THE STANDING SENATE COMMITTEE ON NATIONAL FINANCE
EVIDENCE
OTTAWA, Wednesday, October 9, 2024
The Standing Senate Committee on National Finance met this day with videoconference at 6:52 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: Good evening, honourable senators. 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 are not using your earpiece, place it face down on the sticker placed on the table for this purpose. Thank you all for your cooperation.
I wish to welcome the senators, as well as the Canadians watching us on sencanada.ca.
My name is Claude Carignan. I am a senator from Quebec and chair of the Standing Senate Committee on National Finance.
Senator Forest: Éric Forest from the Gulf senatorial division, in Quebec.
Senator Gignac: Clément Gignac from the Kennebec division, in Quebec.
[English]
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
Senator MacAdam: Jane MacAdam, Prince Edward Island.
Senator Loffreda: Welcome. I’m Senator Tony Loffreda from Montreal, Quebec.
[Translation]
Senator Dalphond: Pierre J. Dalphond from the De Lorimier division, in Quebec.
[English]
Senator Fridhandler: Good evening. Daryl Fridhandler, Alberta.
[Translation]
Senator Cormier: René Cormier from New Brunswick.
[English]
Senator Ross: I’m Krista Ross from New Brunswick.
Senator Marshall: Elizabeth Marshall, Newfoundland and Labrador.
Senator Smith: Larry Smith, Saurel, Quebec.
[Translation]
The Chair: Honourable senators, this evening we are resuming our study on the practice of including non-financial matters in bills implementing the provisions of budgets and economic statements.
We are pleased to welcome Charles Robert, who is a former Clerk of the Senate and the House of Commons, and dare I say a friend of the Senate. Senator for Western Australia Louise Pratt, who is also Chair of the Finance and Public Administration Committee, was meant to make a presentation by videoconference, but as we have been experiencing technical difficulties, she will send it to us in writing and we will be able to consult it afterwards.
Mr. Robert, I invite you to make your presentation for 5 to 10 minutes.
Charles Robert, Former Clerk of the Senate and Former Clerk of the House of Commons, As an individual: About 10 minutes, but I always need a little more time.
The Chair: Go ahead; then we’ll have questions for you.
Mr. Robert: Thank you very much.
[English]
The National Finance Committee has a mandate to study how the Senate can better deal with budget implementation acts, or BIAs, and more specifically, their non-financial provisions. The order of reference adopted last February charges the committee to look into three aspects relating to the consideration of BIAs coming before the Senate. The first addresses the current practice in reviewing nonfinancial elements in the BIA; the second is to collect information on procedures followed by other legislatures; and the third seeks recommendations and guidelines with a view to better ensure proper scrutiny of the non-financial components contained in BIAs.
[Translation]
Because of the positions I have held in the Senate as well as the House of Commons, I am prepared to provide information and perhaps advice that may help members of the committee in carrying out their mandate.
Let me begin by saying that I am honoured to have the opportunity to testify before you as part of your study. I am a firm believer in the work of the Senate and the importance of its contribution to Parliament’s legislative and policy review, a responsibility it shares with the House of Commons. In my presentation, I will focus on the first and third elements of the order of reference. I believe there are other resources available for you to gather information on the practices followed in other legislatures.
[English]
In the current first session of the 44th Parliament, which began in 2021, the Senate has had to examine five separate bills relating to budget implementation. Each of them is in some measure a legislative expression of the economic statement delivered by the Minister of Finance twice a year, usually in the spring and fall.
These bills have become massive, covering a large range of statutes and amending a significant number of acts. Moreover, these unwieldy omnibus bills contain more than the budgetary subject matter arising from the minister’s economic statement; they also include a lot of non-financial provisions. It is for this reason that the Senate has sought the advice of this committee.
A justification for this practice of having so much stuffed into the BIA is its convenience and the lack of time to do this through separate legislation. It is a convenience that has been practised by governments of both parties over the last 30 years and more.
Another motive is that given its relationship to the budget and the business of “aids” and “supply,” BIAs are expedited through Parliament, the House of Commons and the Senate as if they were part of the Estimates process, which, since the reforms of the late ‘60s in the House of Commons, are considered under a fixed calendar, a predetermined time allocation process with three distinct periods ending in December, March and June every year.
Under this regime, BIAs are invariably adopted by both houses of Parliament before the extended winter and summer adjournments, sometimes with a tight deadline in the Senate, much to the frustration of many senators.
[Translation]
The procedure followed in the Senate for each of these five bills was the same and has become standard practice for dealing with virtually all budget implementation bills. In each case, senators adopted a motion to authorize a pre-study of the budget bill while it was still before the House of Commons. In addition, this motion resulted in the contents of each bill being divided among the various standing committees, which encouraged a more thorough examination before the Standing Senate Committee on National Finance presented a compiled report of the various studies to the Senate.
Are the pre-studies useful? Yes, in all probability. But are they enough? That’s for the committee members and senators to decide.
[English]
The process followed by the Senate with each of these five bills was the same. What seems clear is that the Senate has demonstrated a willingness to adapt its practices to accommodate the perceived exigencies attached to BIAs with their tight deadlines while, at the same time, seeking to provide some level of credible scrutiny of the legislation.
Time is the all-important but variable factor. Pre-study can have a significant time range from less than a month upward to six weeks and even several months. Whatever the time given to pre-study, there is an invariably constrained period allowed for the three readings of the BIAs.
This uncertainty about adequate time for pre-study, combined with compressed debate through the reading stages and with the prospect of ever-larger BIAs, the effectiveness of the Senate’s efforts to adjust its current practices will inevitably be undermined. Meeting the “deadline” for passage of the BIAs while satisfying the obligation for sufficient examination of these unwieldy bills, particularly the non-financial provisions, will become more and more difficult and unsatisfactory.
Is there a better way? The Senate seems to think so, based upon the order of reference of February 6.
The third part of the committee’s order of reference mandates the committee to make recommendations and provide guidelines on methods to allow proper scrutiny of non-financial provisions found within budget implementation acts while permitting financial provisions to proceed in a timely manner. The structure of this proposal implicitly recognizes that the separation of BIAs into financial and non-financial parts might be a viable solution. Distinguishing those parts of the BIA would fulfill an obligation to pass the budgetary components quickly while giving the Senate more time to assess its nonfinancial provisions.
[Translation]
Dividing a House bill in the Senate seems to be an unusual and somewhat dubious practice. Dividing a bill, or combining two or more bills, has always been an option available to the house in which the bill originated, but it was less clear that such a procedure could be properly followed by the second house. There appear to be a few examples in Westminster, but they have not been used to establish guidelines for the Canadian practice. The last such known case dates back to 1919 and concerned a Department of Transport bill, but the instruction to divide the bill was rejected on the grounds of technical difficulties, and the editors of the 20th edition of Erskine May explained that the merits of the procedure had not yet been established.
