A day after their leader underwent an unprecedented committee grilling over allegedly improper use of parliamentary resources, the New Democrats are calling on House of Common Speaker Andrew Scheer to weigh in on the legitimacy of the March 27 House order that set the stage for his appearance.

In a lengthy speech delivered to a mostly empty Chamber on Friday afternoon, NDP House Leader Peter Julian laid out his concerns over the use of the previously obscure House rule that gives cabinet ministers a second chance to seek the support of the Commons for a motion that initially fails to garner unanimous consent.

It was precisely that procedural trick that allowed the passage of the House order instructing the procedure and house affairs committee to question NDP Leader Tom Mulcair over those taxpayer-funded "outreach" offices in Montreal and Toronto.

Unlike a request for unanimous consent, which can be scotched by a single "nay," a motion put forward under Standing Order 56.1 can only be stopped if 25 or more MPs rise in their places to demonstrate their opposition to the proposal.

Apparently caught off-guard by the move, the New Democrats failed to muster the necessary number of visible objectors to block the motion ordering the committee to hear from Mulcair.

25 MPs required to block motion

In his intervention today, Julian argued that the motion was, as he put it "incorrectly accepted by the chair, in the heat of the moment, as being in order."

He wants Scheer to "spell out the limits" of how that rule can be used in future.

"The reason why this is so important, Mr. Speaker, is to prevent the abuse of a powerful tool for a government that, it must be said, already has a disproportionate number of powerful tools at its disposal," he explained.

Although the 25-MP requirement may "at first glance" seem sufficient, Julian pointed out that smaller recognized parties may only have a handful of sitting members, which could theoretically put them at the mathematical mercy of the government of the day.

"This rule was always meant to be used for the more mundane daily business of the House," Julian noted, "and not to circumvent the democratic process meant to be followed for substantive matters."

Although Julian stopped short of asking the speaker to retroactively declare the motion out of order, he made it clear that he wants Scheer to "reflect on the chair's decision to allow the government's motion," as well as "provide any further guidance to the House on how this provision should and should not be used in future."

In response, Government House Leader Peter Van Loan defended the move, which, he argued, was well within the parameters for the standing order in question, which specifically includes establishing "the powers of its committees."

'Empower the committee'

"Quite clearly, the primary thrust of the motion … was to give the procedure and House affairs committee an order of reference," Van Loan noted.

To bolster his case, he pointed to a decision by former House Speaker Peter Milliken, who concluded it could also be used to provide a committee "with powers they do not already possess."

"In that sense, the motion sought to empower the committee … to study the matter of the troubling allegations about how the official opposition has been using the resources provided to it by the House of Commons," Van Loan said.

The motion also gave the committee the power to do something it otherwise had no authority to do, Van Loan added — specifically, compel the presence of a witness who would normally be exempt from such orders.

As it turned out the committee did not have to proceed down that procedural path, as Mulcair appeared willingly.

After giving both parties the opportunity to air their views on the matter, Deputy Speaker Bruce Stanton agreed to take the matter under advisement, although he noted the events in question took place several weeks ago.

It will now fall to Scheer to consider the matter. Because the House is adjourned for a week, the earliest that the NDP will get an answer would be May 26.

Ex-House clerk questioned legitimacy of probe

Earlier this week, the party obtained a legal opinion from retired Commons law clerk Rob Walsh that questioned the legitimacy of the House order.

Such powers, he points out, are meant to support the constitutional functions of the House — "namely," he notes, "legislating, deliberating and holding the government to account."

The order instructing the committee to question Mulcair over his party's budget would seem to fall well short of that purpose, according to Walsh.

"To allow the use of House proceedings for any purpose whatsoever would be to license parliamentary tyranny by a governing majority over the minority parties sitting in opposition if not also over outside third parties," he warned.