Chapter VI — Process of Debate

Introduction

Although detailed provisions govern particular classes of business such as public bills, financial procedures and Private Members’ Business, there are several Standing Orders which apply to all categories of business. This chapter brings together these widely applicable Standing Orders to provide a basic outline of the process of debate in the House. Included, therefore, are Standing Orders governing the sequence of consideration and the manner of disposition of Order Paper items, the length and frequency of speeches, voting procedures, the reading of motions when not printed, the raising of points of order and matters of privilege and, finally, the effect of prorogation on House orders and addresses.

Commentary — Standing Order 40

The first part of this Standing Order stipulates that all items of business placed on the Order Paper, except Government Orders, be considered according to precedence. As it happens, the major portion of House time is devoted to the “exception” in this Standing Order (i.e., to Government Orders). Many of the items of Private Members’ Business, although included on the Order Paper for any given day, effectively do not have any precedence, as they cannot be taken up on that day since an additional notice has not been given (see Standing Order 94(1)(a)). Usually, therefore, only one item of Private Members’ Business will have precedence. The only other items with a fixed precedence are those included in Routine Proceedings, and, on Wednesdays, under Notices of Motions for the Production of Papers.

The sequence of Government Orders on the Order Paper does not reflect their precedence but is rather an administrative breakdown showing different categories of government business or projected government business in chronological sequence.

Historical Summary — Standing Order 40

This Standing Order, with various modifications, has been in effect since 1867. Its original intent was to prevent surprises which might otherwise catch Members off-guard. [1] By requiring bills and motions to be considered according to precedence as provided in the rules respecting the daily order of business and the arrangement of bills on the Order Paper, it was possible for Members to anticipate the agenda of a sitting with confidence.

Exceptions, however, were always possible, but only if consent were obtained, a Special Order agreed to, or a motion passed to proceed to another item or order of the day. Such restrictions applied more rigidly to bills or motions sponsored by private Members. Government Orders, on the other hand, were exempted from the strict application of the rule when considered “on the days on which government bills have precedence.” Moreover, it was “the practice to call government orders according to the convenience of ministers” and this rarely gave rise to any difficulties or objections in the House. [2]

In 1906, the Standing Order was amended to make more explicit the exempt status of Government Orders. The revised rule included a provision that “Whenever government business has the precedence, government orders may be called in such sequence as the Government may think fit.” [3]

The right of the government to call Government Orders in the sequence it chose was altered somewhat in 1955. A revision at that time to the rules of Supply now required that the motion “That Mr. Speaker do now leave the Chair” for the purpose of going into “Committee of Supply… must stand as the first order of the day on a Monday.” [4] Another change, made in 1965, obliged the government to call as its first item of business any motion moved under Routine Proceedings that had been interrupted or adjourned. [5] Both these items were deleted in 1968: the first because the business of Supply was completely revised, and the second because it was judged to be too restrictive. [6] The Standing Order has remained unaltered since then.

The hybrid nature of Supply motions, which are formulated by members of the Opposition yet considered under Government Orders, gave rise to one of the few instances in recent years where the Speaker invoked the Standing Order to resolve a dispute. On February 11, 1982, the Government House Leader announced that a Supply day set for the following day would be postponed one week. When the Opposition objected, the Speaker ruled that as Supply motions fall under Government Orders, they can be “called and considered in sequence as the government determines.” [7]

More recently, the Speaker cited Standing Order 40 when the Opposition challenged the right of the government to call a bill for debate even though, as they claimed, its text was in imperfect form. Despite this charge, the Speaker agreed to allow debate without prejudice to any ruling that might be rendered because, as he stated, under the terms of Standing Order 40(2) the government was within its right to carry on with the debate. [8] The Speaker has also ruled that the government is free to call a bill at report stage, even if the transcripts of the committee proceedings on the bill were not available. [9] Changes to the projected business of the House have sometimes led to complaints from Members, to which the Speaker has invariably responded that the government has the right to call the business it chooses during Government Orders. [10] However, once an Order of the Day is read, that order must be dealt with until adjourned, interrupted or disposed of. [11]

Commentary — Standing Order 41

The House’s consideration of an item may be interrupted for many reasons. The daily sitting calendar, for example, provides that the House proceed to Statement by Members, Question Period and Private Members’ Business at certain times (see Standing Order 30). Also, there is a fixed adjournment time for each sitting (see Standing Order 24(2)). Section (1) of Standing Order 41 provides that, if the consideration of an item is interrupted due to a provision in the Standing Orders or due to a special order adopted by the House, the item does not drop from the Order Paper or lose its precedence. Instead, it is carried over and can be taken up again either later in the same sitting or on the next sitting day. As such, a disposition to proceed to another item on the Order Paper after an interruption on the same day can be done without jeopardizing the progress or standing of the original item. Naturally, it is also possible, in reference to most items of business, to adjourn the debate on one item and move on to another one, again without affecting the progress or standing of the original item. [1]

Section (2) makes similar provisions for Orders of the Day interrupted due to an unscheduled adjournment of the House, either because a motion to adjourn was adopted (see Standing Order 60) or because the House lacked a quorum (see Standing Order 29). Here again, the item under consideration remains on the Order Paper and may be taken up the next sitting day.

However, as with any general rule, there are exceptions. For example, business may not stand over when it is the subject of closure (Standing Order 57). Also, when private Members’ initiatives are interrupted, they are disposed of according to critera specific to Private Members’ Business (see in particular, Standing Orders 93 and 96). Section (2) of this rule does specify that if a non-votable item of Private Members’ Business is interrupted due to an unforeseen adjournment, it is dropped from the Order Paper.

Historical Summary — Standing Order 41

Between 1867 and 1906, the Standing Orders did not provide for the adjournment of the House at a fixed hour. As a result, if a question was under consideration when the House was ready to adjourn, a Member would first have to adjourn the debate on it in order to prevent that question from being superseded by a motion to adjourn the House and thus dropped from the Order Paper. [2] On Mondays, Tuesdays and Fridays, the 6:00 p.m. dinner interruption did not create such a need, since during that time the Mace was left on the Table and the House was considered to be still sitting. This meant that the business “interrupted” at 6:00 p.m. was merely continued after supper, where it had been left off. [3] However, this was not the case on Wednesdays and Thursdays, when the business interrupted at the supper hour was allowed to stand over until the following day without need of a motion to adjourn the debate on it. [4]

In 1906, the House adopted a fixed hour of adjournment for Wednesday (6:00 p.m.) [5] and abandoned the provisions for the standing over of business on Thursdays at 6:00 p.m. [6] This meant that the business being considered on Wednesdays at 6:00 p.m. was now being stood over at the adjournment rather than at the dinner hour. On other weekdays, with Thursdays added, the same arrangement as before prevailed.

In 1927, a fixed hour of adjournment was agreed upon for Mondays, Tuesdays, Thursdays and Fridays. In conjunction with this change, the first version of the present Standing Order 41(1) was adopted — in fact, both changes were part of the same new Standing Order. [7] Thus the new rule not only provided for an 11:00 p.m. adjournment four days a week, but also provided that the business under consideration at that hour would be automatically interrupted and would “stand over until the next sitting day when it [would] be taken up at the same stage where its progress [had been] interrupted.” [8] Business interrupted at the adjournment hour on a Wednesday continued to be stood over automatically under a separate rule. [9] The latter procedure was finally abolished in 1955, when the 1927 Standing Order regarding the other days of the week was simplified to apply to each sitting day at the ordinary adjournment hour. [10]

The adoption, in 1982, of new hours of sitting necessitated further changes to the Standing Order. Because the House would now meet at 11:00 a.m., break for the luncheon hour and then proceed to Statements by Members, Question Period and Routine Proceedings (the latter of which might not be completed before the adjournment), special provision had to be made for the standing over of the business interrupted at mid-day. [11] This was in contrast to the evening interruption — abolished in 1982 when night sittings were dropped — where the business under consideration at 6:00 p.m. was merely continued after the dinner break, the House being considered to be still sitting during that time.

Similarly, the rule underwent another adjustment to match a change in the hours of sitting for Fridays in 1987 [12] and was further modified in 1991 due to a change in the order of business on Mondays. [13] Finally, all references to days and times were removed in 1994, when the current wording of section (1) was adopted. [14]

Section (2) of the Standing Order, dealing with unforeseen interruptions, was added only in 1991. [15] Prior to that, if a motion to adjourn the House was adopted while an item was under consideration, or if the House adjourned for want of a quorum, the item was superseded and dropped from the Order Paper as there were no provisions to allow it to carry over. [16] A Member could, however, at a subsequent sitting move to revive the item, and such a motion was to be decided without debate. [17] In March 1990, the House adjourned for lack of quorum on a Supply Day, which led not only to the loss of the opposition motion under consideration, but also to the disappearance from the Order Paper of the permanent Order of Supply. In the procedural arguments that ensued, the Speaker ruled that the Order could be reinstated by way of a motion without notice and that Supply proceedings could resume where they had left off. [18] Section (2) was added shortly thereafter.

Since May 1991, there has been only one instance where the House has adjourned for lack of a quorum. The item before the House was a votable private Member’s bill. [19] There have also been cases where a motion to adjourn the House has been adopted while an Order of the Day was under consideration. [20] In all these cases, the items remained on the Order Paper pursuant to section (2) of this Standing Order.

