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The permanent written rules under which the House regulates its proceedings are known as the Standing Orders.[32] The continuing or “standing” nature of these rules means that they do not lapse at the end of a session or a Parliament. Rather, they remain in effect until the House itself decides to suspend, change or repeal them. There are at present more than 150 Standing Orders, each of which constitutes a continuing order of the House for the governance and regulation of its proceedings. The detailed description of the legislative process, the role of the Speaker, the nature of the House of Commons calendar and the rules governing the work of committees and Private Members’ Business are some of the topics covered in the Standing Orders. The House declares these continuing orders to be Standing Orders when it formally adopts them, and it periodically issues them as a publication for the guidance and use of all Members. When the House of Commons first met in 1867, the rules it adopted were largely those of the Legislative Assembly of the Province of Canada, itself created in 1840.[33] While it can be said that the Legislative Assembly of the Province of Canada obtained its rules from the assemblies of Upper and Lower Canada, created in 1791, the vast majority of these came from the House of Assembly of Lower Canada.[34] Of the many rules the Assembly of Lower Canada adopted in the first years of its existence, particularly in 1793,[35] more than 35 have survived virtually unchanged and are still in effect today in the House of Commons, as are a further 31 pre-Confederation rules.[36] Since 1867, there have been countless reviews of the Standing Orders.[37] New Standing Orders have been adopted, while others have been significantly modified or deleted, leading on occasion to substantial renumbering. Furthermore, interpretations given to the older rules have been adapted over time to fit the modern context.[38] Occasionally, the adoption of a new Standing Order merely represents the codification of a long‑standing practice of the House[39] or the permanent adoption of a provisional, sessional or special order. At other times, a rule is changed or added as a result of a particular situation,[40] or following an event which convinced the House to seek a way to avoid its repetition.[41] As an indicator of the importance the House attaches to reviewing the Standing Orders, between the sixtieth and ninetieth sitting day of the first session of each Parliament, a debate must be held on the following motion: “That this House take note of the Standing Orders and procedures of the House and its committees”.[42] In addition, the permanent mandate of the Standing Committee on Procedure and House Affairs[43] includes “the review of and report on the Standing Orders, procedure and practice in the House and its committees”.[44] The Committee can recommend changes to the rules as part of its continuing mandate or as the result of a specific order of reference.[45] On some occasions, a special committee has been established with a mandate to suggest revisions to the rules and report its recommendations to the House. These recommendations are typically presented to the House in the form of a report, and sometimes considered during debate on a motion to concur in the report. The contents of such reports are sometimes used as the basis for further discussions leading to changes to the rules.[46] Although the means by which the House reviews the Standing Orders vary greatly, the Standing Orders may be amended only by a decision of the House. Such a decision is arrived at either by way of consensus or by a simple majority vote on a motion moved by any Member of the House.[47] These motions may take the form of motions to concur in committee reports.[48] Since 1867, there have been occasions when controversial proposals have led to lengthy debates where the government used its majority to amend the Standing Orders.[49] In many circumstances, however, procedural changes have been the result of a broad consensus among Members of all parties and have been readily adopted without debate.[50] Besides the permanent Standing Orders, the House may adopt other types of written rules for limited periods of time. Provisional Standing Orders are individual Standing Orders adopted for a specific period of time which does not necessarily correspond to the duration of a Parliament or a session.[51] They may be adopted on an experimental basis,[52] extended provisionally, dropped, or eventually made permanent.