I am now prepared to rule on the point of order raised on May 16, 2014, by the House Leader of the Official Opposition regarding the use of Standing Order 56.1.
I would like to thank the House Leader of the Official Opposition for having raised the question, as well as the Leader of the Government in the House of Commons for his comments.
In raising his point of order, the House Leader of the Official Opposition argued that the motion adopted by the House pursuant to Standing Order 56.1 on March 27, 2014, should have been deemed inadmissible as it directed the affairs of a standing committee.
In particular, he suggested that Standing Order 56.1 is not intended to be used as a way for the House to instruct committees to conduct certain studies or to hear particular witnesses, but, rather, as a way to expedite routine business or to grant powers to committees that they do not already possess. In his view, instructing a committee to undertake a study cannot be construed as simply establishing a committee power, nor can it be considered simply a routine matter.
Noting the potential difficulties of the current requirements of the Standing Order for smaller parties, as well as its use for matters with regard to which it was never intended, the House Leader of the Official Opposition asked the Chair for clarification on the limits of Standing Order 56.1 in general and, in particular, whether the motion in question was admissible.
The Leader of the Government in the House of Commons agreed that Standing Order 56.1 was not meant to be used to reach into the conduct of committees to direct them but, instead, was meant to provide committees, in a routine manner, with powers that they do not already have. In addition, he explained that, although committees generally have the power to send for persons, they are not empowered to compel the attendance of members of Parliament. Thus, he argued that the motion in question sought only to empower the committee, or at least remove any doubts about their power to study that matter and to compel the attendance of the Leader of the Opposition. Furthermore, since the motion was not related to the passage of a bill, he claimed that it did not violate the restriction against using Standing Order 56.1 on substantive matters, as enunciated by Speaker Milliken's ruling of September 18, 2001.
The Leader of the Government in the House of Commons disagreed with the House Leader of the Official Opposition asking the Speaker to provide direction for the future, viewing this as an inappropriate practice and role for the Speaker. He also questioned the timing of the point of order, stating that it should have been raised early enough to allow for the Speaker’s decision to be of some consequence.
Before I continue, I would like to read, for the benefit of the House, the motion at issue in this case:
That the Standing Committee on Procedure and House Affairs be instructed to consider the matter of accusations of the Official Opposition's improper use of House of Commons resources for partisan purposes; and
that the Leader of the Opposition be ordered to appear as a witness at a televised meeting of the Committee to be held no later than May 16, 2014.
Since its adoption by the House in April, 1991, Standing Order 56.1 has been used as a legitimate procedure to allow the House to deal with what the Standing Orders call “routine motions”.
According to Standing Order 56.1(b), a routine motion:
—shall be understood to mean any motion, made upon Routine Proceedings, which may be required 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 establishing of the powers of its committees, the correctness of its records or the fixing of its sitting days or the times of its meeting or adjournment.
At issue then is whether the motion in question was an admissible motion, pursuant to Standing Order 56.1. While the wording of the Standing Order has not changed over time, at times its interpretation and use have. Consequently, its attempted use for various ends has, in turn, resulted in some procedural challenges. As a result, a body of practice and rulings has emerged, leading to a better understanding of the appropriate use of this Standing Order. As an example, it is now accepted that Standing Order 56.1 can be used to authorize committee travel.
At the same time, however, the understanding of what constitutes a routine motion has been allowed to expand over the years, a development that has caused concern to successive Speakers. Speaker Milliken characterized it as a “disturbing trend” as early as 2001.
House of Commons Procedure and Practice makes reference to this trend when, on page 671, it provides a list of examples of motions which had been allowed to proceed, but states that, “[Not] all of these uses were consistent with the wording or the spirit of the rule...”.
The motion in question in this case deals specifically with committees and, in that respect, while the Standing Order does allow motions for the “establishment of the powers of its committees”, the question before me is whether the motion adopted falls squarely within those parameters or whether it strayed beyond them to direct the Standing Committee on Procedure and House Affairs.
Deputy Speaker Blaikie stated on June 5, 2007, at page 10124 of Debates:
A key element...is the fundamental precept that standing committees are masters of their own procedure. Indeed, so entrenched is that precept that only in a select few Standing Orders does the House make provision for intervening directly into the conduct of standing committee affairs.
