Bill C-315 (Historical)

An Act to amend the Parks Canada Agency Act (Conservation of National Historic Sites Account)

This enactment establishes the Conservation of National Historic Sites Account and sets out the rules in respect of donations made for the conservation of national historic sites.

Private Members' Business—Speaker's Ruling

[The Speaker, Geoff Regan]

I am now prepared to rule on the point of order raised on May 12, 2017, by the hon. member for Winnipeg North concerning the possible requirement for a royal recommendation with respect to four private members' bills, two from the House of Commons and two from the Senate.

The Commons bills are Bill C-315, an act to amend the Parks Canada Agency Act, conservation of national historic sites account, standing in the name of the hon. member for Leeds—Grenville—Thousand Islands and Rideau Lakes, and Bill C-343, an act to establish the office of the federal ombudsman for victims of criminal acts and to amend certain acts, standing in the name of the hon. member for Beauport—Côte-de-Beaupré—Île d'Orléans—Charlevoix. Both bills are currently in the order of precedence at second reading.

The two Senate bills are Bill S-205, an act to amend the Canada Border Services Agency Act, Inspector General of the Canada Border Services Agency, and to make consequential amendments to other acts, standing in the name of the hon. member for Toronto—Danforth, and Bill S-229, an act respecting underground infrastructure safety, standing in the name of the hon. member for Guelph. Both of these bills are currently awaiting first reading.

Members will recall that on May 9, 2017, I made a statement in which I invited arguments in relation to these four bills. I would like to thank the hon. Parliamentary Secretary to the Leader of the Government in the House of Commons, the hon. member for Guelph, and the hon. member for Perth—Wellington for their detailed interventions.

Of the four bills, Bill C-315, in proposing to establish a separate account as part of the accounts of Canada from which disbursements could be made, raises most clearly a question about the possible need for a royal recommendation. The other three bills, C-343, S-205, and S-229, are different. While they present schemes that could lead to new spending, all contain coming-into-force provisions designed to make such spending conditional on separate parliamentary appropriations. I will address Bill C-315 first, and then the other three.

Bill C-315 establishes a distinct account for the conservation of national historic sites, called the conservation of national historic sites account. The funds for this account are to be raised exclusively through private donations and from the interest generated from them. I should note that this fund seems to be separate from the pre-existing new parks and historic sites account, which serves a similar purpose and is also based, at least in part, on donations.

Bill C-315 also provides that the funds may be spent for specific purposes in relation to national historic sites. The parliamentary secretary contended that the creation of such a new account, and the authority to spend its funds on national historic sites, would be a new and distinct purpose that is not specifically authorized by any statute, thus clearly requiring a royal recommendation.

In making his case, the parliamentary secretary drew a parallel to the employment insurance fund. While nominally its own account, all amounts received and dispersed from the EI fund are deposited in and drawn from the consolidated revenue fund. Because these monies are part of the consolidated revenue fund, a royal recommendation is necessary to authorize any expenditure from it.

Although the situation with Bill C-315 is not entirely analogous to the EI fund, I believe that a similar principle still applies. Even if the monies are accounted for separately and raised exclusively through donations and interest generated from those donations, once collected, they become public funds deposited into the consolidated revenue fund. Any payments from this fund would also be drawn from the CRF. As the bill authorizes this spending for a specified purpose, it must be accompanied by a royal recommendation. Therefore, I find that the objections raised by the parliamentary secretary are well founded.

However, as is consistent with our practice with respect to Commons bills, Bill C-315 can continue through the legislative process as long as there is a possibility that a royal recommendation could be obtained before the final vote on the bill. Alternatively, the bill could perhaps be amended in such a way as to obviate the need for a royal recommendation. Absent one or other of these options being exercised, the question at third reading of the bill will not be put.

Let me now turn to the issues raised in the three other bills, namely S-205, S-229, and C-343. The parliamentary secretary argued that the bills in question were proposing new and distinct expenditures and that the accompanying coming-into-force provisions did not alter this fact. In support of this argument, he cited a Speaker’s ruling from November 9, 1978 about clauses in bills that seek to elude the requirement for a royal recommendation. Accordingly, it was his contention that the question could not be put at third reading on Bill C-343. Moreover, with respect to Bills S-205 and S-229, which originated in the Senate, both should be removed from the Order Paper since any bills appropriating public funds must originate in the House of Commons.

