The average man, bewildered and
overpowered by the thousands of laws and regulations which press in upon him and
increasingly restrict his freedom, his right to make decisions, would be left
absolutely defenceless without an active parliament with the strength and
vitality which it must possess.
G.W. Baldwin, m.p. (Peace River)
(Debates, December 10, 1968, p. 3791)
T
he examination and enactment of
legislation are often regarded as the most significant task of Parliament. It is
therefore not surprising that the legislative process takes up a major portion
of Parliament’s
time. [1]
But what
exactly is the legislative process? There are those who have defined it as a
series of actions leading to the proclamation of a statute. The parliamentary
stages that are the subject of this chapter are the final links in a much longer
process that starts with the proposal, formulation and drafting of a bill,
normally by extra-parliamentary bodies.
In the Parliament of Canada, as in all
legislative assemblies based on the British model, there is a clearly defined
method for enacting legislation. A bill must go through a number of very
specific stages in the House of Commons and the Senate before it becomes law. In
parliamentary jargon, these stages make up what is called the legislative
process. When the House of Commons and the Senate pass a bill, they are asking
the Crown to proclaim that this text is the law of the land. Once Royal Assent
is given to the bill, it is transformed from a bill to a statute. Because the
process by which a legislative proposal becomes first a bill, and then a law,
takes place in Parliament, the product — the statute — is often called
an “Act of
Parliament”. [2]
Traditionally, the process begins with a
bill being introduced in one of the Houses of Parliament and ends with the
ceremony of Royal Assent, which brings together the three constituent elements
of Parliament: the Crown, the Senate and the House of Commons. The process is
complex, but the validation of a statute is the result of the approval of the
same text by the three constituent elements of Parliament.
This chapter will examine the stages that a
public bill must go through before becoming law. Private bills follow
essentially the same stages, but they must be initiated by a petition and are
subject to certain special
rules. [3]
Historical Perspective
Great Britain
The legislative process comes to us from
medieval times. During the early days of the British Parliament, requests by the
Commons in relation to legislation were made to the King in the form of
petitions. [4]
When the
King convened Parliament seeking supply, in return the Commons presented the
petitions for which they wished to obtain his assent. Petitions could be either
oral or in writing. Those that the King decided to
grant [5]
were then
written up by his advisors in the form of
statutes [6]
which were
entered on the Statute Rolls. The statutes reproduced the wording of the
petition and the King’s reply, but the King and his advisors often took
the initiative of amending the wording of the petition fairly extensively, and
in some cases failed to keep to the reply that had been
given. [7]
One important step in the process was taken
in 1414 when the Commons asked Henry V (1413-22) to be considered “as well
Assentirs as Peticioners” and also asked that when their petitions were
written in the form of law, they not be altered without their
consent. [8]
A few years
later, during the reign of Henry VI (1422-61; 1470-71), the Commons succeeded in
establishing the practice of having their requests in relation to legislation
presented to the King in the form of bills, and they obtained the King’s
assurance that those bills would not be altered without their
consent. [9]
The evolution of the role of the Commons in
the legislative process was also marked by the changes made to the enacting
clause used in statutes. Starting at the beginning of the reign of Edward III
(1327-77), the words “at the request of the Commons” were used as
the enacting clause. Under Henry VI, the words “by authority of
Parliament” first appeared in legislation, reflecting the growing
influence of the Commons in the legislative
process. [10]
Once it had been agreed that the statutes
should accurately reflect Parliament’s requests in relation to
legislation, it became necessary to make procedural rules to guide the
introduction and passage of bills. By the end of the reign of Elizabeth I
(1558-1603), the practice of three readings, with no debate on the first reading
and reference of the bill to a committee after second reading, was already
firmly established. [11]
Canada
Before Confederation
In the years preceding Confederation, the
assemblies of the Canadian colonies relied on British parliamentary traditions
in conducting their deliberations. The legislative assemblies of Upper and Lower
Canada that were instituted by the Constitutional Act, 1791 followed
British parliamentary
procedure. [12]
The
legislative process of the Assembly of Upper Canada, however, was not as
elaborate as that of the Assembly of Lower Canada, which had adopted a larger
number of rules of procedure in 1792 for passing its
bills. [13]
The first Canadian code of procedure, which
was published in March 1793 under the title Rules and Regulations of the House
of Assembly, Lower Canada, [14]
contained
provisions to govern both the introduction and the passage of the bills of that
assembly. At that time, committees were often assigned the task of formulating a
bill. [15]
Every bill
had to be introduced by motion, and be given three readings in both
languages, [16]
and
could not be amended or referred to a committee before receiving second
reading. [17]
Every
bill also had to be printed before second reading. After being passed by the
Assembly, bills were transmitted to the Legislative Council for adoption by
members of the Council and ultimately for Royal
Assent. [18]
At the time of the Union of Upper and Lower
Canada in 1840, the legislative assemblies had to agree on a common procedure.
Most of the rules that were adopted at that time were those in force in the
Assembly of Lower
Canada. [19]
The
procedure for the passage of public bills remained essentially the
same. [20]
However, a
number of provisions were adopted to deal with private
bills. [21]
Since Confederation
When the House of Commons of Canada met for
the first time on November 6, 1867, it began its proceedings under the rules of
the Legislative Assembly of the Province of Canada, which already contained
provisions relating to the consideration of bills. On December 20, 1867, it
approved the report of a special committee that had been instructed to assist
the Speaker in establishing the rules of procedure for the House. The only major
change that was made to the rules of the former Legislative Assembly of Canada
related mainly to the process for considering private
bills. [22]
Consequently, the sections that appear in the Rules of the former Legislative
Assembly of Canada under the heading “Proceedings on
Bills” [23]
were
reproduced in full in the first edition of the Standing Orders of the House of
Commons.
Some of the rules concerning the
legislative process that were in effect at Confederation are still in effect
today. Some examples are: the Standing Orders prohibiting the introduction of
bills in blank or in an imperfect form, and stipulating that all bills be read
three times on different days, be printed in both official languages and be
certified by the Clerk of the House on each
reading. [24]
The rules of procedure governing the
legislative process have been amended on several occasions since 1867 with the
aim of facilitating the consideration of public bills, expanding the roles of
committees and allowing for greater participation by Members of the House of
Commons. For instance, until 1913, a Member had to seek leave of the House if he
wanted to introduce a bill, and that motion could be debated and
amended. [25]
In April
1913, the House decided that motions for leave to introduce a bill would no
longer be debated or
amended. [26]
As well,
in 1955, it added another provision to the Standing Orders specifying the
practice by which a Member who proposed such a motion would be given leave to
provide a brief description of the
bill. [27]
In 1991, the
House again amended the Standing Orders to provide that motions for leave to
introduce a bill be deemed to be carried, without debate, amendment or question
put. [28]
Some procedural rules were also amended to
allow the House to expedite its business. From Confederation until 1927, there
was practically no time limit on the length of Members’ speeches. Debates
on bills might sometimes go on for several
days. [29]
In 1927, the
House adopted a Standing Order imposing a limit on the speeches of most
Members. [30]
That
fundamental rule remained in effect without amendment until 1982, the year when
the House incorporated specific provisions into the legislative process
governing the length of speeches and the period for questions and
comments. [31]
Over the years, a number of special
committees have examined the Standing Orders governing the legislative
process. [32]
In 1968,
the House assigned the Special Committee on Procedure and Organization of the
House the task of performing a thorough review of the legislative
process. [33]
In its
Third Report, the Committee recommended changes designed to eliminate obsolete
practices, [34]
provide
more meaningful opportunities for Members to participate in the consideration
and shaping of bills, and identify the crucial stages in a bill’s
passage. [35]
The most
important provisions adopted at that time include referring bills other than
those based on Supply and Ways and Means motions to standing or special
committees, reviving the report stage as a debating stage of the legislative
process and reducing the maximum length of speeches in debates at the report
stage, and giving the Speaker the authority to select and combine
amendments. [36]
In the early 1980s, special committees
which had been instructed to examine House procedure once again undertook a
consideration of the twin issues of expediting and broadening the scrutiny of
bills and expanding the work assigned to committees. In March 1983, a report
recommended that “legislative committees” be created and given the
task of examining each bill in
depth. [37]
Although
the recommendations that came out of that study were not adopted, the Special
Committee on the Reform of the House of Commons recommended, in 1984, that
legislative committees be created and that bills based on Ways and Means motions
also be referred to legislative committees. The Committee also suggested that
the scrutiny of such complex bills in small committees composed of a group of
specialist Members was preferable to study by a Committee of the
Whole. [38]
These two
recommendations were incorporated into the amendments made to the Standing
Orders on June 27, 1985. [39]
A few years later, in April 1991, the House
made extensive changes to its Standing Orders. Among the provisions amended were
those relating to the automatic adoption of motions for the introduction and
first reading of bills; to the referral, by a Minister after consultation, of a
bill to a standing or special committee instead of to a legislative committee;
to the requirement of a period of two sitting days, as opposed to 48 hours,
between the time a bill is reported and the commencement of report stage; and to
the requirement of a 24 hours’ written notice for any motion respecting
Senate amendments to a
bill. [40]
At the beginning of the Thirty-Fifth
Parliament in 1994, the Standing Orders were once again amended to make the
legislative process more
flexible. [41]
New
provisions were added relating to the preparation and bringing in of bills by
committees and to the option of referring bills to either standing, special or
legislative committees. However, bills based on Supply motions continued to be
referred to a Committee of the Whole. In addition, it became possible for a
Minister to move that a government bill be referred to a committee before second
reading.
Although the House has since returned to
the previous practice of referring bills only to standing and special
committees, the rules pertaining to the referral of bills to legislative
committees have not been changed. They still exist but have not been resorted to
since the changes to the Standing Orders in 1994.
Types of Bills
There are two main categories of bills:
public bills and private bills. While public bills deal with questions of
national interest, [42]
the purpose of private bills is to grant powers, special rights or exemptions to
a person or persons, including
corporations. [43]
Public Bills
Public bills may be initiated by a
Minister, in which case they are referred to as “government bills”.
They may also be initiated by private Members, in which case they are called
“private Members’ bills”.
Government Bills
A government bill is the text of a
legislative initiative that the government submits to Parliament to be approved,
and possibly amended, before becoming law. Such bills relate to a matter of
public interest and may include financial provisions.
Private Members’ Bills
A private Member’s bill is the text
of a legislative initiative that is submitted to Parliament by a Member who is
not a Minister to be approved, and possibly amended, before becoming law. Most
bills of this type originate in the House of Commons, but some of them are sent
to the Commons by the Senate.
Debate on private Member’s bills can
take place only during the hour set aside for “Private Members’
Business”. [44]
Before this kind of bill can be taken up for debate by the House, it must have
been selected following a random draw, as provided by the Standing
Orders. [45]
At least
two weeks must elapse between first and second readings of this type of
bill. [46]
Private Bills
The purpose of a private bill is to exempt
a person or group of persons, including a corporate person, from the application
of a statute. [47]
It
may not be introduced by a Minister, and must be founded on a petition signed by
the persons who are interested in promoting it. The distinction between a public
bill and a private bill is primarily a function of the purpose of the
bill.
Most private bills are introduced in the
Senate, but they may also be introduced in the House of Commons, although this
is a rarer occurrence. Private bills before the House are dealt with as Private
Members’ Business, since they are moved by Members who do not hold
ministerial office. Although private bills must go through the same stages as
any other legislative measure, there are other stages that must be completed
before they are introduced. [48]
Bills that seem to be both public and
private in nature are referred to as hybrid bills. While British parliamentary
practice allows this type of bill, that is not the case in the Canadian
Parliament. [49]
Canadian parliamentary procedure requires that all bills be classified as either
public bills or private
bills. [50]
When a
single bill contains both private bill and public bill considerations, it is
dealt with as a public
bill. [51]
Form of Bills
The enactment of a statute by Parliament is
the final step in a long process that starts with the proposal, preparation and
drafting of a bill. The drafting of a bill, in particular, is one of the most
important stages in the process. At that point, the decision makers and drafters
must take into account certain constraints; the failure to abide by these
constraints may have consequences in relation to the interpretation and
application of the law and the proper functioning of the legislative
process.
Limits on Legislative Action
The Constitution of Canada sets out a
number of rules that define the limits on legislative action and circumscribe
what may be done by the government and
Parliament. [52]
The
effect of the legal duality, which is one of the unique characteristics of
Canada, may be to create differences in how a federal statute is applied and
interpreted, depending on whether the part of Canada where it is being applied
is governed by common law or civil
law. [53]
Bills must be enacted, published and
printed simultaneously in French and English. Section 133 of the Constitution
Act, 1867 requires that bills proceed in both languages through the entire
legislative process, including first
reading. [54]
Section
18 of the Constitution Act, 1982 further provides that both versions of
the statutes are equally authoritative.
Drafting Bills
Government Bills
The production of a government bill begins
when the government decides to transform a policy initiative into a legislative
proposal. [55]
The
Department of Justice then prepares a draft bill, following the instructions
given by Cabinet. [56]
The Minister of Justice is required to examine every bill introduced by a
Minister, and to ascertain that it is consistent with the Canadian Bill of
Rights and the Canadian Charter of Rights and
Freedoms. [57]
When a bill has been drafted in both
official languages, it must be approved by Cabinet before being introduced in
Parliament. The Government House Leader is responsible for reviewing the bill
and recommending that it be introduced in Parliament. Generally, the Government
House Leader asks Cabinet to delegate this responsibility to him or
her. [58]
Private Members’ Bills
Members of the House of Commons who are not
in Cabinet may introduce bills that will be considered under Private
Members’ Business. Members have access to legislative services, which are
under the authority of the Speaker of the House, for drafting their bills.
