative, a Conservative member would be subbed in, or if it was a Liberal, it would be a Liberal or a government member. So I rule that there's no problem with Mr North sitting here as an elected member to participate, but not as a voting member on the committee.

Mr Paul Johnson: Good ruling, Mr Chair.

The Chair: So I don't find the substitution slip here valid because it's not the same party.

Mr Sterling: I think then we should adjourn, Mr Chair, so that I can appeal this to the Speaker.

The Chair: You're appealing my ruling to the Speaker then?

Mr Sterling: Yes, I am.

The Chair: Shall my ruling be appealed to the Speaker? All those in favour?

Mrs Ellen MacKinnon (Lambton): I don't understand.

Clerk of the Committee: Do you want me to explain it?

The Chair: Yes, explain it. Okay.

Clerk of the Committee: If there's an appeal of a Chair's ruling, the Chair has to put the question, "Shall my ruling be appealed to Speaker?" If a majority of the committee decides that the ruling shall be appealed, then the ruling shall be appealed to the Speaker. If a majority doesn't decide that it shall be appealed, then it's not appealed. The Chair will have to put the question, "Shall my ruling be appealed to the Speaker?"

Mrs MacKinnon: I have a question. Can I put it just now or am I in the wrong place?

The Chair: Okay. There's a motion already.

Mrs MacKinnon: I know, but --

Mr Sterling: I can still appeal it, regardless?

The Chair: Yes.

Mrs MacKinnon: I should have got my question in before.

Mr Sterling: But you mean I can't raise that in the Legislature?

The Chair: If we wind up at this point, if I'm defeated as the Chair, then we will dismiss for the day; we won't carry on with any more business, correct.

Ms Poole: Might I ask a point of clarification?

The Chair: Yes.

Ms Poole: Is the phrase, "Shall the committee uphold the challenge to the Speaker?" or, "Shall the committee allow the challenge?"

Clerk of the Committee: The actual question is, "Shall my ruling be appealed to the Speaker?" He's ruled that the substitution slip is not valid and the question that is to be put is, "Shall my ruling be appealed to the Speaker?"

Mr Sterling: What standing order is this?


Mr Sterling: Okay; I'm sorry I asked.

Mr Morin: Does this have to be done in committee?

Clerk of the Committee: Yes.

Mr Paul Johnson: This is a valuable learning experience for me today.

Ms Poole: This happens every time they tell me the committee meeting is going to be short.

Mrs MacKinnon: Mr Chair, aren't we jumping the gun? Nobody ever wants to let me talk anyway.

Mr Wessenger: Can we recess?

The Chair: Okay, we'll recess for five minutes.

The committee recessed from 1552 to 1554.

The Chair: Shall my ruling be appealed to the Speaker?

Mr Sterling: I'd like to speak on that.

The Chair: Yes, Mr Sterling. Wait a minute. There's no discussion now.

Mr Sterling: Why not? This is a question you're putting. Why can't we have discussion?

The Chair: There's no debate on a decision made by the Chair. So I'm saying, shall my ruling be appealed to the Speaker?

Mr Sterling: But this is a different issue.

The Chair: Do I have to have a show of hands on this?

Mr Sterling: I'd like a recorded vote.

The Chair: Okay. All those in favour?

Clerk of the Committee: Of it being appealed to the Speaker.

Ms Poole: Those in favour of an appeal to the Speaker, is that what we're voting on?

The Chair: Yes. All those in favour?



The Chair: Mr Sterling only. All opposed?


Johnson (Prince Edward-Lennox-South Hastings), MacKinnon, Mathyssen, Morin, Poole, Wessenger, Winninger.

The Chair: Defeated. Now we just carry on. Mr North, you're welcome to sit but not as a voting member.

Mr Peter Sibenik: I hope that all members have a copy of the revised draft report in front of them. I will just briefly review what changes occurred in these. I would say that the essential changes were to recommendations 5, 6, and a new number 7.

Number 5 is almost word for word a motion that was put the last day, as well as an amendment to that motion. It deals with membership on standing and select committees.

The sixth recommendation, dealing with access to certain information, was recast so that any member has an opportunity to request access to that particular information.

The seventh recommendation is a new recommendation dealing with the unanimous consent provisions in the standing orders of the House of Commons of Canada. There was some consensus the last day that perhaps the House leaders should look at this particular issue in light of the fact that there are a number of independent members who are not subject to party discipline.

