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Speech in Senate Chamber: Support of Senator`s Point of Order, Disposition Motion, Bill C-210, An Act to amend the National Anthem Act (gender)

 Honourable senators, I rise to join this debate on Senator Plett’s point of order. To His Honour, Senator Furey, whom I have known for many years and with whom I have served on several Senate committees, I would like to say to you, Your Honour, and to colleagues here, that I am confident that Senator Furey had no malice or ill intention in his mind or in his heart when those events unfolded and occurred last night here in the Senate.

Anyone who is in public life knows that sometimes when one has the floor, one may be a little nervous. Some of us are not as confident as others. They might get a little nervous, a little flustered and distracted and therefore prone to errors. But I just wanted to assure colleagues and our Speaker, Senator Furey, that I have no suspicion or judgment of him in my heart.

Having said that, colleagues, I stand as a fierce opponent of disposition motions, and motions that impair, shorten and abbreviate debate. The objective and the objects of this place are to debate and to exchange views very freely, knowing that there are certain instruments that are explicitly created to limit debate and to end debate. One of those types of motions was deployed and employed yesterday in this place. Senators will know that I come from a family that taught me much about these systems of parliamentary governance. As such, yesterday’s situation shocked and appalled me. I will be ready to oppose this disposition motion, which is what I am doing now.

Honourable senators, having said that, I want to say that the motion that was moved yesterday by a senator is one that we would describe as a disposition motion.

Colleagues, I assert that such motions seek to arrest and terminate debate at all times and at the best of times. It is a two-headed monster. This senator’s disposition motion is a two-headed monster, because simultaneously it breached our free-speech privileges of in this place, privileges that are granted by section 18 of the Constitution Act, 1867. It also breached the order in this place in that it purports to be a species of motion known as the guillotine motion.

The guillotine motion is not a democratic motion. It is not a sensitive, thoughtful motion. It is not a motion that intends extended debate until all concerns are met. It is a motion that is intended to truncate and terminate debate. Make no mistake about that.

This species of motion, called the guillotine, is available for the use only of ministers of the Crown. No private member is ever supposed to move a guillotine motion. Furthermore, when the government uses such a motion, they must use it on government business. It is usually used in times when there has been fierce obstruction and opposition and delay on government bills.

Colleagues, Bill C-210 is not a government bill. It is a private member’s bill. The guillotine motion may not be used by private members or on private members’ business, as Bill C-210 is. The guillotine motion belongs to the family of severe and punitive procedures and motions that are employed in parliamentary assemblies in cases of — listen carefully — willfully prolonged and severe obstruction of business in the houses of Parliament. Bill C-210 could hardly be described as any of these things.

This guillotine family of motions includes time allocation, closure, disposition motions and, of course, the most severe, the guillotine motion itself. It is called a guillotine motion because of its harshness, severity and finality.

Honourable senators, I would like to cite some interesting debates, but I will come to them in a moment. I want to make the point, again, that time allocation and closure motions are rarely used. For centuries, lovers of freedom of speech and of constitutional liberty have abhorred and condemned the use of these rarely to be used motions. There are good reasons for their rare and infrequent use. Most senators here have probably never been exposed to them.

Our Rules of the Senate, at pages 41 and 42, has an entire section headed “Time Allocation,” with its related rules 7-1, 7-2 and 7-3. I further note that these time allocation motions ought only to be actuated and moved by the Senate Government Leader, who is expected to be and has always been, until recently, a minister of the Crown and a member of Her Majesty’s Government of Canada.

Honourable senators, I repeat: This family of motions, guillotine motions, should be rarely employed. If we look at chapter 7 of our Rules, it says very clearly in rule 7-1(1), on the agreements to allocate time, that:

At any time during a sitting, the Leader or the Deputy Leader of the Government may state that the representatives of the recognized parties have agreed to allocate a specified number . . . .

