The House and Its Members / Miscellaneous

Standing Orders: Unprovided Cases; documents relevant to proposed amendments to the Standing Orders available in one official language only

March 15, 2001

Debates, pp. 1726-8

On March 1, 2001, André Bachand (Richmond–Arthabasca) rose on a point of order with respect to Government Business No. 2 (amendments to Standing Orders 76(5) and 76.1(5) (regarding the Speaker’s power to select amendments at report stage)) adopted on Tuesday, February 27, 2001.^[1] In particular, he referred to the following specification in the proposed amendments to the Standing Orders: “in exercising this power of selection, the Speaker shall be guided by the practice followed in the House of Commons of the United Kingdom.” Mr. Bachand argued that, since any relevant documentation from the United Kingdom would be available in English only, the proposed change to the Standing Orders would interfere with his ability and with that of all francophone Members of the House to prepare report stage amendments and to have an equal opportunity to know and understand what constitutes satisfactory amendments, and that the text in question also failed to respect the Official Languages Act (Editor’s Note: The Speaker cannot rule on matters of law). Mr. Bachand asked that the Chair suspend the implementation of the changes to the Standing Orders until his rights and those of other francophone Members had been protected and respected. After hearing from other Members, the Speaker took the matter under advisement.

On March 15, 2001, the Speaker delivered his ruling. He noted that Standing Order 1 directs the Speaker to resolve procedural questions which have not been provided for or mentioned in the Standing Orders or other Orders of the House by referring first to the usages, forms, customs and precedents of the House of Commons of Canada; then to parliamentary tradition in Canada; then to practices in other jurisdictions outside Canada, so far as they are applicable to the House. The Speaker emphasized that this last provision referred not so much to the rules of those jurisdictions but to the traditions on which they are based. Having affirmed the Speaker’s responsibility to protect the right of Members to work in both official languages, he noted that the availability of documents in either of the official languages is not a consideration, since it is the Speaker’s interpretation of those practices and their application in the House that ought to concern Members. The Speaker also added that he could not grant the request made by Mr. Bachand to suspend the implementation of the amendments in question because they had already become part of the Standing Orders and only the House, and not the Speaker, had the authority to change them.

Decision of the Chair

The Speaker: Order, please. I am ready to rule on the point of order raised on Thursday, March 1, by the hon. Member for Richmond–Arthabaska.

The hon. Member’s concerns stem from the adoption by the House, on February 27, 2001, of a Government motion to amend the note to section (5) of Standing Order 76 and the note to section (5) of Standing Order 76.1. As you no doubt know, these sections deal with the Speaker’s power to select amendments at the report stage. The hon. Member’s problem lies in the fact that the notes contain the following phrase:

—in exercising this power of selection, the Speaker shall be guided by the practice followed in the House of Commons of the United Kingdom.

The hon. Member argues that, to do his job properly if he has to draft amendments, he must have access to the rules governing the selection of amendments in his own language, French. He indicates that documents from the United Kingdom are available in English only and that, as a result, he cannot do his work effectively, since he cannot understand the nuances and subtleties of the rules.

He asks the Chair to suspend the implementation of the adopted amendments until his rights and those of other francophones are protected and respected.

I wish to thank the Government House Leader, the Whip of the Bloc Québécois, the Parliamentary Secretary to the Government House Leader, the Leader of the Progressive Conservative Party and the Member for Regina–Qu’Appelle for their interventions.

As hon. Members know well, the role of the Speaker is to preside over the business of the House of Commons and to rule on procedural matters, whether this involves interpreting Standing Orders or deciding issues of privilege or decorum.

The discussion on this point of order made various references to specific statutes. The hon. Member for Richmond–Arthabaska referred to the Official Languages Act and the Constitution Act, 1867, while the Parliamentary Secretary to the Government House Leader referred to the Parliament of Canada Act, noting that Act’s specific reference in section 4 to the House of Commons of the United Kingdom.

While these references are an interesting backdrop, it must be remembered that it is not the Speaker’s role to rule on the application of any act, but rather to examine issues in light of possible transgressions of procedural practice and procedural precedent.

The hon. Member insists that he will not have access to the rules governing the drafting of amendments because they will be “in English”.

I would point out that the House has simply decided to amend the note to section (5) of Standing Order 76 and the note to section (5) of Standing Order 76.1 by making explicit reference to the practice followed in the House of Commons of the United Kingdom.

Moreover, Standing Order 1 states the following:

In all cases not provided for hereinafter, or by other Order of the House, procedural questions shall be decided by the Speaker or Chairman, whose decisions shall be based on the usages, forms, customs and precedents of the House of Commons of Canada and on parliamentary tradition in Canada and other jurisdictions, so far as they may be applicable to the House.

This Standing Order stipulates that if, during proceedings in matters of public interest, a procedural question arises that has not been provided for or mentioned in the Standing Orders or other Order of the House, the Speaker of the House must base his or her decision first on the usages, forms, customs and precedents of the House of Commons of Canada; then on parliamentary tradition in Canada; then on that in other jurisdictions, to the extent that it may be applicable to the Canadian House of Commons. This provision does not refer directly to the codified rules or Standing Orders of other jurisdictions, but primarily to the tradition on which they are based.

