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by the staff of the Parliamentary Research Branch to provide Canadian Parliamentarians
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LS-348E
BILL S-7: THE ROYAL ASSENT ACT
Prepared by:
James R. Robertson
Law and Government Division
8 November 1999
LEGISLATIVE HISTORY OF BILL S-7
HOUSE OF COMMONS |
SENATE |
Bill Stage |
Date |
Bill Stage |
Date |
First Reading: |
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First Reading: |
2 November 1999 |
Second Reading: |
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Second Reading: |
22 February 2000 |
Committee Report: |
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Committee Report: |
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Report Stage: |
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Report Stage: |
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Third Reading: |
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Third Reading: |
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Royal Assent:
Statutes of Canada
N.B. Any substantive changes in this Legislative Summary which have
been made since the preceding issue are indicated in bold print.
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TABLE OF CONTENTS
BACKGROUND
A.
Canadian Proposals for Reform of Royal Assent Procedure
1.
Senate Motion of Inquiry
2.
McGrath Committee (1985)
3.
Standing Senate Committee on Standing Rules and Orders Report (1985)
4.
Bill S19, Royal Assent Bill (1988)
5.
House of Commons Standing Committee on House Management (1993)
B.
Procedure for Royal Assent in Other Commonwealth Countries
DESCRIPTION AND
ANALYSIS
COMMENTARY
BILL S-7: THE ROYAL ASSENT ACT
BACKGROUND
Bill S-7 was introduced in the
Senate by Senator John Lynch-Staunton, the Leader of the Opposition in the Senate, on
2 November 1999.
Senator Lynch-Staunton had
previously tabled Bill S-15, on 2 April 1998. That bill was given second reading and
referred to the Standing Senate Committee on Legal and Constitutional Affairs on 9 June
1998. The Committee reported the bill back with amendments on 18 June 1998. The bill was
withdrawn, however, on 8 December 1998.(1)
Senator Lynch-Staunton subsequently introduced Bill S-26 on 10 March 1999, but this
bill died on the Order Paper when the first session of the 36th Parliament was
prorogued on 18 September 1999. Bill S-7 is identical to Bill S-26, which itself was
virtually identical to Bill S-15 as amended by the Standing Senate Committee on Legal and
Constitutional Affairs.
Bill S-7 would provide an
alternative to the formal Royal Assent process currently used in the Canadian Parliament,
so that Royal Assent could be signified by written declaration, in a procedure similar to
that used in Australia for the past many years.
Royal Assent is the final stage
of an Act of Parliament; it is the formal process by which a bill becomes law and is given
by, or on behalf of, the Sovereign after a bill has been finally agreed to by both the
Senate and the House of Commons. According to citation 753 of the Sixth Edition of Beauchesnes
Rules and Forms of the House of Commons of Canada, "When bills, either public or
private, have been finally agreed to by both the Senate and the House of Commons, they
await only the Royal Assent to be declared to Parliament to give them the complement and
perfection of law."
The Constitution Act, 1867
provides in section 17 that:
There shall be One Parliament for Canada,
consisting of the Queen, an Upper House styled the Senate, and the House of Commons.
Sections 55 to 57 of the Constitution
Act, 1867 deal with the granting of Royal Assent by the Governor General, and with the
circumstances in which Assent can be disallowed or withheld. These sections do not specify
any particular procedure that must be followed.
In Canada, a formal Royal Assent
ceremony is conducted in the Senate chamber, to which the House of Commons is summoned. On
behalf of the Queen, the Governor General or his or her representative signifies Royal
Assent to the bills that are presented. Normally, in a practice that appears to date back
to 1885, Royal Assent is granted by a Justice of the Supreme Court of Canada acting as
Deputy Governor General. The Letters Patent Constituting the Office of Governor General
authorize the appointment of Deputies, saying that each of them is "to exercise,
during the pleasure of Our Governor General, such of the powers, authorities, and
functions of Our Governor General as he may deem it necessary or expedient to
assign."
