At the time this paper was written Gary O’Brien was Director of Committees and Private Legislation Branch in the Senate. This is an edited version of a paper presented at the meeting of the Clerks-at-the-Table in Canada in Prince Edward Island in August 1993.

A controversy arose in June 1993 with respect to the defeat in the Senate at third reading of Bill C-93, the Budget Implementation (Government Organizations) Bill. Following the defeat, a press report circulated that the Government was considering using an "ancient rule" to have the bill considered again and nullify the defeated vote. The report implied that the procedure amounted to nothing more than "parliamentary skulduggery". This article examines the concept of reviving Orders of the Day from a theoretical and practical viewpoint and discusses the problems of its usage under modern practice.

The procedure for reviving Orders of the Day is referred to by Beauchesne's Parliamentary Rules and Forms. The sixth edition (1989) states: "When the motion that the bill be now read a second time is negative, it is competent for a Member to move immediately without notice: 'That the Bill be read a second time on .... next.' On this motion being agreed to, the bill takes its place on the Order Paper. The same practice is in effect with respect to the bill at any previous or succeeding stage.".¹ It is also provided for in the Rules of the Senate revised in July, 1993. Rule 60(13) states that no notice is required for the "postponement, discharge or revival of an Order of the Day".

Some of the greatest experts on parliamentary procedure have attested to its proper use. In 1958 Lord Gilbert Campion wrote: "After the second reading has been moved (and seconded) the Speaker proposes the Question, and debate proceeds... Opposition may be effected by voting against the question, but as the Question is only that the Bill be now read a second time, the result of negativing it would not be to prevent the Bill being put down for a second reading on a subsequent day....²

The renowned constitutional expert, Sir Ivor Jennings stated: "The member in charge of the Bill moves That the Bill be now read a second time. There is, of course no reading, but a general debate on the merits of the Bill ensues. The method for opposing is usually not just to vote in the negative. Such an opposition, if successful, merely shows that the bill is not then to be read a second time...".³

It is hardly an ancient or forgotten practice. It was nearly used in the Canadian House of Commons after the motion for the third reading of Mitchell Sharp's Income Tax Bill (Bill C-193) was defeated on February 19, 1968. Allan MacEachen, House Leader at the time, told the Commons a few days later:

I think there is a very strong case to be made in support of the argument advanced by the Minister of Justice that the motion at that time was a simple motion and that the operative word in the motion was the word "now". It was open to the government to move that the bill be given third reading at a later time. This is a very important point, and there is quite a bit of evidence to be found in the authorities to support the argument made by the Minister of Justice.⁴

Commenting on the defeat of Bill C-193 John Stewart writes:

The general view was that Bill C-193 had been defeated. The government did not accept this interpretation of the vote on 19 February; rather, they believed that, as stated by May and Beauchesne, the bill was still before the House, although side-tracked. But they did not have a majority. Moreover, given the fact that strong action to arrest the withdrawal of foreign money from Canada was needed urgently, and the fact that no successor to Prime Minister Pearson, who had announced his retirement in December 1967, had been selected, the government was most anxious to avoid an election. In the circumstances the Liberals were not prepared to take the risk of failing to convince the other parties that Bill C-193 was still before the House. Instead they sought to evade that question by bringing in a new bill, C-207..."⁵

First Principles

Any theoretical discussion of reviving an Order of the Day should begin by referring to the "same question rule", which generally stated, prevents the same question being offered twice in the same session. John Hatsell writes: "That the same question which has been once proposed and rejected, should not be offered again, in the course of the same session, seems to be a rule that ought to be adhered to as strictly as possible, in order to avoid surprise, and that unfair proceeding, which might otherwise be made use of. It however appears, from several of the cases under this title, as well as from every day's practice, that this rule is not to be so strictly and verbally observed, as to stop the proceedings of the House. It is rather to be kept in substance than in words; and the good sense of the House must decide, upon every question, how far it comes within the meaning of the rule. It clearly does not extend to prevent the putting of the same question in the different stages of a Bill..."₆ Sir Thomas Erskine May, in the first edition in his Treatise Upon the Law, Privileges, Proceedings and Usage of Parliament (1844) stated: "In passing bills, a greater freedom is admitted in proposing questions, as the object of different stages is to afford the opportunity of reconsideration; and an entire bill may be regarded as one question, which is not decided until it is passed."⁷

Two general principles emerge. The first is that not all Orders of the Day may be revived. If the same question rule is to have any meaning, then substantive motions when adopted and bills once dealt with in final form by both Houses of Parliament should not be brought up again during the same session. The second principle is that the same question rule does not generally apply during the passage of a bill, which means that the problems associated with reviving orders cannot lie in their relationship to the rule forbidding the same questions being proposed twice.

