Motion to Instruct National Finance Committee to Divide Bill into Two Bills—Point of OrderPublished on 14 June 2017 Hansard and Statements by Senator Joan Fraser (retired), Joseph Day, Serge Joyal (retired)
Hon. Joan Fraser:
Your Honour, colleagues, the question before us is whether the Senate has the right to divide this bill, and my answer to that question is yes, we do. In fact, although Senator Harder did a noble job of trying to assert the opposite, in fact, I find very few authorities that would argue that we do not have that authority.
Reference has been made to the Ross report in 1918, which said, ringingly:
The Senate of Canada has and always had since it was created the power to amend bills originating in the Commons appropriating any part of revenue. . . ..
And we not only have had that power, we have exercised it repeatedly.
I would suggest, colleagues, that the division of a bill is a form of amendment, a relatively extreme form of amendment but not as extreme as defeating the bill or defeating the element that would otherwise be divided from the main bill.
Senator Harder quoted one of the standing orders of the House of Commons, Standing Order 80(1), which says, essentially, that “bills for granting such aids and supplies . . . are not alterable by the Senate.” They would, wouldn’t they? The House of Commons, understandably and for good historical reasons, has always been very jealous over its power over money bills, but we in this chamber have never accepted the view that we do not have the power to amend money bills or even to defeat them, for that matter.
As Dawson and Ward wrote in 1987:
It is a fair statement that almost the only attention the Senate has given to this grand assertion is to ignore it.
And, frequently, when we have ignored it, and amended bills and sent them back to the House of Commons, our changes have been accepted, quite often with a little protest reminder that they don’t think this is a precedent, no matter how often it happens.
The argument is made that Speaker Charbonneau in 1988 ruled that we could not do this. As Senator Harder rightly acknowledged, his ruling was overturned by the Senate. Therefore, it stands in limbo. No subsequent Speaker’s ruling has confirmed Speaker Charbonneau’s position. His position was, in significant measure, constitutionally based and our Speakers do not rule on constitutional matters, as I have had the occasion to be reminded by Speakers more than once. But the fact is that whether or not his ruling was sound, it is not part of the precedents with which we work. It was overturned. It has never been reinstated.
The argument is made that the Senate owes deference — respect, if you will — to the House of Commons in these matters. Yes and no. We don’t originate money bills. We do pay significant attention to the will of the elected representatives of the people, particularly when it consists of carrying out campaign promises, but it’s not blind deference and it’s frequently one-way. Already 100 years ago, Bourinot was complaining that many measures have, in past years, been brought to the Senate from the Commons at a very late period when it was clearly impossible to give full and patient consideration to which legislation should be submitted before adoption.
Senator Pratte’s motion proposes to give at least one portion of the bill before us that kind of full and patient consideration that is not available to us with the bill as a whole. It strikes me that if Your Honour rules it procedurally acceptable, it is in other ways a rather elegant approach to the difficulties we face.
Certainly I believe it is more respectful to propose division of the bill — respectful of the House of Commons and the government — than to propose defeat of that bill or a significant portion of it.
Procedurally, Your Honour, I submit that Senator Pratte’s motion is indeed acceptable. As Senator McCoy noted, a motion to instruct the committee to divide a bill is in order. SPIP says in the portion she quoted on page 192 that motions of instruction in the Senate “have most often been used in relation to dividing a bill.” That paragraph goes on to say that “such a motion should be moved ‘immediately after the committal of the bill, or, subsequently, as an independent motion.”
Senator Pratte tried to move his motion immediately after the bill was referred to committee, and it is only because we are engaged in a debate on a point of order that he was not able do that. I assume the clock is considered to have stopped on that while we debate the point of order.
The Rules Committee’s fifth report also noted that the first step in dividing a bill is that the committee to which a bill will be or has been referred must be empowered by the Senate to divide it. I repeat, that’s what Senator Pratte is trying to get the Senate to do.
One of the criteria for dividing a bill is that the portion that is proposed to be divided from the rest of the bill must be naturally separable; it must be a coherent piece that can stand alone as a piece of legislation, once divided. Beauchesne’s says in the sixth edition in citation 686(2) on page 204 that:
. . . an Instruction [to divide a bill] is in order only if the bill is drafted into two or more distinct parts . . . which [lend themselves] to such division . . . .
Erskine May has a comparable instruction at page 560 of the twenty-fourth edition.
The portion of this bill that Senator Pratte proposes to instruct the committee to divide is eminently severable from the main body of the bill.
Division 18 of Part 4 of the bill begins:
The Canada Infrastructure Bank Act is enacted as follows:
And then we go all the way from the short title down to the transitional provisions and the consequential amendments. It is eminently severable.