Before a bill is introduced in the House, the legislative services of the House
of Commons will certify that it is acceptable as to its form and compliance with
legislative and parliamentary
conventions. [59]
Private Bills
A private bill, which is sponsored by a
private Member, is founded on a petition which must first have received a
favourable report by the Examiner of Petitions or by the Standing Committee on
Procedure and House
Affairs. [60]
While the
form of a private bill is similar to that of a public bill, a private bill must
have a preamble, which is not mandatory for a public
bill. [61]
The Standing
Orders of the House also provide for certain rules of drafting and,
specifically, rules relating to bills for an Act of incorporation and bills
amending or repealing existing
Acts. [62]
Drafting by a Committee
A committee may be instructed to prepare
and bring in a
bill [63]
or a
committee may be appointed for that specific reason. In both cases, a motion for
the preparation of a bill by a committee may be moved by either a Minister or a
private Member. A committee that has been instructed to prepare a bill shall, in
its report, recommend the principles, scope and general provisions of the bill
and may, if it deems it appropriate, include recommendations regarding
legislative
wording. [64]
If the
House concurs in the committee report, this will be an order of the House to
bring in a bill based on the report.
Other Drafting Characteristics
Bills may also have other drafting
characteristics, depending on the purpose of the proposed
legislation.
- New legislation: Bills resulting
from a policy decision or, in some cases, to implement treaties, conventions or
agreements, to accept recommendations arising out of a report of a Task Force or
Royal Commission of Inquiry, to carry out administrative measures, or to deal
with emergencies. [65]
- Major revisions of existing Acts: Bills to revise an Act because it contains a sunset clause (certain Acts provide
that they must be revised after a certain period of time) or because of changing
economic or social standards or
circumstances. [66]
- Amendments to existing Acts: Bills
to amend existing Acts. The amendments may be of either a substantive or a
housekeeping nature.
- Statute law amendment bills: An
initiative for the purpose of eliminating anomalies, inconsistencies, archaisms
and errors in existing legislation and to deal with other matters of a
non-controversial and uncomplicated
nature. [67]
- Ways and Means bills: An initiative
based on Ways and Means motions, the purpose of which is to create a new income
or other tax, to continue a tax which is expiring, to increase a tax or to
extend the scope of a tax. These bills are governed by specific provisions of
the Standing
Orders. [68]
Only a
Minister may introduce a Ways and Means
bill. [69]
- Appropriation bills: An initiative
introduced in the House in response to the adoption of Main or Supplementary
Estimates or Interim Supply. These bills are also governed by specific
provisions of the Standing
Orders. [70]
Only a
Minister may introduce an appropriation bill.
- Borrowing authority bills: An
initiative to seek authority to raise money when public revenues are not
adequate to cover government
expenditures. [71]
- Pro forma bills: A pro forma bill is introduced by the Prime Minister at the beginning of each
session. It affirms the right of the House to conduct its proceedings and to
legislate, regardless of the reasons stated in the Speech from the Throne for
convening the House. The bill is entitled An Act respecting the
Administration of Oaths of Office; it is numbered C-1 but is not printed. It
is given first reading, but not second
reading. [72]
- Draft bills: This expression is
used to refer to the draft form of a bill that has not yet been introduced in
either House. Occasionally, the House may have the draft of a government bill
sent to a committee for examination. As the bill has not yet been given first
reading, the committee may examine the proposed legislation without being
constrained by the rules of the legislative process, and may recommend changes.
The government can then take the committee’s report into consideration
when finalizing the draft of the bill.
- Omnibus bills: Although this
expression is commonly used, there is no precise definition of an omnibus bill.
In general, an omnibus bill seeks to amend, repeal or enact several Acts, and it
is characterized by the fact that it has a number of related but separate
parts. [73]
An omnibus bill has “one basic principle
or purpose which ties together all the proposed enactments and thereby renders
the Bill intelligible for parliamentary
purposes”. [74]
One of the reasons cited for introducing an omnibus bill is to bring together in
a single bill all the legislative amendments resulting from a policy decision to
facilitate parliamentary
debate. [75]
The use of omnibus bills is unique to
Canada. The British Parliament does enact this kind of bill, but its legislative
practice is different, specifically in that there is much tighter control over
the length of debate. In the Australian Parliament, the opposite practice seems
to be followed (the procedure allows for related bills to be considered together
for the purpose of debate and
vote). [76]
It is not known exactly when the first
omnibus bills appeared, but as may be seen from the introduction of a private
bill to confirm two separate railway agreements, the practice seems to go back
to 1888. [77]
A number
of omnibus bills have been introduced and passed without any procedural
objection to their form being made by
Members. [78]
It appears to be entirely proper, in
procedural terms, for a bill to amend, repeal or enact more than one Act,
provided that the necessary notice is given, it is accompanied by the Royal
Recommendation (where necessary), and it follows the form
required. [79]
However,
on the question of whether the Chair can be persuaded to divide a bill simply
because it is complex or composite in nature, there are many precedents from
which it can be concluded that Canadian practice does not permit
this. [80]
Members have often rejected the
government’s reasons for introducing omnibus bills and have argued that
some omnibus bills are not acceptable. Frequently, they have cited their
“ancient privilege” to vote separately on each proposal which is
contained in a complex question. However, the Speakers of the House have ruled
that their power to divide complex questions could extend only to substantive
motions, and not to motions dealing with the progress of
bills. [81]
In calling
for the division of an omnibus bill, Members sometimes argue that the bill
contains more than one
principle. [82]
Occasionally, Members also contend that the long title of an omnibus bill should
refer to every act being amended. The Chair has ruled that this is not
necessary. [83]
Motions to divide omnibus bills have on
occasion been moved in committee, but these have been ruled out of order. Unless
a committee has received an instruction from the House, it may only report the
bill with or without
amendment. [84]
Committee chairs have also ruled against motions to submit two reports on one
bill in which each addressed specific topics in the bill, thus in effect
dividing the bill. [85]
However, committee chairs have ruled in order motions which would allow a
committee to seek an instruction to divide a
bill. [86]
Despite the refusal to divide omnibus
bills, the Speaker has expressed deep concerns about the right of Members to
make themselves heard
properly, [87]
and so
has occasionally felt the need to suggest what remedies Members have to deal
with the dilemma of having to approve several legislative provisions at the same
time. [88]
While there has never been an occasion
when the Chair has decided that a bill should be divided on the ground of
complexity, there are however three cases that are of particular interest. In
1981, during examination of Bill C-54, An Act to amend the statute law
relating to income tax and to provide other authority for raising funds,
Speaker Sauvé ordered that Part I of the bill, relating to borrowing
authority, be struck because the necessary notice had not been
given. [89]
Later in
the same session, another amending bill that dealt with both taxation and the
borrowing authority was introduced (Bill C-93). At the insistence of the
opposition, the government decided to withdraw the bill, on May 7, 1982, and
introduced two separate pieces of legislation on May 10,
1982. [90]
The division
of the omnibus bill in this case was brought about by the political process and
was not the result of any procedural argument. The most noteworthy case is Bill
C-94, Energy Security Act, 1982. On March 2, 1982, in response to a point
of order raised the day before, asking the Chair to divide the bill, Speaker
Sauvé ruled that there were no precedents which would permit her to
divide the bill. [91]
This led to the famous “bell-ringing” incident, as a result of which
the government ultimately moved, and the House passed, a motion to divide the
bill into eight separate pieces of
legislation. [92]
Once
again, the division of the omnibus bill was brought about by political
interaction.
Bills in Blank or in an Imperfect Shape
Since Confederation, the Chair has held
that the introduction of bills that contain blank passages or are in an
imperfect shape is clearly contrary to the Standing
Orders. [93]
A bill in
blank or in an imperfect shape is a bill which has only a title, or the drafting
of which has not been
completed. [94]
Although this provision deals mainly with errors identified when the bill is
introduced, Members have brought such defects or anomalies to the attention of
the Chair at various stages in the legislative process. In the past, the Speaker
has directed that the order for second reading of certain bills be discharged,
when it was discovered that they were not in their final form and were therefore
not ready to be introduced. [95]
Occasionally, bills contain provisions that
refer to legislation that has not yet been enacted. In April 1970, some Members
argued that a bill should be regarded as imperfect and should not be debated
because it incorporated provisions of two statutes which had not yet been
enacted. Although Speaker Lamoureux ruled that the bill was in order, he pointed
out that this question could be raised again on third reading, if the House was
asked at that stage to adopt a bill which was dependent on the adoption of other
legislation. [96]
Printing and Reprinting of Bills
Within a few hours after a bill has been
introduced and given first reading, it is printed and distributed to Members.
Every bill must be printed in both official
languages. [97]
The
bill will be reprinted after the committee stage, if it has been amended and the
committee orders that it be reprinted. It is then used as a working document for
the House at the report stage. After adoption at third reading, the bill as
passed by the House in its final form is reprinted for the Senate’s
consideration. Ultimately, it is reprinted in the form of an Act after receiving
Royal Assent, and it will then be published in the Canada Gazette and, at
the end of the year, in the Annual
Statutes. [98]
Clerical Alterations
The Chair has clearly ruled in the past
that when a bill is in possession of the House, it becomes its property, and
cannot be materially altered, except by the House itself. Only “mere
clerical alterations” are
allowed. [99]
By
issuing a corrigendum to the bill, the
Speaker [100]
may
correct any obvious printing or clerical error, at any stage of the
bill. [101]
On the
other hand, no substantive change may be made to the manner in which a bill was
worded when it was introduced, or when a committee reported on it, otherwise
than by an amendment passed by the
House. [102]
Structure of Bills
A bill is composed of a number of elements,
some of which, such as the title, are essential or fundamental, while others,
such as the preamble, are optional. The following is a description of the
various elements of a bill.
Number
When a bill is introduced in the House, it
is assigned a number to facilitate filing and
reference. [103]
Government bills are numbered consecutively from C-2 to
C-200, [104]
while
private members’ bills are numbered consecutively from C-201 to C-1000.
Although private bills are rarely introduced in the House, they are numbered
beginning at C-1001. In order to differentiate between bills that are introduced
in the two Houses of Parliament, the number assigned to bills introduced in the
Senate begins with an “S” rather than a “C”. Senate
bills are numbered consecutively beginning at S-1, whether they are government
bills, private Members’ bills or private bills, and are not renumbered or
reprinted when they are sent to the Commons.
Title
The title is an essential element of a
bill. A bill may have two titles: a full or long title and a short
title. [105]
The long
title appears both on the bill’s cover page, under the number assigned to
the bill, and at the top of the first page of the document. It sets out the
purpose of the bill, in general terms, and must accurately reflect its content.
The short title is used mainly for citation purposes, and does not necessarily
cover all aspects of the
bill. [106]
The first
clause of the bill normally sets out the short title (except in the case of
bills amending other Acts, which do not have a short title).
Preamble
Sometimes a bill has a preamble, which sets
out the purposes of the bill and the reasons for introducing
it. [107]
The preamble
appears between the long title and the enacting clause.
Enacting Clause
The enacting clause is an essential part of
the bill. It states the authority under which it is enacted, and consists of a
brief paragraph following the long title and preceding the provisions of the
bill: “Her Majesty, by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows:”. Where there is a
preamble, the enacting clause follows
it. [108]
Clause
A clause is a fundamental element of a
bill. It may be divided into subclauses, and then into paragraphs and even
subparagraphs. [109]
A
bill may be comprised of parts, divisions and subdivisions, but not necessarily;
however, the numbering of the clauses is continuous from beginning to end. A
clause should contain a single idea, which is most often expressed in a single
sentence. A number of related ideas will be set out in subclauses within a
single clause. [110]
Interpretation Provisions
A bill will sometimes include definitions
or rules of
interpretation, [111]
which provide a legal definition of the key expressions used in the legislation
and how those expressions apply, and which are often among the initial clauses
of a bill. However, there is nothing that requires that a bill include
interpretation provisions.
Coming-into-force Provisions
A bill may contain a clause, usually at the
end of the bill, specifying when the bill or certain provisions of the bill will
come into force. Sometimes, legislation is passed by both Houses of Parliament
and receives Royal Assent, but does not come into force immediately if it
contains a provision that it will come into force only on a specific date (other
than the date of Royal Assent) or a date to be fixed by Order in Council.
Otherwise, the bill ill come into force on the day it is assented
to.
Schedules
A bill may contain schedules which provide
details that are essential to certain provisions of the bill. There are two
types of
schedules: [112]
those
that contain material that cannot be put into the form of sections, such as, for
example, tables, diagrams, lists and
maps, [113]
and those
that reproduce an agreement that falls within Crown prerogative, such as, for
example, treaties and
conventions. [114]
Explanatory Notes
When the purpose of a bill is to amend an
existing Act, the drafters will insert notes to explain the amendments made by
the bill. Among other things, these notes provide the original text of the
provisions affected by the bill. They are considered not to be part of the bill,
and they disappear from subsequent reprints of the
bill. [115]
Summary
The summary is a general description of the
bill. It consists of “a clear, factual, non-partisan summary of the
purpose of the bill and its main
provisions”. [116]
The purpose of the summary is to improve the explanatory material that is
available to understand better the contents of the bill. The summary is not part
of the contents but appears separately at the beginning of the bill. Once the
bill has been passed, it will also appear on a page preceding the resulting
Act. [117]
Marginal Notes
Marginal notes consist of short
explanations that appear in the margin of the bill. They do not form part of the
bill, and appear only as readers’ aids or for information
purposes. [118]
Underlining and Vertical Lines
In a bill that amends an existing Act, the
new text is underlined when it consists of long passages, or simply indicated
with a vertical line (in the margin beside the new clauses, subclauses or
paragraphs). When a bill that has been amended in committee is reprinted, only
the additions made since the last printing are indicated in this
manner.