[53] The House may also adopt sessional orders, which are intended to be temporary and to remain in effect only for the duration of the session in which they are adopted. Sessional orders may be renewed from session to session, and some eventually become Standing Orders.[54] In addition to the Standing Orders and provisional and sessional orders which form the collected body of written rules, the House may also adopt special orders. A frequently used instrument for the conduct of House business, special orders temporarily suspend the “written” Standing Orders. Since they routinely concern the business of the House and are thus often moved without notice, following consultations, they are often adopted by unanimous consent without debate. They may apply to a single occasion or to such period of time as may be specified.[55] Some special orders over time have become Standing Orders.[56] Finally, some Standing Orders explicitly allow the House to suspend the operation of other Standing Orders.[57] It is also common for the House, at any given time, to set aside its rules with the unanimous consent of all Members then present in the House, so that something can be done which would otherwise be inconsistent with the Standing Orders.[58] The House does this, for example, when it wants a bill to pass more than one stage in a sitting, a procedure which would otherwise contravene the rules.[59] Furthermore, the House can adopt a special order to supersede a previously adopted special order.[60] The Standing Orders also provide for the House to proceed in situations where unanimous consent has been denied, but where the overwhelming majority of Members nevertheless agree to proceed with the action contemplated.[61] Since the Standing Orders have as their primary purpose the regulation of the conduct of the business of the House of Commons and its Members, they are seen as an exercise of the parliamentary privilege of the House to regulate its own internal affairs.[62] However, the Constitution Act, 1867 imposes some limits on the procedures of the House which must be respected in the Standing Orders, such as quorum, the election of the Speaker and the recording of votes.[63] Failure to comply with constitutional provisions could result in the business of the House being declared inoperative by the courts. In the case of statutory provisions, the House of Commons endeavours to ensure that its Standing Orders and practices are consistent with statutes while retaining the exclusive jurisdiction to determine whether the provisions of a statute apply to its proceedings.[64] [32] See Appendix 16, “Standing Orders of the House of Commons”. [33] The House adopted the following motion: “That until otherwise provided, the Rules, Regulations and Standing Orders of the Legislative Assembly of the late Province of Canada, be those of this House” (Journals, November 7, 1867, p. 5). See also Debates, November 6, 1867, p. 4. See Journals, December 20, 1867, pp. 115‑25, Debates, p. 333, for the first written rules of the House of Commons. [34] United Canada, Legislative Assembly, Debates of the Legislative Assembly of United Canada, 1841‑1867, Vol. 1, edited by E. Nish, Montreal: Presses de l’École des hautes études commerciales, 1970‑93, June 15, 1841, pp. 22‑3; June 19, 1841, pp. 72‑81. An analysis of these rules confirms their Lower Canada origin. See O'Brien, G., “Pre‑Confederation Parliamentary Procedure: The Evolution of Legislative Practice in the Lower Houses of Central Canada, 1792‑1866”, Ph.D. thesis, Carleton University, 1988, pp. 255‑6. For a description on how the customs and practices of Upper and Lower Canada were transformed into constitutional provisions, see Hoffman, D. and Ward, N., Bilingualism and Biculturalism in the Canadian House of Commons, Ottawa: Queen’s Printer for Canada, 1970, pp. 2‑20. [35] Province of Lower Canada, Legislative Council, Journals, January 1793. See, for example, Standing Orders 14 (strangers in the House), 16 (decorum in the House), 60 (motion to adjourn), and 70 (bills printed in English and French). [36] See, for example, Standing Orders 23(1) (offer of money), 68(3) (imperfect bills), 80 (pecuniary penalties in Senate bills), and 151 (safe‑keeping of records). A comparative analysis of the rules of the various assemblies may be found in O'Brien, Table 6.1, pp. 439‑45. [37] The first amendments to the written rules occurred four months after the adoption of the first Standing Orders (Journals, March 19, 1868, p. 144). [38] For example, in reply to a point of order arguing that the motion “When shall the bill be read a second time?” was a votable motion, Speaker Fraser ruled that it would not be appropriate to apply to current practices what may have been appropriate one hundred years ago (Debates, May 24, 1988, pp. 