Financial Procedures / Supply

April 3, 1990

Debates, pp. 10119-21

During the consideration of an opposition Supply motion on Friday, March 30, 1990, Mr. Jim Hawkes (Chief Government Whip) rose to inform the Chair that he did not see a quorum. The bells were rung, and no quorum having resulted, the Acting Speaker (Hon. Steven Paproski) adjourned the House pursuant to Standing Order 29(3).^[1]

On Monday, April 2, 1990, Mr. Jean-Robert Gauthier (Ottawa—Vanier) rose on a question of privilege to allege that the call for a quorum, which had put a premature stop to the debate, was a breach of the privileges of the House. He argued that the Government had denied the Opposition the right to debate a motion to formulate an environmental action plan and demanded that the first opposition day for the current Supply period be re-allotted. In his opinion, the loss of the continuing order for supply nullified the business of supply for the current session, and reinstatement of the order would make it possible to reinstate not only the first opposition day in the period but also all votable opposition motions. Mr. Gauthier maintained that the standing committees were no longer empowered to consider the Estimates, and that the motion for a new continuing order was part of the management of the business of the House and could therefore be debated under Standing Order 67(1)(p). Other Members also intervened on the matter.^[2] The Speaker took the matter under advisement.

Later, when “Motions” were called during Routine Proceedings, Hon. Harvie Andre (Minister of State and Leader of the Government in the House of Commons) moved to restore the continuing order for Supply. He expressed doubts as to the admissibility of the question of privilege, suggesting that a point of order would have been the appropriate way to raise the issue. He indicated that he was prepared to delay moving the motion for a day. Other intervenors also participated in the discussion.^[3] The Speaker asked the chairmen of all standing committees to take the point raised into account but stated he did not intend to rule on it immediately because it was central to the question he had undertaken to consider. The Speaker returned to the House on April 3, 1990 to deliver his decision which is reproduced in extenso below.

Decision of the Chair

The Speaker: Yesterday the honourable House Leader of the Official Opposition (Mr. Gauthier) raised a question of privilege relating to events of Friday, March 30, 1990, a day designated as the first allotted day of the supply period ending June 30, 1990 under Standing Order 81(17).

The honourable Member argued that the privileges of opposition Members had been breached by the call for quorum made by the Chief Government Whip. Since this had resulted in a count-out, the Acting Speaker, pursuant to Standing Order 29(3), had declared the House adjourned. By count-out I mean there were not enough Members in the House to provide a quorum.

The result, in the view of the honourable House Leader of the Official Opposition, denied opposition Members the right to debate the motion on an environmental action plan and so infringed their privileges. The honourable Member seeks redress through the re-designation of a first allotted day for the current supply period.

The Chair will first deal with this key question. The provisions regarding quorum have been in existence since 1867. Standing Order 29(3), in place since 1982, provides additionally for a 15-minute bell to summon Members. It reads as follows:

If, during a sitting of the House, the attention of the Speaker is drawn to the lack of a quorum, the Speaker shall, upon determining that a quorum is lacking, order the bells to ring for no longer than 15 minutes; thereupon a count of the Members present shall be taken, and if a quorum is still lacking, the Speaker shall adjourn the House until the next sitting day.

On Friday last, as the Votes and Proceedings indicate, no government Members were present for the count. Faced with a count-out, the Acting Speaker declared the House adjourned.

The Chair has carefully reviewed the events of March 30, and it has noted that Orders of the Day were reached, and debate duly begun on the opposition motion. Later, under the provisions of Standing Order 26(1), the House continued to sit beyond the ordinary hour of daily adjournment to consider the business before it. In other words, it was moved that the House sit beyond three o’clock that afternoon and that was sustained, so debate was continuing past the ordinary hour of adjournment which was three o’clock. That motion did not come from the government side; it came from the opposition side.

The honourable House Leader of the Official Opposition argues that the quorum call by the Chief Government Whip truncated the debate and effectively robbed the opposition of its allotted day. However, under the circumstances, it is difficult for the Chair to conclude that the government must bear the sole responsibility for the House adjourning for want of a quorum.

It has often been argued that allotted days are a fundamental right of the opposition minorities in the House, offering a specific forum for debate on their concerns. If one accepts, as your Speaker does, that this perspective is accurate, then one is also left to conclude that the opposition must not only accept but would carefully guard the need to maintain a quorum for debate on its items of business.

The honourable Member for Esquimalt—Juan de Fuca (Mr. David Barrett) commented vigorously about the consequences of government Members not responding to the quorum bells. As I said yesterday, this falls into the realm of tactics. I think I also added that what is sauce for the goose is sauce for the gander.

Arguably, if it so wished, the government could have marshalled 15 Members to rise in their places and oppose the extension of the sitting. This it did not do. The invocation of Standing Order 29(3) may have ended the debate earlier than the opposition might have wished, but its effect on the government side is not without considerable consequence as well.

Honourable Members who had planned to speak on the motion may well be disappointed that this proved impossible, but a review of the circumstances offers no evidence that their rights were in any way interfered with or their privileges breached.

Let us turn now to the consequences of the count-out, namely the dropping of the continuing order for supply from the Order Paper.

The authorities are clear on this subject. Bourinot Fourth Edition states at page 218:

A “count out” will always supersede any question that is before the House; and if an order of the day for supply, or for the reading or committal of a bill, be under consideration at the time, and there is no quorum present, the House must be asked at a subsequent sitting to revive the question that may have lapsed in this way.

The honourable House Leader for the Official Opposition cites Standing Order [81(1)] which reads:

At the commencement of each session, the House shall designate, by motion, a continuing Order of the Day for the consideration of the business of supply.