That is not the case in Canada, where there have been three relevant examples: in 1941, 1988 and 2023. None of these examples concerned a budget implementation bill, but they do illustrate how the House of Commons may respond to the Senate’s division of a budget implementation bill into financial and non-financial parts. In short, they suggest that MPs be persuaded to agree to the division of a budget bill if a certain condition is met. As I will explain, I do not believe that compliance with this condition is necessary, but until the House of Commons adjusts its position or extends the scope of its precedents, the Senate would be prudent to comply with this essential condition.
[English]
To explain this, I will start with the case of 1988 and Bill C-103, a bill that, among other objectives, sought to establish the Atlantic Canada Opportunities Agency and Enterprise Cape Breton.
A point of order was raised in the Senate when a motion to instruct the National Finance Committee to divide the bill was moved June 1, following second reading. The ruling of Speaker Charbonneau was given several days later, on June 7. While he found no objection with respect to proper notice or the form of the motion, he ruled it out of order. In his view, once divided, Bill C-103 would no longer be a government bill; instead, the two new bills would be Senate bills, and given that they sought to appropriate public funds, they could not properly originate in the Senate. This ruling was subsequently overturned on appeal to the full Senate, and the motion of instruction was adopted.
One month later, on July 8, 1988, the first part of the divided bill was sent by message back to the House of Commons. A point of order was immediately raised, objecting to the unprecedented action of the Senate. After hearing arguments on the matter, the Speaker reserved his decision, which was given on July 11, 1988. After a reference to constitutional issues that he acknowledged were beyond his authority, the Speaker ruled that the Senate message infringed the privileges of the House of Commons in that the Senate had decided to divide Bill C-103 without seeking its concurrence, the sine qua non condition. The privilege at issue is based on section 54 of the Constitution which, in turn, is expressed in Standing Order 87, asserting that all financial bills, bills of aids and supplies, are the sole gift of the House, where they must originate and which are unalterable by the Senate.
Speaker Fraser stated:
. . . the Senate should have respected the propriety of asking the House of Commons to concur in its action of dividing Bill C-103 and in reporting only part of the Bill back as a fait accompli has infringed the privileges of this place.
It is not exactly clear what actual privilege was infringed, although the reference made in the ruling to Standing Order 87 is suggestive. Despite this finding, the Speaker was powerless to rule the message out of order.
The solution was in the hands of the House either to claim its privileges or to forego them and inform the Senate by message accordingly. In the end, the House signalled its strong objection, and the Senate received this message July 26 and subsequently passed Bill C-103 as one bill, without amendment, on August 18.
[Translation]
The essence of Speaker Fraser’s ruling was the need for the Senate to seek the approval, permission or agreement of the House in its action to divide Bill C-103. This position, as he stated, was based, at least in part, on the case of June 11, 1941. On that occasion, two bills originating in the House of Commons and seeking to amend the Special War Revenue Act were before the Senate — namely Bill 88 and Bill 101, the latter being an unamended single clause bill.
The third reading debate on Bill 88 took place over two days and focused on an amendment to suspend the coming into force of a particular clause until the Supreme Court could assess its constitutionality. Once the amendment was adopted, a motion was proposed to consolidate Bill 101 into Bill 88. Proposing to combine two bills at third reading, which is normally done at the committee stage, was certainly unprecedented, but the senators did it without hesitation. In their message, they informed MPs that they had passed Bill 88 with one amendment and the incorporation of Bill 101, for which they wanted their approval.
[English]
The request for concurrence was made because unamended Bill 101 had been joined to amended Bill 88. However, the alleged infringement of privilege had to do with the amendment to Bill 88, not to the Senate decision to combine two bills. This is evident from the message of the House in reply to the Senate sent later the same day, June 11, 1941. The message was moved by the Minister of Finance, and it declared:
That the said amendment be now read the second time and concurred in; but that this house, while disapproving of any infraction of its privileges or rights by the other house, in this case waives its claims to insist upon such rights and privileges; but the waiver of the said rights arid privileges is not to be drawn into a precedent; and, further, that this house agrees to the incorporation in this bill of Bill No. 101, an act to amend the Special War Revenue Act ...
The message was adopted by the House without debate. The object of the traditional complaint of the House was the amendment to Bill 88 setting a condition that constrained the authority of the House over public finances. No issue was raised about the Senate’s decision to combine the two bills.
[Translation]
In any event, Speaker Fraser’s ruling was invoked by Speaker Milliken in 2002 when the House considered the third example, the division of Bill C-10, an act to amend the Criminal Code of Canada in relation to firearms and cruelty to animals, and the Firearms Act.
The message from the Senate received in the House of Commons on December 5, 2002 consisted of several parts. It explained the following: that Bill C-10 had been divided into Bills C-10A and C-10B; that the agreement of the House had been sought for this division; that Bill C-10A had been passed without amendment; and finally, that consideration of Bill C-10B was ongoing.
Speaker Milliken ruled on a point of order and a question of privilege challenging the merits of the Senate’s message. In his ruling of December 5, he found that neither complaint had merit. There was no reason to object, since the senators had sought the agreement of the members of the House of Commons to divide Bill C-10.
In addition, the Speaker saw no evidence that the senators’ actions had infringed on the terms of the Royal Recommendation attached to the bill. Nevertheless, in light of the division, the Speaker stated that it was up to members to decide whether to insist on their privileges or to waive them in this case. In the end, the House accepted the Senate’s message and Bill C-10A received Royal Assent in May 2003. Bill C-10B died on the Order Paper when Parliament prorogued.
[English]
While preparing my presentation, I became aware, late in the day, of a Senate Speaker’s decision from 2017 that did involve a BIA. Let me address it quickly.
During the first session of the Forty-First Parliament in June 2017, a point of order was raised to challenge a motion of instruction to allow the National Finance Committee to divide a budget implementation bill, C-44. This incident directly addresses a topic of concern to this committee. The ruling from the chair echoed the reasoning provided by Speaker Charbonneau in 1988. As happened then, the ruling was appealed, but this time the ruling was sustained, and a vote to challenge it was defeated on a tie vote. Like the Charbonneau ruling, the Speaker believed that dividing a Commons bill created two new bills that now originated in the Senate. This also meant that they were no longer government bills. Equally troubling, if not more so, was the matter of the required Royal Recommendation, which can only be signalled in the House of Commons.
Based on my assessment of this procedural history going back to 1941, the logic of the ruling is open to serious skepticism and doubt. The Royal Recommendation applies to all clauses of the original bill that seeks to spend public monies. This reality does not change when the same clauses become part of a now divided bill, and the two bills do not become Senate bills. When they are returned to the House of Commons, the House will not be dealing with them as an “S” bill, and they will not start the process anew at first, second and third readings.
