Chapter 7 — Rules of Debate

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7.1Introduction

The Legislative Assembly’s rules of debate support the fundamental privilege of freedom of speech of Members and establish a framework for limitations on what may be said when, and by whom, and for how long. “This…enables Members to speak in the House and in its committees, to refer to any matter, to express any opinion and to say what they feel needs to be said without fear of punishment or reprisal…circumscribed…by the necessity of maintaining order and decorum when debate is taking place” (House of Commons Procedure and Practice, 3rd ed., p. 599).

The process of debate begins when the Speaker recognizes a Member, who will move a motion proposing that the Legislative Assembly do something or express an opinion with regard to some matter. A motion initiates a discussion and results in a question to be voted upon by the Assembly. Members rise to be recognized to speak to the motion — either for or against. Without a motion, there can be no debate and there can be no decision. More information on motions is provided in Chapter 9 (Motions).

The process of debate begins when the Speaker recognizes a Member, who will move a motion proposing that the Legislative Assembly do something or express an opinion with regard to some matter.

7.2Manner and Right of Speech

As a general rule, Members may speak to any debatable motion proposed to the Legislative Assembly within the parameters of the Legislative Assembly’s rules, procedures and practices.

It should be noted that certain Standing Orders prohibit debate on particular motions. This includes Standing Order 46(1), for motions for closure of debate; Standing Order 16(4), regarding deferral of divisions on debatable motions; and Standing Order 20, respecting motions for the suspension of a Member.

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7.2.1Precedence When Two or More Members Rise to Speak

When two or more Members rise to speak in debate, Standing Order 37 authorizes the Speaker to call upon the Member who rose first to speak. In B.C. practice, the Member who first catches the Speaker’s eye will typically be recognized first.

When it is unclear which Member rose first, the Standing Order does not provide any official order of precedence; it remains at the discretion of the Speaker. In some jurisdictions, party leaders, Ministers as appropriate and opposition critics or spokespersons may be accorded some priority (see House of Commons Procedure and Practice, 3rd ed., p. 601).

In B.C. practice, the following conventions may also guide the Speaker, although the Speaker’s discretion in this area is absolute.

1. A Member rising on an inaugural speech is seen first.

2. The Leader of the Official Opposition is seen first in Oral Question Period or in response to a Ministerial Statement. The Leader of the Official Opposition may, however, yield to one of the Members of the Official Opposition Caucus holding a relevant critic portfolio.

3. The Speaker generally tries to call upon Members in such a way as to balance the debate, giving equitable opportunity to all recognized caucuses and Independent Members, while bearing in mind the numbers and total proportionate representation of the makeup of the Legislative Assembly.

4. A Member who has adjourned the debate on a question is, by courtesy, entitled to speak first on the resumption of the debate. The Member must, however, rise in their place in order to claim this courtesy. Should the Member fail to rise, they do not lose the right to speak at a later time.

In addition to the above conventions, informal arrangements developed by the House Leaders and Caucus Whips may facilitate the participation of individual Members within and amongst recognized caucuses.

7.2.1.1Motion that a Member “Be Now Heard” or “Do Now Speak”

The second portion of Standing Order 37 refers to a motion that a Member “be now heard” or “do now speak.” When two Members rise, the Speaker will recognize one of them to speak. Both Members rising must be qualified to speak — that is to say, they cannot have already spoken or exhausted the right to speak on the question — before 157 such a motion can be ruled in order (see B.C. Journals, February 18 and 19, 1965, pp. 59-61). Another Member may, rising on a point of order, then move that the Member who has not been recognized “be now heard.”

The motion must be moved before the Member who has been recognized begins speaking (see Beauchesne, 6th ed., §463(2), p. 137). A motion that a Member “be now heard” cannot be moved if no debatable motion is before the Legislative Assembly, if no Member has yet been recognized or if the Member named in the motion did not originally rise to be recognized.

If the motion is in order, the question is put immediately, without debate. If adopted, the Member named in the motion may begin to speak. If negatived, the Member originally recognized by the Speaker retains the right to speak.

Once the Speaker has called upon another Member, the Speaker will disallow a motion “That the Member be now heard” if, pursuant to a previous decision of the Speaker, “two Members having risen and one of those Members having been recognized by the Chair had moved a motion” (B.C. Journals, May 17, 1982, p. 89; see also House of Representatives (Australia) Votes and Proceedings May 6, 1971, p. 2735). A second motion that a Member “be now heard” may only be moved after the Member recognized has concluded speaking.

Standing Order 37 is not available to a Member who is seeking leave to reply to a Ministerial Statement (see B.C. Journals, May 5, 1994, p. 78).

7.2.2Speaking Once to a Motion

Standing Order 42 sets out the general parliamentary rule that a Member may only speak once to a question. This supports accessibility for all Members wishing to participate in a debate as well as the orderly conduct of business before the Legislative Assembly. For the purposes of this provision, a motion, amendment and subamendment are three separate questions and are treated as such.

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The moving of a motion constitutes speaking to the question proposed in the motion. In the case of a debatable motion, should the sponsoring Member wish to speak to it, the Member does so immediately after moving the motion.

The mover and, as required, the seconder of an amendment are deemed to have spoken to the main motion as well as to the amendment, because an amendment is not a separate question until the Speaker proposes it to the Legislative Assembly (see Beauchesne, 6th ed., §465, p. 138). Likewise, the mover of a subamendment is deemed to have spoken to the amendment but retains the right to speak to the main motion, if the Member has not already done so.

