Mr. Speaker, I rise today on a point of order regarding Bill S-229, an act respecting underground infrastructure safety.
I would like to thank Senator Mitchell for sponsoring this bill from the other place. This bill is a worthwhile act that promotes the safety of Canadians as well as important underground infrastructure. It is my hope that the Chair will seriously consider the merits of the following points of procedure as they pertain to Bill S-229.
Specifically, my point of order is in regard to the Chair's ruling of May 9, 2017, alerting the House to Bill S-229, which at first glance appears to infringe on the financial prerogative of the crown. The Chair stated that if, following an anticipated first reading of Bill S-229, the Chair determined that the bill was contrary to our usual rules and practices regarding money bills, the Chair would be obligated to disallow it being further considered in this House.
The parliamentary secretary to the leader of the government in the House of Commons also made representations and formally raised a point of order on this matter on May 12, 2107.
The rights and privileges of each House of Parliament respecting money bills are provided for in the Constitution. Sections 53 and 54 of the Constitution Act of 1867 state:
53. Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons.
54. It shall not be lawful for the House of Commons to 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 that House by Message of the Governor General in the Session in which such Vote, Resolution, Address, or Bill is proposed.
The Standing Orders of the House of Commons reflect in part those provisions. I refer to Standing Orders 79 and 80. Standing Order 79(1) states:
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.
Standing Order 80(1) states:
All aids and supplies granted to the Sovereign by the Parliament of Canada are the sole gift of the House of Commons, and all bills for granting such aids and supplies ought to begin with the House, as it is the undoubted right of the House to direct, limit, and appoint in all such bills, the ends, purposes, considerations, conditions, limitations and qualifications of such grants, which are not alterable by the Senate.
Bill S-229 includes a special coming into force provision that states in clause 33:
(1) Subject to subsection (2), the provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
(2) No order may be made under subsection (1) unless the appropriation of moneys for the purposes of this Act has been recommended by the Governor General and such moneys have been appropriated by Parliament.
I would like to raise a preliminary point respecting the role and the authority of the Speaker of this House. It is a well-established principle of parliamentary law and procedure that our Speaker does not rule on questions of law but rather rules on questions of procedure.
The Speaker indicated in a statement to the House on May 9, 2017, that should he determine that Bill S-229 was:
....contrary to our usual rules and practices regarding money bills, I would be obligated to disallow them to be further considered in the House. Specifically, it would be incumbent on me to order them removed from the Order Paper and any consideration of them ended.
With respect, there is no Standing Order that would allow the Chair to remove Bill S-229 from the Order Paper unless the Chair acted under the sole authority of section 54 of the Constitution Act, 1867, which, in my opinion, would be contrary to the principle stated above that the Chair does not rule on questions of law.
The current situation is different from those you alluded to in your statement. I refer to rulings from your predecessors, Speaker Parent, respecting Bill S-13, on December 2, 1998, and Speaker Milliken, respecting Bill S-15, on June 12, 2001.
In those cases, while the Chair referred to the relevant constitutional provisions, the rulings were based on the requirement for taxation bills to be preceded by a ways and means motion, which is a requirement under our Standing Orders. As no such motion had been adopted, these Senate bills were ruled out of order. However, Bill S-229 is not a taxation bill.
I respectfully submit that should you decide that Bill S-229 is not a money bill, without a procedural rule to that effect, it belongs to this House, and not the Chair, to decide whether it will insist on its rights and privileges as provided for in sections 53 and 54 of the Constitution Act, 1867.
I recognize, however, that Standing Order 79(1) requires that you do not put the question at third reading if you decide that Bill S-229 is a money bill. Letting Bill S-229 go through the legislative process in this House would also allow for the consideration of the provisions of this bill and would provide an opportunity to amend or remove any provisions that may appear contrary to the financial initiative of the House and the crown.
The Parliamentary Secretary to the Leader of the Government in the House of Commons, in his remarks of May 12, referred to page 769 of the second edition of House of Commons Procedure and Practice, which states:
An amendment intended to alter the coming into force clause of a bill, making it conditional, is out of order
With due respect to my colleague, this is not such a case. Bill S-229 already contains a coming into force clause that is conditional. This House is not seized with an amendment that would render an already existing coming into force clause conditional.
The Parliamentary Secretary to the Leader of the Government in the House of Commons also referred to a ruling rendered by the Chair on November 9, 1978, to assert that the use of a provision in the bill to elude the requirement for a royal recommendation had been ruled unacceptable. In that case, a bill, Bill C-204, contained a provision that read, “nothing in the present Act shall be interpreted as requiring” an appropriation of any part of the public revenue.
