By Charlie Feldman1
Non-government legislation warrants close attention as sittings of Canada’s 44th Parliament, 1st Session resume later this month. Thus far this session, the Senate of Canada has seen more Senate Public Bills (SPBs) introduced than in any session in Canadian history, and this record-setting total will only increase. Meanwhile, a trend in the opposite direction appears to be emerging in the House of Commons as fewer Private Members’ Bills (PMBs) – and fewer items of Private Members’ Business overall – are being introduced compared to previous non-pandemic sessions.
While some scholarship exists regarding Private Members’ Bills in the Canadian House of Commons – including in work from its former Law Clerk and Parliamentary Counsel – far less appears to be written on equivalent legislation in the Senate, Senate Public Bills. Current academic attention on the legislative functions of the Canadian Senate focuses on engagement with government legislation and, in particular, the Senate’s increasing rate of amendment. This focus makes sense given recent reforms to the Senate appointment process and their possible effects on partisanship; however, the SPB story is one worth considering.
While it would be notable on its own if SPBs were increasingly introduced but went nowhere in the legislative process, these bills are increasingly enacted. At this point in the session, more SPBs (8) than PMBs (5) have received royal assent. Might the Upper House currently have the upper hand when it comes to non-government legislation?
The new Senate record in context
The number of SPBs introduced in the Senate in recent parliamentary sessions (1994-present) is illustrated in Figure 1 (keep in mind that the 44th Parliament, 1st Session remains in progress).
It should be recalled that parliamentary sessions have different durations and there may be more or less non-government legislative activity given other circumstances – for example, the outbreak of the Covid-19 pandemic in the 43rd Parliament, 1st Session or the abnormally short 40th Parliament, 1st Session (the so-called ‘coalition crisis’). What is particularly striking about the SPB record being set during the 44th Parliament, 1st session is the relative length of the session compared to others. The longest single session in parliamentary history was the recent 42nd Parliament, 1st Session (2015-2019). Over the course of its 1378 days, the Senate sat 308 times and saw 68 SPBs introduced. Contrast that to the current 44th Parliament which so far has seen 138 Senate sittings in its first 600 days (at the time of this writing) but has seen 73 SPBs introduced. In other words, the Senate is seeing more SPBs introduced in less than half the time as observed just two parliaments ago.
As a historical context note based on Library of Parliament data, during the previous 80 parliamentary sessions in which SPBs were introduced (e.g., prior to the current session), the average was 8.6 SPBs introduced each session (median 3.5 SPBs introduced each session).
Wither the PMB?
With respect to the House of Commons, the number of PMBs being introduced is declining relative to the number of SPBs introduced. At the time of this writing, the PMB-to-SPB introduction ratio is at a 30-year low (excluding the abnormally short 40th Parliament, 1st Session discussed above and the first session impacted by the Covid-19 pandemic). The decreasing introduction gap between the two types of bills can be seen in Figure 2 below.
The drop in introduced PMBs during the 43rd Parliament, 1st Session is explained because the Covid-19 pandemic led to fewer parliamentary sittings and a focus on government legislation responding to the pandemic. However, notice that the 42nd Parliament, 1st Session – the longest single parliamentary session in Canadian history – has a drop from previous sessions. Why would fewer PMBs be introduced in a longer session than in shorter ones that preceded it?
As explained in House of Commons Procedure and Practice, “Private Members’ proposals can take the form of a public bill, a motion, or a notice of motion for the production of papers”. As bills are only one aspect of non-government business, it might be suggested that MPs are opting to introduce more motions instead of bills. However, in looking at the other types of private members’ business – motions and notices of motion for the production of papers – a decline similar to that observed with PMBs becomes apparent, as illustrated in Figure 3.
Nothing in the parliamentary record clearly explains why MPs not in Cabinet are opting to introduce fewer initiatives. This is an area worthy of further examination and analysis. Importantly, there may be a relationship with the increasing number of SPBs.