15706, 15719‑23). [39] For example, a long‑standing practice had been for the House to arrange for longer hours of sitting prior to the start of the summer adjournment in order to complete or advance its business. In 1982, the practice of extending sitting hours during the last 10 days in June was codified by the adoption of Standing Order 27. See also changes to the French version of the Standing Orders in 2004 (Journals, May 5, 2004, p. 378). The French version was changed to replace the titles of “Orateur” and “Orateur adjoint”, which had fallen into disuse, with “Président” and “Vice‑président”, the titles most frequently used by Members and in legislation when referring to the Speaker and Deputy Speaker. [40] To facilitate the full participation in proceedings of Members with disabilities, Standing Order 1.1 was adopted by the House in 2004 following the election of a quadriplegic Member. See the Special Order adopted on October 5, 2004 (Journals, p. 13) as well as the Eighth Report of the Standing Committee on Procedure and House Affairs, presented to the House and concurred in on October 22, 2004 (Journals, p. 136). [41] There are three notable precedents. First, in December 1912, the government of Sir Robert Borden introduced a resolution on the Naval Aid Bill which triggered one of the most bitter debates known to Parliament. After a particularly acrimonious two‑week continuous sitting during a filibuster of the Bill early in 1913, the government brought forward a motion, on April 9, 1913, to amend the Standing Orders. As a result, new rules were adopted which, among other matters, introduced closure. After an uncharacteristically long debate on the motion, changes to the Standing Orders were adopted on April 23, 1913 (Journals, April 9, 1913, pp. 451‑2, Debates, cols. 7388‑7414; Journals, April 23, 1913, pp. 507‑9). Second, in March 1982, changes were made to the Standing Orders in relation to what is known as the “bell ringing episode” when division bells were rung continuously for two weeks. The Standing Orders were amended to fix time limits on bells calling in Members for a recorded division. For a detailed account of the political causes and procedural consequences of the bell ringing episode, see Robert, C., “Ringing in Reform: An Account of the Canadian Bells Episode of March 1982”, The Table, Vol. LI, 1983, pp. 46‑53. Third, in 2001, changes were adopted to the Standing Orders governing the selection of amendments at report stage (Journals, February 27, 2001, pp. 141‑3). These changes sought to remedy a situation which had occurred in the previous Parliament when hundreds of motions in amendment at report stage were placed on notice for a number of bills as an obstructive tactic. See Speaker Milliken’s statement in Debates, March 21, 2001, pp. 1991‑3. [42] Standing Order 51. See, for example, Debates, April 21, 1998, p. 5863; April 11, 2005, p. 4852. For further information on this proceeding, see Chapter 15, “Special Debates”. [43] The Standing Committee on Procedure and Organization, as it was first called, was created on December 20, 1968 (Journals, December 20, 1968, pp. 554‑74). Up to that point, it had not been uncommon for the Prime Minister, the Leader of the Opposition and the Speaker to sit on a special (or select) committee created to revise the rules or to chair such a committee. For example, Prime Minister Alexander Mackenzie sat on such a select committee in 1876, as did Prime Minister Sir Wilfrid Laurier in 1906 and 1909 (Journals, February 14, 1876, pp. 58‑9; March 16, 1906, p. 61; December 14, 1909, p. 130). It was also common for the Prime Minister to take an active role in the process of amending the Standing Orders. See, for example, Journals, February 11, 1938, p. 60; September 18, 1945, p. 52. [44] Standing Order 108(3)(a)(iii). [45] See, for example, the Special Order adopted on June 8, 1989, which referred the subject matter of both radio and television broadcasting of proceedings of the House and its committees to the Committee (Journals, p. 340). See also the Eighth Report of the Standing Committee on Procedure and House Affairs, presented to the House and concurred in on October 22, 2004 (Journals, p. 136), which included Standing Order amendments. These recommendations stemmed from both the Committee’s continuing mandate and from a Special Order adopted on October 5, 2004 (Journals, p. 14). [46] See, for example, the Special Committee on Procedure (Committee established September 24, 1968 (Journals, pp. 67‑8), Fourth and Fifth Reports concurred in on December 20, 1968 (Journals, pp. 554‑79)); the Special Committee on the Reform of the House of Commons (Committee established