Unfinished Business: A Snapshot of Recent Government Bill Practice

Article 2 / 10 , Vol. 44, no. 4 (Winter)

Unfinished Business: A Snapshot of Recent Government Bill Practice

Charlie Feldman is the President of the Canadian Study of Parliament Group and a member of the Law Society of Ontario. Any views expressed in this piece are his own and not those of any employer.

While the majority of parliamentary time is spent on government business, little scholarship appears to exist on the subject of government bills that do not receive Royal Assent. Government bills fail to complete the legislative process in both majority and minority parliaments. Further, some government bills are put on notice but never introduced. This work examines statistics from recent parliamentary sessions to document the varying rates at which government legislation is not passed in both the Senate and House of Commons, both in majority and minority parliaments.

Introduction

Government bills1 do not always complete the legislative process in both majority or minority parliaments. While much has been said about so-called “omnibus” bills2 or critiquing individual pieces of legislation (simply check Twitter on any sitting day), little appears written about government bills that do not become law.3

Government bills are worthy of study because they require tremendous resources to develop and are unique indicators of a government’s desired agenda. Looking at government bills that do not complete the legislative process provides a window into the government’s legislative planning decisions and the prioritization by the government of its various legislative initiatives.

In broad strokes, legislative planning requires identifying the matters from the government’s agenda that require legislation, determining whether measures are to be advanced as stand-alone bills or combined with other initiatives (such as being included in budget implementation legislation), and deciding whether to introduce bills in the Senate or House of Commons – as well as when the bills should be introduced. Once bills are before Parliament, further legislative planning decisions are reflected in the order in which bills are brought forward for debate, and whether any procedural tools – such as time allocation – are used to advance a particular bill.

A government bill – like any other piece of legislation – might not always be introduced with the intention of seeing it passed in that particular session.4 However, the introduction of a government bill signals that resources have been spent – and cabinet decisions made – to develop the legislation and put it before Parliament.5

This article looks at government bills from the 35th Parliament to the present. During that time, the parliamentary journey of a government bill that did not receive royal assent typically ended because of prorogation or dissolution. However, government bills might be defeated at a particular stage of debate6 or because the Senate or House decides not to proceed further with the bill.7

Bills that do not receive royal assent include bills that were introduced, as well as those that were only put on notice but never introduced.8 This article discusses both of these contexts in turn.

Government Bills Introduced in Parliament

In the most recent parliamentary session—the 43rd Parliament, 2nd Session (September 23, 2020–August 15, 2021)—40 government bills were introduced9. Statistically, government bills in this session were just as likely to receive royal assent as they were not to complete the legislative process. While having a 50 per cent passing rate might not make for an ideal academic record, it is par for the course for government bills in recent minority parliaments.

The graph below displays the percentage of government bills that did not receive royal assent in recent parliamentary sessions.10 Non-solid bars indicate periods of minority government. The specific data is provided in the Appendix.

Averaging the below-depicted parliamentary sessions together,11 around 38 per cent of government bills will not pass in any given parliamentary session. More specifically, the average non-pass rate is 31 per cent in majority parliaments and 49 per cent in minority parliaments.12 Government bills did not pass in a given session between 17 per cent (42-1) and 56 per cent (40-3) of the time. In parliaments with more than one session, the percentage of government bills that do not pass tends to be greater in the second session than in the first.

A bill that does not pass in one session might be reintroduced in a later session or combined with other items and reintroduced. This work examines whether a government bill received royal assent in a given session rather whether the policies contained therein were eventually enacted. It should be kept in mind that government bills can vary tremendously in length – from a single page to hundreds of pages – and range from the substantive to the arguably symbolic.

From the data available thus far — and keeping in mind that it is but a small sample, and perhaps impacted by the Covid-19 pandemic — recent Senate appointment reforms have had no significant impact on the percentage of government bills that have been passed. The average of figures from the 42nd and 43rd Parliaments (one majority and one minority parliament) puts the percent of government bills that did not receive royal assent at 36 per cent, which is down slightly from the 35th–41st Parliaments, wherein the average percentage of government bills that did not receive royal assent was 39 per cent across a mix of both majority and minority parliaments.

