Procedure and House Affairs Committee on March 21st, 2017

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

Interesting. Thank you.

[The Chair, Liberal, Larry Bagnell]

Thank you.

Given that was a perfect example of the Simms protocol, I might just explain it to those viewing. In this committee, given that in this procedure the speeches can be very long, the committee has been very flexible and has allowed what's called the Simms protocol, so that if someone has a short comment on a particular item that's come up in a member's speech, if the member who has the floor will allow it—and they always have, to date, in these meetings—then the member can make a short interjection. This might lead to some other members having short interjections, a little discussion on that particular point in the member's speech. I think it's been very useful, actually.

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

Mr. Chair, all of this is in the context of the practice in the House that with unanimous consent you can do anything without establishing a precedent.

[The Chair, Liberal, Larry Bagnell]

Yes, agreed.

Mr. Genuis, I have a quick question. Have you read or briefly looked at the budget implementation bill, the present one?

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

I read through most of the budget. I haven't spent a lot of time on the budget implementation bill yet. I know the outline of it but....

[The Chair, Liberal, Larry Bagnell]

I was just wondering if it primarily dealt with items that were in the budget or if there were any glaring exceptions to that.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

This is exactly the point, specifically about budget omnibus bills. Of course they deal exclusively with things that fall within the areas in which the federal government spends money, but that is everything. If the relationship is that it's part of the economic plan, part of government expenditures, that is a wide enough theme that it could catch everything under it.

This was precisely the same argument that was used under the previous government to advance legislation, which members of the current government thought constituted an improper use of omnibus legislation, as opposed to a proper use of omnibus legislation, whatever that distinction is.

This is the point, isn't it? We don't typically see governments in the middle of June coming forward with a Christmas tree bill that covers a bunch of different themes that are in the budget. We see governments bringing forward legislation that covers a large number of themes insofar as they are all related to the fiscal and economic plan of the government. It's hard to envision a system in which that would not be the case.

I know, having just read the budget, that there are many issues dealt with that certainly go outside the narrower scope of government spending.

There are a few obvious examples that come to mind. I think it is page 93 of the budget that talks about unpaid internships. We vote on the budget in principle, so that's a form of an omnibus as well. I may actually have the page number wrong, but there is somewhere in the budget that talks about phasing out unpaid internships unless they are part of a designated educational program.

I suppose that has some relationship to the economy insofar as it deals with education, training, and how young people get into the workforce, but it doesn't involve spending. It's not a question of the immediate economic situation in terms of things that are or are not going to create economic growth right now. Really, it's more of a question of justice and liberty than it is a question of economics. It's a question of whether it is just and fair for the government to restrict people from engaging in voluntary arrangements that they consent to.

If someone chooses to volunteer for free in my office because they feel that the experience they're getting is valuable, I would be of the view that it's not really up to the state to tell them, “Sorry, but you're not allowed to volunteer there because we don't think that you are competent to make that decision for yourself.” I would argue that on the basis of the principles of freedom and justice vis-à-vis those individuals. On the other hand, the counter-argument is that these relationships in which people are working and not getting paid are inherently exploitative, or at least have the potential to be exploitative. I think that to outlaw unpaid internships in all cases, except as part of a formal educational program, because there is a risk of some degree of exploitation is massive overkill.

At the end of the day, someone might sign up for an internship and find that rather than getting valuable experience, all they were being asked to do was to file and photocopy, but it would be up to that person at that point to decide if they thought it had value or not, and to quit if they didn't think it had value. These are the kinds of things people do in a free society. They make decisions in response to the information and incentives that are in front of them.

I don't agree with that particular provision of the budget. It's an example of something that seems pretty far off the track of formally dealing with budget measures, and yet it has some relationship, I suppose, to the spending of the federal government insofar as, if there's going to be a movement against unpaid internships, it will require some kind of enforcement by the government, some kind of definition of what qualifies as a legitimate educational program, and some kind of process of adjudication. That's something in the budget that could lead to the incurring of an expenditure down the line, but it seems pretty far afield if you're just trying to focus on what narrowly fits within the budgetary policy of the government.

There are some changes to the temporary foreign worker program that are in the budget as well, which deal with whether or not labour market opinions are required in certain cases, the ratios in certain workplaces, and so forth. Those are changes that have implications for the economy, of course, because some of those provisions deal specifically with temporary foreign workers who are also caregivers. That has implications for health. There are lots of ways in which this particular immigration policy changes the implications for other policy areas, but changes to the temporary foreign worker program are not, at least in a narrow or direct sense, the sorts of things you would think of as being part of the budget.

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

Garnett, my apologies, but do you mind if I say something?

If it's still okay with Garnett....

[The Chair, Liberal, Larry Bagnell]

Mr. Reid, go ahead.

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

As you were saying this, the thought occurred to me that if we are trying to figure out whether budget implementation bills include items that ought not to be in them, the best way of doing this might be to look at the history of budget implementation bills in Canada and see how they have developed. Perhaps there was a golden age when all they did was something much narrower.