Headings
To make the reader’s job easier,
legislative drafters insert headings throughout the text. However, those
headings are not considered to be part of the bill and therefore cannot be
amended. [119]
Table of Contents
As an aid to readers, legislative drafters
sometimes add a table of contents at the beginning or end of a bill. It is not,
however, considered to be part of the bill.
Royal Recommendation
Bills that involve the expenditure of
public funds must have a Royal
Recommendation. [120]
The recommendation is made by the Governor General. Generally, it is
communicated to the House before a bill is introduced, and it must be published
in the Notice Paper and printed in or annexed to the
bill. [121]
The Royal
Recommendation is not part of the bill but appears separately at the beginning
of the bill. [122]
After the bill is given first reading, the text of the Royal Recommendation is
printed in the Journals. The Royal Recommendation may only be obtained by
the government.
Stages in the Legislative Process
A bill is carried forward through all the
stages of the legislative process “by a long chain of standardized
motions” which must be adopted by the House before the bill becomes
law. [123]
It is these
motions, and not the bill, that are the subject of the decisions and debates of
the House. These stages “constitute a simple and logical process in which
each stage transcends the one immediately before it, so that although the basic
motions — that the bill be read a first (second or third)
time — ostensibly are the same, and seem repetitious, they have very
different
meanings”. [124]
Moreover, the House does not commit itself conclusively in favour of a bill
until the final stage, when it takes a decision to let the bill pass from the
House or not. [125]
The Standing Orders of the House require
that every bill receive three readings, on different days, before being
passed. [126]
The
practice of giving every bill three separate readings derives from an ancient
parliamentary practice which originated in the United
Kingdom. [127]
At that
time, when the technology was not yet available to reproduce large numbers of
copies at low cost, bills were introduced in handwritten form, one copy at a
time. In order for Members to know what the content of the bill was, the clerk
read the document to them; the idea of “reading” the bill was taken
literally. [128]
Today, a bill is no longer read aloud, but
the formality of holding a reading is still preserved. When the Speaker declares
that the motion for first reading has passed, a clerk at the Table rises and
announces “First reading of this bill”, thus signifying that
the order of the House has been obeyed. That scenario is repeated when the House
has ordered a second and then a third reading of the bill.
A certification of reading must be affixed
to every bill immediately after each of the three readings is adopted. The Clerk
of the House is responsible for certifying each reading, and entering the date
it passed at the foot of the
bill. [129]
A bill
remains in the custody of the Clerk throughout all the stages of consideration.
No substantive alteration to the bill is permitted without the express authority
of the House or a committee, in the form of an amendment. The original bills,
certified by the Clerk, form part of the records of the
House. [130]
All bills must go through the same stages
of the legislative process, but they do not necessarily follow the same route.
Since the House adopted new rules to make the legislative process more
flexible, [131]
three
avenues now exist for the adoption of legislation (see Figure
16.1):
- After
appropriate notice, a Minister or a private Member may introduce a bill, which
will be given first reading immediately. The bill is then debated generally at
the second reading stage. It is then sent to a committee for clause-by-clause
study.
- A
Minister or a private Member may propose a motion that a committee be instructed
to prepare a bill. A bill will be presented by the committee and carried through
the second reading stage without debate or amendment.
- A
Minister may move that a bill be referred to a committee for study before second
reading.
Regardless of the avenue that the House
decides to take, the bill will then have to be carried through report stage, be
read a third time and be sent to the Senate for passage before receiving Royal
Assent. At the start of a new session, a public bill may, if it is the same bill
as was introduced in the preceding session, be reinstated at the stage it had
reached at the time of prorogation. This procedure may be effected either by
passing a motion to that
effect [132]
or, in
the case of a private Member’s bill, by invoking the provision of a new
Standing Order adopted in
1998. [133]
On urgent or extraordinary occasions, if
the House so decides, a bill may be given two or three readings on the same day,
or advanced two or more stages in one
day. [134]
This
provision of the Standing Orders refers only to the reading
stages. [135]
It is up
to the House itself, and not the Chair, to determine whether the matter is
urgent. [136]
The following are the stages that a bill
must go through when it is introduced in the House of Commons:
- Notice of motion for leave to
introduce and place on the Order Paper;
- Preparation of a bill by a
committee (where applicable);
- Introduction and first
reading;
- Reference to a committee before
second reading (where applicable);
- Second reading and reference to a
committee;
- Consideration in
committee;
- Report stage;
- Third reading (and
passage);
- Consideration and passage by the
Senate;
- Passage of Senate amendments by the
Commons (where applicable);
- Royal Assent;
- Coming into force.
A bill that is introduced in the Senate
must go through essentially the same stages, except that it is considered first
in the Senate and then in the House of
Commons. [137]
Most
bills may be introduced in either House, with the exception of bills which
involve spending or relate to taxation, which must be introduced in the House of
Commons.
Notice of Motion for Leave to Introduce and Place on the Order Paper
The introduction of any public bill
requires 48 hours’ written
notice. [138]
The
notice of motion is a prerequisite in the legislative process. Once notice is
given for the introduction of a bill, no further notice is required in respect
of the bill at the other stages of consideration (with the exception of motions
to amend at the report stage). There are separate requirements that apply in
respect of the notice required for private
bills. [139]
A private Member or a Minister who intends
to introduce a bill in the House of Commons must first give notice to the Clerk
of the House before 6:00 p.m. (2:00 p.m. on
Friday). [140]
The
title of the bill to be introduced is then placed on the Notice Paper.
The day after it appears on the Notice Paper, the title will appear in
the Order Paper in the order that the notices were received, for
introduction in the House. This satisfies the 48-hour notice requirement in the
Standing Orders. The title of the bill will remain on the Order Paper
until the day when the private Member or Minister decides to introduce the
bill.
There are special rules dealing with the
introduction of bills that involve the expenditure of public funds and bills
based on Ways and Means motions. Those provisions are described in Chapter 18, “Financial Procedures”.
Preparation of a Bill by a Committee
The Standing Orders provide that a motion
to appoint or instruct a committee to prepare a
bill [141]
may be
moved by a
Minister [142]
or by a
private Member. [143]
However, the procedures to be followed in each instance are not entirely the
same.
A Minister who wants to instruct a
committee to prepare and bring in a bill must give 48 hours’ written
notice of the motion he or she intends to move to do
so. [144]
Once the
notice period has passed, the motion will be placed on the Order Paper
under “Government Orders”. When it is called by the government, it
may be debated for a maximum of 90 minutes, after which the Speaker will
interrupt debate and put all questions necessary to dispose of the
motion. [145]
If a private Member wants to instruct a
committee to produce and bring in a bill, the Member must give at least two
weeks’ written notice of the motion he or she intends to
make. [146]
When that
notice period has passed, the motion will be placed on the Order Paper
under “Private Members’ Business”. It will then be governed by
all the rules relating to Private Members’ Business (that is, it will be
subject to the random draw procedure, it will have to be selected as a matter
that can be voted on and it will be taken up during the time set aside for
Private Members’
Business [147] ).
The adoption by the House of a motion to
concur in a report of a committee instructed to prepare and bring in a bill is
an order to bring in the
bill. [148]
If, at the
time the motion for first reading of a bill is moved, the Minister or Member
states that the bill is based on the committee report, the motion for second
reading will be moved at a later date, without debate or amendment.
Consideration of a government bill at the second reading stage may not begin
before the third sitting day after first
reading. [149]
At
least two weeks must elapse between first and second reading of private
Member’s
bills. [150]
After
second reading, the bill goes through the other ordinary stages for public
legislation.
Introduction and First Reading
The first real stage in the legislative
process is the introduction and first reading of the bill in the House. When the
notice period has elapsed and the Member or Minister is ready to introduce his
or her bill, the Member or Minister informs the Chair of his or her intention to
proceed during Routine Proceedings when the item “Introduction of
Government Bills” or “Introduction of Private Members’
Bills” is called. Leave to introduce a bill is granted automatically, and
the motion is deemed carried, without debate, amendment or question
put. [151]
A Minister
does not normally provide any explanation when requesting leave to introduce a
bill, but may do
so. [152]
On the other
hand, a private Member normally provides a brief explanation of the bill he or
she is introducing in the
House. [153]
The purpose of first reading is to allow
for the bill to be introduced so that it may be printed and distributed to all
Members. It is at that point that a specific bill number is assigned to it.
Passage of the motion for first reading simply means that the House agrees to
the introduction of the bill without any commitment beyond the fact that it
should be made generally available for the information of Parliament and the
public. [154]
There
can be no discussion at this stage. When leave to introduce the bill has been
granted, the Speaker proposes the following motion to the House: “That
this bill be read a first time and be printed.” That motion is deemed
carried, without debate, amendment or question
put. [155]
The Speaker
then asks: “When shall the billbe read a second time?”, and
answers, “At the next sitting of the House.” The question is in fact
a formality which enables the bill to be placed on the Order Paper under
the heading “Government Orders” or “Private Members’
Business”. [156]
Senate bills are already printed when they
are sent to the House of Commons. Accordingly, the request for leave to
introduce the bill is not required. The motion for first reading is deemed
carried without debate, amendment or question
put. [157]
Senate
bills then go through the same stages as House of Commons
bills.
Reference to Committee Before Second Reading
Traditionally, when the House proceeds to second reading of
a bill, it is asked to give approval to the principle of the bill. However, the
effect of adoption of the principle at this stage of the legislative process is
to limit the scope of amendments that may be made during committee study and at
report stage. In wishing to provide more flexibility in the legislative process,
when the House amended its Standing Orders in 1994, [158]
it instituted a
new procedure that allows a Minister to move that a government bill be referred
to a committee before second reading. [159]
This enables
Members to examine the principle of a bill before second reading, and to propose
amendments to alter its scope. [160]
This procedure
also applies to bills based on Ways and Means motions. [161]
When
the Order of the Day is read for the second reading of a government bill, a
Minister may, [162]
after n.tifying
representatives of the opposition parties, propose a motion that the bill be
forthwith referred to committee before second reading. The Standing Orders are
silent as to the manner in which the representatives of the opposition parties
are to be notified. However, the practice which has been followed since 1994 is
for the Minister to inform the House of the government’s intention at the time
of the introduction and first reading of the bill. The motion to refer forthwith
the bill to committee is not subject to any amendment, and debate is limited to
three hours. At the end of the three hours, or when no more Members rise to
speak, the Speaker puts the question on the motion. [163]
If the motion
is adopted, the bill is referred to a standing, special or legislative committee
for consideration.
In
general, during clause by clause consideration of a bill, the committee follows
the same rules and procedures that apply to the consideration of bills in
committee after second reading. [164]
It may hear
witnesses and receive briefs. However, the scope of the amendments that may be
made to the bill is much wider, given that the committee study is not limited to
the principle of the bill, the principle not having been approved yet by the
House. At the end of its study, the committee reports the bill to the House,
with or without amendment. The report stage of the bill may not be taken into
consideration prior to the third sitting day following the presentation of the
report. [165]
When
the committee reports the bill to the House, the next stage is essentially a
combination of the report stage and second reading. At this stage, Members may
propose amendments, after giving written notice two sitting days prior to the
bill being called. [166]
When
consideration of report stage is concluded, a motion “That the bill, as amended,
be concurred in at report stage and read a second time” or “That the bill be
concurred in at report stage and read a second time” is put and forthwith
disposed of by the House, without debate or amendment. [167]
Once concurred
in at report stage and read a second time, the bill is set down for third
reading and passage at the next sitting of the House.
Second Reading and Reference to a Committee
Second reading gives Members an opportunity to hold a
general debate on the principle [168]
of a bill.
Although the Standing Orders of the House make no specific reference to this
point, tradition and practice hold that it is at this stage of the legislative
process that debate on the general scope of a bill takes place. [169]
Consequently,
debate must focus on the principle of the bill and not its individual
provisions. [170]
Recognition of the importance of this stage of the
legislative process has evolved over the years. Traditionally, it was felt that
second reading was the most important stage in the legislative process. [171]
In 1968, the
Special Committee on Procedure and Organization of the House stated in its
report, after examining the stages of the process, that the significance of the
second reading stage had been exaggerated in the past, and that the decisive
stage should occur later in a bill’s passage after it had emerged from a
committee. [172]
In the
Committee’s view, passage of the motion for second reading simply implied that
the House had given preliminary consideration to the bill and that, without any
commitment as to the final passage of the bill, it had authorized its reference
to a committee for detailed scrutiny. [173]
Second reading of a bill and reference to a committee are
moved in the same motion. The motion specifies the committee (standing, special,
legislative) to which the bill is referred. [174]
The Standing
Orders require, in specific cases, that a bill be referred to a Committee of the
Whole. [175]
Debate on second reading begins when the Minister or
Member, as the case may be, rises when the Order of the Day is read for the
second reading of the bill and moves “That Bill be now read a second time
and referred to the Committee.”
The
Standing Orders contain provisions concerning the length of speeches of Members
during debate. [176]
There is no
time limit for the Prime Minister and the Leader of the Official Opposition.
