Financial Procedures / Business of Supply

Opposition motions: admissibility; adoption of several bills at all stages

March 29, 2007

Debates, pp. 8136-8

On March 21, 2007, Peter Van Loan (Leader of the Government in the House of Commons) rose on a point of order with respect to the admissibility of an opposition motion proposing the adoption at all stages of Bills C-18, An Act to amend certain Acts in relation to DNA identification, C-22, An Act to amend the Criminal Code (age of protection) and to make consequential amendments to the Criminal Records Act, C-23, An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments), and C-35, An Act to amend the Criminal Code (reverse onus in bail hearings for firearm-related offences). The motion had been placed on the Notice Paper in the name of Marlene Jennings (Notre-Dame-de-Grâce–Lachine). The Government House Leader argued that it infringed on the prerogative of the Government to move Government business forward and that it sought to circumvent the legislative process and, thus, required unanimous consent.^[1] The Speaker ruled immediately that the motion was out of order in its present form and would not be allowed to be moved the following day. He noted that he would return to the House with a formal ruling.^[2]

On March 29, 2007, the Speaker delivered his ruling. He stated that he had previously ruled the motion out of order because it circumvented the rules and practices governing the legislative process in a manner prejudicial to the proper consideration of proposed legislation and because it usurped the Government’s prerogative to decide how to put forward its legislative program and to arrange the business of the House. Citing Bourinot, the Speaker also reminded the House of the first principles of parliamentary practice, which are predicated on the existence of a balanced framework that respects the rights and responsibilities of both the Government and the opposition. He also noted that over time the House may have strayed from the original purpose of opposition motions, namely the airing of grievances prior to the granting of supply. He concluded that using a supply motion actually to impose closure or time allocation on four separate bills was out of order and that therefore he was in no doubt that Ms. Jenning’s motion, as it appeared on the Notice Paper, was “clearly and undoubtedly irregular” and thus out of order.

Decision of the Chair

The Speaker: I am now ready to give a ruling that everybody has been waiting a week for on the point of order raised on Wednesday, March 21, 2007 by the hon. Government House Leader alleging the inadmissibility of the opposition motion placed on the Notice Paper on March 20, 2007 in the name of the hon. Member for Notre-Dame-de-Grâce–Lachine.

I would like to thank the hon. Government House Leader for raising this matter, as well as the hon. Member for Wascana, the hon. Member for Roberval–Lac-Saint-Jean and the hon. Member for Vancouver East for their interventions.

In order to recapitulate the contributions made by the hon. House Leaders and because of the complexity of the question before us, I have regrouped thematically the arguments presented.

The first argument to consider is the fundamental issue of balance between the majority and the minority in the proceedings of the House. This was raised by the Government House Leader when he stated that allowing the opposition motion appearing on the Notice Paper to proceed would “deny the minority parties… the opportunity and protections that exist in the Standing Orders for a full debate”.

The hon. Member for Vancouver East also touched on this concept when stating that, “the smallest party in the House, would be the ones who would often be the victims of this kind of procedure”.

Second, the concept of the Government prerogative to schedule Government business was argued. The Government House Leader cited Standing Order 40(2) to the effect that, “Government Orders should be called and considered in such sequence as the Government determines.”

Noting that the Standing Orders may be set aside temporarily only by unanimous consent and without setting a precedent, the Minister contended that the motion in question proposes effectively to enact legislation under the rubric of supply, in violation of constitutional conventions reserving to the Government the right to move Government business.

The hon. Members for Wascana and for Roberval–Lac-Saint-Jean invoked Standing Order 81(13) and House of Commons Procedure and Practice (page 724) respectively, to the effect that opposition motions “may relate to any matter within the jurisdiction of the Parliament of Canada”.

This touches upon the third issue that I wish to address today namely, as the hon. Member for Roberval–Lac-Saint-Jean underscored, the “wide scope on supply” afforded to Members by the Standing Orders with respect to opposition motions and the correlative practice of the Chair not to intervene unless a supply motion is “clearly and undoubtedly irregular”, i.e., where the procedural aspect is not open to reasonable argument.

Finally, the hon. Member for Vancouver East pointed out that the proposed opposition motion would, if adopted, have the effect of an omnibus bill, bundling together a group of legislative proposals in order to expedite their passage. This fourth issue, which touches on the complexity of the motion itself, also requires separate examination.

As I pointed out when I ruled the motion unacceptable, the proposed opposition motion would have the effect of imposing closure or time allocation on four bills simultaneously, something which, in my view, would be out of order even if the Government were to propose it.

If the Government wanted to do what this motion does, it would need to move a motion after due notice and, in the absence of agreement among the parties, it might resort to closure to have the matter decided and that would come only at a cost of at least one and one-half sitting days.

I would also note that our precedents, with the exception of cases dealing with the reinstatement of bills, would not permit the Chair to allow a Government motion to deal with more than one bill in such a circumstance. At best then, the Government could expedite passage of only one bill at a time through several stages using this procedure.

The arguments presented in this matter go to the essence of parliamentary procedure and provide a good opportunity for the Chair to remind the whole House of the underlying principles which support the work we do here.

