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.