Commentary — Standing Order 42

This Standing Order regulates the course of business as set forth under different categories on the Order Paper. Under section (1), the government may request that written questions and all notices of motions, including notices of motions for leave to introduce bills (government and private Members’), government and private Members’ notices of motions, and notices of motions for the production of papers and notices of motions (papers), which are not taken up when called by the Speaker, may be allowed to keep their place on the Order Paper for the next sitting when that business is taken up. In practice, the rule tends to be more formally observed with respect to written questions. In that case, a government spokesman, usually the Parliamentary Secretary to the Leader of the Government in the House of Commons, makes a request to stand all unanswered written questions, assuming the Members involved would not take up their questions if such questions had been called separately. The Speaker then asks if the Members involved are agreed. With respect to notices of motions for leave to introduce bills (Introduction of Bills) and notices of motions (Routine Proceedings), the Speaker usually allows them to stand without actually receiving a request from the government, since such a request is assumed. The government’s request is not conditional upon consent of the House; any questions and notices of motions will automatically keep their place on the Order Paper if they are not taken up when called and the government requests that the items be allowed to stand.

Should the government fail to make the request, that item of business will not appear on the Order Paper for the next sitting it would be taken up, but it can be easily reinstated after appropriate notice. It will not, however, have the same place or precedence on the Order Paper; the item will be placed at the bottom of the list for that category of business.

The second section of the Standing Order deals with items that have been ordered for consideration by the House. As with questions and notices, a simple request of the government allows any item not taken up to retain its place on the Order Paper. If the request is not made, ordered items do not disappear from the next Order Paper; instead, the particular item drops to the bottom of the list in its category. In modern practice, the scope of this rule has become limited since any Government Order is called only when the government is prepared to take it up, and private Members’ orders usually follows a program regulated in part by other rules.

Section (3) simply allows Order Paper items not reached during a sitting to have their consideration postponed automatically without requiring a motion to that effect. Since items on the Order Paper are there because a Member gave notice or the House ordered it, the consideration of those items must be postponed to the next sitting for the House to be then able to consider them. Section (3) provides for this immediately the House adjourns its sitting.

Historical Summary — Standing Order 42

Relatively few changes have been made to this rule since its adoption in 1867. At that time, sections (1) and (3) of what is now Standing Order 42 were listed as two separate rules (1867 Rule Nos. 25 and 26). [1] Rule 25 was modified in 1876 and both rules were amalgamated into the present three-part rule in 1906. Except for minor editorial changes made in 1912, the Standing Order has not changed to this day. [2]

As originally formulated, section (1) (Rule 25 in 1867), stipulated that “Items not taken up when called shall be dropped…”. This meant that as the House proceeded through the Order Paper, any items of business not moved when called were removed from the Order Paper and, if it was an order of the day, was “set down, in the Order Book, after the Orders of the Day for the next day on which the House shall sit.” This did not always actually happen, however, because these items, particularly questions and notices of motions, were frequently allowed to stand in instances where the mover was absent or not prepared at that time to proceed. [3] This time-consuming practice once prompted Sir John A. Macdonald to insist upon the application of the rule; items called should either be moved or dropped. [4]

In an attempt to remedy the problem, albeit partially, the rule was redrafted in 1876 to exempt government notices of motions and orders from being dropped if not moved when called. The revised rule read “Questions put by Members, Notices of Motions, and Orders other than government notices of motions and orders not taken up when called shall be dropped. Dropped Orders shall be set down in the Order Book, after the Orders of the Day for the next day on which The House shall sit.” [5]

The exemption of items of government business led to a practice whereby non-government motions were also permitted to remain on the Order Paper and keep their place if the government requested it. This apparently had been the intention of the committee which drafted the amended rule, according to Sir John A. Macdonald. [6] Some years later, this unwritten practice was explicitly acknowledged by the Speaker. In a statement offered as advice to Members in 1896, the Speaker noted that “when questions are called and not put, and when notices of motion are called and not moved, for any reason, they disappear from the Order Paper unless they are allowed to stand at the request of the Government.” This request, he observed, “is not a part of the rule, but it is a usage or understanding, which of course will be observed unless the House decides to the contrary.” [7]

In the 1906 reforms, the House incorporated this useful practice into the rules and refined it further by separating notices and orders into two separate sections. Questions and notices of motions were to disappear altogether from the Order Paper should they not be taken up when called (but could be renewed); orders, on the other hand, simply dropped to the bottom of the list in their category. [8]

The responsibility of the government to request that items be stood does not seem to have prevented Members from making the request themselves. In 1912, this practice drew comments from the Speaker, who expressed the hope that in future, “…the House may be governed by the rule a little more closely…”. [9] While there is no doubt that the government did act in making these requests to postpone various items of business when called, it is equally the case that the Speaker was not always successful in curbing the practice whereby Members themselves made the request. By 1959, the practice had become so common that the Speaker of the day felt obliged to rationalize it within the terms of the Standing Order. It has been assumed, he stated “…that, if the government did not object to the honourable Member’s request to have his order stood and no objection was made, the government had requested it to stand and the item was stood…”. [10] In this particular case, the Speaker was dealing with an order. Exactly two years later, the same Speaker made a ruling invoking the same Standing Order, but this time as it applied to notices of motions for the production of papers. [11]

It is clear from current practice that the situation has evolved even further away from the written rule. Almost invariably, either the Speaker or a Member assumes the initiative for standing the notices of motions for leave to introduce bills or notices of motions during Routine Proceedings without the government making a request.

In late 1983, proceedings under “Motions” were brought into question when the Speaker attempted, with unanimous consent, to dispense with calling motions and standing all except those which Members were prepared to move. Because the opposition reluctantly agreed to do this on some occasions and refused on others, the government suggested that it was prepared to see all motions drop from the Order Paper. [12] In the end, nothing came of this.

The perception that consent of the House plays an element in the government’s request to stand items is evident from exchanges which took place also in late 1983. On several occasions when the Parliamentary Secretary to the President of the Privy Council asked the Speaker to stand all questions, the Opposition House Leader suggested that the consent of the House to the government’s request might be refused unless assurances were given to provide answers to written questions promptly. [13] It should be noted, however, that it is the consent of the Members involved not to take up their items which is being requested.

Commentary — Standing Order 43

Section (1) of this Standing Order provides that when the Speaker is in the Chair, each Member is limited to 20 minutes in any debate unless otherwise provided in the Standing Orders. “Unless otherwise provided” refers, for example, to the ten-minute limit on speeches during Private Members’ Hour and report stage, as well as the exception noted in Standing Order 74 relating to second and third reading of government bills. In only four cases is an exception made for speeches of longer length. The Prime Minister, the Leader of the Opposition, a Minister moving a Government Order and the Member speaking in response to and following that Minister have unlimited time. In instances where the Parliamentary Secretary makes the first speech on behalf of the government, he or she has unlimited time as well as the opposition Member replying immediately thereafter. [1]

The Standing Order also provides for a ten-minute question-and-comment period following the speech of any Member who has unlimited time or any Member limited to 20 minutes, under this or any other rule. In addition, following all speeches limited to ten minutes by other Standing Orders, there is a five-minute question-and-comment period. [2] The rule provides an exception for ten-minute speeches during Private Members’ Business or during consideration of delegated legislation, which are not subject to questions and comments. This question-and-comment period is governed by the Chair. [3] During this time, Members may direct questions to the Member who had just completed his or her speech [4] or may comment briefly on matters relevant to the speech. [5] The Member whose speech has just been completed may be allowed to respond. [6] The Chair has made a number of rulings on the question-and-comment period. During this period, an adjournment motion cannot be moved; [7] the questions and comments are subject to the relevancy rule; [8] the question-and-comment period should not continue in the unavoidable absence of the Member who made the speech if the debate resumes after a normal interruption; [9] preference in this period is to be given to Members of parties other than that of the original speaker, but not to the exclusion of Members of other parties; [10] amendments to a motion or bill cannot be moved during this period; [11] nor can a motion to extend the hours of sitting of the House. [12]

Members limited to a 20-minute speech may indicate to the Chair that they wish to share their time with a colleague, either from their own party or from another party. In such cases, each may speak for ten minutes, followed by five minutes for questions and comments. A party Whip may also indicate that Members of his or her party will be sharing their 20-minute speaking time over the course of a debate. The Chair has ruled that when a Member who is sharing his or her time moves a superseding motion, this puts an end to their speaking time and the Member with whom the time had been shared loses his or her turn. [13]

Historical Summary — Standing Order 43

From Confederation until 1927, few limits existed on Members’ rights to speak for as long as they wished on the majority of proposals before the House. [14] Even though a resolution had been adopted by the House in April 1886 objecting to the practice of delivering speeches of great length, which was “destructive of legitimate and pertinent debate”, [15] it was not until 1927 that a rule was adopted limiting somewhat the length of speeches.

