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]
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]
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]
[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.
[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).
[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.
[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).
[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).