The Legislative Process / Stages

Report stage: power of the Speaker to select amendments; selection and grouping of motions

November 29, 2012 and December 12, 2012

Debates, pp. 12610–1, 13223–5

On November 28, 2012, Nathan Cullen (Skeena—Bulkley Valley) rose on a point of order with regard to the grouping of votes at report stage for Bill C-45, A second Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures. Mr. Cullen argued that the practice of allowing the Speaker to group report stage motions for the purpose of voting required Members to vote once on multiple motions related to different issues, negatively impacting their right to vote according to their conscience. He contended that it is not for the Speaker to limit the ability of Members to make distinct choices on how to vote on distinct questions, and requested that, rather than grouping together many of the motions to delete clauses selected for debate and having a single vote applied to them, the Speaker allow Members to vote separately on each motion. Peter Van Loan (Leader of the Government in the House of Commons) rose to argue that motions to delete clauses of a bill at report stage amount to a reconsideration of the committee stage of the bill and that they should not be selected. He added that if the Speaker decided otherwise, he should group the motions for the purpose of voting in an efficient manner that recognizes the anticipated will of the House. The Speaker took the matter under advisement.^[1]

Resolution

The Speaker delivered an initial ruling on November 29, 2012, promising to deliver a more comprehensive ruling at a later date. He stated that allowing a separate vote on every motion to delete a clause would diverge from current practice and, in essence, duplicate the clause-by-clause consideration of a bill in committee, thereby contravening Standing Orders 76(5) and 76.1(5).^[2] The Speaker concluded by saying that, without specific guidance from the House, he could not deviate from well-established practice with regard to the grouping of report stage motions. On December 12, 2012, the Speaker delivered a more comprehensive ruling. The authority of the Speaker derived from past practice as well as written rules. He noted that it is not the Speaker’s role to try to anticipate the will of the House but rather to be guided by procedural imperatives in his decisions. The Speaker then stated that he would uphold the right of independent Members to propose amendments at report stage, in keeping with the Standing Orders, until such a time as arrangements could be made to permit independent Members to present their amendments to legislation in committee. The Speaker concluded that the report stage selection process would then be adapted to the new reality.

Decision of the Chair

November 29, 2012

The Speaker: Before delivering a ruling regarding the report stage of Bill C-45, A second Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures, the Chair would like to take a moment to respond briefly to certain arguments raised yesterday by the hon. House leaders of the Government and the Official Opposition. A more comprehensive ruling, dealing with their points in detail, will be delivered at a later date. Today I will limit my comments to only a few key points.

Yesterday, the hon. Opposition House leader raised a point of order about the manner in which votes were applied in June of this year at the report stage of Bill C-38, An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures. He expressed concern that, as a result of the grouping of votes at report stage, Members may, in essence, have had to cast a single vote that would apply to several motions, some of which they supported and some of which they opposed.

Let me say at the outset that analyzing report stage motions for purposes of selection, grouping for debate and voting is never an easy task and represents a significant challenge for the Chair, particularly in cases such as the present one where a very large number of motions have been placed on notice. As I stated in my ruling of June 11, 2012 in relation to Bill C-38:

In my selection of motions, in their grouping and in the organization of the votes, I have made every effort to respect both the wishes of the House and my responsibility to organize the consideration of report stage motions in a fair and balanced manner.

The Chair is being asked to consider the suggestion that every motion to delete a clause should be voted on separately. This would diverge from our practice where, for voting purposes where appropriate, a long series of motions to delete are grouped for a vote. Since the effect of deleting a clause at report stage is, for all practical purposes, the same as negativing a clause in committee, to change our practice to a one deletion, one vote approach could be seen as a repetition of the clause-by-clause consideration of the bill in committee, something which the House is specifically enjoined against in the notes to Standing Orders 76(5) and 76.1(5),^[3] which state that the report stage is not meant to be a reconsideration of the committee stage.

That said, though, it has been a long-standing practice for the Chair to select motions to delete clauses at report stage. I reminded the House of our practices in that regard in my ruling in relation to Bill C-38 when I stated, “motions to delete clauses have always been found to be in order and it must also be noted have been selected at report stage”.

To provide just two examples, I would refer Members to a ruling by Speaker Milliken regarding the report stage of Bill C-50 on May 30, 2008, which can be found at page 6341 of the Debates of the House of Commons, as well as my own ruling regarding the report stage of Bill C-9, which can be found at page 2971 of the Debates for May 26, 2010.

In the absence of any specific guidance from the House with regard to motions to delete and other matters raised in the points of order, the Speaker cannot unilaterally modify the well-established current practice. Accordingly, with regard to the report stage of Bill C-45, the Chair will be guided by my past rulings and, in particular, by the ruling on Bill C-38.