A Member may only speak once to a question. This supports accessibility for all Members wishing to participate in a debate as well as the orderly conduct of business before the Legislative Assembly.

After an amendment or subamendment has been proposed, Members rising to speak must address the amendment or subamendment, as the case may be. Members who have not yet spoken to the main motion, or to the amendment, may do so after the amendment or subamendment has been disposed of — that is to say, once the question has been put and voted on. An amended main motion is not a new question, and Members who have already spoken to the main motion may not speak to the amended motion.

A Member who has unsuccessfully moved adjournment of the debate or of the House cannot subsequently speak on the question or motion on which they have moved adjournment, as the Member is deemed to have spoken to the question (see B.C. Journals, July 7, 1998, p. 128; February 18 and 19, 1965, pp. 59-60; see also Erskine May, 25th ed., §20.24, p. 443; §21.11, pp. 486-7). If the motion to adjourn debate is adopted, the mover retains the right to speak to the main motion when it is next considered by the Legislative Assembly (see House of Commons Procedure and Practice, 3rd ed., p. 607).

A Member who has already spoken to a main motion may not rise again to propose an amendment or subamendment or adjournment of debate. However, that Member may speak to an amendment moved by another Member.

Speaking to a point of order or a question of privilege raised during the course of debate on a motion is not considered speaking twice to a question.

Debate on a motion typically concludes when no further Members rise to be recognized by the Speaker to speak on the main (or amended) motion. In closing debate, the mover of a motion, whether a Private Member or a Minister, has a final opportunity to make comments regarding debate on the motion, if desired, and to close debate. This provision is subject to a closure motion or an adopted order on time allocation. More information on the process for motions is provided in Chapter 9 (Motions).

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7.2.2.1Exception — Explanation of Speech

There are several limited exceptions to the general rule of speaking only once to a motion.

Under Standing Order 42(1), a Member who has spoken in debate on a question may speak again to offer an explanation regarding some part of their speech which may have been misunderstood, but the Member cannot introduce any new matter, and no debate is allowed on such an explanation.

This provision has been used infrequently in B.C. and in the House of Commons of Canada. House of Commons Procedure and Practice notes that a Member is allowed to speak a second time

A Member wishing to provide an explanation under Standing Order 42(1) must rise on a point of order in the course of debate. The appropriate time for a Member to invoke Standing Order 42(1) is at the conclusion of the speech which calls for it (see Erskine May, 19th ed., p. 418; see also 25th ed., §19.24, pp. 413-4).

This matter is addressed in a decision of Speaker Hartley, in which he stated (B.C. Journals, April 13, 2000, p. 34):

It is not in order to move a motion during the course of an explanation (see House of Representatives (Australia) Hansard, September 23, 1948, p. 804).

7.2.2.2Exception — Personal Explanation

House of Commons Procedure and Practice describes a Member’s personal explanation as follows:

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In B.C. practice, a Member wishing to make a personal explanation must submit the text of the statement to the Speaker in advance, and unless the Speaker approves the statement as being appropriate in the circumstances, the statement cannot be made. Prior approval of the Speaker is not required in the case of a Minister resigning from office. It is also the practice not to permit any debate on such statements. But if another Member is mentioned or implicated in the statement, such Member would be permitted to give their view and to offer a withdrawal or apology, as the circumstances may warrant (see decision of Speaker Brewin, B.C. Journals, April 2, 1998, pp. 16-7; see also Erskine May, 25th ed., §19.24, pp. 413-4).

7.2.2.3Exception — Member Misquoted in News Publication

This right of explanation under Standing Order 42 has been interpreted to relate solely to proceedings in the Legislative Assembly or one of its committees. In this regard, Standing Order 42 refers to a speech and speaking twice, which clearly contemplates matters arising in the Assembly. This is further reinforced in the U.K. procedural authority, which speaks of “misrepresentation in debate” (see Erskine May, 25th ed., §19.24, p. 413). B.C. and U.K. practice do not permit Members to correct what they deem to be inaccuracies in newspapers under the cover of personal explanations.

7.2.3Right of Reply — Standing Order 42(2)

As noted further in this chapter, in section 7.4.4, Standing Order 42(2) permits a reply to the mover of a substantive motion, including to the mover of a substantive motion for adjournment of the House (see Erskine May, 25th ed., §21.11, p. 486), further outlined in Chapter 9 (Motions). Speaking time limits applicable to the designated speaker are not applicable to closing remarks (see B.C. Journals, May 7, 1998, p. 58; B.C. Hansard, March 13, 1991, p. 11705). Speaking time limits for closing remarks (reply) are 30 minutes. It has also been the practice in B.C. to permit any Minister to reply on behalf of a ministerial colleague who proposed the motion.

7.2.3.1Speaker to Advise that Reply Closes Debate

Standing Order 42(3) requires the Speaker to inform the Legislative Assembly that the reply will close the debate. Should the Speaker neglect to so inform the Assembly, a Member otherwise qualified to speak may do so with the concurrence of the Chair. This provision ensures that no Member wishing to participate in debate is prevented from doing so by a sudden or unannounced exercise of the right of reply.

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7.3Rules on Content

7.3.1Disrespectful or Offensive Language Forbidden — the Sovereign, the Royal Family, the Governor General and the Lieutenant Governor

Standing Order 40(1) prohibits Members from speaking disrespectfully about the Sovereign, the Royal Family, the Governor General (or the Administrator of the Government of Canada in the absence of the Governor General), the Lieutenant Governor or the provincial Administrator.

