PARLIAMENT of CANADA
House of Commons Procedure and Practice
Edited by Robert Marleau and Camille Montpetit
2000 EditionMore information …
 Search 
Previous PageNext Page

13. Rules of Order and Decorum

Rules Regarding the Contents of Speeches

References to Members

During debate, Members do not refer to one another by their names but rather by title, position or constituency name in order to guard against all tendency to personalize debate. [135]  A Minister is referred to by the portfolio he or she holds. [136]  The two main party leaders are generally referred to as the Right Honourable Prime Minister and the Honourable Leader of the Opposition, and other party leaders are identified with their parties. [137]  Former Prime Ministers sitting in the House are also referred to as Right Honourable, as are other Members with this designation. Parliamentary Secretaries, House Leaders and Party Whips are typically designated by the posts they hold.

The Speaker will not allow a Member to refer to another Member by name even if the Member is quoting from a document such as a newspaper article. As the Chair noted, a Member “cannot do indirectly what cannot be done directly.” [138] 

It is unacceptable to allude to the presence or absence of a Member or Minister in the Chamber. [139]  The Speaker has traditionally discouraged Members from signalling the absence of another Member from the House because “there are many places that Members have to be in order to carry out all of the obligations that go with their office.” [140] 

Remarks directed specifically at another Member which question that Member’s integrity, honesty or character are not in order. [141]  A Member will be requested to withdraw offensive remarks, allegations, or accusations of impropriety directed towards another Member. [142]  The Speaker has no authority to rule on statements made outside the House by one Member against another. [143] 

Reflections on the House and the Senate

Disrespectful reflections on Parliament as a whole, or on the House and the Senate as component parts of Parliament are not permitted. [144]  Members of the House and the Senate are also protected by this rule. In debate, the Senate is generally referred to as “the other place” and Senators as “members of the other place”. [145]  References to Senate debates and proceedings are discouraged [146]  and it is out of order to question a Senator’s integrity, honesty or character. [147]  This “prevents fruitless arguments between Members of two distinct bodies who are unable to reply to each other, and guards against recrimination and offensive language in the absence of the other party.” [148] 

Reflections on the Chair

Reflections must not be cast in debate on the conduct of the Speaker or other presiding officers. [149]  It is unacceptable to question the integrity and impartiality of a presiding officer and if such comments are made, the Speaker will interrupt the Member and may request that the remarks be withdrawn. [150]  Only by means of a substantive motion for which 48 hours’ written notice has been given, may the actions of the Chair be challenged, criticized and debated. [151]  Reflections on the character or actions of the Speaker or other presiding officers have been ruled to be breaches of privilege. [152] 

References to the Sovereign, Royal Family, Governor General and Members of the Judiciary

Members are prohibited from speaking disrespectfully of the Sovereign, the Royal Family, the Governor General or the Administrator of the Government of Canada (in the absence of the Governor General). [153]  In the same way, a reference to anyone of these persons is also prohibited when it appears to be used to influence the work of the House. [154]  As noted in May: “ … Her Majesty cannot be supposed to have a private opinion, apart from that of her responsible advisers; and any attempt to use her name in debate to influence the judgement of Parliament is immediately checked and censured. This rule also extends to other members of the royal family, but it is not strictly applied in cases where one of its members has made a public statement on a matter of current interest so long as comment is made in appropriate terms.” [155] 

All attacks and censures of judges and courts by Members in debate have always been considered unparliamentary and, consequently, treated as breaches of order. [156]  As Acting Speaker McClelland explained to the House, “This is a longstanding tradition in our Parliament that we be cautious when we attack individuals or groups, particularly in the judiciary, and those who are unable to come in here and have the same right of free expression as we enjoy with impunity here.” [157]  While it is permissible to speak in general terms about the judiciary or to criticize a law, it is inappropriate to criticize or impute motives to a specific judge or to criticize a decision made under the law by a judge. [158] 

Reference by Name to Members of the Public

Members are discouraged from referring by name to persons who are not Members of Parliament and who do not enjoy parliamentary immunity, except in extraordinary circumstances when the national interest calls for the naming of an individual. The Speaker has ruled that Members have a responsibility to protect the innocent, not only from outright slander but from any slur directly or indirectly implied, and has stressed that Members should avoid as much as possible mentioning by name people from outside the House who are unable to reply and defend themselves against innuendo. [159] 

