A Backbenchers' Theoretical Power: Private Members' Business

One would assume that one of a Members of Parliament’s primary responsibilities is to bring forward, discuss, debate, and pass legislation. In reality, individual MPs have the technical power to do so but procedurally may be lucky to get a single opportunity to do so through their entire career in office.

Private Member’s Business (PMB for short) are bills and motions tabled by Members without necessarily having the support of their party, and are debated in the first hour of business on Monday morning, and, with exceptions, for the last hour of business the rest of the week. This hour is immune to substantive votes so are generally both poorly attended and uninterrupted by procedural shenanigans.

Those who wish to speak can generally do so on a first-come, first-serve basis once the government and opposition parties have used the first speech slot to establish their party’s official position on the bill, though few speaking slots are available given the limited time for debate. 

Canned speeches are often offered to Members, further expanding on the party’s position, but generally are not needed unless the topic is so arcane that nobody has anything to say about it, which does happen. PMB speeches, except for the one by the person moving the Bill, are not accompanied by a question and answer period, so understanding the topic on which you are giving a canned speech is not at all required.

It is worth noting that Cabinet and opposition party leadership teams often do not have a position until after the first hour of debate has concluded, so if some PMB speeches appear to be non-judgmental rehashes of the finer points of the bill without coming to any kind of conclusion, your assessment may be accurate. It also leaves Members in an awkward spot if they have made a speech or statement in strong support or opposition to a bill, only to learn before the vote weeks later that their party has taken an equally strong position on the opposite side of the bill.

The fact that PMBs can be controversial, even within a party, means that party leadership of the major parties tend not to be great enthusiasts for the process, unless they are using PMBs as a back door to ram through controversial legislation with plausible deniability, as the Conservative government did under Harper with their anti-union bills C-377 and C-525. 

PMBs are not seen by party leadership as an avenue for change so much as a recipe for migraines. I was an advocate, internally, for better PMB policies so that more Members would have an opportunity to bring forward such bills, and was met with a very explicit “why would we want that?” from Whip office staff, who saw more PMBs coming simply as more controversial votes to deal with and more opportunity for division.

Having debates take their full two hours and not collapsing in the first, even if there was nobody left who wanted to speak, suited their purposes, and so I was often tasked with keeping those debates alive, as well, and spoke on far more PMBs than I actually had anything to say about, ironically helping to limit the very debates I wanted more of.

At the time, this resulted in some degree of hilarity. On one occasion, I had to fill a mere minute and a half of debate on Italian Heritage Month with no prior warning —and little personal interest in the matter — to prevent the debate from collapsing, to ensure that several Members who were not present that day and had significant Italian communities would have an opportunity to address it at the next opportunity, and so that the proposing Member, Deb Schulte, MP for King–Vaughan, would have the opportunity to speak in reply, a five minute slot offered to the original mover of a PMB at the end of the debate.

My unprepared and awkward minute and a half on November 26th, 2016 went like so:

Bruce Stanton (Deputy Speaker):

  There remains about one and a half minutes in the time provided for private members' business, but the member for Laurentides—Labelle will have the remaining time when the House next resumes debate on the question.

David de Burgh Graham (Laurentides—Labelle):

  Mr. Speaker, I am certainly looking forward to that moment, thank you.

As members of the House know, I am of a Jewish heritage and I think that Jews and Italians have a good deal in common, so it gives me great pleasure to stand here and talk about food culture. Anyone who has been around either culture will know that everything we do has to do with food. I used to say as a joke that I am in politics for the food because every campaign has a lot of interesting meals.

It gives me great pleasure to support the motion and I do not see a lot of opposition to it. 

I think it is really wonderful that the member for King—Vaughan has brought forward this piece of legislation for Italian heritage month. I am looking forward to passing the motion when it comes back for debate in a few weeks and celebrating the various heritages that we have.

We had had a number of bills that have come forward before discussing specific heritage months and it is really important to us to do that.