The Chair, however, did not rule this practice to be unacceptable but instead stated that such a clause “will not be given any consideration in determining whether or not there is any infringement of the financial initiative of the Crown.”
I would note that the Chair, in this particular case, allowed the consideration of Bill C-204 to be continued.
Standing Order 79(1) states:
This House shall not adopt or pass any...bill for the appropriation of any part of the public revenue...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...bill is proposed.
The effect of the coming into force clause included in Bill S-229 would be that this bill would not appropriate any part of the public revenue. Another legislative enactment would be necessary to appropriate the required funds.
There have been two rulings rendered by the Speaker of the Senate respecting the effect of the coming into force clause included in Bill S-229, one respecting Bill S-234, on May 27, 2008, and another respecting Bill S-230, on May 5, 2009. I refer you to page 1087 of the Journals of the Senate of May 27, 2008, where Speaker Kinsella stated:
What Bill S-234 would actually do is set up a legal framework for subsequent action. Nothing can begin to happen to make this framework effective without a subsequent Royal Recommendation and appropriation by Parliament.
The Bill, itself, does not actually authorize the appropriation of any funds. While the passage of the Bill would express a will on the part of Parliament to establish an aboriginal peoples' assembly and an executive council, the Crown would not actually be obliged to give the necessary Recommendation, so its initiative would not be impaired. If the Governor General did recommend the necessary funds, and Parliament appropriated them, that would have the known effect of allowing the Bill to be brought into force, with the resulting consequences.
Bill S-234 thus appears to respect fully the financial initiative of the Crown, since no funds are being or must be appropriated.
Our own procedural authorities are to the same effect and were relied upon by the Speaker of the other place in his ruling.
Citation 611 of Beauchesne's, Sixth Edition states:
A bill from the Senate, certain clauses of which would necessitate some public expenditure, is in order if it is provided by a clause of the said bill that no such expenditure shall be made unless previously sanctioned by Parliament.
Beauchesne also referred to a ruling rendered on April 5, 1870, by Speaker Cockburn, which is highly relevant to the present case. The last clause in the first section of the bill provides:
That nothing in this Act shall give the authority to the Minister to cause expenditure until previously sanctioned by Parliament.
This overrides the eighth section referred to by the hon. member. No contract could therefore be entered into under that section, which could bind government and necessitate an expenditure of public money unless it had previously been sanctioned by Parliament.
With respect to Bill S-229, the proposal is not even a money bill, as it merely contemplates the minister entering into an agreement but does not directly involve any expenditure.
In his remarks, the Parliamentary Secretary to the Leader of the Government in the House of Commons stated:
Clause 17 of Bill S-229, an act respecting underground infrastructure safety, authorizes the minister to enter into agreements, including funding agreements, that the minister considers necessary for carrying out the purposes of the act. Subclause 17(2) provides greater detail around the operation of such funding agreements between the federal government and the provincial governments. These specific purposes are not authorized by any statute or appropriation.
Citation 613 of Beauchesne's, Sixth Edition reads:
A bill, which does not involve a direct expenditure but merely confers upon the government a power for the exercise of which public money will have to be voted [on] by Parliament, is not a money bill, and no Royal Recommendation is necessary as a condition precedent to its introduction.
In support of this, I refer to the ruling of Speaker Sproule, rendered on January 16, 1912, respecting the Inquiries Act, authorizing the Governor in Council to establish commissions of inquiries by orders in council. Neither the 1912 Inquiries Act, which was a consolidation of two statutes, nor its 1868 or 1880 predecessors, had received a royal recommendation. I note that the 1868 act had also been introduced in the Senate.
Bill S-229 is no different from those precedents.
In many cases, a separate appropriation bill, based on the main or supplementary estimates, is necessary, otherwise the new organization cannot undertake its activities.
I refer, for example, to the Law Commission of Canada. While the Law Commission of Canada Act was passed by Parliament in 1996, the activities of the commission were always dependent on appropriations voted every year by Parliament. In 2006, when the government did not seek appropriations from Parliament and appropriations were, accordingly, not granted for the operations of the commission, the commission had to cease its activities, and all the while the Law Commission of Canada Act remained, and in fact still remains, in the law books.
For these reasons, I respectfully submit that Bill S-229 is admissible and should not be ruled out of order.