A careful reading of the motion is telling: the committee was “instructed” to consider a matter and the leader of the official opposition was “ordered” to appear. In fact, it leads the Chair to the conclusion that the motion was an attempt to direct the internal affairs of the committee, thus stepping beyond what the House has come to accept as being within the confines of Standing Order 56.1. The government House leader argued that the motion granted the Standing Committee on Procedure and House Affairs a power it did not have, namely the power to order a member to appear before the committee. But the motion went beyond simply granting the committee that power; it made the order for the committee. In the Chair's view this would have been more appropriately done by way of a substantive motion.
The House does have the power to give instructions to committees but it is how this is achieved that is important. The Chair does not believe the House ever intended that this be done by way of Standing Order 56.1. This was noted by Speaker Milliken, who stated, on September 18, 2001, at page 5258 of Debates:
The standing order has never been used as a substitute for decisions which the House ought itself to make on substantive matters.
The government House leader may have been correct in noting that substantive motions were used in the passage of legislation but one cannot draw the conclusion from that, that, therefore, motions not related to legislation are routine. There are in fact other types of substantive motions that are not bound to legislation.
At page 530 of O'Brien and Bosc, it states:
Substantive motions are independent proposals which are complete in themselves, and are neither incidental to nor dependent upon any proceeding already before the House. As self-contained items of business for consideration and decision, each is used to elicit an opinion or action of the House. They are amendable and must be phrased in such a way as to enable the House to express agreement or disagreement with what is proposed. Such motions normally require written notice before they can be moved in the House. They include, for example, private Members' motions, opposition motions on supply days and government motions.
The government House leader also attempted to draw a comparison with the November 8, 2012, precedent when the Standing Committee on Justice and Human Rights was “mandated...under Standing Order 56.1, to conduct the study required by section 533.1 of the Criminal Code”. However, it was not so much that the committee was instructed to conduct a study but, rather, that due to a mandatory statutory review of an act, the committee needed an order of reference from the House to proceed. As the opposition House leader suggested, it was a routine motion.
Thus, for the reasons stated, I would have been inclined to rule the motion out of order had this matter been raised within a reasonable delay. To be clear, the Chair did not readily deem the motion to be procedurally admissible, as the opposition House leader suggested. Instead, in the absence of any objection at the time that the motion was moved, the matter went forward and the motion was adopted.
The operation of Standing Order 56.1 has long been difficult for successive Speakers. This is in part because of the legitimate expectation that a motion moved pursuant to that Standing Order will be put to the House for decision without undue delay. This obligation is further complicated in instances where the Chair has had no advance notice that such motion is to be moved, as was the case in this particular instance, so I am sure all members will understand the quandary in which the Chair is left.
As the history of the use of motions under Standing Order 56.1 demonstrates, past speakers have all struggled with this dilemma and have almost invariably allowed even motions about which they had reservations to go forward, having had no time to properly assess their content and formulation. This is done in the expectation that alert members of the opposition will, if they deem it appropriate, rise to object. In this case, no one raised objections, the motion was put to the House and it was adopted.
The fact that the House leader of the official opposition waited so long to raise this point of order resulted in the terms of the motion having already been carried out. This is reminiscent of the situation faced by Speaker Milliken in 2001 when the government resorted to Standing Order 56.1 in a bid to dispose of numerous items of business—in this case some bills and certain supply proceedings—over the course of two sitting days. In that case, Speaker Milliken explained that he allowed the motion to proceed “because there were no objections raised at the time it was moved”. As he stated on September 18, 2001, at page 5258 of Debates:
However, to speak frankly, had the objection been raised in good time, I would have been inclined to rule the motion out of order. This situation serves again to remind members of the importance of raising matters of a procedural nature in a timely fashion.
The continuing trend away from the original intent of the Standing Order toward the moving of motions that are less readily identifiable or defined as routine is a concern that I share with my predecessors and one which continues to underscore the need for the Standing Committee on Procedure and House Affairs to review and define the spirit and limitations of Standing Order 56.1. There is no doubt that this would be helpful to the Chair.
Finally, the House Leader of the Official Opposition raised the issue of the fairness for smaller parties of a Standing Order that requires a minimum of 25 members to stand in order for it to be withdrawn. It is not for the Speaker to judge whether it is appropriate or not. As is the case with other rules adopted by the House, such as the threshold of five members to request a recorded vote, the Speaker’s role is to enforce it, not question it. As Speaker, I can only suggest that the member raise the matter with the Standing Committee on Procedure and House Affairs, which is designated to review the rules of the House.
I thank hon. members for their attention.