The 1927 rule, known as the “40-minute rule”, provided that no Member could speak for more than 40 minutes at a time in any debate, except the Prime Minister, the Leader of the Opposition, a Minister moving a Government Order or the Member speaking in response to and following the Minister, a Member moving a motion of no confidence in the government or the Minister replying thereto. [16]

The rule remained unchanged until 1955 when the House adopted a 30-minute limit on speeches in Committee of the Whole. Accordingly, the Standing Order limiting Members’ speeches to 40 minutes was reworded to apply only “when Mr. Speaker was in the Chair”. [17] In April 1962, permanent changes were adopted limiting the length of speeches in the Address in Reply and Budget debates and during Private Members’ Hour and, thus, the proviso “unless otherwise provided in these standing orders” was added to the text of the Standing Order. [18]

The basic 40-minute rule remained unrevised until November 1982 when the Special Committee on Standing Orders and Procedure recommended in its Third Report major changes to the time limits on debate: first, that limits on speeches be shortened in the majority of cases to 20 minutes in an effort to introduce greater spontaneity and “cut and thrust” into the debate; second, that a 10-minute period be made available following each speech for questions or comments to the Member who had spoken. [19]

No further changes were made until June 1985 when, based on recommendations from the First Report of the Special Committee on Reform of the House of Commons, [20] the House agreed to remove from the Standing Orders references to “no-confidence” motions, and the Standing Order was amended accordingly. [21]

The original wording of what is now subsection (1)(b) was unclear as to whether there were questions and comments after the speeches of Members who had unlimited time. The Chair ruled on several occasions that it was not the practice. [22] In 1991, the rule was amended to specify that only 20-minute speeches were followed by questions and comments. [23] Members occasionally expressed frustration that they were unable to ask questions following speeches of an unlimited length. [24] The rule was provisionally amended in 2005 to permit questions and comments after such speeches. At the same time, provisions were made for a five-minute question-and-comment period after all ten-minute speeches. Finally, all references to questions and comments found in other Standing Orders were removed and it was made clear that the question-and-comment provisions in Standing Order 43 applied to all speeches, with the only exceptions being those enumerated in subsection (1)(c). [25]

Section 43(2)(a), which permits the Whip to indicate that Members will be sharing their speaking time, was added in 1991, at the same time as a similar provision was added to Standing Order 74. [26] In the months before the rule was formalized, Members frequently asked for the consent of the House to share their speaking time with a colleague, though consent was not always assured. [27] By sharing time, a party could have more of its Members participate in debate while still respecting the usual rotation. Though party Whips occasionally rose to indicate that the Members of their party would be sharing their time, since the rule was adopted, Members regularly notified the Chair directly that they were sharing their time with a colleague. [28] Speaker Parent ruled in 1999 that the practice had become so well-established, he was hesitant to insist that only Whips use this prerogative. [29] He expressed a hope that a committee would consider rewording the rule to make it more consistent with the practice, but it was only in 2005 that section 43(2)(b) was added. [30]

Commentary — Standing Order 44(1)

This Standing Order reflects a fundamental principle of parliamentary procedure “essential to the dispatch of business”: each Member is entitled to speak only once to a question. [1]

There are, however, exceptions to this rule. Section (1) recognizes the right of each Member to speak twice to a question in cases where a material part of his or her speech “may have been misquoted or misunderstood”. When speaking a second time under such circumstances, the Member must limit the intervention to an explanation of the alleged misquotation or misunderstanding and cannot introduce new material in doing so. The explanation is not subject to debate. [2]

In addition, Standing Order 44(2) allows the movers of certain kinds of motions to speak twice (that is, to reply) when no other Members wish to speak and debate is at an end. Finally, the House will occasionally circumvent the rule by giving its unanimous consent to a Member to speak a second time to a question. [3]

A Member who, on the resumption of an interrupted debate, resumes speaking to make full use of his or her allotted debating time (see Standing Order 43) is not considered to be speaking twice. Similarly, a Member may speak to any debatable superseding motion in addition to speaking to the main motion. For example, a Member may speak to an amendment to the main motion and to an amendment to the amendment, despite having already spoken to the main motion, as these are all separate questions. [4]

Historical Summary — Standing Order 44(1)

This rule, originally introduced in 1867, is little changed from that time. [5] Although the principle it embodies has not been questioned, on occasion the precise meaning of the wording of the rule was discussed. As early as 1877, for instance, when a Member moved a motion, sat down, and rose to speak to it later after several other Members had already done so, he was ruled out of order, as he was deemed to have already spoken. [6] Members seconding motions were likewise constrained; it is perhaps for this reason that a practice was developed very early of the mover merely giving the name of the seconder, and the latter simply lifting his hat, thus reserving the right to speak at a later time (a tip of the hat has since been replaced by a nod of the head). [7]

Another matter of definition concerned what constituted “the question”. In a 1928 case, one Member suggested another Member was speaking twice when he rose to speak to the main motion after having already spoken on a proposed amendment to it. The complaint was rooted in the belief that speaking to a main motion and an amendment violated the purpose of the rule; that is, it would not expedite the transaction of House business. The Speaker decided that a main motion, an amendment and a subamendment were of necessity three separate questions and should be treated that way for the purposes of the Standing Order. [8]

By far the more controversial aspect of the rule was the part that permitted (and still permits) Members to give explanations of a “material part” of a speech allegedly misquoted or misunderstood in debate. Members frequently abused this right by going beyond the provisions of the Standing Order, which prohibited the introduction of “new matter” when an explanation was given. [9] In 1875, for example, the Speaker reminded a Member that the proper course was to keep “strictly to an explanation of any matter that had risen out of the statements made by the other gentlemen, and not to allow anything approaching a controversy”. [10]

The abuses continued and only in 1906 did the House further restrict the right by prohibiting debate on explanations given under the rule. [11] The amendment to the Standing Order also proposed initially that such explanations should not interrupt a Member during his speech, but this part, based on an Australian rule, was not adopted. Some Members feared that an obligation to wait until the entire speech was over would be unfair and that it was better to correct any misquotation or misunderstanding immediately. In the end, past practice was retained: Members could interrupt to give explanations, but only by consent of the Member who had the floor. Without consent, the explanation could only be made at the end of the speech. [12]

After 1906, the rule did not change substantively, and although explanations remained a popular vehicle among Members, the rule itself appears to have been invoked much less frequently. Interruptions of all kind were discouraged both by Chair occupants, who had to contend with a conflicting Standing Order (today’s Standing Order 16(2)), and by the Members speaking, who after 1927 were constrained by time limits on the length of speeches. [13] The adoption in 1982 of a question-and-comment period after most speeches all but eliminated the need to invoke Standing Order 44(1), and the making of explanations in the traditional sense has since become all but unnecessary as a result. [14] There have been attempts, however, to invoke the rule for the purpose of explanations since that time. The Chair ruled in 1991 that a Member could not rise on a point of order during the adjournment proceedings to correct a misinterpretation. [15] In 1995, a Member attempted to invoke this Standing Order in order to speak again on a question, on the grounds that his original comments had been misunderstood. The Deputy Speaker stated that the Member was allowed to rise on a point of order to clarify his remarks, but that the intent of the rule was never to permit a Member to make a second speech. [16]

Commentary — Standing Order 44(2) and (3)

Sections (2) and (3) of Standing Order 44 provide an exception to the principle outlined in Standing Order 44(1) that no Member may speak more than once to a question. The exception is called the “right of reply” and applies to Members who have moved substantive motions; that is, “self-contained proposals, not incidental to any proceeding, amendable and drafted in such a way as to be capable of expressing a decision of the House”. [1] The right of reply grants to the sponsor of a substantive proposal an opportunity to rebut the criticisms and arguments used against his or her motion, and its effect is to close debate. So that no Member wishing to participate in a debate is prevented from doing so by a sudden or unannounced exercise of the right of reply, the Speaker is required by Standing Order 44(3) to advise the House that an impending reply will conclude debate.

Standing Order 44(2) lists some of the motions to which a right of reply is not available: amendments, the previous question, and instructions to committees (none of these is substantive in any case). In general, any superseding motion falls into this category. However, the motion that a bill receive second reading, although not a substantive motion, is one to which the right of reply is allowed. [2]

The right of reply has been extended to Parliamentary Secretaries who have taken the floor to reply on behalf of Ministers; this has been allowed with the House’s unanimous consent. [3] A Member moving a motion on behalf of another Member has assumed a right of reply, with the result that a reply by either of the two would close debate. [4]

The right of reply is also entrenched in two other Standing Orders respecting Private Members’ Business. The mover of an item of Private Members’ Business is entitled to speak in reply for not more than five minutes at the conclusion of the debate (see Standing Order 96). At the end of a debate on a motion for the production of papers under “Notices of Motions (papers)”, a Minister or a Parliamentary Secretary has the right to speak again for not more than five minutes, whether or not he or she has previously spoken, and the mover may close the debate by speaking for not more than five minutes (see Standing Order 97(2)).

