BP-151E

TABLE OF CONTENTS

INTRODUCTION

CONSTITUTIONAL PROVISIONS AND PARLIAMENTARY TRADITION

THE INSTITUTIONAL CONTEXT

   A. Initiating Bills

   B. Types of Bills

   C. The Legislative Process

   D. The Role of the Committee

CONCLUSION

APPENDIX

THE LEGISLATIVE PROCESS

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 Canada’s 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.

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 an adjournment.

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 government’s 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 Parliament’s maximum five-year term.

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 Quebec’s 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.

Parliamentary procedure 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 Member’s 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 government’s 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 1987.

This type of legislation has been frequently criticized on the grounds that it removes many vitally important decisions from the Canadian parliamentary system’s 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.

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 government-sponsored bills.

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 bill’s 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 committee’s 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 government’s 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 Senate’s opposition to certain government bills brought out very clearly the Upper House’s 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 patents.

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 conference’s 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 Queen’s 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 this purpose.

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 Majesty’s 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.

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 committees.

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 New Democrats.

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 committee’s 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 for reform.

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)