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House of Commons Procedure and Practice

Second Edition, 2009

 
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*   From 1867 to 1984

Time Reserved for Private Members’ Business

In the early years of Confederation, a large proportion of the time of the House was devoted to private bills or to private Members. In 1867, the Standing Orders gave precedence to Private Members’ Business on particular days in each week.[8] However, governments found such a distribution inadequate for the conduct of their own legislative programs, and regularly gave precedence to their own business via special and sessional orders.

Over the years, changes were made to the Standing Orders to give more House time to the government for its own business. By 1906, this pattern had established itself to such a degree that, in that year, the weekly order of business was officially amended so that after four weeks from the start of each session, one of the three private Members’ days—Thursday―was given over to government business.[9]

Between 1906 and 1955, the use of special and sessional orders to give precedence to government business had appropriated virtually all the time remaining for private Members. In 1955, amendments to the Standing Orders once again formalized the practice of giving precedence to government business: the number of private Members’ days was reduced from each Monday, Wednesday and four Thursdays per session to six Mondays and two Thursdays per session.[10] Depending on the length of each session, this change at least guaranteed that these eight days would not be further nullified by the suspension of private Members’ time through the use of special or sessional orders.

In 1962, the House abandoned the allocation of a certain number of days each session for Private Members’ Business and, instead, set aside one hour per day for that purpose. However, after this hour had been used 40 times per session, its use on Monday, Tuesday and Wednesday would lapse and Private Members’ Business would take place only on Thursday and Friday thereafter.[11] In 1968, Private Members’ Business was removed from the order of business on Wednesday, and the rule establishing a maximum of 40 considerations per session was retained for Monday and Tuesday only; thereafter, Private Members’ Business was only held on Thursday and Friday.[12]

In 1982, the practice of considering Private Members’ Business for one hour on certain days was replaced by a single private Members’ day on Wednesday. This resulted in a reduction of one hour of debating time per week, from four hours to three.[13] In late 1983, however, the House reverted to the consideration of Private Members’ Business for one hour per day on Monday, Tuesday, Thursday and Friday, without the previous provision for a maximum number of times for consideration on Monday and Tuesday.[14] The omission of this part of the former rule meant that the amount of time provided for Private Members’ Business actually increased. Further changes to the Standing Orders, adopted in April 1991, increased the number of Private Members’ Business days from four to five per week, adding an extra hour to the sitting on Wednesday.[15]

Precedence of Items

From Confederation until the late 1950s, the two criteria which determined the order in which items of Private Members’ Business were considered were their date of notice and, in the case of bills, their stage in the legislative process. During this period as well, secondary criteria, aimed primarily at distinguishing the different categories of business from one another, also became important.

In 1910, for example, an amendment to the Standing Orders[16] established a higher precedence for unopposed Notices of Motions for the Production of Papers. Meanwhile, opposed motions of this kind continued to be considered with other notices of motions until 1961, when they were given a specific category (Notices of Motions (Papers)) in the order of business and were debated on a designated day.[17]

Similarly, rule changes in 1927 limited each Member to one notice of motion on the Order Paper at any one time. Such notices would be dropped from the Order Paper if called twice and not proceeded with.[18] In addition, other rules allowed private Members’ bills or notices of motions to stand over from one day to the next.[19] These kinds of exceptions to the usual chronological, stage‑based ordering, coupled with frequent changes to the day‑by‑day order of business, eventually led to a fixed sequencing of items for each category of Private Members’ Business.[20]

Throughout this period, the volume of Private Members’ Business increased, leading to further innovations in procedure. In 1958, Speaker Michener instituted a ballot system for notices of motions.[21] One notice per Member could be submitted at the start of a session and placed in a container. In the presence of the Speaker, the Clerk of the House, and the representatives of the parties, notices of motions were drawn to establish a sequence for consideration. Notices given after the draw were placed on the Order Paper after those which had been drawn.