Reference to Previous Debates and Proceedings

In the past, reference to prior debates of the current session were generally discouraged in order to economize the time of the House and to prevent Members from reviving a debate that had concluded, unless the remarks were relevant to the matter under discussion. [160]  Today, the Speaker’s attention is rarely, if ever, drawn to breaches of this rule. Generally, Members should not quote from their former speeches or from the speeches of their colleagues made during the current session; [161]  the rule does not apply to speeches on different stages of a bill. [162]  Direct reference is permitted, however, when a Member wishes to complain of something said or to clear up a misrepresentation or make a personal explanation. [163] 

Members may not speak against or reflect upon any decision of the House. [164]  This stems from the well-established rule which holds that a question, once put and carried in the affirmative or negative, cannot be questioned again. Such reflections are not in order because the Member is bound by a vote agreed to by a majority. [165]  The Chair has been quick to call attention to reflections on votes. [166]  However, if a Member gives notice of his or her intention to move a motion that a vote be rescinded, the House may reconsider an earlier resolution or order. [167] 

Unparliamentary Language

The proceedings of the House are based on a long-standing tradition of respect for the integrity of all Members. Thus, the use of offensive, provocative or threatening language in the House is strictly forbidden. Personal attacks, insults and obscene language or words are not in order. [168]  A direct charge or accusation against a Member may be made only by way of a substantive motion for which notice is required. [169] 

If language used in debate is questionable, the Speaker will intervene. Nonetheless, any Member who feels aggrieved by a remark or allegation may also bring the matter to the immediate attention of the Speaker on a point of order. Points of order may not be raised during Members’ Statements or Question Period, [170]  however, the Speaker may address a matter of unparliamentary language at once if he or she believes the matter to be sufficiently serious to require immediate attention. [171]  Normally, the matter is resolved at the conclusion of Question Period. [172]  Since the Speaker must rule on the basis of the context in which the language was used, points of order raised in regard to questionable language must be raised as soon as possible after the irregularity has occurred. [173] 

If the Speaker did not hear the alleged unparliamentary language or if there is a dispute as to the words actually used, the Chair may set aside the matter pending a review of the record and, if necessary, return to the House at a later time with a ruling. [174]  The Speaker has also ruled that if the Chair did not hear the offensive word or phrase and if the offensive language was not recorded in Debates, the Chair cannot be expected to rule where there is no record. [175] 

In dealing with unparliamentary language, the Speaker takes into account the tone, manner and intention of the Member speaking; the person to whom the words were directed; the degree of provocation; and, most importantly, whether or not the remarks created disorder in the Chamber. [176]  Thus, language deemed unparliamentary one day may not necessarily be deemed unparliamentary the following day. The codification of unparliamentary language has proven impractical as it is the context in which words or phrases are used that the Chair must consider when deciding whether or not they should be withdrawn. [177]  Although an expression may be found to be acceptable, the Speaker has cautioned that any language which leads to disorder in the House should not be used. Expressions which are considered unparliamentary when applied to an individual Member have not always been considered so when applied “in a generic sense” or to a party. [178] 

Should the Speaker determine that offensive or disorderly language has been used, the Member will be requested to withdraw the unparliamentary word or phrase. The Member must rise in his or her place to retract the words unequivocally. The Member’s apology is accepted in good faith and the matter is then considered closed. [179]  However, if the Member persists in refusing to obey the directive of the Speaker to retract his or her words, the Chair may refuse to recognize the Member until the words have been withdrawn [180]  or may “name” the Member for disregarding the authority of the Chair and order him or her to withdraw from the Chamber for the remainder of the sitting. [181] 

In 1991, following several incidents of unparliamentary language, [182]  a government motion respecting decorum and civility was brought before the House. The motion was debated on three occasions but never came to a vote. [183] 

Repetition and Relevance in Debate

The rules of relevance and repetition [184]  are intertwined and mutually reinforcing. The requirement of relevance is necessary in order that the House might exercise its right to reach a decision and to exclude from debate any discussion which does not contribute to that process. The rule against repetition ensures that once all that is relevant to the debate has been presented, the question will be determined once and for all, at least during the current session. To have one rule without the other would seriously limit the ability of the House to use its time efficiently.