The member for Guelph argued, on June 20, 2017, that Bill S-229 is in order and should be allowed to proceed. First, he contended that no procedural authority exists to remove Bill S-229 from the Order Paper. To do so, the Chair would be relying exclusively on constitutional principles set out in sections 53 and 54 of the Constitution Act, which, in his view, is contrary to the principle that the Chair does not rule on matters of constitutionality. He also contended that even if a royal recommendation were needed, the Chair should allow the bill to continue until the end of the debate at third reading, as is done for private members' bills first introduced in the House.

The member then turned to more substantive arguments about the bill, claiming that the coming-into-force clause ensured that it did not appropriate any part of the public revenue, as such appropriations would have to be granted through subsequent legislation. He further contended that it was not a “money bill”, but, and I quote, “merely contemplates the minister entering into an agreement but does not directly involve any expenditure”.

The hon. member for Perth—Wellington, on September 19, 2017, made a similar argument in relation to Bill C-344. In his view, it was clear that no money could be spent for the purposes set out in the bill unless and until such funds were appropriated by Parliament in a separate measure. He argued that the bill merely established the machinery under which some future expenditure might be made and that for this reason it did not require a royal recommendation.

As Speaker, I am mindful of my responsibility to provide members with the widest amount of latitude possible in bringing forward measures for consideration as long as these conform to our rules and practices. Their proposals may take the form of either motions or bills. The Chair would only intervene to prevent consideration of such items when they are clearly defective in some procedural way. One of the most important tests when it comes to bills that authorize spending is that they must first be introduced in the House of Commons and must be accompanied by a royal recommendation prior to final adoption. The key question in relation to these three bills is whether they authorize any spending. That is to say, would their adoption result in public funds being appropriated for new and distinct purposes?

The Parliamentary Secretary pointed out measures in each bill that he felt required a royal recommendation. Bill C-343 provides for the appointment of a federal ombudsman for victims of crime, with remuneration and associated expenses for the appointee, and the hiring and remuneration of the necessary staff.

As the member for Perth—Wellington mentioned in passing, this office already exists as a program within the Department of Justice and the ombudsman is appointed as a special advisor to the Minister of Justice pursuant to the Public Service Employment Act. What Bill C-343 proposes, I would argue, is different, insofar as it seeks to establish the ombudsman as a separate and independent office outside of the department. In such circumstances, a royal recommendation would be needed to properly implement the creation of this office and authorize spending to this end.

Bill S-205 proposes the appointment of a new inspector general of the Canada Border Services Agency, the appointee's remuneration, and associated employment benefits. These provisions, if implemented, would require new and distinct spending not currently covered by existing appropriations.

Bill S-229 seeks to authorize the designated minister to make regulations allowing for, among other things, the establishment of a funding program to enable notification centres and damage-prevention organizations to exercise the functions assigned to them under this act, potentially involving new expenditures not currently authorized. Excepting that certain clauses of each bill seem to involve potential spending for which a royal recommendation would ordinarily be required, the critical question is the impact of the coming-into-force clause.

The hon. member for Guelph and the hon. member for Perth—Wellington cited certain authorities and precedents to justify why a royal recommendation is not required. Beauchesne’s Parliamentary Rules and Forms, sixth edition, at page 186, citation 613 reads:

A bill, which does not involve a direct expenditure but merely confers upon the government a power for the exercise of which public money will have to be voted by Parliament, is not a money bill, and no royal recommendation is necessary as a condition precedent to its introduction.

The same publication, at page 185, citation 611, addresses the issue of Senate bills containing a clause that states that no money will spent as long as the necessary parliamentary appropriation is not secured. Specifically, it states:

A bill from the Senate, certain clauses of which would necessitate some public expenditure, is in order if it is provided by a clause of the said bill that no such expenditure shall be made unless previously sanctioned by Parliament.

All three bills explicitly provide that they cannot be brought into force until funds are appropriated by a subsequent act of Parliament, which would have to be initiated in the House of Commons and be accompanied by a royal recommendation. The adoption of these bills, then, does not authorize the appropriation of any funds from the consolidated revenue fund. They would establish a framework in law to establish the new offices proposed by Bill C-343 and Bill S-205, or to develop the system proposed by Bill S-229.