At the start of a subsequent session, a similar practice was extended to private Members’ public bills. There were now two draws: one for notices of motions and one for bills. In the latter case, however, each Member could give notice of several bills, there being no limit as with notices of motions. In either case, when an item had been considered but not disposed of, it fell to the bottom of the list. Notices of motions called twice and not proceeded with were dropped form the Order Paper, as before.

Members soon realized that by placing several bills on notice, their chances in the draw improved. Inevitably, this approach resulted in some Members receiving more House time than others. To ensure a more equitable distribution, the party Whips limited Members to one bill in the first 50 bills drawn. In a separate development begun in the 1970s, the business to be considered during Private Members’ Business was organized by the Office of the Government House Leader, a practice criticized by some Members as undue government interference. Eventually, the Clerk of the House became responsible for the organization of this part of House Business.[22]

The last major change prior to the adoption of the current system for precedence occurred in 1982, when all categories of Private Members’ Business (except private bills) were combined into one group, for which a single draw of Members’ names was held at the start of each session. A limitation, similar to that which had previously applied to bills, was retained for the first 50 items drawn and, at the same time, the limit of one notice of motion per Member was lifted.[23]

*   Since 1984

The modern rules relating to the conduct of Private Members’ Business developed largely from recommendations of the Special Committee on the Reform of the House of Commons (the "McGrath Committee"), established in December 1984. In its final report to the House in June 1985, the Committee made the following observations:

The House does not attach any great importance to private members’ business as it is now organized … members are seldom greatly concerned to claim the priorities they have drawn in the ballot governing the use of private members’ time, and this is largely because private members’ bills and motions rarely come to a vote.[24]

The subsequent recommendations in the report resulted in Standing Order amendments adopted provisionally after lengthy debate in the House in February 1986.[25] These amendments to the Standing Orders formed the basis for the modern rules relating to Private Members’ Business—the establishment of the Order of Precedence, the process for determining which items should be made votable, and the manner in which items would be debated. Since February 1986, a number of further adjustments have been made to the rules.

In response to problems caused by the absence of Members whose items were scheduled for debate, a Special Order was adopted in December 1986 allowing the Speaker to exchange non‑votable items should one Member notify the Chair that he or she cannot be present in the House when his or her item is due for consideration.[26]

In June 1987, the provisional Standing Orders were made permanent and other changes were adopted in regard to the order in which items of Private Members’ Business were considered.[27] The Speaker was given the power to exchange a non‑votable item of a Member who cannot be present with a similar item of a Member who can. In addition, the Order Paper was changed to contain all types of items in one list, including private bills and private Members’ public bills originating in the Senate.

In 1989, the House adopted a motion to have the Standing Committee on Elections, Privileges, Procedure and Private Members’ Business consider and report on various practices and procedures relating to the conduct of Private Members’ Business.[28] On December 6, 1989, the Committee presented its Seventh Report, which included several recommendations regarding such matters as the selection of items for the Order of Precedence, the selection of votable items, and the time limit for debate on votable items.[29] Although the report was not concurred in, it did form the basis of Standing Order amendments adopted on May 10, 1990.[30]

There were several significant changes to the Standing Orders, as recommended by the Standing Committee: Members’ names rather than individual items would be drawn, which meant that Members with one motion or bill would have the same chances as those with several motions or bills; separate lists of bills and motions were established, and the number of votable items was set at three bills and three motions; the time for debate on votable items was reduced from five hours to three; and Private Members Business was not suspended on supply days, except for the last allotted day in June if it fell on any day other than a Monday. The amendments were adopted on a provisional basis until the last sitting day in December 1990.

In December 1990, the Standing Committee on Privileges and Elections, after reviewing the success of the provisional Standing Orders that had been approved in May 1990, recommended in its Twenty-First Report that they be made permanent.[31] It went on to propose a number of other changes, including the exchange of votable items, Private Members’ Hour on Monday, and the deferral of any recorded division with respect to Private Members’ Business at the request of the Whips. Further changes to the Standing Orders governing Private Members’ Business adopted on April 11, 1991, which were largely based on the Twenty-First Report of the Committee, clarified the procedures to be followed in the draw to select items for debate, reduced the number of hours for debate on an item, increased the number of days per week on which Private Members’ Business would be considered, and refined the process to be followed for an exchange of items to be debated during Private Members’ Hour.[32]

