Chapter 2 — Basis of Procedure

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2.1Introduction

The Legislative Assembly’s procedures are the rules and practices which govern the conduct of the work of the Assembly and its Members. Like other jurisdictions, there are four main sources for the Assembly’s procedures: constitutional and statutory provisions; the Standing Orders; Speakers’ rulings establishing precedents; and customary practices, which may evolve over time.

2.2Constitutional Framework

A constitution is the first source of law in any legal system. Specific constitutional provisions govern the work of the Legislative Assembly and the exercise of its powers, including the election of a Member to serve as Speaker to preside over Assembly meetings; the appointment of another Member to act as Speaker in the Speaker’s absence; the presence of a quorum of Members to conduct business; decision-making by a majority of votes other than that of the Speaker (in the case of a tie, the Speaker has a vote); the authorization of public expenditures and taxes; and the ability to define the privileges, immunities and powers which are necessary for the Assembly and its Members to fulfill their legislative and deliberative functions. These are derived from the Constitution Act, 1867 (previously known as the British North America Act, 1867).

There are four main sources for the Legislative Assembly’s procedures: constitutional and statutory law; the Standing Orders; Speakers’ rulings establishing precedents; and customary practices.

Under the constitutional convention of responsible government, outlined in greater detail in Chapter 1 (Legislative Assembly Overview), the Premier and Cabinet hold office with the support of a majority of the Legislative Assembly’s Members and are answerable to the elected Assembly for government policies, programs and decisions.

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In setting its procedures, the Assembly establishes what has been described as an important part of the constitutional framework for parliamentary democracy.
C.E.S. Franks, an eminent Canadian constitutional scholar, noted:

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2.3Statutory Provisions

The Legislative Assembly’s constitutional rules of operation are described in the provincial Constitution Act (R.S.B.C. 1996, c. 66), including a quorum of ten Members and the ability of the Assembly to define its privileges and those of its Members, within certain parameters, further outlined in Chapter 17 (Parliamentary Privilege). The Act includes additional provisions which govern the functioning of the Legislative Assembly: a requirement that the Assembly adopt standing rules and orders for the conduct of business (s. 45); the defining of the leader of a recognized political party (other than the Premier or Leader of the Official Opposition) as a Member who is the leader of a registered party represented by two or more Members in the Assembly (s. 1); the taking of an oath of allegiance by Members (s. 24); prohibited activities by Members (s. 25); the appointment of a Deputy Speaker (s. 37(3)); powers of parliamentary committees (ss. 52-5); certain functions of the Clerk of the Legislative Assembly (ss. 5, 6, 49, 55); and the appointment of Assembly staff (s. 39).

Other statutes shape the work of the Assembly: the provincial Election Act (R.S.B.C. 1996, c. 106) and the Electoral Boundaries Commission Act (R.S.B.C. 1996, c. 107), respecting the election of Members and their number and electoral boundaries; the Legislative Assembly Privilege Act (R.S.B.C. 1996, c. 259); the Members’ Conflict of Interest Act (R.S.B.C. 1996, c. 287); the Members’ Remuneration and Pensions Act (R.S.B.C. 1996, c. 257); and the Legislative Assembly Management Committee Act (R.S.B.C. 1996, c. 258), providing for the Assembly’s administration, financial management and governance.

Since B.C. joined Canada, the Legislative Assembly has adopted a framework of financial legislation to govern the authorization and administration of public expenditures and taxation. Assembly procedures for the consideration and approval of financial initiatives are outlined in Chapter 12 (Financial Procedures). This statutory framework includes the provincial Financial Administration Act (R.S.B.C. 1996, c. 138); the Budget Transparency and Accountability Act (S.B.C. 2000, c. 23); the Balanced Budget and Ministerial Accountability Act (S.B.C. 2001, c. 28); and the Auditor General Act (S.B.C. 2003, c. 2).

Many statutes require Ministers to table certain documents from public organizations in the Legislative Assembly, or provide that the Speaker do so, such as reports from statutory officers. A number of acts mandate reviews of statutes by a parliamentary committee of the Assembly. Legislation for the province’s nine statutory officers includes provisions for the appointment and dismissal of statutory officers, specific legislated mandates and reporting relationships to the Assembly.

Constitutional or statutory provisions which apply to the Legislative Assembly take precedence over all other sources of procedure.

2.4Standing Orders

The provincial Constitution Act (s. 45) affirms the key parliamentary principle that, within the boundaries established by constitutional and statutory provisions, the rules and 26 practices of a parliamentary jurisdiction are determined by the Members themselves of that jurisdiction: “…the Legislative Assembly must adopt standing rules and orders for the orderly conduct of its business.”

