The Liberals Violated the Consultative Requirements of Parliament’s Standing Order 78

The procedure used by the Liberals to push through their budget bill is called “time allocation,” which allows them to cut off democratic debate in the House. The rules governing time allocation are in section 78 of the Standing Orders of the House of Commons, at the end of Chapter IX.

Standing Order 78 has three parts. The first part, 78(1), says the government may allocate time (i.e. cut off debate) if it receives unanimous consent from the other parties. Obviously, this requires consultation with all the other parties. So does the third part, 78(3), which says that the government can impose time allocation if “an agreement could not be reached under the provisions of sections (1) or (2) of this Standing Order.” In such a case, consultation with all the other parties must occur for the government to ascertain that such an agreement cannot be reached.

Sandwiched between these two parts, both of which require consultation with all parties, is 78(2). That’s the subsection the government used last week. It says that the government can impose time allocation if “a majority of the representatives of the several parties have come to an agreement.” The Liberals teamed up with the Bloc and NDP for a three-to-one majority.

The thing is, they did it in a sneaky way without consulting all the opposition parties. That was the point of the maneuver – to surprise the Conservatives with a quickie vote on the NDP budget.

But clearly, Standing Order 78 as a whole requires consultation with all parties, even if part 78(2) doesn’t say so explicitly. The first and third parts are more obvious in their requirement for inclusive consultation — but so does 78(2), when it’s understood in the context of the Standing Order as a whole.

That’s because Standing Order 78 is clearly designed to be hierarchical, such that a consensus is preferable to a majority and a majority is preferable to unilateral action. If that were not so, there would be no need for the consensus in part 78(1) to be mentioned — the government could just end its consultations as soon as it reached an agreement with a majority of parties. The fact that part 78(1) is included implies that the governing party has an obligation under Standing Order 78 to attempt to reach consensus — which means it has an obligation to consult all parties.

What should the Conservatives do about it? At the earliest opportunity they should raise a point of order with the Speaker to obtain a ruling to clarify the proper use of time allocation. Don’t hold your breath, though, because a look through Hansard shows the reluctance of previous Speakers to limit the Liberals’ use, and misuse, of Standing Order 78. But armed with the right arguments, it’s worth a try.

Another thing they should do is ask for the censure of Jerry Yanover, the Liberals’ expert on parliamentary procedure. If he’s as brilliant as the cheerleaders in the Liberal media claim, then he knowingly advised his party to cheat. For someone headed toward retirement, that’s a sad way to go out.

A more radical move, if the Liberals try to use 78(2) to cut off debate on the same sex marriage bill, is to create two new 12-member parties from the Conservative caucus (12 is the minimum needed for official party status in the House.) This could lead to the ridiculous game of caucus splitting by other parties, but the end result would be to force parliamentarians finally to reform Standing Order 78.