On April 29, 1992, two reports of the Standing Committee on House Management were concurred in, thereby amending the Standing Orders to increase the number of votable items and the total number of items in the Order of Precedence, and to clarify the procedures to be followed for deferring recorded divisions on items of Private Members’ Business.[33] With the concurrence in the Twenty‑Fourth Report[34] regarding recorded divisions on private Members’ bills or motions, it became the practice for the vote of the sponsoring Member to be recorded first, and then the rest of the votes on that side of the Chamber to be recorded before proceeding to the other side. With concurrence in the Twenty‑Seventh Report, the Order of Precedence was increased from 20 to 30 items, draws were to be held before the list dropped below 15 items instead of 10, and the maximum number of votable items increased from three bills and three motions to five of each.[35]

In 1998, the reference to five bills and five motions was removed so that the reference was now only to 10 votable items, and a new procedure was established allowing for a specific item supported by 100 Members to be added to the Order of Precedence. Also, a committee to which a private Member’s public bill was referred was required to report the bill back to the House within 60 sitting days, with a possible one-time extension of 30 sitting days, and was given the option of reporting that the bill not be proceeded with further.[36]

Within a year it had become apparent that the 100-signature procedure had not functioned as originally intended.[37] Thus, in June 2000, the Standing Committee on Procedure and House Affairs presented a report recommending the abolition of this procedure for Private Members’ Business.[38] The Committee’s report, however, had not been concurred in when the Thirty-Sixth Parliament was dissolved in October 2000. Following further study of the issue at the beginning of the Thirty-Seventh Parliament, the House concurred in a report of the Committee repealing the 100-signature procedure.[39]

In June 2002, following an order of reference to improve procedures for Private Members’ Business adopted by the House in June 2001, the Standing Committee on Procedure and House Affairs proposed a major reform of Private Members’ Business, reflecting concerns and suggestions of Members.[40] The report recommended that every Member eligible to participate in Private Members’ Business should have at least one opportunity per Parliament to have an item of Private Members’ Business debated in the House of Commons. Unless procedurally inadmissible, each item in the Order of Precedence would be votable, unless the sponsor opted to make it non-votable. Eligible Members would retain the right to present as many motions and introduce as many bills as they wished. Members would have to have at least one item on the Order Paper to qualify for the draw. Draws for names would be held as required and would continue until all eligible Members wishing to participate had the opportunity to do so. Subsequent rounds would follow if time permitted.

The report contained a number of other provisions. It recommended that amendments to private Members’ motions, and to the motions for the second or third reading of private Members’ bills, be moved only with the consent of the sponsor of the item. It also contained recommendations for transitional provisions from the old system to the new. The Committee indicated that it would consider the feasibility of a procedure for “legislative proposals” prior to the end of the pilot project.

These new procedures would be adopted on a provisional basis from the fall of 2002 to the end of the Thirty-Seventh Parliament, provided that they would be subject to a review by the Standing Committee on Procedure and House Affairs after one year.

The First Session of the Thirty-Seventh Parliament was prorogued on September 16, 2002, before the report had been concurred in. At the beginning of the Second Session, the Committee resubmitted the report which was concurred in.[41] This action represented adoption of the proposed changes in principle, and it therefore became necessary to draft changes to the Standing Orders to implement them.

The Standing Committee began consideration of the draft amendments to the Standing Orders, but, in December 2002, it recommended that the House continue with the current system and the existing Standing Orders governing Private Members’ Business—especially votability—until such time as the Special Committee on the Modernization and Improvement of the Procedures of the House of Commons had completed its work and reported.[42] The Special Committee, consisting of the Deputy Speaker, the House Leaders and the Caucus Chairs of the five recognized parties in the House, had been established in November 2002.[43] The issue of reform of Private Members’ Business was, therefore, the first item of business when the Special Committee began its work in February 2003.

