THE STANDING SENATE COMMITTEE ON NATIONAL FINANCE
EVIDENCE
OTTAWA, Wednesday, September 18, 2024
The Standing Senate Committee on National Finance met this day at 6:45 p.m. [ET] to examine the practice of including non-financial matters in bills implementing provisions of budgets and economic statements.
Senator Claude Carignan (Chair) in the chair.
[Translation]
The Chair: Before we begin, I would like to ask all senators and other in-person participants to consult the cards on the table for guidelines to prevent audio feedback incidents.
Please make sure to keep your earpiece away from all microphones at all times. When you aren’t using your earpiece, place it face down on the sticker placed on the table for this purpose. Thank you all for your cooperation.
My name is Claude Carignan. I’m a senator from Quebec and the chair of the Standing Senate Committee on National Finance. I would now like to ask my colleagues to introduce themselves, starting from my left.
Senator Forest: Éric Forest, Gulf senatorial division, Quebec.
Senator Galvez: Rosa Galvez from Quebec.
Senator Gignac: Clément Gignac from Quebec.
Senator Dalphond: Pierre Dalphond, De Lorimier division, Quebec.
[English]
Senator MacAdam: Jane MacAdam, Prince Edward Island.
Senator Kingston: Joan Kingston, New Brunswick.
Senator Marshall: Elizabeth Marshall, Newfoundland and Labrador.
Senator Smith: Larry Smith, Hudson, Quebec.
[Translation]
The Chair: Thank you, senators. Today, we’ll begin our study on the practice of including non-financial matters in bills implementing provisions of budgets and economic statements. We’re pleased to be joined today by Senator Scott Tannas. He initiated this study and this request from the Senate, which has been referred to us. Thank you, Senator Tannas.
We’ll now begin with opening remarks. We’ll then open the floor to questions.
The floor is yours, Senator Tannas.
[English]
Hon. Scott Tannas: Thank you very much, chair, and thank you to the committee members for the invitation.
As was said, I was the one who organized my leadership colleagues to agree that we should do something on this particular topic. They helped write the resolution that is before you. We all understand that we have a problem. I think it is a growing problem and one that we need to deal with.
As near as we can tell, it was in the 1990s that budget implementation acts became something done regularly as opposed to just having a budget document and then passing different pieces of legislation to do whatever you needed to do individually but where there started to be some omnibus activity that coordinated all of the things in the budget document into one bill.
Before 2001, in the early 1990s, the budget implementation act, or BIA, was not long or complex. For example, the BIA for 1994 was 24 pages long. It prompted a point of order from Mr. Harper — he wasn’t Prime Minister at the time — about the length of it, that it was offensive at 24 pages.
Between 1995 and 2000, the budget implementation act documents grew to be larger, although the average was 54 pages. Between 2001 and 2008, it was around 140 pages. Now, we have budget implementation acts that are “omnibudgets.” The last one in 2024 was 660 pages. It also contained 44 legislative matters that were additional to the financial matters in that particular budget.
We all acknowledge — and I remember being in this very room as we were studying the last BIA. We were discussing the potential of somehow addressing, by amendment, one of the items that had nothing to do with budgets or money; it had to do with another piece of action that the government wanted to take that would normally be in some other legislation. We talked about the “shield” — what I call the shield, the constitutional convention of the Senate not amending financial legislation. That shield is now being wielded, in my view, as a sword where we are under time pressure and pressure under this convention not to mess with a document because it is a budget document when, in fact, the issues that we have concern about quite rightly and the constitutional duty to deal with are not financial issues. Therefore, they are being put in to shield them, either intentionally or unintentionally, from us being able to do our job.
For me, there is a lot of evidence that this is getting abused. We had the unusual circumstance this last time in 2000 and in the spring where we had two ministers of the Crown actually admit that they were using this as a shortcut to avoid the bothersome exercise in the House of Commons that is present because of a minority government. The Minister of Justice and the Minister of Finance told us that was their purpose. Yet, they fully expected us to adjust ourselves to respect the shield of constitutional convention on matters that had nothing to do with the budget.
We have seen the shortcuts used on matters of the Criminal Code, something the Legal Committee objects to. Many people have concerns about that.
I think the most troubling one and the one that prompted me to think we needed to do something was in the BIA not last year but the year before. There was a section that dealt specifically with the Privacy Act. It actually exempted federal political parties from application of the Privacy Act for themselves. It was buried on the last page of a — I can’t remember if it was 800 pages. It was a long budget implementation act. It was kind of comical, actually, that it would be placed last at the bottom of the pile.
We talked about it at that point. A number of us were offended by it, and there was some consensus that we should do something. That was a year and a half ago. One of our senators who was a relatively new senator but an old hand in government — in fact, clerked with the Privy Council — Senator Shugart, counselled us to do something but to do it in a way that tried to bring the government along with us.