The distribution of government bills between the Senate and House of Commons has varied significantly in recent parliaments. On average, nine per cent of government bills are introduced in the Senate each session. No government bill was introduced in the Senate during the 1st Session of the 43rd Parliament. In contrast, 21 per cent of government bills (a total of 17) were introduced in the Senate during the 41st Parliament, 1st Session.

As explained by the Privy Council Office, “Most Government bills are first introduced in the House of Commons. However, a Government bill may be first introduced in the Senate if it does not impose or increase taxes and does not provide for the spending of public money.”13 Whether a non-fiscal government bill should be introduced in the Senate or House of Commons is a choice for the government to make. As a historical note, at the start of the 36th Parliament, the Senate’s Standing Committee on Internal Economy, Budgets and Administration agreed to “endorse the position that more government bills be introduced first in the Senate.”14

The graph below depicts the number of government bills introduced in the Senate and House of Commons in recent parliamentary sessions.

Of the bills introduced in the sessions represented in the graphs15 734 of the total 1146 government bills introduced in the House passed alongside 74 of the 116 government bills introduced in the Senate. As both of these percentages round to 64 per cent, one can argue that a government bill has a similar chance of receiving royal assent regardless of where it is introduced16. A government bill introduced in the Senate is slightly more likely to not complete the legislative process (45 per cent) than a House-introduced government bill (38 per cent)17.

Of the introduced government bills that do not receive royal assent, the vast majority are pending some action in the House of Commons at the time of prorogation or dissolution. In looking specifically at government bills from the 37th Parliament onward, a House-introduced government bill will end the legislative process pending some further House action approximately 80.71 per cent of the time. In contrast, a Senate-introduced government bill will end its legislative journey pending Senate action only 1.85 per cent of the time. Based on the data, a government bill is far less likely to have its legislative journey end in the Senate than in the House, regardless of the chamber in which it was introduced.

Bills on Notice and Bills Withdrawn

Bills put on notice but never introduced provide a glimpse of what the government may have wanted to advance or might seek to advance in the future. Recall that every government bill – whether introduced or not – requires a significant amount of resources to develop, from innumerable policy analysts to legislative drafters, jurilinguists, revisors, and an entire cabinet process.18

The government gave notice for two bills in the 43rd Parliament, 2nd Session, but never subsequently introduced them. First, on January 21, 2021, the Minister of Employment, Workforce Development and Disability Inclusion gave notice of a bill entitled “An Act to amend the Canada Recovery Benefits Act and the Customs Act”. While it is unclear why no bill was subsequently introduced with this title, Bill C-24 (introduced on February 25, 2021 by the same minister) amended both the Canada Recovery Benefits Act and the Customs Act in addition to the Employment Insurance Act. It may be that the proposals from the minister’s bill on notice were simply repackaged into a broader legislative piece.

Second, on June 21, 2021, the Minister of Public Safety and Emergency Preparedness gave notice of a bill entitled “An Act establishing the Public Complaints and Review Commission and amending certain Acts and statutory instruments”. No such legislation was introduced prior to dissolution. Indeed, the House of Commons only sat for two more days after notice was given.

The title of this bill—“An Act establishing the Public Complaints and Review Commission and amending certain Acts and statutory instruments”—echoes a portion of a previous government bill’s summary that mentioned the legislation would “rename the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police as the Public Complaints and Review Commission.” This legislation, Bill C-98 of the 42nd Parliament, was introduced in the legislature’s final days and was reintroduced as Bill C-3 in the 43rd Parliament, 1st Session, in early 2020, but was never advanced. Whether the bill that was on notice in the 43rd Parliament, 2nd Session, was indeed an extension of the ideas first set forth in Bill C-98 in 2019 and subsequent Bill C-3 in 2020 will perhaps become clear if similar legislation is introduced and debated in the 44th Parliament.

