Mr. Speaker, the proposed motion of instruction by the hon. member for Burnaby—New Westminster is actually out of order, I would submit, because it should be accompanied by a recommendation from His Excellency the Governor General.
Standing Order 79(1) instructs:
This House will 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.
I will put to you, Mr. Speaker, that is exactly what this proposed motion seeks to do in its instruction.
The purpose of Standing Order 79(1) is to incorporate into our Standing Orders and thus put within the jurisdiction of the chair the requirements of section 54 of the Constitution Act, 1867, which was known as the British North America Act back when I was growing up, and section 54 reads very similarly to Standing Order 79(1):
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.
This requirement extends to motions of instruction in respect to bills. It is quite clear, as it says there, that it is not limited to simply bills. It says “any Vote, Resolution, Address, or Bill for the Appropriation of any Part of the Public Revenue”.
Page 754 of House of Commons Procedure and Practice, second edition, is actually quite authoritative and quite definitive on this. It refers to a motion of instruction, which is what we are dealing with here:
A motion of instruction will also be ruled out of order...if it extends the financial prerogatives of the Crown without a royal recommendation for that purpose.
At this point it is already quite definitive that it is the case in fact that the member cannot move that absent a royal recommendation, and there is, of course, no royal recommendation forthcoming for the purposes he is asking the committee to amend the bill on instruction from the House.
Following this citation offered for that authority, one can trace this proposition back to a ruling of Mr. Speaker Fitzroy of the United Kingdom House of Commons given on February 4, 1930, and recorded at column 1721 of the Official Report.
Coming back to Canada, let me quote citation 596 of Beauchesne's Parliamentary Rules and Forms, 6th edition, with respect to how legislative amendments intersect with the requirement for a royal recommendation:
The guiding principle in determining the effect of an amendment upon the financial initiative of the Crown is that the communication, to which the Royal Recommendation is attached, must be treated as laying down once for all (unless withdrawn and replaced) not only the amount of the charge, but also its objects, purposes, conditions and qualifications. In relation to the standard thereby fixed, an amendment infringes the financial initiative of the Crown not only if it increases the amount but also if it extends the objects and purposes, or relaxes the conditions and qualifications expressed in the communication by which the crown has demanded or recommended a charge.
In this particular motion for instruction, both elements of it would contemplate an additional charge. Setting up an additional oversight agency would obviously create additional expenses for the government, an additional charge on the public purse. Similarly, new programs of the type that are contemplated, above and beyond those which already exist for counter-radicalization, would also involve new charges, so in that sense, both aspects of the motion of instruction would require a royal recommendation. The committee would not be in a position to be able to amend it to create these powers without a royal recommendation. There is no such recommendation, and I think it is quite clear that none will be forthcoming.
I would submit that as a result, it is quite clear that both elements proposed are beyond the objects and purposes contemplated by the Governor General in His Excellency's recommendation as it exists on Bill C-51. There is a royal recommendation there, but not for these additional powers that the motion for instruction seeks to establish.
A former principal clerk of the House, Michael Lukyniuk, wrote the article “Spending Proposals: When is a Royal Recommendation Needed?” which appeared in the Spring 2010 edition of Canadian Parliamentary Review. This passage from page 30 speaks to the situation we face with the motion of the NDP House leader:
To apply a consistent and objective approach to each case, the Speaker is guided by two basic principles: that the terms and conditions of the royal recommendation cannot be expanded upon, and that a new and distinct request for expenditure must be accompanied by a royal recommendation.
It continues:
Terms and conditions: The royal recommendation states that an appropriation of public funds must be made “under the circumstances, in the manner and for the purposes set out” in the bill to which it is attached. The terms and conditions of the royal recommendation are a specific expression of the financial initiative of the Crown and amendments may not propose measures which go beyond these qualifications.
That is what I see is happening here. The article continues:
New and distinct requests for expenditure: This refers to measures which propose spending and are not supported by any existing statute. When considering a bill or amendment, the Speaker reflects on whether some entirely new activity or function is being proposed that radically diverges from those already authorized. The simplest examples are bills which propose the establishment of new offices, agencies or departments. Speakers have consistently ruled that such measures require a royal recommendation.
In this case, the committee is being asked to go in the direction of establishing an entirely new agency of oversight. That would require a royal recommendation. The member comes to the House with the motion absent such a royal recommendation.
Later in the article, Mr. Lukyniuk writes at pages 32 and 33:
When a legislative proposal envisages a new role or function for an existing organization or program, a royal recommendation is required because the terms and conditions of the original royal recommendation which created that organization or program are being altered.
It continues:
In the first situation, the terms and conditions that established an organization or program are being altered so that a new and distinct authorization for spending is being permanently created. This initiative must be accompanied by a royal recommendation.
Paragraph (a) of the NDP House leader's motion speaks to amendments which would “ensure that the government works with Canadian communities to counter radicalization”. Though ill defined as to who and how, it certainly speaks to a new and distinct element to be added to the statute book through Bill C-51. In any event, my hon. friend the Minister of Public Safety and Emergency Preparedness and his officials within the public safety portfolio, one which I also had the privilege of leading at one time, have been working and continue to work hard on developing and seeing through strategies to prevent Canadians from being radicalized by violent ideologies.