However, no other Member may speak for more than 40 minutes if he or she is the
first, second or third Member to speak. In addition, during the five hours of
debate that follow the first three Members, no Member may speak for more than 20
minutes, and a period not exceeding 10 minutes is then made available for
questions and comments. If there are no questions or comments, or if the time
has not been fully used, another Member may then speak. Questions and comments
must be relevant to the Member’s speech. [177]
After five
hours of debate, any other Member rising to speak has a maximum of 10 minutes,
but no period for questions and comments is provided. The Whip of a party may
indicate to the Chair at any time during a debate that one or more of the
20-minute or 10-minute periods of debate allotted to Members of his or her party
will be divided in two. [178]
By custom,
every Member who moves a substantive motion is allowed a reply. Practice is that
a Member who proposes a motion for second reading of a bill is also allowed a
reply. In the case of government bills, a parliamentary secretary may exercise
that right on behalf of the Minister only with the unanimous consent of the
House. [179]
The
Standing Orders of the House offer the government a mechanism for limiting
debate at second reading, and also at other stages of the legislative process,
by using time allocation motions. [180]
This permits
the government to establish a timetable for consideration of a public
bill. [181] As well, the
government has another mechanism, referred to as “closure”, to compel the House
to take a decision. [182]
However, this
latter procedure is rarely used in relation to bills. [183]
At
the end of the debate, the Speaker puts the question on the motion “That the
bill be now read a second time and referred to the committee”. The Speaker asks
the House whether it is ready for the question and whether it is the pleasure of
the House to adopt the motion. A recorded division may be requested. [184]
Defeat of a
motion for second reading results in the withdrawal of the bill; in fact, the
bill is deemed to be no longer before the House, and no date is set for
consideration of the bill to resume. [185]
Once the motion
is adopted, the bill is referred to the appropriate committee.
Amendments to the Motion for Reading
A
public bill which was not referred to a committee before second reading may not
be amended before being read a second time and being referred to
committee. [186]
However, a
motion for second reading of a bill may be amended, [187]
but only three
types of amendments may be moved without notice: a three months’ or six months’
hoist; a reasoned amendment; and a referral of the subject matter to a
committee.
The Hoist Amendment
The
hoist is an amendment that may be moved to a motion for the reading of a bill.
Its effect is to prevent a bill from being “now” read a second time, and to
postpone the reading for three months or six months. [188]
If it is
adopted, the bill is withdrawn for the remainder of the current session. If it
is defeated, the result of the procedure is nonetheless to have extended the
debate and to have allowed Members to speak a second time.
The
hoist amendment originated in British practice, where it appeared in the
eighteenth century. It enabled the House of Commons to postpone the resumption
of the consideration of a bill. It was subsequently agreed that the adoption of
such an amendment by the House was tantamount to the rejection of the bill,
since the postponement was deliberately set for a date after the end of the
session. Normally, if the session went beyond that date, the bill was not placed
again on the Order Paper. [189]
Historical events were responsible for the establishment of
three or six months as the postponement period. A hundred years ago, sessions
rarely lasted longer than six months, and so a six months’ hoist amendment would
be proposed at the beginning of a session, and a three months’ hoist in the
final weeks of a session. Today, sessions of the House of Commons of Canada are
longer, but the length of sessions is neither regular nor fixed in
advance.
An
analysis of hoist amendments moved in the House of Commons since Confederation
shows that the cases in which this procedure has been used fall into two
specific periods. The first was from 1867 to about 1920, and the second from
1920 to the present day.
The
first hoist amendment was moved on November 28, 1867. [190]
Prior to 1920,
it was the government, not the opposition, that used hoist amendments most
often. [191]
Because the
House had only a little time for government business during the short sessions
of that era, the government sometimes felt obliged to dispose of a great number
of private Members’ bills by using the hoist procedure so that it would have
more time to devote to its own legislation.
Since
1920, the period set aside for government business has grown to take up the
largest share of the time in the House, and hoist amendments have gradually come
to be used almost exclusively by the opposition. From an examination of the
precedents, it is clear that hoist amendments were moved to motions for second
and third reading during periods when there was considerable tension between the
parties. Those amendments rarely passed: of the scores of cases recorded in the
Journals, only four succeeded. In each of those four
cases, the hoist amendment was moved by the government with the intent of
defeating a private Member’s bill.
A
hoist amendment must meet a number of requirements if it is to be ruled in
order. The purpose of the amendment is to neutralize the word “now” in the
motion for reading. It must therefore amend the motion for reading by
eliminating all of the words following the word “That” and replacing them with
the following proposition: “Bill (number and title) be not now read a second
time but that it be read a second time this day three months (or six months)
hence.” A hoist amendment requires no notice, may be debated and may not be
amended. [192]
When
a hoist amendment is rejected, debate continues on the main motion; however, no
more than one hoist amendment may be moved in respect of the same reading
motion. [193]
The adoption of
a hoist amendment (whether for three months or six months) is tantamount to the
postponement of the consideration of the bill for an indefinite period. [194]
Consequently,
the bill disappears from the Order Paper and cannot
be introduced again, even after the postponement time has elapsed. [195]
The bill is
accordingly defeated indirectly. It is no longer possible to place the bill back
on the Order Paper, because to do so would be ruled
contrary to the decision of the House. Members have tried to apply the hoist
amendment to a resolution [196]
or to include
it in the text of a reasoned amendment, [197]
but these
attempts were ruled out of order.
The Reasoned Amendment
The
reasoned amendment, another type of amendment that may be moved at second
reading of a bill, allows a Member to state the reasons why he or she opposes
second reading of a bill, by introducing another relevant proposal to replace
the original question. [198]
A reasoned
amendment, which is introduced in the form of a motion, deletes all the words in
the main motion after the word “That” and replaces them with other
words.
It is
difficult to determine precisely when a reasoned amendment was first moved in
the House, but it is believed that the first such amendment was introduced in
1882. [199]
An analysis of
the reasoned amendments that have been proposed since Confederation shows that
there was an initial period, from about 1882 to 1930, which was remarkable for
the latitude allowed in the wording of reasoned amendments. In that period,
Members were not too concerned with contesting the receivability of reasoned
amendments, and the Chair only rarely intervened. In the early 1930s, regular
requests began to be made to Speakers to rule as to whether reasoned amendments
were in order; during that second period, which lasted until the mid-1960s, a
number of precedents were established. Beginning in the 1970s, it became
increasingly difficult for Members to move reasoned amendments that were
acceptable in procedural terms. [200]
The Chair is
therefore now able to refer to a larger body of Canadian precedents in order to
determine whether or not a reasoned amendment is in order.
The
Standing Orders of the House of Commons contain no provisions respecting
reasoned amendments. [201]
However,
precedents have established rules of procedure over the years that cover both
the form and substance of such amendments. Today, a reasoned amendment generally
takes the form of a request to the House to decline to give a bill second
reading, for a specific reason. [202]
There are only
two broad categories of reasons that are now cited:
- A
reasoned amendment may be declaratory of a principle adverse to or differing
from the principles, policy or provisions of the bill; or
- A
reasoned amendment may express an opinion as to any circumstances connected with
the introduction or consideration of the bill, or with any other initiative
opposed to its progress.
For a reasoned amendment to be in order, it must observe the following rules:
- It
must be relevant and relate strictly to the bill being considered. [203]
A reasoned
amendment is not relevant, for example, if it relates to another bill; [204]
is intended to
divide the bill; [205]
proposes that
the bill be withdrawn and replaced by another bill; [206]
relates to the
parent Act rather than to the amending bill; [207]
goes beyond the
scope of the bill; [208]
involves the
expenditure of funds or proposes changes that go beyond the scope of the royal
recommendation. [209]
- It
must not be a direct negation of the principle of the bill. The procedure to be
followed when a Member does not agree with the principle of a bill and wants to
reject it is simply to vote against the motion for second reading of the
bill. [210]
- It
must not relate to particulars of the bill, [211]
if what is
sought may be accomplished by amendments in committee. [212]
- It
must not attach a condition to the adoption of the second reading
motion. [213]
A
reasoned amendment which is merely a statement of opposition to portions of the
bill is not admissible. [214]
On the other
hand, a reasoned amendment need not necessarily oppose the principle of a bill
in order to be admissible. Opposition to the principle of the bill is only one
of the possible conditions for a reasoned amendment to be in order. [215]
Where
a reasoned amendment is ruled to be in order, the House must dispose of it. To
date, there have been no instances in which the House has decided in favour of a
reasoned amendment. If it were to do so, that would end debate on the bill, and
the House would have to forego second reading of the bill. [216]
The order
relating to the bill would disappear from the Order
Paper.
Referral of the Subject Matter of a Bill to a Committee
During debate on the motion for second reading, a Member
may propose an amendment to refer the subject matter of a bill to a committee
for it to consider and report on the matter to the House. This type of amendment
replaces all the words after “That” with words proposing that the bill be not
now read a second time, that the order for second reading be discharged, the
bill withdrawn from the Order Paper and the subject
matter be referred to a committee. [217]
Certain conditions must be met, however, for this type of
amendment to be in order. First, the subject matter of the bill may not be
referred to more then one committee [218]
nor to a body
not in existence. [219]
Second, an
amendment that would attach a condition to the adoption of the motion for
reading of a bill is out of order. [220]
Third, the
actual provisions of the bill may not be referred to committee, as this would be
tantamount to instructing a committee to consider certain provisions of a bill
even before the bill has been read a second time and referred to
committee. [221]
Motions of Instruction
Once
a bill has been referred to a committee, the House may give the committee an
instruction by way of a motion which authorizes it to do what it otherwise could
not do, such as, for example, examining a portion of a bill and reporting it
separately, [222]
examining
certain items in particular, [223]
dividing a bill
into more than one bill, [224]
consolidating
two or more bills into one bill, [225]
or expanding or
narrowing the scope or application of a bill. [226]
On the other
hand, a committee that so wishes may seek an instruction from the
House. [227]
The
House may give instructions to a Committee of the Whole or any one of its
committees. More than one motion of instruction to a committee for the same bill
may be proposed, but each motion must be moved separately. [228]
Motions of
instruction respecting bills are permissive rather than mandatory. [229]
It is left to
the committee to decide whether or not to exercise the powers given to it by the
House. [230]
Motions of instruction derived from British practice during
the second half of the nineteenth century. They were incorporated into the
practices of the Canadian House of Commons, although they have been used only on
rare occasions. Nearly all the precedents on instructions relating to bills took
place during a period when bills were referred to a Committee of the Whole after
second reading. During debate on the motion “That the Speaker do now leave the
Chair”, a Member could move an amendment for the purpose of giving an
instruction to that committee. Today, when a bill is referred to a Committee of
the Whole, [231]
the House gives
its instructions, if any, by a special order. [232]
Motions of instruction are not admissible as an amendment
to the motion for second reading of a bill, and may not be moved while the bill
in question is still in the possession of the House. [233]
Motions of
instruction may be moved immediately after the motion for second reading where
it refers the bill to a Committee of the Whole. [234]
No notice is
required. However, when a motion of instruction is made at this stage of the
legislative process, it is not debatable or amendable. [235]
A
motion of instruction may also be moved in the form of an independent
motion. [236]
Forty-eight
hours’ written notice is required [237]
and, when the
motion is moved in the House, it may be debated and amended. [238]
Debate on a
motion of instruction must be strictly relevant to the instruction, and not be
directed to the substance of the bill. [239]
A motion of
instruction may be moved in the House even after a committee has begun its
deliberations on the bill. [240]
Whether proposed by a Minister or a Member, such a motion
may be placed under “Motions” in Routine Proceedings on the Order Paper. [241]
Otherwise, it
is placed under Government Business, if the notice is given by a Minister, or
under Private Members’ Business, if it is given by a private Member. When it is
called during the daily period set aside for “Routine Proceedings”, a motion of
instruction is then dealt with as an independent substantive motion, even though
it is only meaningful in connection with the bill in the possession of the
committee. If debate on the motion is adjourned or interrupted before the end of
the sitting, the motion is transferred to “Government Orders” and the time for
resumption of the debate is left to the pleasure of the government. [242]
There
are a number of reasons why the Chair may rule a motion of instruction to be out
of order. A motion of instruction may not be used to deal with an item in a bill
that could properly constitute a distinct measure, or to attempt to interfere in
the work of a committee which has not yet reported. [243]
A motion of
instruction which is not in proper form, or which is not worded in such a way
that the committee will clearly understand what the House wants, will also be
out of order. [244]
A motion of
instruction will be ruled out of order if it does not relate to the content of
the bill, if it goes beyond the scope of the bill (for example, by embodying in
it a principle that is foreign to it or by proposing to amend Acts that are not
related to the bill), if it is not sufficiently specific, or if it attempts to
delete a portion of the bill. [245]
A motion of
instruction will also be ruled out of order if it attempts to confer powers to a
committee which it already possesses, [246]
if it enables a
committee to divide a bill that does not lend itself to such division, [247]
or if it
extends the financial prerogatives of the Crown without a Royal Recommendation
for that purpose. [248]
Royal Consent
Royal
Consent (which should not be confused with Royal Assent or Royal Recommendation)
is taken from British practice and is part of the unwritten rules and customs of
the House of Commons of Canada. Any legislation that affects the prerogatives,
hereditary revenues, property or interests of the Crown requires Royal Consent,
that is, the consent of the Governor General in his or her capacity as
representative of the Sovereign. [249]
Consent is
therefore necessary when property rights of the Crown are postponed, compromised
or abandoned, or to waive some prerogative of the Crown. [250]
For instance,
it was required for bills in connection with railways on which the Crown had a
lien, [251]
property rights
of the Crown (in national parks and Indian reserves), [252]
the
garnishment, attachment and diversion of pensions [253]
and amendments
to the Financial Administration Act. [254]
However, the consent of the Crown is not required where the
bill relates to property that the Crown may hold for the Crown’s
subjects. [255]
The fact that
the Crown agrees to give consent does not, however, mean that it approves the
substance of the measure; it merely means that it agrees to remove an obstacle
to the progress of the bill so that it may be considered by both Houses, and