These two rulings provide a poor guide to the committee, and if accepted, will thwart any effort to improve your scrutiny of budget implementation bills, which are already very lengthy and which are studied under tight time constraints. Moreover, the ruling of 2017 ignored of the decision of the Speaker of the House of Commons of 2002, which had no issue with respect to the Senate’s decision to divide Bill C-10 mentioned earlier. The divided bill was not seen as a new bill originating in the Senate, nor did the Speaker have any doubts as to the Royal Recommendation.
Today, Parliament has had limited experience with one chamber taking action to divide or combine legislation originating in the other house. Success in taking the steps seems to depend on the message using the formula to seek concurrence in the action. While it does not guarantee success, it avoids almost certain failure.
If the Senate wants to consider BIAs more thoroughly and have more time to study their non-financial provisions, using the process to divide the bill will provide that opportunity. Using the language of seeking concurrence will avoid a complaint that would doom the message in the House of Commons. This does not assure that the House of Commons will accept this message, but at least there will be debate on it. If successful, the Senate will have more time to study and consider a substantial portion of the BIA without jeopardizing its accepted obligation to deal with its financial provisions expeditiously.
Thank you for your patience. This concludes my presentation.
[Translation]
The Chair: Thank you. It’s fascinating. You recognize the fascination and you get caught up in it.
[English]
Senator Marshall: Thank you, Mr. Robert, for being here tonight.
I appreciate the examples that you gave, but it seems to me that if we’re going to approach the House of Commons to — I guess the term “play ball” probably isn’t the proper word — but if we wanted them to cooperate and help us solve this issue, I really don’t think they’re going to be receptive. It seems to me, especially after hearing you give those examples, that it’s really depending on the Senate taking a stand and not looking for the concurrence of the house of assembly for anything.
From a procedural point of view, is it a possibility — you’re an expert in the procedures of the Senate and the House of Commons — that once we receive a budget bill that’s 600 pages long, that we insist that it won’t be passed until we have adequate time to either debate it or have it split?
Mr. Robert: That’s an option for the Senate to consider.
One of the realities that has become embedded in our practices is that budget implementation bills are considered, as I said, under the time frame that is accorded to supply. Given that reality, that’s why you end up being squeezed. It’s in response to economic statements made by the Minister of Finance, as I said, usually twice a year. Then you hit the adjournment periods of winter and summer, and the pressure is on you to get those bills through. Now, if you do not feel that obligation, then you can take the time you feel you need, but the order of reference that this committee has received seems to work within the framework of continuing to adopt the financial provisions of the BIAs within the time frame that has become habitual and leaving yourself more time to deal with the non-financial aspects.
This is why the sine qua non condition is an element that I wanted to bring to your attention. In 1988, when they were dealing with Bill C-103, the original motion that was to go to the House sought concurrence. But Senator Flynn said, “You know, I don’t think we really need this,” and the House said, “You know what, you are probably right.” But when it actually came to the House of Commons, that was the trip line that the House of Commons looked at and said, “You’re not asking for our concurrence; we’re not going to cooperate. You didn’t ask our permission. This is somehow or another inappropriate. You have done something that offends us.” If it’s only a matter of a phrase, then it’s up to you to decide how important it is. It depends on what your objectives are.
Everyone relies on precedent, good or bad. We could discuss their merits, but if the House of Commons has that as a precedent, why would you want to avoid it. As I said in my presentation, it’s almost a fatal move.
Senator Marshall: After hearing the examples you gave, I just don’t think it’s going to work through negotiation with the House of Commons. The problem is that we have omnibus bills every year for the budget bill, but it’s expanding. The fiscal update bill was also an omnibus bill. Unless we dig our heels in, we’re going to have this proliferation of omnibus bills. With the possibility of a new government, I can see this being an even bigger problem.
To start talking about separating an omnibus bill into financial and nonfinancial, it’s not black and white. You’ll have some sections of the bill that some people will say are financial and other people are going to say it’s nonfinancial, so you’re then in another quagmire.
It seems to me that a lot of it is going to depend on the will of the Senate to address the issue, but I’m not optimistic. We could start out trying to negotiate with the House of Commons, but I’m not optimistic that that’s going to happen.
Mr. Robert: My frame of reference was what this committee has been charged to do by the Senate itself, so I looked at those three issues.
In terms of the aspect of negotiation, if we seek concurrence, the Speaker will, based on precedent, rule it out of order. You won’t negotiate. The Speaker’s decisions are final. It’s the end of the game. There will be a message going back to the Senate saying, “Fix this.”
Senator Marshall: I’ll wrap up by saying that my original question — before I heard your presentation — was, what are the options? The Senate has to look at what options are available to us, and you’ve given us some guidance to do that.
Mr. Robert: The other thing is that if you do not want to consider them as part of the financial cycle, you can say that you don’t have to respect the deadlines that have traditionally been followed by the House and the Senate.
Senator Marshall: Right. That’s an option, yes. Thank you.
[Translation]
Senator Forest: Thank you for being with us, Mr. Robert. We are learning a lot.
At one point, before your time, omnibus bills were thinness personified and we really had budget implementation acts that targeted financial measures.
Now we find ourselves in inflationary morbidity, and omnibus bills are getting bigger and bigger and affecting more and more bills. Here is my question. What were the conditions at that time when Parliament managed to refer to the Senate a budget implementation bill that was reasonable and focused on fiscal measures?
Mr. Robert: When I started doing my research for tonight’s presentation, I read an article written by Aaron Wherry that was published in Maclean’s magazine at least 10 years ago. He studied budget implementation bills. It started out as a 23-page bill, and after a while the government decided it was okay. All sorts of different elements can be included in this bill, given that it is studied fairly quickly by both houses. The problem that Senator Marshall raised about identifying or not identifying the financial clauses occurred when we changed the Governor General’s message with the Royal Recommendation.
In the past — even possibly long before me — items and amounts were identified and were approved by the Governor General for incorporation into a bill. This is no longer the case. It’s a generic message, and it’s up to you to say, “It’s done.” Is the clause related to finance? Is money being spent? Is that what’s authorized or not? That’s the challenge right now. Then you realize that many of the clauses in the bills don’t actually deal with finance. It’s only the bills on estimates that are clearly cash outflow bills and authorize how much the government can spend in the current or next fiscal year.
[English]
There’s a real difference going on, and it has become problematic.
[Translation]
For the reasons I’ve mentioned, it’s suitable. The government can put anything in the bill to ensure that it is passed, as the habit is already well established. It’s passed quickly by the Senate before the winter adjournment or before the summer adjournment, and the government depends on that reality.