A bill is read or considered three separate times. The same amendments to a bill may be presented more than once. Even after one House has passed a bill for a third time, members may be asked by the other place to reconsider its decision. In the case of Bill C-22 (1987), dealing with patents on drugs, the process of revisiting decisions may occur a number of times.⁸

What is often lost sight of is that from a purely technical viewpoint, the House does not consider a bill directly, but rather indirectly, through a series of special motions called subsidiary motions, which are used to move questions forward in the different stages of procedure through which they have to pass before their final adoption. Subsidiary motions differ from substantative motions in that they relate to the timing of a bill's progress, and not specifically to its contents. Subsidiary motions usually have the words "now" "when" or "on a specific date" either stated directly or implied. The following are examples of subsidiary motions: "It is moved that the Bill be now read a first time. Is it the pleasure of the House to adopt the motion? When shall the said Bill be read a second time? It is moved that the Bill be now read a second time. It is moved that the Speaker do now leave the Chair for the House to resolve itself in Committee of the Whole on the Bill. When shall the report be received? Now? When shall the Bill be read a third time? It is moved that the said Bill be now read a third time and passed..."

Because subsidiary motions relate to time, certain types of amendments are reserved exclusively to them, notably the hoist and the reasoned amendment. Beauchesne's sixth edition, citation 575 states:

(1) An amendment proposing that a motion be considered "this day six months" is out of order, as the six months hoist only applies to "readings" or other proceedings which take place on an appointed date. It has no application to motions for direct adoption. Debates, March 20, 1924, p. 519.

(2) In similar manner, reasoned amendments may only be applied against readings of bills.⁹

It would appear that since (a) the House does not deal directly with a bill, but indirectly through subsidiary motions, (b) such motions are concerned with moving a bill from one stage to another and not with whether the House agrees with its substance, and (c) the "same question rule" has a restricted application in the passage of a bill, a motion to revive a bill whose progress has been temporarily stopped through the negativing of a reading or other such motion, would be from a theoretical perspective in order. Up until recent times, this has been the traditional interpretation of the parliamentary authorities. May's first edition, stated:

The member who has charge of the bill moves, "That the bill be now read a second time;"... The opponents of the bill may simply vote against this question, and so defeat the second reading on that day; but this course is rarely adopted, because it must still be decided on what other day it shall be read a second time, or whether it shall be read at all. The ordinary practice, therefore, is to move an amendment to the question, by leaving out "now", and adding "three months", "six months", or any other term beyond the probable duration of the session. The postponement of a bill, in this manner, is regarded as the most courteous method of dismissing the bill from any further consideration, and is resorted to in every other stage of the proceedings, except on questions for the engrossment of passing of the bill... Another reason for using this form of amendment is, that the House have already ordered that the bill shall be read a second time; and the amendment only names a more distant date. Instances of rejecting bills altogether were formerly not uncommon; but are now comparatively rare... There is no restriction in regard to the time at which motions for rejecting bills shall be made; but, if the house think fit, such rejection may be voted on the first, second, or third readings, or any other stage of the bill. It was thought better, however, to notice the practice in this place, in connexion with the postponement of bills, in order to save repetition when the other stages are under consideration.¹⁰

May felt that while it was possible to revive a bill if directly defeated by the House in which it originated, it was not the preferable course since (a) it is a clumsy procedure "because it must still be decided on what other day it shall be read a second time, or whether it shall be read at all" and (b) a reading stage defeat flies in the face of an earlier order of the House which was that the bill be read at either the next or subsequent sitting. For these reasons, May stated that opposition to a bill rarely takes the form of voting against a bill directly. The usual, and more efficient procedure, is to move a hoist amendment and postpone the bill indefinitely.

