The Daily Program / Routine Proceedings

Motions: Standing Order 56.1; bypassing usual decision-making process of the House

September 18, 2001

Debates, pp. 5256-8

On June 12, 2001, Peter MacKay (Pictou–Antigonish–Guysborough) rose on a point of order with respect to a motion presented earlier that day by Don Boudria (Leader of the Government in the House of Commons), which had been adopted pursuant to the provisions of Standing Order 56.1.^[1] Mr. MacKay argued that an abuse of process had occurred which was tantamount to a breach of the rules and of the intention and interpretation thereof. The motion in question concerned the disposition of business for the final two sitting days prior to the summer adjournment, including the voting method for the last supply day. Mr. MacKay referred to the last paragraph of the motion which predetermined the results of all votes on the estimates following the first recorded division. He argued that the expenditure of public money was a substantive matter on which the House ought itself to make a decision, and that the motion denied the House’s right to vote on it. He added that the use of Standing Order 56.1 was limited to a category of matters defined as “any routine motion” and asked the Speaker to rule the motion out of order. After hearing from other Members, the Speaker stated that, since the motion had been adopted in the morning without 25 Members rising in their places to object, (the Standing Orders provide that if 25 Members or more rise, the motion is deemed withdrawn) and without objection at that time as to its procedural acceptability, it would therefore apply. He added that the Chair was prepared to review the terms and interpretation of the Standing Order involved and that he would take the submissions made under consideration and return to the House with a ruling in due course.^[2]

On September 18, 2001, the Speaker delivered his ruling. He reminded the House that, on June 12, 2001, he had allowed the motion in question to stand as it had been adopted without any objection at the time it had been moved, and some eight hours had passed before Mr. MacKay had raised his point of order. He observed that Standing Order 56.1, when it was adopted, was intended to be used for routine motions only, as defined by Standing Order 56.1(1)(b). He then cited examples of what he characterized as “a disturbing trend” in which the Standing Order was used for the adoption of motions less readily defined as routine. Further to a close examination of precedents and the recent use of the Standing Order as a tool to bypass the decision-making functions of the House, the Speaker stated that, had objections been raised in a timely fashion to the motion adopted on June 12, 2001, he would have been inclined to rule it out of order as it went well beyond the original intent of the Standing Order, which had also never been used as a substitute for decisions which the House should make on substantive matters. He added that, therefore, it should not be regarded as a precedent, and suggested that the Standing Committee on Procedure and House Affairs might wish to examine the appropriate use of Standing Order 56.1.

Decision of the Chair

The Speaker: Order, please. I would now like to deal with the point of order raised on June 12, 2001, by the hon. Member for Pictou–Antigonish–Guysborough relating to the use of the provisions of Standing Order 56.1. The hon. Member stated in his argument that an abuse of process had occurred which was “tantamount to a breach of the rules and the intention and interpretation thereof” when, earlier that day, the Government used Standing Order 56.1 to move a motion to which unanimous consent had been previously denied. The motion in question concerned the disposition of business for the final two sitting days prior to the summer adjournment, including the voting method to be followed on the last supply day of the period ending June 23, 2001.

I would like to thank the hon. Leader of the Government in the House of Commons, the hon. Member for Yorkton–Melville, the hon. Member for Winnipeg–Transcona and the Parliamentary Secretary to the Leader of the Government in the House of Commons for their contributions on this matter.

At that time I ruled that the terms of the motion would stand, having been adopted by the House some eight hours before the hon. Member raised his point of order. However, I also indicated my intention to return to the House in the fall with a statement on the use of Standing Order 56.1 and I am now ready to address the House on this matter.

House of Commons Procedure and Practice, at page 571, describes Standing Order 56.1 as follows:

If, at any time during a sitting of the House, unanimous consent is denied for the presentation of a “routine motion”, a Minister may request during Routine Proceedings that the Speaker put the motion. For that purpose, a “routine motion” refers to motions which may be required for the observance of the proprieties of the House, the maintenance of its authority, the management of its business, the arrangement of its proceedings, the establishment of the powers of its committees, the correctness of its records or the fixing of its sitting days or the times of its meeting or adjournment. The motion, which is neither debatable nor amendable, is immediately put to the House by the Speaker. If 25 Members or more oppose the motion, it is deemed withdrawn; otherwise, it is adopted.