ultimately submitted for Royal Assent. [256]
Although Royal Consent is often given when a bill is read
for the second time, [257]
it may be
signified at any stage before final adoption. [258]
It may be given
in the form of a special message, [259]
but normally it
is transmitted by a Minister [260]
who rises in
the House and states: “His/Her Excellency the Governor General has been informed
of the purport of this bill and has given his/ her consent, as far as Her
Majesty’s prerogatives are affected, to the consideration by Parliament of the
bill, that Parliament may do therein as it thinks fit”. If consent has not been given, the Speaker will
refuse to put the question for passage at third reading. [261]
If, through
inadvertence, a bill requiring Royal Consent were to pass all its stages in the
House without consent being given, the proceedings in relation to the bill would
be declared null and void. [262]
Consideration in Committee
During consideration in committee, Members examine the
clauses of the bill in detail. It is at this stage that they have their first
opportunity to propose amendments to the text of the bill. It is also at this
stage that witnesses may be invited to present their views and to appear before
the committee to answer Members’ questions. A bill is referred to a standing,
special or legislative committee for consideration, [263]
normally after the adoption of second reading in the House, but
sometimes before second reading. [264]
Occasionally,
bills are referred to a Committee of the Whole. Any bill based on a Supply
motion must be referred to a Committee of the Whole. [265]
As well, with
the unanimous consent of the House, an urgent or non-controversial bill may be
referred to a Committee of the Whole, [266]
most often
after having gone through more than one stage of the legislative process in a
single sitting. [267]
The House may
also decide, by adopting a special order, to refer a bill to a Committee of the
Whole. [268]
Mandate of the Committee
A
bill that is referred to a committee comprises the order of reference to the
committee. The committee’s sole mandate is to examine the bill and report it to
the House, with or without amendment. [269]
If the bill has
already received second reading, the committee is bound by the decision of the
House and may not amend the bill contrary to its principle. [270]
This is not the
case when the committee is considering a bill that has not yet been given second
reading. [271]
During consideration of a bill, a committee may receive
clarification from the House regarding its order of reference. The
“instructions” from the House may expand the committee’s mandate by giving it
additional powers. [272]
A
committee may be asked by the House to reconsider a bill which it has already
reported. This reference is normally proposed in the form of an amendment to the
motion for third reading of the bill. The House may refer a bill back to a
committee to have only certain clauses amended or reviewed; it may refer the
bill several times, and it may refer it with or without any limitation. In the
latter case, the whole bill is open to reconsideration. When a bill is referred
with limitations, the committee can consider only the clauses or amendments
referred to it. [273]
Role of a Committee on a Bill
The
role of the committee at this stage of the legislative process is to consider a
bill clause by clause and, if necessary, word by word, and to approve the text
or to modify it to reflect the committee’s intentions. [274]
The
committee has the power to change the provisions of a bill to such an extent
that when it is reported to the House it may be completely different in
substance from the bill which was referred to the committee. [275]
For example,
the committee may, if it so decides, negative a clause or clauses of a bill (to
the extent that nothing is left of the text of the bill) and report the bill to
the House with amendments; the committee may also negative all the clauses of a
bill and substitute new clauses, as long as the new clauses respect the rules of
admissibility. [276]
Length of Speeches
Every
member of a committee may speak as often as he or she wishes and may also speak
as long as he or she wishes, subject to the practice that the committee adopts
in that respect. [277]
Frequently, a
committee will pass motions to govern its proceedings, such as motions to
regulate the length of time that members of the committee may speak, to
establish the rotation of speakers (usually according to political parties) and
to impose time limits for the proposal of certain types of motions or
amendments. [278]
As well, the
length of speeches may be governed by constraints imposed by an order of the
House [279]
or, in the case
of a private Member’s public bill, by the Standing Orders. [280]
A
committee itself may also limit the time it will spend on consideration of a
bill by adopting a motion to that effect. Such a motion may be debated and
amended. A committee may also pass the equivalent of a time allocation motion,
that is, allotting time for the examination of each clause, [281]
or terminating
consideration of a bill at a particular time or date. [282]
Hearing of Witnesses
A
committee to which a bill is referred usually chooses to hold public
hearings. [283]
The steering
committee of the committee (referred to as the sub-committee on agenda and
procedure) may discuss a timetable for meetings and a list of witnesses whom the
members wish to invite to appear, and may present its recommendations to the
whole committee in the form of a report. The committee may then adopt the report
with any amendments deemed necessary. The committee may decide to call on the
services of the research officers of the Library of Parliament, [284]
or to retain
any other specialist it considers necessary to assist in its work. [285]
Before proceeding with the clause by clause examination of
the bill, the Chair of the committee calls Clause 1 for debate (or Clause 2, if
Clause 1 contains the short title [286] )
to allow the
members of the committee to hold a general discussion on the bill and to
question witnesses, if any witnesses are appearing. The practice is that the
first witness to appear before the committee is either the sponsor of the bill
or the Minister responsible for the bill (or the Minister’s parliamentary
secretary). Other witnesses may then be invited to express their views on the
bill. Those witnesses may include individuals, experts or representatives of
organizations that would be affected by the legislative measure. At this stage,
discussion is very open, and relates to both the general principle and the
details of the bill. Later, when the committee undertakes its clause by clause
consideration of the bill, the Minister responsible, or the Minister’s
parliamentary secretary, may return to address the committee. [287]
The officials
of the department will also make themselves available during this phase, to
provide explanations of certain complex or technical aspects of the legislative
measure. [288]
On
occasion, committees have considered more than one bill at a single meeting to
take advantage of the presence of a Minister and witnesses so that they can be
questioned on all bills at the same time. [289]
The bills in
question had points in common, so that it was practical to undertake
consideration of both simultaneously. However, at the clause by clause stage,
the bills were examined separately. [290]
A committee has
also considered both a bill that had been referred to it and the subject matter
of another bill. [291]
Clause by Clause Consideration
Once
the witnesses have been heard, the committee proceeds to clause by clause
consideration of the bill. It is during this phase of the committees’
deliberations that members may propose amendments to the bill.
Order in Which the Elements of the Bill Are Examined
Unless the committee decides otherwise, clause by clause
consideration of the bill follows the following order:
- Clauses;
- Clauses allowed to stand (if any);
- Schedules;
- Clause 1 (short title);
- Preamble (if any);
- Title.
The
elements of a bill must be considered in a prescribed order: consideration of
the preamble (if the bill has one) is postponed until after the clause by clause
examination; [292]
consideration
of Clause 1, if that clause contains only the short title, is also postponed;
the other clauses and the schedules are considered in the order in which they
appear in the printed version of the bill. [293]
The new clauses
and new schedules are considered in the order in which they would appear in the
bill. While some authorities on parliamentary procedure recommend a different
order for examining new clauses and schedules, [294]
several years
ago, committees adopted the practice of proceeding with new clauses and new
schedules in the same manner as for proposed amendments to clauses, that is, in
the order in which they would appear in the bill. Committees consider that this
approach facilitates clause by clause consideration; it has been used to such an
extent that it is now solidly entrenched in the practice of the House of
Commons. [295]
Once all the
provisions have been decided, the committee returns to consider Clause 1 (if it
was postponed), the preamble and, finally, the title. [296]
Consideration of the Clauses
Each
clause of the bill is a distinct question and must be considered separately. The
committee Chair calls each clause successively by its number and, after
discussion, puts the question on the clause if no amendment is proposed. If an
amendment is proposed, the Chair gives the floor to the member, who reads the
amendment. A new question is then placed under consideration and there is a new
debate. When debate has concluded, the Chair puts the question on the amendment
to the clause and, once decided, puts the question on the clause itself (as
amended, if applicable). Once the clause is carried, it may not be discussed
again without unanimous consent. [297]
The
committee may pass a motion to divide a clause in order to debate the parts
separately or to put the question on the parts separately. [298]
Clauses Allowed to Stand
The
committee may, by motion, decide to stand a clause, provided that the committee
has not already adopted or negatived an amendment to the clause in
question. [299]
If, however, an
amendment has been proposed and withdrawn, the clause may be stood. In practice,
however, committees often decide, by unanimous consent, to postpone examination
of a clause even if an amendment to the clause has been proposed. A committee
may also stand part of a bill, or a consecutive group of clauses en bloc. However, a motion to stand part of a clause,
or to postpone consideration of the only effective clause of a bill until the
subordinate clauses have been considered, is out of order. [300]
Debate on a motion to postpone consideration of a clause is
limited to the issue of postponement, and may not be extended to the merits of
the bill or the clause in question. Unless provision to the contrary is made in
the motion, clauses which were allowed to stand are considered after all the
other clauses of the bill have been disposed of. [301]
Amendments
Proposed during debate on a clause, an amendment attempts
to amend the text of the clause under consideration so that it will be more
acceptable, or to propose a new text to the committee. An amendment must be
relevant to the clause it is proposed to amend, [302]
and must
therefore relate to only one clause of the bill and not to two or more clauses
at once. [303]
However, for
practical reasons, the Chair may permit debate to range over several other
amendments which are interconnected or which raise different aspects of the
amendment under consideration. [304]
The purpose of
a sub-amendment is to alter an amendment to make it clearer. A sub-amendment
must relate to the amendment; it may not enlarge upon the scope of the amendment
by bringing up a matter that is foreign to it. [305]
A committee may
consider only two amendments at a time, that is, an amendment to a clause and a
sub-amendment to the amendment. Once an amendment has been proposed, it may be
withdrawn only at the request of the member who moved it and with the unanimous
consent of the members of the committee. [306]
Only
a member of the committee, or his or her designated substitute, [307]
is entitled to
move an amendment or vote on an amendment. [308]
The Chair of
the committee, like the Speaker of the House, may not move motions or vote,
except in the case of an equality of voices. [309]
It is generally
acknowledged that in the case of an equality of voices, a Chair should vote in
such a way as to permit the discussion to continue. A Chair is not required to
state reasons for his or her casting vote, or to explain it. [310]
However, when a
private bill is before a committee, the Chair may vote on any matter concerning
the bill and even has a casting vote if there is an equality of voices. [311]
Legislative drafting services are available to committee
members who wish to move amendments to a bill. Each amendment must be submitted
in writing to the Chair of the committee and may be moved in either official
language. Unlike the rules that apply to motions presented in the House, it is
not necessary for a motion moved in a committee to be seconded. [312]
Athough a member who intends to move amendments to a bill
does not have to provide notice, the normal practice is for the member to
communicate with the Chair and clerk of the committee in order to arrange for
the translation, compilation and circulation of the amendments to the other
members of the committee. [313]
If the Chair
has advance notice, he or she will then be able to ensure that a proposed
amendment is considered in the right place during consideration of the bill. To
ensure that clause by clause consideration proceeds in an orderly manner, a
committee may pass a motion setting a deadline for the acceptance of proposed
amendments. [314]
Order in Which Amendments Are Considered
Three
types of amendments may be moved during consideration of a clause of a
bill: [315]
- an
amendment to leave out certain words in order to insert or add others;
- an
amendment to leave out a word or words;
- an
amendment to insert or add other words, or to add new clauses or schedules to
the bill.
The
committee Chair calls the proposed amendments in the order in which they should
appear in the bill. However, when several amendments are moved to the same
clause, an amendment to leave out words and insert other words takes precedence
over an amendment to leave out words. The Chair may rule that an amendment is
not moved in the right place, or that it should be moved as a new
clause. [316]
Amendments should be proposed following the order of the
text to be amended. If part of a clause has already been amended by the
committee, a member may not move an amendment to an earlier part of the
clause. [317]
Admissibility of Amendments
Amendments and sub-amendments that are moved in committee
must comply with certain rules of admissibility. It is incumbent upon the Chair
to decide on the admissibility of amendments. An amendment must first be moved
by a member before the Chair rules as to whether it is admissible; the Chair
does not rule on hypothetical motions. When the Chair has to rule on the
admissibility of an amendment, he or she relies on the procedural rules that
have been established as precedents over the years and on the authorities in
parliamentary procedure and practice.
Unlike the situation in the House, where there is no appeal
from the Speaker’s decisions, [318]
the decision of
a Chair may be appealed to the committee by motion. [319]
However,
neither the decision of the Chair nor the motion to appeal may be debated. The
Chair’s decision may be reversed only by a majority vote. Consequently, if a
motion asking that the Chair’s decision be upheld results in a tie, the decision
is upheld. [320]
If,
during debate, the Chair determines that an amendment that was moved (but on
which no decision has yet been made) is out of order, the Chair so informs the
committee and halts consideration of the motion by the committee. [321]
• Rules
The
rules concerning the admissibility of amendments are essentially the same for a
bill referred to a committee before or after second reading, or for a bill being
considered at report stage. [322]
However, the
rules respecting the principle or scope of a bill do not apply to a bill
referred to a committee before second reading, since the principle of the bill
has not yet been adopted by the House.
The
rules governing the admissibility of amendments to the clauses of a bill may be
grouped according to the following characteristics and elements:
Principle and Scope: An amendment to a bill that was
referred to a committee after second reading is out
of order if it is beyond the scope and principle of the bill. [323]
(This rule does
not apply to a bill referred to a committee before second reading, since the principle of the bill has not yet been adopted by
the House.) As well, an amendment which is equivalent to a simple negative of
the bill or which reverses the principle of the bill as agreed to at second
reading [324]
is out of
order.
Relevance: An amendment to a bill must be relevant;
that is, it must always relate to the subject matter of the bill or the clause
under consideration. For a bill referred to a committee after second reading, an amendment is inadmissible if
it amends a statute that is not before the committee [325]
or a section of
the parent Act unless it is being specifically amended by a clause of the
bill. [326]
An amendment of
that nature would be admissible, however, in the case of a bill referred to a
committee before second reading, as long as it was
relevant. In that case, the principle and scope of the bill have not yet been
defined, and so a broader examination is possible.