The Royal Assent ceremony traces
its origins to the beginning of parliamentary history in Great Britain, when bills were
presented by the Lords and the Commons to the Sovereign for Assent. The coming together of
the three branches in a formal ceremony was an important part of the process and
confirmation of their respective roles and relationships.
Most countries with a
Westminster-style Parliament have abandoned the Royal Assent ceremony. Canada appears to
be unique among Commonwealth countries in retaining the procedure. As long ago as 1958, it
was said that "the Canadian ceremony seems to be that which most closely resembles
the original."(2)
The question of reforming the
Royal Assent process in the Canadian Parliament has arisen on a number of occasions in
recent years. The more important of these are described below, as is experience with Royal
Assent in other Commonwealth countries.
A. Canadian Proposals for Reform of
Royal Assent Procedure
1. Senate Motion of Inquiry (1983)
On April 1983, Senator Royce
Frith, then Deputy Leader of the Government, tabled a notice of inquiry: "That he
will call the attention of the Senate to the advisability of establishing alternate
procedures for the pronouncement of Royal Assent to bills." In a lengthy speech on 10
May 1983, the Senator raised the question of whether there was a need for an additional
and simpler procedure and, if so, what form it should take and what method should be
adopted for implementing it. He reviewed the history of Royal Assent in Great Britain, and
the procedure in the Canadian Parliament. He set out the arguments in favour of
establishing alternative procedures for Royal Assent: the precedents in other countries,
the advantages of not requiring both chambers to be sitting, and the advantage of having
Royal Assent expressed in writing, for instance by proclamation. Senator Frith also
reviewed the legal and constitutional dimensions of the question. Debate on the motion was
adjourned.
2. McGrath Committee (1985)
In its Second Report, the Special
Committee on the Reform of the House of Commons (commonly referred to as the McGrath
Committee after its chair, the Hon. James A. McGrath) dealt with the issue of Royal
Assent. It noted that, in the first session of the 32nd Parliament, witnessing Royal
Assent had taken more than the equivalent of a full sitting day, as well as interrupting
the flow of business in the House. The Report favourably reviewed the Australian procedure
and observed that the United Kingdom and other Commonwealth Parliaments no longer
maintained the system used in Canada. The Committee recommended that:
the declaration of Royal Assent by written
message be adopted in Canada and that the Government embark on the necessary discussions
to achieve this change. Notwithstanding this recommendation, provision should be made for
the use of the present practice should that be the pleasure of Her Excellency on the
advice of Her Ministers.
3. Standing Senate Committee on
Standing Rules and Orders Report (1985)
On 6 November 1985, the Standing
Senate Committee on Standing Rules and Orders presented its Fourth Report, in which it
noted that there had been considerable discussion in both the Senate and the House of
Commons with respect to possible changes to the Royal Assent ceremony; as well, the issue
had been raised in recent years in the Senate in Question Period. The Committee had held a
series of meetings between May and October 1985 to consider the question of changes to the
ceremony and recommended the following:
That the present formal procedure of Royal Assent
be retained and that it be used
(a) at the request of the Governor General or of
either House of Parliament and
(b) at least once a session, for example at the
prorogation of a session.
That, in addition to the present practice, a
simpler procedure be established based on the following principles:
(a) that the procedure involve representation
from both the Senate and the House of Commons,
(b) that it be public, and
(c) that the declaration of Royal Assent be
subsequently reported to both Houses of Parliament.
That representatives of the Senate meet with
representatives of the House of Commons to draft a resolution for a joint Address of both
Houses to be presented to Her Excellency the Governor General praying that she approve
such changes to the Royal Assent ceremony as described in this Report.
4. Bill S-19, Royal Assent Bill (1988)
In July 1988, Senator Lowell
Murray, the then Leader of the Government in the Senate, introduced Bill S-19 respecting
the declaration of Royal Assent by the Governor General in the Queens name to bills
passed by the chambers of Parliament. As an alternative to the formal Royal Assent
process, the bill proposed a system similar to that used in Australia for many years.