December 5, 1984 (Journals, pp. 153‑4), amendments to Standing Orders adopted June 27, 1985 (Journals, pp. 903, 910‑19)); and the Special Committee on the Modernization and Improvement of the Procedures of the House of Commons (Committee established March 21, 2001 (Journals, pp. 208‑9)). The latter Committee’s First Report was concurred in, with certain amendments, on October 4, 2001 (Journals, pp. 691‑3). Further proposals suggested by the Committee were debated the following session (Journals, November 20, 2002, p. 210; November 21, 2002, p. 215; November 22, 2002, p. 217), and a nearly‑identical special committee was struck to continue the work that had begun in the previous session (Journals, November 28, 2002, p. 236). This committee presented four reports which were concurred in by the House (Journals, February 20, 2003, p. 439; February 27, 2003, p. 482; March 17, 2003, p. 495; September 18, 2003, p. 995). The Fifth Report, which recommended an electronic voting system for the House, was presented to the House, but not concurred in (Journals, June 12, 2003, p. 915). [47] For government‑sponsored motions, see, for example, Journals, February 7, 1994, pp. 112‑20; June 12, 1998, pp. 1027‑8; February 27, 2001, pp. 141‑2; April 4, 2006, pp. 13‑4. Of note, such motions can at times resemble the recommendations of a procedure committee. See, for example, Journals, June 27, 1985, pp. 910‑9, Debates, pp. 6325‑7. This government motion, adopted by unanimous consent, was inspired by the First Report of the Special Committee on the Reform of the House of Commons, presented to the House on December 20, 1984 (Journals, p. 211). For motions moved by the opposition, see, for example, Journals, April 9, 1997, pp. 1366‑8; November 5, 2002, pp. 162‑4. [48] See, for example, the Eighth Report of the Standing Committee on Procedure and House Affairs, presented to the House and concurred in on October 22, 2004 (Journals, p. 136). Changes to the Standing Orders have also resulted from concurrence in a report of a joint committee of the Senate and House of Commons. See Journals of the Senate, June 3, 1903, p. 156; Journals, June 1, 1903, p. 270; October 10, 1903, p. 644. Occasionally, concurrence in a committee report recommending changes to the Standing Orders has not immediately resulted in the Standing Orders being modified. For example, on November 4, 1998, a report of the Standing Committee on Procedure and House Affairs concerning rule changes to Private Members’ Business was concurred in (Journals, p. 1238). The next day, a point of order was raised concerning the implementation of those recommendations. Speaker Parent ruled that certain recommendations contained in the report would be implemented immediately since they were matters of practice or administration, but that other recommendations required substantive amendments to the Standing Orders which involved technical interpretations. He stated that when the House pronounced itself on a specific text, the Chair would be governed accordingly (Debates, November 5, 1998, p. 9923). The House adopted such a motion to amend the Standing Orders on November 30, 1998 (Journals, pp. 1327‑9). As well, motions amending the Standing Orders may specify that the amendments are to come into effect at a later date. See, for example, the provisional Standing Orders adopted on February 18, 2005, which came into effect only on March 7, 2005 (Journals, pp. 451‑5). [49] Examples include the adoption of the closure rule in 1913 (Journals, April 23, 1913, pp. 507‑9), the time allocation provisions in 1969 (Journals, July 24, 1969, pp. 1393‑1402), a series of Standing Order amendments in 1991 (Journals, April 11, 1991, pp. 2898‑932), and amendments to the Standing Orders respecting the report stage of bills in 2001 (Journals, February 27, 2001, pp. 139‑43). In the 1969, 1991 and 2001 examples, closure was imposed to bring the debate to an end and force a decision. In 1913, the previous question was moved, thus precluding amendments and limiting debate to the main motion. [50] See, for example, Journals, October 10, 1997, p. 107; March 10, 1998, p. 549; November 30, 1998, p. 1327; February 15, 2001, p. 101; February 17, 2004, p. 86; November 27, 2008, pp. 45‑7. [51] See, for example, Journals, November 29, 1982, p. 5400; October 29, 2004, pp. 170‑1; February 18, 2005, pp. 451‑5. [52] Speaking to a motion to adopt wide‑ranging provisional Standing Orders in 1982, the President of the Privy Council summed up the nature of procedural reform: “I would like to invite all Members of Parliament to make this experiment a success and not to look for anomalies or weaknesses in this proposal, since it is not perfect as we