Guide to Making Federal Acts and Regulations

Chapter 2.4 - Parliamentary Process

This section supplements section 5 of the "Cabinet Directive on Law-making." It follows the progress of a bill from its introduction in Parliament through to Royal Assent and describes the supporting materials that have to be ready at each stage.

Additional information about the parliamentary process can be found in:

• Précis of Procedure, published by the House of Commons and available on the Internet at http://www.parl.gc.ca/information/about/process/house/precis/titpg-e.htm
• Rules of the Senate, published by the Senate and available on the Internet at http://www.parl.gc.ca/information/about/process/senate/rules-e/senrules-e.htm

• Summary of the Parliamentary Process
• Certification of Government Bills
• Activities and Products in the Parliamentary Process

Audience

• Officials responsible for assisting in the progress of the bill through the House of Commons and the Senate.
• Those who prepare briefing materials for use in Parliament or attend briefing sessions.

• Once a bill has been printed and is submitted to Parliament for consideration, there is still a significant amount of work for departmental officials to do—briefing materials, speaking notes, news releases, advice on proposed amendments, etc.
• Preparation of some of these products can be completed while the bill was being drafted.
• The time it takes to complete these tasks should be factored into the project planning schedule.

Summary of the Parliamentary Process

A bill must pass through a series of parliamentary stages before it becomes law. These stages begin with the introduction of the bill in either the Senate or the House of Commons. Once introduced, the bill is studied, debated and adopted in that House. It is then introduced in the other House, where it is again studied, debated, and adopted. The final stage is Royal Assent.

The House of Commons and Senate sit for approximately 26 weeks or 130 days during a calendar year. However, some of these days are allotted to consideration of the Estimates, the Address in Reply to the Speech from the Throne, and budget debates. This leaves approximately 100 days to consider Government bills.

The timing of each parliamentary stage is determined by the Leader of the Government in the House of Commons in consultation with the sponsoring Minister. The main stages in each House are:

• Introduction and First Reading
• Second Reading
• Committee Study
• Report Stage
• Third Reading.

Most Government bills are first introduced in the House of Commons. However, a Government bill may be first introduced in the Senate if it does not impose or increase taxes and does not provide for the spending of public money.

To introduce a public bill in the House of Commons, a Minister must give 48 hours written notice. The Legislation and House Planning/Counsel/Counsel Secretariat (L&HP/C) with the office of the Leader of the Government in the House of Commons arranges for this notice to be given by including the title of the bill in the House of Commons Order Paper. Introduction by a Government Minister then takes place automatically without debate. The Minister introducing the bill does not speak at this time.

Royal Recommendation

Bills that involve expenditure of public money must be introduced first in the House of Commons (rather than the Senate) and they must be "recommended" by the Crown before they are introduced. The L&HP/C staff obtain a royal recommendation from the Governor General or a Deputy of the Governor General (a judge of the Supreme Court of Canada).

When a royal recommendation is required for a bill, it is communicated to the House of Commons before the bill is introduced and is included on the Order Paper. After the bill has received first reading, the recommendation is printed in The Journals and included on Page 1a of the First Reading Print. The recommendation is worded as follows:

His or Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled "(long title of the bill)."

Briefings

Government bills are not made public until introduced and, therefore, briefings of parliamentarians and the media on bills follow introduction. However, pre-introduction briefings of parliamentarians and the media may be appropriate in exceptional cases, such as with particularly important or complex legislation.

If a media briefing occurs before the introduction of a bill, effective measures (such as an embargo or a lock-up) must be taken to ensure the protection of the information until the time of introduction and a similar advance briefing must be offered to parliamentarians. The briefing of parliamentarians may take place before or at the same time as the media briefing, but not after. Any pre-introduction briefing of parliamentarians must be offered both to Government and opposition members.

Immediately after introduction, a sufficient number of copies of the bill should be made available for parliamentarians and the media. These principles also apply if a Government bill is first introduced in the Senate.

Ways and Means Motion

A ways and means motion must be adopted by the House of Commons before the introduction of a bill that would impose or increase taxes. Like expenditure bills, these bills must also be introduced first in the House of Commons (rather than the Senate).

First reading follows immediately after introduction and is also adopted automatically without debate. Following that, the Speaker asks:

When shall the bill be read a second time?

The response to which is:

At the next sitting of the House.

This formality allows the bill to be placed on the Order Paper for second reading.

Second reading is the first substantive stage in Parliament’s consideration of a bill. The principle and object of the bill are debated and either accepted or rejected. The clauses of the bill are not discussed in detail at this stage.

Three types of amendments may be proposed to the motion to read the bill a second time:

• the six months’ hoist: "That Bill [number and title] be not now read a second time but that it be read a second time this day six months hence";
• the reasoned amendment, which expresses specific reasons for opposing second reading;
• an amendment to refer the subject matter to a committee before the principle of the bill is approved.

