The Daily Program / Routine Proceedings

Questions on the Order Paper: request to transfer certain written questions to notices of motion for the production of papers

June 14, 1989

Debates, pp. 3023-6

On May 29, 1989, Albert Cooper (Parliamentary Secretary to the Leader of the Government in the House of Commons) asked the Speaker to look at a number of questions on the Order Paper to see whether they could stand as notices of motion for the production of papers pursuant to Standing Order 39(6). Noting that such a request had not been made in a good many years, that other members might wish to speak to this issue and that the Chair would like a little more time to consider this procedure, the Speaker indicated that he would reserve his decision until later.^[1] The following day, Mr. Cooper and other members presented arguments.^[2] The Speaker considered the matter and made his ruling on June 14, 1989. It is reproduced in extenso below.

Decision of the Chair

The Speaker: The Chair is now prepared to rule on the point raised on May 29 and May 30, 1989 concerning the uses of Standing Order 39(6) and questions on the Order Paper.

Before summarizing the situation, I would like to say a word of appreciation for the contribution that members made to this somewhat complicated question. I should remark that it is really a complicated question and this ruling will take a little time.

It would be appropriate at this point to outline succinctly the procedure on written questions. It provides that members seeking from the ministry information relating to public affairs may place on the Order Paper after due notice of 48 hours up to four written questions at any one time. There are several restrictions covering the form and content of such questions. For example, argumentative material or unnecessary facts are not allowed, nor is the offering of opinions on a question. Also, no debate is permitted when a question is put on the Order Paper or when it is answered by the government. The Clerk of the House has the responsibility to ensure that coherent and concise questions are placed on the Notice Paper as stated in Standing Order 39(2).

Finally, a member may require that up to three of the four questions be given an oral answer in the House and may also request that the ministry respond to the question within 45 days.

In due course, the minister to whom a written question is addressed will answer it, usually through the parliamentary secretary to the government House leader. The answer can be given orally in the House, if an oral answer has been requested, or by handing a written document to the Clerk during Routine Proceedings. Whether the answer is given orally or in writing, the full text will be printed in the Debates of the same day. However, on occasion, because of the length of an answer, a request is made by the government to have the question made an order for return and the answer is then tabled in the House and filed as a sessional paper which is available, on request, to all members.

Let me now summarize the procedural difficulty which I was asked to examine on May 29 and May 30. Briefly, Standing Order 39(6) states that at the request of the government the Speaker examines a particular question or questions and, if it appears that a question “is of such a nature as to require a lengthy reply, the Speaker—may direct the same to stand as a notice of motion—upon the Order Paper,” with such changes in form as are required for this transformation.

On May 29, the parliamentary secretary to the government House leader asked the Chair to deal with seven Order Paper questions in relation to Standing Order 39(6), namely, Questions Nos. 45, 52, 53, 62, 64, 83 and 88.

I advised the House at the time that the Chair would wish to consider the matter with great care and invited interested members to make comments at a later date.

The next day, a number of members came forward to assist the Chair in analysing the question. As I have said, these remarks were very helpful.

The parliamentary secretary to the government House leader stated what I believe all members can agree with: that the process of placing questions on the Order Paper is important and fundamental, both to the House and to individual members on all sides, and that it is a process well worth examining. He then went on to point out that some questions asked are so complicated, require the gathering of so much new information that they are impossible to answer within a 45-day limit and in some cases difficult to answer at all. He said, and I quote his words from page 2338 of Hansard of May 30, 1989:

There is no longer a concern about how impossible it may be to answer.

I think we would also have to agree that this is sometimes the case. The chief government whip as reported at page 2340 of Hansard commented that “the form in which some come forward to government put a kind of straitjacket on us”. He also reminded the House that, as I have remarked on many occasions before, the Chair must interpret the Standing Orders as they exist. If some aspect of the rules are unsatisfactory to the House, it is the House that must provide the remedy. The chief government whip’s reference to the number of unanswerable questions in the last Parliament points out a particular problem, and I was very interested in his suggestion, minor alterations in form might have made it possible to answer many of those questions fairly quickly.