Standing Order 56.1 was adopted by the House in April 1991. At the time of its adoption concerns were raised about the implications of a rule that provides a mechanism for overriding the very unanimity of the unanimous consent mechanism that the House often uses to expedite its business. Speaker Fraser ruled on April 9, 1991, at page 19236 of the Debates:

However, this “over-ride” provision can operate, as the Chair understands it, only with respect to a certain very limited range of motions offered at a specific time in our daily agenda by a Minister of the Crown… Based on the fact that we have similar procedures existing with respect to other types of motions and given the very limited application of the new proposal, the Chair cannot accede to the request… that paragraph 20 of the motion respecting the Standing Order amendments be ruled out of order.

It should be emphasized that at the time of its adoption it was envisioned that the Standing Order would be used for only so-called routine motions as defined in Standing Order 56.1(1)(b).

Now let us examine how the rule has been used since its adoption 10 years ago. The Government sought to use Standing Order 56.1 in 17 cases and failed in two instances.

Between 1991 and 1995 it was used six times to authorize committee travel. This falls squarely within the terms of the Standing Order. From 1995 to 1997 it was used on the following four occasions to arrange the sittings of the House: in March 1995 and April 1997, to suspend the sitting of the House for the sole purpose of a Royal Assent ceremony; in March 1995, to enable the House to sit over the weekend to consider Government Orders Bill C-77, An Act to provide for the maintenance of railway operations and subsidiary services, a bill already under time allocation; and in June 1995, to extend the sitting to consider Government business beyond the extension already provided for under Standing Order 27(1).

Here again, these four examples illustrate the intended use of Standing Order 56.1 for routine purposes, that is, to enable the House to fix the times of its meetings or adjournments and to arrange its proceedings.

From 1997 there are signs of a disturbing trend in which Standing Order 56.1 was used, or attempted to be used, for the adoption of motions less readily identified or defined as routine. Let us review specific examples of this trend.

On December 1, 1997 the Standing Order was used for the first time to dispose of back to work legislation at all stages, Bill C-24, An Act to provide for the resumption and continuation of postal services. In March 1999 the Government attempted to use Standing Order 56.1 for back to work legislation on Bill C-76, An Act to provide for the resumption and continuation of government services. This attempt failed, as did a second attempt three days later. Eventually the legislation was dealt with under a Special Order after the Government moved the same motion which it had placed on the Order paper under Government Orders.

In June 1998, the Government attempted to use Standing Order 56.1 to rescind a decision previously taken by the House concerning Standing Orders 57 and 78(3). The undertaking failed and Members raised objections to this attempted use of the Standing Order. They argued that rescinding a unanimous decision of the House was not a routine motion and, as such, should not be permitted under this Standing Order. The Speaker allowed it, although he expressed misgivings, and he urged the Standing Committee on Procedure and House Affairs to examine the appropriate use of Standing Order 56.1.

Far less problematic are the two occasions where Standing Order 56.1 was used to enable the House to schedule take-note debates, in both cases providing for the House to sit beyond its normal hours: in February 1998 to debate Canada’s participation in a possible military action in the Middle East, the Gulf War; and in April 1999 to consider the situation in Kosovo. So long as we continue to respect the distinction between emergency debates under Standing Order 52 and take-note debates, using Standing Order 56.1 for scheduling purposes does not appear to violate the spirit of the Standing Orders.

The Government again used Standing Order 56.1 in June 2001 to dispose of all stages of Bill C-28, An Act to amend the Parliament of Canada Act, the Members of Parliament Retiring Allowances Act and the Salaries Act.