The rules respecting relevance and repetition are somewhat difficult to define and enforce. The rule against repetition can be invoked by the Speaker to prevent a Member from repeating arguments already made in the debate by other Members or the same Member. [185]  The rule of relevance, on the other hand, is used to keep a Member from straying from the question before the House or committee. It is not always possible to judge the relevance (or the repetition) of a Member’s remarks until he or she has made some progress in or completed his or her remarks. [186]  In practice, the Speaker allows some latitude— if the rules are applied too rigidly, they have the potential for severely curtailing debate; if applied too loosely and precious debating time is lost, they may prevent other Members from participating in debate. Individual circumstances, the mood of the House and the relative importance of the subject of debate will influence how strictly the Speaker interprets these rules.

In exercising the power to maintain the rules against irrelevance and repetition, the Speaker can call a Member to order and, if necessary, warn the Member that he or she risks being directed to discontinue his or her speech. Such warnings are usually sufficient. However, should the Member continue being irrelevant or repetitious, the Speaker can proceed to recognize another Member or, if no other Member wishes to speak, to put the question. In the event that the Member should disregard the Speaker’s instruction or direction, the Speaker has the authority to “name” the Member. [187] 

Historical Perspective

It is not certain when the British House of Commons originally adopted the practice of restraining debate that was either repetitious or irrelevant. However, it seems to have been well established by the end of the sixteenth century. A manual of procedure dating from the era of the Elizabethan Parliaments listed among the powers of the Speaker the right to call a Member to order when “any speak to a Bil[sic] and be out of the matter”. [188]  During the same period, Speaker Popham, upon his election to the Chair in 1580, requested that Members “speak to the matter … and not to spend too much time in unnecessary motions or superfluous argument”. [189]  The Journals for 1604 suggest that the rule of relevance was adopted that year as an order of the House and Hatsell cited it in this form: “That if any man speak impertinently, or beside the question in hand, it stands with the orders of the House for the Speaker to interrupt him, and to know the pleasure of the House, whether they will further hear him.” [190]  In addition to this rule, the House soon thereafter adopted another prohibiting repetition. [191]  Both rules were difficult to enforce, particularly that on relevance which obliged the Speaker to obtain the support of the House in order to direct a Member to keep to the subject of debate. During the eighteenth century, interventions by Speakers were so rare that Members sometimes resented interruptions when they did take place. Even so formidable a character as Speaker Arthur Onslow could not manage to enforce the rule by his own authority. [192] 

When in 1867, the Canadian House of Commons adopted its rules, no reference was made to repetition in debate, and the rule on relevance was mentioned only in the context of a general order of debate which enjoined Members not to “speak beside the question in debate”. [193]  Beyond advising the Member to speak to the subject, the Speaker depended almost entirely upon the support of the House and the goodwill of the Members to uphold the rule.

In a revision of the rules in 1910, the power of the Speaker was augmented. The Chair was empowered to direct a Member to discontinue his or her speech if the Chair deemed it either irrelevant or repetitious after having called the attention of the House to the matter. [194]  In moving the adoption of this rule, Prime Minister Wilfrid Laurier observed that it was “the English rule copied word for word”. [195]  This was hardly less true of the rule which dealt with relevance in a Committee of the Whole and which was adopted at the same time: “Speeches in Committee of the Whole must be strictly relevant to the item or clause under consideration.” [196] 

When the rules were revised in 1927, the role of the Speaker was further clarified. Anticipating the circumstances when a Member might refuse to accept the direction of the Speaker, a special committee on procedure provided for that event by giving the Speaker the power to “name” the recalcitrant Member or, if in committee, to permit the Chairman to report the Member to the House. These changes were accepted by the House without amendment or debate and have remained unchanged to the present time. [197] 

The Rule Against Repetition

The rule prohibiting repetition is designed primarily to safeguard the right of the House to reach a decision and to guard against the inefficient use of the time of the House. Although the principle is clear and sensible, it has not always been easy to apply. [198]  The scope of the rule permits the Speaker to exercise considerable discretion. The Chair can use the rule to curtail prolonged debate by limiting Members’ speeches to points which have not already been made. [199]  In the context of the legislative process, this latter restriction applies to the Members’ remarks only within the same stage of debate on a bill. Arguments advanced at one stage may legitimately be represented at another. The purpose of the rule is to safeguard the right of the House to reach a decision. The freedom of debate enjoyed by Members does not extend to the right to repeat arguments that have already been heard. [200] 

