Explanation of the Legislative Process

We thought that it might assist you to provide a brief explanation of the process by which a piece of legislation is passed. This explanation generally applies both to the Federal Parliament and the Ontario Legislature. We also provide a brief explanation of how a newly passed law comes into force. References below to the “House” are intended to refer to both Parliament and the Legislature.

What is a Bill?

A Bill is a draft proposal for a new law, for the amendment or repeal of an existing law, or for appropriation of public money, presented to a legislature, but not yet enacted or passed and made law.

There are two basic types of Bills: Public Bills and Private Bills.

Public Bills relate to matters of a public policy nature, and generally apply to the public as a whole. Private Bills, on the other hand, apply locally or to a specific person or persons, including corporations. HumanResourcesLegislativeUpdate.com deals exclusively with Public Bills.

There are two types of Public Bills: Government Public Bills and Private Members’ Public Bills. The legislative processes governing the two types of Public Bills are essentially the same.

Private Members’ Public Bills

Any Private Member of the Legislature may introduce a Private Member’s Public Bill (i.e., a Bill that would amend the general laws of the province). While the legislative processes governing the two types of Public Bills are essentially the same, historically, Private Members’ Public Bills very rarely receive Third Reading and Royal Assent (described below). Accordingly, HumanResourcesLegislativeUpdate.com will only track those Private Members’ Public Bills that have progressed through Second Reading. It is important to note that, even in those cases, only exceptionally will a Private Member Bill pass into law.

How Does a Bill Get Passed Into Law?

Under the Parliamentary system, Bills must carry or “pass” First, Second and Third Reading by a majority vote. We explain what these various stages involve below.

First Reading

Government Ministers or other House members introduce new Bills, which receive First Reading. At this time, the government or private member may make a short speech explaining the purpose of the Bill. The House does not debate the Bill at this time.

Second Reading

After being introduced and given First Reading, the Bill will usually be printed and made available for consideration. Second Reading will then occur. At Second Reading, the House debates the general purpose or object of the Bill, and accepts or rejects it. The specific provisions of the Bill will not be debated at this time.

Committee Stage

After Second Reading, the Bill will usually be referred to a Committee for further consideration. The Committee considers the Bill on a clause-by-clause basis. The Committee will also consider amendments to the text of the Bill. In some circumstances, the Committee may invite the public to make submissions on the Bill. After the Committee has completed the clause-by-clause review, it reports the Bill back to the House.

Report Stage

After the Committee reports the Bill, the whole House may consider it further. The House may consider the Bill on a clause-by-clause basis, and may propose new amendments. The Federal Parliament must consider the Bill at the Report Stage, but the Ontario Legislature may choose not to (and usually does not do so).

Third Reading

Third Reading of the Bill follows the Report Stage. The House may again debate the Bill, but only to a limited extent. After the Bill receives Third Reading, the House passes it. However, the Bill is not yet law.

Royal Assent (Ontario)

After Third Reading, the federal and provincial processes diverge. In Ontario, the government presents the Bill to the Lieutenant Governor for Royal Assent. The Lieutenant Governor assents to the Bill in the name of the Queen, and the Bill becomes law. While the Lieutenant Governor technically possesses the power to withhold or reserve assent, this power is no longer exercised.

Senate Approval and Royal Assent (Federal)

At the federal level, Parliament sends the Bill to the Senate for consideration. The Senate subjects the Bill to a legislative process almost identical to the one described above. That is, the Senate reads and debates the Bill, may refer the Bill to a Senate Committee, and may make or recommend amendments to the Bill. If the Senate makes amendments to the Bill, the Bill returns to Parliament, which may either agree or not agree to the proposed amendments. Ultimately, Parliament and the Senate must agree to the final form of the Bill. When they reach agreement, the Governor General gives the Bill Royal Assent, and it then becomes law.

Senate Bills

There is one further matter which may be of interest to you. As indicated above, federal Bills must pass through both the House of Commons and the Senate before they become law. You may be aware that government Bills and private members Bills may be introduced in the Senate (except for “tax” Bills, which must originate in the House of Commons). If the Bills are introduced in the Senate, they must go through First Reading, Second Reading, Committee stage and Third Reading in the Senate. A Bill passed by the Senate would then be referred to the House of Commons, where it would have to go through a similar process and be passed by the House of Commons. Once both the Senate and the House reached agreement on the final form of the Bill, it would be given Royal Assent and become law.

When Does a Bill Come Into Force?

When a Bill receives Royal Assent, it becomes law. However, the Bill does not necessarily begin to apply to facts, events or other matters at that time. Rather, the new Act or the amendments to an existing Act only begin to apply when it comes into force. Thus, it is important to know when and how the provisions of the Bill come into force.

Royal Assent

The default position is that a Bill will come into force on Royal Assent unless the Bill specifies otherwise.

Specific Date

The Bill may specify a date on which it will come into force. This date will usually be a day after the Bill receives Royal Assent. On rare occasions, however, the Bill may specify a day prior to when the Bill receives Royal Assent. This latter situation is called a retroactive application of the statute, and effectively changes the law at a previous time from what it was.

A Day To Be Named

Many Bills provide that they will come into force on a future date, or a “day to be named” either Proclamation of the Lieutenant Governor (Ontario) or by Order of the Governor in Council (federal).

Proclamations and Orders-in-Council will generally be published in either The Ontario Gazette or the Canada Gazette.

Many bills combine the above methods. That is, the Bill may specify that certain sections come into force on Royal Assent, while other sections come into force at a date to be named.