This rule has traditionally extended to judges and courts in B.C. and other Commonwealth jurisdictions. As noted in House of Commons Procedure and Practice:

7.3.2Disrespectful or Offensive Language Forbidden — Members

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Standing Order 40(2) prohibits the use of offensive language against any Member. House of Commons Procedure and Practice notes:

More information on unparliamentary language is provided in Chapter 6 (Order and Decorum).

7.3.3Relevance in Debate

A principle of unproductive parliamentary debate is that the Legislative Assembly’s dignity cannot be impaired by time wasted in idle debate. Therefore, it is the duty of every Member to confine their remarks to the subject matter under debate. Relevance may not be immediately visible but may emerge over the course of a line of questioning or of a Member’s speech.

In enforcing this rule, the Speaker may admonish a Member, pressing the Member to illustrate how their remarks relate to the motion or subject at hand. Should it become clear that a Member’s remarks are not germane to the motion, the Speaker’s duty is to bring the matter forcefully to the attention of the offending Member (see House of Commons (Canada) Hansard, February 6, 1987, pp. 3195-6). The rules of relevance must be applied in a consistent manner in order to avoid a loss of precious debating time, and to allow time for other Members to participate in debate (see House of Commons Procedure and Practice, 3rd ed., pp. 628-32; Erskine May, 25th ed., §21.15, p. 490; §21.42, p. 507).

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7.3.4Repetition in Debate

The rule on relevance in debate extends to the matter of repetition, as contemplated in Standing Order 43 and outlined further in this chapter. The avoidance of repetition serves to safeguard the right of the Legislative Assembly to arrive at a decision and to make efficient use of its time.

7.3.5Application of Rules on Relevance and Repetition

Standing Order 43 is designed to assist the Speaker in enforcing the relevancy rule. As outlined in House of Commons Procedure and Practice:

Standing Order 43 permits the Chair to deal with an offending Member summarily under Standing Order 19 (withdrawal for the balance of the day’s sitting), or under the more stringent provision of Standing Order 20 (naming). Once the Speaker or Chair has directed a Member to discontinue speaking, further debate by that Member is not permitted (see B.C. Journals, February 23, 1971, p. 63). If the Chair names the offending Member, it is the duty of the Government House Leader to move, at once, the suspension of the Member.

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More detail on these provisions is provided in Chapter 6 (Order and Decorum), and their applicability in Committees of the Whole is outlined in Chapter 11 (Committees of the Whole).

7.3.6Reflections on Earlier Votes

While Members enjoy freedom of speech with respect to comments on the provisions of any statute, bills or resolutions being considered or adopted by the Legislative Assembly, Standing Order 40(4) prohibits reflection on votes passed in the current Session, except on a motion to rescind a previous decision. The rule serves to prevent repetition of past debates, and reflection on a passed vote may be tantamount to a reflection on the majority, and thus on the Legislative Assembly itself. This also speaks to the well-established practice that a question, once put and decided in the affirmative or negative, cannot be questioned or debated again in the same Session.

7.3.7Question Not on the Order Paper

Under Standing Order 41, when a motion that is being debated in the Legislative Assembly does not appear in the Orders of the Day (the Order Paper) and has not been distributed in advance to Members, any Member may request that the Chair read the motion aloud at any point during the debate. However, the request cannot interrupt another Member speaking to the question.

7.3.8Rule of Anticipation

The rule of anticipation provides: “…that a matter must not be anticipated if contained in a more effective form of proceeding than the proceeding by which it was sought to be anticipated, but it might be anticipated if contained in an equally or less effective form” (Erskine May, 25th ed., §20.13, p. 436). For example, a bill or other order of the 165 day is more effective than a motion, and a substantive motion is more effective than an amendment.

Referral of a matter to a select standing committee does not prohibit a Ministerial Statement on the same subject matter (see B.C. Journals, June 1, 1993, pp. 96-7; May 27, 1993, p. 88); nor does it prevent the consideration of the same question in the House (see Erskine May, 21st ed., p. 328).

The rule of anticipation is based on the rationale which forbids the same question being raised twice in the same Session, to avoid the risk of the Legislative Assembly coming to different conclusions on questions of the same subject during the same Session. The rule becomes operative when one of two similar items on the Orders of the Day (the Order Paper) is actually proceeded with. Two items of similar substance will be allowed to stand on the Orders of the Day, but only one may be moved. If a decision is taken on the first item, the other cannot be proceeded with.

A key reason for accepting two items with the same subject on the Orders of the Day is to prevent the introduction of bills by Members solely for the purpose of blocking a legislative initiative, thereby allowing a single Member to obstruct the Legislative Assembly indefinitely and prevent debate or a decision on an issue merely by introducing a bill on the matter and not proceeding with it. For some applications of the rule of anticipation in B.C., see B.C. Journals, July 26, 1983, pp. 68-69; April 30, 1982, p. 69; February 12, 1970, p. 46. The application of the rule of anticipation in Oral Question Period is outlined in Chapter 13 (Questions).

7.3.9Abuse of the Rules and Privileges of the Legislative Assembly

Standing Order 44 is directed at dilatory motions and, therefore, must be considered as limiting the use of the “rotating motion” device described in Chapter 5 (Sitting Days and Business).

