On the evening of May 17, 2016, in the Canadian House of Commons, the Government House Leader filed notice of a motion (Government Business No. 6) which, if adopted, would have imposed even greater, albeit temporary, Government control over the organization of House Business until the House adjourned for the summer. You can read the full text of the motion here, but be forewarned that without a detailed knowledge of the House’s Standing Orders, the text won’t mean much to you.
Unsurprisingly, the Opposition parties were incensed by this move, and a question of privilege was raised in the House the next day by the New Democratic Party House Leader, Peter Julian. Mr. Julian argued that the “draconian” motion breached “the privileges of members of Parliament”, that it would put “all the other members in a straitjacket and limit their rights and privileges”, that it “would deny MPs the right to spark debates on the crucial work of committee”, and that the executive was “attempting to set aside those rights and privileges for all MPs, other than cabinet ministers”.
Some parliamentary press reporters also made statements on social media to the effect that the motion attacked the rights and privileges of members. Kady O’Malley (Ottawa Citizen), for example, stated that it was an “attack on the privileges of the House” and that it stripped the opposition “of their parliamentary rights“.
I have to say that while Motion No. 6 was regrettable and entirely symptomatic of the fact that we in Canada have no idea how to properly organize the use of time in our legislatures (because the problem exists at the provincial level as well), I find it very difficult to argue that it in any way breached the rights and privileges of members.
Let me explain.
There is no doubt that, had it been implemented, the motion would have curtailed the ability of Members to move certain motions which would they would have done largely for the purpose of delaying the progress of Government business. Their ability to move such motions are laid out in the Standing Orders, which are the set of rules the House follows to regulate its proceedings. The Standing Orders are regularly reviewed and can be changed by the House at any time. This is usually done by a committee, which will report to the House recommending certain changes to some rules, and the House may or may not adopt said report. At times, however, certain controversial changes have been made rather unilaterally – by the government of the day using its majority to amend the Standing Orders. Examples of this include the adoption of the closure rule in 1913 and the adoption of time allocation provisions in 1969. This is not the ideal way to go about changing the Standing Orders, but it does happen from time to time.
However, the main point that I want to make here is that this has nothing to do with the rights and privileges of Members, and the repeated claims to the effect that Motion No. 6 did indeed impact the rights and privileges of Members is very unfortunate and misleading.
Parliamentary privilege is a very separate matter. It is privilege which accords certain rights to Members, not the Standing Orders, and none of these rights include the right to move certain motions in the House. In his question of privilege, Mr. Julian quoted a partial definition of parliamentary privilege from Erskine May’s Treatise on the Law, Privileges, Proceedings and Usages of Parliament. The full definition is:
Parliamentary privilege is the sum of certain rights enjoyed by each House collectively as a constituent part of the High Court of Parliament; and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Some privileges rest solely on the law and custom of Parliament, while others have been defined by statute. (May, 24th ed., p. 203)
May goes on to explain that some rights and privileges belong primarily to individual Members and exist because the House cannot perform its functions “without unimpeded use of the services of its Members”. Other rights and privileges belong to the House as a collective body. This includes the right of the House to regulate its own affairs, which would include (temporarily) changing the Standing Orders and changing the parliamentary calendar, which is what Motion No. 6 sought to do.
What are the rights and privileges of individual Members? As explained in House of Commons Procedure (commonly referred to as O’Brien and Bosc, or O&B), these rights, privileges and immunities are finite and do not exist “at large”. This means that they apply only within the confines of the parliamentary precinct, and a proceeding in parliament. The rights, privileges and immunities of individual Members of the House can be categorized as follows:
- Freedom of speech
- Freedom from arrest in civil actions
- Exemption from jury duty
- Exemption from being subpoenaed to attend court as a witness, and
- Freedom from obstruction, interference, intimidation and molestation.
Again, there is no way to argue that Motion No. 6 attacked, trampled or limited any of these rights and privileges.
The right of Members to exercise freedom of speech is there to allow them to speak freely in the House with immunity from civil or criminal action. If one attempted to argue that the measures outlined in Motion No. 6 attacked a Member’s freedom of speech because he or she would be prevented from moving certain motions in the House, one would lose that argument. The moving of motions is governed by the Standing Orders, and the Standing Orders already impose such limits. For example, some motions, such as closure and time allocation motions to name but two, can only be moved by a Minister. There is no “right” to move a dilatory motion. A dilatory motion, such as a reasoned amendment, is a procedure allowed under the Standing Orders, and the House, as a collective body, has the right to change those Standing Orders.
To take it further, the collective rights and privileges of the House can override the individual rights and privileges of Members. For example, despite the right to freedom of speech during parliamentary proceedings, the House uses its collective right to govern its own affairs through the Standing Orders of the House and imposes limits on what Members can say and when. For example, Members cannot use unparliamentary language in debate. Members may only speak once during a debate, and only for a certain amount of time. Some members, if they belong to a caucus of fewer than 12 Members and, as such, do not belong to an “officially recognized party”, have their right to speak in the House severely curtailed, and at times, completely dependent on the rest of the House. They need unanimous consent from the rest of the House to be able to speak on certain occasions. In my mind, this reality – the very concept of “officially recognized parties” and what it does to MPs belonging to smaller parties is a far greater trampling of MPs’ rights and privileges than anything contained in Motion No. 6.
Motion No. 6 did not do away with proceedings the Opposition like to use to delay Government Business, it simply modified how and when these proceedings would take place, and, in conjunction with the proposed extension of sitting hours and days, would ensure that Government business would still proceed and yes, take priority. For example, during the question of privilege raised with regards to Motion No. 6, there were references made to the motion denying the “right” of MPs to debate committee reports. The motion did no such thing. It simply stipulated that if a member called for a concurrence debate on a committee report (because committee reports are only debated if an MP requests such a debate), there would be 20 minutes of debate, then the debate would be adjourned and the debate could be called again at a later time, no later than the 20th sitting day after the interruption. Given that the majority of reports from committees receive no debate at all, and when a debate is requested, it is usually done so as a delaying tactic to impede the progress of Government business, twenty minutes (with the possibility of it being called again at a later time/date) is still better than nothing at all.
Again, I am not trying to argue that Motion No. 6 was a good thing. As stated at the outset, it is simply symbolic of how badly time is managed in the House of Commons. I have previously posted on how we in Canada waste so much time on 2nd and 3rd reading debate (compared to the UK House of Commons, for example). Another procedure which makes it impossible to use time more efficiently is, ironically, time limits on speeches. The Government’s reluctance to start some bills in the Senate rather than the House is another issue. In the UK, at least a quarter of Government bills will start off in the House of Lords, which, of course, frees up more time for the Commons and would also avoid the problem we have of our Senate having next to nothing to do most of the year because it has no bills to study. Because of these factors (and others), the use of time in the House of Commons becomes a major issue and is the main reason why governments will then resort to time allocations and other means of curtailing debate. Motion No. 6 was yet another manifestation of this problem.
That said, the claims by Members and others that Motion No. 6 attacked the rights and privileges of Members were misleading and a poor choice of words. Parliamentary rights and privileges are very specific things, and that language should not have been used in this context. I don’t see how the Speaker, had this question of privilege gone forward (because the motion was withdrawn, I’m assuming the matter of privilege is now moot), could have ruled that it was a breach of privilege. He could rule on the motion’s orderliness, but beyond that, not much.
For another take on this issue, I refer you to Dale Smith’s post, Motion 6 regrets.