More information on this can be found on the Ontario Legislative Assembly website and the Parliament of Canada website (federal).

Budgets Documents and Taxation Statutes

A slightly different process applies to budget documents and taxation statutes. Governments often introduce budget documents in quite general terms. Budget documents are not Bills, as discussed above. Rather, the budget that is tabled in the Legislature or Parliament (together referred to as the “House”) provides an overview of the direction the government will be taking.

At the federal level, after the government introduces the budget in Parliament, it will introduce a “Notice of Ways and Means Motion”, which will provide for the detailed implementation of the provisions of the budget. The Motion will include any necessary amendments to existing statutes brought about by the budget. After the Ways and Means Motion has been adopted in the House, the government will table a Bill which will, in turn, implement the Motion. In practice, the Motion and the Bill are identical. The Bill will then undergo the process that we described above.

When a budget is introduced in Ontario, there is no Notice of Ways and Means Motion. Rather, the budget debate is preceded by a motion made by the Minister of Finance that “this House approves in general the budgetary policy of the government”. Once the motion is adopted, parliamentary convention dictates that the budget measures may take immediate effect without a Bill being tabled. At some point, a Bill will be introduced to make the required statutory amendments, with retroactive application if necessary (a not uncommon occurrence with budgets). In practice, the initial Bill is often presented at approximately the same time that the motion is made, but that is not always the case.

How Do Regulations Get Made?

Regulations are passed under the authority of a statute. Often, though not always, regulations are passed by the Cabinet or by a Minister. Although the specifics at the federal and provincial levels are different, regulations will invariably be published in either The Ontario Gazette or the Canada Gazette.

Generally speaking, Regulations become law on the day that they are filed.

The Regulation-Making Process

Government regulations play an important role in the provision of government policies and programmes. Indeed, many of the details of statutory requirements will be found in regulations and not statutes. The debate and passage of new statutes in the Legislature is a relatively familiar process, and is frequently covered by the media. The making of regulations, however, is a process that is neither familiar nor obvious.

As a general rule, regulations can only be made under express statutory authority. That is, somewhere in the parent statute, there must be a power to make the regulation in question. In most cases, the regulation will be made by Cabinet – i.e. the Lieutenant Governor in Council (Ontario) or the Governor in Council (federal). In some limited circumstances, the power to make regulations may be given to a specific government minister, or on even rarer occasions, to a lesser government official or administrative body.

There is no formal process specified for the making of regulations. Part III of the Ontario Legislation Act, 2006 and the Statutory Instruments Act (Canada) provide some guidance, but much of the process has developed over time as a matter of practice. In order to understand the process, it will assist to recall the basic structure of the government.

Background

The government is usually divided into various ministries or departments, each headed by a Minister. Each ministry or department is further divided into branches, each of which is responsible for the programmes administered under the statutes within the Ministry’s oversight. Generally speaking, regulations come about because subordinate legislation is needed to implement a particular government programme set out in a statute.

General Process

Against this background the following basic process is commonly followed:

• Programme administrators or others within a Ministry develop a policy submission regarding the need for the regulation and its expected financial impact.
• The policy submission is reviewed within the Ministry to ensure compatibility with other programmes and policies. If approved, the policy submission is submitted to the Minister for approval. If approved by the Minister, an initial draft of the Regulation may be prepared.
• The policy submission and/or draft regulation may be circulated outside the Ministry for comment. This circulation may be restricted to other government ministries, or it may extend beyond the government. However, there is no general legal requirement to circulate regulations publicly (although specific statutes may require such disclosure).
• The next step is to submit a draft of the regulation to the Registrar of Regulations for approval (at the federal level, this role is performed by the Clerk of the Privy Council). The Registrar is charged by statute to “advise upon and assist in the preparation of regulations”, and reviews composed regulations for compliance with government guidelines.
• The regulation will then be submitted first to a committee of the Cabinet, and then to the full Cabinet for approval. Once a regulation is approved by Cabinet, it will be sent to the Lieutenant Governor for signature, and will be filed with the Registrar.

Review of Regulations

At both levels of government, legislation provides that all regulations are permanently referred to a Committee for review purposes, and many (perhaps most) will be reviewed in accordance with guidelines similar to the following:

• Regulations should not contain provisions initiating new policy, but should be confined to details to give effect to the policy established by the statute.
• Regulations should be in strict accord with the statute conferring of power, particularly concerning personal liberties.
• Regulations should be expressed in precise and unambiguous language.
• Regulations should not have retrospective effect unless clearly authorized by statute.
• Regulations should not exclude the jurisdiction of the courts.
• Regulations should not impose a fine, imprisonment or other penalty.
• Regulations should not shift the onus of proof of innocence to a person accused of an offence.
• Regulations should not impose anything in the way of a tax (as distinct from fixing the amount of a licence fee, or the like).
• General powers should not be used to establish a judicial tribunal or an administrative tribunal.

Coming Into Force

As noted above, after a regulation has been passed, it will generally be filed with the Registrar of Regulations.

In Ontario, the Legislation Act specifies that unless a regulation provides otherwise, it will come into force and have effect on the day on which it is filed.

However, the regulation must be published on the e-Laws website “promptly” after its filing; and in the print version of The Ontario Gazette within one month after its filing (or in accordance with such other timelines as may be specified).

At the federal level, the regulation will generally be published in Part II of the Canada Gazette within 30 days of its making.

If it is not published, the regulation will usually have no effect unless a person has actual notice of its contents.