We tried that, and it didn’t work. When we got down to it, through Senator Gold, the government said they were not prepared to engage in any kind of work to deal with that. I think it is fair to say they viewed it as our problem and that we needed to deal with it.
That’s what then inspired the next thing, which was the question of how we should deal with this. We should deal with it by asking all of you to study the matter and to guide us on what you think we ought to do.
We now have clear evidence of abuse, both through shortcuts to avoid scrutiny and the normal legislative process in the House of Commons and then to force us to ignore it here by virtue of the constitutional convention. That just can’t stand. We have to figure this out. Otherwise, we might as well just tell them not to send anything and we’ll just pass it. We’ll send over our stamp and they can just stamp it by proxy over there.
I’m being facetious, but it is discouraging that we continue to try and honour the convention of the Senate not messing with the finances of the government that come by way of financial bills. We try and honour that and take it to a degree that dishonours the respect that we’re giving the other place.
I would say that we had some glimmer of hope this last year. One of the committee’s studies on a non-financial matter, the committee raised an alarm in the pre-study fairly early on in the process, and the government adjusted the program while the bill was in the House of Commons. We should take that as some kind of lesson, I think. Perhaps one of the levers that you could focus on is that early warning appears to have some effect. It is worthy of mention that in 2024 the government did try and respond to at least one of the non-financial issues that was stuffed in the BIA that we had trouble with.
I’ll leave it there, and I am happy to answer questions.
The Chair: Thank you, Senator Tannas. We will start the questions.
Senator Marshall: Thank you very much for being here and for your motion.
You did, in your opening remarks, give us some background information and some idea as to the research that you did in preparation for the motion, but could you just give us some more information? I am wondering if you took a look at other jurisdictions. I know you do have it in the motion for us to do, but did you take a look at Australia or Great Britain? I would be interested in that.
You separated the non-financial aspects of the omnibus bills from the financial, and I am wondering if you took a look over the last several years and if you can indicate the percentage. Is it half-and-half, half financial and half non-financial, or do you have a handle on that? Those were two issues. If I have time, I have some more questions.
Senator Tannas: Sure. We actually did engage the Library of Parliament, and they delivered for us a very valuable piece of research that I think you can ask for, if you haven’t already got it. It was done by Jaquelin Coulson and Erin Virgint in the Research and Education Department February 23, 2024, and it is called “Financial Legislation in Select Jurisdictions.” It is a good document. It has got a lot of comparators in it that I think will be helpful.
We are not unique in this problem.
Senator Marshall: Yes. That’s what I mean. Are we unique? And if we are not, have other jurisdictions moved to address the problem?
Senator Tannas: Yes.
Senator Marshall: What have they done?
Senator Tannas: Australia has in their constitution that non-financial issues can’t be put in a financial budget bill.
Senator Marshall: Or is that as a result of their omnibus bills?
Senator Tannas: It’s section 54 of the Commonwealth of Australia Constitution Act. I don’t know when it came in. That non-budget items just cannot be added for efficiency and that those that are deemed by the Senate to be inconsistent with that rule can be removed from the bill.
Tacking provisions is kind of another description of it. So things that get tacked into a budget bill, and that is kind of the words that are used in the U.K. by the House of Lords. They talk about the same issue. There are some pretty bright red lines in the U.K. around the activities of House of Lords’ financial bills. Brighter red lines than what we have, maybe not in practice, but certainly in the constitutional powers that we have. They have similar regulations around “tacking” is what they call it.
Each jurisdiction has done some work — they are ahead of us, frankly.
Senator Marshall: Guardrails?
Senator Tannas: They have got some guardrails. Some of them are hard and fast and some of them are just the activity and the posture that the upper house has taken in both the U.K. and in Australia. My understanding is that you have got some experts that have done a fairly deep dive into the other jurisdictions coming, and they should be able to give you quite a fulsome explanation in each case. To me, these are areas where I think the solutions potentially lie for us.
Senator Marshall: Go back to the issue which is raised by the committee, insufficient time. I am not saying that that’s the solution, but do you think it would make the omnibus bills more palatable if there was more time given? Even if we just took out the financial aspects of it, there still wasn’t time. Could you talk a little bit about that?
Senator Tannas: Where Australia has a deadline for bills to be received by the Senate if they want them considered by the end of the session.
Senator Marshall: That helps.
Senator Tannas: Yes. We have talked about this. There have been government leaders — and I mentioned it in my speech — of the past who had seats at the cabinet table and could tell their cabinet colleagues, “Cut-off day is this date.” If you don’t have it to the Senate by that date, you can’t come back on us and force us to do something and largely got respect for that. We don’t have that representation at the cabinet table anymore. That precedent got started some time ago, and maybe that is an area that we need to speak up to governments of the day and say, we think this is —
Senator Marshall: The bills are just getting bigger and bigger.
Senator Tannas: Yes.
