The opening salvos of Question Period today in the House of Commons were extremely revealing in terms of the political posturing that will undoubtedly begin as we move closer and closer to a general election. Notably absent from the House of Commons chamber during Question Period was Andrew Scheer, leader of the Conservative Party of Canada. However, Lisa Raitt opened up the portion of the parliamentary day on the topic of the carbon tax:
Mr. Speaker, yesterday the Prime Minister was asked a simple question, whether Canadians can expect to pay higher fuel prices with the carbon tax. His response was a bit jarring. He said, yes, and that is what Canadians expect because that is leadership.
What the Prime Minister views as leadership is literally terrifying to widows and single moms across this country. At the very least, they deserve to know one thing. How much will the carbon tax cost them?
The Prime Minister responded to the opposition benches on point but not without reaching to the previous Conservative government (without question exactly where the Conservatives can be defined as weak on the environment):
Mr. Speaker, the Conservatives are yet again demonstrating not just their tenuous relationship with the truth, but also with the understanding that we have to take good, clean action on carbon. After 10 long years of the Harper Conservatives doing absolutely nothing on the environment, the same Conservatives show that they just do not get it.
We are putting a price on carbon pollution because it will reduce emissions and drive growth in the right direction at the same time. While Harper Conservatives believe that by making the economy and the environment work together and that somehow Canada is broken, we will continue to invest in clean technology.
Note how Prime Minister Justin Trudeau out and out calls the opposition Conservatives in this 42nd Parliament the “Harper Conservatives” despite the fact that Stephen Harper is no longer their leader. We can expect the Liberals to come out heavy linking the current caucus to the past and the fact that many front bench members are long in the tooth Conservatives from that era makes it a viable political tactic.
Lisa Raitt would not let the issue of the carbon tax go and rose again to follow-up on her first question:
Mr. Speaker, the Prime Minister’s lead ministers simply do not understand that they are very much out of touch with the reality of what’s happening and the gravity of the issue that we are speaking of. I remember the days, and a lot of us do, of being able to put just five bucks in the gas tank in order to get to my work at the Dairy Queen, and there are people like that today in my riding who experience that.
This is a serious matter that is going to affect the affordability of life for many Canadians. His government knows how much it costs. Why will he not tell them?
And Prime Minister Trudeau refused to hold back in evoking the name (and apparent puppet master abilities) of Prime Minister Stephen Harper:
Mr. Speaker, we have been putting in place practical, low-cost measures to tackle climate change and drive clean growth, including pricing pollution. It is clear that the Conservatives have no intention of taking climate change seriously and have no plan to promote clean growth in Canada. This is exactly the kind of inaction we saw in 10 years under Stephen Harper, who still very much apparently controls the backbench of the Conservative Party, and these Conservatives are no different. (emphasis added)
It is important to understand and worth mentioning that the linking of Stephen Harper to the current Conservative caucus is a test balloon at this point. The Trudeau Liberals have previously labelled Andrew Scheer “Stephen Harper with a smile” and that line and sentiment will be tested now by the Liberals to determine its strength going into an election campaign. It will be key to watch the polls, in particular the approval rates of Trudeau and Scheer to understand the impact of this tactic and whether or not it will be effective enough to be featured during the next election campaign.
There was a final exchange between Lisa Raitt and the Prime Minister over the carbon tax and again Trudeau linked the current caucus to the previous Conservative government:
The Harper Conservatives still demonstrate that they do not get it. They are stuck in what they were doing for 10 years. Canadians had enough.
It was another Conservative MP, Gérard Deltell, who asked the next question to the Prime Minister, the subject remained the carbon tax:
Mr. Speaker, I am pleased to repeat what I said because it is the truth and it comes from Natural Resources Canada. The Conservatives’ record from 2005 to 2015 is the following: a 2.2% reduction in greenhouse gas emissions and a 16.9% increase in GDP.
That is the Conservative record. We lowered greenhouse gas emissions and grew the economy. We did that without the Liberal carbon tax.
Why does the Prime Minister want to impose a tax on Canadians?
The Prime Minister did not step off message once in his reply:
Mr. Speaker, if these Conservatives want to run another campaign based on how well they did during the Harper years, I urge them to do so. Canadians rejected the approach of the Harper government, which presided over the worst record of economic growth since the Great Depression, was unable to create energy jobs in new markets, and failed to provide Canadians with the future they needed. Canadians made a choice: they rejected Harper and his Conservatives.
