The Daily Program / Routine Proceedings

July 13, 1988

Debates, pp. 17504-9

On July 11, 1988, during Routine Proceedings, Mr. Steven Langdon (Essex—Windsor) moved a motion standing in his name concerning the Legislative Committee on Bill C-130, respecting the Canada-United Stated Free Trade Agreement. The motion had been listed on the Order Paper under “Motions”. Its purpose was to authorize the Committee to travel to hear witnesses. The Hon. Doug Lewis (Minister of State and Minister of State (Treasury Board)) rose on a point of order, arguing that the motion was out of order for two very specific reasons. First, since it was being moved by a private Member, it should rather have appeared on the Order Paper under “Private Members’ Business”. Leaving it under “Motions”, he claimed, would distort parliamentary procedure as it applied to Private Members’ Business. Second, since committees had the authority to make their own decisions, it would be reasonable to let the Committee organize its business as it saw fit. In this case, the Minister noted, the Committee had already decided not to travel.

Other Members also addressed the issue, in particular the question of whether the proposed motion was permissive or mandatory, i.e. did it authorize the Committee to travel or order it to do so? Another issue raised was the remote possibility that if the motion were placed under “Private Members’ Business” it might never be debated. The Speaker took the matter under consideration.^[1]

On July 13, 1988, he handed down his decision, which is reproduced in full below. Requests by Members for clarification and the Speaker’s answers follow.

Decision of the Chair

The Speaker: Honourable Members will know that I heard an important argument two days ago with respect to the use of motions of instruction relating to bills. I undertook to honourable Members to do everything I could to return as quickly as possible with a ruling. The ruling is now complete.

The Chair has considered the procedural arguments raised on the admissibility of the motion of instruction moved by the honourable Member for Essex—Windsor. Since the motion concerns the Legislative Committee on Bill C-130, which is, of course, the Committee studying the Canada-U.S. [Free] Trade Agreement and whose deliberations have already begun, I wanted to proceed expeditiously in rendering this decision. I just want to say to honourable Members and to the public that this is a technical ruling, but it is of importance and I ask all honourable Members to bear with me.

In his point of order, the honourable Minister of State argued that this type of motion should not be moved under the rubric “Motions”—which is one of the items we go through each day under Routine Proceedings—but should rather be taken up as an item of Private Members’ Business. In reply, the honourable Member for Kamloops—Shuswap (Mr. Nelson Riis) and the honourable member for Windsor West (Hon. Herb Gray) presented arguments for allowing it to be moved under the heading of “Motions”. After listening to the points made by all Parties, I wish to proceed as follows.

As most honourable Members know, after second reading, a bill is normally sent to a legislative committee for detailed consideration, as it was in this case. It is this stage when the bill has been referred to committee that motions of instructions are to be moved. A motion of instruction is nothing more than a motion passed by this House sending a message to a committee that is already in place empowering it to do something and, in some cases, if one wants to go back through the history, perhaps to instruct it. I say for the record that this motion moved by the honourable Member for Essex—Windsor was a motion to empower the Committee to travel both in Canada and abroad, if the Committee so decided to do.

It is at this stage, when the bill has been referred to committee, that motions of instruction are to be moved. The purpose of such an instruction is to empower a committee to do something which it could not otherwise do. In this case, the committee studying the trade agreement does not have on its own, nor does any other committee, the automatic right to travel. It would have to seek that right or else the House could, on the motion of the honourable Member, or on the motion of the Government, or on the motion of any other honourable Member for that matter, empower the committee to decide whether it wanted to travel or not—but at least empower it to do so.

What the honourable Member for Essex—Windsor has done is he has tried to move under “Motions” during Routine Proceedings to have this House consider sending to the Committee an instruction empowering it to travel if it so wishes. I think I see the honourable Member for Essex—Windsor nodding. I think I have put the situation as clearly as I can.

Practically all existing Canadian precedents dealing with motions of instruction relating to bills took place in a period when the practices and procedures of the House were quite different from those used today. During this period bills were referred to Committee of the Whole, that is to say a committee of the whole House. The Speaker goes out of the Chair and the Deputy Speaker takes the Table. The entire House sits here in this Chamber as if it were in committee. That is what Committee of the Whole means.

As I said, during this period bills were referred to Committee of the Whole following second reading after the adoption of a motion: “That the Speaker do now leave the Chair”. This procedure is no longer applicable. Consequently, our rules on motions of instruction to committees studying bills need to be reviewed in a new context.

