Mr. Speaker, I am rising to comment on the point of order raised last week by the hon. member for Carleton under Standing Order 69.1 to divide Bill C-63, the budget implementation bill, 2017, no. 2, so as to allow a separate vote on clause 176 and the bill's schedule concerning the Asian Infrastructure Investment Bank. I apologize in advance for a somewhat lengthy submission, but since we do not have precedents yet to guide us, there is still much ground to be covered.
To save some time, I am going to simply refer the Chair to the original point of order, as well as to the point of order raised by the official opposition House leader concerning Bill C-56 on October 31. Truth be told, I am not making extensive arguments because I am looking to somehow delay the business of the day, but because of what happened during the amendments made back in June and in the spring to the Standing Orders, when they were rushed through. There are many details left unaddressed, which need to be sorted out. Let that be the lesson of what happens when a government obsessed with doing things hastily rams through the House of Commons a platitude dressed up in legal language.
Now to the point of order, I believe that the hon. member for Carleton ably argued how Bill C-63 goes beyond the exemptions written in budget implementation bills. My argument goes to why, having established that the exemption does not apply, items that had some passing reference in the budget can be divided from the other budgetary provisions in the budget implementation bill. As the Chair undoubtedly is aware, the Quebec national assembly has a procedure to allow consideration of motions to order the division of a bill where there are different principles within that bill. Its jurisprudence could be helpful to us in this case.
Pages 399 and 400 of Parliamentary Procedure in Québec explain the process when a motion to divide a bill has been offered. It states:
The Chair rules on the admissibility of the motion, after examining the bill to determine whether it contains more than one principle.... criteria establishing whether or not a bill contains more than one principle have evolved out of jurisprudence. First, if the different parts of the bill constitute a fraction of a larger whole or principle, then the bill is not considered to contain more than one principle. Second, a distinction must be made between the essence and the mechanics or procedures of a bill. A principle is an essential element of a bill, whereas the mechanics are simply incidental to that principle. It should not be concluded that a bill contains more than one principle just because it comprises various procedures. Similarly, it should not be concluded that the principles that would result from a division are mere mechanics just because they can be grouped under a single theme.
The Chair can also consider other elements. For instance, although the explanatory notes have no legal value in identifying the principles of a bill, they may nevertheless indicate the existence of more than one principle. In one ruling, the Chair found that appending the text of an entire bill to another bill spoke volumes, and pointed out the difficulties of application created by this type of drafting. However, compliance with legislative drafting rules does not ensure than a bill contains only one principle.
The principle or principles contained in a bill must not be confused with the field it concerns. To frame the concept of principle in that way would prevent the division of most bills, because they each apply to a specific field. Furthermore, when determining the principle or principles of a bill, the Chair need not consider the importance given to certain parts of the bill, nor evaluate whether one part of the bill is incidental to another. The Chair should not seek to clarify the legislator's intention, but should simply read the text, without trying to interpret it. That being said, the Chair must necessarily analyze the provisions of the bill to determine whether they contain one or more principles. However, this must be done on the basis of the text itself and not by seeking to determine all the possible consequences of applying the bill once it has been adopted.
I have one more, shorter, quote from page 401 that adds:
The following conditions have also been established by parliamentary jurisprudence: each part of the divided bill must be able to stand on its own; each part of the divided bill must be more than a mere procedure; each bill resulting from the division must be a coherent whole, independent from the rest.... Parliamentary jurisprudence has established that, in a motion to divide, the sections of a bill cannot be rewritten in order to render the motion admissible, with the exception of the section relating to the coming into force of the bill. It is nonetheless possible to cut some words from a section provided that they are transposed integrally into the other bill.
Let me turn to the specific case of Bill C-63. Before we hear some more rebuttal on this, the Asian Infrastructure Investment Bank and the remaining provisions of Bill C-63 are all budgetary in nature. They are all economic in their effect.
Let me refer to the words on page 400 of Parliamentary Procedure in Québec. It is a shorter quote, which states:
The principle or principles contained in a bill must not be confused with the field it concerns. To frame the concept of principle in that way, would prevent the division of most bills, because they apply to a specific field.
—as I said.
In this case, we are talking about what might be claimed to be budgetary or economic policy.
The ruling of former Quebec national assembly vice-president Fatima Houda-Pepin on December 11, 2007, at page 2,513 of the Journal des débats makes the following point:
In this case, the bill contains more than one principle. Although the bill deals with road safety, the Chair cannot consider that to be the principle of Bill 42. The principle or principles of a bill should not be confused with the topic to which it pertains. Coming up with a different concept of the notion of principle would disqualify most bills from being subject to a division motion because they deal with a specific topic. In this case, the various means of ensuring road safety included in this bill could constitute distinct principles.
Indeed, I anticipate the Liberals may say that every piece of Bill C-63 is critical and integral to the entire legislative package and, if separated, would doom the whole initiative. To that, I offer the ruling of another former Quebec national assembly vice-president, Claude Pinard, on June 3, 1998, at page 11,651 of the Journal des débats:
In this case, this was rather an instructive exercise used to demonstrate that the principles of a bill do not necessarily coincide with its author's intentions. In other words, the Chair, when identifying the principles of a bill, does not have to wonder about whether certain parts of the bill are more important to the author than others, or whether the author considered one part of the bill incidental to another. To do otherwise would render Standing Order 241 inapplicable, and no other bill could be divided, since it would be very surprising that the author of a bill did not consider every part of his or her bill to be absolutely essential.