Historical Summary — Standing Order 44(2) and (3)

From 1867 until 1906, the early version of sections (2) and (3) of Standing Order 44 provided that Members moving substantive motions had a right of reply, but made no mention that such a reply closed debate. [5] As a result, practical application of the rule was uneven. By the admission of one Member, at times “an honourable gentleman has claimed the right to reply but it has not necessarily closed the debate and others have spoken afterwards”. [6] To correct the problem, the House clarified the rule in 1906 by adding a new section that not only specified that a reply would close debate, but also obliged the Speaker “to see that every Member wishing to speak has the opportunity to do so before the final reply.” [7] At the same time, the rule was amended to allow a right of reply to the mover of second reading of a bill, even though it was well understood that a second reading motion was not in the substantive class. The reason was given by Sir Wilfrid Laurier, who explained that “when a Bill is moved for the first time the member who introduces the Bill may make his speech upon it. Our practice generally is to have that explanation on the second reading.” Thus the exception was a way of guaranteeing the mover of a bill two opportunities to speak during debate on second reading. [8]

After the 1906 amendments, the use of the right of reply settled into a pattern similar to the present one, with the Speaker being careful to advise the House when a mover was about to speak a second time. [9] With the practice well established, the Standing Order was simplified in 1927, leaving out the reference to the Speaker’s duty to ensure full opportunities for debate for all Members and, apparently by mistake, the provision that the mover of a second reading motion had a right of reply. [10] Revisions were proposed in 1944 and 1948 to correct the latter omission (and to extend the rule to other matters), but these were never adopted. [11] Even without a reinstatement of the two references, however, custom ensured that a right of reply remained at second reading and that the Chair continued to safeguard the right of Members to participate in debate before it closed. [12]

During the 1950s, a dispute arose concerning giving a right of reply to Parliamentary Secretaries (“Parliamentary Assistants” as they were then called) who had introduced a substantive motion or spoken to second reading of a bill on behalf of a Minister. After several rulings affirming this right, it was tempered in 1957 with the provision that it would be exercised at second reading by leave of the House. [13] Similarly, attempts were made at various times to obtain a right of reply at third reading. In this case, the practice was discouraged. [14]

The list of motions to which a right of reply was not available has always been incomplete. Some motions were added in 1906, others removed in 1927. [15] In any case, aside from the exception made beginning in 1906 for the mover of second reading of a bill, only movers of substantive motions have had a right of reply. To list non-substantive motions as being outside the definition of substantive motions has been superfluous since the rule’s introduction at Confederation.

Commentary — Standing Order 44.1

Standing Order 44.1 (1) explicitly recognizes the practice of “pairing”, an agreement by certain Members not to vote. The Standing Order instructs the Clerk of the House to provide a “Register of Paired Members” to be available at the Table of the House during each sitting day. The Register is to be inscribed with the date of the sitting day. The names of any Member of the government party and any Member of an opposition party can be entered into the Register by their respective Whip. The Standing Order provides that independent Members of Parliament may enter their own names onto the Register. The inscription of the names signifies that those Members will not take part in any recorded division on that sitting day (in practice, from the moment their name is registered).

If on any sitting day one or more recorded divisions take place, Standing Order 44.1 (2) then provides that the names on the Register shall appear in both the Debates and the Journals of the House for that sitting day. The names on the Register are to follow the entry for each of the recorded divisions. The practice is for these names to be placed in the parliamentary publications in alphabetical order, similar to the lists provided for both the “yeas” and the “nays”.

The Standing Order is silent as to what exact information is to be noted on the Register other than the date of the sitting day, the original signature of the Whip and/or the signature of the independent Member, if applicable. [1] The Standing Order assigns no authority to the Speaker, the House or the Table Officers in cases where the Members listed on the Register on a given sitting day actually vote on a question before the House. As well, there is no prohibition in the Standing Order preventing a Whip from de-registering the name of a Member and substituting another, as long as the change is initialized by the Whip. There is also no time limit imposed as to when the Members names are to be entered. In practice they have been entered at the beginning of the day; at other times, they have been entered just prior to a recorded division.

Pairs are not declared when there is a vote in a Committee of the Whole because no record is kept of the names of Members who have voted in favour or against the motion under consideration.

Members who vote when paired must seek the unanimous consent of the House if they wish to rescind their votes. [2]

Historical Summary — Standing Order 44.1

Since Confederation, political parties in the House of Commons have operated under a system of pairing whereby if a Member of one party is absent from the House, a Member from a different party agrees not to vote while the first member is absent. In that way, their votes are effectively neutralized and the relative strength of their parties in the House maintained.

In the early years of Confederation, references can be found relative to such arrangements, and indeed pairs were noted in the Debates of the House. [3] These arrangements were made by the Whips of the respective parties. The use of pairing has varied over time in the Canadian parliamentary system [4] but, until 1991, it had consistently remained an informal — as opposed to codified — arrangement.

In April 1991, a specific Standing Order was proposed to formalize certain aspects of the practice of pairing. The new Standing Order 44.1 provided that the Clerk of the House would keep a Register of paired Members at the Table. The respective party Whips could enter the names of Members of their party into the Register to indicate they would not take part in any recorded division on the date inscribed on that page of the Register. (In practice, Members are paired only from the moment their names are registered.) Independent Members could sign the Register in their own right. On any day on which a recorded division or divisions took place, the names of the Members paired in the Register would be printed in the Debates and Journals following the entry of those who had voted on the question.

The proposed new rule elicited almost no comment during debate on the motion to concur in various Standing Order changes proposed at that time. [5] Standing Order 44.1 thus came into effect on May 13, 1991, at the beginning of the Third Session of the Thirty-Fourth Parliament, [6] and was first invoked three sitting days later. [7]

In one instance in June 1992, a Member rose to complain that certain Members’ names had appeared as “paired Members” and also as having voted under the “yeas” or “nays”. [8] The Speaker ruled that pairing was a private arrangement in which neither the House nor the Speaker could intervene according to the Standing Order as then written. [9]

On another occasion, in December 1999, a Member rose on a point of order seeking to know whether he was deemed present during the pairing arrangement, whether that particular pairing arrangement was still in effect, and why the Register did not indicate the name of the person he had agreed to pair with. [10] The Acting Speaker ruled, and the Speaker re-iterated, that the specifics of a pairing arrangement were a “private affair between two Members.” The Speaker indicated that the Standing Orders were silent on the reasons for Members not participating and were equally silent on the question of a “broken pair”, providing for neither a penalty nor corrective action. [11]

While the Standing Order has not been amended substantively since its initial adoption in 1991, [12] it did receive scrutiny from a Standing Committee. In April 1993, the Standing Committee on House Management, in its major report on parliamentary reform, suggested a number of changes to the pairing arrangements and to the text of the Standing Order itself. [13] The report, however, was neither debated nor adopted.

As well, in February 1998, a Member proposed a motion during Private Members’ Business, that the practice of pairing itself be abandoned and the House instead adopt an absentee proxy voting system. While the debate revealed a range of views on pairing, the motion itself did not come to a vote. [14]

Commentary — Standing Order 45(1) and (2)

When the Speaker asks if the House is ready for the question, and it is evident that no Member wishes to speak in debate, the Speaker will put the question to the House for a decision. This is first done by the Speaker asking if the House agrees. If there is no objection, the Speaker will say “carried”. If there is any objection, the Speaker will ask those for and against the question to say “yea” and “nay”. The Speaker then offers the House an assessment of the voice vote. If at least five Members then rise to demand a recorded division, the Speaker will call in the Members, who are notified of the vote by the ringing of the bells. If the requisite number do not rise, the Speaker will follow the initial assessment and declare the question carried, or negatived, “on division”. It has sometimes happened, as well, that after the “yeas” and “nays” have been called, Members have said “on division” to indicate that the question was not decided unanimously, but to obviate the need to call in the Members.

When a recorded division has been called and the bells are ringing to summon the Members, the proceedings of the House are in suspension, which precludes any attempt to raise a matter of debate on the question for which the Members are being called in. The Chair has heard points of order, although generally points of order and questions of privilege are delayed until the recorded division has taken place and the Speaker has declared the results to the House.

Once the bells are silenced in preparation for the vote, no one is supposed either to enter or to depart the House while the recorded division is in progress. The Speaker puts the question again and calls those in favour of the motion to rise. Members rise by political party, one after another beginning with their leader, as a Clerk calls out their names. In the case of votes on Private Members’ Business or, sometimes, in the case of a free vote, Members are called row-by-row rather than by party. [1] Each Member, when called, stands at his or her place and bows to the Speaker. The Clerk of the House keeps a division tally, repeating the names as they are called out. A third Clerk records the count of the division. Once all those in favour have been counted, the Speaker calls upon those who oppose the motion to rise, and they, too, are called by name and counted. At the conclusion of the vote, the Clerk of the House announces the result to the Speaker, who then declares the motion carried or lost as the case may be. The names of those Members who voted are recorded from the Clerk’s list in the Journals of that day.

Historical Summary — Standing Order 45(1) and (2)

Sections (1) and (2) of Standing Order 45 have not changed since their adoption in 1867. This can be explained, in large part, by the fact that the voting procedures of the House which are associated with this Standing Order have also remained fundamentally unchanged. Unless there is a disposition in the House to decide a question by consent or “on division”, the Speaker will put the question to the House to a voice vote and then, if requested, to a recorded division. [2] Despite the often boisterous or tense atmosphere during the voting process, [3] once it has begun, the Speaker will usually follow it through without heeding any claims to points of order or questions of privilege. This is particularly true once the Speaker has called in the Members for a recorded division, because in so doing the proceedings of the House are in effect temporarily halted in order to allow the different party Whips to muster their partisans. The formal return of the Chief Government and Opposition Whips, who enter the Chamber together and bow to the Speaker before resuming their seats, indicates that the parties are ready for the recorded division. [4] After the names of the Members voting for and against the question are called out and tallied, the Speaker will declare the question carried or lost.

