—nor the Senate, and it certainly has not come into force.
Speaker Milliken made a ruling on a similar case raised by the opposition under the Liberal minority government of 2005. I will highlight some of the similarities and differences now as regards his ruling and the present situation.
In 2005, the House defeated a pair of bills that would enshrine the separation of one department into two. The opposition defeated those bills, and yet the Liberals plowed ahead with the change, citing their legal ability to do so under an order in council enacted under the Public Service Rearrangement and Transfer of Duties Act.
In his ruling on this matter, Speaker Milliken stated:
In the opinion of the Chair, the authority to begin the process of separating the departments rests on the series of orders in council adopted December 12, 2003 pursuant to existing statutory authorities granted to the government by Parliament. That authority is set out in the law and it is not for me to judge whether it is sufficient in this case.
In today's example, no order in council exists for the infrastructure bank of Canada to be established, at least according to a thorough search conducted of the government's order in council database.
In his ruling, Mr. Speaker Milliken also cited the authoritative text Organizing to Govern, Volume 1, by the Hon. Gordon Osbaldeston, former clerk of the Privy Council.
He explains, as follows, on page 24:
For a variety of reasons—ministerial preference, better organization fit, or other reasons...governments may decide to rearrange their organizations. The chief legislative tool for accomplishing this type of organizational change is the Public Service Rearrangement and Transfer of Duties Act. Orders in council pursuant to this act are used principally for two purposes....
On page 25, he goes on to say:
Strictly speaking, these tools are meant only to reorganize existing functions of government for which Parliament has voted funds—any new activities must be authorized by Parliament.
That is what Speaker Milliken cited. These tools are meant only to reorganize existing functions of government for which Parliament has voted funds. All new activities must be authorized by Parliament. Therefore, a reorganization, like the proposed creation of the Canada infrastructure bank, must follow a vote in Parliament to appropriate the funds necessary, and its activities are authorized by Parliament only after Parliament has voted on a bill to authorize these new activities.
It seems clear to me that the bill that creates the bank and its governance structure, which has passed only two of five stages in this House and has not even been studied in the other place, is the authorization by Parliament that is necessary before action can be taken to implement it. The fact that these actions are being taken before the bill receives royal assent is a contempt of the House and the work we do in reviewing, amending, and voting.
Mr. Speaker, you will know very well that House of Commons Procedure and Practice, on page 84, states:
Contempts may vary greatly in their gravity; matters ranging from minor breaches of decorum to grave attacks against the authority of Parliament may be considered as contempts.
I submit to you, Mr. Speaker, that taking for granted that the House and Senate will merely rubber stamp a 300-page-plus omnibus bill that creates this bank would land on the much more severe end of that spectrum, constituting a “grave attack” against the authority of Parliament. More to the point, it may very well be illegal.
As you are also aware, Mr. Speaker, contempt of this sort remains a question of privilege, and for the benefit of parliamentary procedure keeners at home or in the gallery, I will cite the same procedural tome, at page 82, where it states:
Thus, the House also claims the right to punish, as a contempt, any action which, though not a breach of a specific privilege, tends to obstruct or impede the House in the performance of its functions; obstructs or impedes any Member or officer of the House in the discharge of their duties; or is an offence against the authority or dignity of the House....
In my view, there is no question that the government's action with regard to the Canada infrastructure bank constitutes exactly that kind of offence against this House's authority.
I am aware of the fact that the Interpretation Act authorizes certain things to be done and regulations made pursuant to an act that is not yet in force. According to the Library of Parliament, in publication PRB0903, of May 15, 2009, normally the relevant provision of the Interpretation Act is limited to authorizing matters effective on an act's commencement. It states:
...these preliminary powers can be exercised only pursuant to an Act, and they cannot be exercised in relation to powers that could be granted by a bill that is still before Parliament.
The appointment of the first and current Conflict of Interest and Ethics Commissioner is an example cited, which I will not take the time with today, but is an illustration of the difference.
I will not take up any more time of the House except to say, in conclusion, that the kind of arrogance and presumption the government is demonstrating with its behaviour here should be a concern to all members of the House, and indeed, all Canadians. Mr. Speaker, I look forward to your review of the matter and ruling on this case.