The Standing Orders of the House of Commons provide that a bill be read twice and then referred to a committee. Bills based on supply motions are referred to a committee of the whole; other types of bills are referred to a standing, special or legislative committee specified in the motion for second reading. The committee then considers the bill clause by clause. Amendments to the text of the bill are considered at this stage.

Before beginning clause-by-clause study, the committee usually invites the sponsoring Minister to appear before it. The committee may also hear witnesses, including departmental officials, on technical matters. Amendments in committee must be in keeping with the principle of the bill as agreed to at second reading in the House. Generally, the committee may make amendments to any part of a bill (for example, the title, preamble, clauses and schedules). Clauses and schedules may be omitted and new ones added. However, amendments requiring a royal recommendation must be done at report stage. After a committee has completed its consideration of a bill, it orders that the bill be reported to the House.

The Standing Orders require that every bill examined and reported by a committee be considered by the House at report stage. Except for those bills considered in Committee of the Whole, report stage cannot begin sooner than the second sitting day after the bill has been reported unless the House orders otherwise. Motions in amendment at this stage must be filed not later than the sitting day prior to the beginning of consideration and placed on the Notice Paper. Those with financial implications require a Royal Recommendation, which must also comply with this notice requirement. Ministers of the Crown may, without notice, propose amendments that address only the form of government bills. Once report stage has begun, no further motions in amendment may be introduced.

The Speaker may select and group proposed amendments for debate and may also rule on whether each motion should be voted on separately or as part of a group. This decision is made at the beginning of report stage, at which time the Speaker may also indicate the amendments he or she considers procedurally dubious. Normally, the Speaker will not select for debate at report stage any motion in amendment that was introduced in similar form and rejected previously at the committee stage.

It should be noted that in 2001 the House of Commons and its Speaker placed new and stricter limits on the acceptability of report stage amendments. As a result of procedural changes, the Speaker is also unlikely to select amendments, including those proposed by the Government that could have been proposed at the committee stage.

When deliberations at report stage are concluded, a motion is moved that the bill (with any amendments) be concurred in. The question is put immediately, without amendment or debate. If no amendments are put down for consideration at report stage, this stage becomes more of a formality, and report and third reading stages may then occur on the same day.

Tradition dictates that the adoption of the motion for second reading of a bill defines the principle contained in the bill and therefore limits the scope of the amendments that may be made to the bill in committee and at report stage. By referring a bill to committee before the principle has been adopted by the House, the House can give itself more flexibility to review and fine-tune the legislation. In recognition of this, some of the new Standing Orders adopted in February 1994 defined procedures by which the House could refer a bill to a committee for detailed examination before second reading.

A Minister wishing to have a Government bill referred to a committee before second reading will propose a motion that the bill be referred to a committee. This is done immediately after the reading of the Order of the Day for second reading and after notifying representatives of the opposition parties. Under the rules of the House, there may be up to three hours of debate on the motion. The motion is not amendable and there is a specific speaking order for Members of the different parties. At the end of three hours, or when no other Member rises to speak, the Speaker will put the question to the House. If the motion is adopted, the bill will be referred to committee for study.

Generally speaking, the committee will conduct its clause-by-clause examination of the bill subject to the same rules and procedures governing the committee study of bills after second reading. However, the scope of amendments that can be made to the bill is much wider. At the conclusion of its study, the committee will report the bill to the House, with or without amendments. The report stage of this bill cannot be taken up until three sitting days after the bill is reported to the House.

When the bill is reported back to the House, what follows is essentially a combined report and second reading stage. The procedures for dealing with amendments are the same as those for report stage after second reading. However, while Members of the House can offer amendments to the legislation, notice of amendments to be proposed at report stage must be given in writing two sitting days before the bill is to be taken up. When the bill has been concurred in and read a second time, it will be set down for third reading and passage at the next sitting of the House.

At third reading the House decides whether to adopt the bill.

The same types of amendments as may be proposed at second reading may also be proposed at third reading; that is, the six months’ hoist and the reasoned amendment.

In addition, an amendment may be proposed to refer the bill back to committee to be further amended in a specific area or to reconsider a certain clause or clauses.

After a bill has been passed by the House of Commons, a message is sent to the Senate requesting that the bill be passed by the Upper Chamber, where procedures for passage of a bill are similar to those in the House. However, there are some important differences:

• notice of introduction is not required for bills;
• bills are only referred to committee after second reading;
• bills can be amended at third reading.

If the Senate passes the bill without any amendment, a message to that effect is sent to inform the House of Commons.