There have been only a few occasions when the Chair has been obliged to refuse points of order or questions of privilege either after calling in the Members or before declaring the result of a division. [5] Objections or points of order related to the vote, if not accepted sooner, must be raised immediately afterwards. Often when this has been done, particularly in the past, it was to question whether a Member had been present in the House when the question was put, to indicate a pairing or to insist that Members declare their vote. The first issue relates more to the history of Standing Order 16(1); the other two concern practices which were more characteristic in years gone by. Prior to the establishment of the Registry of Paired Members in 1991 (see Standing Order 44.1), Members who were paired with other Members would sometimes declare how they would have voted had they not been paired. The Debates from the pre-1991 period contain numerous examples of voting lists accompanied by a series of paired Members. [6] Given that pairs are now officially registered, Members rarely indicate how they would have voted had they not been paired. The decline of declaring a “pair” is also probably linked to a development whereby Members are no longer bound to vote, but can unofficially abstain. Through the 1920s and later, there are examples when the attention of the Speaker was drawn to a Member who had been present for the question but had not voted. Only by being paired were Members freed from the obligation of voting, although there are instances when the Speaker asked Members to declare themselves. [7]

The practice of obligatory voting was challenged in 1931 by an independent Member, Henri Bourassa, who proposed the adoption of an explicit Standing Order releasing Members from this obligation. [8] After some debate, a special committee was struck to examine the question of voting. As it happened, the committee’s report, subsequently adopted, made no recommendations on this issue. [9] The question has come up from time to time since then. In 1944, a committee appointed to examine the rules proposed that voting be made obligatory and explicit in the Standing Orders. The draft recommendation even suggested that the Speaker be empowered to name any Member who refused to vote. The House, however, never adopted the report. [10] In subsequent years, Speakers tended to deny the existence of a rule, as opposed to a practice, requiring Members to vote. [11] The distinction has not been forced and it is probably reasonable to conclude that the practice of obligatory voting is no longer an issue and cannot be claimed.

The request of at least five Members has always been needed to initiate the process of a recorded division, which begins with the Speaker instructing that the Members be called in. This has rarely caused a problem, but there have been one or two instances where the Speaker seemed disinclined to acknowledge the demand for a recorded vote and occasions when the House itself decided to forego the division. In 1904, the Speaker, after hearing the voice vote, promptly declared the motion lost instead of offering his opinion as to whether the “yeas” and “nays” had it. Even though more than five Members immediately rose, the Speaker refused at first to acknowledge their request. Faced with Members’ indignation, the Speaker reversed himself and the House carried on with the division. [12] In 1919, the Speaker refused a request for a division on the grounds that there had been no contrary voice on the question, at least not one that he had heard. Despite some protest and claims that there had indeed been some “nays” shouted out, the Speaker declined to change his ruling. [13] On another occasion, this time on March 19, 1929, as the House was about to proceed to a recorded vote on a motion to adjourn a debate, an understanding was reached between the different parties prompting the Speaker to ask, in the form of a motion, if there should be a division. As a result, no division took place. [14] In 1961, a question was raised about the propriety of Members absenting themselves from the vote even though they were among those who had risen to demand it, but no formal decision was rendered. [15] In 1992, the Chair ruled that Members rising to request a recorded division need not do so from their assigned seat. [16] In 2001, after considerable confusion surrounding a voice vote, the Speaker ruled that no question should be put to the House more than once unless the Chair itself has made an error. [17]

A vote once taken and recorded stands as a decision of the House. Nonetheless, it remains possible for Members to rise after the vote to indicate an error or to request a change either because they voted incorrectly or they voted when they should not have because they had been paired. A request to change a vote, however, is not always granted. [18] The most famous dramatic instance where a Member attempted to correct his vote took place July 1, 1926 on the crucial division which led to the dissolution of Parliament. The ministry of Prime Minister Meighen had only been formed earlier the same week. The result of the vote was 95 for and 96 against the government. Mr. Bird asked to have his vote withdrawn, acknowledging that he had voted inadvertently since he was paired with an absent Member. The request was refused, the vote stood and the dissolution took place. [19] Despite this dramatic case, there have been instances when the vote has been changed and even once when the Speaker intervened on his own initiative. [20] There are also cases where Members have inadvertently voted both “yea” and “nay” on the same question, leading the Speaker to ask them to clarify their vote. [21]

Commentary — Standing Order 45(3)

Whenever the Speaker is obliged under the rules or by a Special Order to put a question or questions at a specified time, and a recorded division is requested, the bells calling in the Members shall ring for a maximum of 15 minutes. If the Chief Government Whip and the Chief Opposition Whip are in agreement, they may return to the Chamber before the bells are due to stop ringing, in which case the vote proceeds immediately. This frequently occurs when votes have been deferred until after Question Period, since most Members are already present and do not require 15 minutes to arrive in the Chamber.

Historical Summary — Standing Order 45(3)

This rule was adopted without debate on the recommendation of the Special Committee on Procedure of the House in December 1967. [1] By that time, there had been several instances when bells had sounded beyond the usual duration of 10 or 15 minutes. [2] On September 8, 1964, for a vote during the flag debate, the bells rang for 85 minutes, an event which one Member characterized as “contemptuous” and “totally inexcusable”. [3] Three years later, the bells rang for more than an hour to call in Members for the third reading of a government bill and again an objection was raised about the “scandalous” event. [4]

The new rule sought to reduce opportunities when the bells could ring for an extended period of time. In effect, the division bells for any scheduled vote will ring for only 15 minutes. These scheduled votes are those explicitly anticipated in the Standing Orders or by a Special Order of the House. These votes include those taken during debates on the Address in Reply, the Budget, supply days and also debates subject to time allocation or closure motions. For example, Standing Order 50(5) states that on the second day of resumed debate on the Address in Reply, if there is a subamendment still under consideration, the Speaker will interrupt the proceedings at 15 minutes before the end of the time provided for the Address debate and put the question on the subamendment.

A decision of Speaker Sauvé implicitly expanded the application of Standing Order 45(3) to cover proceedings of a fixed duration in the same way as votes scheduled for a specific time. Under the rules in effect at that time, a motion for time allocation under Standing Order 78(3) was debatable for a maximum of two hours. In her decision of October 26, 1983, Speaker Sauvé interrupted the proceedings in order to put the question on such a motion; [5] in doing so she in effect invoked Standing Order 45(3) which would set the limits for any division bells on the question at 15 minutes.

To some extent, this rule now reinforces provisions in the Standing Orders for deferred votes; bells for a deferred division ring for only 15 minutes. [6] In one 1987 case, the bells rang for 30 rather than 15 minutes, [7] and questions were raised the next day about the application of the rule. [8] In replying to these concerns, the Speaker sought to encourage co-operation among the parties and to avoid a resort to unilateral action on the part of the Chair. [9] This, however, always remains available, for the Speaker has full authority to put the question necessary after the time fixed for ringing the bells has expired.

On occasion, Members have objected to a vote taking place before the bells had rung for the maximum period of time. [10] The Speaker has ruled that the Standing Orders stipulate that the bells ring for “not more than” 15 minutes and that it is therefore possible for the bells to ring for a shorter period of time if both the Government and Opposition Whips agree. [11]

Commentary — Standing Order 45(4), (5), (6) and (7)

The bells calling in the Members for a division on a motion that is not subject to debate or amendment cannot ring for more than 30 minutes; nor, with one exception on Fridays as described below, is it possible to defer that vote. If the Chief Government and Chief Opposition Whips both agree, they may return to the Chamber before the bells are due to stop ringing, in which case the vote proceeds immediately.

Except in cases where debate has been interrupted pursuant to a Standing Order or a special order, the bells calling in the Members for a division on a debatable motion can sound for a maximum of 30 minutes. Again, the vote may be held earlier if the Chief Whips of the government and the Official Opposition agree. A recorded division on a debatable motion may also be deferred to a designated time at the request of the Chief Government Whip or the Chief Opposition Whip, either of whom is acting alone. One of the Whips may approach the Speaker, after the question has been put and while the division bells are ringing, to ask that the vote be deferred. The Speaker then stops the ringing of the bells and informs the House that the recorded vote is deferred until the time requested by the Whip — later in the same sitting or to a specific time not later than the ordinary hour of adjournment on the next sitting day that is not a Friday. If both Whips make a request for the deferral of a vote to different times, the Speaker makes the final decision. [1]

Alternatively, after a recorded division has been demanded and the division bells are ringing, the Chief Government Whip may, with the agreement of the Whips of all the recognized parties, approach the Chair and ask the Speaker to defer the division to an agreed-upon date and time that may even be beyond the ordinary hour of adjournment on the next sitting day. Likewise, recorded divisions already deferred to a specific date and time may be deferred further to any other date and time, again, only with the agreement of all Whips.

