The Legislative Process: How We Make Our Laws - LawNow Magazine

The Legislative Process: How We Make Our Laws

Except when something particularly noteworthy occurs – such as the implementation of a radical new law or the defeat of a government over legislation it is trying to get passed – many Canadians are not aware of the details of our legislative process. In this article, I will sketch out an overview of the process by which Canada makes its laws. While I will describe our national Parliamentary process, much the same process is followed at the provincial and territorial levels, and often even at the municipal levels in many communities across the country.

We sometimes forget that the necessity of Royal Assent makes the Queen (in the person of the Governor General) an essential and necessary part of the legislative process.After an election, the party which has won the most seats in the House of Commons is asked to form a government. Upon convening the new Parliament, the Governor General delivers a Throne Speech. Although read by the Queen’s representative, the Prime Minister (the leader of the party which won the election) actually writes the Throne Speech. The speech highlights the aspects of the government’s election platform which it will now attempt to enact as law. Sometimes, this means:

  • enacting new laws to accomplish positive change;
  • amending existing laws to bring them into conformity with the values and promises of the party which won the election; and, in some cases,
  • repealing old laws completely.

Whatever the expected outcome, the legislative process is essentially the same for each situation.

The House – because its members have been democratically elected – will always have the final say about any piece of legislation, and it can vote to remove or reject the suggestions made in the Senate.The Cabinet ministers begin by enlisting the input and assistance of the government’s legislative drafters. These persons (often lawyers) are skilled and knowledgeable about the wording and framing of legislation, and begin to write the bills which will ultimately be placed before Parliament. The drafts are circulated and discussed internally within Cabinet until they properly reflect the ideas the government wants to present to the country.

Then, the Minister responsible will present the Bill to the House of Commons (in rare cases, the initial presentation can take place in the Senate) where, after a brief introductory debate, it is considered to have undergone its “first reading”. According to the House of Commons website, the term “reading” comes from ancient times when reproducing multiple copies of a bill was difficult and time-consuming. Back then, the Clerk would read the bill out loud at each stage so Parliamentarians knew what they were being asked to consider.

After First Reading, the Bill moves to the “second reading” stage, and this is where it is likely to come under the closest scrutiny. At Second Reading (sometimes just before, and sometimes just after), the Bill is referred to a House of Commons committee for careful, line-by-line review and discussion. Which committee undertakes this task will depend upon the subject matter of the bill. In the case of budgetary (“supply”) bills, and in other situations where proposals are particularly important, the entire House will sit as a “Committee of the Whole” to consider and discuss the proposal. During committee hearings, parliamentarians discuss and debate the meaning and impact of each aspect of the proposed legislation. They may call outside witnesses and interested parties to offer their opinions and thoughts upon the Bill. The Committee makes and votes on proposals for amendments. The government might accept some amendments and reject others. The scope of possible amendments is usually broader if the Bill has been referred to the committee before Second Reading. At Second Reading, it is considered that the House of Commons approved at least the principle of the legislation. So, if referral to the committee takes place after Second Reading, the ability to offer amendments is somewhat more restricted.

The Cabinet ministers begin by enlisting the input and assistance of the government’s legislative drafters. These persons (often lawyers) are skilled and knowledgeable about the wording and framing of legislation.

When the responsible committee has finished its study of the Bill and voted on any possible amendments, the proposal returns to the House of Commons for Third Reading. Further Parliamentary debate takes place upon the merits and shortcomings of the Bill and again, amendments may be offered. At the end of this process, the House of Commons votes upon the proposal (including any amendments) and either accepts or rejects the proposed legislation. If the proposal is rejected, depending upon the nature of the legislation this can be devastating to the government because it can reflect a lack of confidence on the part of the House. Especially if the legislation has to do with the government’s proposed Budget, a defeat of the government can lead to another party being asked to take power, or a new election taking place.

If the House of Commons adopts the legislation, it moves to the Senate for further review. The Senate has often been called “the Chamber of sober second thought” because senators are not elected and therefore are thought to be immune to the lures and attractions of purely political posturing based upon winning elections. At least in theory, it is in the Senate where a more careful, dispassionate review takes place. The actual practice is not quite as non-partisan as this: very often Senators owe their seats to one party or the other, so they may direct their loyalty and their votes accordingly. However, such allegiances have been less the case recently, because the Liberal government of Justin Trudeau appoints persons as independent Senators, freed from the old partisan expectations and obligations.

Especially if the legislation has to do with the government’s proposed Budget, a defeat of the government can lead to another party being asked to take power, or a new election taking place.In the Senate, the legislative process mirrors that of the House of Commons: It subjects Bills to three readings, and again, during the Second Reading stage, the responsible Senate committee reviews the proposal exhaustively just as was done during the committee review in the House. Once again, committees call witnesses to comment upon the merits and shortcomings of the legislation, and the Senate considers amendments which might improve – or otherwise change – the proposal being advanced.

The Senate has the authority to suggest changes to the legislation, but if after Third Reading it makes any amendments to the Bill, it must return the Bill to the House of Commons for its approval. The House – because its members have been democratically elected – will always have the final say about any piece of legislation, and it can vote to remove or reject the suggestions made in the Senate and return the Bill to its form when it left the House the first time. After the House has voted again, the Bill must again pass through the Senate where, by tradition, it will usually accept the will of the Commons and adopt the Bill. However, the Senate is not required to accept the direction of the House of Commons, and if the two bodies cannot ultimately agree upon the proposal, they may convene a formal Conference to make an attempt to negotiate the points of difference remaining. This process is used very rarely. According to the House of Commons website, all 36 Conferences in Canada took place between 1903 and 1947 (suggestions for Conferences made since 1947 have not been accepted).

In the case of budgetary (“supply”) bills, and in other situations where proposals are particularly important, the entire House will sit as a “Committee of the Whole” to consider and discuss the proposal.After the legislative process through the houses of Parliament, the final step in order for a Bill to become law is of Royal Assent: the approving of the legislation by the Governor General (on behalf of the Queen). We sometimes forget that the necessity of Royal Assent makes the Queen (in the person of the Governor General) an essential and necessary part of the legislative process. In fact, all legislation passed by the houses of Parliament bears the same introductory words upon becoming law: “Her Majesty, by and with the advice and consent of the Senate and House of Commons, enacts as follows”.

At least in theory, it is in the Senate where a more careful, dispassionate review takes place.However, while it is a necessary step to enacting a law, under our written Constitution (mainly, the Constitution Act, 1867 and the 1947 Letters Patent which set out the details of the powers of the Governor General) Royal Assent is not mandatory. The Governor General has the authority to refuse to sign legislation placed before her for any reason she considers fit and proper, or to reserve assent to await an indication of the Queen’s wishes. Although the reservation power was used a number of times in the years following Confederation, it and the disallowance option have fallen into disuse. Now, they are virtually theoretical and are no longer real options. In fact, it would provoke a constitutional crisis and be considered an affront to the democratic nature of Canada for the (appointed) Governor General to refuse (or even hesitate) to give her assent to a law passed through the democratically elected House of Commons and the Senate under the sponsorship of the government of the day.

Authors:

Charles Davison
Charles Davison is the Senior Criminal Defence Counsel with the Somba K’e office of the Legal Services Board in Yellowknife, N.W.T.
 


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