Procedure and House Affairs Committee on March 21st, 2017

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

Mr. Chair, using the Simms rule by which people can intervene to create a de facto back and forth debate, I want to ask a question about this.

[The Chair, Liberal, Larry Bagnell]

Yes, go ahead.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

I'm trying to figure out whether there are any precedents that Mr. Genuis is aware of for giving the Speaker this kind of power. There are many other jurisdictions in the Commonwealth that have our parliamentary system. I'm not personally aware of any other examples, but they may exist. The problem I anticipate a Speaker having, should he or she attempt to deal with this, is that presumably the Speaker would not.... I'm assuming the Speaker would not, of his or her own volition and without encouragement from someone, say, “I'm going to split this bill. I regard this as an omnibus bill.” So the question—

[The Chair, Liberal, Larry Bagnell]

Sorry, I don't think you were here, but I read a passage out of O'Brien and Bosc that basically said the Speaker can't split bills.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

That's under the present Standing Orders. Is that right?

[The Chair, Liberal, Larry Bagnell]

Yes.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

What I was trying to figure out was how we would go about it if we were changing the Standing Orders. Obviously, we would change the Standing Orders to give this power, but then the Speaker would be confronted with the practical issue. This is what I'm hoping to get Mr. Genuis's commentary on.

Number one, on what basis does the Speaker initiate it? He or she has to wait, I assume, until someone stands in the House and says, “I think this bill should be split.” At that point, does the Speaker say, “Okay, I'm going to come back with a prima facie case that the bill needs splitting”?

I see Mr. Simms has perked up and is paying attention. Sorry, that doesn't mean he is not normally paying attention. He is paying even more acute attention than he normally does, if that's the right way of putting it.

I'm not sure how one accomplishes this as a practical matter. It's been on my mind, so I thought I'd ask the question.

[The Chair, Liberal, Larry Bagnell]

Mr. Simms, go ahead.

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

It's very interesting. When I read the part of the discussion paper on omnibus bills, at first blush, I thought about the splitting of bills and the discretion by the Speaker in doing that. I think it was Mr. Reid who brought it up. I think it was the first week we started this, the second or third Tuesday, as it were. When he brought it up, it piqued my interest, because I thought he had a valid point. How do you arbitrarily do this? Do you wait for someone to rise in the House and say, “I recommend that we split it this way”?

One practice we've had in the past.... Last night, someone—I think it was Ms. Bergen—cited the days of non-stop voting. I think it lasted for two days. Can someone help me? Was it two and a half days? I think it started on Wednesday and ended on Friday.

[Ruby Sahota, Liberal, Brampton North, ON]

It was 26 hours.

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

Anyway, it was quite long. All the amendments at report stage went through, and following that, the Speaker had the practice of grouping certain amendments that were similar in theme. What you're doing is looking at all these amendments at report stage and grouping them together at the discretion of the Speaker for the sake of efficiency.

This is more of a question than a comment. Would splitting omnibus bills be the same sort of practice?

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

It's sort of the flip side, I suppose.

I'm not sure if Mr. Genuis would like to take the floor as it was a question directed partly to him.

What I see, Scott, is this. The first thing that has to happen is that the Speaker has to make a ruling of some sort that there actually is a bill that qualifies as being omnibus in some impermissible way. You can understand that if you were the Speaker, you would not relish having to initiate this. You would want to get some kind of sign from the Commons that it's appropriate.

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

That's the point.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

Here is the next step. In the context of a minority government, I can see how the Commons could indicate that by a vote. In the context of a majority government, a government bill will always be found by the majority of the Commons to be acceptable, unless there is some kind of substantial breakdown. I don't know how to deal with that problem. The Speaker needs to get some kind of guidance.

First of all, there is a problem. There is a bill that is impermissibly omnibusian—

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

That's quite a Cirque du Soleil of verbiage—

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

It does create an interesting visual image, doesn't it?

The secondary question is, having established it, how do you then divide it so that you don't get some kind of unintended consequence where the separating causes each of the two bills to be non-functional unless the other was also passed, that kind of thing?

