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 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.
The history of Canadian parliamentary institutions shows that there has
been great concern about avoiding legislative deadlock. The pre-confederation
experience of the old colonial legislatures of Upper and Lower Canada is
replete with numerous incidents of deadlock between the appointed legislative
councils and the popularly elected assemblies. Such deadlock was one of
the reasons that Upper and Lower Canada were joined together in 1841 to
form the United Province of Canada. However, deadlock appeared again,
this time within the legislative assembly of the United Province, and a
desire to find a solution to such deadlock became a primary reason the
Central Canadian Fathers called for a new parliamentary structure under
Although there are important exceptions, our post-Confederation history
has largely escaped bicameral deadlock. The Senate, despite having the
constitutional power of absolute veto over all legislation, has mostly
respected the dictums of responsible government. As Professor Kunz has
said in The Modern Senate of Canada it has always been a guiding principle
for the Senate to respect which might be called the open and clear mandate
Senate does not stand in the way of passing legislation once the people
have clearly registered their verdict.1. As Kunz notes, senators might
hum and haw and occasionally thunder, but in the end they show remarkable
self-restraint and leave unpopular matters to the responsibility of the
House of Commons. The historical average of Senate amendments to Commons
bills per session ranges from around five to ten per cent. Bills are sometimes
defeated or left to die on the Order Paper but hardly in inordinate numbers.
Despite often vigorous debates among themselves, senators do not perform
the normal lawmaking role that one would expect within a legislature which
holds an absolute veto. While they can and do delay legislation, they seldom
formally amend bills and in most cases back down when their amendments
are rejected by the Commons. Senators instead attempt to exert legislative
influence by other means, such as policy studies, scrutiny of estimates,
and the protection of individual charter rights and the rights of minorities.2
It is clear that under responsible government there must be a House of
Commons bias to any legislation adopted by parliament. However, it is my
view that Canada can be better governed if the House of Commons did not
have an almost exclusive ownership of the legislative process and senators
became more active in openly proposing amendments and pursuing alternative
policy choices. The representational role of the Senate would be augmented
and parliament as a whole would benefit from the policy expertise senators
would bring to the debate.
Conference committees are a method of resolving deadlocks which arise over
disagreement between the two houses of parliament. They are a very old
parliamentary technique which according to Hatsells Precedents3 date back
to the 1500s. They are still part of the present parliamentary process
and can be found in the rules of the Senate and the standing orders of
the House of Commons. According to accepted parliamentary practice, when
there is disagreement as to the amendments to a bill between the Senate
and House of Commons, there are two ways of proceeding: either the disagreement
is communicated by a formal message or an attempt is made to resolve the
disagreement by holding a conference. Either house may request a conference
and the conference will be a a free one, that is there are few restrictions
on discussions and the managers who are selected to speak for each house
are free to urge arguments, to offer and combat objections, and, in short,
to attempt by personal persuasion and argument to effect an agreement between
the two houses.4
Since confederation there have been 13 conferences, the
last one being in 1947.
The number of managers has varied for each conference.
In the 1903 conference there were 12 members from the House, six from the
Senate. In 1919, the numbers were 11 from the House and eight from the
Senate. In 1922, eight were members of the House and five were senators,
and in 1923 five represented the Commons and three represented the Senate.
In all other conferences, the numbers were equal.5
Attempts have been made in recent years in the Senate to seek a conference
with the Commons such as in 1987 regarding Bill C-22, the Drug Patent Bill
and in 1990 with respect to Bill C-21, an unemployment insurance bill,
but these were not successful. The usual explanation as to why conference
committees have fallen into disuse is that present day procedures now regularly
include official messages as to the details of the amendments to which
a chamber is objecting and the frequent appearance of ministers before
committees of the House and Senate. Such procedures are poor substitutes
for a process whereby parliamentarians representing the different social
bases of the Canadian polity can meet face to face in an open public forum
to discuss concerns on important policy matters. It should be noted that
the United Kingdom parliament seriously considered the use of conferences
as an alternative to giving the Lords only a suspensive veto on public
bills. Shortly after the passage of the Parliament Act, 1911 which was
meant to be a temporary measure pending a more structured reform of the
House of Lords, a Conference on the Reform of the Second Chamber consisting
of members of both houses of parliament was appointed in 1917. It was chaired
by Viscount James Bryce, probably one of the worlds greatest authorities
on parliamentary institutions6, and charged with considering the composition
and powers of a reformed House of Lords. After a years study the Bryce
Conference recommended that the differences between the two houses should
be resolved by a Free Conference Committee. To ensure a House of Commons
bias, the Bryce Conference proposed that in certain circumstances a bill
agreed to by the Commons and an adequate majority of the Free Conference
might become law without agreement by the second chamber7.
The British government at the time was preoccupied by war and the Bryce
recommendations were never acted upon.
