The authority of the Chair is no greater than the House wants it to be. When the rules are clear and offer
precise guidance to the Speaker, the authority of the Chair is absolute and unquestioned, for this is the
will of the House. On the other hand, when there are no rules to fall back on, the Speaker must proceed
very cautiously indeed. The most the Chair can do is to lay the matter before the House which can then
itself create a new precedent.
Speaker Jeanne Sauvé
(Debates, March 18, 1982, p. 15556)
P
arliamentary procedure has been described as a “means of reaching
decisions on when and how power shall be used”. [1]
According to such a definition, 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.
Parliamentary procedure has also been described as “a combination of two elements, the traditional
and the democratic”. [2]
In other words, parliamentary procedure based on the Westminster model stems not only from an understanding
and acceptance of how things have been done in the past, but is embedded in a particular culture that
evolves along democratic principles. These principles, known as “parliamentary law”, [3]
were summarized in the following manner by John George Bourinot, an authority on parliamentary procedure
and Clerk of the Canadian House of Commons from 1890 to 1902:
The great principles that lie at the basis of English parliamentary law have … been always kept
steadily in view by the Canadian legislatures; these are: 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]
Commentators on Canadian parliamentary history have argued that, over the years, the ideal of
“protecting the minority” has had to adapt to the modern dictates of an efficient legislative
body. [5]
Closure and time allocation rules, adopted in 1913 and 1969 respectively, as well as other rules adopted by
the House, have long since given the government majority greater ability to advance its legislative program
over the objections of the minority. Nevertheless, 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. In short, debate in the House is necessary, but it should lead to a decision in a reasonable
time.
The proceedings of the House of Commons are regulated by a vast body of parliamentary rules and practices
— practice being that part of procedure which developed spontaneously and became regarded as the
usual or regular way of proceeding, though not written into the rules (the Standing Orders). [6]
As described in Chapter 1, many of these rules and practices originated in the United Kingdom, others were
inspired by pre-Confederation legislative assemblies [7]
and subsequently adopted in Canada. According to Erskine May, “ …some [of the forms and
rules of practice] were no doubt invented in Parliament itself, but others have been traced to analogies in
the medieval courts of law and in the councils of the Church”. [8]
Some rules have remained virtually unchanged for the last four hundred years, [9]
others have evolved to become, in time, conventional practices. Finally, the origins of some of the
earliest practices of parliamentary procedure “are lost in history”. [10]
As will be seen in this chapter, the parliamentary procedures and practices of the Canadian House of
Commons are founded on the Constitution and Statutes, the Standing Orders of the House, Speakers’
rulings and House practice.
The Constitution and Statutes
Canadian parliamentary institutions took shape well over two hundred years ago. Successive British
statutes adopted specifically for the colonies which were to form Canada came to prescribe, in increasing
detail, several basic procedural provisions. [11]
Many of these provisions were later included in the Constitution Act, 1867, which stated that
Canada shall have a constitution similar in principle to that of the United Kingdom, which is what each of
the founding provinces had before Confederation.
Those sections of the Constitution Act, 1867 which can be traced back to earlier constitutional
documents stipulate that on first assembling, the House must elect a Speaker, [12]
that it must also proceed to elect a Speaker in the case of a vacancy in that office due to death,
resignation or some other cause, [13]
that the Speaker shall preside at all meetings of the House, [14]
that the quorum of the House shall be 20 Members, [15]
and that all requests for the raising or spending of money must originate in the House of Commons and must
be recommended to the House by the Governor General. [16]
These provisions are also found in the Union Act, 1840. [17]
Other sections of the Constitution Act, 1867 may be traced back even further. The provisions
which stipulate that all questions arising in the House are to be decided by a simple majority, with the
Speaker having a casting vote in the case of a tie, [18]
and that all Members must take a prescribed oath before being allowed to take their seat in the House [19]
date back to the Constitutional Act, 1791. [20]
In some cases, the inclusion of a constitutional provision was predated by a practice already in place.