Several but not all of the recommendations of the Standing Senate Committee
on Standing Rules and Orders were included in the bill. Although it was debated several
times, the bill had not received second reading when Parliament was dissolved on
1 October 1988, and it was not re-introduced in the next Parliament.
5. House of Commons Standing Committee on
House Management (1993)
In 1993, the House of Commons
Standing Committee on House Management tabled a report on parliamentary reform, which
addressed, among other issues, Royal Assent. It was noted that the current procedure was
time-consuming, interrupted the flow of business in the House, and was inconvenient when
one chamber was not sitting and had to be recalled specifically for the procedure. The
Committee believed that the recommendation of the McGrath Committee had merit and should
be pursued, and went on to make an almost identical recommendation:
The declaration of Royal Assent by written
message be adopted in Canada, and that the government undertake the necessary discussions
to achieve this change. Provision should continue to be made for the use of the present
practice of witnessing Royal Assent should that be the pleasure of His Excellency on the
advice of His Ministers.
B. Procedure for Royal Assent in
Other Commonwealth Countries
It is also relevant to review the
experience and practice in other countries, particularly those with a parliamentary
tradition based on the British model.
In the United Kingdom, until 1541
Royal Assent was granted by the Sovereign in person. In that year, to spare the King Henry
VIII the indignity of assenting in person to the Bill of Attainder, which levied
punishment for high treason against Queen Catherine [Howard], assent was accorded for the
first time by royal commission. The practice of appointing Lords Commissioners to grant
assent on behalf of the Sovereign became increasingly common. The last occasion in Great
Britain on which Royal Assent was granted by the monarch in person was 12 August
1854, when Queen Victoria personally assented to several bills before proroguing
Parliament.
Two incidents in the British
Parliament in the 1960s led to the discontinuance of the Royal Assent ceremony there. In
1960, and again in 1965, Black Rod inconveniently arrived at the door of the British House
of Commons, when the House was engaged in very heated debates. A number of Members
protested loudly and strongly against the interruptions, staying in their places and
refusing to attend the Royal Assent in the 1965 incident, a group of Members
continued to debate the issue under discussion, even though the Speaker had left the
chair.
The result was the Royal
Assent Act of 1967, which set out two possible means for the granting of Royal Assent.
The traditional means of doing so through three Lords Commissioners "in the presence
of both Houses in the House of Lords in the form and manner customary before the passing
of this Act" was confirmed. The Act went on, however, to declare that, alternatively,
Royal Assent could be "notified to each House of Parliament, sitting separately, by
the Speaker of that House or in the case of his absence by the person acting as such
Speaker." In this case, Royal Assent is granted by the Lords Commissioners on Her
Majestys behalf (usually at Buckingham Palace) and relayed to each chamber by the
Speaker or acting Speaker at a convenient time during the course of that days
business. In the House of Lords, Royal Assent may be notified at any convenient time
during a sitting. In the House of Commons, Royal Assent may be notified immediately after
prayers, at the commencement of public business, between Orders of the Day, between
speeches in a debate, and between amendments at the consideration stage of a bill. The
Commons has also ruled that the House should not be adjourned until notice of Royal Assent
has been given. The traditional ceremony is observed at prorogation when Commissioners are
directed by Letters Patent of the Sovereign to prorogue Parliament and to grant the Royal
Assent to any outstanding bills.
Although the formal ceremony by
which Royal Assent is granted to bills in the Australian Parliament is similar to the
traditional practice in Great Britain and Canada, it has not taken place since the early
years of the Australian Commonwealth. The usual practice is for the chamber that has
initiated the bill to transmit copies of it to the residence of the Governor General.
After the Governor General has affixed his or her signature, the assent is made known by
Messages to the President of the Senate and Speaker of the House of Representatives, who
duly notify their respective chambers.
In New Zealand, the Governor
General has not attended in person to prorogue Parliament or assent to bills since 1875.
Rather, bills are presented for Royal Assent at Government House where the Governor
General assents to the bill by signing the two copies presented and returning these to the
House with a Message informing the House that assent has been given to the bill in the
name of the Sovereign. The Message, if received while the House is still sitting, is read
to the House by the Speaker.
DESCRIPTION AND ANALYSIS
Clause 1 sets out the short title
of the bill: the Royal Assent Act.
