Parliamentary Privilege / Procedure

Procedure for dealing with matters of privilege; debate on a motion of privilege; question superseded and dropped from the Order Paper; prima facie

April 11, 2017

Debates, pp. 10450–1

On April 7, 2017, John Nater (Perth—Wellington) rose on a question of privilege, contending that the adoption of a motion to proceed to Orders of the Day during the debate on a question of privilege on April 6, 2017, set a dangerous precedent. Mr. Nater believed that, while the procedure followed was in order, the privileges of members had been violated because they were unable to vote on the substance of the question of privilege being debated when the motion to proceed to Orders of the Day was adopted. He asked the Speaker to revive the debate on the initial question of privilege by ruling that the matter regarding the free movement of members within the Parliamentary Precinct was still a prima facie question of privilege. Kevin Lamoureux (Parliamentary Secretary to the Leader of the Government in the House of Commons) contended that the procedure followed on April 6, 2017, was proper, that the Standing Orders had been followed and that there was no question of privilege. Other members rose to speak to the issue as well, after which the Assistant Deputy Speaker (Anthony Rota) took the matter under advisement.^[1]

Resolution

On April 11, 2017, the Speaker delivered his ruling. He confirmed that, from a procedural standpoint, the motion to proceed to Orders of the Day, moved and agreed to on April 6, 2017, while the House was debating a matter of privilege, was in order. In his opinion, two questions were before the House: first, whether a matter of privilege that has been superseded and dropped from the Order Paper, as was the case on April 6, 2017, could be revived; and, second, if so, how the matter could be raised in a procedurally acceptable manner. The Speaker explained that, while the situation was unprecedented, procedure allows for debate on a question of privilege that has been superseded to be taken up again. He determined that one of the ways to do so would be to raise the initial question of privilege again. The Speaker therefore concluded once again that, in the case of the question of privilege raised by Lisa Raitt (Milton) on the free movement of members within the parliamentary precinct, there was a prima facie question of privilege, and he invited Mr. Nater to move his motion.

Decision of the Chair

The Speaker: I am now prepared to rule on the question of privilege raised on April 7, 2017, by the hon. member for Perth—Wellington, in which he asks that the matter of privilege under debate on April 6, 2017, which was superseded by the adoption of a motion to proceed to orders of the day, be revived.

I would like to thank the member for Perth—Wellington for having raised the matter in the House, as well as the Parliamentary Secretary to the Leader of the Government in the House of Commons, House Leader of the official ppposition, and the members for Beloeil—Chambly, Lanark—Frontenac—Kingston, Sarnia—Lambton, Banff—Airdrie, Calgary Signal Hill, and York—Simcoe for their contributions to the discussion on this important matter and unprecedented circumstance.

In presenting his case, the member for Perth—Wellington acknowledged that a motion to proceed to orders of the day while the House is considering a matter of privilege is procedurally in order. On this point, he and the parliamentary secretary to the government House leader agree. The Chair also agrees that the motion, as moved, was in order, and this is supported by numerous authorities.

Rather, it is on the issue of whether and how such a matter of privilege can be revived that the member for Perth—Wellington focused his argument. He pointed out that other types of proceedings, like the consideration of motions of instruction to committees or motions to concur in a committee report, can be considered again once a motion to proceed to orders of the day has been adopted. He argued that allowing such a motion to permanently end further consideration of something as important as a question of privilege would create a dangerous precedent. He asked the Chair to effectively restart the proceedings on the question of privilege by again finding a prima facie case of privilege on the matter relating to the free movement of members in the parliamentary precinct, as originally raised by the member for Milton.

The problem facing the Chair then is determining, first whether it is procedurally in order to revive a matter of privilege that has been superseded and second, in the affirmative, how that could be done in a procedurally acceptable manner.

If a motion to proceed to orders of the day is adopted when the House is considering a motion of instruction or a motion to concur in a committee report, the motion is also dropped from the Order Paper. However, members who wish to revive the matter can again give the required 48 hours’ notice of the same motion and then move it in the House. As the member for Perth—Wellington correctly stated, this means that: “one is back where one began and can reinitiate the same identical proceeding in the usual fashion appropriate to that class of motion.”

These arguments are persuasive, and accordingly the Chair must conclude that it is procedurally possible to revive a matter of privilege that has been likewise superseded.

Having answered the first question in the affirmative, the next question for the Chair is determining how this ought to be done. The member for Perth—Wellington and others argue that this is properly done by raising the matter in the House and having the Speaker again give priority consideration to it.

As a consequence of the events of April 6, the Chair can see a few other ways the matter of privilege could be revived. The member for Milton, or any other member, for that matter, could seek to revive the question by way of written notice on the Notice Paper. As House of Commons Procedure and Practice, second edition, states at page 154, such a notice of motion, unless it were proposed by a minister, would be:

…placed on the Order Paper under the list of Private Members’ Business items outside the Order of Precedence following the 48 hours’ notice period.

The matter could also be brought before the House as an opposition motion.

However, the situation in which the House finds itself is unprecedented. The Chair can find no instance of debate on a matter of privilege superseded by the adoption of a motion to proceed to orders of the day. At the same time, the Speaker has a duty to uphold the fundamental rights and privileges of the House and of its members. That is why, when questions of privilege are raised, the Speaker has to decide whether, prima facie, they ought to have immediate priority consideration.

If a superseded matter of privilege were brought forward again as the subject of an opposition day, the Chair would not likely interfere, unless the motion was found to be defective in some way.

If a superseded matter of privilege were put down for debate via the Notice Paper, it could also eventually proceed, pursuant to the procedures applicable to government or private members’ business, as the case may be. However, as is stated in O’Brien and Bosc at page 154, the member in whose name the item stands has another option:

[The Member] may decide to seek priority in debate for the motion (e.g., if new information were to come to light). The Member must then seek to convince the Speaker that the matter raised in the motion should be considered a prima facie question of privilege.

This, in a sense, is a third manner in which a matter of privilege can be revived and it is, for all practical purposes, the same method that the member for Perth—Wellington is advocating.

Given the unprecedented nature of this circumstance, and given the weight of procedural jurisprudence, the Chair is inclined to conclude that there are sufficient grounds for allowing the matter of privilege superseded on April 6 to be revived in the manner proposed by the member for Perth—Wellington. Accordingly, without restating my ruling of April 6 in the matter of delayed access to the parliamentary precinct, I again find a prima facie question of privilege.

I now invite the member for Perth—Wellington to move the appropriate motion.

Postscript

Mr. Nater moved that the initial question of privilege regarding the free movement of members within the parliamentary precinct, originally raised on March 22, 2017, by Lisa Raitt (Milton), be referred to the Standing Committee on Procedure and House Affairs. The main motion, as well as an amendment and a subamendment seeking to give this matter priority over all other business before the committee and require that the committee report back by June 19, 2017, was agreed to. As indicated by the wording of the motion adopted by the House, the 34th report of the committee, presented to the House on June 19, 2017, addressed the free movement of members within the parliamentary precinct rather than the method for reviving a question of privilege that has been superseded.^[2]