At the time
this article was written Norman W. Sterling represented Lanark-Carleton in the
Ontario Legislative Assembly and was Minister of Intergovernmental Affairs and Government House Leader.
government requires a balance of ministerial responsibility and party
discipline on one hand with a fair measure of opportunities for individual
representatives on the other. Ontario’s Provincial Parliament recently adopted
two significant changes to the operation of its Standing Committees. The first
allows the government to send bills to Standing Committees for early
consideration. The second empowers committees to propose, study and draft
legislation at the direction of its members. This article outlines these
In 1999 one hundred and three members of the
provincial parliament (MPPs) were elected. The governing Progressive
Conservatives had reduced the size of the House by 27 members as a cost-saving
measure. Due to this dramatic adjustment in the landscape of the House,
all three parties had already accepted the need for changes to the
Legislature’s operations to accommodate the smaller Assembly.
To ensure that legislative business proceeds
smoothly, Ontario’s three party House Leaders routinely meet before a new
parliament in order to negotiate changes to House Standing Orders, budgets and
schedules. Ontario’s situation in 1999 was similar to the one faced by
House Leaders at the House of Commons following the election of four Opposition
parties in 1993. The smaller Assembly in Ontario made these negotiations more
interesting and of a broader scope than would normally be the case. When
the House resumed in October 1999, successful negotiations resulted in changes
including a reorganized Question Period rotation and a reduction in both quorum
and the number of Standing Committees.
All parties took this wide-open negotiating
environment as an opportunity to propose reforms to make the contributions of
individual MPPs more meaningful. In recent parliaments, backbenchers and
opposition MPPs alike had found themselves spending more and more debate time
in the Chamber in an increasingly partisan and polarized environment.
Obviously, all parties shared a common desire to ensure that legislative
time is “quality time,” producing tangible results for Ontario taxpayers and a
more fruitful and fulfilling experience for all members.
Preliminary (First Reading) Committee
In Ontario, as in most parliamentary
jurisdictions, the life of a bill begins with its First reading introduction
followed by the motion for Second reading and the resulting debate and decision
on that motion. Upon the passage of Second reading, the principle of the
bill is fixed. Any amendments now considered in Standing Committee or
Committee of the Whole House, must adhere to the principle of the bill now
established. Second reading debates on government bills traditionally
include a speech by the Minister, or the Minister’s representative, and protracted,
partisan exchanges that stake the political ground of opposing views of the
greater good. Often, by the time Second reading is complete, the
Minister’s and Opposition’s positions are entrenched.
It seems part of human nature that once we
publicly state an opinion, a change of position becomes more difficult.
Allowing for committee consideration before Members go on record during
Second reading debate may on occasion lead to a broader and uninhibited
discussion in the committee itself, and a more informed debate at Second
reading. Major adjustments are more difficult once Second reading is
complete and the principle of the bill has been approved.
Ontario’s new tool to avoid, at least on
occasion, these pressures provides the Government House Leader with the power
to send legislation to a Standing Committee before Second reading debate has
begun. This committee stage allows for debate, public consultation and
possible amendment of the legislation before the principle has been fixed.
In theory, the debate at this committee stage could be broader than
committee after Second reading, offering individual members more significant
input into the legislation. All parties have greater flexibility to accept
early changes without losing face. At the same time, ministerial
responsibility is not compromised since the Minister continues to be
responsible for the legislation ultimately carried forward.
Ministerial responsibility is also protected
by the fact that no House time has yet been used on the legislation. One
aspect of ministerial responsibility is to ensure all the important legislation
necessary for governing the Province is considered and passed and that the
promised agenda is completed within the mandate. This means House time is
at a premium and a Minister cannot afford to spend days of debate on a bill,
only to see it dismantled by a committee into a form that it is no longer
consistent with government policy. Traditionally, establishing the
principle of a bill at Second reading is the strongest protection against this
happening. When a bill is sent to committee after First reading, the
Minister runs the risk of having a radically altered product reported back to
the House. There are fewer disincentives to taking this risk if no valuable
House time has yet been expended on the bill. Indeed, early committee
consideration could expedite the subsequent life of the bill if an improved and
more broadly understood bill is reported back.
