Unanimous Consent

At times, the House may choose to depart from, vary or abridge the rules it has made for itself. When the House has made substantial or permanent modifications to its procedures or practices, it has usually proceeded by way of motion preceded by notice; ad hoc changes, on the other hand, are often made by obtaining the consent of all Members present in the House at the time the departure from the rules or practices is proposed. Such a suspension of the rules or usual practices is accomplished by what is termed “unanimous consent”.387 When unanimous consent is sought, the Chair takes care to ascertain that no voice is raised in opposition; if there is a single dissenting voice, there can be no unanimity.388 Whenever the House proceeds by unanimous consent, the fact is noted in the official record.389 When many rules are to be suspended or amended simultaneously, confusion is avoided by ensuring that the corresponding motion sets out in detail the manner in which the House is to proceed.390

Perhaps the most common application of unanimous consent is to dispense with the notice provisions of the Standing Orders.391 For example, unanimous consent is sought to waive the notice requirement applicable to a substantive motion392 and, once it is granted, a motion can be moved for an eventual decision by the House. Bills have been introduced without the requisite notice;393 likewise, motions authorizing committees to travel or change their membership (so-called “housekeeping” matters) have been moved without notice by unanimous consent and then decided forthwith.394 It is by no means unusual for committee reports to be presented and, by unanimous consent, concurred in on the same day.395 The deadline for filing with the Clerk of any notice prior to an adjournment period has also, on occasion, been extended by unanimous consent.396 Moreover, unanimous consent has been sought to move, without notice, a motion proposing changes to the Standing Orders; it was granted and the motion was agreed to without debate.397

For the most part, unanimous consent is used as a means either of expediting the routine business of the House or of extending the courtesies of the House. During debate, unanimous consent has been sought to extend briefly the length of speeches or the length of the questions and comments period following speeches;398 to permit the sharing of speaking time;399 to permit a Member who has already spoken once to a question to make additional comments;400 and even to alter the usual pattern of rotation of speakers.401

The arrangement of House business is also commonly achieved by unanimous consent. This may involve changes to the order of business,402 the suspension of sittings,403 alterations in adjournment hours or sitting days,404 and special orders respecting procedures for individual events.405 The established order of the daily agenda of the House, particularly with respect to the sequence in which items are taken up during Routine Proceedings, is often altered by seeking unanimous consent to revert to an item in Routine Proceedings.406 Thus, Members who may have inadvertently missed their cues under rubrics such as “Tabling of Documents”, “Presenting Reports from Committees”, “Introduction of Private Members’ Bills” and “Presenting Petitions”, routinely seek and are often granted unanimous consent to return to the appropriate rubric.

With unanimous consent, bills have been advanced through more than one stage in a single day and referred to a Committee of the Whole rather than a standing committee,407 and have even been amended by unanimous consent.408

During divisions, unanimous consent has been sought to apply the results of one vote to another vote,409 or to vote row by row,410 or to apply Members’ votes to subsequent divisions.411 By unanimous consent, recorded divisions have been deemed demanded and deemed deferred.412 A private Member may seek unanimous consent to table a document referred to in debate, which is contrary to normal practice.413

Less common uses of unanimous consent can also be identified. For example, at the beginning of the Third Session of the Thirty-Fourth Parliament (1991–93), two bills from the previous session were, by unanimous consent, reinstated on the Order Paper at the same stage where they were when Parliament was prorogued.414 Committees have been reinstated, by unanimous consent, for the sole purpose of completing projects begun in the previous session415 and the implementation of amendments to the Standing Orders have been delayed by unanimous consent.416

There are two Standing Orders which explicitly provide for the use of unanimous consent. The first states that “a Member who has made a motion may withdraw the same only by the unanimous consent of the House”.417 The substance of this rule has been in place since Confederation and reflects the principle that once moved, any motion becomes the property of the House. It also applies to amendments and subamendments.

The second rule provides that, if at any time during a sitting of the House unanimous consent is denied for the presentation of a routine motion, a Minister may request, without notice, during Routine Proceedings (under the rubric “Motions”),418 that the Speaker propose the question on the motion.419 This request can be made later in the same sitting or at a subsequent sitting of the House.420 When the request is made, the question is put forthwith on the motion without debate or amendment.421 If 25 or more Members rise to oppose the motion, it is deemed withdrawn; otherwise, it is adopted.422 The routine motions to which this process applies include motions for:

  • the observance of the proprieties of the House;
  • the maintenance of its authority;
  • the management of its business;
  • the arrangement of its proceedings;
  • the establishment of the powers of its committees;
  • the correctness of its records; and
  • the fixing of its sittings or the times of its meetings or adjournments.423

This Standing Order was the object of procedural challenges prior to its adoption in 1991424 and on the first two occasions on which it was invoked.425 Since then, it has been invoked on a number of occasions after routine motions have been refused unanimous consent.426 In 2001, an attempt was made to use it in order to predetermine the outcome of all votes following the first recorded division on the main estimates. This led to a key ruling in which the Speaker cautioned against any attempt “to use Standing Order 56.1 as a tool to bypass the decision-making functions of the House”.427 In 2007 and 2014, attempts to use the Standing Order to direct the business of a standing committee were similarly ruled out of order.428

Limitations on the Use of Unanimous Consent

Despite the variety of uses to which it has been put, it should not be assumed that unanimous consent can be utilized to circumvent any and every rule or practice of the House. Limitations do exist. For example, unanimous consent may not be used to set aside provisions of the Constitution Act or any other statutory authority. A statutory requirement supersedes any order of the House to which it applies.429 Members have sometimes remarked, during the course of debate, that the House cannot do by unanimous consent that which is illegal.430

The workings of this prohibition are seen in matters relating to the Royal Recommendation. Section 54 of the Constitution Act, 1867 stipulates that a Royal Recommendation431 must be provided for every vote, resolution, address or bill for the appropriation of public revenues. This constitutional provision is reiterated in the Standing Orders.432 The same is true of quorum in the House of Commons, which is specified in Section 48 of the same Act and reiterated in the Standing Orders.433 While the Standing Orders, being House-made rules for its own guidance, could be overcome by unanimous consent, the constitutional provisions cannot. This point has been emphasized in a number of Speakers’ rulings.434

Role of the Speaker

The mechanics of requesting and granting unanimous consent must be carefully observed. The Chair must be meticulous in presenting the request for unanimous consent to the House without delay.435 For example, a Member wishing to waive the usual notice requirement before moving a substantive motion would ask the unanimous consent of the House “to move the following motion”, which is then read in extenso.436 The Speaker then asks if the House gives its unanimous consent to allow the Member to move the motion. If a dissenting voice is heard, the Speaker concludes that there is no unanimous consent and the matter goes no further, although it is permissible to try again to obtain unanimous consent.437 If no dissent is detected, the Speaker concludes that there is unanimous consent for the moving of the motion, and then asks if it is the pleasure of the House to adopt the motion. Although, at this point the practice has been for the House to make its decision on the motion, technically, debate on the motion is still possible.438

If the will of the House is not clear, the Speaker asks again if there is unanimous consent.439 A single dissenting voice, if heard by the Chair, is sufficient to defeat a request for unanimous consent and the Speaker has reminded Members to make their intentions clear when they do not wish to give consent.440 The Chair is concerned only with determining whether or not there is unanimity; if there is dissent, it is not proper to speculate on, or to attempt to identify, its source.441

Decision Not a Precedent

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