House of Commons Procedure and Practice

Second Edition, 2009

House of Commons Procedure and Practice - 12. The Process of Debate - Unanimous Consent

Unanimous Consent

At times, the House may choose to depart from, vary, or abridge, the rules it has made for itself. When the House has made substantial or permanent modifications to its procedures or practices, it has usually proceeded by way of motion preceded by notice; ad hoc changes, on the other hand, are often made by obtaining the consent of all Members present in the House at the time the departure from the rules or practices is proposed. Such a suspension of the rules or usual practices is accomplished by what is termed “unanimous consent”.^{^[371]} When unanimous consent is sought, the Chair takes care to ascertain that no voice is raised in opposition; if there is a single dissenting voice, there can be no unanimity.^{^[372]} Whenever the House proceeds by unanimous consent, the fact is noted in the official record.^{^[373]} When many rules are to be suspended simultaneously, confusion is avoided by ensuring that the corresponding motion sets out in detail the manner in which the House is to proceed.^[374]

Perhaps the most common application of unanimous consent is to dispense with the notice provisions of the Standing Orders.^{^[375]} For example, unanimous consent is sought to waive the notice requirement applicable to a substantive motion^{^[376]} and, once it is granted, a motion can be brought forward for a decision by the House. Bills have been introduced without the requisite notice;^{^[377]} likewise, motions authorizing committees to travel or change their membership (so‑called “housekeeping” matters) have been introduced without notice by unanimous consent and then decided forthwith.^{^[378]} It is by no means unusual for committee reports to be presented and, by unanimous consent, concurred in on the same day.^{^[379]} The deadline for filing with the Clerk of any notice prior to an adjournment period has also, on occasion, been extended by unanimous consent.^[380] Unanimous consent has moreover been sought to move, without notice, a motion proposing changes to the Standing Orders; it was granted and the motion was adopted without debate.^{^[381]}

For the most part, unanimous consent is used as a means either of expediting the routine business of the House or of extending the courtesies of the House. During debate, unanimous consent has been sought to extend briefly the length of speeches or the length of the “questions and comments period” following speeches;^{^[382]} to permit the sharing of speaking time;^{^[383]} to permit a Member who has already spoken once to a question to make additional comments;^{^[384]} and even to alter the usual pattern of rotation of speakers.^{^[385]}

The arrangement of House business is also commonly achieved by unanimous consent. This may involve changes to the order of business,^{^[386]} the suspension of sittings,^{^[387]} alterations in adjournment hours or sitting days^{^[388]} and special orders respecting procedures for individual events.^{^[389]} The established order of the daily agenda of the House, particularly with respect to the sequence in which items are taken up during Routine Proceedings, is often altered by seeking unanimous consent to revert to an item in Routine Proceedings.^{^[390]} Thus, Members who may have inadvertently missed their cues under rubrics such as “Tabling of Documents”, “Presenting Reports from Committees”, “Introduction of Private Members’ Bills” and “Presenting Petitions”, routinely seek and are often granted unanimous consent to return to the appropriate item.

With unanimous consent, bills have been advanced through more than one stage in a single day and referred to a Committee of the Whole rather than a standing committee,^{^[391]} and have even been amended by unanimous consent.^{^[392]}

During divisions, unanimous consent has been sought to apply the results of one vote to another vote,^{^[393]} or to vote row‑by‑row,^{^[394]} or to apply Members’ votes to subsequent divisions.^{^[395]} By unanimous consent, recorded divisions have been deemed demanded and deemed deferred.^{^[396]} A private Member may seek unanimous consent to table a document referred to in debate, which is contrary to normal practice.^{^[397]}

Less common uses of unanimous consent can also be identified. For example, at the beginning of the Third Session of the Thirty‑Fourth Parliament (1991‑93), two bills from the previous session were, by unanimous consent, reinstated on the Order Paper at the same stage as they were at when Parliament was prorogued;^{^[398]} committees have been reinstated, by unanimous consent, for the sole purpose of completing projects begun in the previous session.^{^[399]}

There are two Standing Orders which explicitly provide for the use of unanimous consent. The first states that “a Member who has made a motion may withdraw the same only by the unanimous consent of the House”.^{^[400]} The substance of this rule has been in place since Confederation and reflects the principle that once moved, any motion becomes the property of the House. It also applies to amendments and subamendments.

