The development of the legislative process began
during the late Middle Ages. During the early days of the British 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 grant[6]
were then written up by his advisers in the form of statutes[7] 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]
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 Assembly of Upper Canada, however, was less
elaborate than that of the 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]
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 of Canada related to the
process for considering private bills.[23]
In fact, the sections of the Rules of the former Legislative Assembly of Canada
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 process[42]
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]
[5] See Myers, A.R., “Parliamentary Petitions in the Fifteenth
Century”, The English Historical Review, Vol. LII, 1937,
pp. 590‑613. For a historical overview of the legislative process in
Great Britain, see Anson, Sir W.R., The Law and Custom of the
Constitution, Vol. I, 4th ed., rev., Oxford: Clarendon Press, 1911,
pp. 240‑54; Lambert, S., “Procedure in the House of Commons in
the early Stuart period”, The English Historical Review, Vol. XCV,
1980, pp. 753‑81.
[6] He did so using the formulas le roy le veult to signify
assent and le roy s’avisera to withhold it. Until the latter part
of the reign of Edward III (1327‑77), all parliamentary proceedings were
conducted in Norman French. The use of English was extremely rare until the
reign of Henry IV (1399‑1413). Beginning with the reign of Henry VII
(1485‑1509), English was used for all proceedings, with the exception of
the Royal Assent, which was always expressed in French (May, T.E., A Treatise on the Law, Privileges, Proceedings
and Usage of Parliament, 11th ed., edited by T. Lonsdale Webster
and W.E. Grey, London: William Clowes and Sons, Limited, 1906, pp. 512‑3;May, T.E., Erskine May’s Treatise on The Law, Privileges,
Proceedings and Usage of Parliament, 23rd ed., edited by Sir
W. McKay, London: LexisNexis UK, 2004, p. 654).
[7] The expression “statut” is used in French to mean “loi”
or “law” only in reference to Great Britain and, by extension, to the other
Commonwealth Parliaments. In Canada, however, the expression “loi” is
used in French.
[8] A favourable reply did not necessarily mean that the Commons had obtained
the legislation they wanted from the King. Sometimes, the matter would be
forgotten, or intentionally set aside until the legislature was dissolved. See
Butt, R., A History of Parliament: The Middle Ages, London: Constable, 1989, p. 271; Anson, p. 247.
[10] Although Henry VI and Edward IV (1461‑70 and 1471‑83)
occasionally added new provisions to statutes without consulting Parliament,
the legislative process as we know it today has its origin in the reign of
Henry VI (May, 11th ed., p. 459).
[12] Neale, J.E., The Elizabethan House of Commons, rev.
ed., Hammondsworth, Middlesex: Penguin Books, 1963, p. 356.
[13] Bourinot, J.G., Parliamentary Procedure and Practice in the
Dominion of Canada, South Hackensack, New Jersey: Rothman
Reprints Inc., 1971 (reprint of 1st ed., 1884), p. 19.
[14] O’Brien, G., “Pre-Confederation Parliamentary
Procedure: The Evolution of Legislative Practice in the Lower Houses of
Central Canada, 1792-1866”, Ph.D. thesis, Carleton University, 1988,
pp. 86‑9, 113‑4, 173‑4.
[15] At that time, this was a 73‑page document that had been
prepared by a committee of the Assembly under the direction of Speaker Jean‑Antoine
Panet.
[17] To safeguard the uniformity of the instruments, bills relating to
the criminal laws of Great Britain were introduced in English and then
translated. Bills relating to the civil laws, customs and rights were
introduced in French and then translated. This meant that several days might pass
between the adoption of the motion to introduce the bill and the motion for
first reading (O’Brien, p. 174).
[18] At that time, bills were referred to a Committee of the Whole or to
a select committee. For an historical overview of Committees of the Whole in Canada, see Chapter 19, “Committees of the Whole House”.
[19] Every bill had first to be submitted to the Governor, or to the
Governor’s representative, for assent in His/Her Majesty’s name. Assent could
be granted or withheld, or the Governor could reserve assent and submit the
bill for the “Signification of his Majesty’s Pleasure thereon” (Constitutional
Act, 1791, (31 Geo. III, c. 31 (U.K.)), R.S. 1985, Appendix II,
No. 3, ss. XXX and XXXI).
[24] For a number of years, the term “Bill” was used in both English and
French. “Projet de loi” first appeared in the French version of the
Standing Orders of the House in 1982.
[25] See rules 40, 43, 44, 48 and 93 of the first edition of the Rules
of the House, which was adopted on December 20, 1867.
[26] See, for example, Journals, March 4, 1884,
pp. 184‑5.
[30] See the comments in the Debates, April 19, 1886,
pp. 789‑90.
[31]Journals, March 22, 1927, pp. 328‑9. Until
1982, the present Standing Order 43 governed the length of speeches during
consideration of bills.
[32]Journals, November 29, 1982, p. 5400. See
also Third Report of the Special Committee on Standing Orders and Procedure,
presented to the House on November 5, 1982 (Journals,
p. 5328).
[33] The Joint Committee on Legislation was established in 1923 to
consider various matters, including the form of bills (Journals,
June 14, 1923, pp. 469‑70). Also significant was the work,
some decades later, of the Special Committees on Procedure and Organization of
the House (Journals, December 19, 1963, pp. 705‑6,
par. 2; March 25, 1964, p. 125, par. 9).
[34] Journals, September 24, 1968,
p. 68; December 20, 1968, pp. 554‑62. See also Fourth
Report of the Special Committee on Procedure and Organization of the House,
presented to the House on March 13, 1968 (Journals,
pp. 761‑7), prior to the dissolution of the Twenty‑Seventh
Parliament.
[36] For example, the first version of Standing Order 69, adopted in
December 1867, read as follows: “That this bill be now read a first
time”. That text remained unchanged until the amendments adopted in
December 1968, which gave it its present wording: “That this bill be
read a first time and printed”. The Committee intended to restrict the effect
of the passing of the motion to consent to the introduction of the bill without
any commitment beyond its being made generally available for the information of
Parliament and the public. The new version reflected the Committee’s concern
with the identification of the crucial stages in the passage of a bill, and its
recommendation that the motion relating to each of the three readings be
rephrased so as clearly to reflect the philosophy behind each stage of the process
(Journals, December 6, 1968, pp. 432‑3;
December 20, 1968, p. 576).
[37] Journals, December 6, 1968,
pp. 432‑4; December 20, 1968, pp. 554‑62.
[38] Sixth Report of the Special Committee on Standing Orders and
Procedure, presented to the House on March 29, 1983 (Journals,
p. 5765), Issue No. 19, pp. 3‑12.
[39] First Report of the Special Committee on the Reform of the House of
Commons, presented to the House on December 20, 1984 (Journals,
p. 211), Issue No. 2, pp. 7‑10, 21.
[44] A single legislative committee was established during the
Thirty-Eighth Parliament to consider Bill C‑38, An Act respecting
certain aspects of legal capacity for marriage for civil purposes. Legislative
Committees struck during the Thirty-Ninth Parliament included those established
to consider Bills C-2,Federal Accountability Act; C-2, Tackling Violent Crime Act; C‑20, Senate
Appointment Consultations Act; C-27, An Act to amend the Criminal Code (dangerous
offenders and recognizance to keep the peace); C-30, Canada’s Clean Air
Act; and C‑35, An Act to amend
the Criminal Code (reverse onus in bail hearings for firearm-related offences).