Meanwhile, paragraph (b) contemplates amendments which “enhance oversight of Canadian security and intelligence agencies”. Again, this sounds like a new purpose for Bill C-51, either as a new or enlarged purpose for either an existing or new government entity, which was not contemplated in His Excellency's recommendation. Of course, as the House well knows by now, the key new powers in the anti-terrorism act, 2015, are subject to judicial review and to prior judicial authorization. In other words, this will be the role of judges and our courts, and there is no better authority to review these matters.
Legislative provisions similar to what is proposed in paragraph (b) of the motion have previously been seen as turning on the financial initiative of the crown. For example, earlier this session, the hon. member for Vancouver Quadra proposed Bill C-622, an act to amend the National Defence Act (transparency and accountability), to enact the intelligence and security committee of Parliament act and to make consequential amendments to other acts, which is almost identical to what is being sought here. Certainly, if we are to discern or divine from the repeated public statements of the opposition, that is exactly what it is seeking to do in this case.
On October 8, 2014, the Assistant Deputy Chair of Committees of the Whole made the following statement at page 8414 of the Debates:
As members know, after the order of precedence is replenished, the Chair reviews the new items so as to alert the House to bills that at first glance appear to impinge on the financial prerogative of the crown.
He continues:
Accordingly, following the September 23, 2014, replenishment of the order of precedence with 15 new items, I wish to inform the House that there is a bill that gives the Chair some concern as to the spending provisions it contemplates.
It is Bill C-622...standing in the name of the member for Vancouver Quadra.
I would add that neither that hon. member, nor any other member, rose in the House on a point of order to make submissions rebutting the presumption established by the Chair at that time. Therefore, here we have a clear case in this Parliament in which the ruling has come from the Chair in which you sit, Mr. Speaker, that an effort to achieve something, like this motion seeks to achieve by way of a private member's bill, could not proceed without a royal recommendation. The same would apply to this motion for instruction.
Similar legislation was introduced by the previous Liberal government, when Bill C-81, the national security committee of parliamentarians act, was introduced in 2005. I will note that when the Liberals sought to establish a parliamentary committee with oversight, they never carried through with it, but it was proposed. It was not a bill they saw worthy of finally passing, but it was proposed.
However, they did, with that bill, have a royal recommendation. There was a recognition, certainly by the Liberal government of the day, to take the step that this motion for instruction seeks to take. Even if it is to be a committee of parliamentarians, that step would be a new initiative that would require a royal recommendation, again, one that is absent in this motion. Clearly, the Liberals think that this sort of step is properly accompanied by a royal recommendation.
The financial initiative of the Crown in its constitutional standing, which I cited at the opening of my argument, has even been considered by our highest court. For example, in the unanimous 1991 judgement of the Supreme Court of Canada in Reference Re Canada Assistance Plan, Mr. Justice Sopinka wrote:
Under s. 54 of the Constitution Act, 1867, a money bill, including an amendment to a money bill like the Plan, can only be introduced on the initiative of the government.
The renowned constitutional expert, Peter Hogg, is unequivocal that the NDP leader cannot sidestep the Constitution with this cynical motion. On page 314 of the Constitutional Law of Canada, fourth edition, Professor Hogg writes:
There is of course no doubt as to the binding character of the rules in the Constitution that define the composition of the legislative bodies and the steps required in the legislative process.
In closing, what the NDP leader is attempting to propose here is not just out of order, it is in fact unconstitutional. Though we normally say that constitutional questions are beyond the purview of the Chair, this is an important exception. Indeed, it falls to you, Mr. Speaker, to find that this motion is out of order.
Page 837 of House of Commons Procedure and Practice, O'Brien and Bosc, addresses the Speaker's role on this type of unique matter of constitutional legitimacy:
The Speaker has the duty and responsibility to ensure that the Standing Orders pertaining to the royal recommendation, as well as the constitutional requirements, are upheld. There is no provision under the rules of financial procedure that would permit the Speaker to leave it up to the House to decide or to allow the House to do so by unanimous consent. These imponderables apply regardless of the composition of the House.
Therefore, Mr. Speaker, the authorities are quite clear that the motion before you is out of order and cannot be put to the House.
I understand that we are at a point where your decision on this is fairly significant and important because of timing, because the committee is already at the point of contemplating amendments in moving forward on that. As such, although this motion was put on the order paper some time ago, by delaying moving it, you are a little bit wedged, if I can put it that way, by the timing selected by the opposition House leader.
Therefore, I submit to you, Mr. Speaker, that under the circumstances, if you do feel it necessary to suspend proceedings for a brief period of time in order to contemplate this issue in order to render your decision before allowing debate on this motion to proceed, we would understand and recognize that you have been put in a very difficult spot in terms of timing and that such a step may be necessary.
