Are you Ready to Legislate?

Dara Lithwick
Constitutional and Parliamentary Affairs

Government legislation often overshadows the important role played by individual members of Parliament and senators in proposing laws. Since 1910, 278 bills sponsored by MPs and senators have been passed by Parliament, 43 in the 41st Parliament alone.

Of the 43 receiving royal assent, some designated various days, such as “Korean War Veterans Day” (July 27) and “National Fiddling Day (third Saturday in May). Others involved amendments to the Criminal Code; one added the offence of trafficking in persons to offences committed outside Canada for which Canadian citizens or permanent residents may be prosecuted in Canada.

Bills introduced by individual senators are called “Senate public bills”, while those introduced by MPs are called “private members’ bills”.

In the House of Commons, the term “private members” refers to members of Parliament who are not government ministers or parliamentary secretaries. The Speaker and the Deputy Speaker also do not participate in private members’ business.

The Steps: Decide, Draft, Debate!

Step 1: Decide

Senate public bills and private members’ bills are the product of an individual parliamentarian’s vision combined with the support of parliamentary staff. Government bills, on the other hand, are developed with departmental policy support, drafted by the Department of Justice and introduced by a member of the Cabinet.

An individual parliamentarian may be motivated to introduce legislation by experiences outside of Parliament, by encounters with constituents and stakeholders, or by experiences arising from parliamentary committee work.

Resources are available to help parliamentarians transform their vision into an actual bill. Analysts at the Library of Parliament, who are experts in a variety of fields including law, economics, science, public administration and social sciences, can help refine their ideas. For example, these experts can prepare background research papers on the subject of interest along with options for legislative reform.

Step 2: Draft

The formal drafting of all Senate public bills and private members’ bills is done by lawyers specialized in legislative drafting at, respectively, the offices of the Senate Law Clerk and Parliamentary Counsel and the House of Commons Law Clerk and Parliamentary Counsel. They also ensure that bills follow proper drafting procedure, norms and conventions.

In terms of procedural requirements, the Rules of the Senate specify that Senate public bills must follow two basic requirements to be in order: First, they must not be “money bills” that require the appropriation of money or imposition of a tax. Second, they must not duplicate another bill that had been passed or defeated in the Senate (Rule 10-9).

In the House of Commons, a private member’s bill should avoid containing provisions for the spending of funds, unless a royal recommendation can be obtained from a cabinet minister before the bill is read a third time and adopted. Similarly, a private member’s bill must not impose new taxes, as this power resides with the government and requires a ways and means motion.

In addition, the House of Commons provides a number of proscriptions regarding the votability of a bill. The Subcommittee on Private Members’ Business has the power to decide whether a particular bill or motion should be deemed non-votable based on four criteria as adopted in a 2007 report of the Standing Committee on Procedure and House Affairs.

Bills and motions must not:

  • concern questions that are outside federal jurisdiction;
  • clearly violate the Constitution Acts, 1867 to 1982, including the Canadian Charter of Rights and Freedoms;
  • concern questions that are substantially the same as ones already voted on by the House of Commons in the current session of Parliament, or as ones preceding them in the order of precedence;
  • concern questions that are currently on the Order Paper or Notice Paper as items of government business. (Bills are assessed against bills and motions against motions.)

Decisions on votability are reported back to the Standing Committee on Procedure and House Affairs.

Step 3: Debate

Senate Rules specify that any senator, as of right, may introduce a bill in the Senate (Rule 10-2). This is done during the Routine Proceedings portion of a sitting, which allows the Senate to organize its future business.

Second Reading, when the principle of the bill is first debated, can take place after two days’ notice. In the Senate, items are called up in the order that they appear on the Order Paper. They can “stand” there for a maximum of 15 consecutive sitting days without being proceeded with (Rule 4-15(2)), at which point they are dropped (requiring a new motion to be added back again).

In the House of Commons, the rules set aside time during a sitting for consideration of private members’ bills, unlike in the Senate, where all bills are eligible for debate once notice is given.

The order of precedence in the Commons is determined by lottery. This lottery takes place at the beginning of a new Parliament and is used to establish a List for the Consideration of Private Members’ Business (in accordance with Standing Order 87).

Ministers, parliamentary secretaries, the Speaker and Deputy Speaker are not eligible to be on the list; the rest of the 338 MPs are assigned a number to create the list.

The top 30 names on the list are used to create the Order of Precedence, which lists the bills and motions by individual MPs that are scheduled for actual debate in the House (after the Subcommittee on Private Members’ Business determines votability).

The Order of Precedence is regularly replenished as bills and motions are debated in the House and continue to move through the legislative process.

Indeed, all bills, regardless of their origin, have to pass through various stages to become law. For an overview of the process in the Senate, consult The Senate and Legislation. For the House of Commons, consult the Compendium’s “Legislative Process”.

Related Resources

House of Commons, Private Members’ Business – Practical Guide, 9th ed. (2008)

Senate of Canada, Senate Procedure in Practice (2015)

Dara Lithwick, A pas de deux: The Division of Federal and Provincial Legislative Powers in Sections 91 and 92 of the Constitution Act, 1867, Library of Parliament publication No. 2015-128-E, 8 December 2015.