Bicameral Conflict Resolution: Developments in the 42nd Parliament.

• Author: Renna, Guillermo

As co-legislators, the Senate and the House of Commons are central to the legislative process in the Canadian Parliament. Since both Houses must pass legislation in identical form before it can become law, the way the Chambers resolve their differences is crucial to the legislative process. This article focuses on how the Senate and the House of Commons use messages to resolve their differences on legislation.

A central aspect of Canada's federal legislative system is its bicameralism. Like the United Kingdom, Canada has an appointed Upper House, the Senate, and an elected Lower House, the House of Commons. As co-legislators, the Houses of Parliament may on occasion disagree on legislative matters, and the process by which they resolve their disagreements is an important part of the legislative process. This article focuses on how the Senate and the House of Commons use messages to communicate about legislative matters, and in particular, how they use this process to settle differences on legislation.

Historically, the Senate did not attract much scholarly attention. As recently-retired Senator Serge Joyal, a prominent constitutional scholar and expert on the Senate, notes:

[t]he Senate is likely the least admired and least well known of our national political institutions. Its work attracts neither the interest of the media, the respect of elected politicians, the sympathy of the public, nor even the curiosity of academia. (1) However, the Senate attracted considerable attention during the 42nd Parliament because of its willingness to amend bills passed by the House of Commons, which resulted in an increased level of unpredictability. (2) The change in the Senate appointment process, introduced by Prime Minster Trudeau, resulted in an increase in the number of senators without a party affiliation. A plurality of senators are now a part of the Independent Senators Group (ISG), which does not require its members to have a unified legislative position. This lack of party discipline contributed to the increased level of unpredictability since it was not clear how senators would vote on a given issue. (3) Senators appointed through the new process appeared to view their legislative role differently than their predecessors. (4) Understanding the relationship between the Senate and the House of Commons is important because "bicameral institutions do not just affect how governments form but also how governments structure their legislative agenda." (5)

This article looks at the rules in each Chamber to deal with amendments from the other Chamber. While the way the Chambers resolve their legislative disagreements is not new, the 42nd Parliament saw an increase in the number of bills amended by the Senate, which resulted in its increased use. This article argues that developments relating to the message process during the 42nd Parliament raise important questions that the Chambers may want to resolve moving forward.

The article describes the message process in detail and outlines the rules in each Chamber regarding this process. To gain a better understanding of the process, the author interviewed two procedural officers, who have asked to remain anonymous, and Senator Peter Harder, former Government Representative in the Senate. The article focuses on three important elements: the difference between the Chambers regarding what they permit as a response to amendments; whether the current structure provides parliamentarians with the information in an accessible way; and, the issue of consequential amendments in the House of Commons.

A Paper Trail: Communication between the Chambers

To become a law, a bill must pass through both Houses of Parliament in identical form. If the Chambers disagree, there are two ways to resolve disagreements. First, they can communicate amendments through a seldom studied but vital mechanism, the written message. The Chambers may engage in a back-and-forth using these messages. This process is colloquially known as 'ping-pong'. Alternatively, they could put together a conference with members of both Chambers to discuss disagreements. According to House of Commons Procedure and Practice, a conference can be initiated by the Chamber that has the bill. (6) However, this practice has fallen into disuse. (7)

The message is a physical piece of paper that is sent from one Chamber to another. A message may concern bills, the appointment of joint committees and their membership, joint resolutions, or a request for the presence of a Member of one Chamber in the other. (8) These messages are signed by the Clerk of the initiating Chamber and signed by the Clerk of the receiving Chamber. The messages appear in the Journals of the House in which there are received. (9,10)

Messages may also be used to communicate more political matters, including when one Chamber is displeased with the actions of the other. For example, on April 11, 2019, the Senate received a message urging it to pass two pieces of legislation since they "ha[d] been in [the] possession of Honourable Senators for many months and both bills should be passed into law at the earliest opportunity." (11) These messages are not always well received; the Hon. Yonah Martin remarked: "I can hear Senator Cools' voice rising and saying 'How dare the other house tell this house what we should or should not do'". (12) Moreover, even if there is agreement, one Chamber may choose to communicate observations to the other Chamber. (13)

For simplicity, let us take the case of a bill originating in the House of Commons. Once it is passed by the House, the Senate may wish to amend the bill. If the Senate passes the bill with amendments, the bill would be sent back to the House of Commons along with the message from the Senate, which contains the proposed changes, and the engrossed amendments. (14,15)

An Amendment Message

The message containing amendments to a bill contains either two or three elements. The first element of the message informs the receiving Chamber which bill is being discussed and asks that the receiving Chamber concur with its changes. The second element is legal and sets out the amendments that are being proposed to the bill. The last element, which is not included in every message, is political.

In its response to an amendment message, a Chamber may include information about why a particular amendment was included or rejected. For instance, the motion presented by the Minister of Public Safety and Emergency Preparedness to disagree with certain amendments made by the Senate to Bill C-59 stated that:

the House ... respectfully disagrees with amendment 1 made by the Senate because the intent of the legislation is to ensure ministerial responsibility and accountability, and the legislation provides that the Intelligence Commissioner must review whether or not the conclusions of the Minister of National Defence, when issuing a foreign intelligence authorization, are reasonable; additionally, subsection 20(1) already requires the Commissioner to provide the Minister with reasons for authorizing or rejecting a foreign intelligence authorization request. (16) The procedure for considering a message containing amendments varies by Chamber and will be described in detail below.

The Message Process Explained

Purpose of the message process

Each stage of the legislative process restricts the scope of discussion and potential amendments to ensure that the purpose of that stage is achieved. For instance, second reading debate focuses on the principle of the bill, to explore whether the subject matter or policy intent of the bill is worth pursuing. As a result, the scope of amendment allowed at this stage is limited. The text of the bill cannot be amended, only the motion for second reading, and "debate must focus on the principle of the bill and not on its individual provisions." (17)

While each Chamber's procedure for dealing with amendments from the other Chamber differs, it would appear that both aim to achieve the same goal. Namely, the purpose is to help legislators focus on the elements of legislative disagreement that remain. As one interviewee stated, the use of the message process to resolve disagreements is "meant to focus [debate]. That is to say that the messages should deal with the amendments and either seek to replace the amendments appropriately or drill down. It's not meant to widen [debate]." (18) Another interviewee described the message process "as a funnel. When you ping pong back, what remains open for discussion are the remaining points of discord." (19) Senator Harder echoed a similar idea: "it is a different debate than the bill. The message is not the bill. Unfortunately, some Senators now think we have a fourth reading, as opposed to a message. And that's one where we have to continue to make that clear." (20)

Procedure in the House

A message with amendments sent by the...