Citation 759(1) of Beauchesne Fifth Edition reads in part:

The time for moving an Instruction is immediately after the committal of the bill, or, subsequently, as an independent motion. The instruction should not be given while the bill is still in the possession of the House, but rather after it has come into the possession of the committee.

While the above citation is accurate, it leaves a considerable number of questions unanswered. An examination of precedents and citations in Beauchesne Third Edition and Bourinot Fourth Edition reveals that under previous practice a motion of instruction could be moved after second reading under one of three different conditions. The first is immediately after second reading, without notice or debate, but prior to the Speaker leaving the chair. The second is as an amendment to the motion “That the Speaker do now leave the Chair”. The third is at some point following second reading as an independent motion, after notice.

In the first situation the Speaker accepted the motion without notice immediately after second reading because it was a privileged motion intrinsic to the progress of the bill to committee stage. If this approach is taken, and logically it can only be taken in instances where a referral has been made to Committee of the Whole, the motion is not debatable or amendable according to Standing Order 56(2). This is in keeping with precedents found on March 19, 1948, at page 269 of Journals, and on July 30, 1956, at page 942 of Journals.

In the present case, the opportunity to move a motion of instruction at that particular time has not been available since Bill C-130 has been referred to a Legislative Committee.

The second approach, that of moving a motion of instruction as an amendment to the motion that the Speaker do now leave the Chair, no longer applies because Standing Order 78 now provides for the Speaker to leave the Chair without question put.

The third option, that of proposing an independent motion with notice, is in keeping with the authorities cited, and at least one known precedent which occurred on March 26, 1888, found at page 136 of Journals.

The honourable Minister of State argued that this particular motion should be moved more properly under Private Members’ Business. The dilemma that the Chair faces is that the precedents to which I have just referred date back to a period when the Notice Paper was much different from the one used today. In addition, new procedures have been introduced and this complicates the situation still further.

If Members wish to pursue this avenue and move a motion of instruction under Private Members’ Business, this option is of course open to them.

The Chair would certainly have no objection to this approach. However, the Chair, and I suspect most honourable Members, might share the practical concerns about this approach raised by the honourable Members for Kamloops—Shuswap and Windsor West namely, that the likelihood of such a motion [being] debated, let alone voted upon, is now quite remote, because of the new rules governing Private Members’ Business.

The Chair, however, fails to see why the honourable Member for Essex—Windsor could not propose his motion under the rubric “Motions”. The honourable Member for Windsor West cited Standing Order 56(1)(p). This Standing Order lists as debatable items usually raised under Routine Proceedings “motions…[concerning] the management of [House] business [and] the arrangement of its proceedings.”

The rubric “Motions” usually encompasses matters related to the management of the business of the House and its committees, but it is not the exclusive purview of the Government, despite the Government’s unquestioned prerogative to determine the agenda of business before the House. For example, an individual Member’s motion for concurrence in a committee report is properly moved under this rubric. Similarly, the Chair judges that, if a Member wishes to give notice of a motion of instruction to a committee on a bill, it can be filed under “Motions” on the Notice Paper. Once called, the motion is debatable and amendable pursuant to Standing Order 56(1) and, if the motion has not come to a vote by the end of the day, as in the analogous case of concurrence in a report, the motion is transferred to Government Orders where debate will resume only at the pleasure of the Government.

Before our rules pertaining to the referral of bills to Committee of the Whole were changed, any Member could move a motion of instruction to a committee on a bill. Were the Chair to rule today that this can now only be done under Private Members’ Business, then this would in fact mean that only the Government, under Government Notices of Motion, could move instructions to committees studying legislation in a timely and effective manner.

Another important point in the discussion, and one on which the Chair sought clarification from honourable Members, was whether the proposed motion of instruction is permissive or mandatory.

Generally speaking, a permissive instruction confers on a committee the authority to do something it otherwise would have no power to do. Citation 761 of Beauchesne Fifth Edition lists some examples, among them, the permission to travel, to consolidate bills or to divide a bill.

According to Citation 757 of Beauchesne Fifth Edition, if such a motion is adopted, it is then left to the committee to decide whether or not it will exercise this power. As Citation 409 of Beauchesne Third Edition explains:

An instruction which is generally made when a Bill is committed, is not mandatory, and it is therefore customary to state explicitly in the motion that the Committee “have power” to make the provision [required]. The intention is to give a Committee power to do a certain thing if they think proper, not to command them to do it. The Committee is not bound to obey the instruction.