Under U.K. House of Commons practice, a Member who has moved a dilatory motion during a debate may not do so again during the remainder of the same debate — be it in the House or in one of its committees. While it has been the practice in British Columbia for Members to use the “rotating motions” described in Chapter 5 (Sitting 166 Days and Business) for dilatory purposes, the Chair has also held, on numerous occasions, that such motions moved prematurely in the debate, or with inordinate frequency, may constitute an abuse of the rules. Consequently, in accordance with Standing Order 44, the Chair has declined to put the question (see B.C. Journals, September 21, 1983, p. 162; September 19, 1983, p. 149; September 1, 1983, p. 130; August 30, 1983, p. 123; March 16, 1966, p. 141).

The question may arise as to what constitutes “an abuse of the rules and privileges of the House” as contemplated by Standing Order 44. This is left entirely to the discretion of the Chair, whose judgment in these matters cannot be questioned. As in many parliamentary situations, each case is examined on its own merit.

7.3.10Opening Day

Generally speaking, dilatory motions should not be moved on Opening Day. The first day of a Session concerns itself with the Speech from the Throne and what have been described as pro forma matters. Full opportunity to discuss all issues follows with the Throne Speech Debate, and accordingly, amendments, motions or any proceedings extraneous to the pro forma matters on Opening Day are almost certain to anticipate an ordinary parliamentary opportunity for full debate (the rule of anticipation is outlined in section 7.3.8). Furthermore, until the Speech from the Throne has been delivered, the Assembly cannot proceed with any business (see Erskine May, 25th ed., §8.31, p. 179).

On occasion, amendments on Opening Day have been proposed, accepted by the Chair and subsequently voted on by the Assembly (see B.C. Journals, February 10, 2004, pp. 12-3).

It has been held in the Legislative Assembly that Opening Day is not an occasion for a Member to outline a question of privilege (see B.C. Journals, April 5, 1990, p. 167), though a Member may rise to reserve their right to raise a question of privilege at a subsequent sitting. More information on raising a question of privilege is outlined in Chapter 17 (Parliamentary Privilege).

It has also been held that it is not in order to make an application under Standing Order 35 on Opening Day wherein a Member seeks to move adjournment of the House to discuss a matter of urgent public importance (see Erskine May, 25th ed., §8.36, p. 181; see also B.C. Journals, September 13, 1973, p. 5; January 16, 1908, p. 3; Victorian Legislative Assembly Hansard, March 7, 1978, pp. 36-40; Quebec Votes and Proceedings, March 8, 1977, pp. 2-3).

7.3.11Closing Day

Proroguing the Legislative Assembly is a prerogative of the Crown and may not be interrupted or delayed by routine proceedings (see Speakers’ decisions in B.C. Journals, February 20, 1975, pp. 11-13; March 29, 1934, p. 81). It has also been held that leave to move a motion cannot be requested on the day on which “the House had been recalled by the Lieutenant Governor for prorogation” (B.C. Journals, March 14, 1994, p. 224).

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7.4Time Limits

Standing Order 45A establishes time limits on speeches and the duration of debates in six schedules covering different debates: the Address in Reply to the Speech from the Throne; the Budget Debate; public bills (i.e., government and Private Members’ bills); all other proceedings in the House not otherwise specifically provided for; the Committee of Supply; and Committees of the Whole.

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Under the above listing of individual Members’ speaking times for specific debates, apart from the opening remarks of the mover of the motion and the leaders of recognized caucuses or their designate, each Member is entitled to speak to a debatable motion for up to 30 minutes. During proceedings in the Committee of Supply or Committees of the Whole, each Member may speak for up to 15 minutes once the Minister and opposition critics have made their 30-minute opening remarks.

Both the Address in Reply to the Speech from the Throne (also referred to as the Throne Speech Debate) and the Budget Debate have a maximum time limit of six sitting days, made up of at least eight sittings. In the calculation of the time limit for the Throne Speech Debate and the Budget Debate, the day on which the Speech from the Throne is delivered and the Budget is presented, respectively, are not counted. There is no global time limit for completing the business of supply, further outlined in Chapter 12 (Financial Procedures).

The Throne Speech Debate and the Budget Debate may be interrupted by other business before the Legislative Assembly, as it is the prerogative of the Government House Leader to call the order of government business.

As noted in Chapter 2 (Basis of Procedure), the Address in Reply to the Speech from the Throne and the motion that begins the Budget Debate, “‘That the Speaker do now leave the Chair’ for the House to go into Committee of Supply,” are opportunities for the Assembly to demonstrate confidence in the government and its planned initiatives.

The “ordinary time of daily adjournment,” as contemplated in Standing Order 45A, is determined by Standing Orders 2 and 3 and may be modified by a Sessional Order, which would only apply during the Session in which it was adopted.

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7.4.1Time Limits Not Transferable or Bankable

There are no provisions under Standing Order 45A for a Member to transfer to another Member the unexpired portion of their speaking time. Likewise, a Member cannot claim at a later date the balance of unused time during an earlier speech. For example, if a Member moves an amendment at second reading of a bill after having spoken for only a part of their allotted speaking time, and the amendment is defeated, the Member cannot speak again to the motion for second reading. However, a Member who has not exhausted their speaking time may reserve their right to resume speaking to the question the next time the motion is called for debate.

7.4.2Leave to Suspend Operation of Standing Order 45A

On one occasion in the Legislative Assembly, during debate on second reading of a bill, a Member asked for leave (unanimous consent) of the House to suspend Standing Order 45A to permit him to speak beyond the time allotted. The Speaker stated that it would be inappropriate for a Member to request a significant amendment to the Standing Orders in the course of debate on second reading of a bill, and declined to put the question of leave to the House (see B.C. Journals, October 24, 2007, p. 132). On a previous such occasion, the Speaker did put the question of leave to the House, which was not granted (see B.C. Hansard, March 13, 1991, p. 11705).