Beginning in 1758, the Nova Scotia House of Assembly, for example, followed the practice of electing a
Speaker as the first order of business of a new legislature, despite the absence of a constitutional
provision to that effect. [21]
Similarly, both Upper and Lower Canada’s legislative assemblies followed the same practice of
electing a Speaker [22]
and had quorum provisions in their rules before a quorum of 20 was statutorily provided for in the
Union Act, 1840. [23]
In other cases, a procedural difficulty experienced in a previous assembly led to the inclusion of
specific constitutional provisions. For example, section 47 of the Constitution Act, 1867, which
provided for the House to elect another of its Members to exercise the functions of the Speaker during the
latter’s absence, sought to anticipate the possible recurrence of a situation that had arisen when,
on at least one occasion between 1840 and 1866, the Assembly of the Province of Canada had to adjourn due
to the illness of the Speaker. [24]
Perhaps the most procedurally significant part of the Constitution Act, 1867, however, is that
which provides a statutory basis for the privileges enjoyed by the House. The Constitution Act
provides that “the privileges, immunities, and powers to be held, enjoyed and exercised” by the
House and its Members are to be “defined by Act of the Parliament of Canada”, with the proviso
that such privileges, immunities and powers may not exceed those enjoyed by the British House of Commons
and its Members. [25]
The Canadian House of Commons thus acquired, as one of its more important privileges, the exclusive right
to regulate its own internal affairs and to control its own agenda and proceedings.
The Parliament of Canada has therefore the constitutional authority not only to regulate its internal
proceedings and establish rules of procedure, but also to enact a large number of procedurally important
statutory provisions, many of which are found in the Parliament of Canada Act. [26]
Of procedural significance for the House, this Act, for instance, provides for: the power of the House and
its committees to administer oaths to witnesses appearing either at the Bar of the House or before a
committee; [27]
procedures to be followed when Members resign or when seats are otherwise vacated; [28]
conflict of interest rules applicable to Members; [29]
a Deputy Speaker’s ability to act in the Speaker’s absence; [30]
the existence and remuneration of parliamentary secretaries; [31]
the remuneration of Members of Parliament; [32]
the existence and management of the Library of Parliament; [33]
and the establishment of the Board of Internal Economy to act on all financial and administrative matters
respecting the House. [34]
There are, in addition to the Parliament of Canada Act, dozens of other statutes which oblige the
House to undertake some action or which regulate some aspect of the proceedings of the House. [35]
The Standing Orders
The permanent written rules under which the House regulates its proceedings are known as the Standing Orders. [36]
The continuing or “standing” nature of rules means that they do not lapse at the end of a
session or parliament. Rather, they remain in effect until the House itself decides to suspend, change or
repeal them. There are at present more than 150 Standing Orders, each of which constitutes a continuing
order of the House for the governance and regulation of its proceedings. The detailed description of the
legislative process, the role of the Speaker, the nature of the parliamentary calendar and the rules
governing the work of committees and private Members’ business are some of the topics covered in
the Standing Orders. The House declares these continuing orders to be Standing Orders when it formally
adopts them, and it periodically issues them as a publication for the guidance and use of all Members.