Senator Forest: I assume that, given the budget implementation acts, the fiscal measures and the fact that the Senate will not object to getting appropriations, the government is taking the opportunity to pass some “quickies” and get us to pass legislation that, by and large, will pass with the adoption of the fiscal measures?
Mr. Robert: That’s right.
Senator Forest: That is very clear. I found the idea of being able to divide a budget implementation act into financial measures and non-financial measures very interesting. It seems to me that this is impossible. The only choice left to us is to take the time we need and do an in-depth analysis, and the government will live with the deadlines it imposes on us, taking into account the tight time frames. Am I right?
Mr. Robert: As I am the former Clerk of the House of Commons and the Senate, I realize that, at the beginning of the procedural reform that followed the estimates adopted around the 1960s, the government sometimes tried to include legislation in this estimates bill. The Speaker said at the time, “If you do that, we can’t follow the timetable set by the Standing Orders, as you’re exceeding the absolute conditions that have to be followed.”
[English]
It’s also like what happened with the Australian constitution and taxation measures. The bills have to be pure. If there is any sort of pollution — let’s use that phrase — then the obligation of the Senate in Australia to pass it without amendment is gone. It was the same practice in the House of Commons. The Speaker said that if you’re putting nonfinancial measures or non-estimates into this bill, then the Standing Orders that fix the dates for the adoption of these measures in December, March and June will not be followed because you’ve violated the conditions that are essential in identifying a bill as an estimates bill or a supply bill.
[Translation]
Senator Forest: So this is the preferred route, in your opinion, for us to bring the consideration of bills such as budget implementation acts back to more respectable conditions?
Mr. Robert: You have to realize that the government will expect this to be passed fairly quickly, as you have done for 30 years.
[English]
Senator Smith: Following up on Senator Marshall’s question on the Senate taking a stand, as the House may not as receptive, given your presentation, I’m wondering if you have any comments on whether the composition of the “new independent Senate” makes it easier to take a stand against the federal government’s use of omnibus bills.
Mr. Robert: I am completely in the dark about that, perhaps as much as you are.
Senator Smith: I don’t know what else I could add to it. Having the Leader of the Government be a part of cabinet was the way until 2015 when Trudeau came in with his government. Does having the Leader of the Government, the representative, be part of the cabinet make a substantial impact in the decision-making process of the government when it has something to do with a BIA or an omnibus bill? I just wonder what you think.
Mr. Robert: I would have to think about it in order to be able to provide you an answer. I’m not sure, however, how often it was that the Leader of the Government in the Senate was a member of cabinet.
Senator Smith: Apparently it was frequent until 2015. I’m not sure if it was like that all the time. The thought in some of the discussions with some of our members was that using time is one issue. That’s a positive for the Senate. The other issue could be having the Government Representative as a member of cabinet would give that individual more understanding of what’s going on in the internal machinations of the government and whether there could be influence by relationship building on a strategic basis to bring us, not closer, but more respect or at least a stronger position in dealing with the government.
Mr. Robert: That could be. It’s not an unreasonable proposition to put forward. I think, though, that the expectations of the government, regardless of whether or not it’s a Government Representative or a government leader who is affiliated with the cabinet, is that the Senate’s practices over the last 30 years would still be followed. From the government’s point of view, if that is the case, there really is no concern. There is no reason for an intervention or a change of status. Everything would operate according to, “Let’s do it the way we’ve always done it,” regardless whether it’s the government leader or Government Representative who is stickhandling the issue through the Senate.
Senator Smith: Pre-studies are one way we can afford ourselves more time studying the volume of legislation in the BIA. You’ve noted that pre-studies do help, but it may not be enough in dealing with the BIA. Many experiences are that amendments and changes to the BIA in the other place mean we receive a bill that’s not the same as the pre-study we undertake. I would like your thoughts on that and if you could expand on why you believe pre-studies are a good tool in our toolbox. Are there limitations with pre-studies? If so, what are they?
Mr. Robert: I think the benefit of a pre-study depends on the circumstances and the conditions under which it is undertaken. For example, with a pre-study of a generic law, if you wanted to study it because it was controversial, it was complex and you wanted more time, well, that’s fine. That’s not a problem. But a pre-study of a BIA is a different category of pre-study.
What I did not include in my presentation but which I did study is that the time frames can vary. I suggested it. Sometimes it could be as brief as two weeks or as much as several months. But whatever happened, the real kicker was the debate at the three reading stages, and that was always focused on getting it done before the adjournment. That could be a minimum of two days or a maximum of twelve days. Twelves days was the maximum I found, so basically three weeks.
But for a BIA that’s 660 pages, which is the last version, that’s a heck of a lot of work in a short time. That’s the reason why I asked it as a question. Is pre-study even sufficient when the bills are as massive as they have become? Again, that’s a question for you to answer. You have to be satisfied with the work you do; that’s not my responsibility.
Pre-study was used because, in earlier experiences on other forms of legislation, it was effective. Now, you’ve gone a step further, and you’ve actually divided the BIA and dispersed it to various committees for study. That’s a help, but again, you have to determine if that is sufficient. That’s the mandate you have as a committee from the Senate.
Senator MacAdam: I have a quick question, and I’m relating it to a practice that I think is in Australia. Is it reasonable to try to work on a solution by trying to get government cooperation in establishing deadlines to get financial bills to the Senate to allow them to have enough time to properly scrutinize?
Mr. Robert: It is reasonable, but the challenge will be that the government does not control the time of the House of Commons, and in a minority government, even less so.
Senator MacAdam: What are your thoughts on attaching observations to bills? What weight do they carry? I’m a relatively new senator, so I’ve only experienced one year of the frustration on the lack of time to deal with the bills and the fact that they include financial and nonfinancial. What we’ve done a lot is just attach observations. That’s what we did last year. I want to get your thoughts on that.
Mr. Robert: From a procedural point of view, I love them. I think they’re a very effective way to raise a complaint or to raise an objection that cannot be contested. From a procedural point of view, they have no weight, but from departments, as I experienced or had some basic knowledge in the past, or at least some strong suspicion, they send a message. Whether or not they’ll be heeded, there is no guarantee. But if the Senate is determined to take a stand, observations are a soft way of doing it. A harder way would be to, as suggested earlier, take more time.
From an outsider’s point of view, the Senate, as an autonomous body in Parliament, has the right to make its own decisions about how much time it wants to spend on legislation. As an independent body, you can resist the pressure of the government, and you can resist the pressure of the House. If you feel that is the right thing to do, that is an option for you to consider. It may be assessed on a case-by-case basis. Again, as I have frequently mentioned, the power is in your hands.