The Special Committee’s First Report proposed a new regime for Private Members’ Business, whereby all items in the Order of Precedence would be votable, and all private Members would have an opportunity to present an item during the life of a Parliament. A list of all eligible Members was to be established at the beginning of a new Parliament, from which an Order of Precedence of 30 items would be created from time to time. All items in the Order of Precedence would be debated for up to two hours, at the end of which they would come to a vote. All recorded divisions would be held on the next sitting Wednesday. The Subcommittee on Private Members’ Business would consider whether any of the items in the Order of Precedence should not be votable in accordance with specified, limited criteria; any decision that an item be designated not votable could be appealed to the Standing Committee on Procedure and House Affairs, or, ultimately, to the House of Commons, where a secret ballot would be held on the appeal.[44]

In March 2003, the House concurred in a report of the Special Committee which contained amendments to the Standing Orders implementing the recommendations in its First Report as well as various transitional measures. The new rules were adopted on a provisional basis, for the remainder of the Session or to March 17, 2004, whichever came first, and were to be reviewed by the Standing Committee on Procedure and House Affairs.[45]

As a result of recommendations contained in the Special Committee’s report, in March 2003 the Standing Committee on Procedure and House Affairs presented a report listing criteria for designating items of Private Members’ Business non-votable.[46]

The provisional Standing Orders were subsequently extended first to the end of June 2004 or the dissolution of the Thirty-Seventh Parliament, and then for the first 60 sitting days of the Thirty-Eighth Parliament. This was designed to allow the Standing Committee on Procedure and House Affairs to undertake a review of the new rules, and how they were operating in practice, and to recommend changes, if required.[47] During this period the Standing Committee on Procedure and House Affairs continued to examine the rules concerning Private Members’ Business.[48]

At the beginning of the First Session of the Thirty-Eighth Parliament, the Standing Committee on Procedure and House Affairs made a minor change to the composition of the Subcommittee on Private Members’ Business.[49] The provisional Standing Orders were further extended until the last sitting day of June 2005, on the basis that additional experience with the provisional Standing Orders would be desirable before decisions were made about making the new procedures permanent, or considering changes.[50]

The Standing Orders for Private Members’ Business continued in place without change for the rest of the Thirty-Eighth Parliament and into the Thirty-Ninth Parliament. In November 2006, a point of order was raised about the similarity of two items of Private Members’ Business in the Order of Precedence which led to changes in the criteria used to designate items non-votable and to further refinements to the Standing Orders.[51]

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[8] Only Tuesday and Friday were reserved for government business. See Rules, Orders and Forms of Proceedings of the House of Commons, 1868, Rule No. 19.

[9] Debates, July 9, 1906, cols. 7475‑7.

[10] Journals, July 12, 1955, pp. 889, 893, 945.

[11] Journals, April 10, 1962, pp. 338‑9; April 12, 1962, p. 350.

[12] Journals, December 6, 1968, pp. 429, 436‑7; December 20, 1968, pp. 554, 563‑5.

[13] The Third Report of the Special Committee on Standing Orders and Procedure, which recommended these changes, was presented to the House on November 5, 1982 (Journals, p. 5328), and the motion putting into effect the changes was adopted on November 29, 1982 (Journals, p. 5400).

[14] The First Report of the Special Committee on Standing Orders, which recommended these changes, was presented to the House on December 15, 1983 (Journals, p. 47), and the motion putting into effect the changes was adopted on December 19, 1983 (Journals, pp. 55‑6).

[15] Journals, April 11, 1991, pp. 2905‑6, 2908.

[16] Journals, April 29, 1910, pp. 535‑7.

[17] Journals, September 26, 1961, pp. 950, 953; September 27, 1961, p. 957.

[18] Journals, March 22, 1927, pp. 340‑1.

[19] See, for example, Standing Orders of the House of Commons, Canada, 1927, Standing Order 27.

[20] See, for example, the day‑by‑day order of business for 1955 and 1962.

[21] Such a procedure was initially proposed in 1925 (Journals, May 29, 1925, p. 359).

[22] Debates, November 28, 1979, p. 1794.