Senator Marshall: Okay, this is great.
[Translation]
Senator Forest: Thank you, Senator Tannas, for that thoughtful comment. Two fundamental issues come to mind. First, we’re dealing with such large bills that we can’t study them as much as we would like to. Second, and this issue seems more troubling, we’re muzzled because the bill involved often consists of an implementation bill. We aren’t in a position to properly study non-financial matters and to make a decision based on the fundamental interests of Canadians.
My first question is the following. A number of people, including Professor Adam Dodek, rightly pointed out that no legal restrictions exist to prevent us from ending the practice of omnibus bills. You said earlier that, in 2024, Parliament was informed that a bill could be withdrawn. Don’t you think that parliamentarians have the authority to oppose this practice and say that, if they receive other pieces of legislation in a budget implementation bill, they won’t consider that bill? Could this be done?
[English]
Senator Tannas: Yes, I think we have the ability to propose to carve out certain elements of a bill and study them separately. I don’t know if “permission” is the right word, but it does set up a situation where in order to do that, we’re reporting back to the House of Commons and saying we have got Bill 1 and 1A and they have the opportunity to say, “No, we don’t want you to study it that way.” They can reject our intentions.
If we’re into an abusive situation that, to me, is a potential where we could wind up in a confrontation in the middle of trying to do our job. I would much rather see us try and find ways to recast the convention and let them know that’s what our intention is rather than be reactive around it. That’s me. But my understanding is that it’s been done. We can do it. And then we would look to see what the House of Commons’ reaction and the government’s reaction would be to us doing it.
[Translation]
Senator Forest: Thank you. A negotiation is always preferable to a confrontation. You said that England and Australia found ways to better balance the implementation bill. In your view, could we draw inspiration from these solutions to strike a balance in an omnibus bill?
[English]
Senator Tannas: I do. I think both countries — and both are Westminster systems — offer us some potential ways in which we can do this. Some of them are quite rules-based and others are just behaviour-based. My bet is it is going to be a combination of a change in our own Rules and a change in our behaviour.
The fact is that we are painting ourselves into a corner by this convention that we allow to occur in a way that it is not the way it was intended. We’re doing that. Nobody else is doing that.
If the idea was that we could deal with everything in that omnibus bill, and we can study it in our proper way in the time that it takes, then surely the government would say, “No, we need the budget passed; let’s not hold everything up.” That would be our fallback. If we said, “Look, we want to divide this bill,” and they said, “No, we don’t want you to divide it,” then we could always say, “You will get your bill when we’re done with every single last detail properly.” That’s what will happen. If that takes us six months, then it will be six months.
There are many ways that we could encourage the behaviour, but the first step for us is to be brave enough to do it when we are clearly being abused and prevented from doing our job.
[Translation]
Senator Gignac: I want to welcome our colleague. As a member of the Standing Senate Committee on National Finance, I feel particularly strongly about this topic. Over the past few years, we’ve been frustrated, as you so aptly described, by budget implementation bills containing a number of elements that bore no relation to the government’s economic or financial policy. As an institution of sober second thought, this poses a problem for us.
To dig deeper, can you suggest any experts for us to invite? We’re starting our study today and you’re our first witness. Could we identify others? I’m thinking of Louis Massicotte in Quebec. He’s a professor in the political science department at Université Laval. He has written articles on the matter. Can you talk a bit about this? Do you have any names of experts? Have you had a chance to speak with Mr. Massicotte?
[English]
Senator Tannas: I’ll deliver a list to the committee after the meeting of people whom I’ve come across or whom my staff has found to help the committee.
[Translation]
Senator Gignac: This isn’t something new from a government. The previous government did this too. As someone who studied public finance in my previous life as an economist at the National Bank and in other financial institutions, I’ve seen omnibus bills. In all honesty, as a former provincial minister in the Quebec government, I saw bills that the finance minister willingly included in his budget to make them easier to pass. We know how this works. Quebec doesn’t have a senate. Negotiations take place among the various political parties. They don’t have the institution that we have here. Our work is done here.
Tell me about pre-studies. I gather that we would at least like to see budget implementation bills systematically analyzed in advance. Am I to understand that this isn’t done automatically in the Senate, or did I get this from an answer to a question that I asked today? Do the leaders of the four groups need to agree before we can conduct a pre-study? Can you explain how this works?
[English]
Senator Tannas: A key part of the solution would be to embark on an aggressive pre-study as soon as we have a budget document prior even to a BIA. I can’t remember if it’s a law or practice that the Trudeau government put in as part of their campaign promises in 2015, but it was that anything in the BIA would be included in the budget. They didn’t tell us that they would insert a series of one-sentence statements into the budget that have nothing to do with the budget, but they’re in there and we can find them. Perhaps there’s a way in which the committee can do some early triage of items that are in the appendix of the budget document that would give us some hints about areas that are of concern or of interest. Perhaps then we could ask officials to come and explain what the plan is. It often seems to me that the most troublesome items — the ones that I would say are abusive — are the one-sentence ones in the budget document.