I am thankful for the chance to talk about this and I know my time is at an end.

That last sentence could be shortened to a more honest “I am thankful that my time is at an end,” and I did not take up the Speaker’s offer to resume my speech when it returned for another hour of debate a month later. There really was nothing I could say about Italian Heritage month, a bill which went on to pass unanimously, but my efforts did land me an appreciative bottle of wine from the sponsoring member – which I gave away when I shut my office down three years later as I rarely drink alcohol.

The order in which Members can present a PMB for debate is established by lottery at the start of the Parliament. In my term, I was so far down the list that I had no realistic chance of having a bill debated, and so I also did not put a lot of energy into preparing any. PMBs are grouped into chunks, referred to as replenishments, of 15 Members’ bills, which are debated in sequence for an hour each. At the end of the first cycle, each bill then gets its second hour of debate and then usually goes to a vote at the subsequent Wednesday sitting. 

In the next Parliament, the lottery is redone, and so a Member who was at the bottom of the list may find themselves once again at the bottom of the list, where another could be a rookie who has never set foot in Ottawa before and finds themselves first up — which presents its own challenges. The net result of this is that a Member can serve five or six terms in office and never once have a chance to take proposed legislation all the way to a vote, while another Member might be able to bring forward legislation for debate and vote several times in the same period, purely on the literal luck of the draw. It is particularly ironic given that, as legislators, the perception of what we do is to present, debate, and vote on legislation on a continuous basis.

That we debate almost exclusively legislation prepared by Cabinet or motions presented by the opposition (so-called Opposition Day Motions), take positions on the bills prepared by party leadership teams rather than from any kind of meaningful internal debate, and have virtually no real opportunity to present ideas directly to the House as individual Members, is not widely understood – though many suspect it to be the case.

That PMBs are, by definition, independent of the party means that some of their fiercest debates in the House can take place between Members of the same caucus, which I will come back to in more detail in a future post. Private Members Business, then, is a part of Parliament’s function that is of very high value, as real issues can be brought forward for real debate.

There is, however, a fatal flaw. PMBs cannot infringe on the Crown’s prerogative with regard to public finances – that is: taxes or spending, which happen to be the two main things governments do. The Crown prerogative can only be overcome by a Royal Recommendation which, in practice, means that Cabinet as a whole must support the Bill. 

The only financial tool available to drafters of PMBs is tax credits, which have somehow avoided being trapped by the Crown prerogative, in spite of creating direct financial costs to the government. The end result is that most PMBs are either largely meaningless Heritage Day/Week/Month bills which designate certain times of the year to celebrate certain communities in the country with no tangible impact on anything in reality, or offering what are often referred to as “Boutique Tax Credits” to incentivise specific, often very narrow actions. Finance Minister Bill Morneau was fiercely critical of boutique tax credits, but offered no alternative tools for backbenchers to turn the financial levers of government to attain specific outcomes. 

Cambridge MP Bryan May brought forward Bill C-240, for example, to provide tax credits for first aid training. The bill was overwhelmingly passed at second reading in the House, but died over a year later at Finance Committee, never returning for its final report stage and third reading debate.

Other legislative changes - Crown corporation mandates and criminal code amendments, for example, are possible, but seldom brought for debate. Around the same time, London, Ontario MP Peter Fragiskatos brought forward Bill C-242, An Act to Amend the Criminal Code (Inflicting Torture). Like May’s bill, it was overwhelmingly passed by the House — in this case passed unopposed on a voice vote on April 21, 2016, only to be quietly put out of its misery at Committee seven months later, never to be seen again.

In both cases, Cabinet and their ministerial staffers used their influence to convince ostensibly independent committees not to move forward with bills that did not neatly align with government priorities.

All PMBs are easier to oppose than to support. It is easy to find some clause of pretty much anything to justify not supporting what might otherwise be a good bill. Most parties have generally free votes on PMBs — the leadership will generally state their position with varying levels of firmness, but not impose it on their members — and so the results can sometimes be surprising.