Everyone knows that the Senate delays government legislation. Don’t we?
Well, no we don’t. In fact, the House of Commons tends to take almost three times as long to deal with government legislation as the Senate does.
This incontestable fact is based on an actual count of official parliamentary records over the last ten parliaments (i.e., the past 37 years). On average, government bills spend 144 days in Parliament from first to final reading. Only 35 of those days are spent in the Senate. The House of Commons is responsible for the other 109 days.
In other words, the Senate does not delay passage of government legislation. It’s the other way around: government delays passage of its own bills, since it’s the government which enjoys near total control of the House of Commons most of the time and it sits on bills for months on end in its own chamber.
So how did the Senate get saddled with an undeserved reputation as an instrument of delay?
From the government of course.
What’s more, it turns out that the government has been broadcasting this myth for as long as we’ve had a Senate. In the very first session of Canada’s Parliament 150 years ago, Senators complained about ministers pushing them to pass legislation at the speed of light towards the end of the parliamentary session. Senators were expected “to shuffle bills in one door and out the other,” one Senator complained. A Senate Committee formally reviewed the allegation of delay in 1868 and found it to be quite unfounded. Instead, the culprit was the government itself who was holding legislation back.
All these years later, the rhetoric stays the same. It’s a convenient cover story for the government to divert attention from its own sloth on numerous files.
This tactic was taken to new levels of absurdity just last weekend when Parliamentary Secretary to the Health and Justice Ministers Bill Blair warned Senators not to delay Bill C-45, the Cannabis Act. Never mind the fact that the bill is still before the House of Commons, where it has been since April—the Senate is already being told to hurry up and it doesn’t even have the bill yet!
The truth is that when it comes to passing government legislation in a timely and attentive manner, the Senate has a solid track record. Throughout our 150-year history, the Senate has moved with commendable speed.
Of course, some notable exceptions have occurred over the years. For example, the Liberal majority in the Senate delayed GST legislation for as long it could and staged a filibuster for 10 long days and nights. They also argued as hard as they could against free trade, although a federal election in 1988 put an end to that.
Another example is more current—Bill C-210, changing the lyrics of our national anthem. On this one, the Senate needs to plead guilty as charged—the bill has been held up here for over a year. That’s an unfortunate blot on the Senate’s record, and Senators would be well-served to remember our task of reviewing legislation without undue delay.
However, Bill C-210 is not government legislation. In any event, the House of Commons itself is very slow to pass backbenchers’ bills. In Stephener Harper’s last Parliament, for example, only 34 out of a total 798 bills introduced by MPs ever became law, and yet that was more than any other Parliament since 1980. So the Senate’s record on this type of legislation is not as bad as it first appears.
The time has definitely come for all of us to acknowledge that the Senate does not routinely delay government legislation. Our clearing rate is just a little over one month, on average. Most people wait longer than that for our local insurance company to process a simple damage claim.
We need to bury this urban myth once and for all. As we head into our next 150 years, let’s concentrate our efforts on evidence-based observations about how the Senate performs its constitutional duties. We may be in for even more pleasant surprises.
Elaine McCoy, QC has been an independent senator from Alberta since 2005, and was the first senator to hold the position of Facilitator (leader) for the Independent Senators Group.
A version of this commentary appeared in Policy Options.
The Hill Times