44th Parl. 1st Sess.
April 29, 2024 11:00AM
- Apr/29/24 11:26:14 a.m.
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moved:
That:
(a) in the opinion of the House,
(i) the ability to propose amendments to the Standing Orders is essential to adapt and improve parliamentary procedures and to the rights of members,
(ii) it is crucial to maintain open and transparent debate on proposed changes to the Standing Orders, free from undue procedural restrictions by the government or a subset of members,
(iii) all Members of the House, not the government nor a subset of members, should be the final authority as to how long proposed changes to the Standing Orders should be considered;
(b) it be an instruction to the Standing Committee on Procedure and House Affairs to undertake a study on the advisability of amending the Standing Orders as follows:
(i) by adding, after Standing Order 56.1(1)(b), the following new Standing Order:
“56.1(1)(c) For greater certainty, this Standing Order does not apply to proceedings that propose amendments to the Standing Orders.”,
(ii) by adding, after Standing Order 57, the following new standing order:
“57(2) This Standing Order does not apply to proceedings that propose amendments to the Standing Orders. For greater certainty, the question cannot be put on a motion pursuant to Standing Order 57 that would apply to proceedings that propose amendments to the Standing Orders.”,
(iii) by adding, after Standing Order 61, the following new standing order:
“61(3) This Standing Order does not apply to proceedings that propose amendments to the Standing Orders. For greater certainty, the question cannot be put on a motion pursuant to Standing Order 61 that would apply to proceedings that propose amendments to the Standing Orders.”,
(iv) by adding, after Standing Order 66(2)(c), the following new section:
“66(2)(d) Notwithstanding any other standing order, a motion for the concurrence in a report from a standing or special committee wherein the report proposes amendments to the Standing Orders shall:
(i) in the first instance, be considered until no member wishes to speak, upon which the Speaker shall put all questions necessary to dispose of the motion without further debate or amendment, or until debate is adjourned or interrupted, or for three hours, whichever is earlier, upon which time debate on the motion shall be resumed at the ordinary hour of daily adjournment on the day designated pursuant to paragraph (a) of this section, and
(ii) in the second and any subsequent instances, be considered until no member wishes to speak, upon which the Speaker shall put all questions necessary to dispose of the motion without further debate or amendment, or until debate is adjourned or interrupted, or for an additional three hours, whichever is earlier, upon which time debate on the motion shall again be resumed at the ordinary hour of daily adjournment on the day subsequently designated pursuant to paragraph (a) of this section.”,
(v) by adding, after Standing Order 81(13), the following new section:
“81(13)(b) If the motion proposes amendments to the Standing Orders, a question on the referral of the matter to the Standing Committee on Procedure and House Affairs is deemed put at the end of the debate and, if resolved in the affirmative, it shall become an order of reference to the committee to consider the motion and to report observations and recommendations on the motion back to the House not later than 75 sitting days after the referral”;
(vi) in Standing Order 93(1)(a), by adding, at the end, the following: “If the motion proposes amendments to the Standing Orders, a question on the referral of the matter to the Standing Committee on Procedure and House Affairs is deemed put at the end of the debate and, if resolved in the affirmative, it shall become an order of reference to the committee to consider the motion and to report observations and recommendations on the motion back to the House not later than 75 sitting days after the referral”; and
(c) the committee report its findings to the House no later than 75 sitting days following the adoption of this motion.
He said: The purpose of Motion No. 109 is to ensure that no future government would be able to amend the Standing Orders without the consent of all recognized parties. In the time allocated to me, I will attempt to lay out the case for this motion in three parts.
First, I will explain the mechanics of how Motion No. 109 would eliminate the power to make non-consensual changes to the Standing Orders.
Second, I will explain, in a few words, the danger that exists whenever a majority government has the ability to unilaterally change the Standing Orders, as it currently does. This demonstration will consist of a brief history of unilateral changes to our Standing Orders, in the course of which I will quote some of the warnings given by MPs of all parties during past debates in which closure was used to ram through non-consensual changes to the rules.
