I am now prepared to rule on the question of privilege raised by the hon. member for Yorkton--Melville on May 1, 2003, concerning the transfer of control of the firearms centre and the transfer of the ministerial powers, duties and functions for the Firearms Act from the Minister of Justice to the Solicitor General.
I would like to thank the hon. member for Yorkton--Melville for raising this issue as well as the hon. parliamentary secretary to the government House leader for his intervention in the matter.
In his argument, the hon. member for Yorkton--Melville raised a concern about the fact that ministerial responsibility for administering the Firearms Act was transferred by means of an order in council dated April 14, 2003, pursuant to the Public Service Rearrangement and Transfer of Duties Act, the PSRTDA. He pointed out that section 2 of the Firearms Act specifically defines “Federal Minister” as the Minister of Justice. The hon. member maintained that the transfer of responsibility for the Firearms Act and the firearms centre to the Solicitor General requires an amendment to the Firearms Act and cannot be done by way of order in council. In other words, the government must introduce a bill and have it go through all legislative steps in Parliament in order to effect the transfer of ministerial responsibility. He charged that the government's having proceeded otherwise constituted a contempt of this House and a breach of his privileges as a member.
In responding to the charges on May 1 and May 2, 2003, the hon. parliamentary secretary to the government House leader stated that the authority to make such a transfer is vested in the government through the Public Service Rearrangement and Transfer of Duties Act. He cited several cases where the act has been invoked, including the 1993 reorganization where four new government departments were created, and more recently, transfers of responsibility from one minister to another for the Pest Control Products Act in 2000 and the Royal Canadian Mint Act in 2002.
I have now reviewed all the facts related to this matter and wish to make the following observations.
I have examined the cases cited by the hon. parliamentary secretary to the government House leader and in particular the two instances related to the transfer of responsibilities under the Pest Control Products Act and the Royal Canadian Mint Act.
In the case of the transfer of responsibility for the Pest Control Products Act, the order in council transferring responsibility to the Minister of Health from the Minister of Agriculture and Agri-Food was made on October 19, 2000 and was recorded in the Canada Gazette on November 8, 2000. Ministerial responsibility for the Royal Canadian Mint was transferred to the Minister of Transport from the Minister of State, Deputy Prime Minister and Minister of Infrastructure and Crown Corporations on August 6, 2002 and was recorded in the August 28, 2002 edition of the
In both those instances we can see that responsibility was transferred by order in council from one Minister of the Crown, specifically named in the act, to another Minister of the Crown, and the registrations of these order in council transfers were officially recorded in the
Thus, the government argues that to transfer responsibility for the Firearms Act and the related firearms centre created by that act from one minister to another is not unprecedented. The government clearly holds the view that it has the legal authority to make such transfers through the Public Service Rearrangement and Transfer of Duties Act.
The matter raised by the hon. member for Yorkton—Melville goes to the validity of an order-in-council transferring a responsibility, which was originally conferred by a statute. It is well known that the government cannot amend legislation by way of regulation for, in the language of the hon. member, it is understood that a subordinate legal instrument cannot be used to amend a superior legal instrument.
The hon. member for Yorkton--Melville argues that the government has used a subordinate act, in this case the PSRTDA, to amend a superior act, the Firearms Act. The Chair would see the hon. member's argument turning not on the relationship between these two acts, but on the difference between superior and subordinate instruments in the hierarchy of legal instruments, that is, between the superior statute and the subordinate order in council. However, this is an argument on a matter of law, not a procedural issue and, as such, it would be for the courts, not for your Speaker, to decide.
As my predecessors and I have pointed out in many previous rulings where legal interpretation is an issue, it is not within the Speaker's authority to rule or decide on points of law.
The point is well put on pages 219 and 220 of House of Commons Practice and Procedure and Practice :
—while speakers must take the Constitution and statutes into account when preparing a ruling, numerous Speakers have explained that it is not up to the Speaker to rule on the “constitutionality” or “legality” of measures before the House.
It is clear that it is not your Speaker who might rule on the legality of the government's decision to transfer responsibility for the Firearms Act from one cabinet minister to another. That is a matter for the courts to decide. I must examine instead the hon. member's argument from a purely procedural perspective. What privilege has been breached by this action?
The hon. member appears to be asserting that the government, by transferring responsibility for the Firearms Act from one minister to another, has shown contempt for the House. After an exhaustive search of our precedents, I am unable to find a case where any Speaker has ruled that a government, in the exercise of a regulatory power conferred upon it by statute, has been found to have breached the privileges of the House. Accordingly, I am unable to find a breach of the privileges of this House or of the hon. member.
I must note, however, that the order in council under the Public Service Rearrangement and Transfer of Duties Act by which the firearms centre was transferred from the justice portfolio to that of Solicitor General is a statutory instrument. As such, Standing Order 108(4)(b) applies and the Standing Joint Committee for the Scrutiny of Regulations is involved. Standing Order 108(4)(b) refers to section 19 of the Statutory Instruments Act, which in turn says that every statutory instrument shall stand referred to the committee.
The order in council the hon. member complains of is therefore inherently part of the review and indeed the scrutiny work of the committee and I invite him to pursue the matter with his usual vigour before that committee.