As we know, the fundamental role of the government is to secure supply for the ongoing operations of Her Majesty's business. The fundamental role of the House of Commons is to decide whether or not supply ought to be granted. The budget, effectively, is a way of saying, “This year, we are changing our priorities and the supply we're going to need is going to be different.”

I'm assuming that some stripped-down version of that was what happened in the early days. If we looked at where we've been, we might figure out whether there was some point at which we crossed beyond what's permissible, and see if we could roll back to that point. We actually have many precedents.

[The Chair, Liberal, Larry Bagnell]

That's an interesting point. Maybe we'll ask the researcher to get us some information on that.

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

I was going to suggest that this would be reasonable. It might be a good way of approaching that.

It's clear that there is such a thing as a bill that from one angle looks like an omnibus, which all of us, I think, take to mean a bill that has too much in it to be characterized by a single narrative. On the other hand, sometimes we have a single but very complicated narrative.

I'm reading Remembrance of Things Past , which is a 3,000-page novel that includes many different themes all linked together. That is not true with Flannery O'Connor's short stories that my colleague Mr. Genuis is reading, each of which has a very clear, narrow theme.

It can be legitimate in certain cases, so perhaps the way to sort it out is to look back at what has happened in the past.

[The Chair, Liberal, Larry Bagnell]

An example that you and I would remember from two Parliaments ago was a budget implementation bill that made a whole bunch of changes to the Navigable Waters Protection Act that really had no reference to money or anything. That wasn't the purpose of the changes.

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

That would be a good example.

[The Chair, Liberal, Larry Bagnell]

Okay, when the researcher gets back, we'll ask him to look into that for us. That would be interesting.

Mr. Genuis, go ahead.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Thank you.

I remember debate on the changes to the navigable waters act. Of course, the argument the government used at the time with respect to the navigable waters act was that the changes were designed to facilitate a more effective process for the adjudication of economic development proposals. I don't think that's any more outside the budgetary policy of the government than the question of unpaid internships or the temporary foreign worker program. This is the whole problem of the government's being concerned about the improper use of omnibus legislation without actually defining what “improper” is or isn't.

Mr. Reid, your comparison of Proust and O'Connor is, I think, revealing. I don't think it's quite true to say that Flannery O'Connor's short stories each, individually, develop one particular theme. It's perhaps more true than it would be to say that Proust, in the novel you have, only develops one theme. Of course, there are many, many themes in—

[The Chair, Liberal, Larry Bagnell]

Okay, okay.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Sorry. What this speaks to, though, is that you can't necessarily narrowly say what is and is not omnibus. What is one theme or multiple themes is invariably, to some extent, in the eye of the beholder. O'Connor's short stories are anything but simple thematically.

Anyway, on to the questions raised in the earlier interventions with respect to omnibus. I think Mr. Simms had some interesting points. There is a distinction when we think about the role of the Speaker. Once we pass this amendment and have a chance to proceed to the study, it's probably worth actually getting some former Speakers in here to share with us how they would conceive of the role of the Speaker. A lot of reforms we might want to see, if we're going to get out of this challenge of parties always taking their own sides, is to have an enhanced role for the Speaker, but there are some potential challenges.

Examples have been raised of powers that are given to the Speaker, but I would argue that the existing powers, even with respect to things that may, on face, seem substantive, involve interpreting something that is interpretable. It's not the exercise of discretion based on basic philosophy. They're not coming to conclusions without clear criteria. They're interpreting to some degree with criteria.

One example used was a committee seeking to amend a piece of legislation beyond the scope of the legislation passed at second reading. This can happen, and examples were given where a bill has passed at second reading and an amendment has been proposed at committee and perhaps passed by the committee, but the Speaker has been of the opinion that it goes outside the scope of the bill.

For the benefit of those watching, an easy example is a bill that deals with the question of increasing the salaries of associate ministers. If someone were to amend that bill to add a provision changing marijuana laws, that would clearly be outside the scope of the legislation and not appropriate. Let's say the committee made the error of allowing it to pass at the committee stage. It would then be up to the Speaker to not allow that to go forward. That, I think, would be a clear case. There might be more ambiguous cases, but the Speaker would be charged in that case with looking at the scope of the bill at second reading and identifying whether the amendments, the potential new provisions, fell within the scope that had been established. That's very different from asking the Speaker to make decisions without clearly established parameters.

The point with respect to omnibus legislation is that we don't really have a coherent definition of what constitutes an omnibus bill. If through this process clear criteria could be established for what falls within a theme or doesn't fall within a theme, which would be very difficult to do, it would make it much easier to ask the Speaker to make those interpretations. But if the government House leader's discussion paper can't decide, and if through a study we can't even establish what is and is not omnibus, then there is a problem if we ask the Speaker to make decisions on the basis of non-existent criteria, especially when we're struggling to identify what the criteria are.

