Political and Social Affairs Division
PROVISIONS AND PARLIAMENTARY TRADITION
THE INSTITUTIONAL CONTEXT
A. Initiating Bills
B. Types of Bills
C. The Legislative Process
D. The Role of the Committee
Federal legislation becomes
law after it has been considered by the members of both Houses of Parliament,
who must give their consent to any measure proposed by the government
(or, in certain cases, by individual MPs). The purpose of this paper is
to define the main components of Canadas legislative system. It
will focus particularly on the role of parliamentarians in the process
leading to passage of bills by the House of Commons and the Senate. Parliamentary
committees make an important contribution to the process; their work is
a central aspect of the consideration of bills by Parliament.
CONSTITUTIONAL PROVISIONS AND PARLIAMENTARY TRADITION
The existence of the powers
of the legislative branch is explicitly recognized in the Canadian Constitution.
Part IV of the Constitution Act, 1867 defines the general organization
of the House of Commons and the Senate. The number of seats per province,
the privileges and immunity of parliamentarians and the qualifications
required of Senators are all dealt with in sections 17 to 57. Section
91 sets forth the areas of jurisdiction that are exclusive to the Parliament
of Canada; the work done by members of the Upper and Lower House is concentrated
in the areas of government described in section 91.
Subject to the provisions
of the Constitution Act, 1867 regarding the legislative authority,
the House of Commons is sovereign in the exercise of its powers; it has
the necessary authority to regulate its own proceedings. There are provisions
governing the definition of a quorum in the House, the subjects that may
be decided by a simple majority vote, and the use of both official languages
during parliamentary proceedings. In addition, the members of the Lower
House have a certain autonomy in planning proceedings. In accordance with
constitutional tradition, the Governor General, on the advice of the Prime
Minister, convenes MPs after a general election. The Prime Minister, via
the Government House Leader, sets the date for recall of the House following
The days and hours of sitting,
the adjournments, the time allotted to Private Members Business,
the maximum length of a debate, and the whole procedure a debate must
follow, are laid down in the Standing Orders. MPs may amend the provisions
as necessary given the special context of the business.
The session is the basic
unit for procedural purposes. Normally it begins with a Speech from the
Throne. Depending on the constraints of the governments legislative
program, the session may last longer than one year.
Adjournment does not quash
all pending proceedings; at the next sitting "all proceedings are
resumed at the stage at which they were left before the adjournment."(1)
Prorogation ends the current session, but does not dissolve Parliament;
it entails the abandonment of all bills still under consideration (the
popular expression for this is that they "die on the Order Paper"),
and it ends the work of all parliamentary committees. Dissolution terminates
a Parliament, and is followed by a general election. The responsibility
for calling the election lies with the Governor General, on the advice
of the Prime Minister; no government may remain in office beyond the expiration
of a Parliaments maximum five-year term.
THE INSTITUTIONAL CONTEXT
It is the parliamentary
tradition that both Houses must approve all legislation. Most bills originate
in the Commons and are then submitted to the Senate, although the reverse
occurs from time to time: a bill may be tabled by the government in the
Senate first, and then submitted to the Commons. There was an example
of this in November 1982, under the last Trudeau government, when the
Cabinet tabled Bill S-31, restricting the acquisition of shares in a Canadian
enterprise by a provincial Crown corporation. The bill was a response
to pressure from the business community and was aimed particularly at
Quebecs Caisse de dépôt et de placement, which had hoped
to acquire a portion of the shares in Canadian Pacific. The bill was finally
dropped by the government a year later.
Both Houses have the same
powers with respect to approval of a government bill, except in the case
of money bills (which must be presented first in the Commons) and amendments
to the Constitution. Senate opposition to constitutional amendments is
expressed in the form of a suspensive veto, with a term of 180 days. Recourse
to this prerogative enables the Senators to delay the passage of Commons
proposals they deem incomplete or discriminatory.
makes a distinction between private and public bills. Private bills seek
to give some right or authority to a specific group, individual or corporation.
For example, until the mid 1960s, a resident of Quebec could obtain a
divorce only by means of a private bill. Private bills tend to be tabled
in the Senate; they constitute a very tiny proportion of the legislation
considered. Nowadays they are usually brought in to incorporate a business,
a religious body or a charitable organization. A petition to Parliament
precedes their presentation in the Upper House.