Recorded divisions on debatable motions demanded on a Friday are automatically deferred until the ordinary hour of daily adjournment on the next sitting day; similarly, when on a Thursday a recorded division is deferred to Friday, it is automatically deferred further to the next sitting day — usually the following Monday — at the ordinary hour of daily adjournment.

On Supply days, a recorded division on a votable opposition motion may be deferred by the Chief Government Whip or the Chief Opposition Whip, even if the Speaker interrupted proceedings and the bells are scheduled to ring only for a maximum of 15 minutes. In addition, if the motion was sponsored by a Member of a recognized party other than the Official Opposition, the recorded division may also be deferred at the request of the Whip of that party. However, recorded divisions on votable opposition motions on the last allotted day in a Supply period cannot be deferred. The only exception is that on the last Supply day in the period ending June 23, the vote on an opposition motion is deferred to later that same sitting, after the House has considered motions relating to the Main Estimates (see Standing Order 81(18)(b)). Recorded divisions on opposition motions are automatically deferred from a Friday to a Monday if Friday is not the last allotted day in the Supply period.

During the report stage of a bill, recorded divisions on motions in amendment may be deferred at the Speaker’s discretion, from sitting to sitting if necessary, until all motions or a certain number of them have been considered by the House (see Standing Orders 76(8) and 76.1(8)). When all report stage motions have been considered, the House then proceeds to the taking of the deferred divisions; either the Chief Government Whip or Chief Opposition Whip may further defer the vote to no later than the ordinary hour of adjournment on the next sitting day. On Friday only, a recorded division on the motion to concur in a bill at report stage, while being a non-debatable motion, is nonetheless automatically deferred.

If a division is requested on an item of Private Members’ Business, the vote is automatically deferred to the following Wednesday at the beginning of the time provided for Private Members’ Business (see Standing Order 93(1)). Such a vote may be further deferred by the Chief Government Whip, with the agreement of the Whips of all recognized parties and that of the sponsor of the item.

Any division requested on a resolution to revoke a regulation or statutory instrument is not subject to the provisions of Standing Order 45(5), but is instead automatically deferred to the ordinary hour of daily adjournment that sitting day (see Standing Orders 126(1)(c) and 126(2)).

Under the terms of this rule, the deferral of a vote does not interfere with the scheduling of further business. The item itself is put off to a later time the same day or to a future day, but the House can then proceed with another item of business as set out on the Order Paper. Government business, of course, is taken up in the sequence the government wishes. As for Private Members’ Business, the House is precluded from taking up any other item in the order of precedence because notice is required pursuant to Standing Order 94(1).

When the time arrives to take one or more deferred divisions, the Speaker interrupts the proceedings at the time set down in the Standing Orders or ordered by the House, informs the House that the deferred vote or votes will now be held, and orders that Members be called in. The division bells are rung for not more than 15 minutes. Once the Whips have appeared, the Speaker proceeds immediately to put the question. When there are several votes to be taken, the questions are put in the order in which they came before the House and were deferred. [2] If the postponed vote is related to any business which is scheduled to be concluded at the time of deferral, all questions necessary to dispose of that business will be put immediately after the deferred vote has taken place, without need of again ringing the division bells (see Standing Order 45(8)).

In recent practice, a large number of recorded divisions are deferred to Tuesday and Wednesday, and are taken seriatim either after Question Period or at the end of the time provided for Government Orders.

Historical Summary — Standing Order 45(4), (5), (6) and (7)

The purpose of these sections is to fix the time limits on bells calling Members to a vote, and also to provide that the calling in of Members can be deferred. They establish various options for a vote depending on whether the motion being voted on is debatable or not, or if the vote has been already deferred or is to be deferred.

These rules resolve the problem of the bells which arose from the episode of March 1982, when the division bells rang for two weeks. [3] At that time, the Speaker decided not to intervene. [4] The government and opposition parties were involved in a dispute over a controversial bill and each side demanded concessions before allowing the vote to take place. The event was without precedent; at no time in the past had the House come to such an impasse, [5] nor was there any previous occasion when the bells had been used in such an extreme fashion. Negotiations between the parties, the mediation of the Chair, and mounting public pressure finally led to a compromise solution to the specific problem. Nonetheless, the bells episode created a precedent which exposed the House to the prospect of complete periodic obstruction.

Even though the House appointed a special committee to study and propose reforms to the rules as a direct outcome of the episode, the matter of the bells themselves remained sensitive. In its Third Report, the committee recommended that when recorded divisions on debatable motions were demanded on a Friday they be deferred automatically. [6] This recommendation and most others proposed in that report were subsequently adopted by the House. [7] Unfortunately, the new rule did not prevent a recurrence of prolonged division bells. In 1983, the division bells rang for several hours at a time on at least six separate occasions. [8] In every instance, the Speaker declared the motions lapsed, in the case of dilatory motions, at the adjournment hour or, in the case of motions of substance, suspended the sitting to the next day. Neither the Speaker nor the House was disposed to tackle the issue of the bells except on a case-by-case basis.

In the next Parliament, another special committee was established to continue the study of procedural reform. In its Second Report, the committee recommended an electronic system of recorded divisions with a 15-minute period of bells to call in the Members, during which time Members could vote. [9] In its response to the report, the government agreed in principle with an electronic voting process and suggested that such a proposal be considered by the Board of Internal Economy. In addition, the government addressed the suggestion of a 15-minute electronic system with a proposal for a 30-minute division bell to call in the Members for a roll-call vote, with the option of deferring a division for any debatable motion when such was requested of the Speaker by either the Government or the Official Opposition Whip. [10] The substance of this proposal was incorporated into the government’s motion for the provisional Standing Orders in February 1986. [11]

In June 1987, a modification was made to Standing Order 45(5)(a) to clarify that the request to the Speaker to defer a division made by the Government or Official Opposition Whip was to be made “while the Members are being called in”. [12]

A number of changes were made to these sections in 1991. [13] It was made explicitly clear that while votes on opposition motions could be deferred, they could not be deferred on the last allotted day in a given Supply period. The wording was also clarified to indicate that non-debatable motions to concur in a bill at report stage could be deferred on Fridays, but that if a division was requested on any other type of non-debatable motion on a Friday, it was to be decided that day. [14] Finally, references to a specific adjournment time were replaced with the words “ordinary hour of daily adjournment”.

In 1994, the Standing Committee on Procedure and House Affairs tabled a report recommending a number of corrections to anomalies in the Standing Orders. Since the provisions of sections (5) and (6) had become particularly confusing, these sections were almost entirely rewritten in a clearer fashion. At the same time, an additional provision was made to allow the Whip of a recognized party to defer the vote on an opposition motion sponsored by a Member of their party. This is the only case where the power to defer a vote has been expanded beyond the Chief Government and the Chief Opposition Whips. [15] The House adopted the Committee’s recommendations shortly after the report’s presentation. [16]

Later that same year, the Committee also noted that it was sometimes desirable to defer a division for a longer period of time than allowed by sections (5) and (6) and that there were some types of votes that could not be deferred. The Committee felt that if the Whips of all recognized parties agreed, any vote could be deferred or deferred longer than allowed under sections (5) and (6). It therefore recommended the inclusion of section (7), a recommendation adopted by the House in February 1995. [17]

The only subsequent modification to these sections was agreed to in June 1998, when provision was made for deferral of opposition motions on the last allotted day in the Supply period ending June 23. [18] The motion can be deferred only until later that same day, pursuant to Standing Order 81(18)(b).

The Chair has occasionally been called upon to rule on matters concerning the 30-minute bells and the deferral of votes. Members have sometimes objected to a vote taking place before the bells had rung for the maximum period of time. [19] The Speaker noted that the Standing Orders stipulate only that the bells ring for “not more than” 30 minutes and that it is therefore possible for the bells to ring for a shorter period of time if both the Government and Opposition Whips agree. [20] Some Members have also complained that a particular vote has been deferred, but the Chair has indicated that it cannot refuse a request from a Whip when properly made pursuant to section (5). [21] In 1995, the Speaker ruled that votes deferred on a Thursday are automatically set down at the ordinary hour of daily adjournment on the next sitting day that is not a Friday, and that one Whip alone could not defer them to an earlier time. [22] In 1997, the Speaker refused a request to defer the vote on a motion, since proceedings on the motion had been interrupted pursuant to a Standing Order and the bells were to ring for 15 minutes only. [23]

Commentary — Standing Order 45(7.1)

When deferred recorded divisions are held at the end of Question Period (at 3:00 p.m. Monday to Thursday), this section provides that the time taken for the votes is not lost from the total time allotted to Government Orders. Instead, Government Orders are extended by an amount of time equal to the time used for the taking of the divisions. The Speaker usually announces to the House how much time has been added before Government Orders are called. [1] This extension has the effect of delaying the Adjournment Proceedings under Standing Order 38 and the ordinary hour of daily adjournment, specified in Standing Order 24(2). On Tuesdays, Wednesdays and Thursdays, the beginning of Private Members’ Business, usually scheduled for 5:30 p.m. pursuant to Standing Order 30, is also delayed. The extension of Government Orders still applies, even if the hours of sitting in June have been extended pursuant to Standing Order 27.

Since most Members are already present in the Chamber for Question Period, the Chief Government Whip and the Chief Opposition Whip usually enter the Chamber shortly after the division bells start ringing, rather than have the bells ring for a full 15 minutes.

