Unprovided Cases

Commentary — Standing Order 1

Standing Order 1 stipulates that in the conduct of public business, when a question of procedure arises which was not foreseen or provided for in the Standing Orders or other Orders of the House, the Speaker or Chair is to base his or her ruling first on the usages, forms, customs and precedents of the Canadian House, on parliamentary tradition in Canada and then in other jurisdictions, as it could be applied to the Canadian House. This is not to specifically refer to codified rules or Standing Orders of other jurisdictions, but only to the tradition upon which they are based.

Historical Summary — Standing Order 1

On November 6, 1867, the opening day of the First Session of the First Parliament, the Canadian House of Commons conducted its business under the “Rules, Orders and Forms of Proceeding of the Legislative Assembly of Canada”. The House subsequently adopted a motion on November 15, 1867 to appoint a select committee to assist the Speaker in framing rules and regulations for the House. On December 20, 1867, the House concurred in the report of this committee, as amended, and in so doing adopted a rule to guide the House in “unprovided cases”. The 1867 Rule 116 stated that “In all unprovided Cases, the Rules, Usages and Forms of the House of Commons of the United Kingdom of Great Britain and Ireland, shall be followed”. [1]

From the First Session of the First Parliament, it was clear that the Chair would rely strongly on U.K. precedents in its rulings. [2] Both the Chair occupants and individual Members made frequent references to the rules and practices of the U.K. Parliament to argue for or against a particular procedure. Indeed, the House debated and adopted resolutions pertaining to procedures [3] and officers of the House [4] which reflected the U.K. experience. Various committees in their studies of amendments to the rules also drew upon the text of the U.K. Standing Orders, both in order to gain acceptance of the proposed amendment and to underline the differences between the U.K. and Canadian situations. [5]

When the rules of the Canadian House were amended in 1876, this rule was not considered. However, in July 1906, the House substantially revised the text. [6] In the first instance, the phrase “In all unprovided cases” was changed to read “In all cases not provided for hereinafter or by Sessional or other Orders”. The second change inserted the words “in force on the first day of July, 1867”. It had been decided by the highest English court that “a standing order of a legislative assembly, adopting as far as applicable to its proceedings, the rules, forms and usages in force in the British House of Commons must be construed to relate only to such rules, forms and usages as were in existence at the date of the order”. [7] In any case, the House had never been governed in doubtful cases by British Standing Orders, but rather by the usage or practice of the Commons.

Although the Chair and the Members had clearly recognized by the early 1900s that substantial differences existed in the circumstances of the Canadian and U.K. Houses, [8] they continued to be keenly aware of both the practices [9] and the proceedings [10] of the U.K. House and to adopt or amend rules accordingly. [11] In December 1909, the Speaker gave a significant ruling clearly indicating that he felt the Canadian House was not bound to follow the sessional orders of the U.K. House in “unprovided cases”, in this particular instance stating that to do so would result in “an alteration in the customs and usages of this House in that regard”. The Speaker then indicated that, there being no rule in the Canadian House covering the particular matter, it would be desirable that a definite rule be established and the matter considered by the House or the Standing Committee on Privileges and Elections. [12] In March 1913, another discussion on the application of the U.K. rules to the Canadian House developed on a motion for the House to resolve into a Committee of Supply, in this instance relating to the right of the Speaker to take the Chair while the House is in Committee of the Whole. [13] While adjusting the rules and internal mechanisms to fit changing circumstances, the Members, however, still followed closely the example of the U.K. House [14] and the Chair occupants remained mindful of the different circumstances between the two Houses. [15]

In May 1925, a special committee on the rules recommended a revision of the text of Standing Order 1. The suggestion was repeated in the report of a second committee and agreed to in March 1927. [16] In its report, the committee asserted it had attempted to make the rules clearer, with the object that only absolutely necessary rules be in force, so that the House would be “more particularly guided by the general principles followed in British legislative assemblies…”. In reviewing the phrasing and meaning of Standing Order 1, the committee stated the rule prevented the House from accepting in unprovided cases the practice followed in Great Britain since July 1, 1867. The committee argued that there was no valid reason why British precedents, where Canadian ones did not exist, should not be accepted, irrespective of the dates on which they were established; it felt the rule went too far in that it compelled the House to follow the British rules in force prior to 1867. The committee also commented on the difficulty of being governed by the “rules” of the British Parliament, as they did not always suit Canadian conditions, and indicated there was a better scope for meeting all requirements by accepting British customs and usages as guides. The amended text of Standing Order 1 reflecting these views, as adopted in 1927, remained unchanged until February 1986.