Next, I will turn to the practical considerations that must flow from a decision under Standing Order 69.1 to divide a bill. At second reading—and third reading, for that matter—Standing Order 69.1(1) is clear that there is to be a “single debate” at each stage. However, it does not give direction on the formulation of the question or questions to be proposed by the Chair.
Moreover, a practical consideration, especially for those of us on this side of the House, is the matter of amendment at second and third reading. Are we to be limited to one amendment, must it relate to the entire bill, or perhaps it is to be limited to a single portion of the divided bill? The answers to these questions turn, obviously, on how the Chair approaches and proposes the main motion or motions at second or third reading. An analogous process in Australia might be of assistance here. In the Commonwealth Parliament, the approach to omnibus bills is essentially to have a series of separate, individual bills but to handle them en bloc in a process known as “cognate debate”.
Page 389 of House of Representatives Practice, sixth edition, explains:
When there are related bills before the House, it frequently suits the convenience of the House, by means of the cognate debate procedure, to have a general second reading debate on the bills as a group rather than a series of separate debates on the individual bills. A proposal for a cognate debate is usually put to the House by the Chair when the first bill of the group is called on. If there is no objection the debate on the second reading of the first bill is then permitted to cover the other related bills, and no debate (usually) occurs when the questions on the second reading of the subsequent bills are put. Apart from this, normal procedures apply—the bills are taken in turn with separate questions put as required at each stage of each bill. If a Member wishes to move a second reading amendment to a bill encompassed by a cognate debate, other than to the first bill, the amendment may only be moved when the relevant order of the day for the later bill is called on.
To that end, I encourage you to devise some approach to permit multiple amendments to be on the floor, or at least in the public domain somehow during second reading and third reading. Alternatively, a stricter adaptation of the Australian approach with amendments being permitted to be moved before the putting of the questions on each part of a divided bill could also be fashioned. However, this latter approach has shortcomings, such as the very limited time available for members to consider an amendment or how it would intersect with the implementation of time allocation orders.
As an aside, the intersection of Standing Order 69.1 and motions offered under Standing Order 73(1) to refer bills to committee before second reading needs to be sorted out. My reading of Standing Order 69.1 excludes the option of Standing Order 73(1), given the very specific references in Standing Order 69.1(1) to, “the motion for second reading and reference to a committee”.
After the second reading stages, of course, is the committee stage. While the mechanics of a committee study do not change, there is the matter of whether the multiple votes trigger separate orders of reference. Indeed, do all the parts of the bill go to a single committee or potentially to multiple committees? Certainly, the government contemplated this multiple-committee scenario. The government House leader's infamous March discussion paper, which led to government Motion No. 18 and its new Standing Order 69.1, said “the divided bills could be sent to separate committees if the subject matter of the bills warranted such action.” The government's legislative intention, so to speak, is clear here.
With respect to Bill C-63, I would argue that two separate orders of reference would be created through the action of dividing off the Asian Infrastructure Investment Bank provisions. Once the committee stage has concluded, there is the report stage. Standing Order 69.1 is silent on this part of the legislative process. Coupled with this is the growing practice of placing all report stage motions into a single group for debate. At a minimum, I would urge the Chair, when using its discretionary authority under Standing Order 76.1(5) on the selection and grouping of report stage motions, to honour the spirit of these bill divisions to allow for the motions concerning each of the divided portions of a bill to constitute a separate group for debate at report stage.
Additionally, if the Chair permits multiple committee references, some parameters need to be established on how to proceed at subsequent stages. The most logical approach would be to treat the final report related to the bill as the conclusion of the committee stage and the trigger for the waiting period for report stage consideration.
The concerns at third reading are the same as those at second reading, so I will not repeat them.
Given the increasingly activist Senate, we also need to anticipate and prepare for it to amend these omnibus bills. Those situations will, rightfully, need to be approached on a case-by-case basis. However, the Chair should prepare for applications under the existing motion-splitting practices concerning government motions on Senate amendments.
Additionally, there is the matter of timing. My reading of Standing Order 69.1 does not reveal a deadline for seeking a division on a bill, practically speaking, other than the end of third reading debate. Obviously, a ruling cannot have retrospective application if it is made after second reading. I would be grateful if the Chair could also clarify this point in the ruling.
In closing, the government's quest for modernizing the Standing Orders without collaborating with the opposition and without the benefit of expert input on the text of its amendments has really just created a maze for members to navigate, and a mess I believe for you, Mr. Speaker, to disentangle.
I have done this before. I have a Yiddish proverb, as I always do, which reads “It is better to be embarrassed than heartbroken.” Therefore, Mr. Speaker, I have every confidence that you will get to the bottom of this and find a way to embarrass as few members as there are here, instead of breaking some hearts.