If we sever it, are we engaging in the creation of a new money bill? That is probably the core of the argument. I would suggest that we are not. We are, as I previously suggested, creating one form of an amendment of a money bill that has been sent to us from the House of Commons.
I’m so sure of that that I was particularly struck when Senator Harder quoted one of Speaker Hays’ rulings going back to Bill C-10, where if Bill C-10A had been accepted by the other place and then we turned our attention here to Bill C-10B and amended it, the House of Commons would have had to accept that amendment. Rather than just accepting the whole of Bill C-10B as a Senate bill, it would treat Bill C-10B as a Commons bill.
We would not be initiating money bills if we divided this bill. With Bill C-44, we would not be creating two new bills. We would be sending back to the Commons the bill they sent to us, but in a different form and possibly amended beyond the division of it, I don’t know. That will depend upon the will of the Senate.
This issue goes straight to the matter of the Royal Recommendation; it is intricately bound up with the matter of the Royal Recommendation. The Senate can neither create nor remove a Royal Recommendation. Only a minister of the Crown can do that. Since we don’t have any ministers of the Crown here anymore, it follows that it can only be done in the House of Commons.
I would submit that the Royal Recommendation in Bill C-44 applies to the whole of that bill, whether or not the bill is divided. Because as it stands now, the Royal Recommendation attached to Bill C-44 applies to the proposed infrastructure bank act. And it is not within our power to remove it from that portion of the bill.
Let me then turn to the matter of whether advance consent from the House of Commons is needed before the Senate is in a position to divide a bill. I submit not. In fact, I think it would be an infringement on our duty to maintain our independence as a separate chamber of Parliament to seek prior consent of the House of Commons for anything we do.
It is well established, and Speaker Hays confirmed this in 2002 — and this was quoted by Senator Harder — that a proper message to the House of Commons must seek the concurrence of the House of Commons to any changes — any changes.
Well, as Senator McCoy pointed out, that’s what we do: When we amend a bill, we send a message back to the house saying, “We’re sending back this bill with amendments to which we desire the concurrence of the House of Commons.” Any change at all. And the same procedures should be followed when we divide a bill. And that’s approximately what Senator Hays said.
That is where the Senate ran aground in 1988. For reasons that escape me, the Senate deleted the request in its message to the House of Commons about dividing a bill and deleted the bit saying that we desire their concurrence.
I don’t know what strange reasoning led to that, but they were wrong, and everybody here admitted that they were wrong to delete that phrase. I am not aware of any cogent arguments that have been made here. There have been arguments made in the House of Commons, but here I am not aware of any persuasive arguments, despite Senator Harder’s laudable attempts that prior consent of the House of Commons is needed to divide a bill or to do anything else with a bill.
Senator Harder quoted the report from the Rules Committee, with which I was involved in the creation, and that’s very clear. Once the report on dividing a bill is agreed to — if it is agreed to — the part of the bill reported by the committee after division goes to third reading here, and if that portion of the bill is adopted at third reading, a message is sent to the House of Commons requesting that it agree; that it concur.
Now, we cannot seek concurrence before third reading because we can’t seek concurrence unless third reading has occurred. It seems to me quite simple. And I would remind honourable colleagues that scant weeks ago, on May 30, this chamber adopted that report. That report is now part of the Senate’s understanding of how we proceed about our affairs.
Therefore, I acknowledge the pre-eminence of the House of Commons in the initiation of money bills, but that’s not what Senator Pratte is proposing. He is not proposing the initiation of a money bill; he is proposing the continuation of a money bill under a different form. There is a vast difference, and what he is proposing, in my view, is within our power, procedurally acceptable and not without precedent.
Therefore, Your Honour, I urge you to reject the point of order.
Hon. Serge Joyal:
If you will allow me, honourable colleagues, I will come to the defence of a former Speaker, Senator Charbonneau. I happened to have succeeded Senator Charbonneau in the Kennebec district in Quebec. Before being appointed in Senator Charbonneau’s district, I knew Senator Charbonneau personally, and I may confess today that Senator Charbonneau offered to shepherd me for an appointment in the Senate.
Of course, in those days, it was Prime Minister Mulroney who was the head of the government, and I asked Senator Charbonneau, “Where will I have to sit in the chamber, on the government side — which was, of course, the Progressive Conservative Party — or, on the opposition side, as a Liberal?” Of course, as I look at my friend Senator Plett, I am a noted Liberal. At that time, I was even policy chair of the Liberal Party.
