At the time this article was written
Pierre Duchesne was Associate Secretary of the National Assembly of Quebec and
Director General of Parliamentary Services This paper was presented to the 11th
Conference of the Association of Clerks-at-the-Table of Canada, held in
Winnipeg, August 1 to 4, 1979.
There was a time, in England, when
legislation was never drafted or published until after Parliament adjourned;
this meant that the statutes often included laws which had never been passed by
Parliament. Until the reign of Henry VI, any Bill to be considered by
Parliament was submitted In the form if a petition which Parliament granted or
refused. Today's method of legislating tabling Bills in both Houses as
complete statutes dates back to Henry VI, who sometimes took the liberty, as
did Edward IV, of adding sections on his own, without consulting Parliament.
If we pause for a moment to consider the
modus operandi of our legislative assemblies, we will soon realize how
Parliament's legislative monopoly is greatly undermined; even though, at Least
in theory, legislative power is distinct from executive power, In practice it
is the government which takes the Initiative in preparing and tabling
What part does the Member of Parliament play
as a legislator?
An article in Parliamentary Affairs
(1) holds that, In the eyes of most students of the political system, power in
today's parliaments Is gradually shifting from the legislative to the executive
branch. This shift can be attributed to four major factors: adherence by
Members to party lines; a decline in the prestige enjoyed by those Members; a
weak, complicated parliamentary system where things always move slowly; the
great: number of Bills to be! passed, and finally the technical nature of much
legislation, which requires that most Members possess advanced professional
Given all these reasons, then, it should
come as no surprise that the number of Bills introduced by Members has dropped
considerably. And even so, what facilities are made available to the Members?
What hope do they have of being able to continue to act as legislators In the
traditional sense of the word, and pilot legislation through all its various
The Table (2) recently carried out a survey In British-type
parliaments around the world, with a view to answering certain questions: what
opportunities do backbenchers get to introduce and pilot Bills? what
restrictions are Imposed on these Members with regard to the subject-matter of
their Bills? what attitude does the government generally assume when such Bills
are being studied? what technical assistance is made available to backbenchers?
Finally, what proportion of Private Members' Bills is finally assented to?
The answers obtained show that, while in a
vast majority of parliaments, backbenchers are allowed to table legislation,
the time allowed for discussing this legislation is not sufficient to allow the
sponsors the success to which they aspire. Although the Upper Houses generally
allow more time for this type of legislation, hopes are quickly dashed when the
Bills reach the Lower House.
A better illustration of our conclusions can
be seen in extracts from the answers we received from some of the Parliaments.
In London's House of Commons, Government
business is quite rightly granted priority at all sittings, although under
the Standing Orders, 12 Fridays in each session must be devoted to Private
Members' Bills. The first six Fridays are set aside for reading bills a second
time, and the last six for studying those which have already passed second
reading. Still, a Member may act in one of three ways to Introduce a Bill:
first, he may avail himself of the Standing Order which makes it possible for
the first six Members to have their bills debated in second reading on a
Friday; second, he may make use of the Standing Order which allows a Member ten
minutes in which to outline the content of his Bill; and third, he may follow
the usual procedure, which gives him practically no chance at all.
There is a fourth way, which should perhaps
be mentioned: he may submit a Bill from the House of Lords.
The most popular of these methods is
procedure under the "ten-minute rule" the sponsor of the bill can at
least be assured of a certain publicity, though It Is certain his Bill will
never be passed.
It seems that 15% to 20% of the Private
Members' Bills tabled in the British Parliament receive Royal assent. That
seems to me a considerable number.
For a Member of the House of Lords to pilot
a Bill is considered a privilege. Since there is no limit to the discussion
period, and since the Bill can deal with any subject except the imposition of
public expenditure, bills tabled in the Lords are generally passed, although it
does not necessarily follow that they will be passed in the Commons.
In Canada, Senators are given much the same latitude
as Lords. The only Bills which cannot. be tabled In the Senate are Money Bills
and Bills dealing with provincial matters. For their work as legislators, the
Senators are provided with all the professional and material assistance they
need, even that of the government. While procedure is more flexible than in the
Commons making it easier for a Senator than for a federal Member to introduce a
Bill the chances of that Bill. going through all the stages remain very slim,
unless, of course, there is unanimous consent to It. Difficult though It may be
to imagine, since the last War not one Bill introduced by a Senator has gone
through all the stages.
Private Members' Bills in the Canadian.
House of Commons may deal with any subject at all, but they cannot order public
expenditure., Even so, few of these ever, become law. A government which wants
to support a Bill will prefer to sponsor it itself, rather than allow a private
Member to do so.
Ontario has its own way of blocking; Private
Members' Bills. Under the Ontario Standing Orders, any member may, table
legislation which does not order public expenditure. Debate is restricted to
Thursday sittings only. At the end of the debate on second reading, the Speaker
asks whether the question can be put to the vote: if there are twenty
"Nays, the Bill is dead. Why must there be twenty? Because rather than
permit a debate Lasting twenty times ten minutes which for all practical
purposes would use up the entire period allowed for studying the Bill in this
way objections can be lodged immediately.