As the granting of Royal Assent
is a royal prerogative, there was at one time some discussion about the procedure for
effecting changes to it. When the issue was discussed in 1988 with respect to Bill S-19,
the general feeling seemed to be that it would be appropriate for a bill to be passed by
both chambers of Parliament and subsequently presented to the Governor General for Royal
Assent.
Clause 2 provides that Royal
Assent granted by the Governor General in the Queens name to a bill passed by the
Senate and the House of Commons could be declared either as at present, with the Royal
Assent ceremony in the Senate chamber, or by a written declaration. The first
appropriation bill presented for Assent in any session, however, would require a formal
Royal Assent ceremony, pursuant to clause 2(b). The procedure for appropriation bills is
slightly different, in that the Speaker of the House of Commons presents them as a
reminder that it is the House that grants aids and supplies and has the pre-eminent role
in voting supply. The requirement that the first appropriation bill in a session be given
Royal Assent in the traditional form would also ensure the occasional holding of a formal
ceremony.
Clause 3 provides that a
declaration of Royal Assent in the traditional way would have to take place on at least
one occasion in each calendar year. This would address the problem posed by lengthy
parliamentary sessions, which in recent years have not uncommonly lasted for two or three
years. Without a requirement for at least one Royal Assent ceremony each year, such a
ceremony might not be held for a long time.
Clause 4 proposes that a written
declaration of Royal Assent would have to be reported in both the Senate and the House of
Commons by the Speaker, or the person acting as the Speaker. There would be no requirement
for this to take place within any specified period of time after the signing of the
declaration.
Clause 5 provides that, where
Royal Assent was given by means of written declaration, the date of assent would be the
day on which the declaration was reported in both chambers; if it was reported in each
chamber on different days, the assent date would be the later of those days. This would be
particularly relevant to bills that came into force upon Royal Assent, or on a day related
to the date of Royal Assent. This provision could lead to difficulties where one chamber
was not in session, as when the House of Commons commonly adjourns prior to the Senate
before Christmas and summer breaks. The government would usually have an interest in
ensuring that both chambers came back into session so that the written declaration could
be reported; even so, it might be preferable to make provision for such contingencies in
the Rules of the Senate or the Standing Orders of the House.
At present, it appears that Royal
Assent is given at the moment that the Governor General or Deputy signifies assent by
nodding his or her head. By the same token, under the bill assent would apparently be
given at the moment that the written declaration was signed, not when it was communicated.
Obviously, there is a concern that Royal Assent be formally conveyed to the two chambers.
It may be that a written declaration filed with the Clerk of either chamber could be more
efficient, less costly, and allow for more urgent situations; however, it would have to be
communicated in some way to the members of the chamber.
Clause 6 provides that a written
declaration of Royal Assent would not be a statutory instrument within the meaning of the Statutory
Instruments Act. The definition of "statutory instruments" is intentionally
broad; anything that falls within it is subject to parliamentary review and other
procedures. Royal Assent in the form of a written document was obviously not intended to
be subject to such review.
Clause 7 provides that no Royal
Assent would be invalid simply because clause 3 had not been complied with. This provision
is designed to quell any doubts about the validity of any bills or Royal Assent declared
during a year in which, for some reason, there had been no formal ceremony. For example,
there might have been no appropriation bill, or a prorogation or dissolution might have
taken place before a ceremony had been held. Some concern has been expressed, however,
that this provision could be used to avoid the traditional ceremony altogether.
COMMENTARY
The dissatisfaction with the
current process for granting Royal Assent has been smouldering for a number of years.
Attendance at the formal ceremonies is often sparse, and their timing can be inconvenient
for Senators, Members of the House of Commons, and the Governor General or his or her
Deputies. The recent practice of having justices of the Supreme Court of Canada deputize
at such ceremonies also leads to concerns: not only does this duty place an extra burden
on already very busy judges, but they may be called upon in future to adjudicate
challenges to the legislation in question. It has also been pointed out that the planned
renovations to the Centre Block on Parliament Hill may require the House of Commons and
Senate chambers to be located in different buildings at times in the next few years,
thereby exacerbating difficulties in scheduling Royal Assent ceremonies. Bill S-7 is
intended to provide an alternative to the traditional procedure one that is
simpler, more expeditious and more practical.