I don't know how you would do the second part. That's more technically complex, but the first one is problematic in principle. How do you actually give the Speaker that power? Everybody here, at one point or another, has quoted the famous words of the Speaker to King Charles I, “I have neither eyes to see nor tongue to speak”—I'm not getting it quite right—“except as directed by the Commons whose voice or instrument I am.”

The whole legitimacy of the Speaker comes from the fact that he is simply acting on the will of the Commons. In this case, how you convey that in the context of a majority government that has introduced an omnibus bill is something I just can't sort out.

This election promise is one of two election promises that were absolutely clearly stated: “We will change the Standing Orders to achieve this.” I've had several weeks to think about this. How does one action this? If I were given the job just to draft this up, I don't know how I would do it. I'm trying to figure that out.

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

I see what you're saying. In the beginning, when I first heard it, I was focused on the process of untangling all the bits of an omnibus piece of legislation. How do you group it? How do you do that? That seems very complex. Now that we discuss it, it seems that's probably more the path that is obvious. What's less obvious is who triggers that process

In a majority government, as you say, I guess this is why something has to be in the Standing Orders by which you would have to give discretion to the Speaker, if the Speaker finds that it is in the same way as this. If the majority of the House says yes at second reading, it implies we're accepting the general principles of the bill before it goes to committee. The Speaker has the power that if it's fundamentally changed during committee, if some of the driving principles behind the legislation have been changed—and it has been done; Speaker Milliken did it over back-to-work, anti-scab legislation, I think it was—and it goes against the principles of the bill, the Speaker rules the amendments out of order.

You can't do that. You've already said you accepted the bill in principle, and now you want to change the whole thing.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

That's right. It's outside the scope of the bill that is the—

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

Right, it's outside the scope of the bill, so that gives the Speaker quite a bit of discretion right there. I guess I'm talking in circles, but I'm trying to zero in on what triggers the separation of omnibus legislation. Is that similar or no?

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

It does. You're right about that, and that's probably the best analogy I can think of also.

I actually came up against a version of this with the Fair Elections Act. I wanted to put something into it after it was already in committee and was told that it would almost certainly be outside the scope of the bill. I think it would have resolved one of the most contentious issues associated with the bill.

That prevents a bill that is not an omnibus bill from being turned into an omnibus bill in committee. You can see that prevents us from doing what the American Congress does, where they get these riders that are attached so that by the time a bill on health care goes through, it's also building a military base in North Dakota, which was the price of getting the North Dakota senator on board. It's also making some change to heaven knows what, a hydro dam in some other state. Anyway, this prevents that from happening here, thank goodness.

I don't know. There's that question of how the Speaker gauges the will of the House in the context where the ministry has already put something forward saying it is acceptable, that whatever the omnibus rules are, they are regarded as being sufficiently coherent.

We had a version of that debate yesterday. I asked the Prime Minister about the budget. I asserted it has, at least, features of an omnibus bill. I channelled Gilbert and Sullivan, and said, “It is the very model of a modern major omnibus”, but he disagreed with that assessment. He said that no, everything is linked together, that there's a budgetary reason, a financial component to everything that makes it justifiable.

There you go. We have two interpretations. I don't think the Speaker would want to say, “All right, here I go, off to decide whether this is true.” If it does have add-ons, which add-ons should be sliced off? No Speaker would want to do that on his own. He'd want to get guidance. How we figure out guidance, how we step outside the simple “Liberals will say this and Conservatives will say that” situation is something I haven't resolved. I don't see how one does that.

[The Chair, Liberal, Larry Bagnell]

Mr. Simms.

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

If someone were to rise in the House to say, “Mr. Speaker, we need your judgment to say whether this is omnibus legislation and has to be split in different ways”, would you refer it to this committee?

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

You could. You could start with his having a prima facie ruling, where he comes back. That's what he does on privilege. He comes back with, “Here are my tentative thoughts. You've asked me to go off and think. You're assuming that I am, as Speaker, possessed of a certain kind of wisdom and reflection, which may not be literally true but I have the clerks at my disposal.”

[An hon. member]

On division.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

“By the time we're done it will look like some wisdom, and that wisdom will always be as to the precedents the group of us here may have thought of, and I've already taken advice from the House on some preliminary thoughts others have had.”

Maybe something like that might be.... That's one of the best guideposts I can think of at the moment.