Editor’s Note

The Speaker then delivered his ruling on the selection and grouping of the 1,667 motions in amendment at report stage standing on the Notice Paper.

December 12, 2012

The Speaker: As I committed to do on November 29, 2012, I am now prepared to provide the House with a more comprehensive ruling on the points of order raised on November 28 by the hon. House Leaders for the Official Opposition and the Government regarding the report stage proceedings on Bill C-45, A Second Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures.

In making their interventions, both House Leaders made two kinds of arguments. First, they made what the Chair would characterize as strictly technical procedural points related to the mechanics of report stage for Bill C-45. At the same time, they shared other views with the House on broader issues, such as the role of the Speaker in general and in relation to report stage, the role of the House and of the Speaker in a majority setting, and the role and rights of independent Members in relation to report stage.

In its earlier ruling on some of the purely procedural matters raised in these points of order, the Chair outlined the rationale for its selection for debate and grouping for voting purposes of motions at report stage of Bill C-45, in particular motions to delete. Motions to delete were a preoccupation for both House Leaders: the Opposition House Leader wanted the Speaker to select them all and allow separate votes on all of them, while the Government House Leader did not want me to select any of them, to avoid votes altogether.

As I explained to the House on November 29, there are several precedents to justify not only the selection of motions to delete for debate at report stage but also to justify their grouping for voting purposes. These are long-standing practices of the House.

References made by the Opposition House Leader to rulings by Speakers Jerome and Fraser, while of interest, failed to take into account the evolution of our procedures as they relate to report stage, particularly the very clear direction included in the notes to Standing Orders 76(5) and 76.1(5)^[4] since 2001. These notes outline the desire of the House to circumscribe report stage and instruct the Speaker to select motions for debate in accordance with certain criteria to ensure that report stage is not a mere repetition of the committee stage.

As I stated in my ruling on November 29, Debates, page 12611:

In the absence of any specific guidance from the House with regard to motions to delete and other matters raised in the points of order, the Speaker cannot unilaterally modify the well-established current practice.

Despite the brevity of the ruling, the Chair believes it puts to rest any ambiguity that may have been perceived with regard to the Chair’s approach to the fundamental procedural aspects of selection and voting processes as they relate to motions at report stage.

With regard to the broader issues raised by the two House leaders, the Chair intends to address them thematically, beginning with a discussion on the role of the Speaker.

House of Commons Procedure and Practice, Second Edition, at page 307, states that it is the duty of the Speaker:

… to ensure that public business is transacted efficiently and that the interests of all parts of the House are advocated and protected against the use of arbitrary authority. It is in this spirit that the Speaker, as the chief servant of the House, applies the rules. The Speaker is the servant, neither of any part of the House nor of any majority in the House, but of the entire institution and serves the best interests of the House ...

O’Brien and Bosc further states that:

Despite the considerable authority of the office, the Speaker may exercise only those powers conferred upon him or her by the House, within the limits established by the House itself.

Speaker Milliken provided useful insight into this role when on April 27, 2010, on page 2039 of Debates, he stated:

—the Chair is always mindful of the established precedents, usages, traditions and practices of the House and of the role of the Chair in their ongoing evolution.

This not only confirms that it is not just written rules from which the Speaker’s authority is legitimately derived, as suggested by the Opposition House Leader, but that the evolutionary nature of procedure must be taken into account. It was on this basis of the House’s long-standing acceptance, and in fact expectations, of the practices at report stage, in conjunction with the need for adaptation to the current context, that the amendments for Bill C-45 were grouped for debate and voting purposes in the manner that they were.

Nor does the role of the Speaker in this regard vary from Parliament to Parliament, as has been suggested by the Government House Leader, who said:

It may be justifiable in a minority Parliament for the Chair to accept any questions for the House to decide, because it is difficult to predict the intentions of the majority of Members. This is not the case in a majority Parliament in general.

Let me be clear: the Speaker does not make decisions based on who is in control of the House. Report stage motions are not, and never have been, selected for debate and grouped for voting on the basis of who the Chair thinks might win the vote on them. This is why, in the case of Bill C-45, the Chair rejected the proposal made by the Government House Leader that I group certain motions, to use his words, “in a manner that recognizes the anticipated will of the House”.

The Chair is and will continue to be guided by procedural imperatives in all of its decisions, not by somehow substituting the Speaker’s prediction of the likely outcome of a vote for the expressed will of the House itself.

This brings me to a discussion of the role of the House as a whole.