The Trudeau Liberal logic goes something like this: the current Conservative caucus is being run by Stephen Harper behind the scenes and their leader is no different than Stephen Harper (note how note once into QP at this point has Trudeau even mentioned Andrew Scheer), Canadians rejected Stephen Harper in the last election, therefore Canadians ought to reject the current Conservative caucus.
The issue of the carbon tax presents a perfect litmus test to begin determining the posturing that will develop as the election period encroaches. For the Conservatives, the issue is their bread and butter in terms of populism (everyone gets talking about the price of gasoline), plays to the geographical base and presents an opportunity to tap back into the 905 around Toronto. For the Liberals the carbon tax is their centerpiece environmental policy that they will hold up as taking real action on climate change in Canada (which is especially important given the mixed messaging of environmental stewardship from the Liberals coming out of the pipeline debates). It is also a great avenue to attack the previous Conservative government because of their quantifiable failure to act on environmental issues. It will be particularly interesting to watch the Liberals roll out their attempt to link the current Conservative caucus to Stephen Harper, whether or not it will be effective absolutely remains to be seen.
CBC News’ Sunday Scrum review the episode in the House of Commons on 10 May 17 wherein the opposition asked Prime Minister Justin Trudeau the same question 18 times and he replied in kind with the same answer each time.
Oral Questions, or Question Period as it has come to be unofficially called, is by far the most routinely watched and followed segment of the parliamentary day. It is during this daily 45 minute period that Members of Parliament are permitted to put oral questions to the government of the day and Ministers of the Crown are called upon to answer. Since Confederation, the period of time reserved for oral questions has evolved and now includes formal rules outlined in the Standing Orders of the House of Commons as well as through various Speaker Rulings throughout the history of the House of Commons. In this post we are going to examine the modern nature of oral questions, their historical significance and development over time.
Historical Development of Oral Questions
When Parliament first opened following Confederation, there were actually no provisions within the Standing Orders for oral questions. The only provisions for any sort of questions from MPs toward the government came in the form of written questions. Interestingly enough, the first recorded oral question took place without any formal guidance in place on 29 Nov 1867 (a full three weeks before any rules were formally written down, actually) when an oral question was posed to the Chairman of the Printing Committee. The inspiration for an oral question period came from the British House of Commons where the Prime Minister was subjected to questioning three times a week by MPs. It became a Canadianized practice during the legislatures of Upper and Lower Canada and eventually in the United Province of Canada prior to Confederation. It was not uncommon for MPs to put forward oral questions to Ministers of the Crown for urgent matters that required an answer within a timeline tighter than that of written question requirements. It was under this sentiment that Speaker Timothy Anglin made the first of a series of historical Speaker’s Rulings on oral questions when he said in 1878:
It is customary for hon. members to ask the Government for any special information between the various calls from the Chair for the day, before Notices of Motion or the Orders of the Day. I am not aware that any hon. member has a positive right even to do that; but I think he must confine himself entirely to asking the information from the Government, and he must not proceed to descant on the conduct of the Government.
But the 1940s a period of oral questioning had become an accepted part of the parliamentary day. However, there remained no official rules or guidelines covering their use and conduct. In 1944, the House procedures committee reviewed the practice of oral questions and concluded that it was “neither possible not advisable to do away with [oral questions].” However, the report from the committee was not accepted by the House of Commons and therefore was not actioned. This did not mean that oral questions went by the wayside, simply that the practise continued with little or no formal guidance in the Standing Orders of the House of Commons.
In 1964, the Speaker of the House of Commons attempted to enforce what was later viewed to be outdated rules concerning the conduct of oral questions and the formation of specific questions. This led to the formal codification of oral questions into the House of Commons Standing Orders. Thus Standing Order 37 was born which established a period of time for questions of an urgent nature to be put before the government. Under this new order, the Speaker had the power to determine that a question was not urgent enough to warrant an oral answer and could order the question sent to written questions. By 1975, a set timeframe for oral questions was established when a complete overhaul of the House of Commons routine business was conducted by the procedures committee. Since that time oral questions happen for 45 minutes each day at 2:15 pm EST Monday-Thursday and 11:15 am EST on Fridays, immediately following Statements by Members.
