Mr. Speaker, thank you, and I thank my colleagues who have called for order in the chamber.
How do we know this is what the government has done? We know because on the one hand, the item “Making Employment Insurance more Responsive and Effective” appears in the main estimates annex for the budget implementation vote, seeking a little over $130 million in spending authority to implement the changes the budget tells us require legislative changes to implement.
However, we do not just glean this from the budget document. More important, the legislative changes contemplated in the budget document are currently in Bill C-74, the budget implementation act, 2018, No. 1, and that bill is currently before the House.
In the Department of Finance's briefing binder for the clause by clause review of that bill, we read, “Amendments are proposed to the Employment Insurance Act (EI Act) to make permanent the default rules of the current Working While on Claim pilot project.” This is essentially exactly what we are told the money is for in the proposed appropriation act. It then goes on to say, “Transitional provisions are proposed to allow claimants to revert to the rules of a previous pilot project on an optional basis.” Again this is the same language for which we are being told the money is being appropriated. Again, for the sake of time, Mr. Speaker, you can check out those documents on your own, but I think I have quoted enough to give you an idea.
These changes in the budget implementation act are clearly meant to authorize the program changes for which the government is seeking appropriations under the item “Making Employment Insurance more Responsive and Effective”. The budget implementation act is still before the House and has yet to go to the Senate. In other words, it is some ways away from being passed, even if the government acts on its propensity for time allocation in order to pass the budget implementation act through the House once it returns from committee, which it now has. Forgive me for the notes, having prepared them a little in advance. It will nevertheless have to pass through the other place.
We cannot prejudge how quickly the bill will pass in the other place. Nor do I think the possible use of time allocation would be a basis on which to say that the proposed allocation for this item would be in order. The cart is clearly before the horse in this case, and the vote ought therefore be ruled out of order.
It is likewise with the item “Ensuring Security and Prosperity in the Digital Age”. Under the rubric of Treasury Board vote 40, the government is seeking to appropriate a little over $100 million across eight different departments, including $43 million for the Communications Security Establishment. From the budget document, on page 203, we learn:
Canada's plan for security in the digital age starts with a strong federal cyber governance system to protect Canadians and their sensitive personal information. To that end, the Government proposes to commit $155.2 million over five years, and $44.5 million per year ongoing. to the Communications Security Establishment to create a new Canadian Centre for Cyber Security.
In order to establish the Canadian Centre for Cyber Security, the Government will introduce legislation to allow various Government cyber security functions to consolidate into the new Centre. Federal responsibility to investigate potential criminal activities will remain with the RCMP.
It is clear legislative changes to establish the new Canadian centre for cybersecurity are integral to the purpose for which the government is seeking to appropriate funds under the Treasury Board vote 40 item, “Ensuring Security and Prosperity in the Digital Age”.
It is also clear that the government has chosen to seek spending authority for this initiative without first obtaining the requisite legislative authority. The evidence that it has is undisputable, as the legislative measures required to establish the Canadian centre for cybersecurity are also in the budget implementation act, 2018 No. 1 currently before the House.
The Department of Finance's briefing binder for the clause by clause review of the bill reiterates verbatim the passages from the budget I just quoted, so I will spare you, Mr. Speaker, quoting from that document because the two are in fact exactly the same.
Once again, the budget implementation bill is currently before the House. It has not passed. It may not even be close to passing, though the timeline here is irrelevant.
To quote Speaker Jerome from March 21, 1977, the matters touch:
... very fundamentally upon the right of parliament to function, the right to examine the spending program and to control the spending program through parliamentary votes, which is perhaps the most fundamental aspect of the work of parliament.
In conjunction with that is the legislative role. It is clear that some statement ought to be attempted to separate those powers which the House possesses by way of supply and those powers which the House possesses by way of legislation. That is not a task that I look forward to with particular relish. It is an important task..
Clearly, the government is seeking to appropriate funds without first having established the legislative authority for the appropriation. It cannot assign funds to an entity that does not yet exist. This is a principle that at least some government departments seem to understand.
The government's pension for life initiative for veterans is announced in the budget, including an estimate of the cost. However, no request to appropriate funds was made in the estimates, and the departmental plan clearly states that legislative changes must be made before the department can include the expenditure in its financial plan. Presumably, the request for funding will come through a supplementary estimates after Parliament has passed the appropriate legislation.
There are other examples that are more vague. I was prepared to offer some detail, but I will try to go through it in a more rapid fashion. I will simply mention these examples.
The first one is the new intellectual property strategy. That is an item under vote 40. The language in the budget document very clearly contemplates the possibility of legislation as part of the program. The item “Modernizing Canada’s Regulatory Frameworks” also contemplates the possibility of legislation in order to realize the program for which it is requesting an appropriation of funds. The item “A New Process for Federal Election Leaders’ Debate” also very clearly contemplates the possibility of legislation in order to achieve the program purposes for which the government is seeking an appropriation of funds. The item “Stabilizing and Future Transformation of the Federal Government’s Pay Administration (Phoenix)” also contemplates legislative changes for the purpose for which it is requesting those funds.