From 1927 to 1986, the Chair, however, continued to rely on U.K. precedents in “unprovided cases” and to differentiate between the practices of the two countries. [17] The Members continued to review and discuss those items, such as the references of estimates to special committees and methods of taking divisions, which had not been adopted into Canadian practice. [18] The clearest indication of the continued interest of both the Chair and the Members in the U.K. procedures is found in a review of the text of the report tabled by Speaker Fauteux in December 1947. In the introduction to that report, the Speaker indicated that the Canadian House had “developed a parliamentary practice of our own based on British principles and yet clearly Canadian.” He stressed that “while we appreciate the long experience of the United Kingdom House and seek to profit therefrom, we are the absolute and independent masters of our own procedure, and this must be related to our circumstances and our own needs.” [19] The report itself, however, in suggesting revisions to the Standing Orders, drew upon numerous examples of and made constant reference to the way in which the U.K. House conducted its proceedings. [20]

The 1955 report from the special committee established to study the rules reflected a growing realization that the Canadian House had to adapt its own procedures to take account of increasing demands on its time and, while this would be the central theme of reform throughout the 1960s, the Chair continued to rely on the U.K. practice for unprovided cases. [21] The special committees on procedure established throughout the 1960s freely acknowledged the effect of the U.K. practice on their deliberations and travelled to view first-hand the practices at Westminster. [22] At the same time, the procedure committee noted the procedures followed in other parliamentary jurisdictions as well. [23]

In June 1964, it was clear that Standing Order 1, with its reference to U.K. practices, was still used when unprovided cases came before the House. In this particular instance, the Chair used the current British practice on “complicated questions” to divide a motion on the establishment of a distinctive Canadian flag, when it became evident both that no clear precedent existed in Canadian annals for dividing a complicated question and that the ancient British procedure had been superseded by a more current practice in the British House. [24]

Speakers continued to draw on British practices and authorities for their rulings, and procedure committees continued to review the U.K. experience throughout the 1970s and 1980s. [25] In March 1985, the Special Committee on the Reform of the House of Commons included in its Second Report a recommendation to revise what had been the traditional wording of Standing Order 1. The members of the committee believed that the practices of the Canadian House had evolved sufficiently so that the House no longer needed to be bound to the practices of any other House or any other country. At the same time, the committee members recognized that it would be useful to examine the precedents and authorities of other legislatures and parliaments. To reiterate the independence of the House of Commons to adapt to its own needs, while at the same time maintaining Canadian traditions, the committee members recommended that the Standing Order be rephrased. [26] Following debate on the proposed amendments to the Standing Orders tabled by the Government House Leader, the House adopted the present wording on February 13, 1986 on a provisional basis. [27] The text of Standing Order 1 was confirmed as permanent in June 1987. [28] The only amendment to the rule since then was to replace the word “Orateur” with “Président de la Chambre” in the French version, the former term having become obsolete. [29]

Speakers now have a vast array of precedents from the Canadian House to examine in unprovided cases, [30] but have occasionally turned to provincial legislatures when no precedent exists. [31] While Members continue to be interested in U.K. procedures, they are increasingly studying practice in the provinces and in other Commonwealth jurisdictions. [32]

Commentary — Standing Order 1.1

Standing Order 1.1 gives the Speaker the authority to modify the application of certain Standing Orders or practices of the House and its committees in order to allow Members with disabilities to participate fully in the proceedings of the House. This could involve, for example, exempting a Member from the requirement to stand while speaking.

Historical Summary — Standing Order 1.1

Even before the adoption of this Standing Order, the Speaker and the House have often set aside certain rules in order to allow Members to participate in proceedings despite illness, injury or disability. On occasion, Members with leg injuries have been allowed to make speeches while seated. [1] The Speaker has also relaxed the dress code, which requires that male Members wear a jacket and tie, to accommodate Members who were ill or injured. [2] In one case, a Member was permitted to read questions on behalf of another Member, who though present, was unable to speak owing to a bronchial infection. [3]

The election in 2004 of a Member with quadriplegia prompted the addition of this Standing Order. [4] The Member was permitted to speak and vote while seated in his wheelchair, as well as to have an aide accompany him in the Chamber and in committee.

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