The second rule provides that if, at any time during a sitting of the House, unanimous consent is denied for the presentation of a “routine motion”, then a Minister may request without notice, during Routine Proceedings (under the rubric “Motions”)^[401], that the Speaker propose the question on the motion.^{^[402]} This request can be made later in the same sitting or at a subsequent sitting of the House.^{^[403]} When the request is made, the question is put forthwith on the motion without debate or amendment.^{^[404]} If 25 or more Members rise to oppose the motion, it is deemed withdrawn; otherwise, it is adopted.^{^[405]} The routine motions to which this process applies include motions for:

the observance of the proprieties of the House;

the maintenance of its authority;

the management of its business;

the arrangement of its proceedings;

the establishment of the powers of its committees;

the correctness of its records; and

the fixing of its sittings or the times of its meetings or adjournments.^{^[406]}

This Standing Order was the object of procedural challenges prior to its adoption in 1991^{^[407]} and on the first two occasions on which it was invoked.^{^[408]} Since then, it has been invoked on a number of occasions after routine motions were refused unanimous consent.^{^[409]} In 2001, an attempt was made to use it in order to predetermine the outcome of all votes following the first recorded division on the Main Estimates. This led to a key ruling in which the Speaker cautioned against any attempt “to use Standing Order 56.1 as a tool to bypass the decision-making functions of the House”.^[410] In 2007, an attempt to use the Standing Order to direct the business of a Standing Committee was similarly ruled out of order.^{^[411]}

Limitations on the Use of Unanimous Consent

Despite the variety of uses to which it has been put, it should not be assumed that unanimous consent can be utilized to circumvent any and every rule or practice of the House. Limitations do exist. For example, unanimous consent may not be used to set aside provisions of the Constitution Act or any other statutory authority. A statutory requirement supersedes any order of the House to which it applies.^{^[412]} Members have sometimes remarked, during the course of debate, that the House cannot do by unanimous consent that which is illegal.^{^[413]}

The workings of this prohibition are seen in matters relating to the Royal Recommendation. Section 54 of the Constitution Act, 1867 stipulates that a Royal Recommendation^{^[414]} must be provided for every vote, resolution, address or bill for the appropriation of public revenues. This constitutional provision is reiterated in the Standing Orders.^{^[415]} The same is true of quorum in the House of Commons, which is specified in Section 48 of the same Act and reiterated in the Standing Orders.^[416] While the Standing Orders, being House‑made rules for its own guidance, could be overcome by unanimous consent, the constitutional provisions cannot. This point has been emphasized in a number of Speakers’ rulings.^{^[417]}

Role of the Speaker

The mechanics of requesting and granting unanimous consent must be carefully observed. The Chair must be meticulous in presenting the request for unanimous consent to the House without delay.^[418] For example, a Member wishing to waive the usual notice requirement before moving a substantive motion would ask the unanimous consent of the House “for the following motion”, which is then read in extenso.^[419] The Speaker then asks if the House gives its unanimous consent to allow the Member to move the motion. If a dissenting voice is heard, the Speaker concludes that there is no unanimous consent and the matter goes no further, although it is permissible to try again to obtain unanimous consent.^{^[420]} If no dissent is detected, the Speaker concludes that there is unanimous consent for the moving of the motion, and then asks if it is the pleasure of the House to adopt the motion. At this point, the practice has been for the House to make its decision on the motion; though technically, debate on the motion is still possible.^{^[421]}

If the will of the House is not clear, the Speaker asks again if there is unanimous consent.^{^[422]} A single dissenting voice, if heard by the Chair, is sufficient to defeat a request for unanimous consent and the Speaker has reminded Members to make their intentions clear when they do not wish to give consent.^{^[423]} The Chair is concerned only with determining whether or not there is unanimity; if there is dissent, it is not proper to speculate on, or to attempt to identify, its source.^{^[424]}

Decision Not a Precedent

Nothing done by unanimous consent constitutes a precedent. However, orders or resolutions presented or adopted by unanimous consent express the will of the House and are as binding as any other House order or resolution. Unanimous consent provides a means for the House to act immediately; for example, once unanimous consent is granted to move a motion without notice, the House must then decide on the motion in the same way that it would for any other motion before it.

^[371] Bourinot, 4th ed., p. 203. See, for example, Journals, November 28, 2006, p. 820.

^[372] See, for example, Debates, December 6, 2006, p. 5698.

^[373] Since Journals note only that unanimous consent existed for a given proceeding, it may be necessary to refer to Debates in order to learn what rule or practice was circumvented by the use of unanimous consent.

^[374] See, for example, Debates, June 19, 2006, p. 2566.

^[375] At one time, there was a rule whereby, with the unanimous consent of the House, motions could be proposed without notice (see 1978 Standing Order 43); it was removed in 1982 (Journals, November 29, 1982, p. 5400). For further information on the former Standing Order 43 as an antecedent of the current Statements by Members pursuant to Standing Order 31, see Chapter 10, “The Daily Program”.

^[376] Standing Order 54.

^[377] See, for example, Journals, June 14, 1977, p. 1128.