Standing Order 1, which has existed since 1867, recognized the origins of our Westminster Parliament and stated that this House would be guided by British precedent. From 1867 to 1986, it stated this explicitly:

In all cases not provided for—, the rules, usages and forms of the House of Commons of the United Kingdom—shall be followed.

In 1986, the House amended Standing Order 1 recognizing that parliamentary practice in Canada had evolved to the point where, in unprovided cases, it might seek guidance from the wider community of parliaments. The members of the Special Committee on the Reform of the House of Commons considered that the practices of the Canadian House of Commons need no longer be tied to those of any other assembly or any other country. However, they recognized that in unprovided cases, there was still great usefulness in examining the precedents and authorities in other legislatures and parliaments, especially those in the Commonwealth.

Thus, on the Committee’s recommendation, the House adopted the current wording for Standing Order 1 to reaffirm that the House of Commons had the freedom to tailor its procedure to its own needs while preserving Canadian traditions.

I have drawn such a detailed history of Standing Order 1 to show you that the House of Commons of Canada has often turned to the United Kingdom in cases that were not provided for. Of course, the situation has evolved, and now we also consult other jurisdictions to the extent that their rules or practices are applicable to the House. However, the fact remains that if, at the report stage, a situation arises that is not covered by our practices or by the practices of the United Kingdom, I would be required, under Standing Order 1, to consult the practices of other jurisdictions.

In such circumstances, the availability of documents in either of our official languages is not a consideration. Instead, I would respectfully suggest that it is the interpretation of such practice and the Chair’s judgement on how such practice will be applied in this House that is the key concern for Members.

The House has a long history of consulting the precedents in other parliaments that have followed the Westminster tradition, and the language of these documents has never seemed to be an obstacle. When we discuss procedural matters during the daily business of the House, we frequently consult the various editions of Erskine May to develop our arguments. The wide range of documents that we consult on parliamentary precedent are not necessarily available in both official languages, but we have been able to work with them.

The House recognizes that Members are entitled to receive service in both official languages. Simultaneous interpretation is provided in the House and in committees and Members have access to free translation services. One of the roles of the Speaker is to protect and defend Members’ rights to work in the official language of their choice.

In that regard, in keeping with what I said earlier about the application of other practice in this Chamber, I am currently studying the application of these notes to Standing Orders 76 and 76.1, and I will return to the House with a statement on how this note will be interpreted. The statement will, of course, be available in both official languages and Members can govern themselves accordingly.

Meanwhile I cannot grant the request made by the hon. Member for Richmond–Arthabaska to suspend the implementation of the amendments in question. Because the motion was adopted by the House, these amendments are now part of the Standing Orders of the House, and it is my duty to be governed by the Standing Orders. Only the House can decide to change the Standing Orders. As always, the Chair is in the hands of the House, which may decide if and when it will modify the rules under which its deliberations are conducted.

I wish to thank the hon. Member for having raised this issue, and all those who made a useful contribution to the discussion.

Rt. Hon. Joe Clark: Mr. Speaker, I rise on a point of order. For my clarification, does that mean that it is no longer a requirement that documents respecting the procedures of the House of Commons be in both official languages?

The Speaker: The hon. Member will want to read the judgment the Chair has just given. I think he will find the answer in that judgment. I do not want to confuse him by giving answers to questions. I think the judgment is quite clear, and I know that he will find it so when he has a chance to review it.

Mr. Stéphane Bergeron (Verchères–Les Patriotes): Mr. Speaker, I simply would like you to clarify for me what you just said.

Am I right to think that the motion, as passed, does not change the Standing Orders of the House of Commons, but is meant to provide guidance to the Chair? May I ask you also if the subject matter of the motion in question does not involve a number of existing practices in Canada, which would eliminate the need to look at what is done in the United Kingdom?

I do not know, Mr. Speaker, if you understand what I am asking. I will make it clearer. I would like you to tell me if this motion is simply meant to guide you in your rulings and does not change the Standing Orders of the House of Commons.

The motion refers to a practice followed in the United Kingdom. However, according to the ruling you just gave, foreign practices have to be taken into account only when there is no existing practice here, in Canada.

My question is this: since there is a practice that has been followed in Canada for a number of years with regard to the selection of motions at report stage, does what you just told us eliminate the need to refer to a foreign practice?

The Speaker: Once again, I think the Member will find the answer to his question in the Speaker’s ruling I just made, which he will soon be able to read.

I also indicated in my ruling that there will be another presentation by the Chair regarding the acceptability of amendments at report stage. There will be something on this subject soon.

With the ruling I gave today and with the presentation I will soon make to the House, the Member will certainly have all the answers he needs, or at least I hope he will.

On March 21, 2001, the Speaker made a statement to the House explaining his interpretation of the notes to Standing Orders 76 and 76.1 regarding the selection of report stage amendments.^[2]