Finally, on June 12, 2001, the Government, under Standing Order 56.1, moved a motion to dispose of business over the following two sitting days. In this instance the motion provided for the disposition of third reading of Bill C-11, An Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger, and Bill C-24, An Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts, and to dispose of Government Business No. 7, the summer adjournment motion.

In addition the motion provided that once a recorded division had been taken on the main estimates, all subsequent motions to concur in any vote or votes on the main estimates shall be deemed moved and seconded and the question deemed put and agreed to on division. The effect of this was that there was a single recorded division on the first of 190 opposed items standing on the Order Paper and the remainder were deemed agreed to on division.

At this point I would like to draw to Members’ attention the following reference at pages 571-2 of House of Commons Procedure and Practice:

On April 9, 1991, Speaker Fraser, while pointing out that the range of motions to which the proposed procedure would apply was very limited, also suggested that the new Standing Order was to be understood as another procedurally acceptable mechanism for limiting debate: “There are certain similarities also between the proposal and existing Standing Order 78 respecting time allocation in that both use a ladder-like type of approach depending upon the extent of agreement forthcoming to securing the right to propose the motion.”

I would advise hon. Members to be very cautious in their reading of this passage. In his ruling, Speaker Fraser drew a parallel between Standing Order 56.1, which requires a prior attempt to gain unanimous consent, and Standing Order 78, the time allocation rule, which requires notice or prior consultation. It seems doubtful to me, having read the ruling in its entirety, that Speaker Fraser really meant to suggest that Standing Order 56.1 was to be understood as another procedurally acceptable mechanism for limiting debate.

The expanded use of Standing Order 56.1 since 1997 causes the Chair serious concern. The Government is provided with a range of options under Standing Orders 57 and 78 for the purpose of limiting debate. Standing Order 56.1 should be used for motions of a routine nature, such as arranging the business of the House. It was not intended to be used for the disposition of a bill at various stages, certainly not for bills that fall outside the range of those already contemplated in the Standing Order when “urgent or extraordinary occasions” arise. Standing Order 71 provides in such cases that a bill may be dealt with at more than one stage in a single day.

Likewise, a motion seeking to reverse a unanimous decision of the House is a serious undertaking and should in no way be viewed as a routine motion. It was never envisaged that Standing Order 56.1 would be used to override decisions that the House had taken by unanimous consent.

In the most recent use of Standing Order 56.1, a motion was adopted which provided for a recorded division on the first opposed item in the main estimates. However, all subsequent opposed items were then deemed moved and carried. The effect of the motion adopted pursuant to Standing Order 56.1 was to predetermine the results of all the votes following the first recorded division. It is clear to the Chair that this application of the Standing Order goes well beyond the original intent, that is, for the presentation of routine motions as defined in Standing Order 56.1(1)(b).

The Standing Order has never been used as a substitute for decisions which the House ought itself to make on substantive matters. In addition, if the House from time to time should agree by way of proceeding by unanimous consent as, for example, on the application of votes, one cannot assume that such agreements would automatically fall into the category of routine matters as defined in Standing Order 56.1.

As I previously indicated, I allowed the motion adopted on June 12, 2001, to go ahead because there were no objections raised at the time it was moved. By the time hon. Members expressed concern to the Chair some eight hours later, the Chair saw no alternative but to proceed with the terms of the motion. However, to speak frankly, had the objection been raised in good time, I would have been inclined to rule the motion out of order. This situation serves again to remind Members of the importance of raising matters of a procedural nature in a timely fashion.

In the three years since my predecessor urged the Standing Committee on Procedure and House Affairs to examine the appropriate use of Standing Order 56.1, we have seen further evidence of a trend away from the original intent of this rule. This would seem all the more reason for the Committee to consider the Standing Order at the earliest opportunity.

In the meantime, based on close examination of past precedents and the most recent use of Standing Order 56.1 as a tool to bypass the decision making functions of the House, I must advise the House that the motion adopted on June 12, 2001, will not be regarded as a precedent. I would urge all hon. Members to be vigilant about the use of this mechanism for the Chair certainly intends to be watchful.

I want to thank all hon. Members who intervened to raise this point before the House at this time.