May kept this same description of reviving orders throughout his nine editions. Along the way he added that if opponents of a bill simply vote against the question of second reading and the motion is negatived, "the bill... is still before the House, and may afterwards be proceeded with". He backed this statement up with the example of the Parliamentary Electors Bill, 1847. Sir Reginald Palgrave, co-editor of the tenth and eleventh editions of May, basically kept this wording but added two more examples of bills held to be still before the House after the question for their second reading was negatived – the Church Rates Communication Bill (1863) and the Dublin, Wicklow, etc. Railway Bill (1887). Palgrave also observed: "In former times, when the question for now reading a bill a second time has been negatived, it has been followed by an order for reading the bill a second time that day three or six months hence".¹² Additional precedents was included by T. Lonsdale Webster in the twelfth edition. These were Parochial Board (Scotland) Bill and Crofters Holdings (Scotland) Act (1886) Amendment Bill (1888).¹³

Sir Gilbert Campion, on assuming the editorship of May, considerably altered the section on bills and the methods of opposition to second reading. Up until his fourteenth edition in 1946, May's Parliamentary Practice had stated that "rarely" was a reading stage motion opposed directly in the House. Campion claimed that second reading could be opposed in three ways – (i) a delaying amendment, such as a hoist (ii) a reasoned amendment stating that the House declined to proceed with the bill for certain reasons and (iii) opposing without moving an amendment. With regard to using this option in the House of Lords, Campion writes:

The third method of opposition is by challenging a vote on the motion for the second reading. It not infrequently occurs that, although no notice of opposition has been given in advance, objection to the measure transpires in the course of debate and the motion is opposed and may be negatived. Strictly, in theory, when this occurs the second reading is only negatived for that particular day, but in practice it is usual to treat it as a rejection of the bill, which is thenceforward removed from the order paper. It could however, be reinserted at the request of the Peer in charge of it.¹⁴

With respect to second reading in the Commons, Campion kept the wording of earlier editions, that is:

The opponents of the bill may vote against the question "that the bill be now read a second time"; but this course is rarely adopted, because it still remains to be decided on what other day it shall be read a second time, or whether it shall be read at all; and the bill, therefore, is still before the House and may afterwards be proceeded with.¹⁵

In the sixteenth edition of May published in 1957 under Edward Fellowes, the passage that while opponents of a bill in the House of Commons may vote against the question for second reading "this course is rarely adopted" was altered to read "and this course is not infrequently adopted". Fellowes held, however, that "the bill is still before the House and may afterwards be proceeded with".¹⁶ Barnett Cocks in the eighteenth edition (1971) repeated the same wording.¹⁷ In the 1976 nineteenth edition by Sir David Lidderdale, the concept of reviving a defeated bill was transformed into only a theoretical possibility. Lidderdale wrote: "The opponents of the bill may vote against the question... but if they succeed the bill is technically still before the House and could afterwards be proceeded with".¹⁸ The 1983 twentieth edition by Sir Charles Gordon went further and dismissed the procedure as inappropriate even from a theoretical perspective in modern parliaments. This edition stated:

Opponents of a bill may, and commonly do, vote against the question for second reading. Under former practice, when the question for second reading was negatived directly (rather than being disposed of by amendment) the bill was held to be still before the House, and a future day was appointed for second reading. Under modern practice defeat on second (or third) reading is fatal to a bill since no future day is appointed for that stage, and the introduction of a fresh bill in substantially the same terms has been ruled out of order.¹⁹

The twentieth edition did however refer to the precedents of the Parliamentary Electors Bill, the Church Rates Redemption Bill, etc. which earlier editors of May had used as examples which proved that a bill, negatived at second reading, was still before the House. In the twenty-first edition under the editorship of C.J. Boulton (1989) these precedents were deleted as was any mention of the former practice. This latest edition stated:

Opponents of a bill may, and commonly do, vote against the question for second reading, but the traditional way of opposing second reading is by moving an amendment to the question. Defeat on second (or third) reading is fatal to a bill since no future day is appointed for that stage, and the introduction of a fresh bill in substantially the same terms has been rule out of order.²⁰

Canadian procedural authorities have retained the earlier description given in May. Sir John Bourinot's Parliamentary Procedure and Practice, second edition (1892) stated:

If a resolution adverse to the bill be resolved in the affirmative, or the motion, "that the bill be now read a second time" be simply negatived on a division, the measure will disappear from the orders but it may be revived at a subsequent time, as the house has merely decided that it should not then be read a second time and the order previously made for the second reading remains good. When a bill so disappears from the order paper it is competent for a member to move at any time,

That the said bill be read a second time on – next.