He said to me, “Well, it’s going to be difficult for the Prime Minister to appoint a Liberal, so you might sit as an independent.” Maybe he had a premature kind of idea or intuition in his head, but I said, “Senator Charbonneau, I cannot sit as an independent. Nobody will believe me if I sit as an independent. Nobody will believe I am independent.”
When I heard some comments about Senator Charbonneau’s decision as a Speaker, I felt uncomfortable, honourable senators, because he was a gentleman. He was a fine man. He did his utmost in a very difficult period of time of the Senate. Of course, I want to share those personal sentiments because I think it’s fair for the memory of somebody who devoted the best of his talents and energy to serve this institution.
That being said, honourable senators, I would like to offer to you, Your Honour, a certain number of points that have not yet been covered, but I want to be very clear. I want to advise you to take very close consideration of your role as a Speaker on issues that might pertain to constitutional matters. If I can quote Senate Procedure in Practice, at page 219:
Furthermore, in keeping with parliamentary tradition and custom, the Speaker does not rule on points of order about constitutional matters, points of law or hypothetical questions of procedure.
We find exactly the same point in Beauchesne, quotation 323. The Speaker:
. . . will not give a decision upon a constitutional question nor decide a question of law, though the same may be raised on a point of order or privilege.
Then, in House of Commons Procedure and Practice, at page 636:
Though raised on a point of order, hypothetical queries on procedure cannot be addressed to the Speaker, nor may constitutional questions or questions of law.
Honourable Speaker, when I heard the Honourable Government Leader, I humbly submit to you that part of his argument treads on a constitutional issue, which is: What are the powers of the Senate in relation to its capacity to decide how the Senate wants to deal with a bill that has been received from the House of Commons?
It is for the privilege of this chamber to decide how the chamber wants to deal with a bill that has been received from the other place with a Royal Recommendation. It is up to this chamber to exercise its privilege of organizing its study, the way it’s going to divide a bill, the way it’s going to send part of a bill to a committee and, finally, how the Senate, at the end, will send the bill back to the other place.
When there is a Royal Recommendation to the bill, this is not for the Senate — and it’s my second point — to be bound, to be handcuffed to look into what is in the bill. As a matter of fact, I was a part of the government whereby the Prime Minister of the day, the Right Honourable Prime Minister Jean Chrétien, decided — and he announced it in the caucus — that each and every government bill would contain a Royal Recommendation, even though there was no appropriation, no taxes, no financial matter in the bill, just in case, to limit the capacity of the house to intervene and to expand the scope of a bill.
I thought, and I’m still of the conviction, that, when we have a Royal Recommendation of a bill, that Royal Recommendation pertains to the section of the bill that deals with taxes and appropriation. That’s the essence of the Royal Recommendation. You will understand, Your Honour, that, put in the other extreme, it would mean that, with any bill with Royal Recommendation, we would be handcuffed as a chamber to look into it, and it is for our privilege to decide how we are going to deal with a bill. As the Government Leader mentioned, we can amend a bill. So we can decide to add to a bill, or, as the Government Leader has said, we can delete a bill. In the context of Bill C-44, the Government Leader has contended that, in fact, we could delete the whole Division 18 of the bill, Part 4, and return the bill with no infrastructure bank at all.
But if we divide the bill and study the infrastructure bank and return it amended, then, of course, we would have improved the bill, but the subject and priority of the government would have been addressed. The fact that the government would have asked for our advice and consent on that section of the bill would have been filled, according to section 91 of the Constitution. So there is an illogical element of reasoning to contend that we can amend a bill, we can add to a bill, we can delete a bill, but we cannot divide a bill to return it, amended, to the other place. There is something that shocks the rationale of how this house has the privilege to organize its work and its study in relation to a bill and return the bill to the other place.
When we return the bill to the other place, what do we do? We inform the other place that we have studied the bill, that we have done with the bill what we think is proper in relation to our constitutional duty in relation to regions and sectional interests. If we decide to abandon our power to divide a bill, honourable senators, reflect seriously about the constitutional power that you are abandoning.
I think that I can understand the logic of the government to refuse the division of the bill. What is the logic of the government in relation to the Senate, now that the Senate is “independent”? It is, essentially, to reflect on how the uncertain or questionable procedure could not be redefined in a way that would limit the margin of manoeuvre of the Senate. I think, Your Honour, that this is a very political question, and it’s bound to the very nature of the power of this chamber, and it is a constitutional issue that I submit to you very politely and respectfully to think very seriously about before you move on that ground. If there is a political power game with the other place, it is for this chamber to determine how that power will be exercised. And not through an adjudication, through a court process, whereby we address a question to the Supreme Court, as in a reference, and ask the court to determine how far the power goes and how far it should be restricted.
