Historical Perspective

United Kingdom

The development of the legislative process began during the late Middle Ages. During the early days of the English Parliament, requests by the Commons in relation to legislation were submitted to the King in the form of petitions.5 When the King convened Parliament seeking supply (funding), the Commons in return presented oral or written petitions for which they desired his assent. Those that the King decided to grant6 were then written up by his advisers in the form of statutes7 which were entered on the Statute Rolls. The statutes purported to reproduce the wording both of the petition and of the King’s reply, but the King and his advisers often took liberties with the wording of the petition, and in some cases failed even to keep to the reply that had been given.8

A watershed in the development of the process occurred in 1414, when the Commons asked Henry V (1413–22) to be considered “as well Assentirs as Peticioners” and that once their petitions had been written in the form of law, they not be altered without their consent.9 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.10

The evolution of the role of the Commons in the legislative process was also reflected in changes in the wording of the enacting clause used in statutes. Early in 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.11

Once it had been agreed that the statutes should accurately reflect Parliament’s requests in relation to legislation, it became necessary to formulate procedural rules to guide the introduction and passage of bills. By the end of the reign of Elizabeth I (1558–1603), the practices of three readings, with no debate on the first reading, and of reference of the bill under consideration to a committee after second reading, were already firmly entrenched.12


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.13 The legislative process of the House of Assembly of Upper Canada, however, was less elaborate than that of the House of Assembly of Lower Canada, which had adopted a larger number of rules of procedure in 1792.14

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,15 contained provisions governing both the introduction and the passage of bills. At that time, committees were often assigned the task of formulating bills.16 Every bill had to be introduced by motion, and be given three readings in both languages,17 and could neither be amended nor referred to a committee before receiving second reading.18 Every bill also had to be printed before second reading. After passage by the Assembly, bills were submitted to the Legislative Council for adoption and ultimately to the representative of the Sovereign for Royal Assent.19

At the time of the union of Upper and Lower Canada in 1840, the legislative assemblies were obliged to agree on a common procedure. Most of the rules that were adopted at that time were those that had been in effect in the Assembly of Lower Canada.20 The procedure for the passage of public bills remained essentially the same;21 however, a number of new provisions were adopted to deal with private bills.22

Since Confederation

When the House of Commons of Canada met for the first time on November 6, 1867, its proceedings were conducted under the rules of the Legislative Assembly of the Province of Canada, including those related to the consideration of bills. On December 20, 1867, the House approved the report of a special committee that had been instructed to assist the Speaker in formulating its rules of procedure. The only major departure from the rules of the former Legislative Assembly related to the process for considering private bills.23 In fact, the sections of the rules of the former Legislative Assembly included under the heading “Proceedings on Bills”24 were reproduced in full in the first edition of the Standing Orders of the House of Commons.

A number of the rules governing the legislative process that were in effect at Confederation remain in effect today. Some examples are: the Standing Orders prohibiting the introduction of bills in blank or in an imperfect form; those stipulating that all bills be read three times on different days; and those requiring that they be printed in both official languages and be certified by the Clerk of the House on each reading.25

In general, the evolution of the legislative process in Canada since Confederation has reflected the ever-increasing volume and complexity of the legislative work of Parliament, the need to expedite government business, which has come to require the great majority of the House’s time, and the corollary need to safeguard the ability of ordinary Members to introduce their own bills with a reasonable expectation that the latter might ultimately become law.

The rules governing the legislative process have been amended on a number of occasions since 1867 with the aim of facilitating the consideration of public bills, expanding the roles of committees and encouraging greater participation by Members of the House of Commons. For instance, until 1913, a Member had to seek leave of the House in order to introduce a bill, and his motion was subject to debate and amendment.26 In April 1913, the House ordered that motions for leave to introduce a bill no longer be debated or amended.27 In 1955, it modified the Standing Orders to give leave to the Member proposing such a motion to deliver a brief oral description of the bill.28 In 1991, the House again amended the Standing Orders to the effect that motions for leave to introduce a bill were thenceforth deemed to be carried, without debate, amendment or question put.29

Some procedural rules were also amended to expedite the business of the House. Until 1927, for example, there was practically no time limit on the length of Members’ speeches. Debates on bills might sometimes continue for several days.30 In 1927, the House adopted a Standing Order imposing a time limit on the speeches of most Members.31 That fundamental rule remained in effect without amendment until the addition, in 1982, to the Standing Orders governing the legislative process, of specific provisions respecting the length of speeches and the period for questions and comments.32

Over the years, a number of special committees have examined the Standing Orders governing the legislative process.33 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.34 In its Third Report, the Committee recommended changes intended to eliminate obsolete practices,35 to provide more meaningful opportunities for Members to participate in the consideration and shaping of bills, and to identify the crucial stages in a bill’s passage.36 The procedural changes subsequently adopted provided for the regular referral of bills other than those based on supply and ways and means motions to standing or special committees, for the restoration of report stage as a debating stage of the legislative process, for the reduction of the maximum length of speeches at report stage, and for the empowerment of the Speaker to select and combine report stage amendments.37

In the early 1980s, special committees instructed to examine House procedure once again tackled the twin issues of expediting and broadening the scrutiny of bills and of 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.38 Although the recommendations resulting from that study were not adopted, the Special Committee on the Reform of the House of Commons again 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 in a Committee of the Whole.39 These two recommendations were reflected in amendments to the Standing Orders adopted on June 27, 1985.40

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 that there be 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 24 hours’ written notice for any motion respecting Senate amendments to a bill.41

At the beginning of the Thirty-Fifth Parliament in 1994, the Standing Orders were once again amended to increase the flexibility of the legislative process42 by providing for the preparation and bringing in of bills by committees and for the option of referring bills either to standing, special or legislative committees. Bills based on supply motions continued, however, 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.

Notwithstanding these changes, the House soon reverted to the previous practice of referring bills only to standing and special committees, and it was not until February 2000 that a legislative committee was again established to study a bill (C-20, the Clarity Act).43 Succeeding Parliaments have made occasional use of legislative committees, typically to consider controversial legislation.44