Reviving Conference Committees

by Hon. Dan Hays

Canada is a bicameral Parliament that does not have an effective way of resolving disputes between the two Houses. Section 26 of the Constitution Act, 1867 provides for the appointment of a maximum of two additional senators for each of the four

senatorial divisions in case of deadlock between the two houses. Used only once in 2008 CanLIIDocs 336 141 years it is the only constitutional deadlock breaking mechanism but is ineffective in dealing with day to day disagreements between the Houses. This article suggests the use of another technique, conference committees, which are provided for in the Rules of the Senate and the House of Commons but have been unused since 1947.

he history of Canadian parlia- ment. As Professor Kunz has said in The Modern Senate of Tmentary institutions shows Canada “it has always been a guiding principle for the that there has been great con- Senate to respect which might be called the open and cern about avoiding legislative dead- clear mandate…the Senate does not stand in the way of lock. The pre-confederation passing legislation once the people have clearly regis- experience of the old colonial legisla- tered their verdict.”1. As Kunz notes, senators might tures of Upper and Lower Canada is hum and haw and occasionally thunder, but in the end replete with numerous incidents of they show remarkable self-restraint and leave unpopu- deadlock between the appointed leg- lar matters to the responsibility of the House of Com- islative councils and the popularly mons. The historical average of Senate amendments to elected assemblies. Such deadlock was one of the reasons Commons bills per session ranges from around five to that Upper and Lower Canada were joined together in ten per cent. Bills are sometimes defeated or left to die on 1841 to form the United Province of Canada. However, the Order Paper but hardly in inordinate numbers. De- deadlock appeared again, this time within the legislative spite often vigorous debates among themselves, senators assembly of the United Province, and a desire to find a do not perform the normal lawmaking role that one solution to such deadlock became a primary reason the would expect within a legislature which holds an abso- Central Canadian Fathers called for a new parliamentary lute veto. While they can and do delay legislation, they structure under Confederation. seldom formally amend bills and in most cases back Although there are important exceptions, our down when their amendments are rejected by the Com- post-Confederation history has largely escaped bicam- mons. Senators instead attempt to exert legislative influ- eral deadlock. The Senate, despite having the constitu- ence by other means, such as policy studies, scrutiny of tional power of absolute veto over all legislation, has estimates, and the protection of individual charter rights mostly respected the dictums of responsible govern- and the rights of minorities.2 It is clear that under responsible government there must be a House of Commons bias to any legislation Dan Hays is a former Speaker of the Senate, former Deputy Leader of adopted by parliament. However, it is my view that Can- the Government in the Senate and former Chair of several Senate ada can be better governed if the House of Commons did Committees including the Special Committee on Senate Reform. He not have an almost exclusive ownership of the legislative retired from the Senate in June 2007. He is presently Chairman of process and senators became more active in openly pro- Macleod Dixon LLP in . The author is grateful to Dr. Gary O’Brien, former Deputy Clerk of the Senate, for assistance with this posing amendments and pursuing alternative policy article. choices. The representational role of the Senate would be

8 CANADIAN PARLIAMENTARY REVIEW/AUTUMN 2008 augmented and parliament as a whole would benefit House of Lords, a Conference on the Reform of the Sec- from the policy expertise senators would bring to the de- ond Chamber consisting of members of both houses of bate. parliament was appointed in 1917. It was chaired by Vis- Conference committees are a method of resolving count James Bryce, probably one of the world’s greatest deadlocks which arise over disagreement between the authorities on parliamentary institutions6, and charged two houses of parliament. They are a very old parliamen- with considering the composition and powers of a re- tary technique which according to Hatsell’s Precedents3 formed House of Lords. After a year’s study the Bryce date back to the 1500s. They are still part of the present Conference recommended that the differences between parliamentary process and can be found in the rules of the two houses should be resolved by a “Free Conference the Senate and the standing orders of the House of Com- Committee”. To ensure a House of Commons bias, the mons. According to accepted parliamentary practice, Bryce Conference proposed that in certain circumstances when there is disagreement as to the amendments to a a bill agreed to by the Commons and an adequate major- bill between the Senate and House of Commons, there ity of the Free Conference might become law without are two ways of proceeding: either the disagreement is agreement by the second chamber7. The British communicated by a formal message or an attempt is government at the time was preoccupied by war and the 2008 CanLIIDocs 336 made to resolve the disagreement by holding a confer- Bryce recommendations were never acted upon. ence. Either house may request a conference and the con- There are many steps the could ference will be a “a free one”, that is there are few take by itself in accordance with section 44 of the consti- restrictions on discussions and the managers who are se- tution and not subject to provincial approval to renew lected to speak for each house are free “to urge argu- the present Senate. They consist of adopting a Senate ments, to offer and combat objections, and, in short, to Modernization Bill to, for example, update the anti- attempt by personal persuasion and argument to effect quated sections of the old British North America Act, creat- an agreement between the two houses.”4 Since confeder- ing a Senate Appointments Commission, setting term ation there have been 13 conferences, the last one being in limits for senators, requiring that Senate vacancies be 1947. The number of managers has varied for each con- filled within 180 days, and having the Senate elect its ference. In the 1903 conference there were 12 members own Speaker. I have discussed these in detail in a discus- from the House, six from the Senate. In 1919, the numbers sion paper which I tabled in the Senate in May 2007.8 were 11 from the House and eight from the Senate. In While these reforms are not as comprehensive as those 1922, eight were members of the House and five were which would involve discussion with the provinces, senators, and in 1923 five represented the Commons and such as the redesign of seats, a new method of choosing three represented the Senate. In all other conferences, the senators and a restatement of the powers of a reformed numbers were equal.5 Senate, they will make the Senate a more effective institu- Attempts have been made in recent years in the Senate tion. Reviving conference committees are an essential to seek a conference with the Commons such as in 1987 component of the phase one initiatives and are within the regarding Bill C-22, the Drug Patent Bill and in 1990 with power of parliament to implement. respect to Bill C-21, an unemployment insurance bill, but A revitalized conference procedure would allow the these were not successful. The usual explanation as to Senate to engage in a more meaningful and open dia- why conference committees have fallen into disuse is logue with the House of Commons, particularly on con- that present day procedures now regularly include offi- troversial legislation. At the present time, there is no cial messages as to the details of the amendments to direct or public dialogue with members of the other place which a chamber is objecting and the frequent appear- on pending legislation. Negotiations between the two ance of ministers before committees of the House and houses, when they do occur, are behind the scenes. The Senate. Such procedures are poor substitutes for a pro- formal messages which gives the reasons why certain cess whereby parliamentarians representing the differ- amendments were rejected are often far too cursory and ent social bases of the Canadian polity can meet face to bureaucratic causing the other house to feel its proposals face in an open public forum to discuss concerns on im- may have been too quickly dismissed. Because relations portant policy matters. It should be noted that the United between the two houses in terms of disagreement on leg- Kingdom parliament seriously considered the use of islative matters are unpredictable and not transparent, conferences as an alternative to giving the Lords only a senators are reluctant to formally amend legislation – suspensive veto on public bills. Shortly after the passage more so than they should be in my opinion. Knowing of the Parliament Act, 1911 which was meant to be a tem- that the possibility of going to conference exists if the porary measure pending a more structured reform of the Senate is not satisfied would I believe make senators