This is, in my opinion, on the basis of three precedents that this institution has lived through. I remember very well Bill C-10. That’s why I’m smiling when I look at you. You were part of that debate in those days. You will remember that former Senator Bryden from New Brunswick was an adamant proponent of dividing the bill on the basis that one part of the bill we had no problem with — it is the same with Bill C-44 — and the other part of the bill needed further study, explanation and witnesses because it was touching on the power of the indigenous people with the right to bear arms and the rights of farmers at that time. We were exercising our responsibility to protect the interests of minorities and the interests of the regions.
As with the infrastructure bank, we have to be sure that those powers will be exercised in an objective way to protect the interests of the smaller regions and municipalities, and how that will function in relation to our priorities when we address the study of a bill.
So in my humble opinion, I contend that the motion put forward by Senator Pratte is totally in sync with the procedure we have followed. It is up to the other place to decide if the message that we will return to them will be acceptable or not.
I want to close by submitting an article written by the Honourable Allan McEachern and published in the Canadian Parliamentary Review in the spring of 1988, entitled “Dividing Bills: A View Point from the Senate.” And I want to quote Speaker Fraser from the Commons in 1988 because it has been quoted. What did Speaker Fraser say about the constitutional implication of the decision you are called to take today? I quote Speaker Fraser’s ruling:
The Speaker of the House of Commons by tradition does not rule on Constitutional matters. It is not for me to decide whether the Senate has the Constitutional power to do what it has done with Bill C-103
I think there is food for thought there because if the Speaker of the House of Commons came to the conclusion that it’s not up to the Speaker to decide about the extent and the scope of a constitutional power of this place, I think that we are bound by the rule of the law, which is the power that we have under section 91. We are called to exercise that power of giving our advice and consent on bills that we receive from the other place.
The same with the Ross report that has been quoted by the government leader. There is in the Ross report also a section, Your Honour that I would submit to you. I quote the Ross report:
That Rule 78 [now #87] of the House of Commons of Canada claiming for that body powers and privileges in connection with Money Bills identical with those of the Imperial House of Commons is unwarranted under the provisions of the British North America Act.
And he goes on to say:
The House of Commons cannot by passing Rules add to its powers or diminish those of the Senate. Rule 78 of the House of Commons is quite outside of the powers of that House.
In other words, Your Honour, we assert our power in studying a bill the way we want to study it. We return it to the other place the way we have seen fit to study it. Then it’s for the house to determine what it wants to do with it. On the basis of exchange of views from the two houses, we express our views, they express theirs and we decide accordingly. That’s the constitutional convention that we have followed. If we go beyond that, we are entering uncharted territory and that could be very encompassing for future decisions and initiatives in this chamber.
Some Hon. Senators: Hear, hear.
Hon. Joseph A. Day (Leader of the Senate Liberals):
I as well can be brief because the points that I think are important for you to hear have already been made. I believe this can be dealt with rather quickly by looking at the fifth report of the Rules Committee that was dealt with in this chamber and adopted unanimously on the method of splitting bills that come from the House of Commons. That was May 30, 2017.
We on the Finance Committee, over many years, have been asking and threatening that at times we would like to divide a bill or send it back because of its omnibus nature or because there were so many peripheral items in it that we would like to take out, but we were not entirely clear as to whether we could get into a process like this.
This fifth report of the Rules Committee was prompted by the Modernization Committee. Once this came about, we had the debate here. I believe we have a process that’s clear to all of us. The suggestion that we shouldn’t be dividing a bill now is a challenge to this report that was adopted unanimously.
I would like to have had a debate two weeks ago on this report, and that would have been helpful. If you feel like you have to the report, there is no mention of the Royal Recommendation.
Others have mentioned this, but in 2002 — we were here at that time, and Senator Bryden sat up there close to Senator Watt — the bill dealt with cruelty to animals and gun control, and we divided the bill. It had a Royal Recommendation. So the Royal Recommendation is not an issue.
Three Canadian precedents have been referred to you: Bill C-103; Bill C-93, in 1993; and Bill C-10, in 2002. Bill C-10 was the animal cruelty, gun control bill, with a Royal Recommendation. The other was a budget implementation bill, obviously with a Royal Recommendation. That was dealt with in the normal course; it was not objected to by the government side.
Your Honour, what we have here is a clear, straightforward request to split the bill. Supporting the right to split the bill should not be taken as an endorsement of splitting the bill. We are dealing with a right at this stage in this challenge. Why not get into the merits of the case by saying, “Yes, it could be split if the right factors are there”?