Consistency: The committee’s decisions concerning a
bill must be consistent; they must be compatible with earlier decisions made by
the committee. An amendment is therefore out of order if it is contrary to or
inconsistent with the provisions of the bill that the committee has already
agreed to, if it is inconsistent with a decision that the committee has made
regarding a former amendment, [327]
or if it is
governed [328]
or dependent
on [329]
amendments
which have already been negatived.
Financial Initiative of the Crown: An amendment must
not offend the financial initiative of the Crown. An amendment is therefore
inadmissible if it imposes a charge on the Public Treasury, [330]
or if it
extends the objects or purposes or relaxes the conditions and qualifications as
expressed in the Royal Recommendation. [331]
An amendment is
also inadmissible if it goes beyond the scope of the Ways and Means motion on
which a bill is based, or if it creates a new charge on the people [332]
that is not
preceded by the adoption of a Ways and Means motion or not covered by the terms
of a Ways and Means motions already adopted. [333]
Form: An amendment is out of order if it simply
attempts to delete a clause, since in that case all that needs to be done is to
vote against the adoption of the clause in question. [334]
An amendment is
also out of order if it is moved at the wrong place in the bill, if it is
tendered in a spirit of mockery, or if it is vague or trifling. [335]
As well, an
amendment is out of order if it refers to, or is not intelligible without,
subsequent amendments or schedules of which notice has not been given, or if it
is otherwise incomplete. [336]
Lastly, an
amendment which would make a clause unintelligible or ungrammatical is also out
of order. [337]
Interpretation Clause: The interpretation clause of a
bill is not the place to propose a substantive amendment to a bill. [338]
In addition, an
amendment to the interpretation clause of a bill that was referred to a
committee after second reading must always relate to
the bill and not go beyond the scope of or be contrary to the principle of the
bill. This rule does not apply to a bill that has been referred to a committee
before second reading. [339]
Marginal Notes and Headings: Because the marginal notes
attached to each of the clauses of a bill are not part of the text, they cannot
be amended, nor can the headings of the various parts of a bill be
amended. [340]
Coming into Force Clause: An amendment to alter the
coming into force clause of a bill, making it conditional, is out of
order. [341]
This type of
amendment goes beyond the scope of the bill and is an attempt to introduce a new
question into the bill.
Schedules: An amendment may generally be moved to a
schedule, and it is also possible to propose new schedules. [342]
However, there
is an exception in the case of a bill to give effect to an agreement (a treaty
or convention) that is within the prerogatives of the Crown. If the schedule to
such a bill contains the Agreement itself, the schedule cannot be amended.
However, amendments may be proposed to the clauses of the bill, as long as they
do not affect the wording of the Agreement in the schedule, and even if the
consequence of the amendments is to withhold legislative effect from the
Agreement or its parts. [343]
Preamble: In the case of a bill that has been referred
to a committee after second reading, a substantive
amendment to the preamble is admissible only if it is rendered necessary by
amendments made to the bill. [344]
In addition, an
amendment to the preamble is in order when the purpose is to clarify it or make
the English and French uniform. [345]
If the bill
does not contain a preamble, it is not competent for the committee to introduce
one. [346]
In the case of
a bill that has been referred to a committee before
second reading, if there is not already a preamble, one may be presented as long
as the proposal is relevant to the bill; in addition, substantive amendments to
an existing preamble are admissible. [347]
The Enacting Formula: The enacting formula is not
submitted for the approval of the committee or the House and therefore may not
be debated or amended. [348]
The Title: The long title is postponed until
consideration of the bill is concluded. [349]
The title may
be amended only if the bill has been so altered as to necessitate such an
amendment. [350]
Any change made
to the title by a committee becomes effective when the bill is adopted by the
House at report stage. [351]
Putting the Question on Amendments
When
an amendment and a sub-amendment have been moved in committee, the Chair of the
committee puts the question first on the sub-amendment. If it is negatived, the
question is then put on the amendment; if the sub-amendment is carried, the
question is then put on the amendment, as amended. Sometimes, with unanimous
consent, the committee may arrange a group of amendments to be disposed of as if
each amendment had been moved and voted on separately. [352]
Adoption of the Bill
Once
the committee has concluded its clause by clause consideration, the bill in its
entirety, with or without amendments, is submitted for the approval of the
committee.
Leave to Report to the House
After
the bill is adopted, the Chair asks the committee for leave to report the bill
to the House. The standard formula is as follows: “Shall I report the bill (as
amended) to the House?” If the committee agrees, the Chair reports the bill to
the House as soon as possible. However, if a committee does not agree to report
the bill immediately, it must do so later.
Reprinting of the Bill
If
the number of amendments made by the committee necessitates it, the committee
generally orders that the bill be reprinted for the use of the Members who will
have to consult it at report stage. [353]
Report to the House
The
committee is bound by its Order of Reference — the bill — and may only report the
bill with or without amendment to the House. [354]
Consequently,
the committee may not include substantive recommendations in its
report. [355]
On several
occasions in the House, the Speaker has ruled a report containing
recommendations [356]
or a motion to
adopt a report containing recommendations out of order. [357]
In 1973,
Speaker Lamoureux ruled that “… there is no authority to support the
contention that a committee of the House when considering a bill should report
anything to the House except the bill itself”. [358]
On
the other hand, after a bill has been reported, there is nothing to prevent a
standing committee, under its permanent mandate in the Standing Orders, from
presenting another report in which it sets out substantive recommendations
concerning that bill. [359]
Obligation to Report
Every
committee is bound to report to the House on a bill and the amendments which
have been made to the bill, [360]
and every bill
reported from any committee, whether amended or not, must be received by the
House. [361]
However, a
committee has no authority to submit two reports to the House on one bill, as
the effect of this would be to divide the bill. [362]
A committee may
negative all the clauses, the title, and even reject the bill. The committee
then reports the bill with amendments, although the only thing which may be left
is the number. [363]
Unless an order of the House [364]
or a provision
in the Standing Orders [365]
imposes a
deadline by which a committee must report a bill to the House, it is up to the
committee to decide when it reports the bill. [366]
The House
always has the right to modify the terms of the committal of a bill to a
committee. If a Minister or a Member believes that a committee to which a bill
has been referred is defying the authority of the House by refusing to consider
the bill or report it to the House, he or she may choose to bring this fact to
the attention of the House and propose that the committee be given a time limit.
This may be done by placing on notice a motion to require the committee to
report by a certain date. The notice may, where appropriate, be placed under
“Government Orders” or “Private Members’ Business”. The Speaker may also allow
such a motion to be placed under the rubric “Motions” and be dealt with under
Routine Proceedings, on the condition that it is strictly limited to the terms
of the committal of a bill to the committee and is not an attempt to interfere
with the committee’s proceedings. In so doing, the House would have an
opportunity to determine whether the bill should remain in committee or be
reported back. [367]
• Private Member’s Public Bill
A
committee to which a private Member’s public bill has been referred must, within
60 sitting days from the date of the bill’s reference to the committee, either
report the bill to the House with or without amendment or present a report
containing a recommendation not to proceed further with the bill [368]
or requesting a
single extension of 30 sitting days to consider the bill, giving the reasons
therefor. If no bill or report is presented by the end of the 60 sitting days,
or the 30 sitting day extension if approved by the House, the bill is deemed to
have been reported without amendment. [369]
• Abandonment of a Bill
On a
number of occasions, a committee has presented a report to the House either
recommending that a bill be withdrawn [370]
or informing
the House that the committee has agreed that the bill not be further proceeded
with. [371]
As well, a
committee will occasionally decide not to proceed with the consideration of a
bill, without reporting it to the House. [372]
In
those circumstances, the final decision as to the fate of a bill lies with the
House as a whole, and not solely with the committee, whose function is to carry
out the mandate it was given by the House and report the bill. The House alone
has the power to prevent the adoption of a bill or to order its
withdrawal. [373]
While reminding
the House that the Chair does not become involved in matters within a committee,
Speaker Fraser pointed out that there is nothing to prevent any Member or
Minister from placing on notice a motion to have the House exercise its
authority by ordering the committee to resume its consideration of the bill and
report it to the House. [374]
Report Containing Inadmissible Amendments
Since
a committee may appeal the decision of its Chair [375]
and reverse
that decision, it may happen that a committee will report a bill with amendments
that were initially ruled by the Chairman to be out of order. The admissibility
of those amendments, and of any other amendments made by a committee, may
therefore be challenged on procedural grounds when the House resumes its
consideration of the bill at report stage. [376]
The
admissibility of the amendments is then considered by the Speaker of the House,
whether in response to a point of order [377]
or on his or
her own initiative. [378]
In a
1992 decision, Speaker Fraser ruled: “When a bill is referred to a standing or
legislative committee of the House, that committee is only empowered to adopt,
amend or negative the clauses found in that piece of legislation and to report
the bill to the House with or without amendments. The committee is restricted in
its examination in a number of ways. It cannot infringe on the financial
initiative of the Crown, it cannot go beyond the scope of the bill as passed at
second reading, and it cannot reach back to the parent act to make further
amendments not contemplated in the bill no matter how tempting this may
be.” [379]
Presentation of Report
The
report of a committee which has completed its examination of a bill is presented
to the House by the Chairman of the committee, [380]
during Routine
Proceedings, when the rubric “Presenting Reports from Committees” is
called. [381]
No debate is
permitted at that point.
Report Stage
After
a bill is examined in committee, it is considered by the House. At this stage
(called “report stage”), Members — particularly those who were not on the
committee — may propose amendments, after giving written notice, to the text of
the bill as it was presented by the committee. Those motions are then
debated.
Historical Perspective
At
Confederation, the Standing Orders of the House already laid down the procedure
to be followed for the consideration of bills in committee and the presentation
of reports to the House. Although bills could be referred to a standing or
special committee, they then had to be re-examined by a Committee of the
Whole. [382]
The amendments
made in committee had to be communicated to the House, which received them
immediately. In addition, the Standing Orders provided that if bills were
reported with amendments by a Committee of the Whole, they could be debated and
amended before the House ordered third reading. If bills were not amended during
consideration in a Committee of the Whole, third reading would proceed forthwith
at a time to be set by the House.
Over
the years, it was oberved that amendments were being proposed only in
committee, and that when they were presented to the House, a motion to concur in
the amendments was made and the question on the motion called
immediately. [383]
In 1955, the
House amended its Standing Orders to reflect this practice. It was agreed that
amendments had to be presented to the House and that the motion for concurrence
in the amendments had to be disposed of forthwith before the bill was ordered
for third reading at the next sitting of the House. [384]
The effect of
these amendments to the Standing Orders was to eliminate what then constituted
the equivalent of report stage. In 1968, the House performed a thorough revision
of its legislative process. After that revision, all bills, except for those
based on Supply or Ways and Means motions, were to be referred to standing or
special committees, and would not be reconsidered by a Committee of the Whole
House. In addition, the House revived report stage and gave the Speaker the
power to select and group amendments. It also adopted provisions relating to
notice of amendments and the length of speeches at this stage of the legislative
process. [385]
In
recommending that report stage be revived, the 1968 Special Committee on
Procedure considered that stage to be essential in order to provide all Members
of the House, and not merely members of the committee, with an opportunity to
express their views on the bills under consideration and to propose amendments,
where appropriate. However, the intent of the Committee was not for this stage
to become a repetition of committee stage. Unlike committee stage where the bill
is considered clause by clause, there was not to be any debate at report stage
unless notices of amendment were given, and then debate would have to be
strictly relevant to those proposed amendments.
The
provisions relating to report stage have been amended slightly since 1968. The
House has made changes in respect of the length of speeches, [386]
and clarified
the purpose of report stage and the factors by which the Speaker is to be guided
in selecting and grouping amendments. [387]
Other changes
were also made in 1994 to reflect the new procedure which allows a Minister to
propose that a government bill be referred to a committee before second
reading. [388]
Notice of Amendment
In
order that a motion to amend a bill [389]
may be
considered at report stage, notice must be given in writing [390]
at least one
sitting day prior to the commencement of report stage, if the bill was referred
to committee after second reading, [391]
and two sitting
days before, if the bill was referred to committee before second
reading. [392]
Notice must be
received by the Clerk of the House before 6:00 p.m. Monday to Thursday, and
before 2:00 p.m. on Friday, to appear on the Notice
Paper for the next sitting day. [393]
During an
adjournment period, the deadline for giving notice is 6:00 p.m. on the Thursday
before the House resumes sitting. [394]
No notice may
be given on the day on which consideration of report stage of a bill commences,
or on the days following. [395]
Amendment as to Form Only
The
Standing Orders provide one exception to the notice requirements. A Minister may
propose an amendment without notice, if the amendment is in relation only to the
form of a government bill. [396]
In that case,
debate must relate solely to the amendment. The purpose of this rule is to
facilitate the incorporation into a bill of amendments that are made necessary
by the acceptance of other amendments. It is then up to the Chair to determine
whether the amendment is of a strictly consequential nature flowing from the
acceptance of another amendment, or if it would change the intent of the
bill.
Notice of Royal Recommendation
In
the case of an amendment containing financial implications which requires a
Royal Recommendation, [397]
the Standing
Orders provide that notice of the Royal Recommendation must be given no later
than the sitting day before report stage is to commence. The notice must be
printed on the Notice Paper along with the amendment
to which it pertains. [398]
Admissibility of Motions in Amendment
It is
up to the Speaker to decide what amendments will be considered at report stage.
