The Decision-Making Process / Motions and Amendments

Motion: Government motion to suspend various provisions of the Standing Orders; admissibility

December 15, 1988

Debates, pp. 76-8

On December 14, 1988, the Hon. Herb Gray (Windsor West) rose on a point of order regarding the admissibility of a Government motion to suspend the application of various provisions of the Standing Orders regarding days and times of sittings, the adjournment proceedings and the committee stage of public bills. He argued that the motion was out of order because it ran counter to the recent reform of the Standing Orders by extending hours of sitting, adding sitting days to the fixed parliamentary calendar and providing for consideration of all bills in Committee of the Whole rather than in legislative committee. Mr. Gray maintained that there was potential for abuse of the majority’s power, in that the motion applied to all public bills and could be in effect for the duration of the session. Other Members also took part in the discussion.^[1] On December 15, 1988, the Speaker returned to the House to present a ruling which also dealt with another point of order. Passages related to Mr. Gray’s point of order are reproduced below.

Decision of the Chair

The Speaker: Honourable Members will recall that yesterday afternoon I entertained extensive argument with respect to the motion standing under Government Order No. 1 for today. There were two important issues raised in that argument, and I am now ready to rule on those issues.

When Orders of the Day were called yesterday, December 14, 1988, the honourable Minister of State (Hon. Dong Lewis) proposed to move the motion standing on the Order Paper as Government Business No. 1. This motion, if allowed to be moved, debated and agreed to by the House, would have the effect of suspending various Standing Orders. Those Standing Orders relate to the hours and days of sitting, the adjournment proceedings, and the committee stage of public bills.

Both the honourable Member for Windsor West and the honourable Member for Kamloops (Mr. Nelson Riis) rose on points of order at that stage to object to the motion being moved, arguing that it was procedurally unacceptable. They and other honourable Members stated that the motion should not be allowed because it would contravene the recent reform to the Standing Orders by extending the hours of sitting and adding sitting days to the recently established fixed calendar. They also put forward the argument that this motion, by providing for all Bills to be dealt with in Committee of the Whole rather than in legislative committee, would also go against recent reforms and would prevent the hearing of witnesses at the committee stage.

The point was also made that because this motion related to all public Bills and could be in effect for the duration of this session, it was a potential abuse of the power of the majority…

Overnight and this morning I have considered most carefully the arguments raised and have consulted various precedents and authorities, and I am now ready to rule.

Let me begin by addressing various points raised on the procedural acceptability of the motion. The honourable Member for Windsor West, in his remarks on his point of order, referred to a ruling I made in the 33rd Parliament on June 13, 1988, which can be found in Hansard for that date at page 16376. For the benefit of those Members who were not with us then and those who follow our proceedings, I hope the House will bear with me as I quote what I feel is the essence of that ruling. The main question before the Chair at that time was: Can the Government initiate a motion to suspend the provisions of the Standing Orders? What I said was as follows:

In order to answer that question, we should initially look to the Canadian authorities.

First, the current Canadian House of Commons Standing Orders in number 56, paragraph (1), subparagraph (o) [now Standing Order 67(1)(o)] have at least envisaged the concept of the suspension of the rules. That subparagraph declares that motions for the suspension of the Standing Orders are debatable motions. There is no specific direction as to how such motions are to be decided but such a motion is clearly subject to the provisions relating to notice, debate and amendment.

Second, Citation 21 of Beauchesne Fifth Edition refers to the rules of procedure generally:

The most fundamental privilege of the House as a whole is to establish rules of procedure for itself and to enforce them. A few rules are laid down in the British North America Act, but the vast majority are resolutions of the House which may be added to, amended, or repealed at the discretion of the House. It follows, therefore, that the House may dispense with the application of any of these rules by unanimous consent on any occasion, or, by motion, may suspend their operation for a specified length of time.

