(See follow-up post here.)
I discussed the issue of filibusters in a previous post, focusing primarily on the UK House of Lords as it tried to filibuster the Government’s Parliamentary Voting System and Constituencies Bill earlier this year. In that post, I wrote that filibusters in the Canadian Parliament were quite rare.
The reasons why filibusters are rare in Ottawa is that over the years, various changes have been made to the Standing Orders that have resulted in very orderly, tightly orchestrated proceedings with very specific time limits in place for most proceedings during the course of the parliamentary day.
Indeed, if one looks at the order paper for the day’s proceedings in the House of Commons, the timetable governing debates and other measures is quite clearly specified. For example, from today’s Order Paper (uploaded as a PDF for future reference), we see that the day’s business begins at 11:00 a.m. with an Opposition motion. The length of speeches for all Members is clearly listed at 20 minutes maximum and subject to a 10-minute question and comment period, voting on the motion will take place not later than 15-minutes before the expiry of the time provided for Government Orders, and if a recorded division is requested, the length of the bells will be a maximum 15 minutes. Following that, there is statements by Members, from 2:00 to 2:15 p.m., and the statements are not to exceed one minute each. Oral Questions begins not later than 2:15. Routine Proceedings then follows at 3:00, and among those, Petitions must not take up more than 15 minutes, etc. With these specific time limits in place, it becomes very difficult for the Opposition to hijack proceedings and cause a filibuster.
As well, other measures have been adopted which allow the government of the day to curtail debate and limit certain tactics previously employed by opposition parties to filibuster pieces of Government legislation. To quote from House of Commons Procedure and Practice (2nd ed.), pp. 648-9:
At Confederation, few rules existed to curtail debate. Even then, it was recognized that unlimited debate was not desirable and that some restraint would have to be exercised or some accommodation reached in order for the House to conduct its business with reasonable despatch. For the first 45 years following Confederation, the only tool at the government’s disposal was the previous question, (…) Not only was there no other way of putting an end to a specific debate within a reasonable time, but there were no formal time limits of any kind on debates. The length of speeches was unlimited. The conduct and duration of proceedings in the House were based largely upon a spirit of mutual fair play where informal arrangements, or “closure by consent”, governed the debate. In the words of Prime Minister Robert Borden:
… at a definite stage in a debate, when, in the judgment of the leading men of both sides of the House, it has proceeded far enough, it has been the practice for a consultation to be held and a date to be fixed; and members who are not able to catch the Speaker’s eye within the period so fixed are, by arrangements made on both sides of the House, practically excluded from taking part in the debate on that subject and the question is brought to an issue in that way. (Debates, April 9, 1913, col. 7391.)
In the early days of Confederation, the main business of the House involved the consideration of private bills and other business sponsored by private Members. Because the government played only a minor role in the economy, government business made up only a small part of the House’s workload. After 1900, the changing nature of the business coming before the House, especially the growing volume of business initiated by the government, led to a steady increase in the time that the House set aside for Government Orders. The time of the House became a precious commodity and a source of sometimes fierce partisan contention. This was manifested by a growing propensity on the part of the opposition to thwart the passage of government bills through delay and obstruction.
These changes in parliamentarians’ attitudes and in the government workload led the House to adopt rules and practices that would, on the one hand, facilitate the daily management of its time and, on the other, limit debate and expedite the normal course of events in cases deemed of an important or urgent nature.
One of the first changes made was the introduction of the closure rule in 1913. Closure is a procedural device used to bring debate on a question to a conclusion by a majority vote in the House, even though all MPs who wanted to speak to the matter have not had the chance to do so. This rule has remained virtually unchanged since its adoption in 1913, and has been used more than 60 times. Talk of repealing the closure rule has surfaced on occasion, but no action has ever been taken in that regard. However, in October 2001, the House adopted a new Standing Order which allowed for a questions and answers period of at most 30 minutes following the moving of a motion of closure. The purpose of this questions and answers period is to promote ministerial accountability and allow the government to justify the use of this measure. Closure can be invoked on any debatable matter, including bills and motions, but not on proceedings in committees.