The Speaker does not rule on whether the purport of the amendment or its
substance is worthy of debate. The Speaker decides only whether the amendment is
procedurally acceptable within the framework of the rules established for the
admissibility of amendments presented at report stage. [399]
At
report stage, a bill is examined as a whole and not clause by clause as is the
case at committee stage. Generally, the rules relating to the admissibility of
amendments presented at committee stage also apply to motions in amendment at
report stage. [400]
However,
certain rules apply only to report stage. For instance, since 1968 when the
rules relating to report stage came into force, a motion in amendment to delete
a clause from a bill has always been considered by the Chair to be in order,
even if such a motion would alter or go against the principle of the bill as
approved at second reading; [401]
and a motion to
amend a number of clauses of a bill is out of order. [402]
At
report stage, the Speaker has ruled out of order a motion in amendment that
offended the financial initiative of the Crown; [403]
that proposed
to alter an agreement that was within the prerogatives of the Crown; [404]
and that
proposed to alter the long title of a bill, when no substantial changes had been
made to the bill that would have necessitated a change in the title. [405]
The
Chair has also ruled out of order motions in amendment to a bill that was
referred to a committee after second reading,
although the same motions in amendment would have been admissible if the bill
had been referred to a committee before second
reading. For example, the Speaker has ruled out of order a motion in amendment
that went beyond the scope of the bill or the clause in question; [406]
that was
contrary to the principle of the bill as adopted at second reading; [407]
that proposed
to change the interpretation clause by making a substantive amendment which
exceeded the scope of the bill; [408]
that would
amend a statute not contemplated by the bill; [409]
that would
amend, not a clause of the bill amending the parent Act, but a section of the
parent Act itself; [410]
and that was
equivalent to a simple negative of the bill. [411]
The
Chair has also ruled that because report stage is not a reading stage, motions
in amendment cannot be moved in the form of reasoned amendments, as such
amendments can only be moved on second and third reading of a bill. [412]
Since
motions in amendment at report stage are open to debate, they fall into the
category of substantive motions that are subject to amendment and
sub-amendment. [413]
An amendment to
a report stage motion must be strictly relevant to that motion [414]
and the debate
thereon is limited to the amendment itself. An amendment with the same objective
as a motion already at report stage has been ruled out of order, because it was
in reality a new substantive motion for which notice should have been given
before report stage commenced. [415]
Power of the Speaker to Select Amendments
In
1968, fearing that Members would take advantage of report stage to move similar
amendments of little importance or which were dilatory in nature, [416]
the Special
Committee on Procedure recommended in its report that a rule be adopted to
permit the Speaker “to select and combine the amendments of which notice had
been given”. [417]
Such a rule was
then adopted. [418]
In
1985, the Special Committee on the Reform of the House of Commons (McGrath
Committee) deplored the fact that “[a]lthough successive Speakers since 1968
have used the power under the Standing Order to combine amendments, they have
never used the power to select”. [419]
The Committee
specifically recommended that the Speaker use the power to select motions in
amendment at report stage. In 1986, the House decided to add a note to that
effect to the Standing Order in question. [420]
Under
the Standing Order, the Speaker thus has the power to select or group motions in
amendment to be proposed at report stage. [421]
The process of
selecting and grouping motions in amendment has been refined since the 1970s. In
the early years of the new rule, Speaker Lamoureux regularly consulted the House
before making a final decision as to the admissibility and grouping of
amendments. [422]
Over the years,
however, Speakers started to consult the House only when they were experiencing
difficulties as to whether an amendment was in order. As Speaker Fraser
explained in a ruling, the Chair followed a review process whereby motions in
amendment were the subject of very extensive discussion, in some cases, between
the Member filing the motion and the Clerk’s staff. [423]
Until 1994, all
motions in amendment proposed by Members appeared on the Notice Paper, even the ones that were out of order. In
June 1994, the Standing Orders were changed to provide that only those motions
found to be in order by the Speaker were to appear on the Notice Paper. [424]
When a motion
is found to be out of order, the Member is informed of the reasons for the
decision by letter.
Normally, the Speaker will not select a motion in amendment
previously ruled out of order in committee, unless the reason for it being ruled
out of order was that it required a Royal Recommendation. [425]
As well, the
Speaker should only select motions in amendment that were not or could not be
presented in committee. [426]
A motion
previously defeated in committee will only be selected if the Speaker judges it
to be of such significance as to warrant a further consideration at report
stage. [427]
For the purpose
of debate, the Speaker will also group motions that have the same intent and are
interrelated. In so doing, the Speaker will consider whether individual Members
will be able to express their concerns during the debate on another
motion.
On
the other hand, the Speaker may, if he or she thinks fit, call upon any Member
who has given notice of an amendment to give such explanation of the subject of
the amendment as may enable the Speaker to form a judgement upon it. When an
amendment is selected that has been submitted by more than one Member, the
Speaker, after consultation, will designate which Member will propose it
(normally, the Member who first gave notice of the motion). [428]
The
Speaker’s decision on the grouping of motions in amendment at report stage
addresses two matters: the grouping for debate and the voting
arrangements.
Motions in amendment are grouped for debate according to
two factors: the content and the place where they are to be inserted in the
bill. Motions are grouped according to content if they could form the subject of
a single debate; if, once adopted, they would have the same effect in different
places of the bill; or if they relate to the same provision or similar
provisions of the bill. Motions in amendment are combined according to the place
where they are to be inserted in the bill when they relate to the same line (or
lines). These motions in amendment will then be part of a single scheme for
voting purposes.
When
the Speaker selects and groups motions in amendment, he or she also decides on
how they will be grouped for voting, that is, the Speaker determines the order
in which the motions in amendment will be called and the consequences of one
vote on the others. The purpose of the voting scheme is to avoid the House
having to vote twice on the same issue.
The
Speaker delivers his or her decision regarding the grouping of motions in
amendment after the order for the consideration of report stage of the bill has
been read. The Speaker informs the House of the motions in amendment that he or
she has selected and grouped for debate as well as the voting
arrangements [429]
and, where
applicable, of the motions in amendment that have not been selected, stating the
reasons. [430]
Debate
When
the Order of the Day for the consideration of report stage is called, the House
commences its consideration of any amendment of which notice has been given, and
each amendment is open to debate and amendment. [431]
However, if no
notice of amendment has been given at report stage, no debate is held. [432]
The
report stage of any bill that has already been adopted at second reading cannot
be taken into consideration prior to the second sitting day following the
presentation of the committee’s report. [433]
The report
stage of a bill that has not yet been adopted at second reading cannot be taken
into consideration prior to the third sitting day following the presentation of
the report. [434]
The minimum
number of sitting days between the presentation of the committee’s report and
commencement of debate at report stage must be strictly observed. [435]
After
ruling on the grouping of motions for debate, the Chair reads the motions in the
first group (or the motion in that group, if there is only one). The motions
that have been moved and seconded are then debated. Once a motion has been
moved, it may be withdrawn only with unanimous consent. [436]
When
the Member who gave notice of a motion in amendment is absent, the motion may
not be debated unless it is moved by another Member with the unanimous consent
of the House. [437]
When notice of
a motion in amendment is given by the government, it may be moved by any
Minister in the absence of the Minister responsible.
During debate at this stage, no Member may speak more than
once or longer than 10 minutes on any motion in amendment or group of
motions. [438]
Unlike second
reading and third reading stages, Members’ speeches are not followed by a
questions and comments period. [439]
Of course,
debate at report stage is subject to the general rules of debate, such as the
rule of relevance. [440]
Deferral of Recorded Division
When
a recorded division is demanded on any motion in amendment proposed during
report stage of a bill, the Speaker may defer the calling in of the Members for
the vote until some or all subsequent motions in amendment to the bill have been
debated. In practice, the Speaker defers all recorded divisions that are
demanded until the consideration of report stage has been completed. A recorded
division, or divisions, is deferred in this manner from sitting to
sitting. [441]
In cases where
there are an unusually large number of motions in amendment for consideration at
report stage, the Speaker may, after consulting with the representatives of the
parties, direct that deferred divisions be held before all motions in amendment
have been taken into consideration. [442]
Concurrence at Report Stage
The
report stage of a bill that has not yet been read a second time is an integral
part of the second reading stage of the bill. [443]
At the end of
report stage, a motion “That the bill, as amended, be concurred in at report
stage and be read a second time” or “That the bill
be concurred in at report stage and read a second time” is moved, the question
is put on the motion, and the House disposes of it forthwith, without amendment
or debate. [444]
At
the end of report stage of a bill that has already been read a second time, the
motion for concurrence at report stage is also put forthwith, without amendment
or debate. The wording of the concurrence motion will vary, depending on whether
the original bill has been amended or not, and depending on the stage at which
the amendments were made. If, for example, a bill was not amended in committee
or at report stage, the motion is as follows: “That
the bill be concurred in at report stage.” However, if a bill was amended in
committee, but not at report stage, the motion will read as follows: “That the
bill, as amended, be concurred in at report stage.” When the bill was amended at report stage, but not in committee, the motion
is as follows: “That the bill be concurred in at report stage, with
amendments”. Lastly, if the bill was amended in
committee and at report stage, the following motion is made: “That the bill, as
amended, be concurred in at report stage, with further amendments”.
If no
motion in amendment is moved at report stage of a bill that has already been
read a second time, no debate may take place and consideration of report stage
becomes a mere formality preceding third reading. [445]
A bill that is
reported from a Committee of the Whole, with or without amendments, may not be
debated or amended at report stage. [446]
The House must
dispose of the bill at report stage as soon as it is received from a Committee
of the Whole. [447]
Third Reading (and Passage)
Third
reading is the final stage that a bill must pass in the House of Commons. It is
at this point that Members must decide whether the bill should be adopted, and
ultimately become law. Although third reading is often regarded as a mere
formality, it is still a decisive stage in the legislative process. In the case
of a highly controversial bill, it could be a most crucial debating stage for
Members. [448]
Third
reading and passage of a bill are moved in the same motion. They may take place
in the same sitting as report stage if no amendment has been proposed at that
stage or if the bill has been reported from a Committee of the Whole, with or
without amendment. [449]
When debate has
taken place on a bill at the report stage, it may not be presented for third
reading and passage before the next sitting of the House. [450]
As well, when a
bill has been considered by a committee before second reading and the report and
second reading stages have then been combined, it may not proceed to third
reading and passage until the next sitting of the House. [451]
Debate on third reading commences when the Order of the Day
is read for third reading and the Minister or Member, as the case may be,
moves: “That the bill be now
read a third time and do pass.” [452]
The rules
relating to the length of speeches during debate are the same as the rules
governing the length of speeches and questions and comments at second
reading. [453]
Debate at this stage of the legislative process focusses on
the final form of the bill. The amendments that are admissible at this stage are
exactly the same as those that were admissible at second reading stage. [454]
It is in order
to propose an amendment for a three-or six-month hoist, [455]
as well as a
reasoned amendment. [456]
However, at
third reading stage, reasoned amendments must deal strictly with the bill and
not be contrary to the principle of the bill as adopted at second
reading. [457]
An
amendment to refer the subject matter of a bill to a committee at second reading
stage becomes, at third reading, an amendment to recommit the bill to a
committee with instructions to reconsider certain clauses for a specific
purpose. [458]
The purpose of
such an amendment may be to enable the committee to add a new clause, to
reconsider a specific clause of the bill or to reconsider previous
amendments. [459]
However, an
amendment to recommit a bill should not seek to give a mandatory instruction to
a committee. [460]
In addition, an
amendment to recommit a bill to a committee other than the committee which
previously considered it has been ruled out of order by the Chair. [461]
If the
amendment to recommit a bill back to the committee is carried, the committee may
consider only the part of the bill that is specified in the order of
reference.
When
the motion for third reading has been carried, the Clerk of the House certifies
that the bill has passed, with the date, at the foot of the bill. [462]
The bill is
then sent to the Senate for approval. Defeat of a motion for third reading will
result in the withdrawal of the bill. [463]
Consideration and Passage by the Senate
Once
the House of Commons has passed a bill, a message is sent to the Senate asking
it to pass the bill as well. [464]
When the Senate
considers a bill, it follows a legislative process that is very similar to the
one in the House of Commons. When the Senate has passed a bill, it so informs
the House of Commons by message.
Because most government bills originate in the House of
Commons, the Senate is sometimes asked to expedite its consideration of a bill.
The Senate Rules provide for a procedure known as pre-study, which involves
referring the subject matter of a bill that has been introduced in the House of
Commons, but has not yet been adopted at first reading in the Senate, to a
standing committee. [465]
In this way,
the Senate may consider the bill and form its opinion even before the bill is
sent to it by the House of Commons. Then, when the bill is received, the Senate
is in a position to adopt or amend it in a very short time.
Passage of Senate Amendments (if any) by the House of Commons
When
the Senate adopts a bill without amendment, a message is sent to the House of
Commons to inform it that the bill has been passed [466]
and Royal
Assent is normally given very shortly afterwards, or in the following few days.
The bill itself is not sent back to the House, unless it is a Supply
bill. [467]
However, when
the Senate amends the bill, it informs the House of the amendments in the
message it sends to the House, [468]
and sends the
bill back to the House. The Senate sometimes sends the House messages containing
the observations or recommendations of the Senate committee that examined the
bill. [469]
Messages from
the Senate are printed in the Journals when they are
received by the House.
When
the House receives amendments to a bill from the Senate, the amendments are then
submitted to the House for consideration. It is not for the Speaker of the House
of Commons to rule as to the procedural regularity of proceedings in the Senate
and of the amendments it makes to bills. [470]
Rather, it is
for the House itself to decide whether it accepts or rejects the amendments
proposed by the Senate, and if the House so desires it may state the reasons for
rejecting or amending them. A motion for the consideration of Senate amendments
requires 24 hours’ written notice. [471]
The sponsor of
a bill may use such a motion to move that the House concur in, [472]
amend or
reject [473]
the amendments
made by the Senate. The motion may at the same time reject certain amendments
made by the Senate, and concur in or amend others. The motion must relate
exclusively to the Senate amendments, and not to other provisions of the bill
that are not contemplated by the amendments. The House may want to reject the
Senate amendments for a variety of reasons, for instance, because it believes
that they are in contradiction to the principle of the bill [474]
or infringe the
financial initiative of the Crown and the House of Commons. [475]
The
motion will appear on the Notice Paper under the
heading “Motions Respecting Senate Amendments to Bills”. The motion will be
considered during Government Orders, if the bill in question is a government
bill, or during Private Members’ Business, if it is a private Member’s
bill.