Maybe there is a way that we could do some advance sleuthing to see what might be waiting for us in that document before we get a BIA and get down the road with it. I certainly, as a senator, would support and favour the earliest possible pre-study on budget implementation acts, always. I think we can make that an understood convention in the same way that we currently have a convention that we don’t mess with these budgets.
Senator Gignac: By convention, not the Senate Rules.
Senator Tannas: Yes. Just behaviour.
Senator Smith: Senator Tannas, I just want to sum up a few of the thoughts that you’ve given us so far. I have another question after that.
You made it quite clear that the aim of the motion is not to do away with omnibus bills, but to create a process by which we can effectively study them — thus, the reason we’re here. Given that, I’d like your thoughts on the government’s justification for including many non-financial items in each year’s budget bill. You’ve thrown a few of those out already. In my exchanges with the Minister of Finance in one of our meetings — or twice now — she has repeatedly argued that everything in the budget bill comes for the government’s budget document. Therefore, according to her, it is justified.
I have another point if I can have two more seconds. You may also have noted that in Australia they’re tabling deadlines for legislation if the government wants to have them considered and debated. The Parliamentary Budget Officer has repeatedly called for an earlier and fixed tabling date for the budget. This would better align the supply process with the budget and give Parliament more time to study the BIA. We’ve echoed those calls, but the government has not been receptive. You also mentioned that the government has not been receptive to some of the Senate’s resolutions on the matter.
Do you have any suggestions on how we must approach the government to get them on board? What is it going to take?
Senator Tannas: In Australia, they have a deadline for bills. They say that the bill needs to be here by this date to be considered by the end of the session. The other piece we have in our customs is that if the government wants to keep us here all summer, theoretically, they can do that. I’m not sure that they can without a vote of the majority of the Senate. We can test that if they say, “Well, that’s fine, you have that rule, but we’ll just never end the session.” We have the ability to adjourn our chamber if we need to.
We have everything we need to establish a deadline. In Australia, there’s a deadline. The bill has to be received before the end of the session, as is published, and in order to overcome that cut-off — so if something happens and, “Oh, goodness, we do need this bill by the end of the session” — then it takes a supermajority to override it. Something like that.
Like so many things, I find the Australians very pragmatic about this kind of thing. This is one that I was struck by as something that could be added to our toolbox with our own Rules. Everybody understands what they are, and it gives us something that everybody could strive toward.
Senator Smith: Historically, has the representative of the government been on the cabinet? That changed, did it?
Senator Tannas: Yes.
Senator Smith: Now, why not have the representative — Marc Gold’s equivalent — that position has to be within the government small-group-of-people cabinet. That would give us a vehicle, which we could use to then say, “Okay, Mr. Representative of the Government, we have certain rules that we want to make sure that you get in front of the government.”
And we keep hammering them because this may be a process that takes more time to get into place or to reinstitute the relationship that the representative of the government is on the cabinet. Does that make any sense to you?
Senator Tannas: It’s up to the Prime Minister to appoint cabinet members by including Senate members. The Senate, I don’t think, can foist anybody into cabinet, so it would require the cooperation of the Prime Minister to appoint the government leader in the Senate to the cabinet.
It was tradition for decades, and it’s only recently been changed.
Senator Smith: Would it be a useful element?
Senator Tannas: Maybe now we’re living through one of the reasons why it should be changed back.
Senator Smith: Exactly. And if so, how do we do it?
Senator Tannas: Simply, I guess, we would pass a resolution asking the government — or encouraging the government — to make the Leader of the Government in the Senate a member of the cabinet. We could do something like that, but it would be up to the Prime Minister and the government of the day.
Senator Galvez: Thank you, Senator Tannas.
I think that by now you are sure that we are all very frustrated with this way of dealing with the budget implementation act and, in general, with the budgetary cycle. It’s like we are always reviewing something in a hurry all the time. It’s been like this for the eight years that I’ve been here.
As my colleague said, I think there is nothing in the legal, in the Constitution or in the way we work that is going to stop omnibus bills from being sent to us, so the way is how we deal with them. I’m happy to hear there are some tools. Putting a deadline sounds fantastic.
Another way, when we do the pre-study, was to distribute the subjects among different committees, but this requires, as you said, cooperation among the leaders because you leaders decide.
I was very frustrated when the carbon tax was supposed to come here, and then it was agreed to come here, and then all of a sudden, I learned that it’s not coming here anymore or that the committee decided not to study it anymore and it was only going to be the Senate Standing Committee on Agriculture and Forestry. Really, that frustrated me a lot.
We are on the National Finance Committee, and we should see the expenses and the revenues. That’s the normal thing to do.