Senator MacAdam: Under the current rules, what can we do that we are not now doing to improve our effectiveness in studying bills? As I said, I’m a relatively new senator. I feel I don’t even know the rules very well. You probably know how these bills have been dealt with by the Senate in recent years. I’m wondering, under the rules, what we can do.
Mr. Robert: You can take your time, under the rules, but by practice, you accept the constraints of adoption by a certain date. Depending on when the bill actually comes to you from the House of Commons, that will be some length of time or a shorter length of time. But as I have tried to point out, you have made the decision to adopt these laws within a time frame that is tight. The government certainly wants it, and there is no doubt about that, but you have made the decision to accept that or not. That’s your choice.
Senator MacAdam: So we’ve set a precedent.
Mr. Robert: It’s more than a precedent. You have a practice now that’s pretty well anchored over 30 years.
Senator MacAdam: We have set a practice.
Mr. Robert: But it’s not under the rules.
Senator MacAdam: That is the issue I was trying to get at. We’ve set a practice, but under the rules, we don’t have to continue to do it.
Mr. Robert: No. The House of Commons has rules that set deadlines for supply bills, and they are invariable or pretty near invariable, but the Senate has nothing equivalent.
Senator MacAdam: Thank you.
Senator Ross: That was very interesting. I really appreciated that history lesson.
I did read about a report of the Rules Committee from April of 2017. That committee gave a process for how this splitting of a bill could be done. They said that, at that time, they did not think that the rules needed to be changed in any way in order to facilitate us doing that, but that the issue was, going back I guess two months later, that Royal Recommendation piece in splitting the 2017 bill.
When you said that the Royal Recommendation really did cover everything in the bill, and if it was split, it was really not two Senate bills but a split House of Commons bill, was that yours, or was that part of that ruling?
Mr. Robert: Well, it is actually both, because there are inconsistent rulings.
Senator Ross: Right.
Mr. Robert: But the one that matters to me is the one that is in the House of Commons. It was Speaker Milliken’s ruling in 2002. That was the one that said, “You can do this. It can work.” The Senate decided to divide the firearms and cruelty to animals bill into two bills, and you asked for concurrence. You used the magic words. When it went to the House of Commons, the Speaker responded to a point of order and a question of privilege, and he said, “There is no valid complaint here.” So there was no violation of the Royal Recommendation.
I would use that as evidence that the decisions of Speaker Charbonneau and, in 2017, Speaker Furey, are no longer — are not necessarily applicable — let me be a little bit more cautious — because we have a Speaker’s ruling from the House of Commons that more or less said this is okay. There is some confusion that needs to be sorted out, and there may be some dispute. There is an “on the one hand and on the other hand” possibility with this.
My point of view is that with a bill that comes to you from the House of Commons, the Royal Recommendation, in its own mystical, invisible way, attaches itself to all of the clauses that authorize the expenditure of money. Where they are is not necessarily something that can be discerned easily. Nonetheless, that is the procedural reality. If you divide the bill, those clauses don’t change. They’re not transformed into an S bill. They’re not transformed into a non-government bill. They’re transformed into two bills, and that’s what the Speaker of the House of Commons determined when he made his ruling in 2002.
Senator Ross: In this Rules Committee report, it says that the first thing that needs to be done is the committee to which a bill has been referred must be empowered by the Senate. So they need a motion of instruction —
Mr. Robert: That’s right.
Senator Ross: — but that is all we would need to move forward?
Mr. Robert: Yes.
Senator Ross: When Minister Freeland was a witness at this committee, I actually asked her a question about how we could be expected to study these massive bills. I too am a new senator. I was shocked at the short amount of time we had to study such massive bills that were on so many different — it was not just a budget bill. She didn’t really give an answer that helped. She just said that there is a lot of filibustering going on in the House, and that’s why there’s not much time. But she really didn’t help me to understand how we could be expected to cover all that ground, even with a pre-study. In that instance, we had pre-studied the bill, and then the House of Commons amended it before it got here, so we studied a bill that was then amended before we actually got it. It’s really hard to do.
Mr. Robert: Yes. But as suggested earlier, you are accepting to do it within the time frame that has been established by a practice.
Senator Ross: So if the Rules Committee has said we can do it and the House of Commons Speaker has —
Mr. Robert: I’m sorry. What did the rules say you could do?
Senator Ross: Well, the Rules Committee said, “Here is the process.”
Mr. Robert: For dividing the bill?
Senator Ross: Yes.
Mr. Robert: Yes.
Senator Ross: And the House of Commons has told us back in 2002 that it was okay to do, then are we done? No?
Mr. Robert: That, again, is the third element of your order of reference, and it’s for you to decide whether or not you think the — I guess in some ways the testimony I’ve given you, based on the 2002 ruling of the Speaker of the House of Commons, can be used to defend a proposition that says, “Let’s divide the bill. We’ll give you the money you want because that’s important, but we would like to study the other aspects of the bill that we have decided are not financial.” But, again, it raises the issue Senator Marshall brought up. Is it a clean cut? And that’s something that whoever is charged with doing this —
Senator Ross: Well, we need to make sure it was a clean cut.
Mr. Robert: I guess, in the way of Senator Marshall, where there’s doubt, put it in the financial, just to make sure there is less of a chance that what you’re trying to do, for good reasons, is somehow or another going to be subject to some kind of objection in the other house.
What you want is what you normally have when you send a message to the House of Commons if you’ve amended a bill, “These are amendments. These are what we think will make the bill better.” When you’re dealing with a BIA, you’re saying, “Well, we have divided the bill. These are the portions that deal with money that you want right away. We’re okay with this. That’s your job. We will respect the broader interpretation of Standing Order 57 and give it to you. But the non-financial stuff, we think deserves more scrutiny, and we want the time to do that.” If that’s the way you want to go, I think there’s a path forward, based on the examples of the precedents I’ve been able to study.
Now, I haven’t done a study of the House of Lords. There were some interesting cases that were alluded to in a point of order discussion that took place in 88 — I am talking about 1808, 1836, and 1919, and somebody mentioned 1852, and I have no idea what they were referring to.
Senator Loffreda: Welcome, Mr. Robert, to our Finance Committee. It is nice to see you again. It was a pleasure meeting you last month at our Independent Senators Group retreat. You have had a distinguished career both in the Senate and the House of Commons, and it is a privilege to have you here to discuss such an important topic and concern for us.
My question is about the administrative and logistical burden of splitting up budget bills from the perspective of the Senate’s administration. Let’s take the example of the most recent budget implementation bill that was frequently mentioned this evening, which I was honoured to sponsor last spring. I was the sponsor of the BIA. The bill contained, as we said, over 600 pages, had four sections, and as you know, Part 4 of these BIAs is often related to non-budgetary matters. That was the case for Bill C-69. Part 4 contained 44 divisions.