Finally, the rule against repetition has been used by Speakers in various other ways to assist the House in making efficient use of its time. Speakers have ruled out of order the tedious reading of letters even when they were used to support an argument; [201]  the asking of a question during Question Period which was similar to another already asked that day; [202]  and the repeating of questions of privilege on the same subject matter. [203] 

The Rule of Relevance

Although the House now has rules to limit the length of speeches, at one time there were few limits and debate often strayed beyond the subject in question. In 1882, Bourinot felt the need to add this comment to his study on parliamentary practice:

A just regard to the privileges and dignity of Parliament demands that its time should not be wasted in idle and fruitless discussion; and consequently every member, who addresses the house, should endeavour to confine himself as closely as possible to the question under consideration. [204] 

This advice still applies today as the business of government is much more complex and the time of the House is limited. Thus, should a Member stray from the question before the House, the Speaker invokes the rule of relevance. In many instances, the Speaker has done this by indicating to a Member who has been called to order, the proper subject matter of the debate and how the Member’s remarks were irrelevant. [205]  In particular, during the 10-minute questions and comments period following most speeches, if a Member does not address his or her remarks to the arguments expressed in the speech, the Chair will invoke the rule of relevance. [206]  Despite such instances, Speakers tend to be mindful of the need for some leniency in applying the rule. [207]  Speakers have allowed reference to other matters in debate, if they were made in passing and were not the principal theme of the speech. [208] 

The rule of relevance applies not only to debate on a main motion but also to any proposed amendments to the main motion. [209]  Should an amendment be proposed to a motion, the rule of relevance requires that debate be limited to that amendment until it is disposed of by the House. [210]  Arguments ruled irrelevant during debate on a main motion are similarly irrelevant if introduced as the substance of an amendment. Even if the amendment proposes to replace all the words in the main motion after “that” and substitute an alternative proposition, debate is restricted to the main motion and the amendment; further alternative propositions are irrelevant. [211]  Once an amendment is disposed of by the House, it then becomes possible to debate the main motion in its full scope or to consider another amendment.

The previous question has a character that is exceptional with respect to the rule of relevance. “That the question be now put” does nothing to hinder debate on the original motion. On the contrary, Members who have already participated in the debate may speak on the motion again, after the previous question has been moved. [212] However, care must be taken to avoid repetition.

Bills

The relevance of debate to a motion before the House applies especially to the consideration of bills as they proceed through the several stages prior to their adoption. According to the practice which developed originally in the British House of Commons, “each stage is regarded as having its own peculiar function and to a certain extent its more or less limited range of debate.” [213]  These functions, in turn, provide both the Speaker and the House with guidelines by which to apply the rule of relevance. Thus, for example, the second reading stage of a bill is limited to debate on its principle, whereas debate at report stage treats only motions offered in amendment to a bill. Despite the several occasions allowed to the House to discuss a bill, the scope of debate is supposed to be different at each stage.

•  Second Reading

During debate on second reading, there is a frequent temptation to delve into the clauses of a bill instead of considering the principle of the bill. Such debate is in breach of the rule of relevance. Most interruptions made by the Speaker are usually directed at preventing Members from discussing specific provisions of the bill rather than its principle. [214]  In one ruling, the Speaker stated quite clearly that “on a motion for second reading it is out of order to discuss the clauses of the bill.” [215]  When the House is considering an amending bill, the rule requires that debate at second reading be limited to the principle of the amending bill and not the subject matter of the Act which it is amending. [216] 

•  Committee Stage

The referral of a bill to a committee opens the way for close examination of its contents, clause by clause. Today, most bills are sent to standing committees for study, but in the past, the consideration of bills more often took place in a Committee of the Whole and it was in this larger forum that the practice governing the scrutiny of bills developed. Pursuant to the Standing Orders, speeches made in a Committee of the Whole must be strictly relevant to the item or clause under consideration. [217]  Chairmen have frequently cited this rule and requested that Members observe it. [218]  The same practice applies in standing, special or legislative committees considering bills.