He goes on to contend that the loss of the continuing order carries dire consequences, namely the loss of all supply proceedings in this session, and that reinstatement of that order will re-establish the number of votable opposition motions available to the parties in opposition.

The honourable Member for Ottawa—Vanier also raised with the Chair the status of the business of supply now before various standing committees of the House. I am referring to the Estimates for fiscal year 1990-91. He claimed that since the continuing order for supply was no longer on the Order Paper, standing committees no longer have the authority to continue consideration of Budget votes, at least not until the continuing order is reinstated. I must say the honourable Member argued his case very convincingly. However, the Chair has great difficulty in accepting his statements.

It is true there are no precedents for this situation, but I fail to see how the loss of the continuing order for supply could erase previous decisions by the House to adopt interim supply or refer consideration of the Estimates to its committees. However, the fact remains that the House does not at this time have any mechanism for considering supply proceedings until a continuing order is reinstated on the Order Paper.

The Chair agrees with honourable Members that a continuing order must be re-designated, but I do not see how last Friday’s events could have simply erased the decisions the House has made to date on supply in this session. I refer honourable Members to the document, Status of Bills and Motions, where pages 59 through 66 list the business of supply already considered by the House. I would note, in particular, the decisions of February 22, 1990, No. 31 on page 64 of the Status, referring the Main Estimates, 1990-[91] to standing committees where they are now under consideration

The authorities are clear on the consequences of reviving a dropped order. I quote from Erskine May, Twenty-First Edition at page 315:

If on such an order of the day procedure has been commenced and interrupted, the proceeding thus revived is set down for resumption at the position indicated by the last decision of the House entered upon the Votes and Proceedings.

I would therefore rule that once the order for supply has been re-established, the business of supply will resume at the point of the last House decision; namely awaiting the second allotted day in the current period to be designated. As far as the number of votable motions are concerned, we are also at the same point we were last Friday. There remain no more votable motions available in the current supply calendar.

Next, I would like to deal with the fourth and final point raised by the honourable Member for Ottawa—Vanier. Put simply, he asks if the motion of the minister for the re-designation of the permanent order of supply is a debatable motion, pursuant to Standing Order 67(1)(p), which reads as follows:

(p) such other motion, made upon Routine Proceedings, as may be required for the observance of the proprieties of the House, the maintenance of its authority, the appointment or conduct of its officers, the management of its business, the arrangement of its proceedings, the correctness of its records, the fixing of its sitting days or the times of its meeting or adjournment.

The argument of the honourable Member for Ottawa—Vanier was supported by the honourable Member for(Kingston and the Islands) (Mr. Peter Miliken), who further argued that a July 3, 1917 precedent was not applicable because it dealt with reinstatement of a bill at second reading stage. He also claimed that Standing Order 67(1)(p) is the operative mechanism to reinstate the supply proceedings ordered by way of notice and debate.

The July 3, 1917 case was indeed about a bill being reinstated and the Speaker did rule based on a quote of May Twelfth Edition, page 219, that the motion did not require notice and was not subject to debate. Following this precedent there are others: Wednesday, March 12, 1919 and August 1, 1956, to mention only two.^[4] The latter is important because the House had just reviewed in 1955, the equivalent of Standing Order 67(1)(p), which was essentially worded the same as it is today. Yet a superseded order was reinstated on August 1, 1956, without debate or notice. It was not treated as the equivalent of Standing Order 67(1)(p).

I should also deal with the points of the honourable Member for Kamloops (Mr. Nelson Riis) who argued that a lapsed order for supply should be considered as a matter of confidence. On that point I shall only say that a lapsed order is not a decision of substance by the House. It is only the consequence of the House not having appointed a day for consideration of such an order. Furthermore, the motion before the House last Friday was due to expire without question put pursuant to Standing Order 81(17). It is therefore difficult to invoke the usual convention of a lost decision in the House on a matter of confidence.

The honourable Member also referred to page 422 of Bourinot Fourth Edition which refers to a lapsed order in committee of supply. Bourinot states clearly that this would require notice of a motion for the House to resolve itself into committee again. This reference relates to the 19th century British practice. The Chair has however found a more recent case in Canadian practice.

On June 9, 1938, an identical situation developed in committee of supply and the reinstatement for the House to resolve itself back into committee was brought forward on June 10, 1938, that is the next day, without debate or notice and no objection was taken.^[5] In any case, the whole supply process was completely revamped in the 1968 reform and the committee of supply was abolished. The present case is unique in our procedure and can only be treated as just another dropped or superseded order as the Chair can find no basis in logic, convention or common sense to treat it any differently.

In summary then, the Chair has found that the quorum call initiated by the government which resulted in the House adjourning for lack of quorum on an opposition day does not constitute a breach of the privileges of this House. Furthermore, the motion for the re-designation of the continuing order for supply does not require notice, is not subject to debate and can be moved forthwith by the Minister.

I want to say something in this regard. Yesterday when the House reached motions, I had indicated byway of a comment earlier that at that point I invited the honourable House Leader to respect the difficulties that we were in because it would have required me to make an immediate order on a complex series of points. The House leader courteously did that. But we had reached Motions, and I now find that we have to deal with it on the basis as if the House Leader was dealing with motions. If the House leader wishes to, I would invite him to move his motion now, because the delay is due to the fact that the Chair had to ask the indulgence of the House to reserve for the ruling.

At least two committees did consider the Estimates while the Speaker was considering the question of privilege.^[6]

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1990-04-03