I appreciate that some of these divisions had budgetary or financial implications, but what would be the impact on the Senate’s workload, both for senators and for the administration, if these dozens of divisions would have been tabled as stand-alone legislation? Looking at it from a practical sense of view, do you think it’s realistic to expect senators and their committees to study all of these separate pieces of legislation under tight time frames? Some of these measures were important measures, like the car theft measure. They’re not unimportant matters; they’re important matters. Some committees are already overloaded. If we look at Social Affairs, Science and Technology, or SOCI, for example — I mention SOCI, but many committees — if not some, many committees are overloaded. From a practical sense, is it doable?
Mr. Robert: I can’t answer that question, but I think it’s part of the reality you live with. The time that Parliament sits has contracted over the last decades. There are all sorts of reasons that explain that. The business of government has not shrunk. It seems to, in fact, have expanded. The growth of these bills speaks to the complexity of the operations of government, demands of society and other causes that have led to a situation that we are confronting today. There is no easy answer.
A lot of the work that you do, however important — and it is indisputably important — must be frustrating because you lack the time and the resources to delve in deeply to complex legislation. The government’s approach is also trying to deal with this reality. With the limited number of days sitting, with the fact that government hours in the House of Commons can be hijacked at any moment and the government can be frustrated in its efforts to try and pursue its own agenda, they are looking at the options of trying to deal with this reality.
The BIA has become a very convenient tool, as I said earlier — and I say it facetiously but I don’t mean it that way — to dump all sorts of stuff into the bill because what is being dumped is important. It’s not inconsequential. Given the practices that the Senate has established with adopting this in short time, well, there you go. Why would the government forsake this opportunity to discharge its responsibilities by bringing forward legislation that needs to be enacted rather than wait and say, “Oh no, we’ll do it tomorrow with a separate bill. We’ll do twenty bills instead of one.” No government in their right mind would feel they are discharging their responsibilities properly if they did that, I would venture to say.
Senator Loffreda: You’ve been on the Hill for decades, and I know it wasn’t part of your job to necessarily review bills before Parliament, but do you recall any instances where provisions or policies adopted in budget bills had to be corrected or amended later with a new bill?
Mr. Robert: I know that there have been some instances where there were problems. Senator Day was very good at that when he was leading the Committee on National Finance. He would review the estimates with a fine-toothed comb, and the Senate took the time to do it. Even from the table, you could see that he took rather good pleasure in taking into account errors that the committee had detected in the preparation of the estimates. Now, it’s a complex process. There are a lot of departments involved. Mistakes are certainly not unknown, but to be sympathetic to them, they are inadvertent. They just arise. It is good to find some people who pay enough attention to this to point them out. So it does happen, yes.
Senator Loffreda: Like many, I sometimes feel we are unable to do the bill justice and might lose the opportunity to identify or correct any flaws the bill might contain because of a lack of time, right.
Mr. Robert: That is true for all legislation, not simply BIAs. That is why the idea of having a chamber of sober second thought isn’t such a bad one.
Senator Loffreda: Exactly. I love your answer. Thank you.
Senator LaBoucane-Benson: Thank you so much, Mr. Robert, for coming today and for the information you’re providing.
I really do want to read a little bit more about the Speakers’ rulings that you referred to. For example, your argument kind of centres around the 2002 Speaker’s decision, and it seems to me that that decision to split into Bill C-10A and B was because the content was so different. You had a gun act and changes to cruelty to animals. It seems to me it was two very separate content pieces, and then they were separated. However, the very nature of a BIA is to fund a wide variety of different programs that the government wants to do. By nature, you would have different content in there. That Speaker’s ruling might not necessarily cleanly apply to a BIA because it seems to me in 2002 it was about the differences in content; it wasn’t about money versus no money.
Mr. Robert: Let me push back, if I may.
Senator LaBoucane-Benson: I might not have understood.
Mr. Robert: In order to issue a motion of instruction, the bill has to be logically divisible. The experience of the Senate and this committee and the focus of the third point of your mandate, order of reference, is, is a BIA divisible into financial and nonfinancial? Regardless of the range of bills or acts that are being amended, the focus of your division is what I just mentioned. From that point of view, the Speaker’s ruling of the House of Commons on Bill C-10 is, I suggest to you, reasonably relevant.
Senator LaBoucane-Benson: The second supplementary is using the idea of concurrence. On one aspect of the definition, concurrence means cooperation; on the other aspect, it is consent. Would the Senate be asking for cooperation, or are we asking for consent?
Mr. Robert: I think they’re both combined, in fact. You would be asking for both. To me, it’s making explicit what I think is always implicit in any message that comes from the Senate to the House or the reverse, from the House of Commons to the Senate. A message says, “We have passed this bill. Now it’s your turn to do what you want with it.” Or when the Senate has passed a bill, “We have passed this bill with amendments.” Now, presumably you want those amendments adopted. You’re not saying, “We want your concurrence for the adoption of these amendments.” But because of the 1941 case, that somehow or another has become a catch phrase that is seen to be a condition that must be met.
From my point of view, as a proceduralist, why would you want to frustrate your ambitions to actually successfully divide a bill to give you more time to study the nonfinancial provisions by gumming up the works by deliberately absenting that phrase from the message? In the rulings that have occurred in the 1988 ruling, Speaker Fraser on the House of Commons side said, “You misbehaved. You did not recognize the proprietary ownership that the House of Commons has with respect to this bill. By not asking our concurrence, you presented it to us as a fait accompli, and we see that as an infringement of our privileges.”
I don’t get that argument, honestly. Nonetheless, it is a position the House of Commons has taken and they will hold to it unless at some point in the future the House of Commons adjusts its provisions and widens the scope of the messages it is willing to receive from the Senate. But short of that, I think you would be well advised to pay attention to the approach taken by the House of Commons because — forgive me, I’ll be more strategic — it costs you nothing.
[Translation]
Senator Cormier: I am not a member of the committee, but I thank you for giving me the floor.
Following up on Senator LaBoucane-Benson’s question, I want to understand why the 2002 decision seems to take precedence over decisions that were made afterwards; is there room for interpretation?
Mr. Robert: Yes, indeed. This is an interpretation that is now considered a House of Commons procedure.
Senator Cormier: Okay.
Mr. Robert: We now have a decision that was to accept that the Senate has the right to divide a bill that comes from the House of Commons.
Senator Cormier: Even if in the following decisions it is said that —
Mr. Robert: The following decision is that of the Senate. As far as I’m concerned, this ruling did not take into account the ruling made by the Speaker of the House of Commons.
Senator Cormier: I see.
Mr. Robert: In my opinion, it is the House of Commons decision that is the most important, as the 2017 decision followed the 1988 decision, which was overturned by the Senate itself.