Bicameral effects
When an SPB passes the Senate, an MP must be found to sponsor the bill as a matter of Private Members’ Business. MPs not in Cabinet can sponsor one SPB over the course of a Parliament pursuant to Standing Order 86.2(2). If a House sponsor cannot be found, the bill is dropped from consideration, which is rare but occurred earlier this year.
While MPs participate in a lottery to determine the order in which they can advance a matter of Private Members’ Business in their name, SPBs jump the queue. In a 2017 white paper, the Government noted that it might consider “ways to manage Senate Public Bills that delay the replenishment of Private Members’ Business, possibly by having a separate rubric for these bills”.
No action has been taken to revise the process, which has produced some perhaps unexpected results. A particularly notable example is the case of An Act to Recognize Charlottetown as the Birthplace of Confederation. MP Wayne Easter introduced this PMB on March 24, 2016 as Bill C-253 and it never advanced (given Mr. Easter’s position in the lottery). However, the same bill was introduced as an SPB by Senator Diane Griffin on February 15, 2017. That SPB, Bill S-236, passed the Senate, was subsequently sponsored by Mr. Easter in the House, and received royal assent in December 2017. In short, the Senate’s version of the legislation became law before the House version even came up for debate, despite the House version being introduced earlier.
In the current session, some PMBs and SPBs bear striking similarities – including the following: An Act respecting the National Strategy to Combat Human Trafficking (C-308 and S-263), An Act to develop a national framework for a guaranteed livable basic income (C-223 and S-233), and Strengthening Reporting Obligations for Sex Offenders Act (Noah’s Law) (C-336 and S-226). Could it be that some MPs are seeking to advance their initiatives through the Senate in the hopes of having them pass faster than if they were advanced as PMBs in the House? This was the motivation behind the Charlottetown bill.
While the parliamentary rules around similar and identical items are designed to limit one Chamber considering the same thing twice, nothing stops the same initiative from being advanced in each House of Parliament simultaneously. Notably, there is a prohibition against using the legislative drafting services of the House of Commons to advance initiatives for the Senate. The Members By-Law of the House of Commons states that “[t]he funds, goods, services and premises provided by the House of Commons to a Member may not be used to support Senators, the Senate or the Government of Canada in the performance of their duties and functions.”
One other bicameral note warrants mention: When SPBs are received from the Senate, they are subject to review by the House’s Subcommittee on Private Members’ Business (SMEM). That committee reviews non-government public bills against certain criteria and must meet to consider SPBs, regardless whether there are PMBs to consider at the time. Importantly, the committee examines PMBs and SPBs differently. PMBs are subject to a more robust review by SMEM – including in respect of their constitutionality – something that is not required of SPBs. This could, in theory, motivate some to pursue an SPB over a PMB as the Senate has no SMEM-like committee for SPB review.
Conclusion
Parliamentary trends with respect to non-government legislation appear to be changing as more SPBs are being introduced while fewer PMBs and other items of Private Members’ Business are being introduced in the House of Commons.
Further research is warranted on increasing SPB introduction. In particular, has their content changed in recent years? If so, does it relate in some way with Senate composition changes, such as it becoming a gender-equal House for the first time in history? Or, are other activities motivating the SPB rise? Of particular note, recent research demonstrates that senators are now disproportionately lobbied relative to their MP counterparts. Could increased lobbying find expression in increased SPBs?
More research is warranted to explore why individual House legislators not in Cabinet appear to be advancing fewer initiatives in their own right while senators are introducing more. It may be that MPs are increasingly seeking to collaborate with a senator to advance an initiative through the Upper House in the hope that it will complete the legislative process more quickly. Whether the government will seek to encourage the House to reform practices in this area – as suggested in its 2017 white paper – remains to be seen. With Parliament’s imminent return, however, non-government legislation in Canada’s Parliament warrants a watchful eye.
- President of the Canadian Study of Parliament Group. The views in this work are those of the author and not of any employer. ↩︎