Against these arguments, it has
been observed out that the Royal Assent ceremony is an important and meaningful part of
Canadas parliamentary heritage. As one of the few occasions on which the three
component parts of Parliament come together, it reminds Members and the general public
that laws are enacted only with the approval of the Senate, the House, and Governor
General. The elimination of the ceremony would, it is argued, further diminish the
importance of the Senate and of the Governor General. The fact that other jurisdictions no
longer have a formal ceremony is said not to be sufficient reason for Canada to follow
their example.
There has been a certain amount
of media coverage of Bill S-7 and its predecessors, but it does not appear to have
generated much public discussion. The Monarchist League of Canada, which appeared before
the Standing Senate Committee on Legal and Constitutional Affairs during its consideration
of the bill, objected strenuously to the bill, arguing that the traditional Royal Assent
ceremony is important constitutionally and symbolically and should not be jettisoned, that
the alternative procedure proposed in the bill could well become the norm, and that there
are other ways of addressing the issues that gave rise to the bill.
There is no requirement in the
Canadian Constitution regarding the specific procedure to be used for obtaining Royal
Assent, and, as noted above, most other parliamentary governments have eliminated the need
for an actual ceremony. Proponents of Bill S-7 and its predecessors point out, however,
that the intent of the bill is not to abolish the Royal Assent ceremony. The bill itself
provides as a minimum that there would have to be a traditional ceremony for the first
appropriation bill in each session, and at least one ceremony per year. It has been
suggested that a Royal Assent ceremony should be held in the case of important bills
such as amendments to the Constitution or bills of historic significance. Senator
Lynch-Staunton, the sponsor of the bill, has suggested that if fewer Royal Assent
ceremonies were held, these might be accorded more respect and take on more significance
than the present, more routine, ceremonies.
Suggestions other than those
proposed in Bill S-7 have been put forward for dealing with the problems of the existing
practices and procedures. Some parliamentarians feel it is essential that the Governor
General should personally attend the Royal Assent ceremony, or at least attend more
frequently than has recently been the case. It has also been suggested that the Governor
General could appoint eminent Canadians, such as Companions of the Order of Canada, as his
or her deputies to preside over the ceremony. Another proposal is that Royal Assent
ceremonies could be scheduled in advance for instance, every fourth Thursday
to enable Parliament and parliamentarians to make the necessary arrangements.
Another suggestion is that the
traditional ceremony be maintained for the most part, with an alternative Royal Assent
procedure available only when the Senate and the House are not both sitting. This would
deal with the situation that arises before a lengthy adjournment, when the House rises
before the Senate, leaving bills to be passed by the latter chamber; in such situations,
it is common for the House to be represented only by a deputy Speaker and one or two
Members.
It would also be possible for
Bill S-7 to be amended to include a provision allowing either chamber, the House leaders,
or a certain number or percentage of Senators and/or MPs to request a traditional Royal
Assent ceremony. The government could always opt for the traditional ceremony, and this
would ensure that other parliamentarians could request it.
Apart from the proposal that
Royal Assent be signified by written declaration, Bill S-7 does not specify the details of
the proposed procedure. It has been suggested, for instance, that representatives of the
government and opposition in both the Senate and the House of Commons could be in
attendance when the bill was presented to the Governor General, although it is not clear
whether or not this would be in public. Critics have expressed concern, however, that such
a requirement would create an elaborate Royal Assent ceremony similar to that in the
United States when the President signs bills. Such details would have to be spelled out.
(1) For a discussion of Bill S-15, including the provisions
of the bill as it was originally introduced, see Library of Parliament, Legislative
Summary LS-318. For a discussion of Bill S-26, see LS-336.
(2) Norman Wilding and Philip Laundy, An Encyclopaedia of
Parliament, London, Cassell and Company Ltd., 1958, p. 501-502
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