Most bills tabled in the
Commons are public bills. These in turn are divided into government bills
(presented by a Cabinet Minister), or Private Members bills (sponsored
by an ordinary MP). The recent amendments to the Standing Orders have
reinforced the role of backbenchers in the legislative process. A certain
number of Private Members bills have a chance of being passed by
the House of Commons during a regular session.
The Standing Orders provide
for the consideration of 20 Private Members bills presented by 20
different Members. Their order of precedence is determined by lottery
at the start of the session. During the periods reserved for Private Members
Business, the House considers the bills according to the order of precedence,
and many of them are eliminated after an hour of summary consideration.
The Standing Committee on Elections, Privileges, Procedure and Private
Members Business chooses, from among the 20 bills, six that are
designated "votable items."
During the two sessions
of the 33rd Parliament, 128 Private Members bills were tabled in
the Lower House. Of these, three received Royal Assent. Bill C-254, amending
the Citizenship Act (period of residence), which was tabled by
MP Bob Pennock, is currently in force.
A number of criteria govern
the tabling of a Private Members bill. It must not involve controversy,
nor must it cover the same ground as a measure already put forward by
the government. In addition, it must not commit Ministers to the spending
of public moneys. Private Members bills usually call for the making
of regulations, and in some cases for major changes to existing legislation.
On average, four hours a week are spent on Private Members Business.
During this time, both public and private bills are tabled and motions
are made by MPs who are not Cabinet members.
Among the bills submitted
for the consideration of parliamentarians, legislation delegating the
authority to make regulations has, since the early 1960s, represented
an increasingly large proportion of the governments legislation.
Through this delegated or ("subordinate") legislation, Parliament
confers on Ministers or on government bodies the power to make regulations
or decisions in accordance with certain basic principles. For example,
the Canadian Radio-television and Telecommunications Commission (CRTC)
enjoys extensive authority in areas under its jurisdiction thanks to legislation
delegating this authority to it. The recent establishment of the National
Transport Agency of Canada and the sectors entrusted to its administration
were explicitly provided for in a similar Act passed by Parliament in
This type of legislation
has been frequently criticized on the grounds that it removes many vitally
important decisions from the Canadian parliamentary systems legislative
process. To remedy this shortcoming, regulations (or "statutory instruments")
are reviewed by the Standing Joint Committee for the Scrutiny of Regulations,
chaired by representatives of the Senate and the House of Commons who
belong to Opposition parties.
The Legislative Process
Let us now trace the main
stages leading to passage of a bill by the two Houses of Parliament. The
same procedure applies generally to both Private Members bills and
The first stage consists
of presentation of the bill by the Minister responsible. He or she describes
briefly its objectives and content, and moves that the bill be read a
first time; this makes it possible to print the bill, give it a number
and distribute it to all MPs.
Debate on the principle
of the bill begins when the responsible Minister moves that it be read
a second time. Amendments may not be moved by the Opposition at this time;
the opportunity for amendments comes at the third stage, consideration
by committee. It is possible to refer the bill to Committee of the Whole;
this procedure, which was used in December 1988 during the debate on the
free trade legislation, speeds up the process leading to the final vote
by the House of Commons. Usually, though, a bill is submitted to the appropriate
legislative committee, where it is analysed clause by clause. It is easier
in committee for parliamentarians to express their approval or disapproval
of the bills contents. The committee may then propose technical
amendments, or amendments to the details of the bill, but not to its principle,
which was accepted by the House at the second reading.
The bill and any amendments
proposed by the committee are then returned to the House, at what is known
as report stage. This gives parliamentarians who are not members of that
particular committee a chance to speak on the bill. There is a 48-hour
period between the presentation of the committees report and its
consideration by the House, which allows parliamentarians the 24 hours
they need to give notice of their intention to move an amendment. Once
deliberations at report stage are concluded, a motion is made "that
the bill (with any amendments) be concurred in."(2)
Once third reading has begun,
"the insistence of the Opposition parties"(3)
can bring about prolonged debate before the final vote. After the bill
is passed, it is sent to the Senate, where it goes through the same procedure,
including three readings and referral to committee. Senators participate
in the process mainly during this final segment of the legislative process.
The subject-matter of a
bill may be studied by a Senate committee while the House of Commons is
still considering the bill. This "pre-study" mechanism makes
it possible to speed up the legislative process while still allowing the
Senate enough time to weigh every bill in detail.