Precedents relating to bills have been examined and all of these respected this permissive approach.

In the case before us, the Chair has closely examined the text of the motion proposed by the honourable Member for Essex—Windsor and has concluded that it rests squarely within the definition of a permissive instruction.

Finally, at the risk of venturing into highly technical matters, the Chair would like to point out to honourable Members, although no reference was made to it when the matter was argued, the last sentence of citation 759(1) of Beauchesne Fifth Edition states: “If the bill has been partly considered in committee, it is not competent to propose an Instruction”.

The Chair wishes to avoid possible confusion on this point and I would ask the House to bear with me as I briefly explain its intent to honourable Members. In early House practice, as I discussed earlier, there were specific procedures for moving motions of instruction to a Committee of the Whole considering a bill.

Citation 412 of Beauchesne Third Edition states:

All instructions must be moved on the first occasion when the order for the Committee [of the Whole] on a Bill has been read. If the Bill has been partly considered in Committee at a previous sitting, it is not competent to propose an instruction when the order is read for the House “again in Committee,” as the rules require that the Speaker leave the Chair (without putting the question) as soon as that order has been taken up.

The same explanation occurs on page 517 of Bourinot Fourth Edition. Simply put, the passage means only that when the House entered Committee of the Whole for a second or subsequent time, it did so automatically without a motion for the Speaker to leave the Chair. A motion of instruction without notice could not be put at that time because this was not immediately after second reading. Further, an amendment to the question “That the Speaker do now leave the Chair” could not be put because the Speaker automatically left the Chair without the question being put. The only viable option would be for a Member to propose an independent motion of instruction with notice to be taken up under “Motions”. Although this is not expressly stated in Citation 412 of Beauchesne Third Edition, it is in keeping with Citations 409 to 411 of the same volume.

However, the idea that a motion of instruction could be moved with notice after a committee commenced its deliberations is not addressed in Beauchesne Fifth Edition where, instead, the early practice appears to have been transmogrified into a categorical injunction against committees being given an instruction after they began their deliberations on a bill. If Members think that this is difficult to follow, wait until the end.

The Chair raises this issue only as a cautionary measure to clarify the concept before the House.

In summary, the Chair, after carefully examining and analysing the relevant precedents and authorities, rules that the motion proposed by the honourable Member for Essex—Windsor is in order and may be moved under the rubric “Motions” and that until the House chooses to clarify its rules relating to instructions, the Chair will continue to accept such motions, after due notice, on condition that they are directed only at committees reviewing legislation. I hope that that is clearly understood. That does not go to standing committees.

The Chair again wishes to thank all honourable Members for their valuable contributions to this discussion, and I thank all honourable Members for patiently hearing me through a complex procedural matter which is made more complex because there have been changes throughout the history of our rules which make it somewhat difficult to completely understand what some of the citations mean. I have tried to meet that problem. I am sorry that I could not come into the House earlier, but with the help of the Table Officers I have brought this ruling back as soon as I could.

And Mr. Riis having sought two points of clarification, specifically whether the Speaker’s ruling applied to a standing committee charged with studying a bill and whether it applied to both permissive and mandatory instructions:

The Speaker: I can assist the honourable Member. First, as honourable Members know, under the new procedure most bills now go to a legislative committee. This is in fact the situation that we have in front of us. However, there are a number of standing committees that cover various aspects of government activity, sometimes a single Department, and sometimes several Departments. Those standing committees are empowered now to do many things on their own.

As the honourable Member for Kamloops—Shuswap has pointed out, it is absolutely correct that sometimes rather than send a bill to a legislative committee after second reading, in some instances it has been the practice to send the bill to the standing committee. Before we changed the rules, all bills went to standing committees, unless a special committee was struck.

As is being used in this present instance, a motion cannot be used to send instructions to a standing committee unless that standing committee has received a bill after second reading, and in that case, it would be acting in the capacity of a legislative committee. I can assure the honourable Member for Kamloops—Shuswap that if a bill was sent to a standing committee after second reading to be dealt with in the same way as it would be dealt with before a legislative committee, then what I have ruled in order today would be applicable. I hope that that is helpful.