House of Commons Procedure and Practice, at page 209, states that procedure is “at once the ‘means’ used to circumscribe the use of power and a ‘process’ that legitimizes the exercise of, and opposition to, power”.

Naturally, over time, our rules have evolved. The House has seen fit to adopt rules from time to time to govern how business is to be transacted and certain changes—closure in 1913 and time allocation in 1969, among others—have effectively given the Government, in a majority situation, greater control over the advancement of its business. Nevertheless, to quote House of Commons Procedure and Practice (p. 210) again:

—it remains true that parliamentary procedure is intended to ensure that there is a balance between the government’s need to get its business through the House, and the opposition’s responsibility to debate that business without completely immobilizing the proceedings of the House.

At the present time, the Chair Occupants, like our counterparts in House committees, daily face the challenge of dealing with the pressures of a minority Government, but neither the political realities of the moment nor the sheer force of numbers should force us to set aside the values inherent in the parliamentary conventions and procedures by which we govern our deliberations.

Honourable Members are all aware of situations in committees of this Parliament where, because decisions of the Chair are subject to appeal, decisions that were procedurally sound have been overturned by the majority on a committee.

Unlike the situation faced by committee Chairs, a Speaker’s decision is not subject to appeal. All the more reason then for the Chair to exercise its awesome responsibility carefully and to ensure that the House does not, in the heat of the moment, veer dangerously off course.

The Speaker must remain ever mindful of the first principles of our great parliamentary tradition, principles best described by John George Bourinot, Clerk of this House from 18[8]0^[3] to 1902, who described these principles thus:

To protect the minority and restrain the improvidence and tyranny of the majority, to secure the transaction of public business in a decent and orderly manner, to enable every Member to express his opinions within those limits necessary to preserve decorum and prevent an unnecessary waste of time, to give full opportunity for the consideration of every measure, and to prevent any legislative action being taken heedlessly and upon sudden impulse.^[4]

In the present case, although the Government does not have a majority in the House, it still has a duty to present to the House a legislative program and is entitled to expect that it could do so with all the responsibilities but also all the protections associated with our balanced framework of parliamentary law.

It is for this reason that the issue of prerogative is so important. The Government has certain prerogatives; the opposition has certain other prerogatives. Our rules now even provide that private Members have certain prerogatives. As House of Commons Procedure and Practice states at page 390:

Different categories of business have developed over the years in response to the need to adapt to the organization of House business. Some categories are now uniquely reserved for the government or the opposition; some are reserved for private Members—

As the Government House Leader has pointed out, these prerogatives are given effect by the Standing Orders. He has cited Standing Order 40(2) as an example but there are many more. Only a Minister may move closure or time allocation. Only a Minister may move to suspend the Standing Orders pursuant to Standing Order 53. Only a Minister may move a motion under Standing Order 56.1 when unanimous consent has been denied. The Chair has consistently ruled—and there are Speakers’ rulings from 1928, 1944, 1961 and 1982 on this point—that any motion pertaining to the arrangement of the business of the House should be introduced by the Ministry.

In short, as Mr. Speaker Fraser ruled in 1988, and I refer to the Debates of July 13 of that year at page 17506, it is, with very few specific exceptions “the Government’s unquestioned prerogative to determine the agenda of business before the House”.

In a similar vein, several of our rules give the prerogative to the opposition—Standing Order 81(4)(a) concerning the consideration of estimates in Committee of the Whole is an example—and an entire chapter of our Standing Orders describes the prerogatives of private Members with regard to the business that they may bring forward.

Where these prerogatives intersect is with regard to supply day opposition motions. Supply is Government business; the Government designates supply days or allotted days on which the opposition can exercise what Marleau and Montpetit has called “the right to have its grievances addressed before it considers and approves the financial requirements of the Crown” by proposing motions for debate. I refer hon. Members in this regard to House of Commons Procedure and Practice, at page 701.

As the hon. Members for Wascana and Roberval–Lac-Saint-Jean reminded us, such motions “may relate to any matter within the jurisdiction of the Parliament of Canada”. Members “enjoy a very wide scope in proposing opposition motions on supply days and, unless the motion is clearly and undoubtedly irregular (e.g., where the procedural aspect is not open to reasonable argument), the Chair does not intervene.”

Past interventions from the Chair have, accordingly, been rare, restricted to cases in which a motion is “clearly and undoubtedly irregular”. Speaking to this principle, Mr. Speaker Fraser declared that “the use of an allotted day ought not to be interfered with except on the clearest and most certain procedural grounds”. I quote from the Debates of June 8, 1987 at page 6820.

Still, there is nothing whatever in the relevant procedural authorities to suggest that opposition motions on supply days were ever conceived of as a means of fast-tracking bills already present elsewhere on the Order paper. Indeed, it is evident from their historical background that opposition motions on supply days were never envisaged as an alternative to the legislative process.