In recent Parliaments, back-to-work bills were the only government bills on notice at the end of the session but not introduced.19 It is understood that merely putting such bills on notice may encourage parties at a labour impasse to come to the table, given the threat of a legislated resolution. As such, debate and passage of these bills may be unnecessary. Excluding the brief 40th Parliament, 1st Session, it appears that the 38th Parliament was the last parliamentary session with non–back-to-work government legislation on notice but not introduced at the end of a session.20

As a related twist, a government may put legislation on notice in the House of Commons but withdraw it from notice. If a bill is introduced and withdrawn before the next printing of the Notice Paper, there will be no public record of the bill being put on notice. However, several examples can be found of government bills that were published on the Notice Paper and then subsequently withdrawn.21

To provide one example, on April 16, 2013, the Minister of State (Democratic Reform) gave notice of a Bill entitled “An Act to enact the Canada Political Financing Act and to amend the Canada Elections Act and other Acts”. The Bill goes from the Notice Paper to the Order Paper, where it is published every day through May 7, 2013, the date on which it was withdrawn. Press reports suggest that the introduction of the measure was delayed after concerns with its content were raised in the governing party’s caucus.22 It should be noted that the government is not required to indicate why it has chosen to withdraw a bill put on notice, and there may be no press or parliamentary indication of the reason.

Conclusion

Government bills are a vitally important part of the legislative process; however, their movement through Parliament has not generated much scholarship. Government bills do not always become law, regardless of the party in power and whether it enjoys a majority of seats in the Senate or House of Commons. Further, there are historical anomalies to appreciate, such as the government bill that passed both the Senate and House of Commons but was never presented for royal assent because of an unexpected dissolution23.

While this brief work does not attempt to delve into why certain bills do not pass, one can imagine a range of reasons, from bills introduced at the end of session with no reasonable chance of passage to significant policy disagreement between parliamentarians and the government. Further study in this area may help to shed light on the factors that contribute to the success or failure of government legislation to complete the legislative process, with potential implications for other types of bills introduced in Parliament.

Notes

1 In this article, government bills are as indicated on LEGISinfo (https://www.parl.ca/legisinfo), but ceremonial bills (Bills S-1 and C-1) are excluded. Each divided bill from a government bill (such as Bills C-10A and C-10B in the 37th Parliament, 2nd Session) is considered to be a government bill distinct from its parent bill.

2 See Louis Massicotte, “Canada: If Controversial, Omnibus Legislation Is Here to Stay,” in Comparative Multidisciplinary Perspectives on Omnibus Legislation, Ittai Bar-Siman-Tov, ed. (Cham, Switzerland: Springer, 2021), https://doi.org/10.1007/978-3-030-72748-2_11; and Adam Dodek, “Omnibus Bills: Constitutional Constraints and Legislative Liberations,” Ottawa Law Review, vol. 48, no. 1, 2017.

3 This article is inspired by one of the few works on this topic in the Canadian context, Andrew McKelvy’s Why Bills (don’t) Become Law: The Success and Failure of Government Legislation in Parliamentary Democracies (American University political science doctoral thesis, 2016), presented in part at the Canadian Political Science Association Conference, 2015.

4 Consider, for example, that a government bill was introduced on the last sitting day of the House of Commons in both the 43rd Parliament (C-36) and the 41st Parliament (C-75).

5 See Privy Council Office, Guide to Making Federal Acts and Regulations, 2nd ed. (Ottawa: Privy Council Office and Department of Justice, 2001), https://www.canada.ca/en/privy-council/services/publications/guide-making-federal-acts-regulations.html.

6 For example, on February 15, 2005, the House of Commons defeated both Bill C-31, “An Act to establish the Department of International Trade and to make related amendments to certain Acts” and Bill C-32, “An Act to amend the Department of Foreign Affairs and International Trade Act” at Second Reading. See House of Commons, Journals, February 15, 2005, 38-1, no. 57, at pages 434-436.

