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Comparing the Parliament System and the Congressional System

By:
Robert Vaive
Assistant Clerk
Legislative Assembly of British Columbia, Canada
Former President of the Association of Clerks-at-the-Table

© Journal of the American Society of Legislative Clerks and Secretaries

ASLCS Home Page

The following summarizes in a very rudimentary way my joint presentation with John Phelps, Clerk, Florida House of Representatives, at the conference of the American Society of Legislative Clerks and Secretaries and the Canadian Association of Clerks-at-the-Table in Austin, Texas in August 1999. Although the presentation dealt mainly with the process of making laws in the parliamentary system and in the congressional system, in order to properly set the context for the purposes of this article, I am adding a brief overview of the Canadian parliamentary system of government followed by distinguishing elements and practices in each system and an outline of the Canadian legislative process.

As a general statement, parliamentary government speaks to order, hierarchy, and centralization, whereas the Congressional System emphasizes individual freedom and the diffusion of power through an elaborate system of checks and balances.

The Constitution

Parliament consists of the Crown, the Senate (the Upper House), and the House of Commons (the Lower House). Legislative power is vested in Parliament and to become law, bills must be assented to by each of the three constituent parts of Parliament: the Crown, the House of Commons, and the Senate.

Canada is a parliamentary democracy. The Constitution Act, 1867 forms the basis of Canada's written constitution which also includes several other constitutional statutes as well as a series of other statutes of constitutional consequence. The complexity of the Canadian Constitution is further enhanced by the importance of custom and convention in the constitutional context, i.e. the role of the "unwritten constitution" is very significant.

The American Constitution is a written and comprehensive document. It is very much in contrast to the Canadian pattern of concentrated authority and emphasizes the need to limit government. It reflects the view that people must be protected from government and limits and prevents undue concentration of political authority.

Like the United States, Canada is a federation. It is made up of ten largely autonomous provinces and three territories. Powers are divided between the federal and provincial levels of government. Canada is bicameral federally (Senate and House of Commons) and unicameral provincially.

General elections in Canada must be held every five years. The Prime Minister may call a general election at any time during the five-year term. The electoral system provides for universal franchise, and the results depend on a single-ballot first-past-the-post majority, i.e. a single-member simple-plurality system. The party which wins the largest number of seats in the election forms the government - its leader is asked by the Governor-General to form the government.

The party which wins the second largest number of seats becomes the Official Opposition, and its leader is the person holding the recognized position of Leader of the Official Opposition. At the federal level since 1921, Canada has had a multi-party system with as many as five parties represented in the House of Commons at one time, as is currently the case. Historically, voters have shown loyalty to the government party for more than one election with the result that the Canadian political system has achieved considerable stability.

Governor-General

Canada is a constitutional monarchy. The Head of State is the Queen. The Prime Minister is the Head of Government. The role of head of state is very separate from that of head of government. Except when the Queen is in Canada, all her powers are exercised by her representative, the Governor-General, who is appointed by the Queen on the advice of the Canadian Prime Minister. Tenure is at pleasure, usually lasting five years. The Governor-General is now always a Canadian. The Governor-General summons, prorogues, and dissolves Parliament, assents, in the name of the Queen, to bills passed by Parliament, appoints provincial Lieutenant-Governors and Senators, and is also Commander-in-Chief of the Armed Forces. The Governor-General exercises this executive authority of the government almost without exception, on the advice of the Prime Minister. Other duties are largely ceremonial, providing a state presence at local and international events.

Prime Minister and Cabinet

It is the Prime Minister who exercises the power. The leader of the political party which wins a clear majority in a national election is called upon by the Governor-General to form the government and become Prime Minister. Selected at a national leadership convention of his/her political party, he/she becomes one of the key factors in his/her party's electoral success even if he/she is personally elected in only one constituency out of 301. The Prime Minister is a member of the House of Commons and is obviously the dominant figure in the House of Commons. The Prime Minister designates a Deputy-Prime Minister to ensure continuity in his/her absence. This is not a constitutional designation and in the event of death or resignation, the party in power would have to choose a new leader who would become the new Prime Minister.