When the House of Commons first met in 1867, the rules it adopted were largely those of the Legislative
Assembly of the Province of Canada, itself created in 1840. [37]
While it can be said that the Legislative Assembly of the Province of Canada obtained its rules from the
assemblies of Upper and Lower Canada, created in 1791, the vast majority of these came from the House of
Assembly of Lower Canada. [38]
Of the many rules the Assembly of Lower Canada adopted in the first years of its existence, particularly in
1793, [39]
more than 35 have survived virtually unchanged and are still in effect today in the House of Commons. A
further 40 also pre-date Confederation. [40]
Since 1867, there have been countless reviews of the Standing Orders. [41]
New Standing Orders have been adopted, while others have been significantly modified or deleted, leading on
occasion to substantial renumbering. Furthermore, interpretations given to the older rules have been adapted
over time to fit the modern context. [42]
Occasionally, the adoption of a new Standing Order merely represents the codification of a long-standing
practice of the House [43]
or the permanent adoption of a provisional, sessional or special order. At other times, a rule is changed
or added as a result of an incident or event which convinced the House to seek a way to avoid its repetition. [44]
As an indicator of the importance the House attaches to reviewing the Standing Orders, at the beginning of
each Parliament a debate must be held on the following motion: “That this House takes note of the
Standing Orders and procedures of the House and its committees”. [45]
In addition, the permanent mandate of the Standing Committee on Procedure and House Affairs [46]
includes “the review of and report on the Standing Orders, procedure and practice in the House and
its committees”. [47]
The Committee can make rule change recommendations as part of its continuing mandate or as the result of a
specific order of reference. [48]
Although the means by which the House reviews the Standing Orders vary greatly, the Standing Orders may be
added to, changed or repealed only by a decision of the House, which is arrived at either by way of
consensus or by a simple majority vote on a motion moved by any Member of the House. [49]
On many occasions, a special committee has been established with a mandate to suggest revisions to the rules
and report its recommendations to the House. These recommendations, presented in the House in the form of
a report, were often debated on a motion to concur in the report. If the House concurred in such a report,
the Standing Orders were immediately modified. The content of the report was sometimes also used as the
basis for further discussions leading to changes to the rules. [50]
In other cases, the Standing Orders have been amended through the adoption of a government motion by
unanimous consent; such a motion can at times resemble the recommendations of a procedure committee. [51]
The motion can also be a government initiative for which proper notice has been given and which appears on
the Order Paper under “Government Business”. [52]
More often than not, however, procedural changes are the result of a broad consensus among Members of all
parties and are readily adopted without debate. [53]
That being said, since 1867, there have been occasions when controversial proposals have led to lengthy
debates where the government used its majority to amend the Standing Orders. [54]
Finally, changes to the Standing Orders have also been made through the adoption of a motion by a private
Member [55]
and the concurrence in a report presented by a joint committee of the Senate and House of Commons. [56]
Besides the permanent Standing Orders, the House may adopt other types of written rules for limited periods
of time. Provisional Standing Orders are individual Standing Orders adopted for a specific period of time
which does not correspond to the duration of a Parliament or a Session. [57]
They may be adopted on an experimental basis, [58]
extended provisionally, dropped, or eventually made permanent.
Sessional Orders are intended to be temporary and remain in effect only for the duration of the session in
which they are adopted. Sessional Orders may be renewed from session to session, and some eventually become
Standing Orders. [59]
The House may also adopt special orders in addition to the Standing, Provisional, and Sessional Orders which
form the collected body of written rules. A frequently used instrument for the conduct of House business,
special orders do not modify the “written” Standing Orders. Since they routinely concern the
business of the House and are thus often moved without notice, following consultations, they are often
adopted without debate by unanimous consent. They may apply to a single occasion or to such period of time
as may be specified. [60]
Some special orders over time have become Standing Orders. [61]
Finally, some Standing Orders explicitly allow the House to suspend the operation of other Standing Orders. [62]
It is also common for the House, at any given time, to set aside its rules with the unanimous consent of
all Members then present in the House, so that something can be done which would otherwise be inconsistent
with the Standing Orders. [63]
The House does this, for example, when it wants a bill to pass all stages in one day, a procedure which
would otherwise contravene the rules. [64]
Furthermore, the House can adopt a Special Order to supersede a previously adopted Special Order. [65]
The Standing Orders also provide for the House to proceed in situations where unanimous consent has been
denied, but where the overwhelming majority of Members nevertheless agree to proceed with the action
contemplated. [66]
In the hierarchy of parliamentary procedure, just as statutory provisions cannot set aside constitutional
provisions, Standing Orders cannot set aside statutory law. Only Parliament can enact or amend statutory
provisions; the House of Commons can adopt its own rules as long as they respect the written constitution
and statutory law.