7.4.3Time Limits on Amendment Motions

By virtue of the wording of Schedules 1 and 2 of Standing Order 45A, the same speaking time limits applicable to the question on a main motion apply to any amendments in the Throne Speech and Budget Debates.

Schedule 3 of Standing Order 45A was modified in 1985 by adding the words “and amendments.” The result of this change to the Standing Order is that the time limits relating to proceedings of the Legislative Assembly on bills are the same for amendment motions as for the main motion — i.e., there may be a designated speaker on an amendment or subamendment, as well as on the main motion.

7.4.4Right of Reply

Standing Order 42(2) permits the mover of a substantive motion to make a reply (closing remarks) which has the effect of closing debate. The right of reply extends to the Member who moves a motion for second reading of a bill. It would also extend in the rare circumstance of debate at third reading of a bill. In such cases, the time limit applicable is 30 minutes.

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7.4.5Designated Speaker

A recognized caucus can assign one of its Members to be its designated speaker. In keeping with Practice Recommendation 9, a Member who is the designated speaker for a recognized caucus typically announces such designation at the commencement of their speech.

Schedules 1, 2 and 3 of Standing Order 45A give amendments the same status as main motions for the purpose of time allotments, and a Speaker’s decision reinforced that a designated speaker may be named in the case of debate on amendments to the motion for the second reading of a bill (see B.C. Journals, February 25, 1988, p. 187). Even though the heading which follows Schedule 4 does not specifically use the words “and amendments,” the more consistent approach would be to permit a designated Member to speak on an amendment arising under a Schedule 4 debate. Examples of Schedule 4 debates include debatable motions on notice and a motion that the Legislative Assembly adopt a report of a parliamentary committee.

B.C. practice has also been for a designated speaker to be named to speak to an amendment to the motion for second reading of a bill (see B.C. Journals, February 25, 1988, p. 187). Should a Member move an amendment at second reading debate at the end of that Member’s allotted time, it would allow the Member to take advantage of the full designated speaker time allocation for debate on the main motion as well as for debate on the amendment (see B.C. Hansard, July 8, 1998, p. 9751).

7.5Curtailment of Debate — Closure

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The Legislative Assembly’s procedures allow for the curtailment or limitation of debate on a question in order to bring it to a vote notwithstanding the interest of some Members in further debate. In B.C., practice has been for the conclusion of debate on most questions to be facilitated by informal arrangements between the House Leaders, and hence the use of curtailment or limitation procedures is not a frequent occurrence.

House of Commons Procedure and Practice describes the context for closure and time allocation:

Standing Order 46 enables a Member to move a motion “That the question be now put” to bring debate on a question to an immediate vote, even though all Members wishing to speak may not have done so, unless it appears to the Chair that such a motion is an abuse of the Assembly’s rules or an infringement of the rights of the minority. Notice is not required for such a motion. Standing Order 50 also excludes closure motions from the general requirement that motions be in writing and signed by the mover before being debated or put by the Chair.

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Closure is used in the circumstances outlined in Standing Order 46, when it is felt that a decision would not be taken in a reasonable time or not taken at all. It would effectively bring debate on a question to a conclusion by a majority decision of the Legislative Assembly, and may be applied to any debatable motion.

Closure may be moved by a Member in the course of their speech, at the end of the speech, at the end of another Member’s speech or by one Member while another Member is addressing the Legislative Assembly. In the latter scenario, the motion may be used to interrupt a Member in possession of the floor. In order to do so, the Member wishing to move a closure motion would rise in their place to be recognized by the Chair in order to move the motion. There are numerous examples in the United Kingdom for this latter proposition (see Erskine May, 25th ed., §20.54, pp. 457-8; see also House of Commons (U.K.) Hansard, February 25, 1983, vol. 37, c. 1204; November 30, 1982, vol. 33, c. 225).

Closure is used in the circumstances outlined in Standing Order 46, when it is felt that a decision would not be taken in a reasonable time or not taken at all.

The Chair has the discretion to allow or disallow the closure motion, and in this regard, the Chair’s discretion is absolute and not open to dispute (see Erskine May, 25th ed., §20.54, pp. 457-8).

Under Standing Order 46, there are two distinct steps involved in the closure procedure. First, the Chair must accept the motion on the basis that it is not an abuse of the Standing Orders or an infringement of the rights of the minority. There are no concrete rules which guide the Chair in coming to a decision, but the Chair would consider such factors as time already occupied on the debate in question, the weight of the question under debate, the number of Members who have already spoken and whether or not it appears many more Members wish to speak. Second, the motion “That the question be now put” must be put to the Legislative Assembly and adopted.

In the U.K. House of Commons, Standing Order 36 is, in all material respects, identical to Standing Order 46 in British Columbia. There is, however, no requirement in the U.K. for the Speaker or the Deputy Speaker to be in the chair, as provided in B.C. Standing Order 46(3) (see B.C. Journals, October 6, 1983, p. 215). Standing Order 46(3) further stipulates that the Deputy Speaker may not preside on a closure motion unless the Speaker’s absence has been previously announced to the Legislative Assembly by a Clerk at the Table, and this provision would extend to other Presiding Officers, including the Assistant Deputy Speaker and the Deputy Chairperson of the Committee of the Whole. The Canadian House of Commons closure rule enables a Minister to provide one day’s prior notice to moving a motion that debate on a question shall not be further adjourned, which, if adopted, requires that debate on the question be concluded before 8 p.m. on the day on which the motion is adopted. At that time, all 174 votes on the question are to be decided forthwith (see House of Commons of Canada Standing Order 57).