Citation 9 of Beauchesne Fifth Edition gives further precision by stating :

All rules are passed by the House by a simple majority and are altered, added to, or removed in the same way…

Beauchesne Fourth Edition amplifies more specifically on the Standing Orders by stating in Citation 10:

Standing Orders may be suspended for a particular case without prejudice to their continued validity, for the House possesses the inherent power to destroy the self-imposed barriers and fetters of its own regulations. It may even pass an order prescribing a course of procedure inconsistent with the Standing Orders. A motion for such temporary suspension requires notice…but in urgent cases the notice can be waived…Any alteration in the regular procedure may be made effective by force of a simple resolution. This is one of the characteristics of British procedure and it has contributed in no small degree to the elasticity of our parliamentary system.

Furthermore, there are several precedents of such occurrences in the Canadian House found in the Journals for March 16, 1883, June 1, 1898, April 8, 1948, April 24, 1961, and May 14, 1964. Clearly then both the authorities and our practices allow for our Standing Orders to be suspended or amended by motion on notice.

The Speaker was urged by many Members to rule on this matter by using Standing Order 1 and referring to traditional parliamentary practice in other jurisdictions, if applicable…The citation on page 212 of May Twentieth Edition is worthy of repetition:

Standing Orders are not safeguarded by any special procedure against amendment, repeal or suspension, whether explicitly or by an Order contrary to their purport. Ordinary notice only is requisite for the necessary motion; and some Standing Orders have included arrangements for the suspension of their own provisions by a bare vote, without amendment or debate.

The Chair has also looked to the Australian practice as commented on by J.A. Pettifer in House of Representatives Practice. It is clear the Australian House does deal with such motions on a regular basis. Their Standing Orders specifically provide for the suspension of a Standing Order on notice. Such motions are debatable, amendable and require only the majority of votes cast to be adopted. The Chair is reluctant to use this practice as a convincing authority because it is supported in Australia by a specific Standing Order. Reference to the Australian practice does, however, demonstrate that suspension of the Standing Orders is not foreign to other Houses in the Commonwealth.

That is the end of the extract from my earlier judgement. I should now address the two major new objections of the honourable Member for Windsor West.

The honourable Member is, of course, absolutely right in saying that the motion differs because it suspends Standing Order 78 which relates to legislative committees. The June [13] motion also suspended Standing Order 10, now renumbered 27(1), which denied the right of any Member to move a motion relating to extended hours. In my view, both motions did indeed suspend the calendar but they also suspended other Standing Orders.

As far as his argument that the proposal now before us is a permanent change, I must tell the honourable Member that I cannot agree. The motion, if passed, would alter the Standing Orders for the duration of the First Session only. The duration is finite in keeping with Citation 21 of Beauchesne Fifth Edition and the motion does provide for an earlier expiry on motion of a Minister of the Crown after the First Royal Assent of the Bill.

The concept of studying legislation in Committee of the Whole House is certainly not foreign to our practice. Since the reform of 1968, after which most Bills were referred to standing committees, the Journals abound with bills reviewed in Committee of the Whole. Since the creation of legislative committees, the House has often waived the Standing Orders and often resorted to the Committee of the Whole for expediting business. The difference between most of those examples and today is that the House proceeded by consent rather than by motion. However, as I stated earlier, both methods for reaching such decisions are valid and stand on their own, whether achieved by unanimous consent or by a majority decision.

The honourable Member for Kamloops did refer to and agree with my June comments that any other ruling would render the House hostage to a single Member if the House was required to proceed only by unanimous consent. He went on to claim, however, that this manoeuvre by the Government was an abuse and usurped the rights of the minority. I have some difficulty in reconciling these two positions.

On the one hand he concedes the danger of tyranny by a minority, but he does object at least in this case to the role of the majority. Both the minority and the majority have rights; however, primacy cannot be given to both.

Having carefully reviewed the arguments of the honourable Member for Windsor West and the honourable Member for Kamloops, as well as those of the honourable Minister of State, I must advise the House that I am not persuaded that the motion on the Order Paper is fundamentally different from the June proposal. It is therefore in order.

I said last June that sometimes hard cases make bad law. This is another hard case. I am not pleased as your presiding officer to put this question to the House; but it would be bad law to do otherwise. I said just a few days ago that I am your servant. I cannot rewrite or reinterpret the rules at the behest of the majority or the minority. I have, however, a duty that the minority be protected and heard…

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1988-12-15