In 1974, Speaker Jerome established guidelines for questions during oral questions which were expanded and articulated in 1986 by Speaker Bosley. Bosley’s directions on oral questions remain the standard today for the conduct of this segment of business in the House of Commons. Speaker Bosley established four principles for the conduct of oral questions:
The time is scarce and should, therefore, be used as profitably as possible by as many as possible.
The public in large numbers do watch, and the House, recognizing that Question Period is often an intense time, should be on its best possible behaviour.
While there may be other purposes and ambitions involved in Question Period, its primary purpose must be the seeking of information from the Government and calling the Government to account for its actions.
Members should be given the greatest possible freedom in the putting of questions that is consistent with the other principles.
And adding to the ruling made by previous Speakers of the House of Commons, Bosley went on to articulate the principles, saying:
Mr. Speaker Jerome, in his statement 11 years ago, put his view with regard to the first principle of brevity so well that I would merely quote it:
“There can be no doubt that the greatest enemy of the Question Period is the Member who offends this most important principle. In putting the original question on any subject, a Member may require an explanatory remark, but there is no reason for such a preamble to exceed one, carefully drawn sentence.
“It is my proposal to ask all Hon. Members to pay close attention to this admonition and to bring them to order if they fail to do so. It bears repeating that the long preamble or long question takes an unfair share of the time, and invariably, in provoking the same kind of response, only compounds the difficulty.”
I agree with these comments and would add that such comments obviously also apply to answers by Ministers. I would also endorse Mr. Speaker Jerome’s view that supplementary questions should need no preambles; they should flow from the Minister’s response and be put in precise and direct terms without any prior statement or argument. It is the Chair’s view that it equally follows from the first principle, that time is scarce, that Members should seek to avoid merely repeating questions that have already been asked. I do not mean that other questions on the same subject should not be asked — as apparently I have been interpreted — just that subsequent questions should be other than ones already asked.
For similar reasons it has always been a fundamental rule of questioning Ministers that the subject matter of the question must fall within the collective responsibility of the Government or the individual responsibility of one of its Ministers. This is the only basis upon which Ministers can be expected to answer questions.
Beyond these few restrictions, there are a few other traditional restraints that flow from the principles above. Questions should relate to matters of some urgency and not be purely hypothetical. They should not seek a legal opinion or inquire as to what legal advice a Minister has received. They should not normally anticipate Orders of the Day. However, I hasten to add that there is normal exemption to that with regard to the budget process which I fully intend to honour. Members should be very careful with regard to questions or matters that are sub judice. Ministers should be questioned only in relation to their current portfolios and not in relation to any previously held responsibilities or Party responsibilities.
Since his ruling in 1986, Speaker Bosley remains the authority on determining the conduct of business during oral questions and has been cited by Speakers since as the foundation of our understanding of business during this segment of the parliamentary day.
The development of oral questions over time also saw the introduction of supplementary questions– or follow-up questions. Today, the standard is that one question is asked and then the member who posed the original question has up to three supplementary questions to ask. There is very little formal guidance for these supplemental questions but in 1997, Speaker Parent articulated in a ruling that supplementary questions should be related to the topic of the original question. This has become somewhat outdated with the current practice of having a different member rise to ask a supplemental question, and little formal direction has come out as of late from the Speaker’s Chair. It is not uncommon to see the Leader of the Official Opposition and the leader of each respective opposition party to take advantage of all three supplementary questions following their initial line of questioning on the government, and occasionally we see backbench members following up on their original questions.
Adjournment Proceedings or The Late Show
In 1964, the procedures committee implemented a new practice each day called Adjournment Proceedings. Essentially, it became a half hour period at the end of each day initiated by a motion to adjourn the House for the day under Standing Order 37(3). The idea was that members who were not completely satisfied with answers on a given topic would have a chance to bring up the issue one more time at the end of the day. Since that time, three topics are given notice during the day to the Speaker that will be brought up during the Adjournment Proceedings– or Late Show. These topics are typically follow up items from issues that have arisen during the day or week. Ministers of the Crown typically do not attend the Late Show, however it is not uncommon for Parliamentary Secretaries to spar and follow-up with MPs on issues that arose during oral questions earlier in the day. This proceeding coupled with question period and the odd opposition day are essential the only periods of House business that the opposition can control away from the government. They are therefore even more important in majority government situations (such as the current parliament) as they give the opposition a forum to bring issues of the day to light. Most Canadians are not aware of the connection between Oral Questions and Adjournment Proceedings and almost every major media outlet does not give the Adjournment Proceedings the same level of attention and coverage as Oral Questions.
