I am now prepared to rule on the point of order raised on February 17, 2005, by the hon. member for Acadie—Bathurst, concerning a decision of the Chair of the Standing Committee on Human Resources, Skills Development, Social Development and the Status of Persons with Disabilities during clause by clause study of Bill C-23, an act to establish the Department of Human Resources and Skills Development and to amend and repeal certain related Acts.
I would like to thank the hon. member for Acadie--Bathurst for raising this matter, as well as the hon. Parliamentary Secretary to the Leader of the Government in the House of Commons and the hon. members for Montmorency--Charlevoix--Haute-Côte-Nord, New Westminster--Coquitlam, Montmagny--L'Islet--Kamouraska--Rivière-du-Loup, and Mississauga South for their contributions.
Bill C-23 establishes the Department of Human Resources and Skills Development. It defines the powers, duties and functions of the Minister as well as those of the Minister of Labour and of the Canada Employment Insurance Commission.
In his presentation the hon. member for Acadie--Bathurst asked the Speaker to look at the rulings of the committee chair on the subject of the requirement of a royal recommendation, even where there is a previous statutory authority. He submitted that the committee chair and procedural staff had failed to take into account the ruling made by Speaker Parent on February 12, 1998, when they were determining the admissibility of an amendment from the hon. member for Chambly--Borduas presented in the committee on February 10 during clause by clause consideration of Bill C-23. The disputed amendment to Bill C-23 sought to increase the number of commissioners on the Canada Employment Insurance Commission from four to seventeen. The chair ruled that the proposed amendment was inadmissible because it lacked a royal recommendation.
In summarizing the ruling of Speaker Parent, the hon. member for Acadie--Bathurst stated that a royal recommendation was not required for an initiative for which there was already a statutory authority. In the case of Bill C-23, he stated that there was statutory authority for a set number of commissioners and that an additional royal recommendation was therefore not required for the numbers of commissioners to be expanded since there was existing statutory authority for such expenses.
In speaking to the same point of order, the hon. member for Montmorency—Charlevoix—Haute-Côte-Nord noted that a primary mandate of committees is the clause by clause study of bills referred to them by the House. He submitted that if committees can not amend clauses dealing with financial commitments, it is difficult to justify the continued existence of committees. He also stated that there is a need for more complete instructions from the Speaker on matters that entail monetary commitments on the part of the government.
A further representation was made by the hon. member for Mississauga South who felt that there had been incorrect advice given to the chair of the committee by the procedural staff. He stated that the chairs and members of committees rely on procedural staff to provide them with advice, but if that advice is incorrect then there must be a remedy to rectify it.
I should say that I appreciate that the hon. member for Acadie--Bathurst recognized that Speakers have on numerous occasions ruled that committees are and must remain masters of their own affairs. The hon. member is absolutely correct regarding any Speaker's traditional hesitation to comment on committee proceedings. Nonetheless, he asked the Chair to shed some light on this matter and, in this case, the member's complaint has offered me an opportunity to address a number of important points fundamental to our procedure, not only in this particular situation but in the broader context of the proper functioning of the House in this minority Parliament.
First, I want to address the role of members vis-à-vis financial matters, in particular the nature of the royal recommendation; then, I will deal with the 1998 ruling by Speaker Parent.
The initiation of public expenditure is and has always been the prerogative of the Crown. That is to say, neither committees nor private members can initiate the spending of public funds.
The government has responsibility for managing the public purse, which means, in parliamentary terms, that the government has the exclusive initiative for proposing new taxes or for proposing how public funds should be spent. For new taxes, the government must first move a Notice of Ways and Means Motion and have this adopted by the House. Once this happens, the government may bring in a bill legislating the new taxes set out in the ways and means motion.
For new spending, the government must provide a royal recommendation from the Crown's representative, Her Excellency the Governor General, which recommends a bill that includes provisions for spending public funds. This principle is enshrined in section 54 of the Constitution Act, 1867, whose wording is virtually identical to Standing Order 79(1), which reads:
This House shall not adopt or pass any vote, resolution, address or bill for the appropriation of any part of the public revenue, or of any tax or impost, to any purpose that has not been first recommended to the House by a message from the Governor General in the session in which such vote, resolution, address or bill is proposed.
Hon. members will note that the standing order relates to bills for “appropriation”. This is the operative word. There is a second important word in Standing Order 79 and this is “purpose”. It is not in order to vote on a bill for an appropriation to any purpose that has not first been recommended by a message from the Governor General, that is, the royal recommendation.
What this means is that the financial initiative of the Crown includes not simply the spending of public funds but the spending of public funds for a particular purpose. A government bill that proposes public spending requires a royal recommendation for public spending for a stated purpose. Accordingly, it is not open to the House to change the purpose unless, of course, Her Excellency were to provide a royal recommendation in respect of the new purpose.
I will not elaborate further on the origins of the financial relations between the Crown and Parliament but I refer the House to page 848 of Erskine May, 23rd edition, for a useful description thereof. Suffice it to say that those relations are neatly summed up in the phrase, “the government proposes, and parliament disposes.”