Other Canadian jurisdictions have rules with
similar provisions to allow earlier committee consideration of legislation, but
Ontario’s is unique. Ontario’s procedure should not be equated with the
House of Commons’ procedure which allows the Government House Leader to send
legislation to committee shortly after Second reading debate has begun.
This federal process allows for a limited debate at Second reading (180
minutes), effectively shortening the subsequent stages of a bill’s
consideration. Ontario’s preliminary committee provision in no way
shortens the ensuing stages of a bill. After preliminary committee concludes,
the bill proceeds to a normal Second reading and subsequent stages.
Backbench Government and Opposition members do not lose House debate time
as a result of this new standing order. In fact, if no co-operation is
forthcoming, engaging in an early committee consideration could prolong the
overall process for the Government.
Neither is the Ontario procedure similar to
Saskatchewan’s Non-controversial bills committee. Preliminary committee
hearings in Ontario are conducted by a normal Standing Committee, with
membership in rough proportion to that of the House. There is no
presumption that bills sent to committee under this procedure are
non-controversial. At the same time, it is fair to say that
non-controversial bills are well suited to preliminary committee consideration
and may often be the subject of the First reading committee process.
The first test of the new provision came
when the Standing Committee on Regulations and Private Bills began conducting
hearings on a bill to regulate franchised businesses (The Franchise
Disclosure Act). Franchises are a popular business form in Ontario
but are relatively unregulated compared to other business structures. The Franchise
Act is an experimental step into a broad new area of law for Queen’s Park.
These features make the bill an ideal beneficiary of the sort of
less-partisan head start that the preliminary hearings provision can provide.
In 1989, Ontario’s Parliament offered MPPs a
new channel through which to initiate debate by adopting what was most
recently, Standing Order 124. Through the Order, any individual committee
member, on behalf of his or her caucus, could direct a committee to research
and consider certain issues. Though limited to one topic of study per
year per caucus, when initiated, the committee was compelled to proceed with
the proposed subject of inquiry, effectively holding the entire committee
hostage to debate a particular partisan project.
On paper, this process was structurally
similar to the testimony-heavy committee hearings a visitor would expect to see
in the U.S. Congress. But just as congressional systems seem incapable of
harbouring strong party discipline, so too did the partisan political culture
of Ontario’s parliamentary system warp the introduction of this seemingly
congressional process. While the Standing Order was designed to facilitate
careful debate where an issue needed thoughtful, multi-partisan study, the rule
evolved into a tool for partisan “photo-opportunity“ hearings and an additional
forum to pursue a partisan agenda.
Ten years later, the house leaders agreed to
replace this old process with a new Standing Order 124 (see inset). MPPs
can now initiate legislative research on an issue with the support of 2/3 of
the committee’s membership. Caucus driven topics forced onto the
committee agenda are replaced by member initiated projects which can only be
pursued through cross-party cooperation. Cooperation does not go
un-rewarded. Where there is agreement to proceed with consideration of a
topic, the participating committee members can now replace parliamentary talk with
legislative action. With the continued support of the committee, study
can result in the drafting of legislation and an order for the committee Chair
to bring legislation onto the floor of the House.
Where the old process encouraged MPPs with
showmanship skills, the new system rewards consensus-builders who can offer
their colleagues ideas too constructive to turn down. In fact, the Order was
written to force an MPP to gain the support of 2/3 of the Committee precisely
because that was the threshold needed to guarantee multi-party participation.
While an individual MPP can set this new
legislative drafting process in motion, the support of other members is needed
to complete it. At present, Ontario’s committees (excluding the chair)
are made up of 4 Conservative, 2 Liberal and 1 New Democrat MPP. With
this committee structure in place, even if MPPs stick closely to party lines,
the 2/3 threshold forces members to think and work across party lines.
Even a united opposition must win some government support, and government
backbenchers must gain some opposition support, before the new standing order
can be effectively used to propose bills.
