Mr. Speaker, before I proceed further with the argument perhaps I will address that one short issue. I would refer you to pages 711-2 of Marleau and Montpetit where it states:
If a royal recommendation were not produced by the time the House was ready to decide on the motion for third reading of the bill, the Speaker would have to stop the proceedings and rule the bill out of order.
At this point in time, we have not reached that stage. Therefore, I would argue that this is in order; however, I will continue with the argument as you, Mr. Speaker, instructed.
The main point I would like to make with the bill is that as it purports to create standards or targets that the government must then try to meet through whatever means it has, then this is, in effect, an attempt to do indirectly what the House cannot do directly, and that is, force the government to spend money as the measures in the bill are trying to achieve and cannot be implemented without the expenditure of funds. As a result, this matter goes to the heart of the principles of responsible government and the financial initiative of the Crown.
Let me turn to some specific aspects of the bill that underscore these points.
First, on this general rubric of attempting to do indirectly what cannot be done directly and the general obligations, subclause 7.(1) of the bill states that:
--the Governor in Council shall ensure that Canada fully meets its obligations under Article 3, paragraph 1, of the Kyoto Protocol--
This would create an obligation to implement Article 3 of the Kyoto protocol which would require us to reduce our emissions to 6% below 1990 levels by 2012. Our emissions are currently 34.6% above this target.
The government's view is that if Bill C-288 were to create a legal obligation for Canada to meet the emission targets set out in the Kyoto protocol, as the sponsor of the bill has publicly stated, the bill would effectively require the expenditure of funds. Common sense dictates that the expenditure of funds would be necessary to achieve the Kyoto targets without devastating the Canadian economy.
Members of the official opposition have stated as much before the legislative committee studying Bill C-30. In addition, the leader of the official opposition has stated that major spending measures were being contemplated in the last Parliament, although specific legislative measures to fully meet the Kyoto targets were never brought before Parliament for consideration.
We therefore have with Bill C-288 an unprecedented attempt to legislate indirectly what the previous government did not legislate directly, and on a matter which the official opposition itself recognizes would involve spending in the many billions of dollars.
By creating a legislative target, if that is what Bill C-288 seeks to do, it puts the government in the untenable position to spend resources if it is to try to meet what has been set in legislation. It is not the Crown that is initiating all public expenditure. It suffices that targets be set in legislation for the government to have to come to Parliament to appropriate the funds needed.
With the greatest of respect to the Chair, it is not sufficient to say that the government can come forward at a later point in time with its specific measures to comply with Bill C-288 with that royal recommendation attached at a later time, which is what I take to understand as one of the Speaker's previous rulings.
The House would in effect be compelling a royal recommendation as there would be no alternative left to it. The only question is, what exact form of that royal recommendation would it be, not the requirement for that royal recommendation.
In effect, the House would have indirectly required expenditure of funds, which it cannot directly require through the provision of a private member's bill. I think that is a very significant bridge that we would be crossing here and it would have profound consequences for the operation of Parliament for generations to come and would be inconsistent with the history of how these matters have been dealt with in Parliament.
Clause 6 of the bill is one issue that I do not believe has been fully addressed. It authorizes the governor in council to enact a broad range of regulations to implement the Kyoto protocol. A new bureaucracy would be necessary to implement and enforce such regulations. The government is therefore of the view that clause 6 entails the expenditure of funds and requires a royal recommendation.
In addition, clause 6 authorizes regulations “respecting trading in greenhouse gas emission reductions, removals, permits, credits, or other units”. However, the Minister of the Environment informed the legislative committee last week that an emissions trading market would cost the government billions of dollars.
Therefore, the bill clearly contemplates not only direct government spending, for example, due to regulations providing for trading in greenhouse gas emission credits, but also considerable indirect government spending on the bureaucratic and administrative support necessary for implementing the regulations.
As you noted in your ruling, Mr. Speaker, if spending is required then a specific request for public monies would need to be brought forward by means of an appropriation bill.