Third, I will explain how I propose to ensure that the suggested amendments contained in Motion No. 109 are not themselves forced upon the House in a peremptory vote following the two hours of debate that is typical for a private member's motion. This is, after all, a technically complex issue worthy of discussion, review and perhaps expert testimony at a parliamentary committee.
Now, let us start with the first of these three topics.
Motion No. 109 contains a proposal to amend the Standing Orders in several places, modifying existing provisions that permit the government to unilaterally terminate debate and force a vote. The goal is to create a situation in which it will no longer be possible to apply these debate-limiting clauses to any vote to amend the Standing Orders, but not to limit the existing provisions for closure and time allocation in any other way.
Specifically, Motion No. 109 places limiting clauses immediately after the following existing Standing Orders: Standing Order 56.1(1)(b), Standing Order 57, Standing Order 61 and Standing Order 66(2)(c). The practical result is that if Motion No. 109 is adopted, it will never again be possible for a government to bring to a conclusion the debate on a proposed amendment to the Standing Orders unless there is all-party consent for the debate to end and for a vote to be taken. In the absence of consent on any future change to the Standing Orders, debate would simply continue indefinitely. Knowing this to be the case, future governments would find it necessary to obtain such consent: in other words, to build a consensus.
To be clear, Motion No. 109 does not create a situation in which unanimous consent would be required for future changes to the Standing Orders. As a practical matter, the mechanism of delay that I propose is only available to organized groups of a certain size. A group of MPs with a dozen members, which under our rules is the minimum size to achieve party status, is big enough to deny consent, but an individual MP does not have the stamina needed to hold up debate on a motion that has the support of all of his or her colleagues. Numerous examples exist to prove this point.
The description I have just given, as to how Motion No. 109 would achieve its goal, is as antiseptic and as neutral as I can make it, but of course I am an enthusiastic advocate for that goal. Therefore, let me now, in the second part of this three-part discussion, lay out the case for stripping the government of its power to unilaterally change the Standing Orders.
I have to start by emphasizing the enormous importance of the Standing Orders. The Standing Orders are the de facto constitution of the House of Commons. They are the rules of the game, so to speak. Our Standing Orders descend from those of the House of Commons in Westminster, which were already centuries old when they were imported to Canada in 1791, with the first sittings of the legislative assemblies of Upper and Lower Canada. When new constitutions were adopted in 1841 and 1867, the pre-existing Standing Orders were re-adopted, with suitable amendments. For example, when the brand new House of Commons met for the very first time, on November 6, 1867, its first order of business was to adopt what were styled the “Rules, Orders, and Forms of Proceeding of the Legislative Assembly of [the former province of] Canada”.
The Standing Orders have continued evolving since 1867, and, as would be expected of a set of rules that have been steadily adjusted and improved for such a vast span of time by so many participants, they are, in many respects, the best rules of order in the world.
During the long history, on Canadian soil, of our Standing Orders, a convention has developed that governments ought not to amend the Standing Orders without all-party consent. Most governments, most of the time, have respected this convention. Regrettably, however, this convention has never quite jelled, unlike, for example, the confidence convention.
On several occasions over the course of the past century or so, governments have changed the rules unilaterally. They have placed time limits on debate in order to force a vote in which the government's majority ensures that the desired change will occur, despite the absence of a consensus.
The first occasion on which limits on debate were used in order to force through non-consensual amendments to the Standing Orders was in 1913. Closure has since been used to do the same thing in 1969, in 1991 and several times under the current government. It is worth noting that there is a pattern to such votes. Closure has consistently been used when the goal is to enact changes to the Standing Orders that would give new tools to the government to more effectively limit the amount of debate that takes place in the House of Commons.
When this happens, open debate is constrained in the short run in the service of giving the government greater powers to constrain debate in the long run. It goes without saying that such changes restrict the ability of the House of Commons to perform its constitutional role of limiting the power of the executive. I would note that this is a power our predecessors had to fight for and, in some cases, to die for, both in England in the 1600s and on these shores in the rebellions of 1837.