Speakers’ Rulings
The Speaker has been duty-bound to decide all questions of procedure since representative assemblies were
first established in the colonies which were to form Canada. [67]
Just as case law (the body of judge-made law) is an important part of the common-law system, rulings (the
body of Speaker-made parliamentary law) are an important part of our parliamentary system. Over the years,
the sum total of rulings from Speakers has helped shape the way in which the House conducts its business. [68]
Successive Speakers have been called upon to decide how rules should apply and, through rulings, have
either settled issues or encouraged the House, [69]
the Government, [70]
or the Board of Internal Economy [71]
to take steps to resolve them. Prior to 1965, the rulings of Speakers were subject to an appeal and could
be overturned by the House; [72]
since then, Members have not been allowed to question a decision of the Chair. [73]
A distinction must be made between “rulings” and “statements” made by the Speaker.
Rulings deal with the procedural acceptability of some matter before the House which, unless otherwise
specified, serve as precedents to govern future proceedings. They, more often than not, address procedural
issues raised on a point of order or a question of privilege and seek to give directions to the House.
Statements, on the other hand, seek to convey information or clarification to Members of the House. [74]
Not every statement is a ruling and Speakers have often explicitly stated that certain procedures, although
permitted in certain circumstances, should not be interpreted as precedents. [75]
Speaker Fraser summed up the fine balancing act that is often involved in adapting old rules to new
situations: “When interpreting the rules of procedure, the Speaker must take account not only of
their letter but of their spirit and be guided by the most basic rule of all, that of common sense.” [76]
In arriving at a decision on a procedural point, the Speaker may draw on a full range of procedural
information and examine the precedents to determine how the Standing Orders have been applied and
interpreted in the past. The Standing Orders, though a vital reference, constitute a comparatively small
part of the much larger body of House of Commons procedure and practice that the Speaker will consult in
preparing a ruling. The primary records of the House, the Journals and Debates, are the
richest repository of information on precedents, practices and usages as well as being the most reliable. [77]
Finally, while Speakers must take the Constitution and statutes into account when preparing a ruling,
numerous Speakers have explained that it is not up to the Speaker to rule on the “constitutionality”
or “legality” of measures before the House. [78]
While good procedure requires that there be consistency in the interpretation of practice and in the
application of the Standing Orders, [79]
Speakers have never shied away from creating new precedents when faced with an apparent contradiction
between Standing Orders and contemporary values. In this way, Speakers have declared past rules or Standing
Orders to be redundant [80]
and have often invited the House to ponder the consequences of things such as new technologies on Members’
privileges. [81]
In arriving at a decision, Speakers will also review cornerstone events of the past, known as precedents,
which may be useful in applying to a new situation. Precedent has been defined as “a previous
decision by the Chair, or a well-established procedure or usage which serves as an authority or guide when
a similar point or circumstance arises in Parliament”. [82]
Determining what is or is not a precedent is not always straightforward. Speaker Fraser once said that
“a precedent is something that happened once upon a time and that everyone decided to follow …
in legal terms, it is usually the consequence of a decision made after argument has been proffered to the
Chair […] on a certain point”. [83]
The mere occurrence of an event does not make it a precedent, and Speakers have on occasion ruled that a
special circumstance justifies a deviation from a known precedent. [84]
At times, the Speaker will allow Members to address the issue raised to give them an opportunity to present
facts that might help shed some light on the case at hand. At other times, a ruling will be made immediately
without Members’ intervention. It is left to the Speaker to determine what method he or she will use.
While previous rulings and statements always serve as important and reliable guides, and while Speakers
invariably rely on the decisions of their predecessors, every new situation is different and is examined
on its own merits. A great many practices remain uncodified, although some are frequently defined and made
explicit in Speakers’ rulings and statements.