Once it is moved out of committee, a
committee-sponsored bill will be treated procedurally as a private Member’s
bill, with one exception. Such a bill is guaranteed to receive Second
reading debate time from the Government House Leader. Normally, a private
Member’s bill only receives Second reading debate during the limited time
reserved for that purpose on Thursday mornings. Guaranteed Second reading
time during Orders of the Day rewards the committee members and the bill’s
original author(s) for building a multi-party base of support, whether or not
the sponsors of the bill are in government or opposition. To further “reward”
the willingness to build bridges across partisan lines, any member of the
committee who supports a committee-sponsored bill can choose to act as a
“co-author” of the bill and attach their name to it as a sponsor.
Multiple Members being able to identify a
bill as their own is a particularly important innovation for the success of
this project. A strong majority government with strong party discipline
is the rule rather than the exception in Ontario, and most House time is
reserved for priority government bills. Private Members’ bills, authored by a
single Member, traditionally have little chance of success. Part of this
can be attributed to limited House time. Part is a by-product of ministerial
responsibility; members of the Executive will always be cautious about
implementing measures not of their own Ministry’s design. For private
Members’ bills to be successful, they usually need to have cross party support
and be encouraged by numerous members. These new committee bills build
this kind of support into their drafting process and the subsequent debate,
thereby enhancing their ultimate chance at successfully completing Third
The new standing order 124 is designed to bring backbench and opposition
MPPs at least one avenue to use that creativity as constructively as possible.
While the new Standing Order is an important
reform, it must still work within the context of Ontario’s overall
parliamentary system. Ministerial responsibility must be preserved and
therefore committee bills continue to be more like private Members’ bills than
government bills. This assurance is necessary to balance attempts to
empower independent members with maintaining the necessary level of control for
the members of the Cabinet who are ultimately accountable for the management of
the Province and its laws.
Committee bills, like private Members’
bills, are limited by the provision that they cannot impose a tax or
specifically direct the allocation of public funds. The members of the
Executive are held responsible and accountable for any expenditure authorized
by the Legislature, and so they will still hold the exclusive right to
introduce money bills. In addition, because the Executive is ultimately
responsible for any resulting new statute, Cabinet, through the Government
House Leader, retains control over the call for Third reading.
These amendments to Ontario’s parliamentary
procedures are an attempt to empower individual members within a system where
parties dominate, while preserving the tenets on which our system is based.
Like all experiments and attempts to inspire change within an entrenched
institution, it is an uphill battle and there is as much chance for failure as
success. But ours is an ever changing and evolving society and we should
allow our institutions to evolve as well. I am optimistic that the
balance created within these new committee procedures can benefit Members and
ultimately provide another innovative means by which to develop legislation for
the taxpayers of Ontario.
Standing Order 124 (actual text after amendment,
Members designate matters for consideration in Committee
124 (a) Once in each session, for consideration in that session, each
permanent member of a Committee set out in Standing Order 106(a) or (b) may
proposed that the Committee study and report on a matter or matters relating
to the mandate, management, organization or operation of the ministries and
offices which are assigned to the Committee, as well as the agencies, boards
and commissions reporting to such ministries and offices.
Notice of motion
Consideration of motion
(b) Notice of a motion by a member under this Standing Order shall be filed
with the Clerk of the Committee not less than 24 hours before the member
intends to move it in a meeting of the committee. The Clerk of the Committee
shall distribute a copy of the motion to the members of the Committee as soon
as it is received. Whenever a motion under this Standing Order is being
considered in a committee, discussion of the motion shall not exceed 30
minutes, at the expiry of which the Chair shall put every question necessary
to dispose of the motion and any amendments thereto.
Adoption of motion
Limitation on consideration
The proposal of a member for study and report must be adopted by at least
two-thirds of the members of the Committee, excluding the Chair. Such study
in the Committee shall not take precedence over consideration of a government
Report to House
Report may contain text of bill
(d) Following its consideration of such a matter, the Committee may present a
substantive report to the House and may adopt the text of a draft bill on the
subject matter. Where the text of a draft bill is adopted by the committee,
it shall be an instruction to the Chair to introduce such bill in his or her
name, as the primary sponsor. The other committee members who support the
bill may have their names printed on the face of the bill as the secondary
Time for debate
(e) There shall be not less than one Sessional day, or 3 hours, of debate in
the House on such a bill, to take place at a time or times allotted by
agreement of the House Leaders of the recognized Parties.