Bill C-51 power play may come back to haunt Conservative MPs

The scene: a stuffy West Block committee room circa June 2008, a day before MPs are expected to hightail it home to their ridings after what had been, even for a minority House, a particularly acrimonious spring sitting.

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The issue: An opposition motion to investigate the so-called "in-and-out" controversy over Conservative election-spending during the 2006 campaign. The proposal had arrived at the Commons ethics committee after more than 15 hours at procedure and House affairs, which ultimately shut down for the rest of the session due to a seemingly unstoppable government filibuster.

After nine hours of arguments from the rotating contingent of speakers on the government side of the table in favour of tweaking the motion to cover all parties, committee chair Paul Szabo had, it seemed, heard enough.

Against emphatic objections from Conservatives, he invoked a rarely-enforced rule against repetition and irrelevance to shut down the debate, and called the vote — an unprecedented move one Tory MP could be heard describing as "unbelievable."

"We should walk out," suggests another Conservative.

"This is an affront to democracy," bellows a third.

But Szabo's ruling — which was upheld with the support of Liberal, Bloc Québécois and New Democrat committee members — stood, and the study went ahead over the summer.

Move to overrule committee chair challenged

Fast forward to last week's standoff at the public safety committee, where the roles have been reversed, and the governing Conservatives now hold the majority.

After eight hours of debate over a proposed timeline for witness testimony on the government's controversial anti-terrorism bill, the Conservatives successfully deploy their superior numbers to force a vote to end the stalemate. 

Unlike 2008, however, they had to override the ruling of the chair — their fellow Conservative Daryl Kramp — who reminded his caucus colleagues that such motions were inadmissible.

The New Democrats, who had hoped delaying tactics would ultimately get the government to agree to hear from as many witnesses as possible, lost no time lodging an official protest with Commons Speaker Andrew Scheer.

"The Conservative majority on the committee threw out the rule book, threw out a century and a half of traditions that exist in our country and in this Parliament, and took matters into their own hands," NDP House Leader Peter Julian told the House.

"Last night, the majority on the committee simply told the chair that his intention to stick to the rule book was simply not going to be followed by the Conservative majority on the committee," Julian continued.

"They ignored the rules. They ignored the practice. They ignored all the precedents. They ignored the clear direction, and they overturned a procedurally sound ruling by the chair."

'Tyranny of the minority'

Julian pointed to a 2009 ruling by then-speaker Peter Milliken, who cautioned MPs that "committees that overturn procedurally sound decisions by their chairs and choose to submit procedurally unacceptable reports to the House will have them declared null and void."

In response, Government House Leader Peter Van Loan fell back on the argument that committees are, for better or worse, masters of their own destiny.

"What you are being asked to do is to interfere in the affairs of a committee," he told the Speaker.

But the real issue, Van Loan contended, "is whether MPs will be allowed to study and consider the anti-terrorism bill that is before the House, Bill C-51, or can the opposition, by endless speeches and obstruction, obstruct such a bill and prevent it from ever being studied or passed."

"Let us call it a tyranny of the minority," he suggested.

"If you are going to accede to the point of order that has been forwarded by [the NDP], you are essentially going to be ruling that a minority—a single member, perhaps—has the ability to stand through a filibuster, as they have indicated, and block and obstruct legislation from ever passing and from ever being considered," Van Loan warned the speaker.

But as Julian noted in his rebuttal, at no point did Van Loan address the procedural issue at the heart of the dispute: namely, should the committee have been able to overrule the chair to force a vote on a motion deemed inadmissible by the black letter laws of Parliament.

The Speaker — in this case, deputy Joe Comartin, who was sitting in for Scheer on Friday — took the matter under advisement, which means Scheer will have until the House returns next week to consider his ruling.

Ruling could have profound impact

While it may sound like an eye-glazingly technical debate over House mechanics, the decision is one that should be watched closely not just by the New Democrats, but every MP currently ensconced in the government backbenches who plans to run for re-election — particularly those who have never experienced life on the other side of the Chamber.

There is, after all, no guarantee their party will win a second majority, which means they can't count on having the votes to rewrite the committee rulebook on the fly next time around — not without the support of at least one of the other parties.

That could put them right back where they were at the ethics committee in 2008, when the time-honoured art of the filibuster was virtually the only way to stymie an unwelcome motion.

It will also put future chairs — even those from the government side — at the mercy of the committee as a whole.

And someday, this and other precedents set over the last few years may affect a Conservative opposition's power to keep a New Democrat or Liberal government in check.

No matter how unlikely they may believe such a scenario to be, that should make any Conservative MP looking beyond the next 11 weeks of the House sitting think twice about laying down a legacy that could come back to haunt.