^[378] See, for example, Debates, February 12, 1999, p. 11843 (unanimous consent to change committee membership); December 11, 1997, p. 3119 (no unanimous consent for committee travel); November 9, 2006, p. 4981 (unanimous consent for committee travel). In order to limit the ability of a single Member to deny unanimous consent to motions authorizing committee travel, Standing Order 56.2(2), adopted in 2001, now requires that any such motion for which notice has been given be deemed adopted unless 10 or more Members rise to indicate their opposition. In the latter event, the motion is deemed to have been withdrawn.

^[379] See, for example, Journals, May 11, 2006, p. 164; May 30, 2007, pp. 1446‑7.

^[380] See, for example, Journals, October 20, 2004, p. 124.

^[381] Debates, November 30, 1998, p. 10620.

^[382] See, for example, Debates, April 6, 2006, p. 140.

^[383] An existing practice was codified in the Standing Orders in 1991, so that a 20‑minute speaking time can be divided into two if the party Whip so indicates to the Chair (Standing Order 43(2)). This codification was extended, in 2005, by the addition of Standing Order 43(2)(b), which allows any Member to notify the Speaker to this effect immediately upon rising to speak. Unanimous consent has also been sought for other divisions of speaking time. See, for example, Debates, February 12, 1992, pp. 6864‑5; October 7, 2004, p. 109.

^[384] See, for example, Debates, May 18, 1983, p. 25550.

^[385] See, for example, Debates, March 17, 1998, p. 5009.

^[386] See, for example, Journals, June 5, 1998, p. 942 (to adjourn the debate, to see the clock as at the time scheduled for Private Members’ Business, and to proceed to Private Members’ Business); Debates, June 1, 2006, p. 1866 (to extend the time provided for Government Orders); Journals, November 1, 2006, p. 615 (to take up Statements by Ministers after Oral Questions); October 24, 2007, p. 55 (to table a House of Commons calendar for the year 2008).

^[387] See, for example, Debates, March 23, 2004, p. 1615.

^[388] See, for example, Debates, November 7, 1986, p. 1202 (not to sit on what would ordinarily be a sitting day); April 2, 2004, p. 2041 (to proceed with Private Members’ Business in advance of the usual time).

^[389] See, for example, Debates, December 4, 1985, p. 9120 (arrangements for the consideration of a bill); May 5, 2006, p. 1006 (arrangements for the joint address of the Prime Minister of Australia to the Senate and the House of Commons); Journals, June 10, 2008, p. 952; June 11, 2008, p. 963 (arrangements for the Indian Residential Schools apology).

^[390] See, for example, Debates, April 27, 2006, p. 624 (to revert to “Statements by Ministers”); September 21, 2006, p. 3111 (to revert to “Presenting Reports from Committees”).

^[391] During a labour dispute in 1966, for example, the House was recalled from an adjournment; with unanimous consent, back‑to‑work legislation was introduced without notice and proceeded with at second reading later in the sitting (Journals, August 29, 1966, pp. 785‑9). See also Journals, February 23, 2004, p. 112, when unanimous consent was granted for the consideration at all stages of a government bill; Journals, October 26, 2007, p. 69, when, by unanimous consent, a legislative committee was struck and instructed, and a bill was deemed read the second time and referred to it.

^[392] See, for example, Debates, November 9, 2006, p. 4978; see also Speaker’s remarks in Debates, June 10, 1985, p. 5593.

^[393] See, for example, Debates, November 7, 2006, pp. 4848‑9.

^[394] See, for example, Debates, June 8, 1987, pp. 6864‑5.

^[395] See, for example, Debates, November 27, 2006, p. 5412.

^[396] See, for example, Journals, October 25, 2007, p. 64. Orders for deferred recorded divisions have also been discharged by unanimous consent. See, for example, Journals, October 25, 2006, p. 581.

^[397] See, for example, Debates, June 4, 1996, pp. 3427‑8; June 8, 2006, p. 2107. Such requests are occasionally used as a dilatory tactic. See, for example, Debates, December 13, 1999, pp. 2760‑5. For further information, see Chapter 10, “The Daily Program”.

^[398] Journals, May 17, 1991, pp. 44‑5; May 23, 1991, p. 59. Unanimous consent was denied with respect to the reinstatement of five other bills from the previous session. These five other bills were subsequently reinstated by Order of the House following the adoption of a government motion (Journals, May 29, 1991, pp. 102‑9).

^[399] Journals, May 17, 1991, pp. 42‑3; October 7, 2003, p. 1104.

^[400] Standing Order 64.

^[401] Standing Order 56.1. See, for example, Debates, May 13, 2005, p. 5971. In 2002, Speaker Milliken reaffirmed that a request pursuant to Standing Order 56.1 must be made during Routine Proceedings under the rubric “Motions” (Debates, October 24, 2002, p. 828).

^[402] Standing Order 56.1. This rule was introduced as part of a package of government‑sponsored amendments to the Standing Orders, adopted in April 1991 following the use of closure (Journals, April 11, 1991, pp. 2898‑932). For further information, see Chapter 14, “The Curtailment of Debate”.

