Rule of Debate / Process of Debate

Motions: admissibility; violation of the prerogative of the ministers of the Crown

June 9, 2016

Debates, pp. 4285–6

On April 18, 2016, Peter Julian (New Westminster—Burnaby) rose on a point of order with respect to the admissibility of private member’s motion M-43, standing in the name of Pat Kelly (Calgary Rocky Ridge). Mr. Julian asked the Speaker to rule the motion out of order, arguing that it contravened Standing Order 68(4) because it instructed a committee to study and bring forth a bill, a motion that only a minister of the Crown could propose. Conversely, Andrew Scheer (Regina—Qu’Appelle) argued that although the standing order limited the power to introduce motions of instruction to a committee to a minister, private members were not prohibited from providing such instructions by way of a special order. Mr. Scheer contended that Mr. Kelly’s motion allowed the House to decide ultimately how to proceed. The Speaker took the matter under advisement.^[1]

On May 11, 2016, Mr. Kelly added that nothing in the Standing Orders prevented a private member from creating a new mechanism to instruct a committee to prepare and bring in a bill. The Assistant Deputy Speaker (Carol Hughes) took the matter under advisement.^[2]

Resolution

In his ruling of June 9, 2016, the Speaker affirmed that, pursuant to Standing Order 68(4), the authority to prepare and bring in a bill was strictly reserved for ministers. However, he added that the Standing Orders did not fully prescribe the limits of what was admissible as a private member’s motion, other than those that existed in relation to the financial prerogative of the Crown and those mentioned in Standing Order 68(4). As he could not state categorically that motion M-43 contravened Standing Order 68(4), the Speaker concluded that it could be viewed as an alternate path to that standing order and as a special order to allow the House to proceed in a manner not stipulated in the Standing Orders. Accordingly, he permitted the debate on the motion to continue in order to allow the House to determine how it wished to proceed. The Speaker invited the Standing Committee on Procedure and House Affairs to review the guidelines for the procedural admissibility of private members’ motions and to report its findings back to the House.

Decision of the Chair

The Speaker: I am now ready to rule on the point of order raised on April 18, 2016 by the hon. member for New Westminster—Burnaby concerning the procedural admissibility of Motion No. 43 standing in the name of the hon. member for Calgary Rocky Ridge.

I would like to thank the hon. member for New Westminster—Burnaby for raising this matter, as well as the hon. House Leader of the Official Opposition and the member for Calgary Rocky Ridge for their contributions.

The member for New Westminster—Burnaby contended during his intervention that the motion in question, Motion No. 43, contravenes Standing Order 68(4), which grants ministers of the crown the power to introduce motions of instruction to a committee to study a matter and bring forth a bill based thereon. As there is no explicit provision in the Standing Orders for private members to do the same, and the very few relevant examples provide no justification, he concluded that the motion is inadmissible.

The House leader of the official opposition, as well as the member for Calgary Rocky Ridge, agreed that the Standing Orders do limit this prerogative to ministers only but continued, arguing that that alone cannot therefore be interpreted as the only way to provide such instructions to a committee.

In fact, this is precisely why the motion sponsored by the member for Calgary Rocky Ridge provides for a special order that allows the House to determine ultimately how it wishes to proceed. This, he felt, was in keeping with the regular practice of the House to adopt motions to regulate its proceedings or to provide for procedural mechanisms that are not found in its Standing Orders.

Thus, where the disagreement lies in this matter is not in whether a private member can propose a motion instructing a committee to bring in a bill pursuant to Standing Order 68(4), for there is agreement that they cannot. That is a provision that is now reserved strictly for ministers.

Instead, the question is rather the following: Do the Standing Orders or practices of this House permit the presentation of such a motion?

Since Confederation, the rules of the House of Commons have provided for two methods by which public bills can be introduced in the House; that is, either a member moves for leave to introduce a bill or a committee presents a report after having been ordered by the House to prepare and bring in a bill. The latter method has been employed only rarely.