In Saskatchewan also, although the procedure
has met with 1ittle success, one day a week is set aside for discussions of
motions or Bills introduced by Members.
In Australia, Senators' Bills are often
introduced but few ever reach third reading. Whenever there is a sitting, a
Senator can table a noticce of motion with a view to introducing a Bill. The
next day, this notice of motion is declared either "formal" or
"non formal" although In fact, most such notices are declared "formal".
The Senator now introduces his Bill for first reading. One day a week is set
aside for discussion of these Bills. They are studied In the order In which
they are entered on the Order Paper, unless the Whips have agreed otherwise in
the interest of certain priorities. These Bills are subject to the same
restrictions regarding public expenditure and the imposition of taxes. We are
told that only 3% of Bills introduced by Australian backbench Senators ever
find their way into the Statute books.
In Australia's Rouse of Representatives, an
hour and a half Is set aside every second Thursday morning for studying
backbenchers' Bills. A Member, however, can give notice that he will be
discussing a motion rather than a Bill: according to the statistics, then, only
six days a year are devoted to Private Members' Bills. No special measures are
implemented to extend discussions beyond the time allowed unless, when the
business of the day is announced, the government recalls a bill which was
intended to die on the Order Paper. The usual restrictions apply to the
content. of backbenchers' Bills. Since very few backbenchers have introduced
legislation (51 Bills in 76 years), a relatively high percentage of these Bills
(10%) has received Royal. assent.
While we could go on describing what happens
in many other Parliaments, we shall Limit ourselves to four: in New Zealand, an
average of eight Private Members' Bills are submitted each session; only two,
however, have been granted Royal assent In the last 40 years; in Barbados, no
Bill introduced in the Legislative Assembly by a Member stands much. of a
chance of being passed, so the time generally granted to backbenchers is used
for discussing motions; in the Bahamas, even though the Standing Orders; allow
backbenchers to introduce Bills, no such Bill has yet been assented to.
Finally, in Sabah, Malaysia, it is impossible for any backbencher to Introduce
a Bill or pilot it through the Legislative Assembly. No false illusions here.
What happens in Quebec with regard to Private
Members' Bills? (and I am still, referring to public Bills.) The Rules and
Standing Orders provide that approximately an hour and a half be devoted every
Wednesday afternoon to Members' business. Under a very special order, soon to
become permanent, Wednesday is a day like any other throughout the debate on
the inaugural address, and (luring June and December: only government business
can be discussed. In addition, privileged motions and motions relating to
urgent matters always take precedence over any other business: one more
obstacle confronting a Member who seeks to introduce a Bill. If all these
obstacles are added up, few Wednesdays remain on which Private Members' Bills
as such can be debated.
Only two consecutive Wednesdays may be set
aside for debating any Private Member's Bill, and it is theoretically
impossible unless the unanimous consent of the Assembly is obtained to pass
a bill through all the necessary stages in two sittings. Very rarely, then,
does any Member dare to introduce a Bill unless he is after publicity.
I remember how, once, a Bill went through
all the stages in two minutes on the last day of the L977 Session. Introduced
by Mr Jean-Noel Lavoie, an Opposition Member, it contained one section which
placed a ceiling on the salary of the director-general of elections. Because
the government went along with this, speedy passage was possible.
One piece of legislation has just been
assented to, which was Introduced by a Private Member on the government side: A
Bill to create the Caisse Centrale Desjardins This bill was sponsored by a
Member of the government because a similar precedent existed, and to avoid any
partisan undertones. Of course it was studied during the hours normally devoted
to government business, and no time limit was fixed for discussion.
In the normal course of events, there is no
way any Member can have a Bill passed within the time limit provided by the
Rules and Standing Orders; for this reason, all our Wednesdays are spent
debating Private Members' motions. And that is the situation in Quebec.
What does this information tell us? Does it
not point up the fact that today there is little room for legislative
initiative on. the part of a Member or a Senator? Is this a malady to be found
only in the so-called British-type parliaments?
Existence of this drop in parliamentary
initiative is confirmed in Les Parlements dans le Monde (3) After conducting a
vast survey in 56 countries governed under a vast assortment of political
systems, the authors concluded that a government is no longer merely the agent
responsible for applying the legislation passed by parliament: it is also seen
as the principal authority behind the preparation of this legislation. This
treatise discusses the reasons why parliamentary initiative has disappeared: t
he complexity of legislation, a lack of technical resources, and the
restrictions regarding, among other things, expenses. And even if such a
parliamentary initiative is taken, discussion on it is often impossible, since
most of the legislation on the Order Paper concerns means proposed by the
government for the implementation of its policy. It will come as no surprise
that in France, for instance, while 53 Private Members' bills were introduced
in 1962, only seven were passed; in 1963, 13 out of 93 were passed.
Should a reform be proposed, or must we
adapt to the harshness of reality? In a column printed in the newspaper
l'Action on February 11, 1967, Jean-Charles Bonenfant seemed to give in:
Members must understand, he wrote, that today's laws are almost invariably
proposed by technocrats and the Executive; the Members are no longer the
people's only democratic representatives. In the same column, in 1973,
Bonenfant maintained that to think that Private Members' Bills can become law
without government consent is utopian.