Senator Cormier: Thank you.
The Chair: You’re talking about the 2017 decision; is that the one where consumer protection measures involving banks were taken out of the budget?
Mr. Robert: I don’t know which components were divided. I think it was one component. I didn’t really re-examine the bill, but I realized that it was a bill.
The Chair: If it was in 2017, it must be —
Mr. Robert: It was Bill C-44 at the time. I don’t know what it was about.
The Chair: I think that’s the one. The provisions dealing with the Consumer Protection Act that affected the whole banking regime were separated from the rest.
Mr. Robert: Yes.
The Chair: There was consent for it.
Mr. Robert: Okay.
The Chair: Owing to the negotiation, the Leader of the Government even agreed to the division. That may have helped.
[English]
Senator Fridhandler: Thank you for the interesting overview and some subtle manœuvres. I don’t have the background of this committee and the terms of reference. Some people have said they’re new senators. They don’t know what new is. I’m one month in.
It seems to me that while Senator Marshall is skeptical about the ability to negotiate, that doesn’t mean the Senate can’t take a position — in fact, a preemptive position. Maybe you have discussed this already, but we’re either going to say that we can’t do anything or we’re going to say that this is what we’re doing. We could come up with a report and recommendation to the Senate that a BIA that has more than financial measures in it is severable, in our discretion, and that we will leave to the committee and/or the Senate the full discretion, if that should occur, to exercise and split the bill. We notify the House sooner rather than later what the issues are and the rationale behind them, including your suggestion that a BIA that has nonmonetary provisions is probably a tainted bill and is no longer a financial bill and loses its characteristics. There are a lot of subtle elements we can present in a report. If we put it on the table sooner rather than later and still reserve the discretion, the House can’t complain at all later. I mean, they can complain, and then it becomes a political issue, but at least we’ve drawn the line in the sand on the political issue. It’s for this committee and all of our colleagues in the Senate more broadly on where we’ll go and what would happen if we have a new Speaker or a different government.
I would think that if we are determined to kind of deal with this issue, we should table a report that says there is an issue with the BIA and we can split it — more so if it has nonfinancial measures in it. It’s no longer a BIA, and we will more strongly split. We can talk about the process.
I don’t know what the process is from there, if the full Senate accepts it, and whether it becomes a rule change within the Senate on how we deal with BIAs. We fortify a position down the road that we’re not going to stand for it anymore, even though there is some suggestion that there is some precedent and practice. I think we have to deal with this sooner rather than later so that we don’t have to deal with it in the next BIA. What are your thoughts on that? It’s political. I really think it’s political and not technical.
Mr. Robert: It is political, and I’m not going to go there.
To underline something, a practice is not a rule change. If you want to anchor an approach through the rules, you’d have to formulate the rule and have a debate on it, and it has to be adopted formally. We’ve mentioned already that there has been a practice about how you deal with BIAs. The Senate has adapted itself in certain aspects to try and make itself more effective, but none of that is part of the rules; it’s just how you do business.
Senator Fridhandler: I think this been answered. Senator Marshall raised it when she was asking her question, and other colleagues on the committee have also raised it. If a nonfinancial measure is in any way attached to a financial measure, then I think you’ve cautioned that you need to treat it as a financial measure and not a nonfinancial measure. We would have to exercise some judgment there.
Mr. Robert: Again, I tried to explain that we have treated BIAs as if they are part and parcel of the supply process, so we adopt them in the certain time frames that are established for the supply and the estimates. There is no hard and fast obligation to do that. That is a practice you have accepted to follow. The Standing Orders of the House of Commons deal only with supply and the three cycles. They don’t really deal with anything else. In the early rulings of the Speaker when the new practice was put it, he said that if you put in anything legislative, then the deadlines under the financial cycle are off the table. Somehow or another, BIAs have been accepted and incorporated into that deadline framework, and the Senate has accepted to follow suit. Now you’re unhappy with that, and you have received a mandate from the Senate to sort it out.
Senator Pate: I’m sorry I was late, Mr. Robert. I meant no disrespect.
I would be very interested in your views on when nonfinancial measures have been placed in the BIA and subsequently been found to have breached the Constitution, particularly in terms of the Charter of Rights and Freedoms, when it comes to criminal law matters, and whether that would change your views on whether there is another avenue for us to come at this. I apologize if you already covered this.
Mr. Robert: I have not covered it, and I would not be able to answer it. As Senator Loffreda indicated, the bills are rather large. In the time that I was asked to appear before the committee, I had not had any opportunity to study them to see what’s been good or bad in the nonfinancial measures that have been thrown into BIAs. If it happens that they’re not constitutional — well, if the Senate doesn’t pick it up, one hopes that, perhaps, the courts will.
Senator Pate: But it might be an added argument for why we should sever those.
Mr. Robert: If you see something that looks like a breach, absolutely.
Senator Marshall: I’ve never said that there was no solution. I simply said I don’t think the solution lies with the House of Commons.
I looked at Australia. I was looking forward to talking to their Senator Louise Pratt, because it seems to me that their constraints are embedded in legislation, and we’re not going to get any legislation passed in the House of Commons that will restrict their ability to have omnibus bills.
Can you remember — I’m just tapping into your memory — one year when the Finance Committee continued to meet in July because Senator Lowell Murray had an issue with something? We’re always under this constraint to get out of here by the end of June, but that year, we were here well into July.
Mr. Robert: The Senate has actually sat into August.
Senator Marshall: Okay.
Mr. Robert: This might help you a little bit: The business with Australia — and I only looked at it very briefly, so I would not even pretend mastery — but the part that I saw was section 55 of the Australian Constitution. That’s a constitutional provision. It’s more than legislation.
Senator Marshall: We’re not going to get that.
Mr. Robert: The House of Commons has section 54. The numbers are close, but that’s about it.
Senator Marshall: Yes, but it really depends upon the will of the Senate. If we wanted to take more time, that’s one option. I’m not saying that’s the preferred option. We would have to be committed to sitting into July and saying to the government that we’re not finished our review and they’re not getting the bill. That would not be the preferred solution to me, but I think a lot of it goes back to the will of the Senate.
For the division of a budget bill being divided into financial and nonfinancial, I could take a lot of those nonfinancial sections and make an argument that they are financial, because everything comes back to money.
Mr. Robert: Let me give you an alternative solution, if I dare. There are supplementary, interim and final estimates, whatever they are called, but the remainder of the estimates are always adopted by June. The government will not go bankrupt if the BIA isn’t passed by the end of June. If you have difficulty splitting the bill, following what you’ve just said, the Senate can continue to sit and deal with the whole bill. You can deem that the financial provisions that you identify are less important and will not be the focus of your preoccupation in terms of the scrutiny you want to give to the bill. But the ones that you identify as nonfinancial or controversial because perhaps they deal with constitutional or Charter issues that you want to see resolved, then take the time necessary. If it means the whole bill, well, I repeat, fundamentally, the government will not go bankrupt. You have passed supply.