recognize ourselves and as I think our friends opposite and the members of the Committee also recognize. The rules proposed to this House have weaknesses and unclear elements, and I believe that for a destructive mind, it would be very easy although childish to prevent this experiment from being positive and successful. I therefore call on the intellectual honesty of all Members and I want to assure them of the sincerity of the Government in implementing the proposed changes so that this experiment can be a success and result in fact in permanent changes to which adjustments may be made” (Debates, November 29, 1982, pp. 21071‑2). [53] For example, provisional changes to the Standing Orders governing Private Members’ Business were adopted by the House on March 17, 2003, extended on October 29, 2003, and then further extended on March 23, 2004. Finally, on May 11, 2005, they were made permanent. See the Fiftieth Report of the Standing Committee on Procedure and House Affairs, presented to the House and concurred in on October 29, 2003 (Journals, p. 1196), the Eleventh Report of the Standing Committee on Procedure and House Affairs, presented to the House and concurred in on March 23, 2004 (Journals, p. 200), and the Thirty‑Seventh Report of the Standing Committee on Procedure and House Affairs, presented to the House and concurred in on May 11, 2005 (Journals, pp. 738-9). Wide‑ranging provisional Standing Orders adopted by the House on February 18, 2005 (Journals, pp. 451‑5) were extended on September 20, 2006 (Journals, p. 404) and made permanent with the adoption of the Seventeenth Report of the Standing Committee on Procedure and House Affairs on October 25, 2006 (Journals, pp. 577‑9). [54] As an example, from 1867 to 1876, current Standing Order 23 concerning bribery in elections was put forward at the beginning of each session as a sessional order, before finally becoming a permanent rule. See, for example, Debates, February 10, 1876, p. 3. [55] See, for example, Journals, February 2, 1994, p. 96; November 3, 2005, p. 1248. [56] Standing Order 86.1, concerning the reinstatement of private Members’ bills, originally adopted in November 1998, was essentially the same as the Special Order adopted in March 1996. It has since been substantially modified, but maintains the intent of the original Special Order. To trace the evolution of this Standing Order, see Journals, March 4, 1996, pp. 34‑5; November 30, 1998, pp. 1327‑9; March 17, 2003, p. 495; May 11, 2005, p. 739. Standing Order 1.1, concerning the participation in the proceedings of the House of Members with disabilities, also has its origins in a Special Order adopted on October 5, 2004 (Journals, p. 13). The Standing Committee on Procedure and House Affairs subsequently recommended the adoption of a nearly-identical Standing Order. See the Eighth Report of the Standing Committee on Procedure and House Affairs, presented to the House and concurred in on October 22, 2004 (Journals, p. 136). [57] Standing Order 53(1), for example, states: “In relation to any matter that the government considers to be of an urgent nature, a Minister of the Crown may, at any time when the Speaker is in the Chair, propose a motion to suspend any Standing or other Order of this House relating to the need for notice and to the hours and days of sitting”. [58] Typically, a motion seeking to circumvent the provisions of existing Standing Orders is worded thus: “That, notwithstanding any Standing Order or usual practice of the House …”. See, for example, Journals, June 22, 1994, p. 657; June 8, 1998, pp. 947‑8; February 2, 1999, p. 1457; March 30, 2004, p. 234; April 4, 2006, pp. 12‑3. [59] Standing Order 71. See, for example, Journals, November 23, 2005, p. 1318; June 5, 2006, p. 228. [60] See, for example, the Order adopted on April 6, 2006, which superseded the provisions of an order adopted the previous day (Journals, April 5, 2006, p. 23; April 6, 2006, pp. 28‑9). [61] Standing Order 56.1. See, for example, Journals, June 13, 2003, p. 935. [62] Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission), (2001) 54 O.R. (3d) 595, in particular par. 48. [63] R.S. 1985, Appendix II, No. 5, ss. 44, 48 and 49. [64] The Supreme Court has stated that the alleged failure of the House of Commons to comply with a statute is not reviewable by the courts. Justice Binnie in the Canada (House of Commons) v. Vaid decision approved of the principle in Bradlaugh v. Gossett, [1884] 12 QBD 271 which established that “the House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of the statute law which has relation to its own internal proceedings …” (par. 34). |
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