Private Members’ Business / Similar Items

Private Members’ bills: similar items on the Order of Precedence

November 7, 2006

Debates, p. 4785-86

On November 1, 2006, Derek Lee (Scarborough–Rouge River) rose on a point of order with respect to Bill C-257, An Act to amend the Canada Labour Code (replacement workers), standing in the name of Richard Nadeau (Gatineau), which had recently received second reading, and Bill C-295, An Act to amend the Canada Labour Code (replacement workers), standing in the Order of Precedence in the name of Catherine Bell (Vancouver Island North). Each Bill was aimed at amending the Canada Labour Code with respect to replacement workers. Mr. Lee argued that, apart from minor differences with respect to fines, the two Bills were substantially the same, and that proceeding with both would cause confusion. He further argued that, since it was possible that Bill C-257 would not ultimately be passed, Bill C-295 should not be withdrawn altogether but be held in abeyance pending the possible defeat or removal from the Order Paper of Bill C-257, at which point Bill C-295 could once again be considered without procedural irregularity. Libby Davies (Vancouver East) argued that the two Bills, though only slightly different in content, were nonetheless different bills, that it would be an undesirable precedent for a Member with an item of Private Members’ Business to lose his or her place in the Order of Precedence through the actions of a third party. She concluded that since the Bills had become the property of the House, it would not be appropriate for the Speaker to remove one of them from consideration. The Speaker took the matter under advisement.^[1]

On November 7, 2006, the Speaker delivered his ruling. He stated that he had found that except for minor differences and the sums of the fines imposed, both Bills were identical in terms of their legislative and procedural impact, and achieved their objectives through the same means. He added that allowing both to remain on the Order Paper would put at risk a key principle of parliamentary procedure, namely, that a decision once made cannot be questioned again, but must stand as the judgment of the House. He did, however, express reluctance to withdraw Bill C-295 since it might be Ms. Bell’s only opportunity to have an item in the Order of Precedence, and therefore ruled that Bill C-295 should drop to the bottom of the Order of Precedence to give the Standing Committee on Procedure and House Affairs an opportunity to come up with a solution. In the absence of a resolution, the Speaker indicated that, when Bill C-295 next reached the top of the Order of Precedence, he would order that debate not proceed, that the Order for debate be discharged, and that the Bill be dropped from the Order Paper.

Decision of the Chair

The Speaker: The Chair is now prepared to rule on a point of order raised by the hon. Member for Scarborough–Rouge River on November 1, 2006, concerning Bill C-257, standing in the name of the hon. Member for Gatineau, and Bill C-295, standing in the name of the hon. Member for Vancouver Island North. Both Bills amend the Canada Labour Code in relation to replacement workers.

I want to begin by thanking the hon. Member for Scarborough–Rouge River for having raised this matter and the hon. Member for Vancouver East for having made a submission.

In his presentation, the hon. Member for Scarborough–Rouge River argues that these Bills are substantially the same, except for some minor differences relating to fines. A decision was taken by the House on October 18 to adopt Bill C-257 at second reading and refer it to committee. The hon. Member argues, in light of this decision, that debate should not continue on Bill C-295 and that the Bill should be removed from the Order of Precedence.

The hon. Member for Vancouver East contends that although both Bills deal with the same subject, they are different and, therefore, Bill C-295 should not be removed from the Order of Precedence.

Let me first clarify our practices with regard to items of Private Members’ Business which are similar. Standing Order 86(4) states:

The Speaker shall be responsible for determining whether two or more items are so similar as to be substantially the same, in which case he or she shall so inform the Member or Members whose items were received last and the same shall be returned to the Member or Members without having appeared on the Notice Paper.

When this Standing Order was first adopted, Private Members’ Business operated very differently than it does today. The Standing Orders provided for only 20 items of Private Members’ Business to be placed by lottery on the Order of Precedence and provided that, of those, only three bills could come to a vote. Realistically, then, there was little chance that bills considered substantially the same would ever be drawn together and placed on the Order of Precedence, let alone be debated and voted upon. Given those odds, Standing Order 86(4) came to be [invoked]^[2] only rarely: only when a bill was identical to one already introduced would it be refused. This generous interpretation is referred to in a ruling of Mr. Speaker Fraser on November 2, 1989, at pages 5474-5 of Debates, where he states:

I should say that in the view of the Chair, two or more items are substantially the same if, first, they have the same purpose and, second, they obtain their purpose by the same means.

Accordingly, there could be several bills addressing the same subject, but if they took a different approach to the issue the Chair would judge them to be sufficiently different so as not to be substantially the same.

The intent… was to give Members an opportunity to put before the House items of concern to them, but to prevent a multiplicity of identical bills being submitted….

As Mr. Speaker Fraser explained, this interpretation had the practical effect of giving a Member an opportunity to bring forward a legislative proposal on any subject, regardless of what other Members might be doing. This practice has served Members well until the present case.

The current Standing Orders, which were first adopted provisionally in May 2003, provide for a single draw of the names of all Members at the beginning of a Parliament. On the 20th sitting day following the draw, the first 30 Members on the list who have introduced a bill or given notice of a motion on the Notice Paper, constitute the Order of Precedence. Following the draw, the Subcommittee on Private Members’ Business needs to determine if any of the items should be designated non-votable pursuant to Standing Order 91.1. In determining whether any of the items should be deemed non-votable, the Subcommittee considers whether or not any of the bills or motions are substantially the same as ones already voted on by the House of Commons in the current session.