Parliamentary-Cabinet

Canada's parliamentary-cabinet system is a system of responsible government in which the executive and the legislative functions are combined in one institution, i.e. Parliament. Cabinet ministers have a seat in Parliament and must retain the support of the majority of House of Commons on major legislation. The Prime Minister and Cabinet are responsible and must answer to the House of Commons as a body for their actions - thus the term "responsible government." This requirement for Ministers to answer on an almost daily basis for their actions is a distinguishing characteristic of a parliamentary democracy.

To form a Cabinet, the Prime Minister chooses from Members of his/her party elected to the House of Commons or appointed to the Senate. There are rare occasions when the Prime Minister will appoint an unelected individual to the Cabinet. If it should happen, this person will promptly seek election. Ministers remain in office at the pleasure of the Prime Minister. Cabinet is drawn from Parliament, it is directly responsible to it, and its security of tenure is dependent on the support of Parliament. In other words, a "non-confidence" vote against the government in Parliament can bring down the government, resulting in a change in party in power or in a general election.

House of Commons

The House of Commons has 301 Members, each representing a constituency. In each constituency, the candidate who receives the largest number of votes is elected, even if his/her vote is less than half of the total number of votes cast. The House of Commons' main functions are: the passing of legislation, the approval of government expenditures, the imposition of taxes, and the scrutiny of government actions.

The most important weapon in the opposition's arsenal against the government is the daily Oral Question Period in the House of Commons. This is a feature in the federal Parliament as well as in each provincial Legislature. It is here that Members can pose penetrating and embarrassing questions to government ministers. Although ministers have usually mastered the skills of Oral Question Period, the proceedings are televised and voters draw their own conclusions. It creates entertaining, if heated and emotional, political repartee.

The Speaker

The Speaker, upon election to Office, assumes a non-political role in Canada, and this applies to both the Senate and the House of Commons. The person who becomes Speaker of the House of Commons is firstly an elected Member of the House. Any Member elected to the House may stand for election as Speaker. The election is conducted by secret ballot on the floor of the House. The Speaker presides over the deliberations of the House and is its representative but is not involved in debate or in brokering political deals between parties. The role is objective and impartial. The Speaker refrains from all political activity, from being an active party member, and from attendance at party caucus meetings. The Speaker takes no part in the debate, however will cast the deciding voice in the event of a tie. The Speaker is a servant of the House and applies the rules of parliamentary procedure but does not rule the House.

The Clerk of the House

The Clerk of the House is the senior permanent officer of the Legislative Assembly. Non-partisan (no bias for or against any political party), the Clerk is responsible for maintaining all official House documents, for providing advice on parliamentary procedure to the Speaker and other MLAs as required, and for administering the various departments of the Assembly on the Speaker's behalf. The Clerk of the House is assisted by a number of Clerks Assistant. The Clerk does not change with a change of Speaker or Government.

The Senate

The Senate or Upper House has 105 senators. Distribution of seats is by region, each province and territory having a designated number of seats. Senators are not elected but appointed by the Governor-General on the recommendation of the Prime Minister. A senator holds office until age 75.

A bill that has passed three compulsory readings in the House of Commons must be read three times in the Senate before becoming law. The Senate can amend or reject any of these bills, and return them to the House of Commons for reconsideration. Bills may also originate in the Senate except money bills. This is a throwback to the era when the Monarch was obliged to ask the elected Commons to raise funds. Over the years, Senate committees have assumed an important investigative role of social and economic issues. In theory and on paper, the Senate was intended to be seen as protector of the regions and the rights of the minorities. Hence, the Senate fulfills a number of roles: review of Commons legislation and initiation of legislation; investigation of complex subject areas through its committees; regional and provincial representation in Parliament; and retention of political talent which would otherwise be lost to the political process.

Canadian vs. American

Head of State

Canada is a constitutional monarchy and the United States is a republic. In Canada the head of state is the Queen, represented by the Governor-General and the head of government is the Prime Minister. In the US, the head of state and the head of government reside in one person, i.e. the President.

Responsible Government

The Prime Minister and Cabinet are responsible to Parliament, individually and collectively, and must enjoy the support and confidence of a majority of the members of the House to remain in Office.