[23] The Third Report of the Special Committee on Standing Orders and Procedure, which recommended these changes, was presented to the House on November 5, 1982 (Journals, p. 5328), and the motion putting into effect the changes was adopted on November 29, 1982 (Journals, p. 5400).

[24] Third Report of the Special Committee on the Reform of the House of Commons, p. 40, presented to the House on June 18, 1985 (Journals, p. 839).

[25] Journals, February 6, 1986, pp. 1648‑52; February 13, 1986, p. 1710.

[26] Journals, December 18, 1986, p. 351.

[27] Journals, June 3, 1987, pp. 1020‑2.

[28] Journals, October 26, 1989, p. 752.

[29] Journals, December 6, 1989, pp. 927‑34.

[30] Journals, May 10, 1990, pp. 1685‑7.

[31] Journals, December 6, 1990, pp. 2385‑8.

[32] Journals, April 11, 1991, pp. 2919‑22.

[33] Journals, April 29, 1992, pp. 1337‑8.

[34] Standing Committee on House Management, Minutes of Proceedings and Evidence, February 11 and 13, 1992, Issue No. 24, p. 17.

[35] Standing Committee on House Management, Minutes of Proceedings and Evidence, March 12, 1992, Issue No. 26, p. 3.

[36] Journals, November 30, 1998, pp. 1327‑9.

[37] See the question of privilege raised by David Chatters (Athabasca) on February 7, 2000 (Debates, pp. 3155‑6) concerning Bill C‑206, An Act to amend the Access to Information Act, introduced in the House by John Bryden (Wentworth–Burlington) on October 14, 1999 (Journals, p. 19); the Speaker’s ruling given on February 8, 2000 (Debates, pp. 3211‑2); the Nineteenth Report of the Standing Committee on Procedure and House Affairs, presented to the House on March 17, 2000 (Journals, p. 1406); and Speaker Parent’s final ruling given on March 21, 2000 (Debates, pp. 4913‑4).

[38] Thirty‑Sixth Report of the Standing Committee on Procedure and House Affairs, presented to the House on June 12, 2000 (Journals, p. 1844).

[39] Twenty‑Second Report of the Standing Committee on Procedure and House Affairs, presented to the House on May 31, 2001 (Journals, p. 458) and concurred in on June 13, 2001 (Journals, p. 576).

[40] Journals, June 12, 2001, pp. 536‑7; Sixty‑Sixth Report of the Standing Committee on Procedure and House Affairs, presented to the House on June 12, 2002 (Journals, p. 1571).

[41] Fourth Report of the Standing Committee on Procedure and House Affairs, presented to the House on October 30, 2002 (Journals, p. 138) and concurred in on November 6, 2002 (Journals, p. 170).

[42] Fourteenth Report of the Standing Committee on Procedure and House Affairs, presented to the House on December 11, 2002 (Journals, p. 298). This report led to a question of privilege raised by John Reynolds (West Vancouver–Sunshine Coast) on the same day, charging the Standing Committee with contempt for ignoring an Order of the House to prepare new Standing Orders and instead reporting that the matter be referred to the Special Committee on the Modernization and Improvement of the Procedures of the House of Commons (Debates, pp. 2561-4). On December 12, 2002, Speaker Milliken ruled that this was not a procedural issue, noting that the Committee had presented a report recommending an alternate course of action to that which the House selected in concurring in its Fourth Report (Debates, pp. 2636-7).

[43] Journals, November 28, 2002, p. 236.

[44] First Report of the Special Committee on the Modernization and Improvement of the Procedures of the House of Commons, presented to the House and concurred in on February 20, 2003 (Journals, p. 439).

[45] Third Report of the Special Committee on the Modernization and Improvement of the Procedures of the House of Commons, presented to the House on February 28, 2003 (Journals, p. 492) and, pursuant to the Order adopted by the House on February 28, 2003 (Journals, p. 492), deemed concurred in on March 17, 2003 (Journals, p. 495). Among the amendments to the Standing Orders was the suspension of the provisions of Standing Order 68, allowing private Members to propose motions to order a committee to bring in a bill. These provisions were permanently deleted in May 2005.