However, the crown is in no way obligated to spend money for these purposes. If, in the future, Parliament granted the necessary funds for these purposes, it would be doing so in the full knowledge that it would allow these measures to come into force. Such a granting of funds would have to be done pursuant to our normal financial procedures. This being so, the financial prerogatives of the crown and the privileges of the House of Commons are entirely respected.

It must also be recognized that the House has not had to deal with bills providing for conditional spending in recent years and certainly not since the significant changes to our practices surrounding private members' business made in 1994.

After careful consideration, I am of the view that a royal recommendation is not required, and that these three bills may continue along the usual legislative process. With that said, I believe it might be useful for the Standing Committee on Procedure and House Affairs to consider the matter of private members' bills that contain what I would call, for lack of a better term, non-appropriation clauses. The House would likely welcome any views that the committee would have to offer on this subject.

I thank hon. members for their attention.

Private Members' Business

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

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.

[The Speaker, Geoff Regan]

The Chair would like to take a moment to provide some information to the House regarding the management of private members' business.

As members know, after the order of precedence is replenished, the Chair reviews the new items so as to alert the House to bills which at first glance appear to infringe on the financial prerogative of the crown. This allows members the opportunity to intervene in a timely fashion to present their views about the need for those bills to be accompanied by a royal recommendation.

Accordingly, following the April 10, 2017 replenishment of the order of precedence with 15 new items, I wish to inform the House that there are two bills that give the Chair some concern as to the spending provisions they contemplate. They are Bill C-315, an act to amend the Parks Canada Agency Act (Conservation of National Historic Sites Account), standing in the name of the member for Leeds—Grenville—Thousand Islands and Rideau Lakes, and Bill C-343, an act to establish the Office of the Federal Ombudsman for Victims of Criminal Acts and to amend certain acts, standing in the name of the member for Beauport—Côte-de-Beaupré—Île d'Orléans—Charlevoix.

Additionally, on an exceptional basis, I would like to raise concerns regarding Bill S-205, an act to amend the Canada Border Services Agency Act (Inspector General of the Canada Border Services Agency) and to make consequential amendments to other acts, and Bill S-229, an act respecting underground infrastructure safety. Both bills have been sent to the House of Commons for consideration. The Chair expects that in due course they will be given first reading in the House, as is usually the case with bills sent to the House by the other place.

As members know, certain constitutional and procedural principles inform the Chair with respect to bills containing spending provisions that would require a royal recommendation, which are also known as “money bills”.

A fundamental requirement for bills of this nature is that they must originate in the House of Commons. Standing Order 80(1) embodies this important principle, stating:

All aids and supplies granted to the Sovereign by the Parliament of Canada are the sole gift of the House of Commons, and all bills for granting such aids and supplies ought to begin with the House, as it is the undoubted right of the House to direct, limit, and appoint in all such bills, the ends, purposes, considerations, conditions, limitations and qualifications of such grants, which are not alterable by the Senate.

This stipulation explicitly prohibits “money bills” from originating in the Senate. In the past, if a bill requiring a royal recommendation was passed by the Senate and sent to the House, the Chair has seen fit to interrupt all further consideration of the bill.

The Chair has specific concerns about the unusual manner in which Bill S-205 and Bill S-229 are structured. Essentially, they appear to contain spending provisions that would require a royal recommendation, but they both conclude with coming into force provisions that suggest otherwise.

Receiving such bills from the Senate is exceptional and rare. Indeed it may well be the first time the House is seized with such legislative measures. Parenthetically, Bill C-343, which I referenced earlier, contains a similar provision.

If, following an anticipated first reading of Bill S-205 and Bill S-229, the Chair determines that the bills are contrary to our usual rules and practices regarding money bills, I would be obligated to disallow them to be further considered in the House. Specifically, it would be incumbent on me to order them removed from the Order Paper and any consideration of them ended. This is distinct from the process for bills first introduced in the House that require a royal recommendation, which are allowed to continue to the end of third reading before the Chair interrupts their consideration. Such would be the case for Bill C-315 and Bill C-343, should the Chair conclude that they do indeed require a royal recommendation.

In view of these considerations, I would encourage hon. members who would like to make arguments regarding the concerns about these bills that I have raised today, or any of the other bills now on the order of precedence, to do so at the earliest opportunity.

I thank hon. members for their attention.