Parliamentary-cabinet government is based on a concentration of powers, i.e. there is a fusion of the executive and the legislative in Parliament. The Prime Minister and Cabinet are elected members of the House of Commons or appointees to the Senate, with the result that the legislative agenda is virtually totally controlled by the executive. The fusion of the legislative and the executive in Parliament creates a strong political executive which guarantees the success of the government program. Because of the government's majority and strong party discipline, the government controls the flow of legislation, its timing, and other House business.

The government party is responsible for all government sponsored bills. Bills are introduced in the House by the minister responsible who must defend government action. Private members do introduce bills, but without government support these bills have very little chance of succeeding. Parliament is a debating and legislative ratifying process where the executive (the Cabinet) introduces legislation and, with its majority support and rigid party discipline, remains the major actor in the legislative process.

The presidential-congressional system operates with a separation of powers. Neither the President nor the Cabinet sits in Congress to introduce bills, defend their actions, and be generally accountable directly to Congress. The President's policies and legislation can be blocked by Congress and that ends the matter. Congress is more of a law-making body where the American legislator seems more independent given more relaxed party discipline and the total independence of Congress from the executive. In the United States, the separation of the legislative and executive limits the powers of the executive as it has little control over the Legislature, thereby constraining the President in a legislative programme.

Length of Term

In Canada, while a general election must be called within five years, there is otherwise no fixed term and the Prime Minister remains in power as long as he/she retains the confidence of the House. If the House votes want of confidence in the Prime Minister and Cabinet, the government steps down, cedes to another party to form the government, or calls an election.

The President has a fixed four-year term. Impeachment or resignation is the only alternative.

Head of Government

The Prime Minister can get any bill through the House as long as his/her party retains the majority of the House. With this majority in the House, the Prime Minister can veto any proceedings or legislative initiative. If there is a standoff in the House, the Prime Minister can call an election and appeal to the people.

The President belongs to one party while the opposing party may hold the majority in either House, thereby resulting in the President's bills being blocked in either or both Houses. In a standoff, the President cannot appeal to the people by "dissolving" Congress and calling an election; the impasse could last for the full term. A President may veto a bill, which veto can be overridden by a two-third congressional majority.

The Legislative Process in Canada

There are two categories of bills - public bills and private bills. The former deal with public affairs while the latter deal with matters of private interest including corporations and associations. These are very few in numbers. The progress of private legislation is somewhat different and more complex than for public bills.

Public Bills

There are public bills introduced by the government and sponsored by a cabinet minister and public bills introduced by a private member. Only cabinet ministers may introduce public bills for the appropriation of any part of public revenue or for taxation.

There are several stages before a bill becomes law. The three readings of bills shall be on different days prior to being passed.

Drafting the bill

The Minister will propose certain legislation and the government will approve the idea. The initial drafts of the bill go through certain refinements after government consultation with stakeholders. The government ensures political acceptability before introduction through full discussion in the government party caucus.

Introduction and First Reading

This is a purely formal stage without amendment or debate. Brief explanatory remarks are made at this point by the sponsor of the bill. After first reading, the bill is normally placed on the Order Paper for second reading at another day's sitting.

Second Reading

This is a key stage in the passage of a bill. It is at this point that the principle of the bill is debated and either accepted or rejected. The bill is not discussed in detail at this stage nor can it be amended. The sponsor of the bill, the minister, makes an opening statement in support of the bill. Members from both sides of the House speak on the general principle and objects of the bill. This stage of the bill is subject to three forms of amendment which cannot be sub-amended:

1. the six months hoist: "That the bill be not now read a second time but that it be read a second time this day six months hence";
2. reasoned amendment: expresses specific reasons for opposing second reading;
3. subject-matter of bill referred to a committee.

When the bill has received second reading, it is referred to a committee.

Committee Stage

It is at this stage that the bill is considered in detail, clause by clause. The committee hears the minister sponsoring the bill who, with officials from the ministry, answers detailed questions on the bill. Substantive amendments may be proposed to the bill here. Amendments to the bill in committee must respect the principle of the bill as agreed to at second reading in the House.

Amendments may be made to any part of the bill (title, preamble, clauses, schedules). Clauses and/or schedules may be deleted and new ones added. After committee stage consideration of the bill, it is then ordered reported to the House.

