I am now prepared to rule on the point of order raised by the Parliamentary Secretary to the Leader of the Government in the House of Commons on December 10, concerning the requirement for a royal recommendation for Bill C-471, An Act respecting the implementation of the recommendations of the Pay Equity Task Force and amending another Act in consequence, standing in the name of the Hon. Leader of the Opposition.
I would like to thank the parliamentary secretary for having raised this issue, as well as the member for Vancouver Centre for her comments. In his intervention, the parliamentary secretary noted that Bill C-471 proposes to do two things. First, it imposes a duty on the government to implement the recommendations of the 2004 pay equity task force report. Second, it repeals the Public Sector Equitable Compensation Act, or PSECA. The parliamentary secretary dealt with each of these proposals in some detail as, in his view, each of them infringes on the financial prerogative of the Crown.
He began by noting that the first recommendation of the pay equity task force report concerns the need for legislation. That recommendation reads:
The Task Force recommends that Parliament enact new stand-alone, proactive pay equity legislation in order that Canada can more effectively meet its international obligations and domestic commitments, and that such legislation be characterized as human rights legislation.
The remaining 112 recommendations in the report, he pointed out, describe the measures that should be included in that legislation. The recommendations taken overall seek to establish a new regime for the oversight of the pay equity process and the adjudication of pay equity complaints. Among these recommendations, several call for the establishment of pay equity oversight agencies. He referred to the fact that clause 2 of Bill C-471 states:
The Government of Canada shall ensure that all statutory oversight agencies are put in place no later than January 1, 2011 and that all the recommendations of the Pay Equity Task Force are implemented no later than January 1, 2012.
The parliamentary secretary raised two concerns with respect to the requirement to implement the recommendations. He felt that the bill imposes a requirement on the government that can only be met by the passage of legislation, a requirement which seemed to bind Parliament to passing that legislation. In his view, such a requirement was both impossible for the government to carry out and unconstitutional.
As well, he noted that the establishment of new agencies clearly requires the expenditure of public funds and therefore requires a royal recommendation. The parliamentary secretary then turned to clause 3 of the bill, which repeals the Public Sector Equitable Compensation Act and related provisions from the Budget Implementation Act, 2009.
As he saw it, two effects would follow from repealing the Public Sector Equitable Compensation Act. First, a new purpose would be given to the Canadian Human Rights Commission and to the Canadian Human Rights Tribunal. They would now be given jurisdiction for public sector pay equity complaints. Further, as the liability arising from the statutory grounds of complaint under the Canada Human Rights Act differ from those under the Public Sector Equitable Compensation Act, the Crown, as employer, would be faced with potential expenses not currently provided for. The parliamentary secretary explained the difference between the liability schemes in some detail, which I will not repeat here. He also made reference to a number of Speakers’ rulings from both this House and the other place, in which the need for a royal recommendation to accompany new or increased liability of the Crown is clearly illustrated.
The member for Vancouver Centre pointed out that the repeal of the Public Sector Equitable Compensation Act does not constitute a new legislative regime. Rather, in her view, it leaves the currently existing legislation in place. Second, she claimed that the requirement to establish a framework is not the same as the actual implementation of the framework.
As the House has no doubt gathered from this brief summary, the issues confronting the Chair in this case are complex. I would like to begin by reminding honourable members that the Chair is obliged to confine itself to dealing with the procedural aspects of the question. House of Commons Procedure and Practice, 2nd edition, p. 261 states:
... it is not up to the Speaker to rule on the “constitutionality” or “legality” of measures before the House.
The procedural issue which faces the Chair relates to the possible requirement for a royal recommendation.
There are three distinct elements in the bill. The first relates to the introduction of legislation to implement the recommendations of the pay equity task force, including the setting up of two statutory oversight agencies. The second element is the repeal of the PSECA, from which flows the third element, that of the repeal of the consequential provision stimulated at sections 395 to 405 of the Budget Implementation Act, 2009.
With respect to the implementation of the pay equity task force recommendations, it was indicated by the parliamentary secretary that such provisions would, in all likelihood, require a royal recommendation. Those provisions, however, are not part of Bill C-471, but of some future bill not yet before the House. It is my view that this aspect of Bill C-471 is similar to Bill C-288, Kyoto Protocol Implementation Act, from the last Parliament, despite the arguments to the contrary advanced by the parliamentary secretary.
I remind the House of the ruling given on September 27, 2006, where the Chair stated at page 3315 of Debates:
As it stands, Bill C-288 does not contain provisions which specifically authorize any spending for a distinct purpose relating to the Kyoto protocol. Rather, the bill seeks the approval of Parliament for the government to implement the protocol. If such approval is given, then the government would decide on the measures it wished to take. This might involve an appropriation bill or another bill proposing specific spending, either of which would require a royal recommendation.
Bill C-471 implements no recommendations and establishes no agency. It simply requires that the government bring forth legislation and thus it is difficult to see how these provisions could be construed as requiring the expenditure of public funds.
The second main objective of Bill C-471 is the repeal the Public Sector Equitable Compensation Act, enacted by section 394 of the Budget Implementation Act, 2009 and the repeal of the transitional and consequential amendments stemming from the Public Sector Equitable Compensation Act and stipulated in sections 395 to 405 of the Budget Implementation Act, 2009.
While it may impact the operations of government, the repeal of a statute does not normally require a royal recommendation. The parliamentary secretary contended that repealing this act and the related sections of the Budget Implementation Act, 2009 would have the practical effect of assigning a new mandate to the Canadian Human Rights Commission and the Canadian Human Rights Tribunal.
If Bill C-471 were adopted, the situation with respect to oversight of the pay equity process and the hearing of pay equity complaints would revert to that which was in place prior to the adoption of the Public Sector Equitable Compensation Act. In effect, this is a change in the mandate of the Canadian Human Rights Commission and the Canadian Human Rights Tribunal.
As stated in House of Commons Procedure and Practice at page 834, this kind of change requires a royal recommendation.
A royal recommendation not only fixes the allowable charge, but also its objects, purposes, conditions and qualifications. For this reason, a royal recommendation is required not only in the case where money is being appropriated, but also in the case where the authorization to spend for a specific purpose is significantly altered. Without a royal recommendation, a bill that either increases the amount of an appropriation, or extends its objects, purposes, conditions and qualifications is inadmissible on the grounds that it infringes on the Crown’s financial initiative.
Consequently, it is my ruling that in changing the objects and purposes of the Canadian Human Rights Commission and the Canadian Human Rights Tribunal, Bill C-471 infringes upon the financial prerogative of the Crown.
Accordingly, the Chair will decline to put the question on third reading of the bill in its present form unless a royal recommendation is received. Today's debate, however, is on the motion for second reading and this motion shall be put to a vote at the close of the current debate.
I thank hon. Members for their attention.