AUTUMN 2008/CANADIAN PARLIAMENTARY REVIEW 9 more pro-active and effective in the formal legislative Reviving the conference procedure then, is an impor- process. tant prelude to more comprehensive Senate reform as However, if the Canadian parliament were to recon- well as an improved procedure on its own merits. Any sider and revive the conference committee procedure, it serious review of institutional reform must deal with this may wish to make some modifications. Clearly the pro- issue. cess can be undone by partisanship. Unambiguous and Notes fairly short time-line restrictions as to the appointment of the managers, the length of time a conference could meet, 1. F.A. Kunz, The Modern 1925-1963: A and when a conference report must be voted on by the re- Re-Appraisal, Press, Toronto, 1967, p. spective houses need to be implemented so that public 378. administration is not unduly delayed. Conference com- 2. See Paul G. Thomas, “Comparing the Law Making Roles of mittees should never be viewed as ways to upset the sta- the Senate and the House of Commons”, in Serge Joyal (ed), bility and certainty of the parliamentary process. They Protecting Canadian Democracy: The Senate You Never Knew, instead should be looked upon as a procedure to allow McGill University Press, Montreal and Kingston, Canadian

senators and members of the House of Commons to ex- Centre for Management Development, 2003, pp 189-228. 2008 CanLIIDocs 336 change views in a more open and meaningful way on 3. See John Hatsell, Precedents of Proceedings in the House of public policy matters. Commons, Rothman Reprints Inc., South Hackensack, N.J., Conclusion 1971, Volume IV, pp. 1-55. 4. Bourinot’s Parliamentary Procedure, quoted in Kunz, op.cit.,p. 360. The risk of legislative deadlock between the two 5. See “The Legislative Process”, Robert Marleau and Camille houses of parliament is a central concern in any discus- Monpetit, House of Commons Procedure and Practice, House of sion of Senate reform. As one keen observer of reform Commons and Cheneliere/McGraw Hill, Ottawa and proposals has noted , the central challenge will be to give Montreal, 2000. See also Blair Armitage, "Parliamentary the Senate sufficient powers to block without “usurp- Conferences", Canadian Parliamentary Review, vol 13, no. 2, ing”, to stop or amend legislation “unacceptable to mi- 1990, pp.29-30. nority regions while, at the same time, it must not have 6. Bryce was the author of Modern Democracies published in the power to bring about permanent deadlock between 1921. the Houses which would impede the capability of gov- 7. See House of Lords Briefing: Reform and Proposals for Reform ernments to govern and undermine the role of the House since 1900, London, AMSO, 2000. of Commons.” 9 8. See Renewing the Senate of Canada: A Two-Phase Proposal by While it is my view that a revised conference commit- Senator Dan Hays, May 25, 2007. tee procedure with a House of Commons bias is the pref- 9. Jack Stilborn, “Forty Years of Not Reforming the Senate”, in erable way to reform our deadlock-breaking mechanism, Serge Joyal (ed.), Protecting Canadian Democracy: The Senate other models to resolve legislative deadlock are instruc- You Never New,p.59. tive and should be reviewed. Each bicameral parliament 10. For a description of the powers of the upper houses and the differs with their own design to meet their unique cir- bicameral deadlock breaking mechanisms in the United States, Germany, Australia, France, the United Kingdom, cumstances.10 The double dissolution procedure used in Italy, Spain and Poland, see Samuel C. Patterson and the Australian parliament for instance seems quite dra- Anthony Mugan, eds., Senates: Bicameralism in the conian and a high cost solution to bicameral disagree- Contemporary World Ohio State University Press, Columbus, ments. Entrenching the Senate with only a suspensive 1999, pp. 24-26. For a discussion of the problem of deadlock veto as was done in the House of Lords could jeopardize confronting the government led by former Prime Minister the effectiveness of the Senate in influencing public pol- Fukuda and the current disagreements between the Upper icy and inadvertently delay public administration. and Lower Houses of the Japan’s National Diet, see Japan Echo, August, 2008.

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