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Disagreements between the Senate and House of Commons

In light of my recent post on the subject of the legislative process in contrast to the democratic process in Canada, I thought it would be appropriate for a post on the procedure for dealing with conflicts between the two houses of parliament. Most Canadians, I am sure, would be surprised to learn that there is in fact little formal procedure in the way of dealing with a conflict between the elected House of Commons and the appointed Senate, especially considering the fact that our large cultural influence to the South, the United States of America, actually has constitutional provisions to ease a deadlock between their two houses and executive branch (the President). Let’s examine the process in Canada more in depth.

There are no provisions within any Constitutional document to deal with a deadlock between the Senate and the House of Commons. Within the legislative process, bills which originate in the House of Commons (which can be either public or private in nature) are sent to the Senate for concurrence and approval prior to receiving Royal Assent. Conversely, bills that originate in the Senate are sent to the House of Commons for approval, again, prior to receiving Royal Assent. This process of having each house propose, debate, and approve legislation opens up the possibility for either house to propose amendments to legislation that could reasonably be opposed by one house or the other, by the government of the day or sponsor of the bill itself. All of these situations would create a scenario where each house could be seen to be in conflict with one another and thus create a legislative deadlock. The question then becomes who would “win” between each House and how would the bill proceed to becoming law in Canada?

When a disagreement arises between the House of Commons and the Senate as to the amendments to be made to a bill, there are two possible ways of proceeding: the disagreement may be communicated in a message (this is normally the first step taken), or a conference may take place. (House of Commons Procedure and Practice 2nd Ed)

Messages can be passed between the houses of parliament between the Speakers of each house. Individual rules within each house govern the conduct of these messages, the crux is that they must be read in a timely manner to the members/Senators by the Speaker. It is interesting to note that the conference method cited in the Procedure and Practice manual has fallen into disuse in parliament. In fact, it has not been used since 1947 and only 16 times since 1903. The exact procedure around these conferences has changed since they were formalized in the Standing Orders of the House of Commons in 1903. Prior to 1903, these conferences were considered “closed” in that the House of Commons and the Senate each sent specific delegates who could only voice the concerns of each house without debate or discussion. In 1903, provisions were put into place within the Standing Orders (and Rules of the Senate) which permitted “open” conferences where delegates (referred to formally as managers) would be sent to a conference between the two houses and were allowed to discuss the issues and were empowered to come to a solution. There have been 13 “free” conferences since the provision was introduced but again none since 1947.

Turning to the Standing Orders of the House of Commons, Rule 77 under the heading of Senate amendments, there exists provisions for the Commons side of arrangements for the messaging and a potential conference between the two houses.

In cases in which the Senate disagrees to any amendments made by the House of Commons, or insists upon any amendments to which the House has disagreed, the House is willing to receive the reasons of the Senate for their disagreeing or insisting (as the case may be) by message, without a conference, unless at any time the Senate should desire to communicate the same at a conference. (Standing Orders of the House of Commons, Order 77)

The pre-text of this particular provisions describes a situation where the House of Commons and Senate disagree. However, it could be argued that this provisions does not exactly settle a dispute between the Commons and the Senate but merely provides two avenues for further recourse. The rule goes on the state that any conference between the two houses shall be “free” (as explained above) and that reasons for a conference shall be provided to the Senate (and visa versa in accordance with protocol).

The Rules of the Senate certainly do not offer any additional helpful guidance. Under rule 16 which is reserved for instructions pertaining to messages to and from the Senate, there is a provision regarding the messaging between the House of Commons and the Senate regarding disagreement and protocols regarding the formation of a conference.

When the House of Commons disagrees with amendments proposed by the Senate to a bill that originated in the Commons, and the Senate insists on any of its amendments, the message accompanying the bill to the Commons shall state the reasons. The Senate shall receive by message the reasons for the House of Commons either disagreeing with Senate amendments to bills or insisting on Commons amendments, unless the House of Commons at any time wishes to communicate these reasons at a conference. (Rules of the Senate, Rule 16-3(1)(4))

The Rules of the Senate also contain the same clause as the Standing Orders of the House of Commons which require that any conference between the two houses be conducted in a “free” manner.

