I am now ready to rule on the point of order raised on March 23 by the parliamentary secretary to the government House leader concerning amendments adopted at committee to Bill C-8, an act respecting cybersecurity, amending the Telecommunications Act and making consequential amendments to other acts.
In his intervention, the parliamentary secretary to the government House leader contended that, during clause-by-clause consideration of the bill, three amendments, CPC-2, CPC-5 and CPC-15, were adopted by the committee after having been ruled inadmissible by the chair. He argued that the three amendments were inadmissible on the grounds that they exceeded the scope of the bill as adopted by the House at second reading, and requested that the Speaker review the amendments and, if found to be out of order, that they be struck from the bill.
The member for Fort McMurray—Cold Lake, in her intervention on the matter, suggested that the Speaker should reject the arguments of the parliamentary secretary on the basis that no reasoning was offered to support that the amendments were inadmissible. She then stated that the amendments in question should not be viewed as beyond the scope of the bill because they seek to impose conditions on executive decision-making by requiring prior judicial authorization for certain orders. Citing several precedents, she contended that this type of limitation to the authority of ministers has been found to be acceptable and within the scope of bills in the past.
The member for Saanich—Gulf Islands also intervened briefly on the matter, questioning the validity of the point of order, suggesting that determinations about amendments are ordinarily made by the committee chair and are not subject to review by the House.
While the Speaker generally refrains from intervening in matters that fall within a committee's authority, once a bill is reported back to the House, members may challenge the procedural admissibility of amendments adopted in committee. As is explained in House of Commons Procedure and Practice, fourth edition, section 16.96:
Since a committee may appeal the decision of its Chair and reverse that decision, it may happen that a committee will report a bill with amendments that were initially ruled out of order by its Chair. The admissibility of those amendments, and of any other amendments made by a committee, may therefore be challenged on procedural grounds when the House resumes its consideration of the bill at report stage. The admissibility of the amendments is then determined by the Speaker of the House, whether in response to a point of order or on the Speaker's own initiative.
When specific amendments are brought to its attention, the Chair considers whether the committee acted beyond its authority in adopting the amendments and assesses amendments against the established rules governing their admissibility.
The member for Fort McMurray—Cold Lake is quite right in pointing out the importance of providing sufficient context when raising a point of order concerning amendments in a committee report. While the Chair is obliged to review the matter once it is raised, explanations as to why the amendments fall outside the scope of the bill assist the Chair in conducting a thorough and accurate review.
In the present case, the amendments in question were initially found by the committee chair to be inadmissible on the grounds that they exceeded the scope of the bill. As explained in section 16.74 of House of Commons Procedure and Practice, fourth edition:
An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.
The Chair has therefore carefully reviewed Bill C-8 as adopted by the House at second reading and the amendments in question to ascertain how they relate to the bill's principle and scope. The principle or main legislative objectives of the bill include strengthening Canada's national cybersecurity and providing new legal authorities to protect critical cyber systems and secure the telecommunications sector. The amendments in question relate to part 1 of the bill, which amends the Telecommunications Act.
Whereas the bill as introduced would give the minister or Governor in Council new authority to make orders to accomplish the bill's legislative objectives, CPC-2 modifies the bill by requiring the Governor in Council or the minister to first obtain authorization from a Federal Court judge before issuing orders under sections 15.1 and 15.2 of the act. The amendment would also allow the judge to attach any conditions to the order that they consider appropriate.
The bill as introduced also provides that an order made under section 15.1 by the Governor in Council may include a provision prohibiting the disclosure of its existence or of its contents. CPC-5 amends the bill to require that the Governor in Council make an application to the Federal Court should the Governor in Council wish to prohibit the disclosure of the content of an order made under section 15.1. Where the bill would allow the Governor in Council to determine the necessity of such a prohibition, the amendment transfers the actual ability to prohibit to the Federal Court, instead of it being part of the order made by the Governor in Council.
CPC-15 effects the same transfer of authority to a Federal Court judge, but in cases where the minister is seeking to include non-disclosure provisions to orders made under section 15.2.
In the Chair's view, these amendments relate to the overall objective, broadly stated, of strengthening Canada's national cybersecurity systems. The question, therefore, is whether they exceed the scope of the bill.
While the concept of judicial oversight appears in the bill, its purpose is to review decisions already taken by the Governor in Council. The three amendments instead transfer the authority to make certain orders, or to prohibit the disclosure of the content of certain orders, from the executive branch to the Federal Court. In doing so, they confer new powers on the judicial branch that were not contemplated in the bill as adopted at second reading.
The Chair finds there to be important distinctions between this case and the precedents raised by the member for Fort McMurray—Cold Lake. In the case cited from 2006, the amendment in question did not affect the Minister's power to act; rather it introduced a power to appeal after the fact. In the more recent example relating to Bill C‑483, the amendments to the bill maintained the role for the National Parole Board already conceived of in the legislation, but in a more limited form than was originally proposed. Both of these cases can accurately be viewed as a constraint on decision-making authority already found in each bill. In the current case, the Chair views the amendments as going beyond the imposition of a condition on the exercise of authority by the minister or Governor in Council, transforming what were ministerial powers into judicial powers instead.
Consequently, the amendments proposed appear to the Chair to contain new concepts that are beyond the scope of the bill and lead the Chair to conclude that the amendments were correctly ruled inadmissible by the chair of the committee.
Therefore, I order that the aforementioned amendments, CPC-2, CPC-5 and CPC-15, be declared null and void and no longer form part of the bill as reported to the House. Furthermore, I am ordering a reprint of Bill C-8 with the removal of the inadmissible amendments. This reprinted version will stand as the official version of the bill for consideration at report stage.
I thank all members for their attention.