On this motion being agreed to, the bill takes it place on the orders. The same practice obtains with respect to the bill, at any previous or succeeding stage.²¹

In the subsequent editions of Bourinot by Thomas Flint, this passage was slightly altered. In the third edition (1903) the sentence "when a bill so disappears from the order paper it is competent for a member to move at any time "that the said bill be read a second time on ____ next", was changed to read "...at any time without notice...".²² In the fourth edition (1916), the passage read "... without notice...".²³

Arthur Beauchesne, in his first edition of his Rules and Forms of the House of Commons of Canada (1922) quoted from the twelfth edition of Erskine May, by T. Londsdale Webster. Beauchesne's citation read:

512 The opponents of the bill may vote against the question that the bill "be now read a second time"; but this course is rarely adopted as it still remains to be decided on what day it shall be read a second time, or whether it shall be read at all; and the bill therefore is still before the House, and may afterwards be proceeded with. The ordinary practice is to move an amendment to the question by leaving out the word "now" and adding "six months" or any other term beyond the probable duration of the session.₂₄

Beauchesne also added a passage from Bourinot's fourth edition but made some significant alterations to it. The citation read:

514 When the motion that the bill be now read a second time is negatived, the bill disappears from the order paper, but it is competent for a member immediately to move without notice: "That the said bill be read a second time on -- next." On this motion being agreed to, the bill takes its place on the orders. The same practice obtains with respect to the bill, at any previous or succeeding stage.²⁵

As noted above, Bourinot said that after a bill had been negatived at second reading, and "disappears from the order paper", it would be competent for a member to move that the bill be revived "at any time", which was later changed to "without notice". Beauchesne seems to claim that following the defeat of a reading stage, a member must move immediately, that the bill be read on a certain date.²⁶ Yet some of the precedents in the Parliament of Canada referred to by Bourinot showed that a motion to revive an order did not have to be moved immediately. For example, on March 22, 1876, the motion for second reading of a Bill to amend the Insolvent Act of 1875 was defeated on a recorded division of 55 to 69. On April 3, 1876, a motion was made that the same bill be read the second time on Thursday next. A point of order was raised "whether such motion was in order without due notice being placed on the paper, the Bill having been negatived on a previous occasion". After some discussion, the Speaker ruled that "not having had time to consult the authorities, [he] was disposed to rule that the motion was in order."²⁷

On April 30, 1883, the motion for the second reading of a bill to fix the rate of interest in Canada was negatived on division. On May 4, 1883, a motion for second reading of the bill was proposed. Again a point of order was raised this time on whether the House had earlier disposed of the Bill. The Speaker ruled: "The proceedings the other day simply refused that the Bill should then be read the second time. The motion was that the Bill be read the second time and that motion was carried in the negative, not to fix the second reading for a future day but simply stating that it should not be read the second time. This being a motion with respect to a Bill now before the House simply to place it on the Orders of the Day for a future day, it is quite in order, and it is for the House to say whether it will accept the motion or not." The motion to revive the bill was then put, and negatived.²⁸ A third example occurred on May 11, 1892, when the motion for second reading of a bill further to amend the Acts respecting the North-West Territories was defeated 33 to 132. On May 12, 1892, the question that the same bill be placed on the Orders of the Day for a second reading on Monday next was made, and negatived.²⁹

Beauchesne made no alteration to his original citations either in his second (1927), third (1943), or fourth (1958) editions.³⁰ In the fifth edition, edited by Alistair Fraser, et. al, the reference that "rarely" did opponents vote against the question of second reading (which had appeared in the fourth edition) was deleted. Beauchesne's Fifth stated that three types of amendments may be made at second reading – the hoist, the reasoned amendment and the referral of the subject-matter to a Committee. Fraser's edition did, however, retain the passage originally given in Beauchesne's First that a bill may be revived after a reading motion has been negatived.³¹ As noted earlier, the latest edition, the sixth published in 1989, has kept the same wording.

