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The Speaker has been duty‑bound to decide all questions of procedure since representative assemblies were first established in the colonies which later formed Canada.[65] Just as case law (the body of judge‑made law) is an important part of the common‑law system, rulings (the body of Speaker‑made parliamentary law) are an important part of our parliamentary system. Over the years, the sum total of rulings from Speakers has helped shape the way in which the House conducts its business.[66] Successive Speakers have been called upon to decide how rules should apply and, through rulings, have either settled issues or encouraged the House,[67] the government,[68] or the Board of Internal Economy[69] to take steps to resolve them. Prior to 1965, the rulings of Speakers were subject to an appeal and could be overturned by the House; since then, Members have not been allowed to question a decision of the Chair.[70] A distinction must be made between “rulings” and “statements” made by the Speaker. Rulings deal with the procedural acceptability of some matter before the House and, unless otherwise specified, serve as precedents to govern future proceedings. More often than not, they address procedural issues raised on a point of order or a question of privilege and seek to give directions to the House. Statements, on the other hand, seek to convey information or clarification to Members of the House.[71] Not every statement is a ruling and Speakers have often explicitly stated that certain procedures, although permitted in certain circumstances, should not be interpreted as precedents.[72] Speaker Fraser summed up the fine balancing act that is often involved in adapting old rules to new situations: “When interpreting the rules of procedure, the Speaker must take account not only of their letter but of their spirit and be guided by the most basic rule of all, that of common sense”.[73] In arriving at a decision on a procedural point, the Speaker may draw upon a full range of procedural information and examine the precedents to determine how the Standing Orders have been applied and interpreted in the past. The Standing Orders, though a vital reference, constitute a comparatively small part of the much larger body of House of Commons procedure and practice that the Speaker will consult in preparing a ruling. The primary records of the House, the Journals and Debates, are the richest repository of information on precedents, practices and usages as well as being the most reliable.[74] Finally, while Speakers must take the Constitution and statutes into account when preparing a ruling, numerous Speakers have explained that it is not up to the Speaker to rule on the “constitutionality” or “legality” of measures before the House.[75] While good procedure requires that there be consistency in the interpretation of practice and in the application of the Standing Orders,[76] Speakers have never shied away from creating new precedents when faced with an apparent contradiction between Standing Orders and contemporary values. In this way, Speakers have declared past rules or Standing Orders to be redundant[77] and have often invited the House to ponder the consequences of things such as new technologies on Members’ privileges.[78] In arriving at a decision, Speakers will also review cornerstone events of the past, known as precedents, which may be useful in their application to a new situation. Precedent has been defined as “a previous decision by the Chair, or a well‑established procedure or usage which serves as an authority or guide when a similar point or circumstance arises in Parliament”.[79] Determining what is or is not a precedent is not always straightforward. Speaker Fraser once said that “a precedent is something that happened once upon a time and that everyone decided to follow. … [I]n legal terms, it is usually the consequence of a decision made after argument has been proffered to the Chair … on a certain point”.[80] The mere occurrence of an event does not make it a precedent, and Speakers have on occasion ruled that a special circumstance justifies a deviation from a known precedent.[81] At times, the Speaker will allow Members to address the issue raised to give them an opportunity to present facts that might help shed some light on the case at hand. At other times, a ruling will be made immediately without Members’ interventions. It is left to the Speaker to determine what method he or she will use. While previous rulings and statements always serve as important and reliable guides, and while Speakers invariably rely on the decisions of their predecessors, every new situation is different and is examined on its own merits. A great many practices remain uncodified, although some are defined and made explicit in Speakers’ rulings and statements. [65] Standing Order 10. The Canadian origins of this British‑inspired rule can be traced back to the rules of the House of Assembly of Lower Canada in 1793: “The Speaker shall preserve Order and Decorum, and shall decide Questions of Order, subject to an appeal to the House” and “When the Speaker is called upon to explain a point of order or practice, he is to state the rule applicable to the case, without argument or comment”. [66] While the totality of Speakers’ rulings from 1867 onward has not been compiled in any systematic way, collections of selected decisions have been published for Speakers since 1966. The series includes decisions of Speakers Lamoureux, Jerome, Sauvé, Francis, Bosley, Fraser and Parent. [67] See, for example, Debates, March 1, 1966, pp. 1939‑40; December 1, 1986, p. 1647; June 16, 1994, pp. 5437‑40; March 