In accordance with constitutional
tradition, the Upper House has the power to amend or reject a bill sent
to it by the Commons. In the period since the early years of this century,
the Senate has used its power to reject a bill on 14 occasions.(4)
A bill on penitentiaries tabled in 1938 and another on the Bank of Canada
(1961) were rejected by the Senators. Most of the bills that suffered
this fate were not of overriding importance and [their defeat] did not
directly affect the governments program.(5) A decision by the majority
in the Senate to vote against a bill passed by the Commons is exceptional;
it also terminates all debate on the measure. In general, members of the
Upper House prefer to propose substantive amendments.
During the 33rd Parliament,
the Senates opposition to certain government bills brought out very
clearly the Upper Houses real power within the legislative structure.
The Senate can delay final passage of a bill that originated in the Commons
by holding hearings in committee that make it easier to analyze the measure
in depth. In 1987, profound disagreements between the two Houses were
the cause of long delays in the consideration of Bill C-22, on pharmaceutical
Persistent wrangling between
the two Houses over a bill can be resolved by invoking a rare procedure
called a "conference." Provided for under Standing Order SO
77, it has been used several times since 1867. Holding a free conference
of representatives of the Senate and the House of Commons represents a
last-ditch effort to resolve a persistent impasse between the two Houses.
Eight such conferences have been held since 1925: five led to settlements,
in two cases bills were abandoned when the government of the day refused
to abide by the conferences recommendations, and one bill was withdrawn
following a stalemate.
During the second session
of the 33rd Parliament, there was some discussion of resorting to a conference
to smooth the way to passage of the amended Patent Act (C-22) and
Immigration Act (C-84). The many amendments moved by the Senate
in both cases, and the considerable delays that followed, led to fears
that the legislative process would grind to a halt; however, the final
decision by members of the Upper House to approve the two controversial
bills ended the impasse.
After the Senate has passed
a bill, Royal Assent must be given. This stage proceeds as follows:
[Assent] is given by
the Governor General in the Queens name, in a special ceremony
held in the Senate chamber in the presence of representatives of both
Houses of Parliament. The Governor General does not usually attend
this ceremony; instead he sends as his "Deputy" one of the
judges of the Supreme Court of Canada, appointed by commission for
In the course of this
historic ceremony, the Clerk Assistant rises and reads, in English
and French, the titles of the bills that are awaiting Royal Assent.
The Clerk then holds
up to bills in his hands and says, "In Her Majestys name,
the Honourable the Deputy of Her [His] Excellency the Governor General
doth assent to these bills." The Deputy of the Governor General
then signifies his consent by a nod of the head. It is this gesture
that constitutes Royal Assent, and it is at this time that the bill
comes into force as law, unless there is a provision in the bill stating
that it will come into force on a day to be fixed by proclamation.(6)
Fundamental principles shape
the form of debates in the House of Commons. On the one hand, the government,
the majority in the House, must take the steps necessary to ensure sound
management of public affairs and the passage of government legislation.
On the other, parliamentary tradition holds that the minority, including
the opposition parties, has a right to express its point of view within
the framework of the legislative process.
The government, in consultation
with the Opposition parties, determines in advance the number of hours
and days that must be allotted to deliberations at each stage in the process
of having a bill approved. If the representatives of all parties agree,
the government can introduce a motion setting forth the proposed timetable.
The Government House Leader
may also, under Standing Order SO 78(2), conclude an agreement with the
opposition parties regarding allotment of time at report stage and third
reading. When a compromise cannot be reached, the government may present
its own timetable. In the event of a systematic opposition blockade, the
government may invoke closure, which limits the time allotted to debate
and facilitates the rapid passage of a disputed bill.
The Role of the Committee
Since the earliest years
of Confederation, the House of Commons has enjoyed the benefits of a committee
system. The committees make an important contribution to Parliament: they
facilitate the participation of MPs and Senators in the legislative process,
allowing them to express their views on government measures. The contribution
that the committee system has made to the evolution of Parliament is obvious
from a number of standpoints. The consideration of bills in committee
reduces the workload of the Lower House and enables the government to
introduce several measures at a time. The members of Opposition parties
can use the committee forum to question Ministers and senior public servants
about the management of departments and Crown corporations. Lobby groups
use the committees to argue in defence of their interests and to establish
contact with the elected representatives who have influence over the decision-makers.
Following the recommendations
of the McGrath Report,(7)
certain changes have been made in the traditional role of the committees.
