Mr. Speaker, I rise on a point of order. I would ask for your patience in that I hope to get through two issues dealing with points of order raised earlier.
First, I am rising on a point of order respecting four bills on the order of precedence that require a royal recommendation. These bills include Bill C-315, respecting the conservation of national historic sites account; Bill C-343 , an act to establish the office of the federal ombudsman for victims of criminal acts; Bill S-205, to appoint an inspector general of the Canada Border Service Agency; and Bill S-229, an act respecting underground infrastructure safety.
Without commenting on the merits of these bills, I submit that these bills contain provisions that infringe upon the financial prerogative of the crown.
Members will note that section 53 of the Constitution states that:
Bills for appropriating any Part of the Public Revenue...shall originate in the House of Commons.
Section 54 of the Constitution requires that bills that appropriate any part of the public revenue must be recommended to the House by the Governor General.
Standing Order 79(1) states that:
This House shall not adopt or pass any vote, resolution, address or bill for the appropriation of any part of the public revenue, or of any tax or impost, to any purpose that has not been first recommended to the House by a message from the Governor General in the session in which such vote, resolution, address or bill is proposed.
I submit that all four bills stand in contravention to the Constitution and, more important for you, Mr. Speaker, to Standing Order 79(1).
Additionally, I would cite page 769 of the second edition of House of Commons Procedure and Practice, which states, “An amendment intended to alter the coming into force clause of a bill, making it conditional, is out of order...”.
Bourninot, fourth edition, page 407, refers to the financial initiative of the crown as a constitutional obligation and states that “No principle is better understood than the constitutional obligation that rests upon the executive government, of alone initiating financial measures...”.
Erskine May, 21st edition, page 691, defines the financial initiative of the crown as the “long established and strictly observed rule of procedures, which expresses a principle of the highest constitutional importance, that no public charge can be incurred except on the initiative of the Crown...”.
The procedural authorities are clear. Bills that seek to appropriate monies for a new and distinct purpose must originate in the House and must be recommended to the House by the Governor General through a minister of the crown.
I therefore submit that the two aforementioned Senate public bills should be ruled out of order and the two private member's business bills should not be put to a vote at third reading absent a royal recommendation.
Both Senate public bills in question, as well as Bill C-343, contain a provision that prohibits the coming into force of the bill unless the appropriation of monies for the purposes of the act has been recommended by the Governor General and such monies have been appropriated by Parliament.
By including such a provision, it is an explicit acknowledgement that the bills require a royal recommendation.
Let me quickly review the provisions in each of these bills that would result in a new and distinct spending request.
Bill S-205 provides for the appointment of an inspector general of the Canada Border Services Agency.
Subclause 15.12(3) provides for the salary and expenses for the inspector general. Subclauses 15.12(4) and (5) provide for the pension benefits and other benefits under the Government Employees Compensation Act and regulations. These proposals are not authorized by any statute or appropriation.
Clause 17 of Bill S-229, an act respecting underground infrastructure safety, authorizes the minister to enter into agreements, including funding agreements, that the minister considers necessary for carrying out the purposes of the act. Subclause 17(2) provides greater detail around the operation of such funding agreements between the federal government and the provincial governments. These specific purposes are not authorized by any statute or appropriation.
Bill C-343, An Act to establish the Office of the Federal Ombudsman for Victims of Criminal Acts and to amend certain Acts, would provide for an appointment of a federal ombudsman for victims of criminal acts. The bill would also provide for remuneration, the payment of expenses related to duties and functions, and the hiring and remuneration of staff to assist the ombudsman in the discharge of his or her duties. These purposes are not authorized by any statute or appropriation.
Precedents clearly state that the establishment of a new body requires a royal recommendation. For example, the Speaker ruled on July 11, 1988, on the report stage amendments for Bill C-93, an act for the preservation and enhancement of multiculturalism in Canada, that two report stage motions were inadmissible because they would have established a new government department, which in turn would have resulted in significant new spending.
Precedents also show that a royal recommendation is required for the establishment of a new office. The Speaker ruled on February 11, 2008, on Bill C-474, respecting the Federal Sustainable Development Act, that:
Clause 7 of the bill provides for the governor in council to appoint 25 representatives to the advisory council. Section 23 of the Interpretation Act makes it clear that the power to appoint includes the power to pay. As the provision in Bill C-474 is such that the governor in council could choose to pay a salary to these representatives, this involves an appropriation of a part of the public revenue and should be accompanied by a royal recommendation.
With respect to the use of a provision in the bill to elude the requirement for a royal recommendation, the Speaker has ruled that this approach is unacceptable. On November 9, 1978, the Speaker ruled on Bill C-204, which included a clause stating:
Nothing in this act shall be construed as requiring an appropriation of any part of the public revenue.
The Speaker ruled that:
...the House should be cautioned that the Chair could not interpret the incorporation of such a clause in a private member's public bill as an acceptable way of eluding the requirement for a royal recommendation where such a recommendation is required.
I submit that the approach of eluding the requirement for a royal recommendation by tying it to a coming-into-force clause is a clear attempt to accomplish something indirectly that cannot be accomplished directly.
With respect to Bill C-315, respecting the conservation of national historic sites account, I submit that the bill's proposal to create a conservation of national historic sites account requires a royal recommendation.
Proposed subsection 22.1(4) would authorize that payments may be made out of the account. The creation of an account within the consolidated revenue fund requires a royal recommendation. The royal recommendation for such a fund would cover the purposes of the fund and the authority to make credits to the account as well as the authority to make payments out of the account.
The member may be attempting to assert that the fund would be separate from the consolidated revenue fund, but precedents demonstrate that all separate accounts are only notionally separate and are in fact part of the consolidated revenue fund. For example, the employment insurance operating account was established in accounts of Canada by the act. All amounts received under the act are deposited in the consolidated revenue fund and credited to the account. The benefits and the costs of administration of the act are paid out of the consolidated revenue fund and charged to the account.
On June 13, 2005, the Speaker ruled on Bill C-280, An Act to amend the Employment Insurance Act (Employment Insurance Account and premium rate setting) and another Act in consequence. He said:
I have carefully reviewed the submissions to determine whether Bill C-280 in clause 2 does anything more than rearrange the method of accounting for public funds.... On close examination, it seems to the Chair that clause 2 in Bill C-280 involves more than accounting methodology.
...Bill C-280 effects an appropriation by spending or authorizing the spending of public funds by transfer of the funds from the Consolidated Revenue Fund to a separate EI Fund with the result that these monies are no longer available for other appropriations Parliament may make.
What Bill C-315 contemplates is the creation of a fund within the accounts of Canada for the purposes of spending to maintain national historic sites. The creation of such a fund and the authority to spend to preserve such historic sites would be a new and distinct purpose that is not specifically authorized in any statute or appropriation. Therefore, without a royal recommendation attached to the bill, it should not be put to a vote at third reading.
The procedural authorities and the precedents are clear that bills that seek to appropriate monies for a new and distinct purpose must originate in the House and must be recommended to the House by the Governor General through a minister of the crown.