As noted a moment ago, the first time that restrictions on debate were applied to a vote on the Standing Orders was in 1913. A previously unused standing order that had existed since 1867 was employed to curtail the debate on the vote that had introduced a new standing order, Standing Order 57. Ever since, this particular standing order has made it possible for the government of the day to impose drastic time limits on the debate on any motion.
Standing Order 57 is what we MPs most frequently refer to when we speak of closure. The section 57 closure rule was used in 1969 to force a vote on the adoption of Standing Order 78, which permits the government to apply a new version of closure in debates on legislation; this form of closure is known as time allocation. In 1991, closure was used once more to impose Standing Order 56.1, which permits the government to apply yet another new version of closure, this time to motions regarding routine proceedings. Under the current Prime Minister, closure has been used repeatedly to force the House to adopt non-consensus amendments to the Standing Orders.
Specifically, closure has been used to curtail debate and to force votes on the following four occasions: May 26, 2020; November 25, 2021; June 23, 2022; and June 15, 2023. Aside from the comments I made a moment ago about the martyrs of parliamentary democracy from the 17th and 19th centuries, I do not propose today to deal with whether closure and time allocation are good or bad things or whether closure or time allocation are used judiciously or too much; I specifically want to avoid participating in comparisons of the records of the current government and the last one regarding the use of closure.
Other figures more prominent than I have already weighed in on these matters: In 1932, Mackenzie King described closure as the “most coercive and arbitrary” measure a government could enforce. In 1962, John Diefenbaker put the abolition of closure into the throne speech, only to have his government fall before it could be voted on.
I can only observe that Motion No. 109 would not reduce, eliminate or otherwise affect closure and time allocation in any way other than to prohibit their application to debates on changing the Standing Orders themselves. However, I do propose to suggest that it is very unwise to allow a situation to persist under which the Standing Orders, the rules by which all business is conducted in this place, are subject to amendment without the consent of all parties. It is simply wrong that debate on such amendments can be curtailed by a closure motion, by reference to the previous question or by any other means.
We can imagine how unfair any sport would be if, in mid-game, one side had the ability to change the rules to its own advantage for the duration of the game. It does not matter which sport, whether hockey, soccer, baseball or tennis. We can think of how meaningless our constitutional division of power with the provinces would be if the federal government could unilaterally amend the Constitution. There is, in short, a good reason for the protection of organic or constitutional laws by means of rules requiring more than mere majority consent, such as the federal Constitution's requirement that most amendments be approved only if agreed to by Parliament and by seven provincial legislatures.
It is time to extend similar protections to the rules governing the House of Commons, and that is what Motion No. 109 seeks to do.
However, members should not take my word for it; they can consider instead what the leaders of the two largest opposition parties said in 1969 when, without the support of a single opposition MP, the government gave itself the ability to curtail debate on any bill and then curtailed debate on the new standing order giving it this power. Robert Stanfield, who was then leader of the opposition, warned:
The use of closure to force through rule changes [that] are opposed by every member of the opposition [would establish] the precedent that the majority in this house can change the rules so as to permit, if it chooses, only the most nominal consideration of legislation by this house. Backed by closure the majority could put through changes in the rules that would eliminate all stages of discussion except one.
Tommy Douglas, who was then the leader of the New Democratic Party, expressed his alarm as follows:
If a majority can at any time use its weight of numbers in the House of Commons to change the rules, how long will the rights of the minority in Parliament continue to exist? If the government unilaterally can change the rules, as it is seeking to do now, what can it do next session and the session after that?
Well, although the changes that Stanfield and Douglas feared were not implemented in the next session, nor in the session after that, the unilateral changes that were imposed in 1991 and then by the current government showed that their words were prophetic.
I will now read a few observations made during the truncated debate on the most recent set of non-consensual changes from 2023. All the following comments were made by hon. members who still sit in this place.
The member for Hamilton Centre, who is a New Democrat, asked:
If this [set of amendments to the Standing Orders] was such a priority, why was it not introduced a bit earlier, which perhaps would have provided for a fullness of discussion and debate and might not have forced us into closure and would have allowed for all of these nuances and democratic principles to be fully fleshed out?