I think, yes, we have the tools, but sometimes politics come into it and then they disturb the logical, the pragmatism that you are saying that the Australians have and we seem to not have. We have to be pragmatic and efficient.
My question is around who decides what is not a financial matter and what is a financial matter because this has come into some question, and they will always find a way to show that indirectly it influences the economy and, therefore, is a financial matter.
According to you, who will decide this is not financial and this is financial?
Senator Tannas: I think it has to be this committee that decides whether it is so tangential as to be authored by Pinocchio. It’s not true even though maybe it is tangentially true because everything at the end of the day involves money, right?
I do believe this committee needs to take this issue in hand. You’re going to study it, but I think you’re also going to lead any reforms that happen. This committee needs to be sufficiently empowered by the Senate, trusted by the Senate and it needs to be populated with folks that are of a common mind that this needs to stop.
I would go a little bit further with this. We’re the long wave, right? Senator Wells likes to talk about how the Senate is the long wave and the House of Commons is the short wave. Maybe part of what we need to do is train governments on what is acceptable and what is not acceptable.
There are some governments, I would say, that have a reflex built in about fiscal management. That’s their thing. There are other governments that don’t. They have other priorities and other strengths. Maybe it’s up to the Senate in those moments to help train governments through tough love in the beginning to say, “No, you have to deliver your fiscal management in a way that is responsible.” Maybe we let that get away on us.
That’s in the past, but I do think this committee is the committee that needs to take charge even when it comes to where do bits and pieces of it get assigned? I’m not sure it is appropriate for the leaders to be dealing with that. This committee should deal with that and decide what it wants to delegate and what it doesn’t. If it’s a BIA, it should start here and be delegated out.
Senator Dalphond: Thank you, colleague, for coming. It’s a topic we have been discussing together and sharing views on for many years. We have not found, though, the answer. We have expressed concerns repeatedly.
I think one of the problems is that there might be many kinds of omnibus bills — an omnibus bill that repeals 25 parts of different bills in cleaning up things. One of the ones that replaced the name of the supreme court of a province by the superior court and amend 35 bills, these kinds of omnibus bills we don’t have really a problem with.
I think what is concerning to all of us — at least the most concerning to most of us — is the Budget Implementation Act Part 4, 5 or 6 that are called miscellaneous acts. The one I read, as I said to the finance minister, when she was here, “I read your budget every time, but I just start to read the part that says miscellaneous acts because that one I understand.” The rest I leave to Senator Gignac to understand and to Senator Marshall and other people who are very familiar with that — like you — who have been in audit or were an Auditor General.
But me, I look at these parts, which are legalese, but changing everything that has no link with the budget. That’s what is bothering me, and I think it is becoming abusive.
An option that was considered was to remove that from the budget to make it a separate bill, but we have two rulings from the Speakers of our Senate in the past — and I think you were there for at least one of them — where the Speaker ruled that if you make two bills, you need two Royal Recommendations because they are part of a financial bill. He says, “I cannot do that,” and he makes — the House voted, the Senate voted, to overrule the Speaker.
At the end of the day, the rule that is in the book is we need a Royal Recommendation if it’s a budgetary issue. I don’t know how far we can go as an option there, but it is to be explored.
The other options, you referred to a special majority in the Senate to this whole budgetary issue, which I think is an interesting option. The problem is the constitution says that decisions in the Senate are made by the majority, so we will have to amend our constitution. That is also in our bill. We don’t need the provinces to do that. It is internal. Still, it is a major obstacle.
What is the other option? Can you explain more what is happening in Australia? I looked at New Zealand. New Zealand has an omnibus bill. They live with it. They criticize. England has it. They call it the Christmas tree because the bill is full of things. They call it a Christmas tree because it’s full of lights.
In the U.S., we will find anything is in the budget. The compromise will keep that base open. It is the deal. The deal is all reflected in the bill.
You said Australia may offer an interesting pattern. I would like to hear more about Australia.
Senator Tannas: I’ll leave it to you. I am getting it from the information we have. I would hope you would find time to talk to some of the people from Australia and the U.K. who have been working in systems that are more effective.
The one thing that I am relatively certain about — again, maybe you can check — is the weapon we have is time. We can say we reject your pressure that we must do our job in X amount of time. If you send us an 800-page bill filled with 45 things that have nothing to do with the budget, you might not get it in a rush. If you insist that we don’t separate it, then we will take our time with it. That’s the one thing we do have. We are on relatively solid ground. That gives us then the ability to perhaps propose some new conventions that don’t take us down that road.
Senator Dalphond: I think of what they called the hidden convention in the Senate which was based on pre-studies. The government will do a pre-study in the Senate when it is still at second reading in the House of Commons. Then they will debate for a few weeks. Then the Senate embarks on a pre-study and then sends a report to the House of Commons, a message saying the following things are a concern or we suggest you change this or that.