Four types of committees assist the House of Commons in its operations:
standing committees, joint committees, special committees and legislative
Most of the standing committees
are matched with a government department. As part of the reforms announced
on 5 April 1989 by the Government House Leader, their number has been
reduced from 29 to 19. They have between eight and fourteen members each
and their membership reflect the proportion of parties in the House. In
the current Parliament, eight-member committees consist of five Progressive
Conservatives, two Liberals and one New Democrat; committees with fourteen
members consist of six Progressive Conservatives, four Liberals and two
Joint committees look at
questions of concern to both MPs and Senators; two examples are the Joint
Committee on Official Languages and the Standing Joint Committee for the
Scrutiny of Regulations. Special committees are created in response to
specific concerns of parliamentarians; in this way the McGrath Committee
satisfied an urgent need that had been expressed by Members.
Legislative committees are
struck specifically for consideration of individual bills. At the beginning
of each session the Speaker appoints a minimum of ten members to act as
chairs of legislative committees. Those members, together with the Deputy
Speaker and Chairman of the Committee of the Whole, the Deputy Chairman
of the Committee of the Whole and the Assistant Deputy Chairman of the
Committee of the Whole, constitute the "Panel of Chairmen."
Between first and second readings of a bill, the Striking Committee prepares
and presents a list of not more than 30 MPs to sit on a legislative committee.
If the House adopts the motion for second reading and reference to a legislative
committee, the Speaker appoints a chair for the committee from the Panel
of Chairmen. A legislative committee is empowered to examine and inquire
into the bill referred to it, to hear evidence and to report the bill
back to the House with or without amendments.
Committees use the questioning
of witnesses as their basic information-gathering technique. When government
bills and estimates are under consideration, Ministers (normally accompanied
by their chief department officials) are the usual witnesses. When broad
policy issues are being examined, witnesses from outside the government
appear before the committee.
A committees strategy
is often mapped out by its steering committees (technically, its sub-committees
on Agenda and Procedure). Steering committees decide who the witnesses
will be and whether the committee will have professional staff; they may
then make the necessary arrangements. The atmosphere may be highly partisan
or very cooperative, depending on the matter at issue.
The various proposals for
reforming the organizational structure of committees stress the need to
increase the effectiveness of parliamentary institutions and the participation
of ordinary parliamentarians in the decision-making process. The recent
changes in the make-up of committees, and the increased powers extended
to committee chairs and members in their examination of bills, of departmental
management, and of government initiatives, consolidate the position of
parliamentarians within the legislative process.
Over the past 20 years,
a number of task forces and committees have proposed a variety of reforms
intended to improve the efficiency of the legislative process. The changes
made in the committees structure, and the introduction of the new Standing
Orders, are signs of a genuine desire to encourage participation by all
parliamentarians in decision-making. Given the vitally necessary role
of the legislative branch in our political system, we must recognize the
value of the reforms that have been implemented in recent years. Former
Speaker Alan Macnaughton expressed clearly the dilemma implicit in plans
The character, the strength
and the success of any legislature must, in the long run, depend on
the attitude of its members to their responsibilities; the motivation
of the people who elect them and to whom they are accountable; and
the quality of the leadership provided to them. Parliamentary government
must be a responsible government, and the burden of responsibility
must be carried by leader, legislator and elector alike. Given responsible
leadership, procedures must then be devised that will provide to parliamentarians
the right of discussion and to governments the right of decision.(8)
(1) House of Commons, Table
Research Branch, Précis of Procedure, 1987, p. 128.
(2) House of Commons (1987), p. 67.
(3) Robert J. Jackson, Doreen Jackson
and Nicolas Baxter-Moore, Politics in Canada: Culture, Institutions,
Behaviour and Public Policy, Prentice-Hall, Scarborough, 1986, p.
(4) F.A. Kunz, The Modern Senate of
Canada, 1925-1963, University of Toronto Press, Toronto, 1965, p. 349.
(5) Ibid., p. 351
(6) Raymond L. du Plessis,
QC, The Law-Making Process, the Senate of Canada, revised notes,
February 1988, p. 10-11.
(7) Canada, House of Commons, Special
Committee on the Reform of the House of Commons, Report, Ottawa,
(8) Alan Macnaughton, "The Adoption
of Parliamentary Procedure to Meet Present-Day Needs," address to
an international symposium on parliamentary problems, Geneva, 4 November
1965, p. 16.