Obstruction in Ontario and the House of Commons.

• Author: Charlton, Chris

Chris Charlton is a doctoral candidate in political science at the University of Toronto.

In parliamentary government there is a constant tension between the government's right to govern and the opposition's right to oppose. But when does legitimate opposition become obstruction? This article examines some of the problems of defining obstruction and compares the incidence of obstruction using data from the House of Commons and the Ontario Legislative Assembly. Data used in the article are drawn from research for the author's doctoral dissertation on legislative obstruction in the House of Commons and the Ontario Legislature.

Sir Erskine May's seminal work on parliamentary procedure in Britain makes eight separate references to obstruction. The first six pertain to the rights of Members of Parliament, Officers of Parliament, petitioners, witnesses, and counsel not to be interfered with in the exercise of their duties before Parliament. All these can be classified as breaches of privilege and contempts, and thus constitute punishable offences. The other two, obstruction of the business of the House, and obstruction by prolongation of debate, are qualitatively different. These forms of obstruction occur within the framework of the rules, and as such can be practised by members with relative impunity.

A Member who "abuses the rules of the House by persistently and wilfully obstructing the business of the House", that is to say, who without actually transgressing any of the rules of the debate, uses his right of speech for the purpose of obstructing the business of the House, or obstructs the business of the House by misusing the forms of the House, is technically not guilty of disorderly conduct. It would seem, therefore, that a Member so obstructing the business of the House cannot be required ... to withdraw from the House for the remainder of the sitting. He may be, however, guilty of contempt of the House, and may be named. Comparatively little use has been made of this power by the Chair. (1)

Indeed, in Britain, there have only been four instances where obstruction has led to Members being named, none in the last seven decades.

Herein lies the difference between the two broad types of obstruction. Breaches of privilege and contempts are subject to punitive remedies which limit their impact on the overall legislative process, whereas obstruction of the business of the House escapes such remedies, and thus it is obstruction of the House, which must be understood in order to draw meaningful conclusions about the legislative process.

What is Obstruction?

While academic literature, both on the Ontario Legislature and the Canadian Parliament, is replete with references to obstruction of the business of the House, only C.E.S. Franks has offered a definition. He suggests that "legitimate dissent becomes obstruction when it has no other purpose than to delay, when it is not exposing weakness or moulding opinion, but simply preventing legislation from being passed" (2). Franks traces the roots of obstruction to "a change in the attitudes of the opposition to government business", and laments the increasingly slow pace at which the House of Commons processes the government's agenda.

Although the Ontario Legislature and the House of Commons do not share the same rules of procedure, their overall legislative processes are strikingly similar. (3) Both Houses follow the general framework developed in Great Britain. All bills require three readings.

First Reading refers to the introduction of a bill. It is tabled, printed and made public. A brief explanation of the bill may be given by the person moving its introduction, but no amendment or debate is permitted. Second Reading seeks approval of the bill in principle, and represents the first opportunity for debate. An affirmative vote on Second Reading is followed by detailed consideration of the bill in committee, which may either be done by a standing committee or the Committee of the Whole House. (4) At this stage the bill is scrutinised and voted on clause-by-clause. Once approved in committee, the bill is then reported back to the House. Report Stage gives all Members of the House an opportunity to move and debate amendments, after which they are asked to concur in the committee's report. Once concurrence is granted, the bill then goes to Third Reading for a final, overall appraisal and vote. If that vote carries as well, the bill proceeds to one last stage which, by convention, has simply become a formality: it is given to the Queen's representative for Royal Assent. At that point, the bill becomes law, and takes effect on the proclamation date as set out in that law. (5)

Measuring Obstruction

One way to measure obstruction would be to look at the number of bills passed as a percentage of the bills introduced. If that percentage were less than 100%, a prima facie case could be made that the opposition had been successful at obstructing the government's agenda. In the federal House, the average percentage of bills passed was 79% (6) between 1974 and 1993, whereas in Ontario that percentage was 75% between 1975 and 1995. In both legislatures, therefore, over one-fifth of the government bills introduced died on the Order Paper.

However obstruction alone cannot account for the discrepancy between the number of bills introduced and passed. Indeed just a few examples will suffice to make the point. As Bob Rae has noted there are all kinds of pressures from different sources to get legislation onto the parliamentary agenda.

Halfway through the life of the government in the winter of 1993, we were still doing far too much. Every minister had a pet project, which she or he wouldn't, and couldn't abandon. In addition, every ministry had its own policy shop determined to solve every conceivable problem with legislation, legislation, legislation.... The result was an agenda that was huge and almost impossible to manage. (7)

Yet managed it needed to be, and a new process was set up by the government to subject each emerging legislative proposal to the scrutiny of a newly formed House Management Committee.

The primary focus of this committee's work was to priorize items on the Ministers' wish lists to create a manageable legislative agenda. A key criterion guiding this exercise was the perceived availability of House time for dealing with the government's legislation. This was highlighted in one of the committee's reports to Caucus:

The House will have a capacity to make progress on 40 legislative items at any stage during the Fall sitting: this represents a slight increase over the actual progress made in previous sittings. A larger capacity was not selected because, notwithstanding the rule changes, many items are quite controversial and most of the carryover bills have only received first reading. Note that the priority list of 40 items includes both new and carryover legislation; as well as items that are expected to receive progress at only one stage. (8)

A key constraint on the magnitude of the government's legislative agenda was thus the anticipated opposition to some of its priority initiatives which was deemed to reduce the available House time to deal with other matters. As a result, only 40 items were categorised as legislative priorities for the upcoming session, whereas 49 further initiatives were designated as non-priorities. To put this into the context of first readings, 41 additional bills would have been introduced, had the government not felt constrained by the opposition's ability to manipulate available House time. Indirectly, therefore, the opposition did have a significant impact on constraining the government's legislative...