Yes, there can be a use for the Speaker's discretion. It was pointed out that the Speaker groups report stage amendments. That's also something the Speaker does, but it is on the basis of certain established precedents and rules that this new power simply wouldn't provide.

The question of the process by which this would happen is interesting. It has the potential to raise some new questions when it comes to the efficiency of legislation, especially when you're talking about something like a budget, which is supposed to go through in a certain clear period of time.

Essentially, it would be difficult for the Speaker to make these calls without arguments being brought to him with respect to those issues. If there were a Standing Order that allowed the Speaker and required the Speaker to split bills under certain circumstances, then you would see points of order and arguments to the Speaker on that basis, as it is the right of members to raise points of order to the Speaker when members perceive violations of the Standing Orders. The Speaker, to be fair, would have to allow various arguments and counter-arguments with respect to what was actually omnibus and what wasn't. The Speaker would consider those arguments and might make a ruling. Would the Speaker's word be final at that point? Would the bill be split? Would he find, as we've discussed in the context of privilege, a prima facie case that the bill needed to be split, and therefore there would be further debate on whether the bill would be split?

The question, given the ambiguity, is whether this would create a situation in which virtually every piece of legislation, including private members' legislation, might be challenged on the basis of being omnibus. How would that impact the efficiency of debate in our legislative process when, on an ongoing basis, we were debating and meeting to evaluate these questions of relative “omnibus-ness”?

I guess I worry that by trying to overly control this process, we would find ourselves in a situation where the process would be much more cumbersome, because we would be spending so much time debating and evaluating the relative degree to which a bill was omnibus and whether it fell within the acceptable parameters. Through that process, we would find ourselves weighed down by more and more procedural debates. As much as I enjoy procedural debates, the goal is ultimately to facilitate more opportunities for substantive conversations about these issues, conversations that are limited if there are ambiguous criteria we're constantly trying to interpret.

I think Mr. Reid and Mr. Simms made the point very well that you can't think about omnibus bills, or not, as a strict binary. There is a scale. There are bills that are more omnibus and less omnibus, so you would have to establish a way of measuring that scale, and you'd have to define where the acceptable line was.

This raises a host of problems. It seems like the question of policing omnibus legislation is one of those things, like a lot of things in politics, or even in life, that seem like good ideas, but when you start going through how they would be operationalized, you start to realize that maybe it's not worth the trouble of actually having this policing process for omnibus bills.

Maybe it is worth it, but it is a lot more complicated than it initially seems, and the process of administering an evaluation of those things would require us to go to a level of depth and detail that might entail other kinds of problems previously not foreseen.

Returning to the discussion paper provisions with respect to omnibus bills:

Since the Clerk of the House has the power in Standing Order 39(2) to divide written questions, a similar approach could be used by the Speaker to divide omnibus bills. The Speaker's authority could be prescribed by criteria to define and establish a “unifying theme” of the bill.

Every bill has a unifying theme. It's just a question of the broadness of the theme and the degree to which that theme conceivably has some relationship to the various provisions of the bill. When you have a theme like the economic program of the government, you can pretty much include anything in it, but is that really what we want to see? That's an important question for the House to consider.

Like so many of these—

[The Chair, Liberal, Larry Bagnell]

Yes, Mr. Christopherson?

[David Christopherson, NDP, Hamilton Centre, ON]

Thank you. I'm very much enjoying this. There's a lot of in-depth thought about omnibus bills. One thing occurred to me. I wonder, through you, Chair, if the speaker knows whether there's any legislation, either in Canada at the provincial level or within the Commonwealth, that has addressed this.

One of the things we've talked about is the practicality of it. It makes good sense if we compare it to other powers the Speaker has in terms of adjusting things based on fairness and other criteria. I wonder if there are other jurisdictions that have gone down this road and done some of the homework so we could reflect on that. If my friend is not aware himself, perhaps our analyst can chime in or give us a sense that this is something we can look into and report back on.

[The Chair, Liberal, Larry Bagnell]

Yes. We'll get our researcher to answer.

[David Groves, Analyst, Library of Parliament]

The Library of Parliament has a publication on omnibus bills I can circulate to the committee.

I know that Quebec actually has in its Standing Orders something giving the power—I don't know if it gives it to the Speaker—to prevent omnibus legislation and to consider it to be out of order.

I'll circulate the—

[David Christopherson, NDP, Hamilton Centre, ON]

That will be helpful. Why reinvent the wheel if someone else has taken a crack at this? Given the depth my friend has been going into, I think this could be helpful too.

Thanks very much, Chair. I appreciate the intervention.

[The Chair, Liberal, Larry Bagnell]

That's a very good point. It's great that there's something available for us.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Do you know if it has ever been used in Quebec? It's one thing to say it's in the Standing Orders, but I'd be curious to know if there has ever actually been a case where arguments have been made and an adjudication has been made. Perhaps the existence of the Standing Order acts as a sufficient deterrent that it's not needed, or perhaps it's there but it's not effective. Do you have any sense of the use of it?