Historical Summary — Standing Order 45(7.1)

Following the adoption in February 1986 of rules permitting the deferral of votes (see Historical Summary for Standing Orders 45(4), (5), (6) and (7)), the preferred time for scheduling deferred divisions was either the ordinary hour of daily adjournment or the end of the time provided for Government Orders. As such, the taking of the divisions did not reduce the time available for government business. However, if divisions were held earlier in the sitting day, time to debate government bills and motions was lost, given that the time to begin Private Members’ Business and the daily adjournment time were fixed by Standing Order. The lost time could be regained only with the unanimous consent of the House. [2]

In 2001, the Special Committee on the Modernization and Improvement of the Procedures of the House of Commons, noting the practice of grouping deferred votes together, encouraged the scheduling of deferred votes immediately after Question Period. It was felt that this would minimize disruptions of committee meetings. Not wanting to reduce the time available for Government Orders, the Committee recommended that the time be extended, as is also done for Ministerial Statements (see Standing Order 33). The House adopted the Committee’s report in October 2001. [3]

There have been several cases where the extension due to the differed recorded divisions has been in addition to other extensions, due to Ministerial Statements or due to the question-and-comment period on a time allocation motion. [4] There have also been cases where the House has agreed to ignore the extension and end Government Orders at the regularly scheduled time. [5]

Commentary — Standing Order 45(8)

When the House is scheduled to take more than one recorded division, either because several have been deferred to the same time or because the Standing Orders require that more than one question be decided by a certain time, the division bells ring only before the first vote. Since the Members have all been called in for the one vote, it is unnecessary to ring the bells again for subsequent votes.

Historical Summary — Standing Order 45(8)

This section was adopted by the House in April 1991 and its text has not since been modified. [1] Even prior to its adoption, the House frequently agreed to dispense with the intervening bells and proceed immediately from one question to the next. [2] It is also the practice to apply one vote to other questions, either directly or in reverse, and thus save time by eliminating the need to call out Members’ names. This convenient approach to numerous votes was used in the early Parliaments but subsequently fell into disuse until it was revived in the 1980s. [3]

Since 1994, another practice has developed concerning applied voting. Following a recorded division which establishes the Members who are present and how they voted, the Chief Government Whip will rise to request that unanimous consent be given to record the names of Members who voted on the previous motion as having voted on the next motion with government Members being recorded under the “yeas” or “nays”. The Whips of the other parties then rise and declare how their parties wish to be recorded as having voted for the motion; finally, independent Members indicate how they wish to be recorded. Any Member wishing to vote differently from his or her party may rise on a point of order to state how he or she wants to be recorded as having voted. [4] Once the new voting pattern has been tabulated by the Table Officers, the Clerk rises and reports the results to the Speaker who will then declare the motion carried or lost. Again, this manner of proceeding is considered to result in savings of the time of the House.

The application of votes, either directly or by party, requires unanimous consent which has at times been refused, resulting in lengthy voting sessions. [5] In 2000, the Standing Committee on Procedure and House Affairs recommended changes to the Standing Orders which would have codified the power of Whips to apply votes for the Members of their party. [6] However, no subsequent action was taken on this recommendation.

Commentary — Standing Order 46

Occasionally the House is seized with a question that either does not appear on the Order Paper or has not been printed and distributed to the Members. This can happen when an emergency debate takes place under Standing Order 52, for example, or when amendments are moved during debate on a question, or when any substantive motion is moved without notice. In such instances, some Members may wish to hear the question read again to be certain of its wording and content. Standing Order 46 makes this possible by allowing any Member to have the Chair read the question aloud while it is under debate. The only condition attached to this request is that it cannot be made as a device to interrupt a Member who is speaking.

Historical Summary — Standing Order 46

At the time of Confederation the rules permitted any Member to request that the Speaker read the question under debate, so long as such a request did not interrupt a Member’s speech. Until the 1920s, the right to have the question read aloud was unfettered. [1]

Although this rule was not exercised, its potentially wide application worried the Assistant Clerk, Arthur Beauchesne, who in 1922 wrote that the rule “could easily be strained and perverted for purposes of obstruction.” [2] Presumably the House heeded his warning, for in 1927 it amended the rule to its present wording. The rationale for the change was that “As the questions which come before the House… are printed on the Order Paper and in the Votes and Proceedings, it seems hardly necessary to provide for their reading in the course of debate.” [3]

Commentary — Standing Order 47

This Standing Order provides guidelines regarding the times when points of order may be presented to the Speaker. Generally, a point of order must be raised as soon as the procedural irregularity on which it is based occurs; in other words, when violations take place during debate, the resultant points of order are raised immediately. However, points of order arising out of Question Period or the time set aside for Statements by Members (pursuant to Standing Order 31) are usually delayed until after Question Period on Tuesdays and Thursdays or until after Routine Proceedings on Mondays, Wednesdays and Fridays. Points of order may also be raised after Routine Proceedings at the beginning of the sitting day (10:00 a.m.) on Tuesdays and Thursdays.

Despite these guidelines, there have been instances of points of order being raised during Question Period or during the time provided for Statements by Members. [1] Chair occupants have nevertheless preferred, where possible, to preserve the sanctity of these segments of the daily proceedings. [2]

Historical Summary — Standing Order 47

From Confederation until 1975, it was a practice of the House that points of order were to be raised as soon as the procedural irregularities on which they were based occurred. This meant that points of order could (and did) arise at any time, including during Question Period. [3]

In 1975, however, as part of a reform in the sequencing of House business and the conduct of Question Period, Routine Proceedings and motions under then Standing Order 43, the House agreed that points of order should not be raised during Question Period. [4] Although the decision of the House in this regard resulted in only a provisional understanding, successive Speakers upheld its spirit, despite strong objections from Members, even after it ceased to be in effect. [5] Beginning in 1975, this condition was also applied to the time for motions under then Standing Order 43, which was in effect until 1982, and to that accorded to Members’ Statements under Standing Order 31, which has been in effect since 1982, making the two procedures immune to interruptions by points of order. [6] The old practice of the immediate raising of points of order continued to apply at other times in the sitting day. [7]

In 1986, all of these practices were codified into the present Standing Order 47, with the added provision that points of order could be raised immediately after Routine Proceedings concluded on certain days. [8]

Commentary — Standing Order 48(1)

A practice, often mistaken for the procedure described in Standing Order 48(1), obliges the Speaker to hear a Member on a question of privilege as soon as that Member raises it. The Standing Order, meanwhile, obliges the House to take into immediate consideration any matter so raised which, in the Speaker’s opinion, is prima facie (on the first impression) a matter of privilege. [1] However, what at first may appear to be a relatively simple and straightforward process is complicated by a number of restrictive practices and usages.

To begin with, the initial raising of questions of privilege is considerably circumscribed. When a Member brings a question of privilege forward, he or she is usually expected to be brief in presenting reasons why the Speaker should rule that a prima facie case exists. [2] Other Members, at the Speaker’s discretion, may be allowed to participate in the discussion. [3] Advance written notice is required in many cases (see Standing Order 48(2)), and successive Speakers have disallowed questions of privilege during Members’ Statements and Question Period, [4] as well as during the Adjournment Proceedings [5] and divisions. [6] In fact, most are raised at specific times, namely, following Routine Proceedings but before Orders of the Day, immediately after Question Period, and, occasionally, during a debate.

Meeting these conditions, however, does not ensure that the question of privilege raised will have the House’s prompt attention since other criteria, decided upon by the Speaker, also come into play. [7] In addition to the prima facie condition, for example, the Speaker considers whether the matter has been brought forward in a reasonable time; [8] whether the Member has a motion to propose that the House take some kind of action; [9] and whether, if the motion questions a Member’s conduct, election or right to sit, that there be a specific complaint against that Member. [10] As well, where a publication is cited as the basis for a question of privilege, the relevant passage should be tabled and then read by the Clerk if required. [11] If the Speaker is satisfied that the necessary conditions have been met, the Member is immediately allowed to move the motion (or move it at the first opportunity if there is a question already before the House), which usually — but not always — proposes that the matter be referred to the Standing Committee on Procedure and House Affairs for study and report. [12] The motion is immediately open to debate. [13] Such a motion is, like any other substantive proposal, fully amendable and it retains precedence until the House’s decision is rendered. [14]

Motions of censure against the Speaker or one of the other presiding officers, in their capacity as Chair occupants, have not been considered as matters of privilege. Such motions have been considered under the heading “Motions” during Routine Proceedings. [15]

Questions of privilege which the Chair finds to be merely complaints or grievances are usually dealt with quickly and ruled out of order. [16]

Historical Summary — Standing Order 48(1)

Although the 1867 Standing Order on privilege is identical to the present Standing Order 48(1), the manner in which questions of privilege were then raised was vastly different from today’s procedure. Dozens of cases between 1867 and 1913 almost all followed the same, simple course. A Member would rise, explain the matter of privilege and conclude with a motion calling on the House to take some action — usually that someone be called to the Bar or that the matter be referred to the then Standing Committee on Privileges and Elections for study and report. At that point, without any intervention on the part of the Speaker, debate would begin on the motion, amendments might be moved and, finally, the House would come to a decision on the matter. [17] The House would then take whatever further action was required by the motion.