Given this, Bill C-288 creates a legal obligation for the expenditure of funds. That is the only way in which the government would be able to comply with the requirements of Bill C-288 regardless of whether that was in the provisions of the bill specifically as laid out now.
This would be an example of the House doing indirectly what the House cannot do directly forcing the government to spend money that has not been authorized.
I think that the parliamentary traditions of this place are very important and the question of the royal recommendation does indeed go back to the very beginnings of our Parliament. Since the bill purports to indirectly force the government to spend money, allowing this bill to proceed to a third reading vote would be inconsistent with the principles of responsible government and the Westminster tradition of parliamentary democracy. As Marleau and Montpetit note at page 709:
Under the Canadian system of government, the Crown alone initiates all public expenditure and Parliament may only authorize spending which has been recommended by the Governor General. This prerogative, referred to as the “financial initiative of the Crown” is the basis essential to the system of responsible government and is signified by way of the “royal recommendation”.
This principle makes perfect sense in a parliamentary democracy, as the government is responsible and accountable to the House for its budgetary priorities.
Bill C-288 appears to seek to force, and more than appears to, in fact it does, force the government to change those priorities. It takes the initiative away from the Crown.
Through Bill C-288 the opposition is attempting to reverse the principle on its head by attempting to legislate obligations that everyone recognizes will require the expenditure of funds. Passage of this bill would create a dangerous precedent whereby the opposition can direct the future expenditure priorities of the government. The precedent could forever change the nature of our parliamentary system.
Similar analogous arguments can be seen bringing forward legislation requiring that everybody in the country achieve a minimum standard of compensation and guaranteed minimum income without specifying what that would be or how the government would go about achieving it. However, if those goals were there and were seen as enforceable, obviously they could only be achieved with government spending. Again, that is an example of the kind of loophole that would be opened, the kind of path that would be tread should Bill C-288 be regarded as being acceptable and not offending the royal recommendation.
Given the significance of such a precedent I would ask you, Mr. Speaker, to consider these issues carefully.
The government also has significant constitutional concerns with the bill. The regulatory provisions of the bill appear to be ultra vires as they cannot be said to be within the federal government's criminal law powers or the general powers of the federal government for peace, order and good government.
While I recognize that the Speaker cannot rule on matters of law, I wanted to take this opportunity to advise the House of the government's significant legal concerns with the bill.
In conclusion, ultimately, Bill C-288 is an example of a bad law. As the current Standing Orders governing private members' business are relatively new, I believe all parliamentarians should wish to avoid creating a precedent that puts this process into disrepute.
The government believes that the credibility and authority of Parliament to legislate in a clear and open manner is at stake on this matter.
If a royal recommendation is required for Bill C-288, that bill will not proceed further. However, the government will continue to move forward with its legislation on the environment, such as Canada's clean air act and the additional legislation to implement the government's February 12 announcement of a $1.5 billion ecotrust fund.
If a royal recommendation is not required for Bill C-288, the only conclusion that Canadians can draw is that this bill is a political attempt to do indirectly what the previous government was not willing to do directly.
As we look forward to what would be opened, the precedent, if we could simply establish targets, goals and objectives, and say that by so doing we are not creating an obligation for spending, yet a government would be obliged to meet those targets and objectives, we are creating indirectly a requirement for a royal recommendation.
I repeat, as I said before, it is not sufficient, with the greatest of respect, to say that the government can worry later about how it meets those objectives and targets, that the government can worry later about how it achieves the specific details and that the government can later craft a royal recommendation to do so.
The fact is the obligation will have been created now at this stage of the process. That is what the principle of the royal recommendation was always intended to prevent.
If we were to allow this to proceed at this point in time, I put it to you, Mr. Speaker, you would be making a ruling that would be turning on its head over a century of parliamentary practice. With the greatest of respect, I think there is great risk in going down that path.