16, 1998, pp. 4902‑3; May 28, 2001, pp. 4276‑7; October 6, 2005, pp. 8473‑4; November 7, 2006, pp. 4785‑6; March 14, 2008, pp. 4181‑3. [68] See, for example, Debates, February 2, 1982, p. 14899; November 16, 1982, pp. 20702‑3; October 12, 1983, pp. 27944‑5; November 21, 2001, pp. 7380‑1. [69] See, for example, Debates, May 2, 1995, pp. 12072‑4; April 23, 1998, pp. 6035‑7; December 3, 1998, pp. 10826‑31; February 13, 2001, pp. 608‑10. [70] Standing Order 10. See, for example, Debates, June 5, 2003, pp. 6889‑93. [71] Referring to newly‑adopted guidelines regarding the selection of report stage motions, Speaker Milliken outlined the purpose of Speaker’s statements. He said: “… from time to time when the House adopts new procedures, Speakers have seen fit to address the manner in which they will be implemented. Often this occurs when a certain amount of latitude or discretion is given to the Chair. In enforcing new procedures, the Speaker acts as a servant of the House, not as its master” (Debates, March 21, 2001, pp. 1991‑3). [72] In 1987, in a ruling on the acceptability of a motion moved during Routine Proceedings, the Speaker ruled the motion in order but then went on to say that this ruling should not “be regarded as a precedent for all time, and that in other circumstances the Chair might well disallow such a motion” (Debates, April 14, 1987, pp. 5119‑24). For other examples, see Debates, October 1, 1987, p. 9528; October 16, 1987, pp. 10091‑2; March 14, 1988, p. 13685; February 17, 1999, p. 12046; September 18, 2001, pp. 5256‑8; April 7, 2003, pp. 5196‑8. [73] Debates, April 14, 1987, p. 5121. [74] In the 1781 preface to the first edition of his Precedents of Proceedings in the House of Commons, John Hatsell wrote: “It is unnecessary again to put the Reader in mind, that this Work, as well as the former of “Cases of Privilege of Parliament,” are to be considered in no other light than as Indexes to refer him to the Journals at large, and to other Historical Records; from whence alone can be derived a perfect knowledge of the Law and Proceedings of Parliament” (Hatsell, J., Vol. I, South Hackensack, New Jersey: Rothman Reprints Inc., 1971 (reprint of 4th ed., 1818), p. v). Josef Redlich wrote: “It is no mere chance that the journals of the House began from the end of the sixteenth century to be compiled with increasing care and detail. It was the outcome of the anxiety of the Commons to maintain their practice in each individual case and, above all, to take care that precedents as to procedure and privilege were safeguarded against forgetfulness and preserved for future use” (Redlich, Vol. I, p. 44). [75] In a 1991 ruling, Speaker Fraser made that point abundantly clear: “The Speaker has no role in interpreting matters of either a constitutional or legal matter” (Debates, April 9, 1991, pp. 19233‑4). See also Debates, July 8, 1969, p. 10955; October 1, 1990, p. 13620; May 13, 2003, pp. 6123‑4; March 23, 2005, pp. 4498‑500. [76] While it is for the House to determine what constitutes a “good” rule, good procedure must be binding and “have mandatory effect on those persons or parties to which they apply”; must be “predictable and that no business should be sprung on the House without adequate notice”; and, finally, must be “clear and readily comprehensible by all those whom they affect, including those charged with their interpretation and enforcement” (Griffith and Ryle, 2nd ed., pp. 247‑50). [77] In a ruling concerning the use of Standing Order 39(6) which deals with written questions, Speaker Fraser suggested that the said Standing Order might have “survived so long unchanged because it had remained unused for the past 60 years; that its use in today’s context may not be what was intended; and that it no longer fits the conditions of the present House of Commons …”. He went on to add that new elements “which were incorporated in the Standing Orders … have practically eliminated the kind of abuses” Standing Order 39(6) sought to address. See Debates, June 14, 1989, pp. 3023‑6, in particular p. 3025. [78] In recent years, there have been a number of points of order and questions of privilege dealing with noted discrepancies between printed and electronic official records. In one case, the Speaker ruled that the difference between the printed and electronic Hansard was an editorial error and did not constitute a question of privilege, but also pointed out that because the larger issue of the status of the electronic Hansard had never been investigated, the issue warranted an examination by the Standing Committee on Elections, Privileges and Procedure. See Debates, June 6, 1986, pp. 14055‑6. The Speaker has also ruled on the use of cellular phones in the House (Debates, September 28, 2005, p. 8151), on the use of Members’ e‑mail accounts to send mass mailings (Debates, January 29, 2003, p. 2848), and on the blocking of Members’ fax lines and the registration of Internet domain names of certain Members of the House of Commons by others (Debates, June 8, 2005, pp. 6826‑8). [79] Wilding and Laundy, 4th ed., p. 570. [80] Debates, November 6, 1986, p. 1153. [81] Often, by unanimous consent, the House agrees to proceed in a way which would otherwise be ruled inadmissible by the Speaker. See, for example, Debates, October 1, 1987, p. 9528; March 14, 1988, p. 13685. Occasionally, the Speaker may make a decision which breaks with past rulings but which is not to be regarded as a precedent, or may temporarily permit a practice which would not normally be allowed. See, for example, Debates, April 14, 1987, pp. 5119‑24, in particular pp. 5120‑2; January 31, 2002, p. 8560. |
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