Changes to the Standing Orders, and in particular Standing Order 68, in February 1994 specified that a minister could move such a motion under government orders, while, with the addition of paragraph (4) (b), a private member would have to do so through the process of private members’ business.

Then, in March 2003, the third report of the Special Committee on the Modernization and Improvement of the Procedures of the House of Commons recommended several provisional changes to the rules pertaining to private members’ business, including the temporary suspension of Standing Orders 68 (4) (b) and 7 (b).

Thus, since the concurrence in the report by the House on March 17, 2003, private members have no longer been able to instruct a committee to prepare and bring in a bill pursuant to Standing Order 68. This became a permanent change to the Standing Orders on May 11, 2005, when the House concurred in the 37th report of the Standing Committee on Procedure and House Affairs.

Of note is the fact that, during the time that Standing Order 68(4)(b) was suspended, notice was given of a private members’ motion instructing a committee to bring in a bill pursuant to that same Standing Order. On March 22, 2004, the Acting Speaker made a statement in the House declaring that, due to an error, motion No. 479 was improperly before the House and directing the clerk to modify the text of the motion so that it took the form of a resolution rather than an instruction.

However, while the Standing Orders describe the process for private members’ business, they do not fully prescribe the limits to what is admissible as a private member’s motion, other than those that exist in relation to the financial prerogative of the crown and the limit set out in Standing Order 68(4).

Other guidance can be found in House of Commons Procedure and Practice, Second Edition, at page 1119, which provides a broad description of the types of motions that private members can introduce:

Private Members’ motions are used to introduce a wide range of issues and are framed either as orders or resolutions, depending on their intent. Motions attempting to make a declaration of opinion or purpose, without ordering or requiring a particular course of action, are considered resolutions.… The government is not bound to adopt a specific policy or course of action as a result of the adoption of such a resolution since the House is only stating an opinion or making a declaration of purpose. This is in contrast to those motions whose object is to give a direction to committees, Members or officers of the House or to regulate House proceedings and, as such, are considered Orders once adopted by the House.

In the past, such orders by private members have not usually taken the form of instruction to a committee to bring in a bill. While it may seem that two exceptions to this are found in Motion M-411 in 2003 and Motion M-541 in 2004, as the member for New Westminster—Burnaby pointed out, their admissibility was never questioned as these items were neither placed on the order of precedence, nor moved or debated. Thus, they cannot be looked upon as precedents either way.

Given the evidence, the Chair cannot state categorically that Motion M-43, in its current form, offends the provisions and limitations of Standing Order 68(4); its wording is not so direct as to allow the Chair to draw that firm a conclusion. Instead, Motion M-43 is worded in such a way that it could in fact be viewed as an alternate path to Standing Order 68(4), as has been suggested by both the House leader for the official opposition and the member for Calgary Rocky Ridge. They indicated that, although the motion does propose an instruction to the Standing Committee on Finance, it also takes the form of a special order so that the House may proceed in a manner not stipulated in the rules of the House, should it so choose.

O’Brien and Bosc, at page 528, further supports the notion that it is ultimately up to the House to determine whether to adopt a proposal put before it:

A motion is a proposal moved by one Member in accordance with well-established rules that the House do something, order something done or express an opinion with regard to some matter. A motion initiates a discussion and gives rise to the question to be decided by the House.

Accordingly, I am prepared to permit debate on the motion standing in the name of the member for Calgary Rocky Ridge to continue in order to provide the House with the opportunity to determine whether or not it wishes to proceed in the manner outlined in the member’s motion. Therefore, the motion will retain its position on the order of precedence and can proceed in its current form.

That being said, the Chair remains aware of different views expressed in reference to the admittedly unusual approach set out in Motion No. 43. In order to provide the House and the Chair with greater clarity and assurance, the Standing Committee on Procedure and House Affairs may wish to examine the matter further, with a view to reviewing the guidelines with respect to the procedural admissibility of private [members’] motions and report back to the House any conclusions and recommendations at which it may arrive.

I would like to thank hon. members for their attention in this matter.