Also in 1913, the House adopted amendments to existing Rule 17 which restricted the number of debatable motions, and provided that on two days of the week certain motions which would ordinarily be debatable, specifically, motions for the House to resolve into the Committee of Supply or into the Committee of Ways and Means, would not be debatable.
In 1927, the House adopted its first rule to limit the speeches of a majority of Members to 40 minutes each. Further restrictions were imposed in 1955 when limits were placed on the length of the Address in Reply to the Speech from the Throne and Budget debates, on debates in Committee of the Whole and on debate on the motion for the House to resolve itself into the Committee of Supply. Permanent changes to the Standing Orders in 1962 provided further limitations on the Address and Budget debates and on debate during Private Members’ Business. In 1968, amendments were made to the Standing Order limiting speeches in a Committee of the Whole. In 1991, the duration of the Address and Budget debates was further limited to a maximum of six and four days respectively. In 2001, the House adopted rules allowing the study of budgetary appropriations again in Committee of the Whole. The maximum length of debate on a series of Votes was then five hours. Two years later, it was limited to four hours and at the same time Members’ speeches were reduced to a maximum of 15 minutes. In 2003, the House reduced the period allowed for the first speakers from each of the recognized parties to speak in debate at the second and third reading stages of government bills from 40 to 20 minutes. A few years later, debate on the adoption of reports from standing or special committees was limited to three hours.
The current provisions in the Standing Orders concerning the length of Members’ speeches during debate are as follows. In most cases, the maximum length of a speech is either 20 minutes or 10 minutes. Members may speak for up to 20 minutes on:
- on the motion for an Address in Reply to the Speech from the Throne;
- on a motion for second or third reading of a government bill, when the Member is the first to speak on behalf of their party or when participating in the first five hours of debate after the initial round of speakers;
- on a motion regarding Senate amendments to a government bill;
- on a motion considered under government orders, including opposition motions on allotted days and motions for concurrence of the estimates;
- on a motion for concurrence in a committee report;
- during the Budget debate;
- during an emergency debate; and
- on a motion in Committee of the Whole.
These 20-speeches are generally followed by a 10-minute period during which other Members may ask questions or comment briefly on the speech and receive a reply from the Member. The Standing Orders allow the Whip of a recognized party to indicate that Members of their party will split their 20-minute speaking time in two. In such cases, Members speak for 10 minutes, followed by a question and comment period of 5 minutes.
Members are limited to 10-minute speeches on the following:
- on an item of Private Members’ Business;
- on a motion or group of motions in amendment at report stage;
- on a motion to refer a bill to committee before second reading;
- on a motion to instruct a committee to prepare a bill;
- on a motion for the second or third reading of a bill, when the Member is participating after the first five hours of debate following the initial round of speakers;
- during a take note debate; and
- on a motion regarding delegated legislation.
There are a few exceptions to the above, where Members are not subject to any time limit. For example, a Minister moving a government motion (or the Parliamentary Secretary speaking on his or her behalf) and the Member speaking in reply both have unlimited time. This also applies to consideration of motions relating to Senate amendments. In many cases, the Prime Minister and the Leader of the Opposition are not subject to any time limit.
Another measure used to curtail debate is the time allocation motion. Time allocation came about because the closure motion alone was perceived as rather inflexible and inadequate for the demands of a modern Parliament. The time allocation rule allows for specific lengths of time to be set aside for the consideration of one or more stages of a public bill. The House began considering an alternative to the closure motion in the 1960s, but it wasn’t until 1969, after debate that lasted 12 sitting days was curtailed by a motion of closure, that the House adopted a report recommending a measure for allocation of time, a forerunner to the present rule:
In its simplest form, the newly adopted Standing Order envisaged three options under which a time allotment order could be made, ranging from agreement between all parties to the government acting alone after negotiation had failed to rally the support of any other party. Time allocation motions moved with the agreement of all parties were put immediately, without debate or amendment. Those called with the agreement of a majority of parties or no opposition parties could, however, be amended, and they could also be debated for up to two hours, at which point all questions necessary to dispose of the motions were to be put by the Chair.
