Reforming the Standing Orders of the House of Commons

March 2017


Modernization of the Standing Orders of the House of Commons

Introduction

The purpose of this paper is to stimulate a discussion of reforms to the Standing Orders of the House of Commons. The Government has committed to modernize the rules of the House in order to make Parliament more relevant to Canadians. As society changes, the demands of our institutions change as well. Parliament must adapt to a changing and evolving political landscape and should respond to demands of greater accountability, transparency and relevance. 

The impetus of all major reforms has had a common theme: a recalibration of the rules to balance the desire of the minority’s right to be heard with the majority’s duty to pass its legislative agenda. This balance is in need of constant attention and periodic adjustment to reflect the will of the House and of the people it serves. 

While Parliament by its very nature is an adversarial system, politicians must find common ground to ensure robust and effective ways of deliberating on the issues of the day. However, deliberation is not the only function of an effective House – decisions must be made after a reasonable amount of debate. Every issue is unique and requires an amount of debate that is commensurate to the significance of the matter before the House. Traditionally, this determination has been made through negotiations with the House Leaders of all recognized parties. When there is no agreement on the amount of debate that is needed, there are limited ways to bring an item to a vote. The curtailment of any debate is portrayed by opposition parties and the media as an affront to the democratic rules of the House, since these tools are predominantly imposed unilaterally by the Government. There are some instances where an opposition party has agreed to cooperate with the government to curtail debate. However, cooperation on time allocation is done on an exceptional basis. 

Another important aspect of any review of the Standing Orders is the consideration of ways to empower Members to become better legislators. This notion was central to the reforms proposed by the McGrath Committee on Modernization in 1985 and, again in 2003 with the Special Committee on the Modernization of the House of Commons. While many of these reforms have been incorporated, it is time to re-evaluate the role of Members and examine ways to increase their influence in the legislative process. Societal changes have also brought about the need to ensure greater predictability in the House for at least two important reasons: to ensure Members have a better balance; and, to encourage under-represented segments of society to seek elected office. Technological changes should also be considered as we look to ways to make the House more efficient. 

Modernization of the rules of the House also includes ways to improve the functioning of committees. It has been frequently noted that it is in committees that the substantive work of Parliament is done, and where a significant share of a Member’s parliamentary work takes place. While committees continue to function effectively, there are merits to examining ways to improve not only their effectiveness, but also their inclusivity. 

Therefore, the themes of the proposed reforms are three-fold in addressing the aforementioned issues. They include: (1) the management of the House and its sittings; (2) management of debate; and (3) management of committees. 

Theme 1: Management of the House

Sittings

Among the provinces and most international legislatures, Canada is unique in regularly sitting five days a week. Most legislatures have either the Monday or the Friday as a constituency day. The exception is the United Kingdom, which tends to sit on 13 or 14 Fridays out of 36 sitting weeks (i.e., 38 per cent of Fridays). In terms of provincial legislatures, Nova Scotia sometimes sits five days a week. As a result, the House of Commons sits many more days and hours each year than provincial and territorial legislatures. While the House does sit five days a week, certain procedural and time limitations on Fridays make these sittings less effective than other days. All recorded divisions on bills are automatically deferred on Fridays, which means in some cases, the business that is taken up on Fridays cannot resume on Mondays. Additionally, Friday sittings provide for no more than 2.5 hours for Government Orders and committees do not meet. One option would be to reapportion the time on Friday sittings to other days, and another option would be to make them more like other sitting days. It should be recognized that the important work of Members takes place both in the House and in their constituencies. 

Should Friday sittings be reapportioned, it would be important to reallocate any lost time to the remaining four days, including time lost for Question Period and Private Members’ Business. This could be accomplished by having the House meet earlier on certain days. Alternatively, if Friday sittings are retained they should look like any other sitting day, with the possible exception of having two hours of Private Members’ Business at the end of the day to allow some Members to leave earlier to travel to their ridings. 

Electronic voting

Given the extent of technological change that has occurred since the last significant suite of changes to the Standing Orders, consideration should be given to how technology could be incorporated into the proceedings of the House. These advancements would have the double benefit of increasing the efficiency of the House while ensuring that Members’ time is spent wisely. One obvious application of technology to the operation of the House is electronic voting. Given that the House is to move to West Block in 2018, and while Centre Block is being refurbished, this would be an excellent opportunity to implement a system of electronic voting as a pilot.

The McGrath committee recommended electronic voting in 1985, as did the Special Committee on the Modernization and Improvement of the Procedures of the House of Commons in 2003. Neither committee recommendation was adopted. However, the House does have the necessary infrastructure in place to implement electronic voting. Such a system could be easily implemented in a way that would be reliable and secure, given the current state of technology. 

