Madam Speaker, we are looking today at the Standing Orders, which are the formal and structured rules that guide us here.
In Commonwealth countries, formal institutions are structured around three great precedent-based systems of law. The first system is the common law. The second system is our constitutional conventions, which are the unwritten rules that guide the unwritten institutions of our Constitution such as the rule of cabinet government. The third system is parliamentary practices, which guide us here, in the other place and in the provincial legislatures.
In each of these three systems there is an arbitrator who has the authority to make rulings as to which precedent ought to apply, in the event there is a dispute as to what the rules might actually be.
In the case of the common law, the arbitrator is the courts, which is to say judges who are selected based upon their wisdom and experience, as well as juries selected randomly or by lottery as a way of trying to create the best possible cross-section of reasonably minded persons.
In the case of constitutional conventions, the arbitrator or adjudicator is the Queen. Because we are across the ocean, in her absence, it would fall to the Governor General or the Lieutenant Governor, as the case may be. Final say as to what the conventions might be is decided by the voters themselves at the next election, should there be any great question as to whether or not a government has acted constitutionally in the sense of the unwritten constitution.
In the case of Parliament, the adjudicator is the Speaker.
In each of these three systems there is a series of key decisions or key rulings which focus on previous precedents and draw them together.
In the case of the courts, we refer to these as leading decisions or leading rulings that attempt to summarize these precedents and detect patterns that have a morally binding authority and that reflect the great weight of where the institution as a whole would like to go. We refer to these as leading or landmark cases.
In the case of the House of Commons, these would be key decisions of the various Speakers. Certain decisions that are cited more frequently are seen as more effectively jelling those that came before them.
In the case of our constitutional conventions, I have to confess that it is less easy to pick out these leading or key cases.
In each case, our common institutional history with the rest of the Commonwealth and with the provinces allows the precedence of other jurisdictions to be persuasive, although not necessarily binding. That is true with the common law. Our courts will refer to cases decided elsewhere. That is certainly true with our constitutional conventions. We think it entirely appropriate. We thought it entirely appropriate a couple of years ago when we were dealing with the question of prorogation to look at how other jurisdictions in the Commonwealth dealt with prorogation. It is true as well with respect to the House of Commons that we look to precedents from other chambers.
We also look to writers to summarize these precedents for us. These would have been known in medieval times as “glossators”, people who gathered to get their glossaries of the great precedents. In the common law we would have great names in the past such as Glanville, Bracton and, in the 18th century, Sir William Blackstone. There are modern commentators who have written volumes that continue to be used and are referred to under the name of their author, such as Craies, Maxwell and Bennion.
In the case of our constitutional conventions, the great writers are people like Albert Venn Dicey, in the 19th century, Walter Bagehot or, if we are looking at the United States, people like Tocqueville and Lord Bryce.
In the case of our parliamentary institutions we look to texts compiled by Erskine May, looking at the British Parliament and their practices. In Canada, the leading text is a volume that was known as Marleau and Montpetit, after its two authors. It is now referred to as O'Brien and Bosc, after the most recent editors of that volume.
Each of these three great systems of rules brought together the rules as they exist based upon the precedents. In each of these three great systems, it is possible to encode or formalize the rules, rather than simply turning to precedent.
In the case of our laws, acts of Parliament can encode what formerly had been dealt with by means of the common law. In the case of the unwritten constitution, it is possible to formalize the unwritten conventions and turn them into written constitutional rules. We have not done that for many rules in Canada, but we have done it for some. In Britain they are still dealt with on an entirely unwritten basis.
We have gone a great deal less far of course than the Americans, or to pick an example that is closer to home, than the Irish when they converted from being a monarchy and a member of the Commonwealth, to being a republic, so this can be done. We can also, in case of the Constitution, make formal amendments, as I said.
In the case of the House, we can change our Standing Orders and adopt Standing Orders. When we do so we are codifying that which was dealt with by precedent in the past. In so doing, we tend to do one of two things. This is perhaps why we are turning now directly to the Standing Orders themselves.
In the case of each of those practices and precedents that has existed, it seems to me that, on the one hand, we might want to conclude that the practice, the precedent, is one which is sufficiently crystallized that it is time now to enact a formal rule. A formal rule would capture our best practices, which we will then have to apply when we find that we are not at our best.
Anybody who has been around here for a few years knows that we are not always at our best. We are not always as solicitous of the opinions of the minority point of view. We are not always open to full discussion. We are not always as decorous as we could be. These rules could be entrenched so as to freeze in the best practices which have crystallized.
Or on the other hand, we might look at practices that perhaps do not reflect the direction we ought to be taking. They might reflect a natural progression, but not the progression that is optimal. We can effectively adopt a Standing Order that overrules a past practice if there is a better direction to take, toward which we were not being led by our precedents.
In the common law this phenomenon was dealt with in the 19th century in Britain. Legislators and legal theorists came to the conclusion that the common law, in some cases, had simply led to what they regarded as a dead end from the point of view of public utility. Simply, that no further advancement would occur in the direction that was in the best interests of society. That can apply here as well.
However, there is a third possibility. There are many areas where it is best not to adopt a formal rule that locks us in at this time. It is better to allow the precedents to continue to develop and improve. This allows us to collectively exercise our wisdom through the kinds of interventions that all members make when they are advising the Chair as to how the Speaker ought to rule. That gradual accumulation will continue to improve the rules of the House.
As a concluding remark, I want to observe that we sometimes tend to wax nostalgic in this place about the great days of our parliamentary past, now lost. I want to suggest that it is a myth.
We think back to the great days of Macdonald debating Edward Blake, or Churchill versus Lady Astor, or Gladstone versus Disraeli. The truth is that these were often times as ill-tempered as the present, sometimes more so. The long-term trend, as our standing rules grow, as the body of precedence on which they are based grows, is that actually we are producing a set of rules that govern us in a better way than Gladstone, Disraeli or any of the others I have mentioned were governed by their rules.
The truth is that we are moving forward. This is a positive exercise and the rules that we leave to our successors will, I think, be better than those that were left to us.