The honourable member for Ottawa—Vanier argued ably for a continuation of current practice in regard to these questions: that is the transformation of questions requiring long answers into orders for returns—the latter to be tabled immediately, or at some later time. He stressed the role of the Chair as the protector of all members’ rights: a role that the Chair must certainly always bear in mind.

The honourable member for Kamloops indicated the possibility that the practices of the House may have changed so greatly in the last 60 years that to invoke a rule which has fallen into disuse as it stands may be to risk moving counter to the spirit in which it was originally adopted. Both he and the honourable member for Hamilton East put the matter in the context of the recent parliamentary reforms which have done so much to revitalize the House.

The honourable member for Okanagan—Similkameen—Merritt pointed out that there is very little explicit indication in the Standing Orders of what length or degree of complication a question should have. The honourable member for Mackenzie was able to assist us with his experience on the McGrath committee where such guidelines had been discussed.

He went on to make several other points that the members of the House ought to be left to decide for themselves whether or not to give notice of a motion similar to their question; that the framer of a question is a participant in the process and should expect the quality of the question to have a strong effect on the framing of the answer; and that most members would consider a response declining to answer the question, for a stated reason, to be legitimate.

Finally, the honourable member for Kingston and the Islands pointed out that a private member’s notice of motion had a far better chance of coming before the House formerly than it has now. He suggested that either the proposal of the parliamentary secretary or the Standing Order itself might profitably be referred to the Procedure Committee for study and review.

The Chair has now had time to consider the matter at length. The use of Standing Order 39(6) appears simple enough at the outset; but as we have seen, upon examination it grows more complex and elusive.

The dilemma is this: we must find a balance between the urgent requirements of members who need information in order to function and the equal imperative of a rational and fair use of the limited resources available to provide answers.

In an attempt to find this balance, the honourable parliamentary secretary asked the Chair several days ago to act under the provision of Standing Order 39(6), which permits—and I wish to emphasize the word “permits”—the Speaker to transform into a notice of motion any question which is brought to his attention by the government and which he considers would require a “lengthy” reply.

I must emphasize, at the outset, that the parliamentary secretary’s request is indeed quite legitimate and well within the bounds of our Standing Orders. As a matter of fact, this practice, if implemented in today’s House, would certainly go some distance to solving the problem we have outlined. The pressure of the 45-day limit in which to provide “lengthy” answers would be relieved. Since not all of these motions would be agreed to, or even considered, the work-hours available might be more fairly and more widely distributed among members’ questions requiring shorter answers. As for those converted to motions, as the chief government whip has pointed out, the decision whether these more “expensive” answers should be provided would then be made by the House.

Unfortunately, it appears that this proposed solution may carry with it a new set of problems. It has been suggested that the use of this Standing Order might result in unreasonable limits in the freedom of members to ask questions; it is even speculated that privilege might be involved. It has also been suggested that the Standing Order has survived so long unchanged because it has remained unused for the past 60 years; that its use in today’s context may not be what was intended; and that it no longer fits the conditions of the present House of Commons, and certainly not those brought about by the McGrath reforms.

I share the view expressed by several members that the direct consequence of transforming a written question into a notice of motion, to be eventually considered under Private Members’ Business when transferred for debate, will be to diminish considerably the chances of the item ever being put before the House again. But it is interesting to see that such a difficulty had also been envisaged back in 1906 when Standing Order 39(6) was first adopted by the House. May I quote from the House of Commons Debates on July 10, 1906 at page 7602:

Mr. Sproule: Then after a certain stage in the session notices of motion cannot be reached and in the case of a long question, if the government do not want to give the information all they have to do is [to] say: You must move for it. There may be no opportunity to move and therefore the opposition are prevented from getting the information.

Certainly, I can tell the House that a request to invoke Standing Order 39(6) would undoubtedly always put the Speaker in a difficult position. It would require the Chair to make a series of decisions on non-procedural matters for which there is no information available and which only the government, with its expert staff, is able to judge accurately: the probable length of answers which have not yet been produced. It is also true that no objective definition of “lengthy” has been provided; and in any case, it would be rash to suppose that the difficulty of answering a question must vary according to its length, or that the value of an answer is in any way proportionate to its length.