Here it is clear that guillotine motions are moved as government initiatives, not as initiatives arbitrarily used by individual senators. Unfortunately, it is hard to believe that most senators in this place have not been exposed to the severity and harshness of these guillotine motions.

Colleagues, I want to share some authoritative explanations and definitions of guillotine motions. I shall begin with Sir Gilbert Campion, later Lord Campion. He was the Clerk of the British House of Commons from 1937 to 1948. In his 1958 book, An Introduction to the Procedure of the House of Commons, Lord Campion wrote at page 129:

’Guillotine’ Motions are a form of closure by compartments applied to the discussion of Bills. . . . . Their purpose is to ensure the completion of the debate on a capital Bill in a certain number of days, and to distribute the days allotted proportionately over the various stages of the Bill. . . . . They are sometimes not put down until a Bill has been so long in committee with so little progress made as to provide a case for the application by the Government of special measures.

In other words, the delays in the bill’s progress would have to be so extreme and so protracted that they invited the harsh response, that is a guillotine motion. I continue with Lord Campion saying, at page 129:

The expedition of business secured by this method has generally to be paid for by the loss of a day in the discussion of the Motion itself. It is thus only for the purpose of securing the passage of important Bills that a Government finds it worth while to resort to these measures. The detailed arrangements, by which the various parts of the Bill are examined by a certain time, can be laid down by the ’Guillotine’ motion itself;

Honourable senators, Lord Campion is clear that the guillotine motion is rarely used, and when used it should be to secure important government business. Governments only resort to these unusual and harsh measures in strained and difficult circumstances such as the unceasing Irish obstruction that confronted the great Prime Minister William Gladstone in the British House of Commons in 1881, which led to the creation of the guillotine motion.

Honourable senators, I shall cite Norman Wilding and Philip Laundy in their 1972 fourth edition of An Encyclopedia of Parliament. They define “guillotine” thus, at pages 335 and 336:

A development of the closure . . . which is applied to the various stages of Bills and is also known as the ’closure by compartments.’ It can only be called into operation if a motion for the purpose has been agreed to by the House. Unlike a closure motion which has to be passed when a question is actually before the House, an allocation of time or ’guillotine’ motion is passed in advance of the debate it is proposed to limit.

Therein lies part of the problem. I continue with Wilding and Laundy saying, at pages 335 and 336:

A ’guillotine’ motion is designed to expedite the passage of a Bill, and seeks to do so by means of a time-table allotting a certain number of days proportionately to each stage and, in respect of the committee and report stages, stipulating the number of clauses which must be considered on each day or portion of a day. At the end of the allotted time the question under consideration must be put, followed by any further questions necessary to conclude the business which has been assigned to that day or period, opportunity for any further discussion being now lost. ’Guillotine’ motions usually contain other provisions such as the prohibition of dilatory motions and the postponement of other business.

The ’guillotine’ is unpopular on all sides of the House. It renders opposition ineffective and severely impairs the value of debate.  Its only virtue is that of saving time, although a certain amount of time is always lost in the discussion of the motion itself.  A Government is usually reluctant to propose its use, and will only do so as a matter of urgency.

Honourable senators, Joseph Redlich, in his 1903 book, the Procedure of the House of Commons, Vol. 1 treats of guillotine and closure motions.  In his chapter 3, titled The Urgency Procedure and the Introduction of the Closure (1881-1888), he wrote, at page 164:

The resolution brought in by Mr. Gladstone with the object of preventing further Irish obstruction upon the Coercion bill is one of the most remarkable documents in English parliamentary history.  Its contents may be characterised in one word.  It proclaimed a parliamentary state of siege and introduced a dictatorship into the House of Commons.  The new rule, called for shortness the urgency, reads as follow:

Redlich quotes then British Prime Minister William Gladstone, in the British House of Commons, on February 3, 1881, speaking to his famous guillotine motion.  I shall read from Gladstone’s speech in the House of Commons Debates of February 3, 1881, column 103, headed ‘Motion made, and Question proposed:’