Ringing of the bells and the taking of recorded divisions is a time-consuming exercise. Electronic voting would permit each Member to record their vote and then resume other political and constituency work. Many legislatures have implemented this time saving measure. The United States House of Representatives has implemented an electronic voting system, as has the Scottish Parliament and the Welsh Assembly. 

House Calendar 

Should the House decide to move to a more efficient week, consideration could be given to having the House sit earlier in January, later in June and earlier in September. There is a correlation between the size of the House (number of Members) and the number of sittings. For example, the House has nearly three times the number of Members than the largest provincial legislature. The House currently has more sitting hours than Ontario and Quebec even though the legislatures have approximately the same number of sitting weeks per year. 

A greater degree of flexibility could be built into how many sittings the House has in any given year. The number of sittings could be based on the demands to sit. Urgent and important matters before the House should be given their fullest consideration despite certain time pressures. Allowing the House to agree to sit beyond the dates of adjournment and to sit longer on any given day, would provide more opportunity for Members to participate in debate. Another obvious benefit would be to calm the acrimonious proceedings leading up to the summer and winter adjournments. While there are mechanisms to allow the House to sit beyond adjournment dates, they are usually implemented by unanimous consent or by the use of closure. 

Routine Proceedings

The purpose of Routine Proceedings is to structure the business of the House. However, certain rubrics of Routine Proceedings have been used to give rise to debate. The rubric of “Motions” allows Members to move a debatable motion that could, on certain days, deprive the House of the ability to deliberate on the intended item for debate during Government Orders. This not only applies to items emanating from the Government (i.e., debate on a bill), but could also apply to items standing in the name of an Opposition Member (i.e., an Opposition Day motion). More often than not, it is either a motion to concur in a committee report or a motion of instruction to a committee. The House should examine different ways to schedule debate on such motions.

Private Members’ Business

A principle objective of the McGrath Committee report was to find ways to give Members a more meaningful role in the legislative process. A well-functioning House depends on the extent to which Members feel like they are involved and contribute to the legislative process. A key way to empower Members is through Private Members’ Business. Possible changes to Private Members’ Business could be examined to achieve that objective. Some examples include: adding another rubric for Private Members’ Business each week; examining the possibility of allowing Members’ to exchange places on the List for the Consideration of Private Members’ Business under certain conditions; and ways to manage Senate Public Bills that delay the replenishment of Private Members’ Business, possibly by having a separate rubric for these bills. 

Prorogation

Prorogation signifies the end of a session within a Parliament. At the beginning of a session, the Governor General sets out the Government’s agenda for the session in the Speech from the Throne. When the Government has delivered on its commitments in the Speech, the Prime Minister recommends to the Governor General to end the session through prorogation.

There have been instances where Governments have prorogued early in the session to avoid politically difficult situations. The Government committed to Canadians to not abuse prorogation in such a manner. 

One option would be to require that the Government table a document early in the following session that sets out the reasons for proroguing Parliament. The report could be automatically referred to committee for study and could be the subject of debates on Supply Days. Another approach could be to reinstate the prorogation ceremony that would resemble the approach used in the Speech from the Throne but would occur at the end of the session. 

Theme 2: Management of Debate

Time allocation

Time allocation was implemented in 1969 to curtail debate as a less draconian alternative to closure. The debate on the motion to implement time allocation was acrimonious and its use since has been seen rather disdainfully by the opposition and by the media. Its use by the previous government over 100 times in the 41st Parliament was a clear signal that an alternative was needed. Time allocation disrupts the business of the House, committee work, and Cabinet meetings. 

In reviewing the international landscape, there are a number of legislatures that have implemented alternative ways to manage time for debate in the House. Since 1998, the British House of Commons has adopted the practice of using programming motions to allocate time for government bills. Programming was introduced on an experimental basis in 1998 and was made permanent in 2004. Following discussion with House Leaders, the Government gives notice of a motion following second reading of a bill to allocate a specific number of days or weeks for the committee stage, and the time needed for debate at report stage and third reading. Following the adoption of such a motion, the bill is disposed of according to the terms of the motion. In 2013, the British Procedure Committee reported on its review of programming and concluded that programming is beneficial to the scrutiny of legislation. Moreover, the Official Opposition commented favourably in the review on programming and concluded that it had resulted in an appropriate balance between ensuring the opposition had sufficient time to scrutinize legislation and the government to manage its legislative agenda. Other observers of parliamentary institutions have accepted the principle of programming in that it focuses attention on the best use of parliamentary time and that the alternative of filibustering is not a rational or defensible way of trying to defeat a Government bill.

The use of programming would provide the House greater predictability in its proceedings, as well as provide greater certainty to committees as they plan and undertake their studies. New Zealand and the U.S. House of Representatives also have measures to plan the business of the House that are similar in principle to programming. 