It is similar to what was done with Bill C-69, with the two parts — 66 and 67, or 46 and 47, I have forgotten — about immigration. There were two chapters. One was dropped at the other place. They said the Senate suggested to drop it. The other groups suggested that too. We are dropping it.
The other one, we said it should be dropped too. They said, “No, we’re going to improve it.” They came up with a series of due process clauses for those immigrants who were in federal jails and considered risky, so they have some rights now, which I thought was an improvement.
Doing pre-studies requires the government to walk into those things, to give us time to do the work. Sometimes the budgets come late. I don’t know if it is a forum we should explore.
Senator MacAdam: I’m going back to some comments that Senator Shugart made that you referenced in your introduction where he suggested trying to have conversations with colleagues in the other place.
I am wondering if you know whether the success that Australia and the U.K. have had, if they engaged in collaboration and cooperation with the equivalent of the other place or was it more confrontational? What we’re talking about here seems like a good solution. Was it a better situation than we have?
Senator Tannas: That is a great question. I don’t know. What I do know is that we took Senator Shugart’s advice. We did receive an answer. The answer was this is your problem to solve. We have nothing to contribute to it. They were not prepared to be dragged into or agree to our Rules.
On reflection, I don’t blame them. I don’t think that a different government would react differently. It is up to us to decide what we want to do and how we want to do it in the context of the expectations of the public around us as an appointed body, but also in the expectations constitutionally that we have to do a good job.
Senator MacAdam: Given all the comments that we have heard here, the frustrations, barriers and history, do you have any suggestions on how this committee could effectively scope this study, deliberate, try to find consensus and prepare good recommendations? I know that is what we are going to have to do.
Given that you are here and given your passion and all the information you have at hand, any thoughts on that?
How long do you think this kind of a study should take, given the issues we’re facing, in order to do it properly, to protect the credibility of not only this committee but the Senate as a whole?
In my view, it will take quite a bit of time to do it properly. I want to get your thoughts.
Senator Tannas: I do have a worry, and I have said it publicly, that it seems increasingly likely we are going to have a government of a different stripe we will be dealing with in the future. Let’s assume that’s true.
The political dynamic is such that it would be really unfortunate, and there could easily be a perception that it has to do with senators of a different stripe dealing with a government of a different stripe. It would be unfortunate if that was the first time we decided we were going to flex our authority on this is with a new government. I think that’s a trap we should not fall into.
As much as it pains me to say it, I think there is a time issue to at least put some markers down on things we’re going to try. They might not work out. We might still wind up in the time pressure with things we can’t separate out.
We have to try some things for the coming budget cycle, assuming we get there. That’s my own view.
In your wisdom, you might say, “No, this is going to take a long time. Let’s do it the right way, in a long way.” At the end of the day, that might be the right decision. I would leave it to you. You are best placed to decide what to do.
Senator Kingston: The first thing I would like to ask is a clarification of what your definition of a supermajority is. Is that two thirds?
Senator Tannas: I’m not sure what a supermajority in Australia is, but that is their requirement inside their rules — in order to overcome the cut-off a supermajority is needed. I honestly don’t know.
Senator Kingston: It is more than 50%, obviously, plus one?
Senator Tannas: Exactly, yes.
Senator Kingston: It struck me while you were talking, and then after what Senator MacAdam has been saying, it took a long time to get here. You talked about 27 pages in the 1990s and now up to 800 pages. But of those 800 pages, only 44 pages — and we know it is not that many because as you said, many of them are one sentence — that somehow the budget itself, the financial pieces — obviously we would have to take that into consideration as well — that the whole thing is different. So if it is just like being pregnant. It takes a long time to get there, right, from the beginning to end, and then a long time to get back.
One of the things I have observed is that things are sent to us, and yet we know long before — as you somewhat said — in second reading, we know what is going on in the other place, and it would seem that we probably should start talking about the stuff that we know needs a lot of study before that time. Others used to do that. There were more pre-studies. Am I wrong about that or is that just an impression that I have gotten? I don’t know.
Senator Tannas: I don’t get the sense that there is more or less.
Senator Kingston: Okay. We seem to act kind of blind about what is going on in the other place until it actually lands on our doorstep, which doesn’t seem to make too much sense to me given we know where it is going, usually.
Senator Tannas: If you remember at committee in the dying days of the spring, we had a situation where a portion of the BIA around the Competition Act was radically changed at the last minute, and we weren’t allowed to touch it. We weren’t allowed to examine it in spite of there being an uproar in certain segments of those that were going to be affected by it. They were completely blindsided.
Yes, I think we can avoid a lot of those issues through pre-study, but at the end of the day, we don’t know what we get. Part of that also, to be fair, is it is a minority government in the House and sometimes they make deals just so they can move things along, right? So we wind up with these surprises and us being the ones spotting the unintended consequences, which is all the more reason why we should have some ability to say, “Hold it, all this can go, but we need to have a little look at this for longer.” And if the answer back is, “No, it is all or nothing,” and then we say, “Okay, we will take longer and focus on that before you get the whole thing back.”