Even in our current circumstances, with the government party not having a majority of the seats in the House, it is still the sole prerogative of the Crown--that is, the ministry--and not that of the House of Commons, its committees or its members to initiate financial expenditures.
This sole prerogative of the Crown underlies all of our procedures. The principle holds true in committee in respect of the admissibility of amendments at clause by clause study of government bills and applies equally to amendments at report stage. It also applies to private members' bills at committee and report stage.
Committees studying estimates must also respect this principle: committees may adopt the amounts requested by the government; they may reduce them; or they may negative a request entirely. However, committees can neither increase the amount of money assigned to a particular department or program, nor redirect money from one purpose to another.
I would now like to address the specific case of the requirement for a royal recommendation for the proposed amendment to Bill C-23 to increase the number of commissioners on the Employment Insurance Commission.
On February 10, the Standing Committee on Human Resources, Skills Development, Social Development and the Status of Persons with Disabilities began its examination of Bill C-23. The committee immediately began to look at the amendments proposed by the hon. member for Chambly—Borduas instead of proceeding through clause by clause consideration in the usual fashion.
One of these amendments, an amendment to clause 20, proposed to increase the number of EI commissioners from four to seventeen. It was ruled inadmissible because it infringed on the financial initiative of the Crown. In other words, the member proposing it had not obtained a royal recommendation. The next amendment contained a similar proposal and was also ruled inadmissible. Neither of these rulings was appealed.
On February 15, the hon. member for Acadie—Bathurst attempted to revisit the proposed amendments disposed of previously by the committee, but was unsuccessful in that attempt. The committee then completed its clause-by-clause consideration of the bill and the next day the chair of the committee presented the report on Bill C-23 to the House.
In his argument here in the House, the hon. member for Acadie--Bathurst noticed that the chair of the committee had referred to page 655 of House of Commons Procedure and Practice as the justification for ruling the amendment out of order. The appropriate section reads:
An amendment must not offend the financial initiative of the Crown. An amendment is therefore inadmissible if it imposes a charge on the Public Treasury, or if it extends the objects or purposes or relaxes the conditions and qualifications as expressed in the Royal Recommendation.
In his submission, the hon. member for Acadie—Bathurst made reference to the February 12, 1998 ruling of Speaker Parent and claimed that the committee staff had failed to take this ruling into account when advising on the admissibility of the amendment to increase the number of commissioners. I have therefore reviewed the 1998 ruling with great care and would like to summarize it for the House.
On February 4, 1998, the member for Cypress Hills--Grasslands, Mr. Morrison, rose on a point of order concerning Bill S-4, an act to amend the Canada Shipping Act (maritime liability). The member was concerned, first, with the introduction of public bills in the Senate and, second, with the fact that the bill represented a breach of the constitutional principle that money bills must be introduced in the House of Commons.
The member argued that the bill violated Standing Order 80 because it substantially increased the limits of liability upon the government, thereby infringing on the financial privileges of the House of Commons. He concluded by requesting that the bill be removed from the order paper. After the intervention of other members on the question, the Speaker reserved his decision.
On February 12, 1998, the Speaker gave his ruling on the point of order. I refer hon. members to the Debates for that day at pages 3765 and 3766, where, noting that there were few decisions in the area of liabilities and how these relate to the financial privileges of the House, the Speaker said:
My understanding of the procedural implications of Bill S-4 is the following. The increased limits of liability are set out in the proposed amendments to the Canada Shipping Act but the actual compensation available to claimants is subject to the Crown Liability and Proceedings Act....
He went on to quote from Erskine May, 21st edition, at page 717, which states:
Where sufficient statutory authority already exists for payments to which bills relate, no further resolution and recommendation is required.
In other words, the Speaker concluded that the bill did not require a royal recommendation and was in order because statutory authority for the payments already existed. The amendment merely altered the maximum amounts of individual claims.
The hon. member for Acadie--Bathurst quotes this same citation from May and argues that the case before us is analogous to that one. But is this a parallel situation or does the amendment proposed to Bill C-23 to increase the number of EI commissioners go beyond existing financial provisions?
The hon. member for Acadie—Bathurst argued that the bill gave statutory authority for commissioners so an additional royal recommendation was not required for the number of commissioners to be changed. That argument would hold true if the hon. member sought to reduce the number of commissioners, but increasing the number increases the charge on the public purse.
As it stands, the bill, and the royal recommendation that accompanies the bill, provides statutory authority for four commissioners. Since the hon. member wants to increase that number to 17 and since there exists no other legislative provision against which the costs of these additional commissioners could be charged, the Chair must conclude that the amendment is not in order: that it does indeed infringe upon the financial authority of the Crown.
There have been numerous occasions in committee where amendments to increase the size of boards or commissions have been ruled out of order. In the House there have not been as many, but the principle still stands. There are two rulings which I wish to draw to the attention of hon. members on this matter.