Those are the three recommendations in which there were substantive changes.

The Chair: Any discussion?

Ms Poole: As a non-regular member of this committee and a substitute today, I was hesitant to speak, but I just want to commend the committee on the excellence of the report and for giving independent members an opportunity to participate.

I only have one minor suggestion, if it meets with the approval of the committee. On page 1, entitled "Introduction," the second bullet point says, "The standing orders provide independent members with many opportunities to participate in the proceedings of the House and its committees." I would submit that "many opportunities" might be a little excessive, because I think probably the majority of members in the House do not have many opportunities to speak.

Certainly, if you talk to the members of the government opposite, I think they do have opportunities from time to time, but very few of us have many opportunities. I think what you want for independent members is to ensure that they have similar opportunities as every other member. I would just ask if members would consider having that bullet point say, "The standing orders provide independent members with opportunities to participate in the proceedings of the House and its committees."

The Chair: Any discussion on the suggestion for leaving the word "many" out?

Mr Paul Johnson: If I may, that's a good point. "Many" is not well defined, and I think just "opportunities" generally is certainly -- if you have an opportunity at all, I think that's understood.

Mr Winninger: Are we allowed to raise new points now or are we still dealing with the original point?

The Chair: This is just Ms Poole's right now; if there's any other discussion on Ms Poole's. I think the committee is in full agreement. Does everybody agree that we leave the word "many" out? Okay. Mr Winninger.

Mr Winninger: Number 3, "Private Members' Public Business," 3(a) in particular, the recommendation is that an independent member "avail himself or herself" of standing order 96(c)(i), (iii) and 96(d). Every time I go away from this committee and come back --

Mr Sterling: You shouldn't go away.

Mr Winninger: I know. I probably shouldn't but we all have competing obligations.

My understanding at the last session of the committee I attended was that there was considerable concern, at least on the government side, and I think understanding on the opposition side, that the way in which rotations in private members' public business hour operate, government members are at a disadvantage. I don't know if we know more about how those names are picked from one drum or three drums than we did that day, but clearly if you have three drums and you're picking names from each drum in sequence, government members having a larger majority will have fewer opportunities as backbenchers to participate in that morning session. Has that now been clarified?

The Chair: Yes, it has.

Mr Sibenik: I believe we indicated the last day that there were in fact three boxes and that the names are picked in rotation, beginning with the government side. I believe I raised this particular issue the last day, but there seemed to have been a consensus on the part of the committee last day that we leave this for discussion, perhaps negotiation, among the House leaders. This particular recommendation was left intact from the previous draft report for that reason.

There was a difficulty, as you indicated, and that was raised at the meeting that you were in attendance at.


Mr Winninger: Perhaps I would ask you, firstly, then to confirm that it's your understanding, given the way in which the draw is made for rotation in private members' hour, that a party with more backbench members would have fewer opportunities for each backbencher to bring a bill forward in a session than would an opposition party having fewer members. Is there any consensus on that?

Mr Sterling: That's the way it is now.

Mr Winninger: That's the way it is now. I guess what I'm concerned about is that in no way does the report or recommendations, as I read them now, flag that as an issue. For the record, I've said before and I say again, I don't see why an independent member should have more opportunities than I do as a government backbencher to present resolutions or private bills during private members' public business.

Mr Sterling: He won't.

Mr Winninger: If he has a fourth drum, as it were --

Mr Sterling: No, he won't have a fourth drum. You put all the names in one jar and you start picking.

Mr Winninger: Right.

Mr Sterling: You start numbering them, 1 to 100, if all those people want in the draw. The independent member draws 43, so he is 43rd on the list; end of story. You take the first one. If that happens to be a government member, he's first. If the second happens to be a government member, he doesn't get on till the next week, and you put an opposition member in and you go through your rotation, as they are now. But the independent member will have no more advantage nor less advantage than anyone else. He will be 43rd if he's 43rd, he will be 99th if he's 99th, and he'll be first if he's first.

Mr Winninger: Well, okay --

The Chair: Mr Winninger, we had gone through this last week at the particular meeting and it was agreed upon by the committee that this report, the way it's written now -- I think we're rehashing an old issue. You've brought the point forward to the committee again, but I don't think we want to debate that particular part when we have the report written in a final draft. If you had been here last week, you could have put your comments at that particular time. It's unfortunate that you had another commitment at that time.