The second question is on the distinction between mandatory motions and permissive motions. Without going into a lot of detail, if one goes back into history, the reality is that those motions have been for a long time permissive not mandatory. Until I receive some instruction from the House or until I can be persuaded that it would be appropriate to allow the effect of this ruling to include a mandatory motion, this ruling says that these motions must be permissive. That is in keeping with many years of practice. At least at the moment I can find no tradition or practice which contradicts that.

What I have ordered is that a motion as put by the honourable Member for Essex—Windsor can be moved after notice on “Motions” by any Member of the House, that that motion must be permissive in nature, and that it must of course go to a legislative committee that is studying the bill in question after second reading. It could also go to a standing committee if that standing committee had received a bill after second reading and is acting as a legislative committee.

I hope this has been helpful to the honourable Member.

And Messrs. Riis and Gray having commented further on the ruling, especially concerning the distinction between permissive and mandatory instructions:

The Speaker: I have the point of both the honourable Member for Kamloops—Shuswap and the honourable Member for Windsor West. Certainly, at the moment, my ruling applies to the motion of the honourable Member for Essex—Windsor. Since omniscience is seldom given to any of us here on earth and certainly not to Speakers, it might be that at some other occasion I might be persuaded by the procedural knowledge of honourable Members, who I know would want to assist me, that another view might be taken of a mandatory motion. Naturally, what I am saying here today would not preclude an honourable Member from rising and arguing that at some other point, at some other time.

At the moment, at least, it is my view that that argument would not prevail. It does not mean for one minute that I would not hear it. I am indicating pretty clearly, I think, at least at the moment, that until I can be persuaded otherwise—despite the citation in Beauchesne that the honourable Member for Kamloops—Shuswap has quoted—if that is put into context and into history, at least I feel today that the appropriate inference to be drawn is that the proper practice is permissive motions only. If honourable Members wanted to raise that matter at another time, I would most certainly hear them.

If I could be persuaded that I have misinterpreted the tangled history of this particular matter, then of course I would act accordingly. The honourable Minister of State.

And Messrs. Lewis and Lloyd Axworthy (Winnipeg—Fort Garry) having commented further:

The Speaker: The honourable Member for Winnipeg—Fort Garry is very persuasive. However, I think it is important that this ruling be taken in the context in which it has been argued and given. It is not for the Chair to go beyond what is clearly the practice and the precedents. That is, it is quite clear in our practice that whatever effect a permissive motion given to a committee may have on the committee, it is for the committee to decide what it is to do with it.

As the honourable Member will have noticed in listening to my reasons as I read them, I have made it very clear that the committee does not have to necessarily act. What went on in that committee is not for the Chair to speculate upon. I am trying as much as possible to meet the appropriate concerns of the honourable Member for Essex—Windsor and other honourable Members who have raised this matter, to ensure that all honourable Members, as can the Government, can move a permissive motion.

If the motion was, for example, passed on some occasion by the House and sent to the committee, what effect that might have on the committee is not for the Speaker to say. It certainly is open to the honourable Member for Winnipeg—Fort Garry to perhaps approach individual members of the committee—as is of course the right of any Member—and say: “Look, in view of this, don’t you think you should do something?” That is not something upon which the Chair can speculate. I know that the honourable Member would understand that.

What moral weight may be given to a permissive motion is something for the committee itself, and other honourable Members who may be in conversation with committee members, to measure. It is not for the Chair to say.

And Mr. Riis having again raised the matter of a permissive versus a mandatory instruction:

The Speaker: I want to assure the honourable Member for Kamloops—Shuswap that I do not think it would ever be appropriate for a Speaker to say that he or she would not hear argument on a procedural matter. After all, because we have had arguments on procedural matters over centuries, that is why we have the body of procedural law that we do have.

I have to say to the honourable Member also that I would have to deal with it when a case arose. I am also indicating to honourable Members that at least for today I am of the view that the practice, the tradition and the history indicates that these matters are permissive. If I can be persuaded to the contrary, of course I would change my position. But that is for another day, not today.

In the meantime, I hope this has been helpful because as the honourable Minister of State has said—and I am appreciative to the honourable Minister for his generous reaction because I think it is important, we all think it is important—that private Members not be placed in a position where they are more limited in their ability to take part in the dealings of this House than they might otherwise be. What has happened as a consequence of this argument I think has clarified the matter.

The second question is still there, and I understand perfectly well why some honourable Members may want to pursue it further at another time, and if they do, then of course I will hear them.

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1988-07-13