We have ways to respond if we are dealing with an unreasonable partner. We just have to have the jam to do it when the time comes, to do it when it is the right thing to do. We take our I don’t want to say partisan hats off, but we do. We take our hats off that says we owe them or we owe this person or that person or this government or that opposition whatever allegiance, and we say we’re going to do our job even though our friends are going to be disappointed in us. But if they are being unreasonable, we still have to be reasonable and do our job.
Senator Kingston: It is just an observation, really, but one cabinet minister from the Senate might not change too much given how big the cabinet usually is and how it functions. So that’s kind of an observation. If that is seen as a fix, I am not sure whether it would be much of a fix.
Senator Tannas: Cabinet members get briefed on providence of bills. They are there when the idea is being birthed, and if they are doing the job for us, they can see where the problems are.
So you know what? I suggest that we take Senator Carignan, Senator Gold, Senator Carstairs and ask them around that question. It would be worth a one-hour panel to talk about cabinet versus non-cabinet government leaders and tease that out and see if there is a real difference. I am going by hearsay. But my opinion is that there is something there that we should be looking at.
[Translation]
The Chair: I’ll just chime in. We had an hour and we’ll take a few minutes, if you don’t mind, Senator Tannas. I have many topics to address.
I’ll start with the following topic, and then finish with this one. I can tell you, having been part of the cabinet, that it has an impact. It isn’t just one person. It’s the Leader of the Government in the Senate speaking on behalf of the Senate and saying the following: “In our area, be careful, we’ll have this issue or that problem.” It’s much more than an individual speaking, because we’re speaking at the House level. Things are heard differently. I must say that they don’t understand the rules of the Senate on the other side. No matter how much I explained it to them, even in the Office of the Prime Minister, the Senate procedure remains a mystery. I admit that it’s a bit complicated.
I’ve already looked into the double majority issue, and it would be unconstitutional. Section 36 of the British North America Act says that questions arising in the Senate shall be decided by a majority of voices. As a result, we couldn’t use a double majority.
You’re interpreting the convention a bit strictly when it comes to amendments. I found some information in my office. I stumbled upon it in June. I noticed that we have a number of historical amendments to a budget bill. The most recent one that comes to mind dates back to when I was the opposition leader. An entire section dealing with consumer protection and banking was removed from the budget bill. Peter Harder was the government leader at the time. He moved the motion with me, and the section was removed. That’s the latest example that comes to mind. However, there are a number of other examples. André Pratte even wrote about this topic in his book. We had the votes to do what we needed to do.
All this shows that budgets have been amended in the past and that this can be done. We can move amendments and carry out pre-studies. If 8 or 10 topics are included in an omnibus bill, we can split the bill and assign parts of it to Senate committees. The will of the Senate is needed for them to carry out these studies. We can divide a bill through a motion on division.
Don’t you think that narrowly interpreting the convention to mean that we couldn’t amend a budget bill puts us in a false and perhaps theoretical straitjacket, and that, given previous amendments, this rule is now less strict than you seem to claim?
[English]
Senator Tannas: I agree with you. I think we have all the power we need. It is behaviour that is 90% of our problem. We put the pressure on ourselves. We allow others to put the pressure on us.
But as you have just enumerated, we have the power to do what we need to do if we choose to use it and use it responsibly. We should not hesitate to use that power when we are being abused, when somebody is leaning on us and quoting conventions while trying to slip something by that is disingenuous to that convention.
I think it is fair to look to other appointed bodies, particularly in the House of Lords. Australia, they are elected. They have their own power, different constitutions and so on.
I do believe that our problem is in our own behaviour and that we look to this committee. This should be the powerful committee that decides when something is not good.
I would say that in the last little while — and I don’t mean this with any disrespect — the tone, how we have gotten here and some of the things that we have let slide could have been and should have been that tone to not accept it should have come from this committee. You are greatly respected, and I am hopeful that part of this whole study allows you, maybe, to come to a view yourselves on how you are going to deal with this growing problem and beat it back so that we can do our jobs.
Senator Marshall: Initially, when I saw the motion, I knew it was a big study, but after the past hour, this is a really big study especially if it is going to be carried through to finding solutions.
I am thinking about the Finance Committee now. We are effectively overloaded with work. We have a lot of extra meetings, and it is not just the budget bill. The fiscal update bill was also 500 pages. We had two big bills, and the fiscal update bill was not split up. The entire 600 pages came here.
One of the things we have to look at is how we integrate this study into our regular work. I just want to make that point.
But I do have a question. I don’t know if this is getting down into the weeds too much, but early on, when we were having the initial conversation, we’re talking about the guardrails. Some jurisdictions have guardrails. You said Australia has a deadline, and they say, “If we don’t get the bill by a certain date, we will not get the study done.”