If there are amendments to the bill, the Senate communicates this to the House by message. In the House, a 24 hour written notice is required for any motion respecting Senate amendments to a bill. Consideration of Senate amendments appears on the Orders of the Day and proceeds under a motion moved by the sponsor of the bill, as follows: "That the amendments made by the Senate to Bill ..., be now read a second time and concurred in". If the House agrees to the Senate amendments, a message is sent informing the Senate accordingly, and the bill is returned to the Senate for Royal Assent.

If the House does not agree to the Senate amendments, it adopts a motion stating the reasons for its disagreement, which it communicates to the Senate. If the Senate wishes the amendments to stand nonetheless, it sends a message to this effect to the House, which then accepts or rejects them. If it decides to reject them, the House may adopt a motion requesting a conference between the two Houses, where their respective representatives attempt to resolve the impasse.

The Constitution Act, 1867 states that the approval of the Crown, signified by Royal Assent, is required for any bill to become law after passage by both Houses. Royal Assent brings together the three constituent parts of Parliament: the Crown (represented by the Governor General), the Senate, and the House of Commons. Although the Governor General in person may give Royal Assent to major pieces of legislation and at prorogation, a Deputy of the Governor General in the person of a Judge of the Supreme Court may represent the Governor General at other times.

The timing of Royal Assent is arranged by the Leader of the Government in the House of Commons in consultation with the Leader of the Government in the Senate. Royal Assent is generally held before an adjournment or prorogation or when a bill of particular urgency requires assent.

In the ceremony for Royal Assent the Senate Clerk, officially styled Clerk of the Parliaments, reads the short titles of the bill or bills to be approved. The formula of assent is then pronounced by the Senate Clerk on behalf of the Crown’s representative. If supply bills are to receive assent, the Commons’ Speaker addresses the Crown’s representative according to an established formula and presents a copy of each bill to the Senate Clerk Assistant. The Clerk of the Parliaments, in the name of the Sovereign, then thanks the House for its loyalty and benevolence and announces the Royal Assent. At the conclusion of the ceremony, the Speaker returns to the House and reports what has just occurred. The proceeding usually takes 15 or 20 minutes, after which the House resumes the business interrupted by the arrival of the Usher of the Senate or adjourns the sitting.

The previous discussion has described the traditional parliamentary process and one of its variants. (See in this chapter Alternative Procedure—Committee stage Before Second Reading). However, a number of other methods have been developed for the parliamentary consideration of bills. Some have been prompted by the desire to consult members of Parliament and allow them to have effective input into legislative proposals. Another is designed to meet a need to correct minor problems in the statute book.

The choice of process depends not only on the type and scope of the legislative proposals, but also on the Government’s strategy. The sponsoring department should examine the various options and consult L&HP/C or, in the case of corrections to minor problems, the Legislation Section of the Department of Justice.

The following is a brief description of the other procedures that may be used.

The Government may prepare a draft bill for tabling by the sponsoring Minister and referral to a committee for study. The draft bill is not formally introduced or given first reading. Because of this, the committee can study the draft and make detailed recommendations for its revision without procedural constraints.

The committee’s report can then be taken into account by the Government when it finalizes the bill and tables it for first reading as a Government bill.

The changes to the Standing Orders in 1994 provide that a committee can be instructed to recommend the principles, scope and general provisions for a bill or actually draft a bill. If the House of Commons concurs in the committee’s report, that concurrence becomes an order to bring in a bill based on the report.

The Government then introduces the bill. There is no debate at second reading, but the bill goes directly to committee for study. This procedure might be suitable where consensus is probable and MPs are particularly interested in the subject matter

Miscellaneous Statute Law Amendment Acts are subject to an accelerated enactment process involving committee study of legislative proposals before they are introduced as a bill (see above "Miscellaneous Statute Law Amendments" in Chapter 2.1).

Certification of Government Bills

The Minister of Justice is required to examine every bill introduced in or presented to the House of Commons by a Minister of the Crown. This requirement arises from section 3 of the Canadian Bill of Rights and section 4.1 of the Department of Justice Act. The purpose of the examination is to determine whether any provision of the bill is inconsistent with the purposes or provisions of the Canadian Bill of Rights or the Canadian Charter of Rights and Freedoms. The Minister of Justice is required to report any inconsistency to the House of Commons at the first convenient opportunity.

The Clerk of the House of Commons sends the Minister of Justice two copies of each bill. A member of the Legislation Section of the Department of Justice examines the bill and the Chief Legislative Counsel signs the certificate stating that it has been examined on behalf of the Deputy Minister of Justice.

If a bill is considered to be inconsistent with the Canadian Bill of Rights or the Canadian Charter of Rights and Freedoms, the Deputy Minister and Minister of Justice are advised immediately for the purpose of making the required report to the House of Commons.

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