That, if upon Notice given a Motion be made by a Minister of the Crown that the state of Public Business is urgent, and if on the call of the Speaker 40 Members shall support it by rising in their places, the Speaker shall forthwith put the Question, no Debate, Amendment, or Adjournment being allowed; and if, on the voices being given he shall without doubt perceive that the Noes have it, his decision shall not be challenged, but, if otherwise, a Division may be forthwith taken, and if the Question be resolved in the affirmative by a majority of not less than three to one, the powers of the House for the Regulation of its Business upon the several stages of Bills, and upon Motions and all other matters, shall be and remain with the Speaker, until the Speaker shall declare that the state of Public Business is no longer urgent, or until the House shall so determine upon a Motion, which after Notice given may be made by any Member, put without Amendment, Adjournment, or Debate, and decided by a majority.— (Mr. Gladstone.)

Honourable senators, in his lengthy and powerful speech on his now famous guillotine motion, Prime Minister Gladstone provided wise words on the severity and importance of the adoption of his guillotine motion.  In the British House of Common debates, of February 3, 1881, he said, at columns 89-90:

There is no other country in the world in which for two or three centuries a Parliament has laboured steadily from year to year, in the face of overweening power, to build up by slow degrees a fabric of defence against that overweening power, for the purpose of maintaining and handing down intact that most precious rule of perfect liberty of speech, to which it is impossible to attach too high a price, and with respect to which we make no other demand than this—that it shall be exercised, not according to what we think reasonable, not according to what we think moderate, but simply according to the possibilities that must limit the condition and the action of a Representative Assembly.  .  .  .  .   The British House of Commons has undertaken work with which the shoulders of human beings at any period of history and in any country in the world never have been charged.  .  .  .  .  Obstruction elsewhere is a jest and a plaything; Obstruction here has it in its power to place fatal, insurmountable obstacles in the way of your discharging your primary obligations. .  .  .   Because, your duties being so many, the insufficiency of human strength .  .  . places you at the mercy of those who may think fit, in the discharge of what they term their conscientious obligations, to use the Rules of debate for purposes to which they are easily capable of being applied—for the purpose of blocking the way over which you have to travel, and of rendering it impossible, within the limits of the time accorded to us.

Gladstone continues, in column 102:

My lease is all but run out; but there are those here who, for years, even for generations, will live, as I hope, to render honourable and splendid service to their country.  The House of Commons has never since the first day of its desperate struggle for existence stood in a more serious- in a crisis of character and honour, not of external security, but of character and honour, which are its essence.  As you value the duties which have been committed to you, as you value the traditions you have received, as you esteem highly the interests of the vast Empire for which you work, I appeal to you  .  .  .  to discuss this and that secondary improvement upon which we might differ forever, but without hesitation, without delay, after the challenges that have been addressed to you, after what you have suffered to-night, to rally to the performance of a great public duty, and to determine that you will continue to be, as you have been, the mainstay of the power and glory of your country.

Honourable senators, as we know, there is a thematic and procedural unity to our Senate Rules. We also know that for quite some time now here in the Senate, Government Business has had priority over Other Business.  This fact has been thus, and part of our Senate practice for quite some time.  As we know, many changes have been made in the Senate Rules to facilitate the adoption of government business and government bills.  These procedures were established after years of consideration and reflection in the Senate.

 Colleagues, Senator Lankin described her motion as a disposition motion, but the bill in question, private members’ Bill C-210, is itself not a matter for urgency or priority in the Senate.  I do believe that the application of guillotine and closure motions are high-handed and unparliamentary in this instance, and therefore a misuse and abuse of the lofty system of closure.  I also note that this disposition motion in these simple Senate circumstances is an authoritarian and exaggerated use of power, a power that, as we know should be rarely evoked and moved. I thank honourable senators for their time.