^[403] See, for example, Journals, June 8, 1995, p. 1594 (motion adopted after unanimous consent withheld the previous day; see Debates, June 7, 1995, p. 13375); Journals, April 12, 1999, p. 1687 (motion adopted after unanimous consent withheld earlier in the sitting; see Debates, April 12, 1999, pp. 13552, 13573). Unanimous consent to present a motion may be sought and denied more than once before invoking Standing Order 56.1. See, for example, Debates, December 9, 1992, p. 14913; December 10, 1992, pp. 14994‑5, 14997.

^[404] Standing Order 56.1(2).

^[405] Standing Order 56.1(3). See, for example, Journals, October 22, 2002, p. 91; June 13, 2003, p. 935.

^[406] Standing Order 56.1(1)(b).

^[407] A lengthy point of order was made on the proposed rule change (Debates, March 26, 1991, pp. 19042‑6). In his ruling, the Speaker pointed to the limited range of motions to which the rule could apply and indicated that there were in the Standing Orders similar procedures with respect to other types of motions. Given this and recognizing the House’s privilege to set its own binding rules of procedure, the Speaker declined to rule the proposed Standing Order out of order (Debates, April 9, 1991, pp. 19233‑7).

^[408] Both instances concerned motions authorizing committees to travel. Objection was taken to “the use of this very draconian Standing Order in this rather casual way” as, it was argued, there would have been sufficient time to give notice of the motions in the usual way (Debates, December 12, 1991, pp. 6173‑5).

^[409] See, for example, Journals, December 12, 1991, p. 935 (committee travel―two motions); March 16, 1995, p. 1226 (suspension of sitting for Royal Assent); March 23, 1995, p. 1265 (hours of sitting); December 1, 1997, pp. 290‑1 (readings of a bill in one sitting; adjournment of sitting); February 9, 1998, p. 430 (debatable motion to adjourn the House); June 9, 1998, p. 954 (discharge an order of the House―deemed withdrawn); April 12, 1999, p. 1687 (debate on an item of government business); June 12, 2001, pp. 535‑6 (to dispose of business over two sitting days); June 13, 2003, p. 935 (actual and deemed length of summer adjournment); May 13, 2005, pp. 749-50 (to provide a specific date and time for a division); October 3, 2006, pp. 487‑8 (proceedings at second reading); December 13, 2007, p. 319 (to waive the notice requirement to call a bill for debate at third reading).

^[410] Debates, September 18, 2001, pp. 5256-8. In this ruling, Speaker Milliken also declared that Standing Order 56.1 may not be used to override decisions already taken by unanimous consent. Speaker Milliken has also ruled that the Standing Order may not be used for the concurrence in the report of a striking committee. See Debates, October 24, 2002, pp. 828‑9.

^[411] Debates, May 31, 2007, pp. 9958, 9962‑4.

^[412] Bourinot, 4th ed., p. 204.

^[413] See, for example, Debates, April 24, 1985, p. 4067; October 28, 1986, p. 823; March 26, 1991, pp. 19044‑5.

^[414] For further information, see Chapter 18, “Financial Procedures”.

^[415] Standing Order 79(1).

^[416] Standing Order 29(1).

^[417] See, for example, Journals, November 9, 1978, pp. 130‑3; Debates, November 3, 1983, p. 28655.

^[418] For an example of the confusion that can result from insufficient attention to these “mechanics”, see Debates, June 5, 2006, pp. 1930‑1.

^[419] On occasion the Speaker has found it necessary to interrupt this in extenso reading when it became apparent that the motion in question was of unnecessary and unreasonable length (Debates, February 6, 2004, pp. 244‑8).

^[420] See, for example, Debates, March 23, 1999, pp. 13367‑9 when, after four attempts, unanimous consent was granted to allow, despite the rule, a questions and comments period following the speech of a Minister moving a government order. See also Speaker Fraser’s comments, Debates, October 30, 1991, pp. 4221‑2.

^[421] Debates, June 11, 1985, p. 5650; December 11, 1997, p. 3071.

^[422] See, for example, Debates, November 17, 1975, p. 9101; December 19, 1990, p. 16952. On one occasion in 1966, it appeared that there was unanimous consent to introduce a bill without notice and to proceed to second reading later in the same sitting (Journals, August 29, 1966, pp. 786‑7); Members later claimed that they were not heard and that there had been no unanimous consent to proceed to second reading of the bill; an agreement was reached after further discussion of the matter (Debates, August 29, 1966, pp. 7766‑70).

^[423] See, for example, Debates, March 15, 1996, p. 787. See also Debates, March 8, 1993, p. 16631, when the Chair indicated that dissent might be expressed in a non‑verbal manner.

^[424] Debates, July 27, 1973, p. 6056; March 23, 1999, p. 13369.