Answers During Oral Questions
The old parliamentary adage goes that oral questions are called “question period and not answer period for a reason.” And there is a lot of truth to this statement. When answering questions a Minister of the Crown has a handful of options available to them:
answer the question;
defer their answer;
take the question as notice;
make a short explanation as to why they cannot furnish an answer at that time; or
Most of the time the Minister chooses to answer the question, or if you were to ask the opposition, they chose to speak to the question, rather than give an answer. It has come up often times throughout any discussion on oral questions that there are virtually no mechanisms available to the Speaker to ensure that questions are answered. This was put on a fantastic show during the previous session of parliament when the Parliamentary Secretary to then Prime Minister Stephen Harper, Paul Calandra, refused to answer a direct question from the NDP and instead spoke about issues in the middle east. The NDP was out of line for pleading for the Parliamentary Secretary to answer the question at hand, and the Speaker was left powerless to watch the House devolve into a circus as a result of Calandra’s poor answers. In the end, he apologized to the House and all was made well but not before an attempt was made by the opposition to have the Speaker rule that answers should have substance. In his ruling, Speaker Scheer outlined the guidelines handed down since 1867 and explained to the House the limits that the Speaker had in holding the government to account in answering questions to the satisfaction of the opposition. And with that statement he hit the crux of the issue on the head; by what metric would a Speaker determine that a question has been adequately answered? If the opposition is the benchmark, in other words a question if answered only when the opposition is happy with it, than we are entering into the realm of political and the debate of facts, which is not the place of the Speaker to determine but of the whole House.
There is little in the way of guidance for answers however the following three principles have arisen out of Speaker’s Rulings on the subject:
no particular Minister is compelled to answer a particular question, even if that question was directed to a particular Minister in the statement,
no MP can insist on the answer and no point of order can be raised on the grounds that a question was not answered satisfactorily
the content of answers is considered a debate about facts and thus within the realm of the entire House and not the Speaker to rule when is in order and out of order
Questions and answers in the House of Commons are subject to all other Standing Orders and Speaker’s Rulings, meaning that language must always be parliamentary in nature (cannot call someone a liar, for example) and questions must be directed to the Speaker and not individual members. Additionally, the following guidelines on what questions should not be asked have been established over time based on existing Standing Orders and past Speaker’s Rulings:
be a statement, representation, argument, or an expression of opinion;
seek an opinion, either legal or otherwise;
seek information which is secretive in its nature, such as Cabinet proceedings or advice given to the Crown by law officers;
reflect on the character or conduct of Chair Occupants, members of the House and of the Senate or members of the judiciary;
reflect on the Governor General;
refer to proceedings in the Senate;
refer to public statements by Ministers on matters not directly related to their departmental duties;
address a Minister’s former portfolio or any other presumed functions, such as party or regional political responsibilities;
be on a matter that is sub judice;
deal with the subject matter of a question of privilege previously raised, on which the Speaker reserved his decision;
make a charge by way of a preamble to a question;
be a question from a constituent;
seek information from a Minister of a purely personal nature;
request a detailed response which could be dealt with more appropriately as a written question placed on the Order Paper; or
concern internal party matters, or party or election expenses.
The inspiration of this post came from comments made by a Liberal Minister concerning questions related to the Liberal cash for access scandal currently before the government. There were significant questions on the subject during question period, and the Minister was commenting on the fact that the way she understood the guidelines, such questions were not in line (see: concern internal party matters, or party or election expenses, above). It could be argued however that the questions concerned the conduct of government, and not the Liberal party specifically.
As mentioned earlier, question period is the most watched and most engaging aspect of the parliamentary day. It’s importance within the Canadian political culture cannot be understated, however given it’s importance it is alarming how little the average Canadian knows about the conduct of question period. Opposition leaders are often measured in their capability within the job against their performance in the House of Commons, Ministers of the Crown conversely are measured in their capability through their answering and performance during question period. It is an essential element of our democracy in Canada.