Practical Problems of Reviving Orders of the Day

Probably the foremost problem is that the technique has fallen into disuse and subsequently lost its purpose and rationale.³² It would appear that its disuse can be principally attributed to the way the confidence convention has come to be strictly interpreted, that is, if a government loses a question on a whipped vote, it must either seek to reverse the defeat, seek a vote of confidence, resign or request a dissolution.³³ Up until the nineteenth century, the fate of a government did not rest on winning every particular vote relating to its business. In today's parliaments most governments do not wish to lose a single vote especially on a bill since if they did, the opposition would not easily allow them another opportunity to try to reverse the defeat. For these reasons, there have been very few precedents in the last hundred years where an order of the day relating to the defeat of a bill has been attempted to be revived. Even when the opportunity did present itself, such as in 1968 when Bill C-193 was defeated, governments have been timid to act.

A second reason for the procedure becoming obsolete is that opposition is more often expressed today directly to the question for the second or third reading and less often in the form of a hoist or reasoned amendment, as was the original practice. The earlier editions of May held that "rarely" was a reading stage motion opposed directly. The authors of later editions probably recognized that this statement no longer reflected parliamentary reality and altered it to read: "The opponents of the bill may vote against the question 'that the bill be now read a second time' and this course is not infrequently adopted." By 1983, May unreservedly stated "Opponents of a bill may, and commonly do, vote against the question for second reading." Perhaps the concept that subsidiary motions deal only with the timing of a bill's progress has become less apparent as debate centres around whether the "principle" of a bill should be accepted (at second reading) or whether a bill "do pass" (at third reading). Negativing such motions have led Speakers to rule that defeat of a reading stage is fatal to a bill. Certainly this was the conclusion of Speaker Lucien Lamoureux in 1968 with regard to the defeat of Bill C-193.³⁴ Perhaps as well, members have become dissatisfied with using the traditional techniques of opposing a reading stage through the hoist or reasoned amendment. Attempting to explain to a public audience unfamiliar with the workings of Parliament that an amendment proposing a bill's postponement for six months is not to be taken literally may have become too difficult. Legislators may also have had more and more trouble drafting properly-worded reasoned amendments to bills whose purposes are often complex. Just as the motion to revive a bill has fallen into disuse, so have the hoist and reasoned amendment.

Notwithstanding the views of Bourinot or Beauchesne, there are serious problems associated with the use of the procedure of reviving Orders of the Day in today's parliaments.

Both these changes i.e., (a) most votes are now whipped and treated as matters of confidence and (b) opposition usually takes place directly to the motion that a bill be now read a second or third time, relate to the political problems of reviving orders of the day. An important procedural problem is the uncertainty which exists as to whether a bill which has been defeated at a reading stage is still before the House or merely "side tracked" in the course of its progress. May's twentieth edition stated: "Under former practice, when the question for second reading was negatived directly... the bill was held to be still before the House, and a future day was appointed for second reading. Under modern practice defeat on second (or third) reading is fatal to a bill since no future day is appointed for that stage..." The twentieth and twenty-first editions do not categorically declare that a bill defeated at second or third reading is no longer before the House: only that its progress is terminally interrupted because no additional subsidiary motion is moved to appoint another day for the reading stage. Can another day be appointed? The reference in May does not clearly explain why it cannot. In the Canadian context, it seems it is possible. Beauchesne's sixth edition states that following the defeat of reading stage: "... it is competent for a Member to move immediately without notice: 'that the bill be read a second time on ___ next." As noted earlier in this article, it would seem that from a theoretical point of view it is possible to move for the revival of a bill. However, based on rulings such as that of Speaker Lamoureux in 1968, it is extremely doubtful whether a presiding officer would even permit such a motion. There is also the technical difficulty of when and where in a sitting's proceedings this motion may be proposed. These problems are very difficult to overcome under modern practice.

Notes

1. Beauchesne's Parliamentary Rules and Forms, edited by Alistair Fraser, et. al. 6th Edition (Toronto: Carswell, 1989), p. 202.

2. Lord Gilbert Campion, An Introduction to the Procedure of the House of Commons, 3rd Edition (London: MacMillan, 1958), p. 210.