The Standing Orders of the Legislative Assembly of British Columbia are the formal written rules adopted by the Legislative Assembly to govern its proceedings and that of its parliamentary committees, under constitutional authority and the requirement in the provincial Constitution Act (s. 45).

The Standing Orders are the written rules adopted by the Members of the Legislative Assembly which govern its proceedings and that of its committees.

The Standing Orders are the continuing, or standing, rules of the Legislative Assembly. They balance the important roles and responsibilities of government and opposition caucuses in the Assembly’s accountability and oversight, law-making, financial and representative functions. They do not expire at the end of a Session or Parliament and are binding unless the Assembly agrees to suspend, change or amend them. A key objective of the Standing Orders is to support and implement constitutional and statutory requirements as the Assembly has determined they should apply to the conduct of business. For example, there are detailed provisions for the election of a Speaker in order to meet the Legislative Assembly’s obligation to elect a Speaker at its first meeting after a provincial general election; extensive Standing Orders govern the consideration of legislation; and numerous Standing Orders facilitate the consideration of financial business to fulfill the requirement that the Assembly authorize all public expenditures and taxation measures. They govern the conduct of the business of the Legislative Assembly and Members, including the role of the Speaker, the parliamentary calendar, speaking times and time limits for speeches and debates, and the operation of Assembly proceedings and processes.

The Speaker and other Presiding Officers are responsible for the application of the Standing Orders and deciding on any questions about their interpretation.

The Legislative Assembly can suspend, change or replace the Standing Orders by consensus or majority vote. Two days’ notice is required for any motion to change the Standing Orders. Such notice may be waived with the unanimous consent of the Assembly, also known as leave (see Standing Orders 48 and 49). Notice requirements and motions are outlined in Chapter 9 (Motions).

2.4.1Sessional Orders

A Sessional Order is a change to the Standing Orders which continues for the duration of a Session of Parliament, or until rescinded or repealed by the Legislative Assembly. Sometimes a Sessional Order is used as a means to experiment with a new rule (for example, 27 Sessional Orders which first introduced the proceeding of Oral Question Period in the Legislative Assembly). If Members of the Legislative Assembly agree that the experiment is successful, a Sessional Order may lead to an eventual permanent change in the Standing Orders.

2.4.2Special Orders

A Special Order is a temporary change to the Standing Orders which applies for a special or single occasion only. For example, on February 9, 2010, the Legislative Assembly agreed that on February 11, 2010, its proceedings be suspended in order to allow the Prime Minister of Canada to address the Assembly (see B.C. Journals, February 9, 2010, p. 1).

2.5Review of the Standing Orders

From time to time, Members may decide to review or amend the Legislative Assembly’s rules and practices to reflect their evolving responsibilities and circumstances. Since rules and practices affect all Members, a process of prior consultation may facilitate the Assembly’s consideration of procedural changes. However, it is recognized that consultations may not always produce a consensus in a parliamentary environment. This approach is also reflected in House of Commons Procedure and Practice, which notes:

As noted, the Legislative Assembly may agree to amend the Standing Orders to reflect a longstanding practice or a Sessional or Special Order. Alternatively, a specific rule or rules may be modified to reflect a new development or circumstance.

Members may decide to review or amend the Legislative Assembly’s rules and practices to reflect their evolving responsibilities and circumstances.

British Columbia has taken what has been described as a practical or business-oriented approach to procedural matters in order to address changing needs and new developments. The Legislative Assembly has used a number of mechanisms — including all-party parliamentary committees, the Legislative Assembly Management Committee and the Legislative Procedure Review Act (R.S.B.C. 1996, c. 261) — to consider complex issues or specific procedural matters.

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For example, on October 31, 2016, the all-party Select Standing Committee on Parliamentary Reform, Ethical Conduct, Standing Orders and Private Bills issued a report on two matters regarding the conduct of Legislative Assembly business: the process for the review of Estimates by the Committee of Supply; and allowing parliamentary committees to be established for the duration of a Parliament, rather than the current practice of committees being established on a sessional basis (see B.C. Journals, May 18, 2016, p. 93).