[46] The criteria were as follows: bills and motions must not concern questions that are outside federal jurisdiction; bills and motions must not clearly violate the Constitution Acts, 1867 to 1982, including the Canadian Charter of Rights and Freedoms; bills and motions must not concern questions that are substantially the same as ones already voted on by the House of Commons in the current session of Parliament; and bills and motions must not concern questions that are currently on the Order Paper or Notice Paper as items of government business. Twenty‑Fourth Report of the Standing Committee on Procedure and House Affairs, presented to the House on March 26, 2003 (Journals, pp. 569‑70).

[47] 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). 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).

[48] On February 16, 2004, the Committee presented its Third Report modifying provisional Standing Order 92(4)(a) concerning the appeal process for items designated non‑votable, which was concurred in (Journals, p. 81). As noted above, on March 23, 2004, the Committee presented its Eleventh Report recommending the provisional Standing Orders remain in effect during the first 60 sitting days of the Thirty‑Eighth Parliament, which was concurred in (Journals, p. 200).

[49] Standing Order 91.1(1). Under the revised rule, the Subcommittee consisted of one Member from each of the parties recognized in the House and a Chair from the government party. See the Sixth Report of the Standing Committee on Procedure and House Affairs, presented to the House and concurred in on October 20, 2004 (Journals, pp. 122, 124).

[50] Twelfth Report of the Standing Committee on Procedure and House Affairs, presented to the House and concurred in on October 29, 2004 (Journals, pp. 170‑1). The Subcommittee on Private Members’ Business was also charged with reviewing the provisional Standing Orders and, following its review, concluded that they should be made permanent effective June 30, 2005. This would allow for certainty, and avoid the need to continue reviewing and extending the provisional Standing Orders, with the consequent risk that they might expire and the House would have to revert to the original rules which could lead to confusion. The Standing Committee agreed with the Subcommittee’s recommendation and reported this to the House, which concurred in the report the same day. As part of its review, the Subcommittee sent a survey to all Members (to which it received responses from 103 Members), and convened a round‑table meeting of Members to discuss the provisional Standing Orders and proposals for change. Of the respondents to the survey, 48 percent thought that the provisional Standing Orders should be made permanent, while 27 percent thought that they should be continued on a provisional basis. The Subcommittee concluded that the vast majority of Members were in favour of the new regime, and, given that there appeared to be a significant degree of satisfaction with the provisional Standing Orders, and no major problems had been identified, they would recommend the permanent adoption of the rules. See 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).

[51] The point of order was raised by Derek Lee (Scarborough–Rouge River) on November 1, 2006 (Debates, pp. 4544‑5) and the Speaker’s ruling was given on November 7, 2006 (Debates, pp. 4785‑6). In his ruling on the point of order, Speaker Milliken found that the two items were substantially the same and invited the Standing Committee on Procedure and House Affairs to consider the practices of the House in such situations. The Committee did take up the matter and on November 27, 2006, presented its Twenty‑Third Report which recommended that the item of Catherine Bell (Vancouver Island North) either be debated as a non‑votable item, or that the Member be permitted to substitute another item of Private Members’ Business within 20 sitting days. The Report was concurred in the same day (Journals, p. 810). For further information, see “Similar Items” under the section in this chapter entitled “Private Members’ Bills”. The Standing Committee also referred the matter to the Subcommittee on Private Members’ Business which undertook a review and recommended only minimal changes. To prevent a recurrence of the situation which led to the Speaker’s ruling, the Subcommittee recommended that one of the criteria used to determine if an item should be non-votable be amended so that an item similar to another preceding it in the Order of Precedence be designated non-votable. To provide further clarity, it was also recommended that a note be added to the criteria stating that private Members’ bills should be assessed against other private Members’ bills, and motions against other motions. In addition, the Subcommittee recommended an amendment to the Standing Orders to provide the sponsor of an item designated non-votable with the option of substituting another item. Again, the Committee accepted the Subcommittee’s recommendations, which made up its Forty‑Ninth Report, presented to the House and concurred in on May 9, 2007 (Journals, pp. 1377‑8).

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