The role of the House in the legislative process must be seen in the larger context of the accountability of the executive branch to the elected Members of the legislative branch. Speaker Milliken, in a ruling given on April 27, 2010, which can be found at page 2039 of Debates, stated:

In a system of responsible government, the fundamental right of the House of Commons to hold the Government to account for its actions is an indisputable privilege and in fact an obligation.

He continued:

… it is why that right is manifested in numerous procedures of the House, from the daily question period to the detailed examination by committees of estimates, to reviews of the accounts of Canada, to debate, amendments, and votes on legislation.

The House of Commons Procedure and Practice, Second Edition, at page 250, puts into context how our practices have attempted to strike an appropriate balance between Government and Opposition. It states that:

—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 underlying principles these citations express are the cornerstones of our parliamentary system. They enshrine the ancient democratic tradition of allowing the minority to voice its views and opinions in the public square and, in counterpoint, of allowing the majority to put its legislative program before Parliament and have it voted upon.

In advocating a much stricter approach to the report stage on Bill C-45, the Government House Leader seemed to argue that the existence of a Government majority meant that the outcome of proceedings on the Bill was known in advance, that somehow this justified taking a new approach to decision-making by the House and that anything short of that would constitute a waste of the House’s time.

This line of reasoning, taken to its logical end, might lead to conclusions that trespass on important foundational principles of our institution, regardless of its composition. Speaker Milliken recognized this when, on March 29, 2007, at page 8136 of Debates, he stated:

… neither the political realities of the moment nor the sheer force of the numbers should force us to set aside the values inherent in the parliamentary conventions and procedures by which we govern our deliberations.

Speaker Fraser on October 10, 1989, at page 4461 of the Debates of the House of Commons, also reminded the House that decisions on legislation are for the House alone to make, stating that:

… we are a parliamentary democracy, not a so-called executive democracy, nor a so-called administrative democracy.

I would now like to turn my attention to the issue of the role and rights of independent Members in the context of report stage.

While acknowledging that some accommodation for the participation of independent Members was necessary, the Government House Leader was critical of the current state of affairs, which he claims can allow a single independent Member, as the Government House Leader put it, “to hold the House hostage in a voting marathon”.

As all Members know, this year the House has had to deal with thousands of report stage motions when considering the two budget implementation bills, which resulted, in the case of Bill C-38, in around-the-clock voting. While this is not unprecedented, it is the first time it has happened since the rules governing report stage were changed in 2001. As is often the case in the midst of such consuming procedural challenges, frustration surfaces, our practices are examined and remedies are proposed.

As I have indicated, the note to Standing Orders 76(5) and 76.1(5)^[5] already provides guidance to the Chair with regard to the selection of amendments at report stage, and in particular, states the following:

For greater certainty, the purpose of this Standing Order is, primarily, to provide Members who were not members of the committee, with an opportunity to have the House consider specific amendments they wish to propose.

It is no secret that independent Members do not sit on committees in the current Parliament. In light of recent report stage challenges and the frustrations that have resurfaced, the Chair would like to point out the opportunities and mechanisms that are at the House’s disposal to resolve these issues to the satisfaction of all Members.

The Standing Orders currently in place offer committees wide latitude to deal with bills in an inclusive and thorough manner that would balance the rights of all Members. In fact, it is neither inconceivable nor unprecedented for committees to allow Members, regardless of party status, permanently or temporarily, to be part of their proceedings, thereby opening the possibility for the restoration of report stage to its original purpose.

For inspiration on the possibilities, Members need only to remember that there are several precedents where independent Members were made members of standing committees. Short of that, there is no doubt that any number of procedural arrangements could be developed that would ensure that the amendments that independent Members wish to propose to legislation could be put in committee.

Thus, it is difficult for the Chair to accept the argument that current report stage practices and rules are somehow being used in an untoward manner by independent Members when simple and straightforward solutions are not being explored. Were a satisfactory mechanism found that would afford independent Members an opportunity to move motions to move bills in committee, the Chair has no doubt that its report stage selection process would adapt to the new reality.

In the meantime, as all honourable Members know, and as is stated at page 307 of House of Commons Procedure and Practice, Second Edition:

It is the duty of the Speaker to act as the guardian of the rights and privileges of Members and of the House as an institution.

Accordingly, unless and until new satisfactory ways of considering the motions of all Members to amend bills in committee are found, the Chair intends to continue to protect the rights of independent Members to propose amendments at report stage.

Finally, as we prepare to adjourn for the Christmas holidays, the Chair invites all Members to reflect on how best to strengthen public confidence in this institution and on how best to balance the competing interests with which we will always grapple.

I thank all hon. Members for their attention.

Postscript

Following this ruling, several standing committees of the House began to adopt motions to provide for a means of participation for independent Members in the clause-by-clause consideration of legislation.^[6]