2.5.11930 Changes to the Standing Orders

The Legislative Assembly resolved in February 1929 to appoint a parliamentary committee to consider a draft revision to the Standing Orders prepared by the Clerk of the Legislative Assembly under a March 1928 decision of the Assembly (see B.C. Journals, February 6, 1929, p. 32; March 13, 1928, p. 162). The Committee’s February 1930 report recommended the repeal of the Assembly’s Rules, Orders and Forms of Proceeding and their replacement with the new Standing Orders. The Committee’s report was adopted on February 20, 1930, and the new Standing Orders took effect on May 1, 1930 (see B.C. Journals, February 20, 1930, p. 89; February 17, 1930, p. 73). Newspaper coverage noted that after the “hard work” of the parliamentary committee, the recommendations had been “harmoniously considered” by the Assembly (Victoria Times, February 20, 1930).

2.5.21973 Changes to the Standing Orders

In February 1973, the Select Standing Committee on Standing Orders and Private Bills released a report recommending the commencement of a 15-minute Oral Question Period. The report was subsequently adopted by the Legislative Assembly. A Sessional Order was then adopted to establish an Oral Question Period. The Committee’s consideration of this initiative followed its consideration of a similar recommendation in a report presented in the Assembly by the Speaker under the Legislative Procedure and Practice Inquiry Act, now called the Legislative Procedure Review Act (see B.C. Journals, February 27, 1973, pp. 118-9).

2.5.31985 Changes to the Standing Orders

In March 1984, the Select Standing Committee on Standing Orders and Private Bills was given a mandate to review the Assembly’s Standing Orders and make recommendations for “improving and better facilitating all aspects of proceedings in the House and Committees thereof.” The Committee’s report was presented on February 11, 1985, with recommendations for a substantial revamping of the Standing Orders, including the abolishment of appeals to the Speaker’s rulings. The report was unanimously adopted on February 12, 1985, followed by the implementation of significant changes to Standing Orders and practice recommendations (see B.C. Journals, February 12, 1985, p. 135; February 11, 1985, p. 133).

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2.5.4Legislative Assembly Management Committee

In addition to its administrative and financial responsibilities, the Legislative Assembly Management Committee has previously also served as a sounding board on administrative and other matters affecting Members and the Assembly’s procedures and practices. For example, on November 7, 1996, the Committee resolved “That the Standing Orders of the House be reprinted in gender-neutral language and that a motion reflecting this decision be moved in the House by the Government and Opposition House Leaders when the House next sits.” The Assembly adopted a motion to this effect in 1997 (see B.C. Journals, April 2, 1997, p. 17).

The Committee receives recommendations on administrative and financial matters from its advisory subcommittee, the Finance and Audit Committee. The role of the Legislative Assembly Management Committee is outlined in greater detail in Chapter 18 (Administrative Support and Management).

2.5.5Legislative Procedure Review Act (R.S.B.C. 1996, c. 261)

The Legislative Procedure Review Act has served in the past as a further mechanism to support the review of Legislative Assembly procedures and other matters. The Act enables the Speaker to act as a special commissioner “to investigate, inquire into and, if considered advisable, make recommendations to the Legislative Assembly respecting the usages, customs, practices and procedures of the Legislative Assembly, the rules, Standing Orders and the conduct of business of the Legislative Assembly…” (s. 1(1)). The Act also enables the review of procedures and processes related to the proceedings of the Assembly (s. 1(2)) and authorizes the Speaker to appoint other persons, including Members of the Legislative Assembly, to serve as commissioners and assist with this function (s. 2).

On June 28, 1979, Speaker Schroeder tabled a report on the parliamentary committee system prepared by the commissioner, E. George MacMinn, who was then the Deputy Clerk of the Legislative Assembly (see B.C. Journals, June 28, 1979, p. 48). A report by the same commissioner titled The Speaker and the Legislative Assembly of British Columbia was tabled on April 28, 1982 (see B.C. Journals, April 28, 1982, p. 59), and a further report, Committees of the Legislature, Report No. 2, was tabled on July 28, 1982 (see B.C. Journals, July 28, 1982, p. 249). Previous publications of Parliamentary Practice in British Columbia were also produced under the Legislative Procedure Review Act.

2.6Speakers’ Rulings

Although the Standing Orders contain detailed procedures for the conduct of Assembly business, they are not exhaustive. Similarly, the Assembly’s practices may not apply to all situations or to the changing circumstances or requirements of the Assembly and its Members.

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Standing Order 9 requires that the Speaker “shall decide questions of order and practice.” The Speaker may address a question about the interpretation of a rule or practice through a statement or a ruling. Statements “seek to convey information or clarification to Members” (House of Commons Procedure and Practice, 3rd ed., pp. 268-9). For example, in 2017, the Speaker made a statement which provided information on Assembly guidelines for the introduction of guests by Members and the use of electronic devices in the Chamber (see B.C. Journals, November 22, 2017, p. 67).

