LS-381E
BILL S-13:
THE ROYAL ASSENT ACT
Prepared by:
James R. Robertson
Law and Government Division
8 February 2001
LEGISLATIVE HISTORY
OF BILL S-13
HOUSE
OF COMMONS
|
SENATE
|
Bill
Stage |
Date |
Bill
Stage |
Date |
First
Reading: |
|
First
Reading: |
7 February
2001
|
Second
Reading: |
|
Second
Reading: |
2 May 2001
|
Committee
Report: |
|
Committee
Report: |
|
Report
Stage: |
|
Report
Stage: |
|
Third
Reading: |
|
Third
Reading: |
|
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.
|
|
|
|
TABLE
OF CONTENTS
BACKGROUND
A.
Canadian Proposals for Reform of Royal Assent Procedure
1.
Senate Motion of Inquiry (1983)
2.
McGrath Committee (1985)
3.
Standing Senate Committee on Standing Rules and Orders Report (1985)
4.
Bill S-19, Royal Assent Bill (1988)
5.
House of Commons Standing Committee on House Management (1993)
6.
Previous Versions of Bill S-13 in the Senate
B.
Procedure for Royal Assent in Other Commonwealth Countries
DESCRIPTION
AND ANALYSIS
COMMENTARY
BILL S-13: THE ROYAL
ASSENT ACT
BACKGROUND
Bill S-13 was introduced
in the Senate by Senator John Lynch-Staunton, the Leader of the Opposition
in the Senate, on 7 February 2001.
Versions of this bill had
been tabled previously. Senator Lynch-Staunton 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bill was withdrawn, however, on 8 December 1998. Senator Lynch-Staunton
subsequently introduced Bill S-26 on 10 March 1999, but that bill
died on the Order Paper when the first session of the 36th
Parliament was prorogued on 18 September 1999. In the 2nd
Session of the 36th Parliament, Senator Lynch-Staunton reintroduced
the bill as S-7; that bill was identical to Bill S-26, and virtually identical
to Bill S-15 as amended by the Standing Senate Committee on Legal and
Constitutional Affairs.(1)
Bill S-13 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.
6.
Previous Versions of Bill S-13 in the Senate
As noted above, versions
of Bill S-13 have been before the Senate since 1998. The Standing Committee
on Legal and Constitutional Affairs studied Bill S-15 in June 1998, and
heard witnesses; it reported the bill back with a number of amendments,
which have been incorporated into subsequent versions. In the second session
of the 36th Parliament, Bill S-7 (as it then was) was referred
to the Standing Committee on Privileges, Standing Rules and Orders, which
considered the bill on a number of occasions.
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. These procedures would take place during the
parliamentary session in which both Houses passed the bill. 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-13 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-13 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-13 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-13 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-13 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-13 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 previous bills, see Library of Parliament, Legislative
Summary LS-318E (Bill S-15); LS-336E (Bill S-26); and LS-348E (Bill S-7).
(2)
Norman Wilding and Philip Laundy, An Encyclopaedia of Parliament,
London, Cassell and Company Ltd., 1958, p. 501-502.
|