Perhaps because of the immediate recognition given to Members rising on “questions of privilege”, it was also common throughout this time for Members to take the floor ostensibly to raise such a question, but really to make personal explanations. Here, too, they met with little interference from Chair occupants. [18]

For the next 45 years, while the number of “questions of privilege” blossomed for such purposes as the recognition of school groups in the gallery, congratulatory messages, complaints, grievances and a plethora of procedural matters, in addition to the continued “personal explanations”, [19] the number of legitimate matters of privilege dealt with by the House declined dramatically. In only four cases (1921, 1924, 1928 and 1932) were matters of privilege brought forward, [20] while in 1943 a fifth matter was withdrawn before the House took any steps to have it studied. [21] The practices during these years led to misunderstandings about the rule, and it was not until the 1960s, when a greater number of matters of privilege were debated, that modern practice first took root.

In 1958, the fourth edition of Beauchesne’s Parliamentary Rules and Forms was published, in which Beauchesne included a new section, taken from Erskine May’s 16th edition, on the manner of raising questions of privilege. [22] This description of the British procedure had little bearing on previous practice in the Canadian House, but soon became a handy reference seized upon by successive Speakers, beginning with Speaker Michener, as a way to curtail spurious interventions by Members on non-privilege matters. It introduced two guiding conditions: whether on the first impression the matter raised appeared to be a matter of privilege, and whether the matter was raised as soon as it could have been. Both were to be determined by the Speaker before a debate could proceed. This was in sharp contrast to the previous practice, where benevolent Chair occupants listened to most interventions, whether they appeared valid or not as matters of privilege and regardless of when they were raised in relation to the matter or incident complained of. [23]

In the years that followed, the new citation in Beauchesne enabled successive Speakers to keep a tighter reign on “questions of privilege”, even though practice required that the interventions at least be heard, however briefly, before being ruled on. The prima facie condition was invoked most often, although a number of other cases were refused because they were not raised in good time. [24] Nevertheless, several cases arose through the 1960s and 1970s which permitted the Speaker to find that a matter of privilege debate should go forward, with the result that a body of precedents began to take shape.

While some restrictions, such as a prohibition on congratulatory messages [25] and others related to the time for taking “questions of privilege” into consideration, had crept into the House’s usages since Confederation, [26] these two decades saw the bulk of the new practical regulations come into being. In 1964, for example, the Deputy Speaker ruled that questions of privilege could not be raised during proceedings on the adjournment motion, [27] while in 1975 the House adopted a report which recommended that such matters should not be taken up during Question Period. [28] The Standing Order was even amended on a provisional basis — a change which has since expired — to give the Speaker the right to determine the time at which questions of privilege could be considered. [29] Divisions were also judged an inopportune time for questions of privilege. [30] As well, concise initial interventions were strongly encouraged. [31] Perhaps more important were the many procedural conditions, in addition to prima facie and “raised at the first opportunity”, that evolved during this time. In a number of cases, for instance, matters raised were judged inappropriate for immediate consideration because they did not conclude with a proposed motion from which the Speaker might determine whether a prima facie matter of privilege existed. [32] Others were ruled out because of insufficient notice, which was required in some cases by a new rule adopted in 1965 (see Standing Order 48(2)). Meanwhile, a 1959 case led the Speaker to declare that a proposed motion in which the conduct of a Member was alluded to was not, prima facie, a matter of privilege and could not be given precedence because the proposed motion was not a specific complaint against the Member, [33] a ruling frequently cited in subsequent years. [34] Finally, a number of Speakers, in deciding that a prima facie case did not exist, suggested to the Members concerned that the matter might instead be brought forward as a motion with notice, following the usual procedure. [35]

Despite these many restrictions and conditions, however, Members continued (and still continue) to raise, on innumerable occasions, matters of grievance, complaint and personal explanation under the guise of questions of privilege.

Since 2000, the House has considered 15 prima facie matters of privilege in 2000 (1), 2001 (2), 2002 (2), 2003 (2), 2004 (4), and 2005 (4). [36]

Commentary — Standing Order 48(2)

A question of privilege may be raised without notice if it arises out of House proceedings. If it does not arise in this way, however, then one of two kinds of notice is required before the question may be brought to the House’s attention. First, the Member may give notice by providing a written statement to the Speaker at least one hour before raising it. [1] Alternatively, the Member may choose to give written notice to the House in accordance with the provisions of Standing Order 54, which requires two days’ advance warning that such a matter is to be put before the House. In the latter case, once the notice period has elapsed, the notice of motion is transferred to the Order Paper under its appropriate rubric, and is dealt with when the House reaches it, unless the Member in whose name it stands has convinced the Speaker that it should be considered earlier, before other business, as a matter of privilege. [2]

Historical Summary — Standing Order 48(2)

Although from 1867 to 1965 there were no notice requirements for raising questions of privilege, numerous notice-related practices nevertheless evolved, particularly in the 19th century House. There are several examples, for instance, of Members giving verbal notice of their intention to raise a question of privilege. [3] One notable case in 1875 saw Prime Minister Mackenzie give oral notice on February 22 of a motion to expel Louis Riel as a Member; the motion was actually moved two days later. [4]

Other precedents show that a number of Members chose to give regular written notice of their motions of privilege, particularly in cases where the matter stemmed from events occurring outside the House. In 1874 for instance, a motion for which written notice had been given, and which was not likely to arise on a particular day, was taken up before its turn, displacing a scheduled Private Bills’ hour. [5] A similar case in 1886 saw a motion taken up before its turn at the request of the Member attacked in the motion. [6] Yet it was not always so easy, and in two rare cases in 1892, motions for which written notice had been given were refused precedence as the Speaker judged them not to contain true matters of privilege. [7] Furthermore, in cases involving a motion amounting to a charge against a Member, etiquette required that the sponsor of such a motion privately advise the Member concerned of what was coming. [8]

These practices endured into the 20th century, and oral and written notices, although not required, were both common when questions of privilege were raised. In 1911, for example, a matter of privilege was raised following oral notice, [9] while in 1932 a motion regarding charges which had been made against the Prime Minister was taken up after written notice had been given. [10] Of course, there were other cases where matters were raised without any notice. [11]

Eventually, another attempt was made, similar to those of 1892, to convince the Speaker to take a notice of motion out of sequence because it appeared to involve privilege. In June 1959, the Leader of the Opposition gave notice of a motion in which he questioned the conduct of a Member on the government side. The Speaker, who had not ruled on whether or not it should be given precedence, admitted he could not decide what to do. [12] Only after a lengthy discussion on this point was he able to arrive at the conclusion, in keeping with the recently established criteria guiding Speakers on questions of privilege (see Historical Summary for Standing Order 48(1)), that prima facie, no matter of privilege appeared to exist, and that therefore he would not allow other business to be set aside to debate the motion. [13] As a result, the motion stayed on the Order Paper and was never reached. Since then, no matter of privilege for which written notice had been given via the Order Paper has been debated.

Meanwhile, in the years leading up to 1965, particularly through the 1940s and 1950s, the number of questions of privilege raised, many of them frivolous, had increased, as had the Speaker’s authority to deal with them. [14] As part of this trend, it was only natural for the House to attempt to control further any spurious interventions.

As such, a new Standing Order was adopted in 1965 which, in codifying some of the past practices, made a distinction between those questions of privilege arising from House proceedings, and those arising outside the House. [15] From then on, the latter cases required either regular written notice to the House, or a one-hour private notice to the Speaker before they could be raised. [16] After the change, some Members had difficulty with the new Standing Order, [17] although most quickly adapted. Still, there were cases in which the rule was circumvented, either by an implicit waiving of the rule, [18] or via the now-defunct Standing Order 43. [19] For a short time beginning in 1975, the timing of the one-hour requirement was changed slightly so that notice had to be given “prior to the opening of a sitting” rather than “prior to raising the question in the House”, [20] but this amendment expired in 1977. The present Standing Order is identical to that adopted in 1965, and has served to deter illegitimate questions of privilege. However, the mere fact of its existence has not eliminated the need for occasional reminders from the Chair about the notice requirements. [21]

Commentary — Standing Order 49

As a general principle, a prorogation puts an end to all proceedings pending in Parliament. [1] Sometimes, however, various papers and documents requested by the House cannot be prepared for tabling in the same session in which they were requested. As these papers and documents (also referred to as returns) are obtained either by a direct Order of the House or by an Address to the Governor General, the ordinary effect of a prorogation would be to force a renewal, in the next session, of those Orders and Addresses for which returns are not yet ready. Standing Order 49 simply eliminates the need for renewing these Orders and Addresses. As a result, they carry over from session to session, within the same Parliament. Requests for government responses to committee reports and petitions survive in like manner. [2]

Historical Summary — Standing Order 49

Until 1876, the House followed the practice of moving for all papers by way of Addresses to the Governor General. [3] From then on, however, both Orders and Addresses were resorted to. Since they lapsed at the end of each session, they had to be renewed during the course of the following session. However, a practice soon developed to “bring down in the following session all papers of general importance without a renewal of the order”. [4] Eventually, in 1906, the prevailing practice was codified into a Standing Order, which has not since been amended. [5]

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