John B. Stewart, in The Canadian House of
Commons (4), speaks of the pitiless massacre of Members' motions and Bills seen
under today's Constitution. Responsibility for governing a country, he writes,
is now in the hands of Ministers, not Members. It is the Ministers who should
be compelled to take the (legislative) initiative.
The British Parliament's Select Committee on
Procedure, in Its fourth report, submitted (luring the 1964-65 Session, favours
this kind of legislation and suggests that procedure be amended, particularly
as regards the balloting system, the number of sittings to be devoted to these
Bills, and the creation of additional committees to which they might be
referred. It would appear that this report fell on barren ground: the same
Committee made virtually the same recommendations in its second report,
submitted during the 1970-71 session.
Michael Ryle, writing in The Political
Quarterly, (5) commented on an article in that publication, which called for
reform to give this type of legislation a better chance. He stressed the
importance of Members' Bills: first of all, they provide an opportunity to
discuss things not included In the government's program and to sound out the
government's opinion; secondly, they make it possible to raise questions which
no party would dare raise on its own and which it would be difficult to accept
as party policy for instance homosexuality. The author concludes that if this
type of legislation is to survive, it must not be allowed to acquire second
class status, and there should be no impediments to its progress. In this way
the debate can be more open. P.A. Bromhead (6) describes this dilemma and
writes that, on the one hand, all Members of any democratic legislature should
have the right not only to introduce Bills but to debate them fully and to vote
on them; on the other hand, in today's world, responsibilities of state are so
heavy that it is not suitable for a private Member to sponsor a Bill.
Bromhead writes that in France and in the
United States, the right of the people's representatives to act: as legislators
remains sacrosanct. This right is part of tradition, and must remain intact A
Member's parliamentary initiative is respected: at least his Bill will always
be referred to a committee for study. Under the British system, on the other
hand, the elected Members' basic rights have fundamentally changed over the
years the time allotted to Members has been gradually cut down, and the scope
of Members' Bills reduced so that today, all any Member can do is ask
questions, see to his constituents' personal problems and albeit rarely
introduce legislation which will be considered second class. To repeal the
right of Members to introduce Bills would be to throw the system off balance,
so the right is maintained. Indeed, the Member's right to submit legislation
has been called the safety valve of the democratic system: perhaps the only way
a government could pass a politically unpopular bill would be as a Private Member's
If Members' legislative initiative is to be
maintained, then, the procedure will have to be changed.
One of the most Interesting suggestions for
providing increased opportunity for the debating of Members' Bills was made by
Laski (7): provided a bill immediately receives the support of a large number
of members, it should be referred to a special committee for study. This
committee would report to the House. If the report is favourable, the
government will be required to allow all the time necessary for the study of
While this seems like a new role for
parliamentary committees, those in Hungary, Switzerland and Yugoslavia are
already playing it: any parliamentary committee may put forth suggestions after
which the members of that committee, acting, individually or as a group, then
Another simplistic suggestion has been put
forth by Bromhead: Members should deliberately shorten the time period allowed
for their speeches, so that more of them can have a chance to introduce
legislation and vote on it. The influence exercised by certain Private Members'
Bills which have been assented to and have found their way into the statute
books substantially justifies maintaining the system.
Nor is the concept of the Member as legislator
ignored in Quebec. Several ways of expanding this role are being examined,
including the possibility of backbenchers preparing delegated legislation. In
addition, a more flexible interpretation is being sought of the provisions
governing the right of every Member to introduce public legislation. Perhaps
the rules can be made less rigid, to allow Private Members' Bills at least in
theory to be studied on their merits, and thus removed from the category of
Under our Rules and Standing Orders any
Member may introduce a Bill, and nowhere is it expressly stipulated that
motions for second and third reading of a Private Bill are subject to any
special Member's rules; although the Rules and Standing Orders lay down
specific procedure for Bills introduced by "interested persons. (Private
Bills), they in no way restrict the study of these Bills. Why, then, should a
Private Member's Bill not be granted the same importance as a government bill
or, at the very least, be placed on the same footing as bills introduced by
"interested persons"? Perhaps rules of practice could be drawn up
based on those regulating the study of both government bills and private
legislation. A Member's public bill could be submitted to a parliamentary
committee before second reading, for instance, without a public hearing.
Those who agree that backbenchers'
legislative initiative should be increased will surely see much to support in
Those who no longer believe that Members
should submit legislation will have to make a greater effort to define the role
of the backbencher and that problem is far from being solved.
We should always remember, though, that
there was a time when Parliament had nothing to do with either the drafting or
the publication of legislation.
1. Parliamentary Affairs, vol.
XXXIII, no. 1, 1979/70.
2. The Table, vol. XLVI, 1978.
3. Les Parlements dans le monde,
Union Interparlementaire, (1977).
4. John Stewart, The Canadian House of
5. The Political Quarterly, 1966.
6. Bromhead, Private Membrs' Bills in the
7. Parliamentary Reform, 1967, p. 123.