Senator Marshall: There are options for the Senate that don’t involve getting the concurrence of the House of Commons?
Mr. Robert: That’s right. You deal with the entire bill, send it back with amendments or not, and if they have amendments, then you simply say, “We’ve looked at the bill, and this is what we suggest you do to it.” And if you do it during the summer, they wouldn’t be looking at it until September.
Senator Smith: I am just thinking we could have Mr. Robert as our consultant to help us divide —
[Translation]
The Chair: We’ll be able to talk about it on the steering committee of the Committee on Internal Economy.
[English]
Senator MacAdam: I have a general question. We’ve had a great discussion here and a great presentation. Given your extensive experience and your knowledge of how the Senate operates, do you have any recommendations for the committee to consider given our order of reference?
Mr. Robert: I think what you’re doing and how you’re doing it is an open discussion. You’re looking at various options. Really, you’ve had the experience. You’ve lived through the frustration. You have to determine whether there are options available to you to make the exercise more rewarding and less frustrating — more satisfactory. That’s for you to decide.
As Senator Marshall was indicating, all the options are actually on the table. You’ve received a mandate to look at three specifics, but that doesn’t mean you can’t come up with others that might work and might be more effective from your point of view.
The bill will come to you in one way or another. You have the task of going through the bill and being satisfied with the work you are doing. If that takes time, so be it. If you want to divide the bill to assist the government with respect to the process that has been described, well, you can do that. It’s really up to you. You don’t need advice from me. You’re the ones who lived this. I just get to observe.
Senator Loffreda: I like what Senator Marshall said, that even though it’s an omnibus bill, it could be argued that all the clauses are financial. There’s a saying that money isn’t everything, but arguably everything needs money.
Mr. Robert, if the Senate were to change its rules to implement a cut-off date, similar to the standing order in the Australian Senate, how would that be perceived in the House of Commons? Obviously, I understand that we are two separate chambers and our rules don’t apply in the other place; however, would enacting such a rule change be respected by MPs, or might it only be perceived as a strong signal that the Senate will not be forced to rush through budget bills in order to meet government’s expectations? Would it only be seen as the Senate trying to flex its muscle? Would the House completely disregard our way of doing business going forward?
As I mentioned, we have to consider what is best for Canadians and what is best for the country. Many of these policies and measures in the BIAs are of a timely nature. I sponsored the last two BIAs. They’re of a timely nature and of ultimate importance in areas of concern for Canadians. Would Canadians accept that it be delayed for another three, four, five or six months? I don’t mind if we sit into August. I would celebrate my birthday with my Senate colleagues, and it would be wonderful. I never get that opportunity.
Mr. Robert: Let me take this opportunity. There is a bit of brainstorming going on through this process. An idea has popped into my mind that I would like to bring specifically to the attention of Senator Marshall.
The division between nonfinancial and financial can be seen in some ways as a red herring. What I said earlier holds true whether or not you are successful in deciding what clauses in the BIA are financial or nonfinancial.
The Royal Recommendation, which would be the stumbling block when it goes to the House, has not been affected unless you amend the clause. If you don’t amend the clause, you may have decided it’s nonfinancial. The House of Commons may have a different view. But if it’s not amended, the Royal Recommendation is not affected. It’s only when you amend the bill that the door opens that, somehow or another, the Royal Recommendation has been tampered with. Then you end up with an objection that might come from the House.
Do you understand what I’m trying to say?
Senator Loffreda: Yes, for sure.
[Translation]
The Chair: Suppose there was an amendment on the matter and we reduced the financial obligation. It wouldn’t affect the Royal Recommendation?
Mr. Robert: No, because it does not exceed the proposed amount.
The Chair: We are not increasing it. Therefore, even with an amendment, it all depends on the type of amendment?
Mr. Robert: Yes.
The Chair: If it is less onerous, it doesn’t cause a problem.
Mr. Robert: Absolutely. That happens quite often, doesn’t it?
The Chair: Yes.
Mr. Robert: The House does not say you aren’t allowed to do that.
[English]
They do say, in their standing orders or something similar to it, that the bills passed that deal with supply are unalterable. Well, they can say that. When the Senate chooses to amend it, the House of Commons has to come to some kind of an appreciation. That’s why they will, more often than not — we’d have to do a statistical analysis — waive their privileges. But you dare not take this as a precedent until the next time.
Senator Loffreda: The cut-off date, what about that? Would you think that’s a good idea, given that we’re brainstorming here?
Mr. Robert: The problem with the cut-off date is that it assumes the government has control over the time of the House, which it does not have. It would be problematic for the government. It would create awkward situations that might be difficult to resolve between the two chambers.
Senator Loffreda: Thank you.
[Translation]
The Chair: I have one last question just to wrap up. Mr. Robert, I know you meet with the clerks of various parliaments and attend many international conferences where you have a lot of discussions.
Mr. Robert: Yes.
The Chair: Has anyone done a comparative analysis of the practices of the various parliaments in the Commonwealth? I say the Commonwealth, but it could also be any democracy. We know that in the United States, budgets are a nightmare.
Mr. Robert: A nightmare, yes.
The Chair: The votes on both sides are negotiated.
Mr. Robert: The practices are very different.
The Chair: They add a whole shopping list.
Mr. Robert: The question bears asking, but it would be difficult. The best idea would be to go to the various parliaments of the Commonwealth and consult their libraries. Analysts have done studies and instead talk about changes to improve the process involving government finances. We can sometimes learn from other people’s practices.
[English]
In the research that I’m doing now, it’s clear that the procedural history of Canada has depended on imitation and adaptation. We follow closely the development or the evolution, particularly, of the British Parliament at Westminster. In 1968, when we assessed the estimates process, we took the process that had been developed at Westminster. It was successful because on that occasion we both had the same objectives, saving time and making the work of Parliament effective.
[Translation]
An analysis is needed. You have analysts and resources available in the parliaments. They could do an analysis to show how the other parliaments use time to consider the estimates.
The Chair: I gather you haven’t done the analysis, and, to your knowledge, there isn’t one.
Mr. Robert: That could be a topic we discuss, but our discussions are confidential.
The Chair: Thank you. I think we’ve we covered the matter.
Thank you, Mr. Robert. It is always a pleasure to see you again. We haven’t really made a commitment. Therefore, the next meeting will be held after the break, on October 22 at 9 a.m., so that we can continue our work.
Thank you to everyone, to our analysts and the entire team.
(The committee adjourned.)