A Speaker’s ruling is a decision based on the Legislative Assembly’s rules and practices and how they should be applied or interpreted. In this context, House of Commons Procedure and Practice notes:

At other times, a ruling may be provided to address new factors or changes to circumstances for which there are no clear authorities or precedents. Describing “the fine balancing act that is often involved in adapting old rules to new situations,” House of Commons Procedure and Practice cites the following comment by a former Speaker of the House of Commons: “When interpreting the rules of procedure, the Speaker must take account not only of their letter but of their spirit and be guided by the most basic rule of all, that of common sense” (3rd ed., p. 269).

A Speaker’s ruling is a decision based on the Legislative Assembly’s rules and practices and how they should be applied or interpreted.

In making a ruling, the Speaker indicates the reason and cites the Standing Order or other authority for a decision and may be guided by precedents to determine how the Standing Order is applied or interpreted. In applying the Standing Orders to new situations, Speakers’ rulings become a source of modern practice and a precedent for the conduct of future business, although every situation is examined on its own merits. Pursuant to Standing Order 9, debate or appeal of a decision by the Speaker is not permitted.

Typically, a Speaker’s ruling will be made in response to a point of order, which is the procedure for raising a question about a particular rule or practice. While a point of order may be raised at nearly any time during proceedings of the Legislative Assembly, in practice, “Points of order respecting procedure must be raised promptly and before the question has passed to a stage at which the objection would be out of place. As a 31 point of order concerns the interpretation of the rules of procedure, it is the responsibility of the Speaker to determine its merits and to resolve the issue” (House of Commons Procedure and Practice, 3rd ed., p. 637).

The Speaker may permit Members to address the issue raised and may take the point of order “under advisement” to render a decision at a later time or may rule immediately. The Speaker also has discretion to intervene immediately to preserve order and decorum. Further information on points of order is outlined in Chapter 6 (Order and Decorum).

The Speaker makes decisions on rules and practices of the Legislative Assembly but does not rule on constitutional or statutory provisions: “…while Speakers take the Constitution and statutes into account when preparing a ruling, numerous Speakers have explained that it is not up to the Speaker to rule on the constitutionality or legality of measures” (House of Commons Procedure and Practice, 3rd ed., p. 269).

The Speaker may also make a statement in the Chamber or issue a memorandum to Members with guidelines to assist them with the application of Assembly procedures and practices. On April 9, 1997, the Speaker made a statement in the Assembly on guidelines relating to the use of a language other than English when addressing the Assembly. The Speaker has issued memoranda to Members with guidance on various procedural matters, including guidance to Members on March 15, 2018, regarding the presence of infants in the Chamber, following the Assembly’s March 8, 2018, agreement to change Standing Order 23 to provide that “A stranger does not include an infant being cared for by a Member.” On February 17, 2014, and November 22, 2017, the Speaker issued guidelines on the use of electronic devices during parliamentary proceedings, which were subsequently superseded by the Assembly’s addition of a new Standing Order 17A respecting the use of electronic devices.

2.7Practice

Much of the Legislative Assembly’s conduct of business, like that of other parliamentary jurisdictions, is based on traditional practices — sometimes called conventions, customs, or usages — which are not expressly set out in the Standing Orders but are accepted as guidance for the conduct of Assembly business. Practices must be consistent with the Standing Orders or Sessional and Special Orders. Examples of Assembly practices include the conduct of Oral Question Period; Ministerial Statements (which are not covered in the Standing Orders); the use of parliamentary symbols such as the Mace; the sub judice convention whereby Members generally refrain from making reference to matters before the courts or in a judicial inquiry; the requirement for Members to refer to each other by electoral district name or ministerial portfolio rather than by name; and the prohibition on the use of props.

As with the Standing Orders, the Speaker and other Presiding Officers are responsible for the application of Assembly practices and for deciding any questions about their interpretation (see Erskine May, 25th ed., §§4.24-4.26, pp. 59-60; House of Commons Procedure and Practice, 3rd ed., pp. 257-74).

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In this way, constitutional and statutory provisions, Standing, Sessional and Special Orders, Speakers’ rulings and practices form the basis of the Assembly’s parliamentary procedure.

2.8Sources for Speakers’ Rulings

2.8.1Standing, Sessional and Special Orders

When a question of procedure needs to be decided, the Speaker’s first resort is to the Standing Orders. An express rule or order adopted by the Legislative Assembly, whether Standing, Sessional or Special, supersedes every mere practice or precedent.