The Senate of Canada amends a surprising amount of legislation that originates from the House of Commons. In this role they are fulfilling their mandate articulated by Sir John A. MacDonald in being the “sober second thought” of parliament. The vast majority of amendments are technical in nature (amending legal wording, uniform formatting of the bill, etc) and are accepted without hesitation from the House of Commons. However, there have been historical moments when the House of Commons and the Senate have been at odds over the pith and substance of a particular bill. When Progressive Conservative Prime Minister Brian Mulroney attempted to introduce the Government Sales Tax, it was blocked by the Senate until he took extreme measures granted to him within the constitution to appoint additional Senators (thus allowing him to overcome the partisan deadlock within the Senate Chamber). Recently, we saw an empowered Senate review and propose amendments on the pith and substance of bill C-14 which sought to extend the right of assisted dying to Canadians. It is during these moments that the procedures and processes surrounding the deadlock between houses of parliament become even more important.

Amendments proposed by the Senate on legislation originating in the House of Commons are sent back for debate and approval (or rejection). The debate concerning these amendments is restricted to the scope of the amendment question itself, meaning MPs cannot begin a new debate on the merits of the bill as a whole, for example. Each amendment is voted on individually in the order that it would appear in the bill (reasonably presenting the bill in a logical fashion). The House of Commons can reject or accept all amendments, or can approve and reject some but not all amendments from the Senate. If all amendments are accepted, a message is sent to the Senate to this effect and the bill is scheduled for Royal Assent. If some of the amendments are accepted, but not all, the same message communicating this fact is sent to the Senate, but the Senate is given a chance to reply to this message. If the Senate cannot agree to the provisions than a conference may be formed between the two houses. In the case of C-14, after the bill was read and approved at Third Reading in the House of Commons, the Senate sent amendments back which were then rejected by the House of Commons (being controlled by the majority Liberal government). However, after the rejection of their amended version of the bill, the Senate then approved the final text of the bill, from the House of Commons, essentially backing down and avoiding a  protracted deadlock.

If the conference fails, the matter is closed and the bill simply remains on the Order Paper where it dies at the end of the session. During that time, no new bill may be introduced in the House in respect of the same subject matter and containing similar provisions. (House of Commons Procedure and Practice 2nd Ed)

At the end of the day, if the House of Commons and the Senate cannot agree and no movement is made through the options available in a conference, than the bill sits on the Notice Paper for the remainder of the session and is, for all purposes, dead. Furthermore, a legislative void is created because no bill on the same subject can be presented during the session until the similar bill on the Notice Paper is resolved. This was the case during the GST debate for a short period of time prior to the Prime Minister appointing additional Senators and reviving the legislative life of his taxation bill.

On a final note, and related to my last entry, the Senate understands it’s inherent democratic deficit. Because Senators are appointed on the advice of the Prime Minister of the day by the Governor-General collectively they do not possess the same democratic mandate as the government or the House of Commons as a whole. This does not impact their legal authority within the legislative process (as I have alluded to in my opinion piece) but it does inflict soft power over the Senate by the House of Commons. Often during debate, Senators who support the government can be heard calling on fellow Senators to speedily approve matters originating from the Other Place because they have no democratic right to hold up priorities of the duly elected government. And to some extent there is some truth to this statement, however, the Senate does have a legitimate role in the legislative process to review and scrutinize legislation, including government legislation. This is a key component of what little exists to resolved a dispute between the two houses of parliament. It is important to note, that no House can have authority over the other as they are each sovereign entities within parliament in union with the Crown. The executive, being embedded in the House of Commons, does not enjoy a carte blanche over legislation proposed within parliament and therefore the role of the Senate in being that sober second thought often becomes more powerful during periods of majority government rule in the Commons. It is therefore dishonest to simply cast the Senate away as an undemocratic institution with little or no value in the legislative process. On the same token, it could be argued that there exists a statutory nadir with regard to provisions for dealing with a deadlock between the Houses of Parliament which lends itself to relying on the false assumption that the House of Commons has authority over the Senate through their democratic legitimacy.