In addition, not all questions rejected as unanswerable can reasonably be converted into motions requesting the tabling of documents. Unless the question itself inquires specifically about a document, converting it into a notice of motion for the production of papers might well make it even harder to answer satisfactorily.

Another concept with which the Chair has some difficulty is that of placing on the Order Paper, in the name of a member of this House, a notice of motion which that member has not signed or indicated any interest in presenting. As the honourable member for Mackenzie pointed out, if a member has a question refused and wishes to present a notice of motion on the same subject, he or she is perfectly able to do so.

I have examined very carefully the request of the parliamentary secretary to the government House leader and find that I am unable for several reasons to comply with the terms of the Standing Order in today’s context without prejudicing the right of private members to control fully their business by choosing for themselves how best to seek information: by placing questions on the Order Paper, perhaps requesting an answer from the government within a 45-day period; or by having a notice of motion, if successful in the draw, debated during Private Member’s Business.

The House will understand that two new elements which were recently incorporated in the Standing Orders on written questions have practically eliminated the kind of abuses on House time that existed in 1906. I am referring specifically to Standing Order 39(4) limiting the number of questions on the Order Paper to four per member at any one time and to Standing Order 39(5) allowing a member to request that the ministry respond to a question within 45 days.

The Chair is extremely concerned that allowing the government’s request to transform a question into a notice of motion would appear as a step backwards in the evolution of the procedure governing written questions and would go against the expectation of the McGrath reform to have a more efficient method of dealing with questions.

As indicated by several honourable members, there is a long-standing practice which allows the government to ask the House, in those instances when there is to be a lengthy reply, that the question be made an order for return. Such a return is then either tabled forthwith, if the reply is ready, or tabled at a later date on completion of the reply.

There is also a procedurally quite acceptable practice—and indeed many honourable members have suggested that it is quite legitimate for the government to do so—simply to respond by saying that the question cannot be answered because of the time and the human or financial resources involved. May I refer honourable members to Questions Nos. 8, 11, 12, 13 and 14 already answered in such a way by the government during the current session.

The government may continue the practice of simply declining, with an explanation, to answer questions which it finds are too burdensome. An explanation could also be given, during Routine Proceedings, that certain questions could not be answered within the requested time and perhaps reasons for that could be given. It should be understood that there is no obligation on the government to provide a perfect answer, only a fair one. A member in framing his or her question would accept part of the responsibility for the quality of the answer.

It is possible that the problems we now face arise partly as a result of recent reforms. The McGrath committee foresaw some of the difficulties and commented, on page 46 of its report: “To avoid the possibility that members would try to get around the four-question rule by asking questions containing numerous subquestions, all written questions should be directed to the Clerk for close and careful scrutiny as to form and content.”^[3]

In that regard, the Clerk of the House must apply more rigorously the provisions of Standing Order 39(2) and, as stated in recommendation 7.10 of the report from the McGrath committee:

.…reject outright or to split into separate and distinct questions those questions that contain unrelated sub-questions.

No doubt there are many other solutions which could also be explored. It appears to the Chair that the subject is worthy of consideration at some greater length than we have been able to devote to it here. In fact, the Chair would welcome the guidance of the Standing Committee on Elections, Privileges, Procedure and Private Members’ Business in this matter. The committee can do that within its mandate, or if the House is so inclined, a specific order of reference could be given to the committee, as the honourable member for Kingston and the Islands has suggested. In any case, as Speaker, I strongly suggest to the members of that committee that their recommendations on this question would be extremely useful to the Chair. Perhaps we may hope for some guidance from the committee on this issue.

In the meantime, however, I must regretfully state that the Chair cannot agree to the request of the honourable parliamentary secretary.

I want to say in addition that the Chair is extremely cognizant of the fact that this is not a one-sided issue. If honourable members will read carefully the decision which I have just rendered, I think it will be made clear that I am concerned as Speaker that both sides of the House are treated fairly in what is clearly becoming a problem. I would hope that the House, as I have suggested, would move to find a solution. I thank honourable members.

No official measures were taken by the Standing Committee on Elections, Privileges, Procedure and Private Members’ Business as a result of the suggestions made by the Speaker.

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1989-06-14