In the case at hand, a careful examination of both Bills reveals that they have exactly the same objective, that is, to prohibit employers under the Canada Labour Code from hiring replacement workers to perform the duties of employees who are on strike or locked out. The following minor differences distinguish them: First, Bill C-257 provides for a fine not exceeding $1,000 for each day that an offence occurs, whereas Bill C-295 provides for a fine not exceeding $10,000; second, Bill C-257 contains subparagraph (2.1)(f) in clause 2 concerning prohibitions relating to the use of replacement workers, text that is not found in Bill C-295; and third, subclause (2.2) in Bill C-257 appears as subclause (2.9) in Bill C-295.

Other than these three differences, both Bills are identical in terms of their legislative and procedural impact. The only concrete difference between them relates to the sum of the fines. While this is an important matter, it does not make the Bills into distinctly different legislative initiatives. The Chair must therefore conclude that both Bills are substantially the same and achieve their objectives through the same means.

The question then becomes, should the second Bill, Bill C-295, be allowed to proceed?

It seems to the Chair that there is considerable risk involved in allowing bills that are substantially the same to be debated. It puts at risk a key principle of parliamentary procedure, namely, that a decision once made cannot be questioned again, but must stand as the judgment of the House.

House of Commons Procedure and Practice, at page 495, explains that the principle exists for very good reason.

This is to prevent the time of the House from being used in the discussion of motions of the same nature with the possibility of contradictory decisions being arrived at in the course of the same session.

In the present case, we have an unusual convergence of circumstances. Not only were the Bills sponsored by the hon. Members for Gatineau and Vancouver Island North both placed on the Notice Paper, their names were also among the first 30 drawn for the Order of Precedence. Moreover, the Subcommittee on Private Members’ Business faced with the fact that debate had yet to begin on items of Private Members’ Business could not deem one of the Bills to be non-votable since the House had not yet taken any decisions on such business.

Today, the Chair has found itself in an unprecedented situation. I have concluded that Bill C-295 is substantially the same as Bill C-257. Ordinarily, I would order Bill C-295 to be dropped from the Order Paper in conformity with this Standing Order. However, given that this situation has never arisen before, I am reluctant to make a final ruling since this may be the only opportunity in this Parliament that the hon. Member for Vancouver Island North gets to have an item on the Order of Precedence. At the same time, the Chair cannot allow the Bill to go forward for its last hour of debate and the vote that would follow.

So, instead, in accordance with Standing Order 94(1), which provides the Speaker with the authority to make all arrangements necessary to ensure the orderly conduct of Private Members’ Business, I am ordering that Bill C-295 be dropped to the bottom of the Order of Precedence.

This delay in the consideration of Bill C-295 is designed to provide the Standing Committee on Procedure and House Affairs with sufficient time to examine this matter and suggest some resolution to the situation for the sponsor of the Bill. The Committee should also consider whether our practices in relation to the application of Standing Order 86(4) continue to serve the House in an effective manner given that our rules respecting Private Members’ Business have changed since this Standing Order was first adopted.

In the absence of a solution to the predicament of the sponsor of Bill C-295, the Chair will have no option when the Bill next reaches the top of the Order of Precedence; I will order that debate not proceed, that the Order for the Bill’s consideration be discharged and that the Bill be dropped from the Order paper.

Once again, I thank the hon. Members for Scarborough–Rouge River and for Vancouver East for having brought this situation to the attention of the Chair and of the House. It is an important contribution to the evolution of Private Members’ Business.

I believe the effect of the ruling will be that there will be no Private Members’ Business taken up this evening.

The Standing Committee on Procedure and House Affairs recommended in its Twenty-Third Report, presented to the House on November 27, 2006 and concurred in the same day, that Ms. Bell be given a choice among three options: to withdraw Bill C-295 and do nothing further; to have Bill C-295 debated in the House of Commons for a second hour but then be declared non-votable; or to advise the Speaker, in writing, within five days of the adoption of the Committee’s Report, that she wished to have Bill C-295 withdrawn and the Order for second reading discharged, following which she would be given 20 sitting days from the adoption of the Report to specify another item of Private Members’ Business for consideration. The item, notwithstanding any other Standing Order to the contrary, would be immediately placed at the bottom of the Order of Precedence and, subject to the application of Standing Orders 86 to 99, would be debated for up to two hours and be votable.^[3]

On December 6, 2006, the Speaker announced that Ms. Bell had requested that the Order for second reading of Bill C-295 be discharged and the Bill withdrawn, and that in its place, pursuant to the recommendation made by the Standing Committee on Procedure and House Affairs in its Twenty-Third Report, Ms. Bell had placed on notice another item of Private Members’ Business (Motion No. 262), which was placed at the bottom of the Order of Precedence.^[4]

On May 1, 2007, Peter Van Loan (Leader of the Government in the House of Commons and Minister for Democratic Reform) rose on a point of order to ask that Bill C-415, An Act to amend the Canada Labour Code (replacement workers), standing in the name of Mario Silva (Davenport), not be allowed to proceed on the grounds that it was substantially the same as Bill C-257. Among other arguments, the Government House Leader referred to the ruling on the similarity between Bill C-257 and Bill C-295.^[5] On May 7, 2007, the Speaker ruled that consideration of Bill C-415 could proceed as it contained a provision related to essential services, and was therefore broader in scope than Bill C-257. He concluded that debate on Bill C-415 would not engender the same difficulties that would have occurred had Bills C-257 and C-295 both been allowed to proceed.^[6]