The
Senate makes amendments to bills fairly often, and the House is normally quite
disposed to accept them, since the amendments generally involve corrections to
drafting errors or improvements to administrative aspects. [476]
When debate
takes place on Senate amendments, Members who speak must confine themselves to
the amendments being considered and may not address other aspects of the bill,
or the bill as a whole. [477]
The motion for
the consideration of Senate amendments itself is open to amendment and
sub-amendment during debate. [478]
With the
exception of the Prime Minister and Leader of the Opposition, no Member may
speak for more than 20 minutes. [479]
Following each
20-minute speech, a period not exceeding 10 minutes is made available for
questions and comments. Motions for time allocation [480]
and for
closure [481]
may be moved by
the government to limit or close debate.
When
the House agrees to the Senate amendments, a message to that effect is sent to
the Senate and the bill is sent back to it while awaiting Royal Assent. If the
House amends or rejects the Senate amendments, it so acquaints the Senate by
message as well. The Senate may then reconsider its amendments, having regard to
the message from the House. It may decide to accept the decision of the House,
to reject that decision and insist that its amendments be maintained, or to
amend what the House has proposed. Regardless of what the Senate decides, it
sends another message to the House to inform it of the decision. Communication
between the two Houses goes on in this way until they ultimately agree on a
text. If it is impossible for an agreement to be reached by exchanging messages,
the House that has possession of the bill may ask that a conference be
held.
Conference Between the Houses
When
a disagreement arises between the House of Commons and the Senate as to the
amendments to be made to a bill, there are two possible ways of proceeding: the
disagreement may be communicated in a message (this is normally the first step
taken), or an attempt may be made to resolve it by holding a conference.
Although this practice has fallen into disuse, [482]
a conference
may be requested by either of the two Houses in the following cases: to
communicate a resolution or an address to which the concurrence of the other
House is desired; to discuss the privileges of Parliament; to discuss any matter
that warrants the use of this procedure; to require or to communicate statements
of facts on which bills have been passed by either House; to offer reasons for
disagreeing to, or insisting on, amendments to a bill. [483]
Either of the two Houses may request that a conference be
held, as long as it is in possession of the bill or other matter that is to be
the subject of the conference. [484]
The Standing
Orders of the House stipulate that the House is required to prepare and agree to
the reasons to be given before a message is sent to the Senate requesting that a
conference be held. [485]
However, the
terms and conditions regarding consent to and preparation for the holding of the
conference, and the course of proceedings at conferences, are governed by custom
and tradition rather than by the Standing Orders. [486]
Until
1906, the process relating to the holding of conferences was rather complex. The
role of representatives at the conference was limited to communicating the
reasons to the representatives of the other House. There could be no discussion.
In October 1903, three conferences were held, only one of which was a free
conference, to resolve a dispute regarding amendments that the Senate wished to
make to a bill from the House. [487]
The process was
found to be so complex that new rules were incorporated into the Standing Orders
in 1906, [488]
following the
passage of a joint resolution of the two Houses the preceding year. [489]
The purpose of
that amendment to the Standing Orders was to make conferences “free” [490]
to facilitate
agreement. The representatives (who are called managers) were thereby given the
freedom to talk and negotiate as they saw fit. [491]
Although the two Houss frequently transmit messages to
each other, they have rarely held conferences. No conference has taken place
since 1947, and there have been only 16 since 1903. [492]
Of these 16
conferences, 13 were held after the provisions relating to the holding of free
conferences came into effect in 1906. [493]
All of these
“free” conferences were held at the request of the House of Commons, and they
were all held to resolve disputes in respect of bills.
Over
the years, the exchange of messages and the appearance of Ministers before House
and Senate committees have considerably reduced the need to use this
procedure. [494]
However, if the
two Houses were to reach a deadlock because of a disagreement respecting
amendments to be made to a bill, a Member, usually the Member responsible for
the bill, could propose that a message be sent to the Senate asking it to
participate in a free conference on the amendment or amendments in
dispute. [495]
Once the
message was approved and sent to the Senate, the Senate in turn would send a
message to the House to inform the House of its response. If the Senate agreed
to participate in the conference, a message would also be sent to the House of
Commons to inform it of the time and place chosen for the conference, and of the
names of the Senators (who are called managers) who would be acting for the
Senate. A similar motion would be moved in the House of Commons to designate the
representatives of the House (who normally include the Member responsible for
the bill) [496]
and order that
a message to this effect be sent to the Senate.
At
the time agreed upon, the managers would meet to try to get the two Houses out
of the deadlock. The records of proceedings show that in the event that the
House was sitting at the time chosen for the conference, the Speaker would rise
and announce that the time had come to hold the conference, and the Clerk would
give the names of the managers who would then go to the Senate. [497]
When the House
managers arrived in the Senate, the Speaker of the Senate would announce the
names of the Senate managers, and they would leave the Senate chamber. Since no
official report or minutes were prepared for those conferences, there is very
little information available as to how free conferences were held in the past
and on the other people who attended them in addition to the managers from the
two Houses.
A
free conference means that the discussion continues until an agreement is
reached, but there are three possible outcomes: the conference fails; a
compromise is reached; the House accepts the Senate amendments, or the Senate
accepts the House amendments, as the case may be. If the conference fails, the
matter is closed and the bill simply remains on the Order Paper where it dies at the end of the
session. [498]
During that
time, no new bill may be introduced in the House in respect of the same subject
matter and containing similar provisions. If a compromise is reached, one of the
representatives of the House submits a report to the Members concerning the
conference and moves that the report be approved and a message be sent to the
Senate so informing the Senate. Lastly, if the House decides not to press for
its amendments to be approved, it accepts the Senate amendments and sends a
message to the Senate to so notify it.
Royal Assent
Royal
Assent brings all three constituent elements of Parliament together (the Crown,
the Senate and the House of Commons). Royal Assent, which is an integral part of
the legislative process, is the stage that a bill must complete before
officially becoming an Act of Parliament. A version of the bill that is
identical to the version passed by the two Houses is approved by a
representative of the Crown and is given “the complement and perfection of a
law”. [499]
This
essentially ceremonial procedure takes place in the presence of Members and
Senators, after the Members have been summoned by the Usher of the Black Rod to
go to the Senate to attend the Royal Assent ceremony.
The
origins of Royal Assent go back to the time of Henry VI (1422-61;
1470-1). [500]
Under his
reign, it became practice to introduce bills in both Houses in the form of
complete statutes, and not in the form of petitions as had been the case since
the early days of the constitution of the British Parliament. Royal Assent was
given by the Sovereign in person until 1541; in that year, to spare King Henry
VIII the indignity of having to give Royal Assent to the bill for the execution
of his wife, Katharine Howard, the task was assigned for the first time to a
royal commission. [501]
It then became
common practice to appoint Lords Commissioners with responsibility for giving
Royal Assent on behalf of the Sovereign. The last time that the Monarch granted
Royal Assent in person in Great Britain was on August 12, 1854, under the reign
of Victoria. [502]
In 1967, the
British Parliament passed the Royal Assent Act which
now allows a bill to acquire the force of law on simple report of Royal Assent
by the Speakers of the two Houses. [503]
This procedure
eliminates the need for holding a ceremony. [504]
In
the Canadian House of Commons, the ceremony of Royal Assent has sometimes been
criticized, [505]
but Parliament
has remained faithful to the conventions of Royal Assent, the rules of which
come down directly from the rules that were in effect in Great Britain at the
time of Confederation. [506]
Neither the
Standing Orders of the House nor the Constitution
Act specifically mention the precise procedure for giving Royal Assent.
Initially, the practice was for Royal Assent to be deferred to the end of a
parliamentary session, when the Governor General was present for the prorogation
of Parliament. This practice gradually disappeared over time, and today Royal
Assent is given to bills at any time during a session. [507]
As well, during
adjournments of the House, the Speaker may, at the request of the government,
give notice that the House will meet at an earlier time for the purposes of
Royal Assent; being convened “for those purposes only”, the House cannot proceed
to any other business. [508]
When
the House is sitting and there are bills that require Royal Assent, the House
may suspend its proceedings until a specific time, [509]
until the call
of the Chair [510]
or until the
call of the bell. [511]
In the absence
of any special arrangements to extend the sitting, the proceedings are
interrupted at the normal hour of adjournment and the House stands adjourned
until the next sitting day. [512]
If the ceremony
is scheduled for the same time as other items of business, a decision must be
made as to which matter will take precedence. [513]
In
the Canadian Parliament, the Governor General will normally give Royal Assent in
person, in the case of laws of great importance and when Parliament is to be
prorogued. At other times, it is given by a deputy: the Chief Justice of the
Supreme Court of Canada or one of the other judges of the Supreme
Court.
The Ceremony
When
a bill has been passed by both Houses of Parliament and is ready to receive
Royal Assent, a special copy is printed on parchment. The Clerk of the House and
the Clerk of the Senate both sign the back of it. The Governor General’s
residence then informs the Speaker of the House that the Governor General or the
Deputy Governor will be going to the Senate to give Royal Assent to bills. The
Speaker of the House then relays the message to the Members. [514]
At
the appointed time, the Usher of the Black Rod of the Senate informs the House
that the Governor General or the Deputy Governor has asked them to proceed to
the Senate. Before entering the Commons chamber, he or she knocks three times on
the door. [515]
Debate that is
then taking place is interrupted by the Speaker. [516]
Quorum is not
required to receive the message from the Usher of the Black Rod. [517]
The
Sergeant-at-Arms announces to the Speaker that the messenger from the Senate
wishes to enter. The Speaker replies: “Admit the messenger”, after which the
doors are opened to allow the Usher of the Black Rod to enter. Because the House
cannot always arrange for its order of business to coincide with the time when
Royal Assent is to be given, it sometimes has to make the messenger wait. This
situation has prompted considerable discussion regarding the use of the House’s
time, particularly in respect of the appropriateness of moving on to other
business while the House is waiting for the Senate messenger. [518]
When
the Usher of the Black Rod has entered and bowed three times, he or she goes
forward to the Table and acquaints the Speaker that it is the desire of the
Governor General or his or her Deputy that the House attend him or her
immediately in the Senate. [519]
The Usher of
the Black Rod then leads the House to the Senate, followed, in order, by the
Sergeant-at-Arms bearing the Mace, the Speaker, the Clerk and the Table
Officers, and the Members.
While
the Speaker and the Members gather at the Bar of the Senate, the Usher of the
Black Rod moves towards the far end of the Senate Chamber. He or she bows to the
Governor General or the Deputy Governor and says: “Order!” The Speaker of the House then raises his or her
hat and bows to the Governor General (or the Deputy Governor). A clerk who is at
the Table in the Senate then reads the titles of the bills that are to receive
Royal Assent, in English and French, with the exception of Supply bills. The
Clerk of the Senate displays the bills and states: “In Her Majesty’s name,
His/Her Excellency the Governor General (the Honourable the Deputy of the
Governor General) doth assent to these bills.”
If
there is a Supply bill to be assented to, the Speaker of the House of Commons
brings it into the Senate Chamber and reads a message, in both official
languages, asking that it be given Royal Assent, using the following
formula:
May it Please Your Excellency (Honour [520]):
The Commons of Canada have voted supplies to enable the
Government to defray certain expenses of the public service. In the name of the
Commons, I present to Your Excellency (Honour) the following Bill: (title), to
which Bill I humbly request Your Excellency’s (Honour’s) Assent.
A
Senate clerk at the Table goes to the Bar, where the Speaker of the House of
Commons gives the clerk the Supply bill, and then returns to the Table. After
reading the title of the Supply bill in both official languages, the Clerk of
the Senate reads the Royal Assent, using the following formula:
In Her Majesty’s name, His/Her Excellency the Governor
General (the Honourable the Deputy to the Governor General) thanks her loyal
subjects, accepts their benevolence and assents to this Bill.
The
representative of the Crown consents to the enactment of all of the bills by
nodding his or her head. This is the act by which Royal Assent is officially
given and as of that moment the bills have the force of law, unless the bills
provide another date on which they are to come into force. [521]
The Usher of
the Black Rod then turns to face the exit from the Senate, indicating that the
ceremony is concluded. The Speaker of the House raises his or her hat, bows to
the representative of the Crown, and withdraws from the Chamber with the Members
returning to the House of Commons.
Upon
returning to the House, the Speaker takes the Chair and informs the Members that
the Governor General was pleased to give, in Her Majesty’s name, Royal Assent to
certain bills. The House resumes the business that had been interrupted, or
adjourns if the hour for adjournment has already passed. Normally, the ceremony
lasts no more than 20 minutes. [522]
A
bill may not be given Royal Assent if it has not gone through all of the stages
of the legislative process in both Houses. However, a bill may be read three
times and be given Royal Assent at the same sitting. [523]
The Constitution Act, 1867 provides for the circumstances
in which statutes may be disallowed or Royal Assent withheld, but does not
specify the procedure to be followed. [524]
Coming into Force
A
distinction must be made between the date on which a legislative measure is
enacted by Parliament and the date on which it comes into force. The Interpretation Act contains provisions governing the
coming into force of statutes. [525]
A bill becomes
law after it has been passed by both Houses in the same form, but the Act comes
into force either when it receives Royal Assent, if no date of commencement is
provided for in the Act, [526]
or on another
date provided for in the Act. Accordingly, an Act may come into force on one or
more dates specified in the Act itself or fixed by an order of the Governor in
Council.