While we are reflecting this afternoon on the nature of opposition motions on supply days, may I say that neither were they created to address concerns about House procedure. To be sure, as hon. Members have pointed out, the phrasing of Standing Order 81(13) is very broad indeed, stating as it does:

Opposition motions on allotted days… may relate to any matter within the jurisdiction of the Parliament of Canada—

In the same vein, I myself as Speaker in a ruling on October 31, 2002 mused that the opposition has “the right to move whatever motion it chooses to on an opposition day”. It should come as no surprise therefore that, sheltered by that very broad umbrella, the House may have strayed rather far from the original crux of the matter, namely, airing grievances before voting supply to fund the Crown’s program. Perhaps the Standing Committee on Procedure and House Affairs can review these Standing Orders to consider whether revisions to their wording might be helpful in realigning them with their original mission.

The motion which concerns us proposes to expedite the passage of four Government bills simultaneously via their deemed adoption at all remaining stages. In this it is similar in form and substance to motions from Government Ministers which seek to expedite the legislative business of the House. There is, however, a crucial distinction between the two: although both seek the implementation of their provisions notwithstanding any rule or practice of the House, except in very well-established circumstances such as for the reinstatement of bills at the beginning of a session, for example, the Government generally may not move such motions without unanimous consent.

Such motions permit the Government to rearrange the business of the House by means of temporary suspensions of the Standing Orders. They represent a well-established practice whereby the Government introduces motions pertaining to the arrangement of the business of the House. Furthermore, such abbreviations of the legislative process can take place only by unanimous consent, which may be difficult to obtain in respect of the simultaneous fast-tracking and adoption of more than one bill.

The very high threshold of unanimous consent creates a pivotal safeguard in ensuring that every measure before the House receives full and prudent consideration. What is being proposed not only does away with that safeguard, it takes advantage of the stringent regime governing supply days. In that regard, for example, it is important to note the precedence accorded to opposition motions over all Government supply motions on allotted days.

Furthermore, recent amendments to the rules dealing with such motions offer an especially stringent regime: first, the rules provide what amounts to an automatic closure mechanism, since the motion comes to a vote at the end of the day, thus guaranteeing a decision on the motion; and second, no amendment to the motion is possible without the consent of the mover.

In stark contrast, any motion which could be brought forward by the Government to expedite consideration of a bill would be debatable and amendable, and the imposition of time allocation or closure would necessitate a separate question from the motion proposing adoption of the bill at a particular stage or stages in the legislative process.

This brings the Chair to the important point raised by the hon. Member for Vancouver East regarding the complexity of the motion. The motion in question seeks to fast-track not one but four separate bills. Since it is a supply motion, any amendment would require the consent of the motion’s sponsor and the unanimous consent of the House would not be required for adoption of the motion.

The Chair has been unable to find any examples even of Government-sponsored multi-bill motions being moved after due notice, with the exception, as noted earlier, of motions to reinstate legislation at the beginning of a session. Even in these cases, the authority of the Speaker to divide a motion is unquestioned.

On this point I refer hon. Members to pages 299-300 of Debates for October 4, 2002 where I ruled that just such a motion be divided. In doing so, I quoted page 478 of House of Commons Procedure and Practice which states:

When a complicated motion comes before the House (for example, a motion containing two or more parts each capable of standing on its own), the Speaker has the authority to modify it and thereby facilitate decision-making for the House.

This passage is supported by rulings from Mr. Speaker Macnaughton in 1964, see Journals of June 15, 1964, pages 427-31, and another from Mr. Speaker Fraser in 1991, see Debates, April 10, 1991, page 19312.

There is little doubt that the motion of the hon. Member for Notre-Dame-de-Grâce–Lachine is a complicated one since it concerns four distinct legislative proposals, each of which would be disposed of, in some cases through more than one stage, through a single vote of this House. The motion before us clearly seeks to circumvent the rules and practices governing the legislative process in a manner prejudicial to the proper consideration of proposed legislation.

By curtailing the legislative process, interrupting the consideration of bills in committee, and eliminating opportunities for amendment at various stages of the legislative process without the requirement for unanimous consent, a fertile imagination is not required to imagine that supply motions similar to this could be used to deprive the Government of effective control over the content and disposition of its own bills once these have been introduced to the House. Not only would this violate the entire ethos of the business of supply, it would clearly interfere with the “unquestioned prerogative” of the Government and it would do so in a manner utterly inconsistent with the limited exceptions contemplated by House of Commons Procedure and Practice and other authorities.

By way of analogy, hon. Members might wish to consider their own reaction should the Government seek to interfere with the consideration of Private Members’ Business in a similar fashion. In the Chair’s view, any of these scenarios of usurpation, whether the opposition seeks to hijack the Government’s agenda or the Government the opposition’s or that of private Members, might reasonably be characterized as a “tyranny of the majority” of a type unforeseen even by Monsieur Bourinot.

As your Speaker, it is my duty to remind the House of some of these fundamental tenets of parliamentary procedure. It is now up to the House to determine how it wishes its procedures to evolve. In the meantime, the Chair is not in doubt that in this case, the motion of the hon. Member for Notre-Dame-de-Grâce–Lachine as it appeared on the Notice Paper was “clearly and undoubtedly irregular” and therefore out of order.

I apologize for taking all this time of the House to come back with these lengthy reasons, but I felt that the issue was an important one and I wanted to make very clear what the views of the Chair were on this matter.