3. Sir Ivor Jennings, Parliament, 2nd Edition (Cambridge: Cambridge University Press, 1957), pp. 251-252.

4. House of Commons Debates, March 11, 1968, p. 7475.

5. John B. Stewart, The Canadian House of Commons: Procedure and Reform (Montreal: McGill-Queen's University Press, 1977), p. 93.

6. John Hatsell, Precedents of Proceedings in the House of Commons, vol 2 (South Hackensack: Rothman Reprints, Inc. 1971), pp. 132-3.

7. Thomas Erskine May, A Treatise Upon the Law, Privileges, Proceedings and Usage of Parliament, 1st Edition (South Hackensack, New Jersey; Rothman Reprints, 1971), pp. 186-87.

8. On May 6, 1987, the House of Commons passed Bill C-22, An Act to amend the Patent Act and to provide for certain matters in relation thereto. The bill passed the Senate with amendments on August 13, 1987, and on two occasions, Messages respecting amendments were received by the House and returned to the Senate (August 31, 1987 and November 5, 1987), before the bill received Royal Assent on November 19, 1987. See Beauchesne, op. cit., 6th edition, c. 743, p. 216.

9. Beauchesne, 6th Edition (1989), c. 575, p. 176.

10. May, op. cit., 1st Edition, pp. 277-78. May, however, did place an important restriction on the revival of bills. He noted in his first edition, and subsequent ones, that "If the second or third reading of a bill sent from one house to the other be deferred for three or six months, or if it be rejected, there is no regular way of reviving it in the same session", p. 190. Bourinot's Parliamentary Procedure makes the same point. See the 4th Edition (Toronto: Canada Law Book Company, 1916, p. 546.

11. Ibid, 9th Edition (London: Butterworths, 1883) p. 545.

12. 10th Edition (London: W. Clowes and Sons, 1893), pp. 445-6.

13. Ibid, 12th Edition (London: Butterworths, 1917), p. 357.

14. Ibid, 14th Edition (London: Butterworths, 1946), p. 468.

15. Ibid, p. 497.

16. Ibid, 16th Edition (London: Butterworths, 1957), p. 529.

17. Ibid, 18th Edition (London: Butterworths, 1971), p. 486.

18. Ibid, 19th Edition (London: Butterworths, 1976), p. 498.

19. Ibid, 20th Edition (London: Butterworths, 1983), p. 529-30.

20. Ibid, 21st Edition (London: Butterworths, 1989), p. 473.

21. Sir John Bourinot, Parliamentary Procedure and Practice, 2nd Edition (Montreal: Dawson Brothers, 1892), pp. 604-5.

22. Ibid, 3rd Edition (Toronto: Canada Law Book Co., 1903), p. 648.

23. Ibid, 4th Edition (Toronto: Canada Law Book Co., 1916), p. 510.

24. Beauchesne, op.cit., 1st Edition (Toronto: Canada Law Book Company, 1922), p. 131.

25. Ibid.

26. Beauchesne may have been referring to May's 9th edition which stated: "But when the question for now reading a bill a second time has been negatived, it may be immediately followed by an order for reading the bill a second time that day three or six months." See May, op.cit., 9th Edition, p. 545.

27. House of Commons Debates, 1876, pp. 788-789, 1008.

28. House of Commons Debates, 1883, pp 903, 957.

29. House of Commons Debates, 1982, pp. 309, 311.

30. Beauchesne, , 2nd Edition p. 217; 3rd Edition , pp. 228, 230; 4th Edition , p. 276-77.

31. Beauchesne, , 5th Edition pp. 227-228.

32. It is still possible to revive orders of the day which have become "dropped orders". May's 20th edition states: "An order under consideration when the House is adjourned owing to grave disorder becomes a "dropped Order". A dropped order may be replaced on the order paper by a motion taken at the commencement or after the close of public business to appoint the order for a subsequent day". op. cit. p. 367.

33. See Philip Norton, "Government Defeats in the House of Commons: Myth and Reality", Public Law (Winter 1978), pp.360-378.

34. See Speaker Lamoureux ruling of March 11, 1968, House of Commons Debates, pp. 753-756. Lamoureux stated "... what the Chair should do, in my view, is compare the provisions of Bill C-207, now before the House, with those of Bill C-193 which was defeated on third reading...".