When the Assistant Deputy Speaker, Deputy Chairperson of the Committee of the Whole, or another Member requested to preside occupies the chair at the request of the Speaker or the Deputy Speaker (pursuant to Standing Order 15), that Member has all the powers of the Speaker, subject to restrictions relating to closure in Standing Order 46(3).

Under Standing Order 46(4), in a Committee of the Whole, it is the Deputy Speaker, acting as Chair, who “must be the best judge whether the closure ought to be put” (House of Representatives (New Zealand) Hansard, March 31, 1931, p. 675).

It is the Legislative Assembly which ultimately must vote on the question “That the question be now put.” Like in other Canadian jurisdictions, a decision on a closure motion is made by a simple majority (see decision of Speaker Brewin, B.C. Journals, July 8, 1998, p. 131), subject to the requirement for a quorum of Members.

Closure has been invoked on a handful of occasions in the Legislative Assembly (see B.C. Journals, June 20, 25 and 27, 1991, pp. 51, 58, 64, 69; October 6, 1983, p. 215), and the Chair has also declined to put the question on a closure motion (see B.C. Journals, April 21, 1999, p. 221). On one occasion in the Legislative Assembly, the Speaker agreed to put the question under Standing Order 46 on a motion that the House recess, though only five Members had spoken to that motion, indicating that she would do so “as the motion under debate was procedural rather than substantive and the hour referred to in the motion [to recess] had passed” (B.C. Journals, July 8, 1998, p. 130).

7.5.1Closure Motion During Debate on Amendments

Some B.C. precedents and procedural authorities of other jurisdictions, such as Erskine May, House of Commons Procedure and Practice, and Beauchesne, recognize that a motion for closure applies not only to the main motion under debate but also to any amendments. Should the motion “That the question be now put” carry, the Chair has the discretion to proceed to put any further questions which may be required to conclude debate on the matter (see B.C. Journals, April 21, 1999, p. 222; see also Beauchesne, 6th ed., §519, p. 160; Erskine May, 25th ed., §§20.54-20.57, pp. 457-9). The application of these rules may differ in varying circumstances.

Erskine May further explains: “…after a closure motion has been moved and acted upon, any Member may claim that such further questions be put forthwith as are requisite to bring to a decision the question already proposed from the Chair, no second closure motion being necessary” (25th ed., §20.57, p. 459).

A problem may arise in the event of an amendment being proposed to the main motion after only one or two Members have spoken and the debate on the amendment is a lengthy one in which many Members have participated. Closure is then moved on the amendment and, if passed, places the main motion before the Legislative Assembly for consideration. Erskine May suggests that the closure motion moved and passed on 175 the amendment applies to the main motion without further question put. Given that under the Standing Orders of the Legislative Assembly, the Speaker has the ultimate discretion as to the propriety of a closure motion as it applies to any debate, the better course would be that, after the amendment has been disposed of, a separate closure motion is moved to the main motion. This would provide the Speaker the traditional latitude to accept or reject the closure motion as it applies to the main motion.

In support of this position, the Journals note the following decision of Speaker Barisoff (B.C. Journals, March 6, 2008, p. 43):

7.5.2Closure and Time Allocation

Closure under Standing Order 46 should be distinguished from time allocation under Standing Order 81.1, which is outlined in detail in Chapter 10 (Legislative Process). Time allocation allows for specific lengths of debating time to be set aside to consider proceedings at one or more stages of a public bill. Time allocation may be used as a mechanism for time management.

Since the Legislative Assembly’s adoption of Standing Order 81.1 in 2005, time allocation has become the preferred procedure for curtailing debate on public bills. Since 2005, Standing Order 46 has not been used to curtail debate on a public bill.

7.6The Sub Judice Convention

Sub judice is a Latin term that means “under judicial consideration.” Deputy Speaker Chouhan explained in a decision (B.C. Journals, November 26, 2018, p. 158):

The sub judice convention seeks “to strike a balance between two sets of principles. On the one hand, the rights of parties in legal proceedings should not be prejudiced by discussion of their case in Parliament, and Parliament should not prevent the courts from exercising their functions. On the other hand, Parliament has a constitutional right 176 to discuss any matters it pleases” (U.K. Parliament, Joint Committee on Parliamentary Privilege, Parliamentary Privilege — First Report, March 30, 1999).

The sub judice convention is a self-imposed restraint exercised by the Legislative Assembly that provides that the Assembly does not debate on matters before a court of law in order to refrain from prejudicing, in any manner, proceedings not before the Assembly.

In B.C., the earliest Speaker’s ruling regarding the application of the sub judice convention was in 1956, at which time Speaker Irwin stated (B.C. Journals, January 20, 1956, pp. 10-11):

More recently, a decision of Speaker Hartley stated that “wherever there is doubt, the Speaker should rule in favour of the debate and against the sub judice convention with the understanding that where there is a probability of prejudice to any party, the convention will be applied.” Speaker Hartley went on to say that the “sub judice convention does not apply…to inquiries surrounding legal costs incurred by any of the parties to existing litigation, but there may well be matters involving confidentiality or solicitor and client privilege respecting such a line of questions….” He concluded his ruling by emphasizing that “the authorities…encourage restraint and, particularly, in an instance where the matter in question is currently being heard in the Courts of British Columbia. There is a more stringent test to be applied when the matter is actually at trial” (B.C. Journals April 11, 2000, pp. 29-30).