The House could examine the application of a “Made-in-Canada” programming scheme for Government bills, motions and for the handling of Senate amendments. It could include a range of time for all stages for the consideration of a bill, which would be negotiated between House Leaders then would be subject to debate, amendment and a vote in the House. It also would be useful for any programming model to have the ability to accommodate more debate when desired. Including a mechanism for additional debate would make the programming model more responsive to the needs of opposition and back-bench government Members who wish to participate in debate.

Questions

Question Period is where the Government is held to account for its policies and for the conduct of Ministers. The Government committed to reform Question Period so that all Ministers, including the Prime Minister, are held to greater account. Reforms to Question Period could include instituting a Prime Minister’s Questions time, as is done in Britain, and could also include lengthening the time allotted for questions and answers. 

Written Questions are an essential tool for Members to obtain information from the Government. However, written questions have increasingly become more complex and voluminous over the past 10 years. This trend has made it difficult for the Ministry to respond to such questions within 45 days. Presently, Members who place written questions on the Order Paper can request a response from the Ministry within 45 days. However, there is no upper limit. As a result, all written responses are requested within 45 days. Consideration could be given to having an upper limit for detailed questions or for questions that cut across the Ministry. For example, the upper limit could be 65 days for such questions. This would most likely result in Members receiving more comprehensive answers to detailed questions. Another measure that would expedite the speed with which Members receive answers to written questions would be to allow for back-door tabling of responses during adjournment periods. 

Omnibus

The Government committed to end the improper use of omnibus legislation. Omnibus bills can be defined as a bill that contains separate and unrelated themes packaged into one bill. Members are then forced to vote for or against a bill that could have elements that Members would support or oppose. The only recourse for Members has been to seek to divide omnibus bills in committee, but these motions rarely come to a vote or are agreed to by way of unanimous consent. 

Since the Clerk of the House has the power in Standing Order 39(2) to divide written questions, a similar approach could be used by the Speaker to divide omnibus bills. The Speaker’s authority could be prescribed by criteria to define and establish “a unifying theme” of the bill. This approach would allow for the divided bills to be debated together at second reading, report stage and third reading but would be subject to separate votes at each stage. In addition, the divided bills could be sent to separate committees if the subject matter of the bills warranted such action. 

Theme 3: Management of Committees

Committees have always been lauded as the venue in which the substantive work of Parliament is conducted. While the House debates the principle of bills, committees study the detailed provisions of bills and undertake comprehensive reviews of issues facing the nation. 

Members that have the privilege of sitting on committees benefit tremendously from the experience. It makes them better legislators which is key to a well-functioning House. Members who are focused on substantive issues are less inclined to resort to tactics. As a result, the House could examine ways to make committees more inclusive as well as ways to ensure that obstructionist tactics do not crowd out the substantive work of committees.

Committees in the previous Parliament adopted motions to allow independent Members to move amendments to bills and to speak to those amendments in committee. This practice has continued in the current Parliament. By expanding the role of independent Members on committees they too could benefit from this valuable experience. An option would be to make one independent Member an ex-officio member of committees with all privileges except for the ability to vote, or to constitute quorum. This would allow independent Members to participate in in camera proceedings, question witnesses, and travel with committees.

The Government committed to ensuring that Parliamentary Secretaries would not be voting members on committees that fall within their Minister’s mandate. That commitment does not, however, mean that Parliamentary Secretaries should not have a role on committees. Parliamentary Secretaries could be given the same rights on committees as is proposed for independent members. 

Committees can, at times, become dysfunctional. Members are able to sow dysfunction in committees by filibustering proceedings either by refusing to yield the floor or by moving dilatory motions. There is an obvious solution to remedy this tactic: imposing a maximum time for an intervention at committee. For example, speech lengths at report stage are 10 minutes. This could be a model for committees. And unlike report stage, Members on committees would not be restricted to one 10-minute intervention. Members could have as many 10-minute interventions as they desire, but the fact that the Member would have to yield the floor at the expiry of 10 minutes would properly address filibustering in committees. The principle of deliberations in the House and in committees should be to engage in substantive debate on the merit of an issue, not to engage in tactics which seek only to undermine and devalue the important work of Parliament.

Conclusion:

It is the Government’s desire that changes to the Standing Orders be meaningfully deliberated upon. A series of reasonable and practical reforms will not only make the proceedings of the House more predictable but should also empower Members to more fully participate in the legislative process. Better legislators can only serve to improve the legislative process. A key consideration in the reform of the Standing Orders is to ensure that the scheme operates equally effectively in a majority and minority context. Sensible reforms will serve to bring this House into the 21st century and to make Parliament more relevant, transparent and accountable to Canadians.

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