What do all of these examples have in common? In all of these cases, the government is seeking an appropriation of funds under the main estimates. In all of these cases, the information we have, which is not always presented in the estimates but in the budget document instead, the government explicitly contemplates changes to legislation as an integral part of fulfilling the purpose for which it is seeking spending authority. In some cases, it seems more likely than in others that legislation would, strictly speaking, be required in order to spend the money toward accomplishing the program goal.
However, I humbly submit that while this level of uncertainty with respect to required legislative authority is perfectly acceptable in the budget, it is not acceptable in the estimates. Had these programs gone through the Treasury Board process, as items usually do before their inclusion in the estimates, we would have the necessary level of detail with respect to the programs contemplated in order to assess their legislative requirements. It is because of the novel mechanism of vote 40 that Parliament cannot make this assessment, a situation that undermines its ability to provide proper oversight of government spending and subverts the established supply processes of this place.
Some members may want to interject at this point and say, “But wait, vote 40 is structured in such a way as to prevent expenditures for which an appropriate legal mandate does not exist.” The problem with that defence is the question of who decides whether the appropriate legal mandate for certain expenditures exist.
Under the normal process, parliamentarians would be able to review appropriations and match them up with existing authorities prior to approving the estimates. If there were a dispute about proper authorities, Parliament would simply be able to withhold the funding until the problem was rectified.
Under vote 40, the funding would already be approved. Therefore, if the government goes ahead and spends money on a new program and reports on that in a supplementary estimates, and note I say “report” and not “request approval”, and a member suspects that the program requires new statutory authority, what is the member to do? The spending has been pre-approved and the money has been spent. Parliament cannot simply take it back.
The point here is that Parliament should be the arbiter of whether expenditures are within the legal mandate of the departments or organizations doing the spending. That is what our oversight role for government spending requires, and it is our right as the ultimate guardian of the public purse.
There you have it, Mr. Speaker. There are at least two items under vote 40 that are clearly out of order because they put the cart before the horse by requesting appropriations for measures that do not currently have the appropriate legal mandate. We know that because the legislative changes are currently before the House. The point is perhaps most succinctly put in Beauchesne's fifth edition, citation 486, where is says:
If a Vote in the Estimates relates to a bill not yet passed by Parliament, then the authorizing bill must become law before the authorization of the relevant Vote in the Estimates by an Appropriation Act.
The point was also clearly stated by Speaker Sauvé on June 21, 1982, when she said:
As I said in my ruling of June 12, 1981, an item that seeks to establish a new program in the absence of other legislative authority and the funds to put it into operation runs counter to the rulings of the Chair since 1974, which hold that legislation is required to authorize new programs, particularly matters of major substance.
This point was made again by Speaker Fraser on March 20, 1991, when he said:
It appears common ground in the arguments that have been made, first, that statutes ought not to be amended by means of items in the estimates; second, that authority to act in cases where statutory provisions already exist should be sought by the passage of amending legislation and only then the money to finance that action should be sought through appropriation acts...In both instances authority is sought, first, to implement the Senate committee report which recommended the allowances and, second, to pay the allowances. The very wording of the votes confirms that there is no existing statutory authority under which the allowances could be paid. If the statutory authority existed there would be no need to seek approval for implementation in this fashion. The type of authority sought here is akin to approval in principle and, as was made clear in the ruling of both Speakers Lamoureux and Jerome, should be sought through legislation other than appropriation bills.
That vote 40 does permit the establishment of new programs is clear in its wording. It does authorize the creation of new grants, and it said so. I do not have that wording because I have been trying to be brief, but I have referred to that wording in the past in other arguments. The caveat that they must conform to existing legal mandates is cold comfort to a Parliament that will have already authorized the disbursement of funds and finds out only after the fact how it was actually spent. Effectively, Parliament will have lost the power to decide for itself whether the government has acted within its legal mandate or whether legislative changes are required to authorize the new initiatives.
Beyond those two items, there are a number of others where it is unclear whether legislative changes would be required to legitimize expenditures that vote 40 seeks to authorize. Once again, in these cases, Parliament should get to judge once the program is adequately developed. This is ordinarily the case through the supply process as we know it, but the mechanism of vote 40 subverts that process and Parliament's power of oversight along with it.
Canada's constitutional monarchy is largely based on the British model, which developed largely through Parliament's efforts to limit or appropriate royal prerogative power. The most significant way in which it achieved that goal was by gaining control over public expenditures and the power to raise revenue. The creep of power does not always come by way of conniving maniacs. Sometimes it comes a little more gently with the sense of entitlement typical of those accustomed to power. Parliament is—
