Parliamentary Rules Concerning Private Members' Bills.

AuthorMacKay, Robin

A recent trend in Canada's Parliament has seen an increase in the number and complexity of private Members' bills (PMBs) that have received Royal Assent. These PMBs frequently go beyond changing the name of a riding or declaring a commemorative day to amend such complex pieces of legislation as the Criminal Code. Given the rise in the number and importance of PMBs, this article poses the question as to whether the rules of Parliament concerning PMBs are fit for the task. Those rules give the government of the day a great deal of control over the progress of its legislation but do not do the same when it comes to a PMB. The relatively few resources allocated to a PMB raises the question as to whether it is taking on more weight than its institutional structure can bear. Some suggestions are offered to ensure that PMBs receive the full and frank discussion they deserve.

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A recent trend in Canada's Parliament has seen an important change in the way public policy is debated and then enacted. This is due to an increase in the number and complexity of private Members' bills (PMBs) that have received Royal Assent. In the two Parliaments of Brian Mulroney's tenure as Prime Minister (1984-1993), 32 PMBs received Royal Assent, with 18 of these changing the name of an electoral district. (1) By comparison, in the three Parliaments of Stephen Harper's tenure as Prime Minister (2006-2015), 63 PMBs received Royal Assent, none of which dealt with riding name changes. Not only have the raw numbers of PMBs increased, but they now deal more frequently with amendments to such complex pieces of legislation as the Criminal Code. (2) From 1910 to 2005, 13 PMBs were adopted that dealt with criminal justice policy. From 2007 to 2015, this number increased by 20. (3) The number that took almost a century to reach was exceeded in less than a decade. Given the rise in the number and importance of PMBs, this article poses the question as to whether the rules of Parliament concerning PMBs are fit for the task.

The Treatment of Private Members' Business

The parliamentary rules that govern the treatment of PMBs have evolved throughout Canada's history. In the early years of Confederation, a large proportion of the time of the House of Commons was devoted to private bills or to private Members. Governments, however, found that the amount of House time given over to the conduct of their own legislative programs was not sufficient, and over the years, changes were made to the Standing Orders to give more House time to the government for its own business. (4) Private Members' Business (5) was then given greater prominence due to the recommendations of the Special Committee on the Reform of the House of Commons (the "McGrath Committee"), established in December 1984.

In its final report to the House in June 1985, the McGrath Committee summarized the problem with Private Members' Business in the following terms:

The House does not attach any great importance to private members' business as it is now organized. This is evident from the fact that members are seldom greatly concerned to claim the priorities they have drawn in the ballot governing the use of private members' time, and this is largely because private members' bills and motions rarely come to a vote. (6) The Committee made the case for giving greater prominence to individual Members of Parliament as legislators by saying: "Private members must once again become instruments through which citizens can contribute to shaping the laws under which they live." (7) Enhancing the role of the private Member was seen as being a key part of restoring confidence in the House of Commons as the central democratic institution in Canada. The recommendations of the McGrath Committee supported the amendments to the Standing Orders that now form the basis for the modern rules relating to Private Members' Business, including the establishment of the order of precedence and the manner in which items are debated. (8)

The report of the McGrath Committee acknowledged the importance of PMBs, and rightly so. A PMB affords a Member of Parliament the opportunity to strike out on his or her own and to focus the attention of Parliament on an issue of particular importance to the MP personally or to his or her riding. It also provides a vehicle to distinguish an MP as an individual, as opposed to being just another member of what may be a large caucus. Furthermore, a PMB may serve as a means of encouraging the government of the day to adopt the issue in question as its own. Thus, an effective PMB system can contribute to legitimating Parliament in the eyes of an electorate which casts votes for a specific individual, not an abstract idea of a legislature.

We need here to distinguish between different types of PMBs. (9) Some serve to call attention to an issue by proclaiming a special day in commemoration. (10) The parliamentary rules governing PMBs seem to be entirely adequate to deal with this type of legislation. There are other PMBs, however, that have much greater legal implications, such as those that amend the Criminal Code. If a PMB is creating a new criminal offence, for example, then, in addition to any general societal impact, there will be widespread effects on the police, Crown and defence attorneys, judges, and the correctional and parole systems. All of these actors in the criminal justice system will require training concerning the new offence. The recent increase in the volume of PMBs and their use to make important changes in the criminal justice area calls into question whether the practices of the House of Commons and the Senate governing them need further amendment to ensure that they are given the parliamentary scrutiny they warrant.

Control of the Legislative Process

One of the most important tasks imposed upon Parliament by the Constitution Act, 1867 is that of making the criminal law. (11) This task is primarily carried out through the Criminal Code, but dozens of other statutes, such as the Controlled Drugs and Substances Act, (12) define criminal activity and impose fines and/ or imprisonment for its commission. Depriving Canadians of their liberty or property should be treated with the highest degree of seriousness and the federal government can ensure that its own criminal law bills are debated in the order it chooses. As a former law clerk and parliamentary counsel has written: "Policy decision-making is primarily the preserve of the Government which closely guides the schedule of the House of Commons to ensure the passage of its programmes." (13) This, however, is not the case with PMBs, which are called according to their place in the Order of Precedence, which, in turn, is based on a...

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