You may have already noticed that bill C-1 and S-1 are not located anywhere in the Status of Government Legislation posts featured on this blog. There is actually a good and very interesting reason for this. In this post we will examine the practical purpose of bills C-1 and S-1 in each session of Parliament and briefly review the historical perspectives of these bills.
Each session of Parliament begins with the formal opening of said Parliament with a Speech from the Throne delivered by the Governor-General on behalf of the reigning Monarch (monarchs have delivered this speech in Canada on various occasions) in the Senate Chamber. However, before the session begins, before all of the MPs make the trek from the House of Commons to the Senate and before all of the Senators and Justices of the Supreme Court take their seats before a filled regal chair in the Senate Chamber the entire Parliament is summoned by the Governor-General on the advice of the Prime Minister. The summoning of Parliament is a formal requirement in accordance with our constitution and established conventions on the opening of a session of parliament. The Summons itself is a Crown prerogative that on convention is exercised on the advice of the Prime Minister and is the literal formation of a particular Parliament by the Crown-in-Canada. This fact is important, the formation of our democratically elected House of Commons and appointed Senate into a particular Parliament with all of the powers, authorities and privileges required to conduct the democratic will of Canadians is rested upon the ordering of certain persons to Ottawa by the Crown. The glaring authority of the Crown in the formation of Parliament is made obvious in the direction the Crown gives to the Usher of the Black Rod to collect Members of Parliament from the House of Commons and summon them, on their feet before the Bar of the Senate, to listen to the Crown’s priorities and objectives for the government and the upcoming parliamentary session.
At the end of the Speech from the Throne, MPs return to the House of Commons and Senators continue business in the Senate. In the House of Commons bill C-1 is normally proposed by the Prime Minister and is titled An Act respecting the Administration of Oaths of Office. In the Senate, bill S-1 is proposed by the Senator representing the Government and is titled An Act relating to Railways. Each bill is considered to be pro forma, in that their mere form represents the historical purpose of the proposed legislation. Each is given a first reading and then is never moved again. And each bill has nothing to do with the title, in fact in recent times the bill itself it not even printed or published. But they are arguably the most important pieces of legislation in each session of parliament. These bills represent the automous nature of Parliament and specifically of each House of parliament. Regardless of what reason the Crown gives in the Senate during the Speech from the Throne for why the Parliament has been summoned and regardless of what priorities the Crown has established for the Government, both Houses assert their independence and ability to set their own business. Without these bills, the Houses may be compelled to conduct only business strictly related to that outlined in the Speech from the Throne, or at least historically that would have been the case.
Each bill is a carry over practice from the British Parliament. In the UK, each session of Parliament begins with the presentation of the Speech from the Throne (albeit with the actual reigning Monarch) and when MPs return to the House of Commons, the government presents C-1, the Outlawries Bill. Like our own C-1 and S-1, the bill is read a first time and then never again dispensed with during the session. Rarely is the bill printed today. And just like the Canadian custom, the bill signifies the independence of Parliament from the Crown. During a review of House of Commons practice in 2002, the Procedure Committee reviewed the practice and determined that it had historical significance with little impact on other business and therefore had no reason to be removed from practice.
You will not see bill C-1 and bill S-1 on the Status of Government Legislation series on this blog because there is little reason to list it constantly in Second Reading in the House of Commons and the Senate respectively. However, that does not undermine their importance. Bills C-1 and S-1 are a constant reminder of the independence of parliament and the democratic authority that we mandate to our elected representatives in Ottawa. Their importance in a free and democratic society cannot be overstated.
The Order Paper and Notice Paper is the most important published document from a legislative standpoint (see the first image). Both the Senate and the House of Commons produce the Order Paper and Notice Paper daily (we are just going to focus on the House of Commons right now). You can find the Order Paper and Notice Paper for the House of Commons here. This document contains two sections; the Order Paper and the Notice Paper. The Order Paper concerns the order in which the House will hear business (all per the Standing Orders, unless otherwise ordered) and presents an outline for business which the government intends to introduce (under the headings Business of Supply, Ways and Means, Government Bills (House and Senate) and Government Business (the specific of these headings are not important yet, we will deal with that in a later post). The Notice Paper is the bulk of the document as it contains the order in which Private Members’ Business, motions, written questions and government bills are presented (basically how the House decides what is going to be debated).