Practice
The House’s often unique methods of proceeding are the result of centuries of practice [85]
— the unwritten rules of procedure which developed over time and came to be accepted as the normal
way of proceeding. The first representative assemblies on Canadian soil were inspired mainly by British
parliamentary tradition, [86]
and to a lesser degree by American practice. [87]
Until recently, the British influence was explicitly recognized by the House in its Standing Orders [88]
and, to this day, in instances where internal precedents do not provide the necessary guidance, the Speaker
is given full authority to go beyond the House’s jurisprudence “in cases not provided for
hereinafter”. [89]
The Speaker may thus turn to provincial or foreign precedents, typically those of Commonwealth legislative
bodies, “so far as they may be applicable to the House”. [90]
In some areas (e.g., the conduct of Question Period), almost all procedures are based on practice augmented
by decisions of the Chair; [91]
in other areas, some practices are born without the active participation of the Speaker. [92]
There has been a tendency for the House to codify in the Standing Orders many procedures which have
originated and evolved as unwritten practices. In many ways, this has resolved issues which for many years
had to be revisited by the Speaker periodically. For example, although, for many years, representatives of
the recognized parties had been permitted to respond to ministerial statements, it was only in 1964 that
the practice was written into the Standing Orders. [93]
A more recent example is the adoption of a Standing Order incorporating a practice that can be traced back
to the earliest days of Confederation: the pairing of Members unable to be present in the House for recorded
decisions. [94]
The Authorities
The rules and procedures of the House are far more complex than they would appear to be on the surface.
This complexity, illustrated by the growth in the number of Standing Orders, an ever-increasing number
of Speakers’ rulings and statements, and the whole body of unwritten practice, has led to the
publication over the years of various works on parliamentary procedure which have come to be referred to
as “the Authorities”. In their own time, these books have attempted to collect and organize
the traditions, precedents and procedures of our Parliament. The House has relied primarily on Arthur
Beauchesne’s Parliamentary Rules and Forms of the House of Commons of Canada and
Sir John George Bourinot’s Parliamentary Procedure and Practice in the Dominion of Canada
(last published in 1916). Other works have also proved useful in understanding the procedures of the House,
notably William F. Dawson’s Procedure in the Canadian House of Commons, C.E.S. Franks’
The Parliament of Canada, Joseph Maingot’s Parliamentary Privilege in Canada, John
B. Stewart’s The Canadian House of Commons: Procedure and Reform, and Norman Ward’s
Dawson’s The Government of Canada. When these and other sources have been insufficient to
help with a problem, reference may be made to Erskine May’s Treatise on the Law, Privileges,
Proceedings and Usage of Parliament as a guide to relevant current British procedures.
The Relationship Between Procedural Sources
Within parliamentary procedure, a distinction is made between those procedures the House may alter alone,
and those it may not. Procedural provisions contained in the Constitution Act and in various
statutes cannot be modified by the House acting independently. A change to the constitutional provisions
affecting any part of the House must be made in accordance with the amending formulae contained in the
Constitution Act, 1982 and requires, at a minimum, the passage of an Act of Parliament. [95]
Similarly, only Parliament may enact or amend a statutory provision which affects House procedure. Therefore,
where the written constitution applies in relation to the House, it takes priority over statutory
provisions applicable to the House. Statutory provisions, in turn, may not be set aside in favour of rules
or orders made by the House alone. The same reasoning applies to standing, sessional and special orders,
which necessarily override practices and precedents, always provided that such orders must be interpreted
not in isolation but in the context of their past application. Where there are no express rules or orders,
the House turns to its own jurisprudence, as interpreted by the Speaker, who examines the Journals
and Debates of the House to determine which rulings of past Speakers and which practices and
precedents should be applied. In situations not provided for by the practices and precedents of the House,
the Standing Orders permit the Speaker to have recourse to the practices and precedents of other
jurisdictions, both in and outside Canada, so far as they may be applicable. [96]
More and more, the Speaker and procedural advisors are looking to the practices of the provinces, the
United Kingdom and those countries possessing Westminster-style Parliaments, particularly Australia, India
and New Zealand.