There are many steps the Parliament of Canada could take by itself in accordance
with section 44 of the constitution and not subject to provincial approval
to renew the present Senate. They consist of adopting a Senate Modernization
Bill to, for example, update the antiquated sections of the old British
North America Act, creating a Senate Appointments Commission, setting term
limits for senators, requiring that Senate vacancies be filled within 180
days, and having the Senate elect its own Speaker. I have discussed these
in detail in a discussion paper which I tabled in the Senate in May 2007.8
While these reforms are not as comprehensive as those which would involve
discussion with the provinces, such as the redesign of seats, a new method
of choosing senators and a restatement of the powers of a reformed Senate,
they will make the Senate a more effective institution. Reviving conference
committees are an essential component of the phase one initiatives and
are within the power of parliament to implement.
A revitalized conference procedure would allow the Senate to engage in
a more meaningful and open dialogue with the House of Commons, particularly
on controversial legislation. At the present time, there is no direct or
public dialogue with members of the other place on pending legislation.
Negotiations between the two houses, when they do occur, are behind the
scenes. The formal messages which gives the reasons why certain amendments
were rejected are often far too cursory and bureaucratic causing the other
house to feel its proposals may have been too quickly dismissed. Because
relations between the two houses in terms of disagreement on legislative
matters are unpredictable and not transparent, senators are reluctant to
formally amend legislation more so than they should be in my opinion.
Knowing that the possibility of going to conference exists if the Senate
is not satisfied would I believe make senators more pro-active and effective
in the formal legislative process.
However, if the Canadian parliament were to reconsider and revive the conference
committee procedure, it may wish to make some modifications. Clearly the
process can be undone by partisanship. Unambiguous and fairly short time-line
restrictions as to the appointment of the managers, the length of time
a conference could meet, and when a conference report must be voted on
by the respective houses need to be implemented so that public administration
is not unduly delayed. Conference committees should never be viewed as
ways to upset the stability and certainty of the parliamentary process.
They instead should be looked upon as a procedure to allow senators and
members of the House of Commons to exchange views in a more open and meaningful
way on public policy matters.
The risk of legislative deadlock between the two houses of parliament is
a central concern in any discussion of Senate reform. As one keen observer
of reform proposals has noted , the central challenge will be to give the
Senate sufficient powers to block without usurping, to stop or amend
legislation unacceptable to minority regions while, at the same time,
it must not have the power to bring about permanent deadlock between the
Houses which would impede the capability of governments to govern and undermine
the role of the House of Commons. 9
While it is my view that a revised conference committee procedure with
a House of Commons bias is the preferable way to reform our deadlock-breaking
mechanism, other models to resolve legislative deadlock are instructive
and should be reviewed. Each bicameral parliament differs with their own
design to meet their unique circumstances.10 The double dissolution procedure
used in the Australian parliament for instance seems quite draconian and
a high cost solution to bicameral disagreements. Entrenching the Senate
with only a suspensive veto as was done in the House of Lords could jeopardize
the effectiveness of the Senate in influencing public policy and inadvertently
delay public administration.
Reviving the conference procedure then, is an important prelude to more
comprehensive Senate reform as well as an improved procedure on its own
merits. Any serious review of institutional reform must deal with this
1. F.A. Kunz, The Modern Senate of Canada 1925-1963: A Re-Appraisal, University
of Toronto Press, Toronto, 1967, p. 378.
2. See Paul G. Thomas, Comparing the Law Making Roles of the Senate and
the House of Commons, in Serge Joyal (ed), Protecting Canadian Democracy:
The Senate You Never Knew, McGill University Press, Montreal and Kingston,
Canadian Centre for Management Development, 2003, pp 189-228.
3. See John Hatsell, Precedents of Proceedings in the House of Commons,
Rothman Reprints Inc., South Hackensack, N.J., 1971, Volume IV, pp. 1-55.
4. Bourinots Parliamentary Procedure, quoted in Kunz, op.cit., p. 360.
5. See The Legislative Process, Robert Marleau and Camille Monpetit,
House of Commons Procedure and Practice, House of Commons and Cheneliere/McGraw
Hill, Ottawa and Montreal, 2000. See also Blair Armitage, "Parliamentary
Conferences", Canadian Parliamentary Review, vol 13, no. 2, 1990, pp.29-30.
6. Bryce was the author of Modern Democracies published in 1921.
7. See House of Lords Briefing: Reform and Proposals for Reform since 1900,
London, AMSO, 2000.
8. See Renewing the Senate of Canada: A Two-Phase Proposal by Senator Dan
Hays, May 25, 2007.
9. Jack Stilborn, Forty Years of Not Reforming the Senate, in Serge Joyal
(ed.), Protecting Canadian Democracy: The Senate You Never New, p. 59.
10. For a description of the powers of the upper houses and the bicameral
deadlock breaking mechanisms in the United States, Germany, Australia,
France, the United Kingdom, Italy, Spain and Poland, see Samuel C. Patterson
and Anthony Mugan, eds., Senates: Bicameralism in the Contemporary World
Ohio State University Press, Columbus, 1999, pp. 24-26. For a discussion
of the problem of deadlock confronting the government led by former Prime
Minister Fukuda and the current disagreements between the Upper and Lower
Houses of the Japans National Diet, see Japan Echo, August, 2008.