7 An example can be found from the Journals of the Senate of Canada, 39-1, June 19, 2007 at page 1769: “Accordingly, pursuant to the recommendation contained in the report presented on June 12, 2007, and printed at page 1654 of the Journals of the Senate, Bill S-4, as amended, shall not be proceeded with at third reading until such time as the Supreme Court of Canada has ruled with respect to its constitutionality.”

8 Notice for the first reading and introduction of bills is required in the House of Commons but not the Senate. See: Senate Standing Order 54(1); Rule 5-7(j).

9 It should be noted, of course, that this Parliament occurred against the backdrop of the Covid-19 pandemic.

10 The 40th Parliament, 1st Session (November 18, 2008–December 4, 2008) is excluded as no bills received royal assent during that session.

11 It must be kept in mind that parliamentary sessions can very greatly in terms of their length. For instance, 37-3 ran from February 2, 2004, to May 23, 2004, whereas 42-1 ran from December 3, 2015, to September 11, 2019. The number of government bills introduced can also fluctuate (from 122 in 35-1 to 20 in 43-1). It may be that an analysis using a weighted-average scheme is desirable; however, this work is meant to be general in nature.

12 Percentages are rounded throughout the calculations.

13 Supra note 5.

14 First Report, 36th Parliament, 1st Session, October 1, 1997, https://sencanada.ca/en/content/sen/committee/361/inte/01rp-e.

15 35-1 to 43-2. Again, 40-1 is excluded because no bills received royal assent during that session.

16 Of course, there is no way to account for each individual bill proposing a unique policy that may enjoy more or less support in a given parliament.

17 It must be kept in mind that some sessions only see one or two Senate-introduced bills. For the sessions examined herein, the 41st Parliament, 1st Session, had the most Senate-introduced government bills, at 17.

18 See the Cabinet Directive on Law-Makinghttps://www.canada.ca/en/privy-council/services/publications/guide-making-federal-acts-regulations/guide-making-federal-acts-regulations-cabinet-directive-law-making.html.

19 June 16, 2010, Minister of Labour, Bill entitled “An Act to provide for the resumption and continuation of air service operations”. September 19, 2011, Minister of Labour, Bill entitled “An Act to provide for the resumption and protection of air service operations”. February 5, 2014, Minister of Labour and Minister of Status of Women, Bill entitled “An Act to provide for the continuation and resumption of rail service operations”. February 13, 2015, Minister of Labour and Minister of Status of Women, bill entitled “An Act to provide for the resumption of rail service operations.”

20 June 9, 2005, Minister of Finance, Bill entitled “An Act to amend the Income Tax Act in respect of corporate income tax”, and October 6, 2004, Minister of State (Infrastructure and Communities), Bill entitled “An Act to establish the Office of Infrastructure of Canada, to amend the Canada Strategic Infrastructure Fund Act and to make consequential amendments to other Acts.”

21 A huge thank you to those who helped identify these needle-in-a-haystack bills, which include “Act to amend the Ending the Long-gun Registry Act” (notice: June 6, 2017; withdrawal: June 7, 2017) and “An Act to amend the Canadian Security Intelligence Service Act and to make a consequential amendment to another Act” (notice: October 16, 2014; withdrawal: October 20, 2014).

22 Steven Chase, “Harper government delays bill to address robo-calls issues,” Globe and Mail (Online), 17 April 2013.

23 Bill C-29, “An Act for granting to Her Majesty certain sums of money for the public service for the financial year ending the 31st March, 1980” did not receive Royal Assent. While the Journals for both the Senate and House of Commons show the Bill as being passed on December 13, 1979, the Government later that same day lost a vote that it considered to be a confidence measure. Prime Minister Joe Clark sought and received from the Governor General a proclamation of dissolution the very next day without royal assent occurring in the interim.

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