Let’s take a look at Order Paper and Notice Paper No. 3 for the 1st Session of the 42nd Parliament of Canada. From this document we see that the House of Commons will be sitting a normal Monday routine. Further on in the document under Order of the Day we see that the government intends to debate the Reply In Address to the Speech from the Throne. We also get a little piece of information in that the Standing Orders grant six days of debate on this particular piece of business. You can also see a projection for the remainder of the week regarding the debate on this business. Government Orders has an interesting notice for the opposition concerning a Supply Day (otherwise known as an Opposition Day). The Standing Orders allocate a certain number of days broken down into three periods of the year for the opposition to present motions and control the flow of business in the House of Commons (see Standing Order 81). Because parliament has not been sitting for the full period ending 10 Dec 15, the President of the Treasury Board is indicating that the opposition will have one day this period (as per the Standing Orders) and it will be on 10 Dec 15, meaning we can expect an opposition motion of some sort on that day (or whatever else the opposition would like to focus the attention of the House on for that short period of time).
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.
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 executive– or government (which resides in the House of Commons). The Senate is composed of Senators who are appointed by the 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 they vote) 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 is moved between the House of Commons to the Senate and visa-versa. 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 unfold somewhat 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 during the single general election. The purpose of these elections is to select individual Members 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 appointment 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 House of Commons. 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 in a predictable and stable manner.
The Oath of Allegiance in Canada has a colourful history. Tracing its origins from the United Kingdom, the young British colonies that would eventually become Canada inherited deep European religious and social tensions that were reflected within the statutory oath of the particular time. In this post we will briefly explore the British roots of the oath of alligiance in Canada and we will trace the historical development of the modern oath.
A Snapshot of the Times: The Victorian Era British Oath
The first British North American colony to gain an elected assembly in what would become Canada was Nova Scotia. This historical body met for the first time in 1758 and, as a result of the fact that a Canadian law had not yet diverged from British statutory and common law, members swore the same oathes of office as MPs of the British parliament in London, England. At that time there were three oaths required of members who had gained elected office; “the oath of allegiance to the King, the oath of supremacy denouncing Catholicism and papal authority, and the oath of abjuration, repudiating all rights of James II and his descendants to the English Throne” (House of Commons Procedure and Practice 2nd Ed, 2009). Naturally, these oaths prevented Catholics and Jews from seeking elected office in the legislative assemblies of the British colonies. The cause of existence of each oath lay in a paranoid monarchy attempting to galvanize the Church of England against Papal authority. To some extent, these fears came with European settlers into the New World (even dipping toward modern times, for example the Kennedy campaign had to address his Catholic faith) but it is safe to conclude that the importance of personal religious faith was low to most British North American settlers. However, the English statutory requirement for the oaths remained and hence their introduction in immature legislative assemblies of British North America.
Prior to the establishment of elected legislative assemblies in North America, London passed the Popish Recusants Act of 1605 which established a new oath of allegiance establishing the spiritual authority of the English Crown. It read:
I, A.B., do truly and sincerely acknowledge, that our sovereign lord, King James, is lawful and rightful King and that the pope neither of himself nor by any authority of Church or See of Rome, or by any other means with any other, has any power to depose the king etc, or to authorize any foreign prince to invade him, or to give licence to any to bear arms, raise tumults, etc. Also I do swear that notwithstanding any sentence of excommunication or deprivation I will bear allegiance and true faith to his Majesty. And I do further swear that I do from my heart abhor, detest, and abjure, as impious and heretical this damnable doctrine and position,–that princes which be excommunicated by the pope may be deposed or murdered by their subjects or by any other whatsoever. And I do believe that the pope has no power to absolve me from this oath. I do swear according to the plain and common sense, and understanding of the same words. (King James VI and I and the Reunion of Christendom, 2000)
In addition to the oath of allegiance, elected members were required to swear the oath of supremacy (preventing Catholics from seeking office):