What vehicle do they use in order to establish that rule? Do they use legislation, is it rule of the Senate or is it policy? You need a vehicle that is going to be binding.
I don’t know if you have gotten that far into the detail. That could be a big issue.
Senator Tannas: I think you can look to the library for that kind of information as you go through.
[Translation]
Senator Forest: As you said earlier, even when the Senate and the House of Commons shared the same roof in the Centre Block, there was quite a bit of misunderstanding. I find that the Senate and the House of Commons are now two solitudes. It reminds me a bit of Canada. We no longer meet, see each other and talk to each other. This makes the situation worse.
I believe there are two ways forward. We could opt for an extensive study. However, in my opinion, we aren’t the best-equipped committee to do this. I’m thinking of the Standing Committee on Internal Economy, Budgets and Administration. The other aspect of our reality is an election in the short term. A major study means attempting to engage in a short-term discussion while saying that we won’t conduct a major study, but that we’ll try to establish a discussion with the governments. We have a strategic and political choice to make quickly. The current government has a short life expectancy.
The Chair: That’s exactly the point. There will be a discussion with the current government, but the other government there won’t agree with the current government.
Senator Forest: At least we’ll have tried something, and maybe the current government will agree.
The Chair: Did you have a question or just a comment?
Senator Forest: Do we opt for a major study, and see who does it and how, or do we opt for a quick connection to at least get the ball rolling under the current system?
[English]
Senator Tannas: Maybe it is as simple as saying let’s be aggressive with the pre-study. Let’s look for areas where we can see that this needs further study, and we should react quickly to suggest to the government that they carve it out, let us deal with it separately and see if we can build something that is a back and forth cooperative in the next budget cycle.
If we get cooperation, then maybe we don’t need to go any further. Maybe we can get ahead of it if we have a partner that isn’t looking to take advantage of us. We have let them take advantage of us, and so it becomes more of a habit.
I don’t think we have governments of bad faith in our country. I think we own as much of this problem as the governments in the House of Commons own this problem. So why don’t we try changing our behaviour a bit, in good faith, with good communication, with action and see where we get? Why not?
Senator Gignac: I want to elaborate on what you have in mind. May I test the water on an idea with you and my colleagues?
We know the government likes omnibus bills, possibly minority governments, for obvious reasons, because they speed it up. Why not use the pre-study discretion that we have to mention that all economic, financial items would be acceptable as a pre-study at the Senate and all the rest will be declined?
So if the signal sent by the Senate to the minister is, “You know what? You are at risk if you add too much because this is sober second thought. We will not give up our responsibility of sober second thought by fast-tracking things that are complicated.”
I am just curious to have your reaction to these kinds of things where a signal or a guidance that all economic, financial items will be pre-studied automatically by the Senate, but the rest, we refuse to do that. What do you think about that idea?
Senator Tannas: At the end of the day, if they want to send us two omnibus bills, one for the budget, which we can’t touch and must be done in a certain time frame, and another omnibus bill with a hundred things in it, we can take our time and we’re not going to be jammed. We can make amendments. We can do what we need to do.
Senator Gignac: If the government does not want to split the bill, do we have the possibility here to pre-study only the things that we want to analyze, the financial or economic? We can do that? I think we are authorized to do that. It is up to us.
Senator Tannas: We do have the ability to go that step of severing a bill and sending it back to the House. They have the ability to not accept that. That’s my understanding. So why wouldn’t we encourage them in the pre-study to say, “Why don’t you carve those out into a separate bill and we will take our time with those because we see that is going to hold up this? If you insist on keeping them together, then we’re not going to give up the time we need to look at every single last thing.”
If we can start out with just that, some behavioural things that involve us being proactive, a little firmer and communicating, this problem may just disappear. That would be nice.
Senator MacAdam: I just want to propose that the committee have an in camera meeting to discuss an initial approach as to how we will deal with this review.
The Chair: Good idea.
[Translation]
This concludes today’s meeting. I would like to remind the senators that our next meeting will take place on September 24 at 9 a.m. to continue our study on the Main Estimates for the fiscal year ending March 31, 2025.
I want to thank everyone. I would be remiss if I didn’t thank our clerk, Ms. Aubé, in particular. This is officially her last meeting with us. Fortunately, we’ll see her on other committees. I saw that we’ll be working together as of Tuesday on the Special Joint Committee on the Declaration of Emergency. We won’t be losing her skills, expertise and talent.
Thank you, Mireille. I heard many good things about you before I became the chair. Since we started working together, I’ve found that this is to your credit and richly deserved. I wish you the best of luck.
Our new clerk is here. As the saying goes, the king is dead, long live the king! We’ll have a highly capable person taking over, so thank you.
(The committee adjourned.)