An important exception to the rule of relevance in committee is found in the wide-ranging debate permitted on Clause 1, or that clause which follows the short title clause. Although there is no provision for this practice in the Standing Orders, it has become an accepted practice since at least the 1930s. [219]  Over the years, Chairmen have grappled with the rules of debate on Clause 1 and have established certain limitations. These include proscriptions against repetition of second reading debate and against the anticipation of clause by clause debate. [220]  Moreover, general debate on Clause 1 cannot extend outside the contents of the bill. [221]  A further limitation arises when an amendment has been proposed to Clause 1. In the words of a Chairman who ruled on the issue: “Once an amendment has been moved, I think discussion should be confirmed [sic] to the amendment until the matter has been disposed of but, afterward, other general remarks can be made.” [222]  This judgement has been confirmed by practice and by a later ruling. [223] 

•  Report Stage

According to Beauchesne, the report stage of a bill “is one of reconsideration of events which have taken place in committee. The consideration of a bill is now a more formal repetition of the committee stage with the applicable rules of debate which are proper when the Speaker is in the Chair.” [224]  Report stage motions are amendments to clauses in a bill which seek to change, to delete or to restore those clauses. To avoid excessive repetition of debate, the Speaker has the power to select and to combine motions in amendment. [225]  The Speaker can also control debate through the use of the relevance rule as applied to debate on clauses of a bill. Despite the resemblance of debate at report stage to that at committee stage, there is no allowance for a wide-ranging discussion of a bill as occurs by practice in committee on study of Clause 1. [226] 

•  Third Reading

Debate on third reading is designed to review the legislative measure in its final form and is strictly confined to the contents of the bill. [227]  If an amendment is moved, debate should be relevant to that amendment until the House disposes of it. [228] 

Debates on the Address in Reply and the Budget

The traditions and practices of the House allow for the rule of relevance to be relaxed somewhat during debate on the motion for an Address in Reply to the Speech from the Throne. During the days allotted to the debate on this motion, Members have the opportunity “to bring forward topics of their own choosing”. [229]  Consequently, debate tends to be very wide-ranging and the Speaker usually makes no effort to apply the rule of relevance. This is not the case, however, when the House is debating the Budget. The remarks of Members must be relevant to the motion before the House. All the same, the terms of the motion (i.e., that the House approves of the general budgetary policy of the government) are sufficiently broad to permit Members great latitude in their remarks without violating the principle of the rule. [230] 

The Sub Judice Convention

During debate, restrictions are placed on the freedom of Members of Parliament to make reference to matters awaiting judicial decisions in the interests of justice and fair play. Such matters are also barred from being the subject of motions or questions in the House. While precedents exist for the guidance of the Chair, no attempt has ever been made to codify the practice known as the “sub judice convention”. [231]  The interpretation of this convention is left to the Speaker since no “rule” exists to prevent Parliament from discussing a matter which is sub judice, that is, “under the consideration of a judge or court”.

The sub judice convention is first and foremost a voluntary restraint on the part of the House to protect an accused person, or other party to a court action or judicial inquiry, from suffering any prejudicial effect from public discussion of the issue. [232]  Secondly, the convention also exists, as Speaker Fraser noted, “to maintain a separation and mutual respect between legislative and judicial branches of government”. [233]  Thus, the perception and reality of the independence of the judiciary must be jealously guarded. However, as Speaker Sauvé explained, the sub judice convention has never stood in the way of the House considering a prima facie matter of privilege vital to the public interest or to the effective operation of the House and its Members. [234] 

There are some situations in which the application of the sub judice convention has been fairly straightforward. The convention has been applied to motions, references in debates, questions and supplementary questions. [235]  It has also been applied consistently in criminal cases. However, the convention does not apply to bills, as the right of Parliament to legislate must not be limited. [236]  If the sub judice convention were to apply to bills, the whole legislative process could be stopped simply by the initiation of a writ or legal proceedings in one or other of the courts of Canada.