Mr Winninger: Then I need clarification, okay? Under the existing concept there are three bins, and names are drawn in rotation.

Mr Sterling: Not a bin. Talk about the choices that are there.

Mr Winninger: You're saying each member will be given a number --

Mr Sterling: Yes.

Mr Winninger: -- and in that ideal random draw, any member would have one chance in 110, shall we say, to have his or her number be drawn.

Mr Sterling: That's right. But if you're a member of the government, your name may be delayed if in fact you're not in rotation as to what goes around. In other words, if it's government, opposition, third party, then that will be one, two three, one, two, three, and they will take the highest numbers in each of those categories.

Mr Winninger: Will an independent be treated like an opposition member? Is that what I'm hearing?

Mr Sterling: No, he won't.

Mr Winninger: How will he or she be treated?

Mr Sterling: He or she will be treated as to the exact number that he or she gets.

Mr Morin: That he's drawn.

Mr Sterling: That's right.

Mr Winninger: So if he gets a 41 number?

Mr Morin: He's 41.

Mr Winninger: And how does he get his number in the first place?

Mr Sterling: You put all the numbers in --

Ms Poole: I was quite confused, the same as Mr Winninger, as to how this was happening, but apparently they only actually end up drawing from one box, even though there started out to be three.

Mr Sterling: No. I'm saying they're going to have to change it. They're going to have to have one box.

Ms Poole: Okay. Right now they have three, but you're saying they would change it to one box.

Mr Sterling: That's right. It's just a little bit of a mechanical change. Now, I will say that an independent member may have a slight advantage over a government member under the system that I'm proposing.

Mr Winninger: If that's the system, I don't agree to it.

Mr Sterling: I'm saying very, very slight.

The Chair: The clerks were going to sit down with the House leaders on this particular issue, so that's where we'd resolved it.

Mr Winninger: It's an easy thing to just say in this section 3(a) the same sort of thing we say with respect to many other sections, "The Speaker shall have regard to the opportunities that members of the [recognized] parties have to participate in private members' public business," because I can see a case perpetuated, and we have government members who have never had a chance to present any resolutions or private business on Thursday morning, and an independent member could then have an opportunity that a government backbencher has never had. It strikes me as strange that they would have more rights than government backbenchers.

The Chair: I think you've got some of it confused here, and I think it may be just a little bit of advantage, as I say, to the independent is what you're saying and Mr Sterling said. But I think the committee had actually resolved the issue of putting it to the Clerk and the House leaders on this particular issue.

Mr Sterling: I think the decision that's going to be made is going to be a combination of negotiation and striking the mechanics of how it's done. In other words, the three House leaders are going to have sit there with the Clerk and the Clerk is going to offer opportunities how they're going to have the draw and the House leaders are going to have to say that's fair or that's not fair or whatever. For us to sit around and talk about this thing in the abstract, there's no fruit, and that's what we decided at the last meeting.

Mr Winninger: I agree, but the addition of a simple sentence to (a), that it shall be subject to discussion among the House leaders, would give me the comfort level I need to ensure that if I don't have the same rights now that an opposition member has, they won't be diminished under this system where we could have three new independent members taking up precious little private members' House time.

Mr Wessenger: Could I make a suggestion? Maybe to resolve it, I think, for clarification, if we added in the words "avail himself or herself of standing order 96(c)(ii) in accordance with a process agreed to by the House leaders," if we could all agree to that, it would --

Mr Sterling: That's fine.

Mr Winninger: That's all I needed.

The Chair: Agreed? Okay, we'll add that in then. That's what we had as the thought of the committee last week on that particular thing.

Any other comments on the report? Shall the report be adopted? Agreed?

Mr Wessenger: As amended.

The Chair: As amended.

Shall I report the report to the House? Agreed?

Mrs MacKinnon: To the House or to the Speaker?

The Chair: To the House. It'll be handed in to the House, which will go to the Speaker.

Mr Morin: That's why in committees when we say --

The Chair: Reports by committees.

Ms Poole: In routine proceedings.

Mr Morin: Yes.

The Chair: Shall the title of the report be The Role of the Independent Member? Any comments? Okay, everybody's in agreement then.

We'll call a subcommittee meeting immediately on adjournment.

The committee adjourned at 1609.