On programming motions

Maclean’s Aaron Wherry’s recent column looks at the current Canadian government’s extreme fondness for using time allocation to speed passage of its legislation through the House of Commons. I strongly urge everyone to read it.

What I found particularly interesting in the piece was the Government House Leader’s justification for use of time allocation. In essence, they are using it to, in his words, schedule how legislation proceeds through the various stages:’

There’s no doubt we have used it as a scheduling device, not as a limiting of debate device. So, yeah, we’ve tried to change the culture around it, the whole meaning of it and what it does. In the past, I think, while it was intended when drafted as a scheduling device, the way it was used in practice, and the rhetoric around it, had meant that it was for shutting down debate.

The Government House Leader is a bit confused. Time Allocation was always meant to be a means (ideally of last resort) of curtailing debate, not as a means of scheduling a bill’s progress through the House. Going by the above quote, what the Government is trying to do is use time allocation as a programming motion.  Perhaps it would make more sense then for the Canadian House of Commons to adopt a new procedure, namely, programming motions similar (or identical to) those used in the UK House of Commons?

No one disputes the reality that time is limited in the House of Commons, and that a sitting Government does have the right to get its business before the House. However, some pieces of legislation will go over less well than others. As noted in Erskine May, to secure the passage of particularly important and controversial pieces of legislation, a government may face a series of difficult choices:

1) taking special powers to curtail debate;
2) cutting down their normal programme to an undesirable extent;
3) prolonging the sittings of Parliament; or
4) acknowledging the impotence of the majority of the House in the face of resistance from the minority. (May, p. 468)

Before 1997, when faced with such a situation, UK governments would resort to allocation of time motions, or as they are more commonly called over there, guillotine motions – a much more appropriate expression, in my view. However, since 1997, use of the guillotine has been replaced by programming of bills. Introduced at first on a pilot basis following a report of the Committee on the Modernisation of the House of Commons, it was enshrined in the standing orders in 2004. Since then, programming has become an established and broadly accepted feature of the transaction of Parliamentary business. In recent testimony before the House of Commons Procedure Committee, the Government stated that “There now appears to be a clear majority view in the House that, in principle, programming is beneficial to the scrutiny of legislation.” The Opposition concurred, saying they “support its continued use. In opposition we have sought through the usual channels to make programming work by acknowledging the executive’s need to manage the legislative timetable while censuring sufficient opportunity is available for members to scrutinize legislation.” (Procedure Committee, Third Report of Session 2013-14) The majority of government bills are now programmed.

The differences between time allocation and programming motions might appear minor at first glance, but they are very different procedures. Time allocation motions have one purpose, and that is to cut off debate – hence why they are called guillotine motions. They are normally moved during 2nd reading debate, but after a fair bit of debate has occurred, not right at the outset of 2nd reading debate, as has been the case here in Canada of late.

Programme motions cannot be applied to 2nd reading debate. That is perhaps the most important difference. They are used to guide the progress of a bill through the committee stage, consideration (report) stage and 3rd reading. However, while they can’t be used to curtail 2nd reading debate, notice of programme motions must be given before 2nd reading and they are moved immediately after 2nd reading begins. The programme motion is then voted on, and once adopted by the House, becomes a programme order.

When a programme order covers proceedings which take place in the House itself (committee of the whole House, consideration (report stage) or third reading), a programming committee is appointed, consisting of the Chairman of Ways and Means (the Deputy Speaker) and up to eight other members, nominated by the Speaker. The function of the committee is to divide the bill into various parts and  allot to each part such time as it considers appropriate. This is very important. While the Government determines how much total time will be allocated for consideration of the bill at each stage covered by the programme order, how that time is used is not controlled by the Government. A committee of MPs nominated by the Speaker determine how the time will be used. Proceedings in the programming committee are limited to two hours. The House may debate the programming  committee’s resolution for up to 45 minutes and, if it is agreed to, it has effect as if it were included in the programme  order.

What is interesting about the process in the UK is that if the Government cannot get its programming motion passed, it might opt to abandon the bill if it believes trying to move it through the House without a formal programming motion will take up too much of the House’s time. That is what happened with the House of Lords Reform bill earlier in the current Parliament. House of Lords reform, like Senate reform here in Canada, is one of those issues that pretty much everyone agrees is needed, but there is little agreement on which way to proceed. Consequently, the Coalition Government went to great lengths with this particular bill. They first produced a draft bill in May 2011, and on 23 June 2011, set up a Joint Committee made up of 13 peers and 13 MPs to study the bill in draft form. The Committee heard evidence over the course of the next several months, and reported on the bill in April 2012 – almost a year later. Based on the committee’s recommendations, the Government than produced a final bill which had 1st reading in the House of Commons on 27 June 2012. Second reading debate began on 9 July 2012, and the programme motion was tabled on 10 July. However, there was strong opposition to the programme motion from an alliance of Labour MPs and Tory rebels and the Government, sensing that the programme motion was unlikely to be adopted by the House, dropped it. The bill itself received 2nd reading with strong support (462 votes to 124, a majority of 338) but 91 Conservative MPs voted against it. Without the programme motion, the bill would have faced an incredibly bumpy ride. Faced with this reality, the Government essentially abandoned the bill – and it was formally withdrawn in September 2012.

It might seem ridiculous to some that the Government would abandon a bill into which it had invested so much time and effort simply because it had to drop its programming motion, but despite having sent it in draft form to a committee for pre-legislative study, the bill remained a very controversial one, and the Government feared it would simply tie up the House and detract from the rest of its legislative program. Could it have used guillotine motions to force the bill through? It would have been highly unlikely that any vote on a guillotine motion would have succeeded. Unlike here in Canada, UK Governments cannot count on 100% of their backbenchers supporting them all of the time. As stated above, there was significant dissent among Conservative backbenchers over the very issue of Lords Reform. Also, using time allocation would have been contrary to how business is normally conducted in the House. A majority of MPs on both sides of the House would probably have objected to the Government resorting to guillotine motions. Since programme motions have become standard practice, guillotine motions have become an endangered species.

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