Members of the opposition later expressed dissatisfaction with the interpretation of this Standing Order. The fact that negotiations were to be held between parties, thus excluding independent Members, was also raised. (House of Commons Procedure and Practice, 2nd ed., p. 663)
Indeed, these concerns have gradually been addressed via various Speakers’ rulings, which have sought to clarify when and how time allocation motions can be used. In 2001, the House adopted a Standing Order allowing for a 30-minute questions and answers period (such as the one for closure motions) to be applied when a time allocation motion was moved without the agreement of any of the opposition parties, again to enhance ministerial accountability and allow the Government to justify the need for the time allocation motion.
What has happened over time is that whenever the opposition has found ways to use existing procedural rules to stymie the progress of Government business, the Standing Orders have been amended in order to either close that option or else introduce a new measure that would allow the Government to curtail it in some way. For example, in 1982, the Progressive Conservatives resorted to a filibuster tactic to block the Government’s Energy Security Bill. At that time, the Standing Orders provided no time limit for bells rung for unscheduled votes. A recorded vote was demanded on a motion to adjourn. The Opposition Whip refused to accompany the Government Whip into the Chamber to indicate to the Speaker their readiness to proceed with the vote. Consequently, the division bells rang continuously for over 14 days (Debates, March 2, 1982, pp. 15539-41; March 18, 1982, pp. 15555-7). As a result of this episode, the Standing Orders were amended so that now, division bells can ring for a maximum of either 15 or 30 minutes. Once they stop ringing, the vote proceeds, as long as the required quorum is present.
Another tactic used by Opposition parties in the past to cause a filibuster in the House of Commons is the constant raising of points of order and questions of Privilege. The Speaker must then rule on the length and relevancy of each point of order and question of Privilege raised. While most will be frivolous, this is not the point. The point is to stall debate for as long as possible. In 1981, the Progressive Conservatives employed such tactics in an attempt to block the Liberal Government’s constitutional reforms. Faced with the prospect of a time allocation motion to limit debate and force a vote, the PCs resorted to the aforementioned filibuster tactics. After two weeks of such manoeuvres, the Government moved a motion of closure.
There are few parliamentary procedures left that Opposition parties can exploit for the purpose of filibustering that can’t be countered by the Government. Apart from dragging out debate as long as possible by ensuring as many Members as possible speak and resorting to raising repeated points of order and questions of Privilege, there are also hoist amendments and reasoned amendments.
A hoist amendment is an amendment that may be moved to a motion for the second reading of a bill. Its effect is to prevent a bill from being “now” read a second time, and to postpone the reading for three or six months. If it is adopted, the bill is deemed withdrawn for the remainder of the current session. If it is defeated, the debate has nonetheless been extended as a result and Members enabled to speak a second time. Prior to 1920, because the House had so little time for Government business, it was the Government that resorted to hoist amendments. Since 1920, it has been used primarily by the Opposition as means of prolonging debate. However, only four have been successful, and all four where moved by the Government with the intent of disposing of a private Member’s bill.
A reasoned amendment, which may also be moved during debate on a motion for second reading, generally takes the form of a proposal that the House decline to give a bill second reading, for a specific reason. When a reasoned amendment is ruled in order, the House must dispose of it. To date, the House has never decided in favour of a reasoned amendment. Were it to do so, debate on the bill would end, as would debate on the motion for second reading of the bill. The order relating to the bill would then disappear from the Order Paper.
It should be noted that whatever filibustering still occurs in the House of Commons usually occurs in Committees, not in the House itself.
As stated in House of Commons Procedure and Practice, “one of the fundamental principles of parliamentary procedure is that debate in the House of Commons must lead to a decision within a reasonable period of time.” (p. 647) The key is to find a balance between the right to speak at as much length as seems desirable, and the right of parliament to make decisions. After all, while parliamentary Privilege gives Members freedom to say what they want without fear of legal prosecution, it does not grant them an unlimited right to speak.
(Click here for Part 2)