2.8.1.1Cases Not Provided in the Standing, Sessional and Special Orders

In procedural situations not provided in the Standing, Sessional or Special Orders, the Standing Orders authorize the Speaker to follow the precedents and practices of the Assembly first, and secondly, those of the House of Commons of the United Kingdom as far as they may be applicable to the Assembly.

In B.C., like other jurisdictions based on the Westminster parliamentary system, Standing Order 1 initially specified that in cases not provided in the Standing Orders and Sessional or other Orders, the rules and practices of the U.K. House of Commons should be followed. As B.C. and other Commonwealth jurisdictions developed their own practices to suit their evolving requirements, primary or unilateral reliance on the U.K. has been decreasing.

In 1985, Standing Order 1 was amended to provide the Assembly with express authority to follow its own rules and practices for the determination of procedure in unprovided cases.

2.8.2Previous Speakers’ Rulings

In the absence of an express rule or order, what can or ought to be done is best informed by the Legislative Assembly’s practices and precedents. In the interpretation of the rules, the Assembly is generally guided not so much by the literal construction of the Orders themselves as by the consideration of what has been the practice of the Assembly with respect to them (see Bourinot, 4th ed., p. 205).

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In this consideration, Speakers also draw on the decisions of their predecessors, unless the relevant Standing Orders have since been amended or a previous ruling is not consistent with new developments or changed circumstances.

2.8.3United Kingdom House of Commons Rules and Practices

A further problem was resolved by the wording of the 1985 changes to the Standing Order. The old Standing Order incorporated the words “in force at the time,” with reference to the usages and customs of the United Kingdom. The question then arose: at what time? While there were several authoritative opinions on the interpretation of this phrase, the ambiguous wording posed an unnecessary complication and was dropped in the 1985 revisions to the Standing Orders.

The revised B.C. Standing Order acknowledges that past and present U.K. rules and practices may continue to have relevance. In this regard, a November 2017 ruling of Speaker Plecas cited comments in Erskine May, 24th ed., p. 445, which included recent U.K. practices on unparliamentary expressions (see B.C. Journals, November 7, 2017, pp. 58-9). A 1983 ruling of Speaker Davidson indicated that a reference to U.K. House of Commons Standing Orders may be permitted under certain circumstances (see B.C. Journals, October 11, 1983, pp. 226-8).

Other Canadian jurisdictions have also adapted their Standing Orders to emphasize their reliance on the procedures and practices of their particular jurisdiction, supplemented by the lessons and good practices of other Canadian and Commonwealth Legislatures. In the House of Commons of Canada, the Speaker is to decide unprovided cases “based on the usages, forms, customs and precedents of the House of Commons of Canada and on parliamentary tradition in Canada and other jurisdictions, so far as they may be applicable to the House.”

2.8.4Rules and Practices in Other Jurisdictions

Across Canada, Speakers have also taken note of the rules and practices of other Canadian and Commonwealth jurisdictions that follow the Westminster parliamentary system in reaching decisions on procedural questions.

2.8.5Parliamentary Practice in British Columbia

Since the first edition of Parliamentary Practice in British Columbia was published by E. George MacMinn, former Clerk of the Legislative Assembly, in 1981, this source has served as a key procedural authority for the Legislative Assembly. It has frequently been quoted by Members in raising questions about Assembly rules and practices, and by the Speaker and other Presiding Officers in making rulings on procedural matters. Subsequent editions were released in 1989, 1997 and 2008. This fifth edition of Parliamentary Practice in British Columbia compiles and updates B.C. parliamentary 34 practices, procedures and traditions to support the current and evolving work of the Assembly and its Members.

2.8.6Other Sources

B.C. practice has also drawn upon procedural guidance contained in various Canadian sources including:

• House of Commons Procedure and Practice, the current leading procedural authority of the House of Commons of Canada, which was last published in 2017 (third edition);
• Beauchesne’s Rules and Forms of the House of Commons of Canada (referenced as Beauchesne), the former leading procedural authority of the House of Commons of Canada, which was last published in 1989 (sixth edition); and
• Parliamentary Immunity in Canada (previously known as Parliamentary Privilege in Canada), an authoritative reference book on matters relating to parliamentary privilege written by Joseph Maingot, former Law Clerk and Parliamentary Counsel of the House of Commons of Canada, which was last published in 2016.

Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament (referenced as Erskine May) is the authoritative guide on parliamentary procedure and constitutional conventions affecting the Parliament of the United Kingdom. The latest publication, its 25th edition, was released in 2019.