I, A. B., do utterly testify and declare in my conscience that the Queen’s Highness is the only supreme governor of this realm, and of all other her Highness’s dominions and countries, as well in all spiritual or ecclesiastical things or causes, as temporal, and that no foreign prince, person, prelate, state or potentate hath or ought to have any jurisdiction, power, superiority, pre-eminence or authority ecclesiastical or spiritual within this realm; and therefore I do utterly renounce and forsake all foreign jurisdictions, powers, superiorities and authorities, and do promise that from henceforth I shall bear faith and true allegiance to the Queen’s Highness, her heirs and lawful successors, and to my power shall assist and defend all jurisdictions, pre-eminences, privileges and authorities granted or belonging to the Queen’s Highness, her heirs or successors, or united or annexed to the imperial crown of this realm. So help me God, and by the contents of this Book [the Bible]. (Life in Elizabethan England)
A third, and final, oath was required, the oath of abjuration (preventing Jews from seeking office):
I ..; Do abjure and renounce the Pope’s Supremacy and Authority over the Catholic Church in General, and over my self in Particular; And I do believe that there is not any Transubstantiation in the Sacrament of the Lords Supper, or in the Elements of Bread and Wine after Consecration thereof, by any Person whatsoever; And I do also believe, that there is not any Purgatory, Or that the consecrated Host, Crucifixes, or Images, ought to be worshipped, or that any worship is due unto any of them; And I also believe that Salvation cannot be Merited by Works, and all Doctrines in affirmation of the said Points; I do abjure and renounce, without any Equivocation, Mental Reservation, or secret Evasion whatsoever, taking the words by me spoken, according to the common and usual meaning of them. So help me God. (British History Online)
The Canadian Model: Nova Scotia and the Oaths of Office
When the first legislative assembly met, it had conducted business in similar fashion to that of the Mother Parliament, and thus the three oaths of office were a requirement in order for elected members to take their seats. The result was that Catholics and Jews who were unwilling to take the public oath (and most were) did not take their elected seats or otherwise did not bother with standing for election. At any rate, until 1789 Catholics and Jews were not permitted to vote in the British colonies and “Catholics were not permitted to sit in the Assembly without first taking the declaration against transubstantiation; Jews were also barred from sitting in the Assembly because of the oath of abjuration” (House of Commons Procedure and Practice 2nd Ed, 2009). All of the British colonies at one point had a policy which prevented Catholics and Jews from seeking officer and/or voting in the legislative assembly as a result of the oaths of office.
It was not until the capture of Quebec City that the British Crown began to review the requirement for the oaths of office and offered a concession to the Catholic majority in the former French colony. In 1774, “the Quebec Act provided, among other matters, that Roman Catholics no longer had to take the oath of supremacy, substituting an oath of allegiance, should they wish to assume public office. The oath of abjuration still prevented Jews from assuming public office” (House of Commons Procedure and Practice 2nd Ed, 2009).
In 1832, Lower Canada passed a law which gave Jews the same rights and privileges as other citizens, the first jurisdiction in the British Empire to do so. When the United Province of Canada was established, the provisions of the Constitutional Act, 1791 regarding the oath of allegiance were carried over into the Union Act, 1840. At Confederation, the requirement for members of the Senate, House of Commons and provincial legislative assemblies to swear an oath of allegiance was included in the Constitution Act, 1867. (House of Commons Procedure and Practice 2nd Ed, 2009)
The Modern Era: Canadian House of Commons
Regardless of the colourful past of the oaths of office in Canada which were inherited from our European parents, the Canadian House of Commons never had a discriminatory oath for Catholics or Jews. By 1867, and the passage of the British North America Act which established the Dominion of Canada among Upper Canada, Lower Canada and a handful of maritime colonies, the English parliament had departed from the practice of barring Catholics from office in North America. The legislative assemblies in turn broke down restrictions placed on people of the Jewish faith. A year after Confederation, the British parliament passed Promissory Oaths Act, 1868 which established a simple oath, void of references to religious faith. The oath read as follows:
I, (Insert full name), do swear that I will well and truly serve Her Majesty Queen Victoria in the office of (Insert office of). So help me God. (Promissory Oaths Act, 1868)
Conclusion: Why Have an Oath?
It would seem odd that we even have an oath of office given the struggle for human rights when looking in the past. But the reason for the oath is simple and it is contained within a clause of the Magna Carta:
Once the terms had been finalised on 19 June, the rebels again swore allegiance to King John. The later Bill of Rights (1689) included the Oath of Allegiance to the crown, which was required by Magna Carta to be taken by all crown servants and members of the judiciary. (British Library)