The member for Kitchener Centre, who sits for the Greens, stated:
there is not even a chance to propose amendments. It is already a take-it-or-leave-it approach, and on top of that, we are now being limited in our debate.... I can speak for myself in saying that I am still researching, reading and listening to inform my own vote on this measure.
The member for Montcalm, who sits for the Bloc Québécois, described the proposed changes to the Standing Orders as “despicable”; he added, “Doing it with a closure motion is even more despicable.” He went on to state that the Government House Leader “should have consulted us instead of unilaterally doing what he is doing today. I would like him to have this done to him when he is on the other side of the House after the next election just to see how he likes it.”
Of course, Mr. Speaker, the goal of Motion No. 109 is to guarantee that, whichever party forms government following the next election, unilateral changes to the Standing Orders will never take place again and no MP will ever again have to express this kind of frustration.
I will now turn to the third of the three topics of this talk and take a few minutes to describe how Motion No. 109 ensures that the amendments to the Standing Orders written into the text of the motion are not themselves the subject of only two hours of debate in this place, followed by a peremptory vote.
Motion No. 109 is divided into three parts. The first section is a preamble, explaining the rationale of the motion. The second part provides the text that I am proposing to add to the Standing Orders and states that “it be an instruction to the Standing Committee on Procedure and House Affairs to undertake a study on the advisability of amending the Standing Orders”. The third section instructs the committee to report its findings to the House no later than 75 days following the adoption of this motion. At that time, the House would have the opportunity to vote on the committee's report.
Regrettably, as the Standing Orders now exist, they do not permit the same rules to be applied to the vote on Motion No. 109 as Motion No. 109 would cause to be applied from that point onward. There is, therefore, a certain inadvertent irony. It is not impossible that, in the vote on Motion No. 109, party discipline will be applied by one or more of the parties and that the motion could pass with one party voting unanimously against it.
I have no antidote for this except to encourage all parties to adopt the approach that was used in 2015 when a motion that I had proposed to amend the Standing Orders to allow for the election of the Speaker by preferential ballot was referred to the committee on procedure and House affairs and then was reported by that committee to the House. In the vote that followed, the whips of all parties allowed their MPs to vote freely, and every single caucus in the House split, with some voting in favour and others against but, of course, the majority voting in favour. This was the only truly free vote for every single MP in the House in the entire four-year life of the 41st Parliament, and I hope that it will serve as the model for the vote that may eventually take place on Motion No. 109.
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- Apr/29/24 11:41:29 a.m.
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Mr. Speaker, I actually have no comments on government legislation. As I observed in my remarks, my goal is to deal with programming motions of closure and time allocations, as they relate to motions to amend the Standing Orders, and absolutely nothing else.
There is an argument that, because of the volume of business before the House, we need to have a limited time for each debate. That is the basis on which each of the successive restrictions on the length of debates were justified in 1913, 1969 and 1991. That may or may not have legitimacy vis-à-vis legislation and other matters before the House; however, vis-à-vis discussions of the Standing Orders, I think there should be no programming motions whatsoever.
The only solution is consensus. That involves taking the time to find consensus and showing the willingness to compromise that may be necessary.
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- Apr/29/24 11:43:36 a.m.
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Mr. Speaker, I think that my hon. colleague is right. He used the word “strange”. In a way, it is strange to have a system that allows party line votes on a motion that would change that system to a consensus system. I do not have the magical power to change that. I am simply making an observation, and I hope that the spirit of consensus will prevail here.
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- Apr/29/24 11:45:27 a.m.
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Mr. Speaker, I hope so. To remember an example from 2015, I proposed changes to the Standing Orders that would affect the election of the Speaker. The decision made at the procedure and House affairs committee caused parties to alter how they handled the vote in each case. Parties were encouraged to allow their members to vote freely. Since the report from the procedure and House affairs committee was a unanimous report, all the parties took it back and decided to make that decision.
That could happen again. That is actually what I would prefer to happen, if possible, but I cannot force that to happen. I think this model is worth examining. Of course, the committee records from that time are all publicly available. They might be helpful to all of us in this circumstance.
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