Report Stage

Report stage procedures vary somewhat among Canadian jurisdictions. At report stage in the House of Commons, the House reviews bills that have been considered and possibly amended in committee by considering motions in amendment of which notice in writing has been given. Report stage provides an opportunity for members who did not sit on the committee which considered the bill to debate the bill in detail. In some Canadian jurisdictions, report stage of a bill has become a formality as committee stage of bills in these jurisdictions occurs in committee of the whole House and not in a smaller standing committee as in the House of Commons. For example, in British Columbia, reports on bills are from committee of the whole House and are therefore not debatable as in the House of Commons.

Third Reading

The amendments permitted under third reading are as permitted under second reading. Debate is rare but possible at third reading.

Passage by the Senate

After passage of a bill by the House of Commons, it must be passed by the Senate where procedures for passage of a bill are similar to those in the House of Commons. If the Senate amends the bill, it is sent back to the House of Commons for consideration of Senate amendments.

Royal Assent

The Constitution Act, 1867 states that approval of the Crown, signified by Royal Assent, is required for any bill to become law after passage in the House. The Governor-General, or the Lieutenant-Governor in a province, present in the House or Senate gives Royal Assent for legislation. The ceremony consists of the reading by the Clerk of the short titles of the bill or bills to be approved. The formula of assent is then pronounced by the Clerk on behalf of the Crown's representative. It is at this stage that a bill becomes law. The bill comes into force on the day of assent unless otherwise provided in the bill itself.

Standing Committees of the House of Commons

Standing committees receive a mandate from the House of Commons mainly to study bills or to scrutinize government policy and programs. A majority of its members represent government as the committee membership reflects directly the party distribution in the House.

Committees are created by the House and have only those powers which the House decides to give them. With some jurisdictional variations, committees in Canada are mandated to study bills, to enquire into a pressing issue, to scrutinize government policy and programs, to examine government public accounts, or to review government appointments.

The public, non-governmental organizations and lobby groups have opportunities to present briefs to committees. Committee work is concluded with a report to the House which describes the committee's work and may include recommendations. In the House of Commons, the government will have 150 days to table in the House a comprehensive response and reactions to the committee's recommendations; this is the closest committees come to policy formulation.

Other Debating Opportunities

Oral Question Period

Oral Question Period, an important weapon for the opposition against the government in the House, is a featured daily proceeding in all Canadian Legislatures lasting up to one hour in some places.

It is an opportunity for elected members to speak directly in a public forum to Cabinet ministers on policy issues and on issues of interest to people they represent. This proceeding generates penetrating exchanges from both sides and creates a most dramatic and spirited form of debate, i.e. classic parliamentary debate.

Motions

A motion by government or private members may be called for debate after a forty-eight hour written notice.

Debate on Speech from the Throne

Each new session (usually annually) opens with the speech from the Throne delivered by the Governor-General or the Lieutenant-Governor in the province, outlining the government's program and projected policies. A free-wheeling debate will ensue on the contents of the speech with participation of all members.

Budget Debate

Following the budget presentation by the minister of finance outlining government economic policies and spending plans, another wide-open debate will take place on the government's economic blueprint.

Emergency Debates

These provide an opportunity for members to raise and debate matters which they deem urgent and of pressing necessity.

Written Questions

These are placed by members on the Orders of the Day for a written government response.

Statements by Members

During a dedicated period of time, members may speak on a topic of their choice.

Wrap-Up

In the Canadian parliamentary system, party solidarity and continued government existence in power go hand in hand. Party discipline is key to understanding executive dominance of the legislative branch in Parliament; it is strongest in the governing party where a break in party ranks might cost the party control of the government; it is not as stringent in opposition ranks. Parties work as a cohesive group of members rather than as individuals. Party discipline is rarely challenged. Most members never vote against the party line and those who do may find their career prospects curtailed.

Notwithstanding the concentration of power in the political executive, the essence of Canadian democracy is that in the end Parliament representing all the people must decide. It is the great forum for national debate and as such should have the last word. Parliament remains a symbol of authority.

In the Congressional system where there is clear separation of power between the executive and the legislative, there is real potential for a more effective policy-making role in addition to the representative and legislative roles.

For more information about ASLCS, write or call:

Joan Barilla
National Conference of State Legislatures
7700 East First Place
Denver, CO 80230
Phone: 303/856-1349
FAX: 303/364-7800
E-mail: joan.barilla@ncsl.org