Criminal and Civil Cases

No distinction has ever been made in Canada between criminal courts and civil courts for the purpose of applying the convention, and it has also had application to certain tribunals other than courts of law. The sub judice convention exists to guarantee everyone a fair trial and to prevent any undue influence prejudicing a judicial decision or a report of a tribunal of inquiry. Indeed, in the view of the Special Committee on the Rights and Immunities of Members, “prejudice is most likely to occur in respect of criminal cases and civil cases of defamation where juries are involved.” [237] 

Where criminal cases are concerned, the precedents are consistent in barring reference to such matters before judgement has been rendered and during any appeal. Members are expected to refrain from discussing matters that are before a criminal court, not only in order to protect those persons who are undergoing trial and stand to be affected whatever its outcome, but also because the trial could be affected by debate in the House. [238]  It has been established that the convention would cease to apply, as far as criminal cases are concerned, when judgement has been rendered. [239]  The Speaker has confirmed that a matter becomes sub judice again if an appeal is entered following a judgement. [240] 

The precedents are not as consistent where civil cases are concerned. The convention has been applied on some occasions [241]  and not on others. [242]  However, in 1976, the Speaker ruled that no restriction ought to exist on the right of any Member to put questions respecting any matter before the courts, particularly those relating to a civil matter, unless and until that matter is at least at trial. [243]  Although nothing resembling a settled practice has developed in relation to civil cases, the Chair has warned on various occasions of the need for caution in referring to matters pending judicial decisions whatever the nature of the court. [244] 

Courts of Record and Royal Commissions

From the precedents, it is clear that the application of the convention is limited to tribunals designated by statute as courts of record. [245]  (A court of record is defined as follows: “A court that is required to keep a record of its proceedings, and that may fine or imprison. Such record imports verity and cannot be collaterally impeached.” [246] ) The sub judice convention does not apply, however, to matters referred to royal commissions, although the Chair has cautioned against making reference to the proceedings, evidence, or findings of a royal commission before it has made its report. [247] 

The Role of the Speaker

Since the sub judice convention is not codified and is voluntary, the jurisdiction of the Speaker in such matters is somewhat difficult to outline. The Speaker’s discretionary authority over matters sub judice derives from his or her role as guardian of free speech in the House. The Chair has the duty to balance the rights of the House with the rights and interests of the ordinary citizen undergoing trial. Indeed, the Speaker exercises discretion in exceptional cases only where it is clear that to do otherwise would be harmful to specific individuals. The problem facing a Speaker is that determining when a comment will have a tendency to influence is speculative business — it cannot be done until after the remarks have been made.

In its inquiry, the Special Committee on the Rights and Immunities of Members recommended that when there is doubt in the mind of the Chair, a presumption should exist in favour of allowing debate and against the application of the convention. [248]  The Committee concluded that while there can be no substitute for the discretion of the Chair, in the last resort all Members of the House should share in the responsibility of exercising restraint when it seems called for. [249]  A Member who feels that there could be a risk of causing prejudice in referring to a particular case or inquiry should refrain from raising the matter. Furthermore, a Member who calls for the suppression of discussion of a matter on grounds of sub judice should be obliged to demonstrate to the satisfaction of the Chair that he or she has reasonable grounds for fearing that prejudice might result. [250] 

It was also the view of the Committee that the responsibility of the Chair particularly during Question Period should be minimal in regard to the sub judice convention, and that the responsibility should principally rest upon the Member who asks the question and the Minister to whom it is addressed. Should a question to a Minister touch upon a matter sub judice, it is likely that the Minister involved will have more information covering the matter than the Speaker, and the Minister might be better able to judge whether answering the question might cause prejudice. In such a situation, the Minister could refuse to answer the question on these grounds, bearing in mind that refusal to answer a question is his or her prerogative. From the precedents, this appears to be the approach the Chair has taken. [251]  The Speaker has interrupted only if he or she has felt the sub judice convention was being breached. [252] 

Personal Explanations

The Chair may occasionally grant leave to a Member to explain a matter of a personal nature although there is no question before the House. This is commonly referred to by Members as “a point of personal privilege” and is an indulgence granted by the Chair. There is no connection to a question of privilege, and one Speaker noted, “There is no legal authority, procedural or otherwise, historic or precedential, that allows this.” [253]  Consequently, such occasions are not meant to be used for general debate and Members have been cautioned to confine their remarks to the point they wish to make. [254]  When granted, they have been used by Members notably to announce a resignation [255]  or to explain changes in party affiliation, matters affecting them which have occurred outside the Chamber or misinterpreted statements. [256] 


Top of documentPrevious PageNext Page