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The Legislative Process

Recent events within parliament surrounding bill C-14 have cast a light on the possibilities of the two houses of parliament stuck at a deadlock. In actuality, any theorizing was dubbed moot because the House of Commons rejected the proposals from the Senate on bill C-14 and the Senate duly accepted the rejection from the Lower Chamber. Democracy, as the pundit would say, was saved for the day. But there is something inherently wrong in claiming that having an Upper Chamber capable of overriding the Lower Chamber on legislative affairs is an outright offence of democracy and democratic values in Canada. It is certainly worth taking a closer look at the legislative process in Canada in comparison to the democratic process– most people, I wager, would be surprised to understand a difference between the two.

There is no question that if you are reading a blog such as this, and a post such as this, that you have a basic understanding of how laws are made within parliament in Canada. Bills are proposed as Acts of Parliament in either the House of Commons or the Senate. Some bills are “special” compared to others because they originate from the government (which resides in the House of Commons). The Senate is composed of Senators who are appointed by the elected Prime Minister of the day (or more technically by the Governor-General on advice from the Prime Minister of the day). Bills are read a certain number of times in each house and are sent to committee for a clause-by-clause review. Each reading stage of the legislative process (there are three in total within each house), have a specific purpose and scope of debate. At the end of the reading stages, each house puts the bill to question (that is to say, votes) and it is moved on the to next step in the process. The final step being Royal Assent, where the Governor-General signs the bill which thus becomes an Act of Parliament and the law-of-the-land. Where things get murky in the process, however, is when legislation in moved between the House of Commons and the Senate. Obviously, all government bills will originate in the House of Commons and be sent to the Senate for further review and eventual approval. But what happens if the Senate rejects a bill proposed by the House of Commons, and more specifically, generated by the government of the day?

Canadians saw this process somewhat unfold between the House of Commons and the Senate recently on bill C-14. The House of Commons passed the bill on Third Reading and sent it to the Senate for further review (never minding the deadline issue at this moment). The debate in the House of Commons on the bill was substantial and focused on the constitutional nature of the bill. In the Senate, the Senators heard testimony from constitutional experts that the bill would have violated Canadian law. The Senators proposed amendments similar to what was proposed by the opposition in the House of Commons in order to avoid a conflict with the Charter. Surely, however, the Senate would be out of line for proposing such amendments over the government and the House of Commons because unlike the Lower Chamber, they are unelected! This is where the debate gets sidetracked by the introduction of the democratic process. The problem is that both processes are separate from one another, and should not mix as closely as it being attempted in this sort of debate.

The democratic process in Canada serves one purpose: the composition of the House of Commons. About every four years (a maximum of five as mandated in the constitution), Canadians participate in a general federal election. Which more accurately should be called federal general elections, because in reality there are over three hundred elections happening across the country. The purpose of the election is to select an individual Member of Parliament to serve in Ottawa on behalf of a geographical boundary drawn up based on population (and mandated representation requirements). Once the MPs are selected across the country, they are sent to Ottawa and a government is formed from among their ranks by appointed of the Governor-General. Note, that Canadians play no part in the formation of their government aside from the indirect manner of electing Members of Parliament. A key component of responsible government is that members of the cabinet, the executive body, are appointed from among a pool of elected MPs. This is exactly where the democratic process ends and the legislative process begins. Once a parliament is formed, and more specifically once the House of Commons is formed, the democratic process ends and the legislative process kicks in to full swing. From the basis of responsible government, which sustains a particular ministry through the maintenance of the confidence of the entire House of Commons, the government can participate and dominate the legislative process. This dominance is scalable based on the size of their influence within the House of Commons (the formation of majority or minority governments, for example). The continuance of responsible government permits the appointment of agents of the state such as Senators, who are empowered through the constitution to participate in the legislative process alongside the duly elected government. And while mandates will shift between ministries, generally those agents of state remain empowered within the legislative process, intentionally made to be immune from the democratic process. This is an essential balance between the elite and the populist, and is a key feature of any Westminster parliamentary system.

It is therefore not undemocratic for the Senate to reject any piece of legislation coming from the House of Commons, especially legislation coming from the government benches, because there is nothing that should permit the democratic process from interfering with the legislative process. While principles of democracy are inherent in the system (MPs for example vote by majority, as do Senators), the process itself, the democracy-in-Canada (to fancy a label on it), is not a part of the legislative process. That process exists when the people elect their individual Member of Parliament. The rest is the entire system working as it ought to and churning out lawful decisions of the state.

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