With respect to court proceedings, the practice in the Legislative Assembly has been to consider a matter sub judice during the following periods of time:

Criminal Matter — from the time a charge is laid to the passing of a sentence, acquittal, finding, order or decision putting an end to the proceedings, and from date of filing of a Notice of Appeal to the date a decision is given by the Appellate Court. Between the passing of a sentence and the filing of a Notice 177 of Appeal, a matter is not sub judice. These guidelines are always subject to the discretion of the Chair.

In order to protect those individuals who are undergoing a trial, Members should refrain from discussing matters before a criminal court, as the trial could be affected by debate in the Legislative Assembly.

Civil Matter — from the time the matter is set down for trial (or a Notice of Motion is filed as in an injunction proceeding) until a judgment (oral or written) is made. Also from the date of filing a Notice of Appeal until judgment by the Appellate Court. The practice has been to consider the matter sub judice once a writ of summons has been issued.

Matters may be referred to outside the guidelines provided above, unless it appears to the Chair that there is a real and substantial danger of prejudice to the trial of the case (see Erskine May, 25th ed., §21.19, pp. 492-4). This is consistent with the above-noted April 11, 2000, decision of Speaker Hartley that wherever there is doubt, the Speaker should rule in favour of the debate and against the convention, with the understanding that where there is a probability of prejudice to any party, the convention will be applied.

There are two acknowledged qualifications to the sub judice convention. First, the application of the convention is subject to the discretion of the Speaker. Second, the Legislative Assembly retains the right to legislate on any matter.

The application of the sub judice convention is further examined in Erskine May, 25th ed., §21.19, pp. 492-4; §21.42, p. 507; House of Commons Procedure and Practice, 3rd ed., pp. 98-110; pp. 623-36; Beauchesne, 6th ed., §§505-511, pp. 153-4.

7.6.1Role of the Speaker

As no Standing Order, statute or formal rule prevents the Legislative Assembly from discussing a matter that is sub judice, the application of the convention is governed by the Speaker’s discretion, reflecting precedents and evolving practices. The Speaker has the discretion to address specific circumstances and any new developments under the general authority in Standing Order 9 to preserve order and decorum and to decide questions of order and practice.

In the Legislative Assembly, the Speaker administers the sub judice convention as a self-imposed restraint on the freedom of Members to make reference, either in debate or through questions and motions, to matters awaiting adjudication or under adjudication in a court of law. The application of this convention should not be considered absolute. The better approach is for the Speaker to consider whether or not, in the circumstances, there is real danger of prejudice. As the Legislative Assembly voluntarily imposes this convention upon itself, it follows that the Assembly has considerable latitude in its application. While responsibility should principally rest with all Members in exercising this restraint, there is no question that the Speaker is the final arbiter in determining whether a matter raised is sub judice.

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Upon determining that the sub judice convention is at risk of being breached, the Speaker may intervene directly and address a Member or the Legislative Assembly as a whole. The Speaker’s decision regarding the sub judice convention is usually made quickly, in order to restrict any further discussion which could potentially prejudice a judicial proceeding. Under Standing Order 9, no debate or appeal is permitted on any decision by the Speaker.

As noted in House of Commons Procedure and Practice: “…there are some situations in which the application of the sub judice convention is fairly straightforward. The convention has been applied consistently to motions, references in debates, questions and supplementary questions in all matters relating to criminal cases” (3rd ed., p. 633).

While responsibility should principally rest with all Members in exercising this restraint, there is no question that the Speaker is the final arbiter in determining whether a matter raised is sub judice.

It is not always easy for the Speaker to be in full possession of all the facts in order to make a decision. The Speaker must also balance the rights of the Legislative Assembly with the rights and interests of an individual awaiting or undergoing a trial. As such, the Speaker may opt to receive guidance from the Legislative Assembly.

A Member who requests that debate on a matter be halted because it is sub judice must satisfy the Speaker that they have reasonable grounds for fearing that prejudice might result. It is, however, the Speaker’s responsibility to make the decision.

During Oral Question Period, the Speaker may defer to the Minister to whom a question is addressed to determine whether the question is sub judice. The Minister involved would most likely have more information than the Speaker and, therefore, be in a better position to determine whether answering the question might result in prejudice. As noted in House of Commons Procedure and Practice: “…the Minister could refuse to answer the question on those grounds, bearing in mind that refusal to answer a question is his or her prerogative…. The Speaker has interrupted Members only if he or she has felt the sub judice convention was being breached” (3rd ed., p. 636).

7.6.2Debate on Bills

The sub judice convention does not apply to debate on bills because the right of the Legislative Assembly to legislate must not be limited, and “if the sub judice convention were to apply to bills, the whole legislative process could be stopped simply by the initiation of legal proceedings in any court…” (House of Commons Procedure and Practice, 3rd ed., p. 633).

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A decision of Speaker Shantz noted (B.C. Journals, March 22, 1962, p. 148):

7.6.3Administrative Tribunals, Royal Commissions and Commissions of Inquiry

There is no concrete rule in relation to hearings before bodies other than courts of law across all parliamentary jurisdictions. In the U.K., the rule has been extended to matters referred by the House of Commons to such tribunals or even to select committees of the House. In the Legislative Assembly of Ontario, Speaker Cass referenced an earlier decision of Speaker Morrow, which found that the sub judice convention (Ontario Journals, June 28, 1968, p. 181):

On the other hand, the Canadian House of Commons and the New Zealand House of Representatives have a more limited application of the sub judice convention to matters before courts of law. That said, the Speaker of the Canadian House of Commons has called for restraint in referring to a Royal Commission’s proceedings, evidence or findings before its report has been made. House of Commons Procedure and Practice notes:

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The Australian House of Representatives applies the sub judice convention to Royal Commissions and other bodies on a case-by-case basis, governed by whether debate in House proceedings could be prejudicial to particular persons. House of Representatives Practice outlines:

To sum up, notwithstanding differences in application, the whole basis of the rule is that the Legislative Assembly must be extremely careful not to discuss any matter when that discussion as reported in the public press might prejudice someone’s right to a fair hearing.

