House of Commons Procedure and Practice
Edited by Robert Marleau and Camille Montpetit
2000 EditionMore information …
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16. The Legislative Process

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] 


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.

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