The first is from April 7, 1982, at page 9052 of the Debates , when Deputy Speaker Francis made a ruling during report stage of Bill C-42, the Canada Post Corporation Act. Before proceeding to propose Motion No. 2 in the name of the minister to increase the size of the board of directors, the Deputy Speaker rose to point out a procedural difficulty. The bill, as reported by the committee, had been amended to increase the board of directors from seven to nine members.
Deputy Speaker Francis stated:
It is obvious that one of our most basic and fundamental procedures is that only a minister of the Crown may originate legislation which proposes a charge upon the revenue and this can only be done when accompanied by a recommendation from the Governor General. Indeed, amendments made in the committee cannot go beyond the terms of the original recommendation. The amendment which was adopted by the committee offends the financial initiative of the Crown and, therefore, I must rule it unacceptable.
Motion No. 2 standing in the name of the Postmaster General to all intents and purposes has the same effect as the amendment I have just ruled unacceptable and this motion is accompanied by the appropriate Royal recommendation.
The second relevant precedent is a ruling given by Mr. Speaker Fraser on June 12, 1989, at page 2912 of the Debates , on the report stage motions for Bill C-2, the Canadian Transportation Accident Investigation and Safety Board. Two proposed amendments sought to increase the number of board members and had been ruled out of order in committee. Mr. Speaker Fraser endorsed the decision of the chair of the committee, finding that the amendments infringed the royal recommendation and ruling both motions out of order.
Interestingly, the issue of the Employment Insurance Commission and its composition has already arisen in the House in the current session. On February 8, 2005, the Acting Speaker ruled on the requirement for a royal recommendation for Bill C-280, an act to amend the Employment Insurance Act (Employment Insurance Account and premium rate setting) and another act, a private member's bill standing in the name of the hon. member for Manicouagan.
In his ruling, which is found on page 3253 of the Debates , the Acting Speaker noted that, among other provisions, the bill mandated the appointment of 13 new commissioners to the Canada Employment Insurance Commission. He pointed out that the parent act of the bill in respect of this amending provision, the Department of Human Resources Development Act, provides that the commissioners receive remuneration for their services.
He pointed out that since section 54 of the Constitution Act, 1867, as well as Standing Order 79, prohibit votes on bills appropriating public revenues without a royal recommendation, the same must apply to bills authorizing increased spending of public revenues.
The Acting Speaker noted:
Where it is clear that the legislative objective of a bill cannot be accomplished without the dedication of public funds to that objective, the bill must be seen as the equivalent of a bill effecting an appropriation.
He therefore stated that the Chair will decline to put the question on third reading of Bill C-280 in its present form unless a royal recommendation is received.
Thus, based on our practice, I must agree with the decision of the chair of the Standing Committee on Human Resources, Skills Development, Social Development and the Status of Persons with Disabilities when she ruled the amendments to Bill C-23 out of order. She said:
It is being asked that there be 17 commissioners, and the government would have to spend more to compensate those commissioners. Royal recommendation does not permit this in view of what is contained in the bill. So,—the amendment—is ruled inadmissible.
From my review of events, I have concluded that the advice given to the chair of the standing committee by procedural staff was absolutely correct and well founded on practice and precedent and that this advice was reflected in the reasons the chair gave for her ruling on the matter.
Finally, I would like to address two other points. The hon. members for Acadie—Bathurst and Mississauga South both suggested that errors had been made in the advice given by the Table and by procedural staff assigned to assist the committee. Then, the hon. member for Montmorency—Charlevoix—Haute-Côte-Nord stated that there is a need for more complete instructions from the Speaker on matters that entail monetary commitments on the part of the government which are not amendable by the committees.
The role of procedural staff is central to our work in the chamber and in committee for they are always available to assist members in understanding the body of parliamentary rules and practices that the House has adopted to govern its proceedings. This is especially true at times when members may not have had the time to study a matter closely and seek advice on tackling an issue or understanding a ruling.
A member may disagree with the advice he receives or the interpretation of the rules she is given without jumping to the conclusion that members are being misled or poorly served by procedural staff. When in doubt, members are not without recourse. In unusual circumstances when disagreements persist, members are always free to seek the advice of the chair in a committee, to discuss a matter with the Clerk or the Table, or even in certain instances, to raise a point of order in the House for the Speaker's decision.
In closing, let me offer another word of caution. Like me, most hon. members will have had direct experience in majority Parliaments so the current minority situation—although the frequent subject of discussion and speculation—is less well understood.
All hon. members should bear in mind that, while the dynamics of a minority House might be quite different from the dynamics in a majority situation, the constitutional basis of our parliamentary system has not changed and the prerogatives of the Crown remain intact.
Once again, I wish to thank the hon. member for Acadie—Bathurst for raising this matter and giving me the opportunity to clarify our practice. I hope that members will find the information and explanations I have provided useful as they continue to carry out their work both in the Chamber and in committees.