In the B.C. experience, the practice of the Australian House of Representatives has been preferable. In a decision on discussion of a matter before a Royal Commission, Speaker Irwin stated: “Technically, this matter, in view of the fact that it is in the hands of a Commissioner, could be regarded as sub judice and I would ask you to very carefully regard this aspect of discussion of our forestry policy” (B.C. Journals, January 24, 1956, p. 15).

While the ruling of Speaker Irwin allowed very limited debate on a subject under consideration by a Commission, Speaker Smith went further in a 1977 decision to suggest that “a matter referred to a royal commission is not subject to a question on the floor of the House,” and that “the same rule is applicable to a matter referred to a commission of inquiry” (B.C. Journals, January 26, 1977, p. 23).

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A more recent directive by the President of the National Assembly of Quebec is in keeping with B.C. practice regarding Royal Commissions and Commissions of Inquiry. With respect to the proceedings of the Inquiry Commission into the Appointment Process for Judges, also known as the Bastarache Commission, the President stated that “a Member may, in a general manner, refer to a matter that is the subject of an inquiry; however, when approaching the heart of the matter, a Member may not make remarks that could be prejudicial to any person or party” (Quebec Votes and Proceedings, September 23, 2010, p. 1548).

Similarly, the Speaker of the Legislative Assembly of Saskatchewan ruled that the House could discuss labour management matters generally without referencing a specific case before an arbitration board, which “is presently sub judice and must not be referred to in any motion, debate or question in this House” (Saskatchewan Journals, March 1, 1967, pp. 78-9).

These decisions are in line with B.C. practices respecting the application of the sub judice convention to administrative tribunals and inquiries where references may prejudice an individual or party.

7.6.4Active Police Investigations

In British Columbia, practice has been for the exercise of restraint in the discussion of matters under active or confirmed investigation by the police. Speakers have ruled that, while such investigations may not be sub judice in a strict sense, the Legislative Assembly has a practice of respect for the principle of non-interference in the normal administration of justice which limits the discussion of matters under police investigation.

Speaker Barisoff ruled that “a matter under investigation by the police, while not sub judice in a strict sense, has by precedent not been discussed in this House. It’s a matter of courtesy to the investigation to avoid debate in parliament, so I’d ask all members to observe this well-established rule” (B.C. Journals, April 13, 2010, p. 41). This approach was upheld in a decision of Deputy Speaker Chouhan (see B.C. Journals, November 26, 2018, p. 158).

In keeping with the above-noted practice in Oral Question Period whereby the Speaker defers to the Minister to whom a question is addressed to determine whether the question is sub judice, the Speaker has allowed questions about police investigations to be put to Ministers. In such cases, Ministers are likely to be in a better position to determine whether answering the question might result in prejudice (see B.C. Hansard, November 26, 2018, pp. 6833-8).

7.6.5Raised as a Matter of Urgent Public Importance (Standing Order 35)

Upon an application by a Member for the use of Standing Order 35, which seeks to adjourn proceedings of the Legislative Assembly for the purpose of discussing a matter 182 of urgent public importance, a Speaker ruled that the provisions of the Standing Order could not be used to discuss a sub judice matter (see decision of Speaker Reynolds, B.C. Journals, February 24, 1988, p. 186).

In this instance, a Member had sought leave to discuss the government’s reaction to the Supreme Court of Canada decision concerning therapeutic abortion. As the matter was also the subject of proceedings in the Supreme Court of British Columbia, Speaker Reynolds ruled that “as the matter raised is sub judice, and on that ground alone, the application cannot qualify under the provisions of Standing Order 35.” A decision of Speaker Barnes confirmed that a sub judice matter cannot be raised on an application under Standing Order 35 (see B.C. Journals, June 22, 1994, p. 161), which was further reinforced in a decision of Deputy Speaker Chouhan (see B.C. Journals, November 26, 2018, p. 158).

7.6.6Parliamentary Privilege

The sub judice convention has also been applied with respect to questions of privilege and alleged contempt of Parliament. In a decision, Speaker Rogers applied the sub judice convention, explaining that

Given the circumstances, the Speaker proposed “to withhold further consideration of the issues for the time being” (B.C. Journals, July 23, 1990, p. 116).

7.6.7Parliamentary Committees

In U.K. House of Commons practice, the sub judice convention applies to parliamentary committees (see Erskine May, 25th ed., §38.25, p. 964; see also House of Commons (U.K.) Hansard, November 15, 2001, vol. 374, cc. 1012-4). This practice was made explicit in changes to the Standing Orders adopted in 2006 (see U.K. House of Commons Standing Order 89(3)(c)).

In the Legislative Assembly, the sub judice convention, at the discretion of the Committee Chair, may be applied to proceedings of parliamentary committees. Chairs have previously asked Members and witnesses to avoid discussion of matters before the courts during proceedings of parliamentary committees (see Select Standing Committee on Public Accounts Hansard, June 3, 2015, p. 711; February 4, 2015, p. 591).

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