Speaker of the Senate
Speaker’s Ruling – Point of Order by Senator Harder on Instruction to Divide Bill C-44
Honourable senators, I am ready to deal with the point of order raised yesterday by Senator Harder with respect to the motion, moved by Senator Pratte, proposing that the Standing Senate Committee on National Finance divide Bill C-44. Senator Harder’s basic concern was that the adoption of the motion could result in there being two new bills, originating in the Senate, each requiring a Royal Recommendation, instead of just the one that came from the House of Commons.
Bill C-44 is a Budget Implementation Act. If the Senate were to agree to Senator Pratte’s motion, it would start a process whereby the Senate proposes to the House of Commons that there be two bills, where we now have only one. One of the new bills would deal with the proposed Canada Infrastructure Bank, while the other would deal with all other parts of Bill C-44. This type of motion, which empowers a committee to do something it cannot normally do, is called a motion of instruction and requires one day’s notice.
The process for dividing bills is rarely used. The general steps in such cases were recently summarized in the fifth report of the Rules Committee, presented to the Senate on April 6, 2017, and adopted on May 30. As the report notes, the process for dividing bills from the other place must include the Commons’ agreement for the division to actually take effect. The adoption by the Senate of the Rules Committee’s report makes it clear that, in at least some circumstances, we can initiate here in the Senate the division of a C-bill.
After searching the Senate Journals, only two precedents can be found in which the division of a bill has actually advanced beyond the adoption of a motion of instruction.
In 1988, the Senate proposed to divide Bill C-103. The Speaker ruled the motion of instruction out of order because of issues related to the Royal Recommendation. However, the decision was overturned. As a result, the Senate proposed to divide the bill. The House of Commons eventually rejected the proposal as an infringement of its rights and privileges, and the Senate did not insist on the division. The fact that the Speaker’s ruling was overturned does not necessarily invalidate the analysis it contained. It is possible that the Senate simply chose not to apply the results in this situation.
Later, in 2002, the Senate dealt with Bill C-10. The Senate authorized the Legal and Constitutional Affairs Committee to divide the bill. In this case, no point of order was raised, and the motion of instruction was not challenged. The committee eventually reported its proposal as to how to divide the bill, and returned one part – Bill C-10A – to the Senate without amendment. It did not appear that Bill C-10A required a Royal Recommendation, so the issues at play in the current situation were not at the forefront of the Senate’s considerations. The House of Commons was eventually asked to concur in the division of the bill and to agree to Bill C-10A. Although the Commons made clear that they did not consider this a valid precedent, they did agree to the division of the bill and to the passage of Bill C-10A, which then received Royal Assent. The other part – Bill C-10B – was still under consideration when Parliament was prorogued.
Senator Pratte’s motion follows how the Senate has dealt with the division of bills in the past, and certainly reflects the summary provided by the Rules Committee. As such, concerns about the specific mechanics of the process to be followed need not be further considered here.
The real heart of the question is whether, in the case of Bill C-44, the Senate can properly propose the division of the bill. This issue, in turn, is directly tied to the actual nature of Bill C-44. It is a government bill that originated in the House of Commons with a Royal Recommendation. If the bill were to be divided, this would be as a result of a proposal that originated in the Senate, and not from the government. One must ask whether it would be reasonable to still consider the two bills to be government initiatives from the House of Commons.
Far more significant, however, is the matter of the Royal Recommendation. The Rules define the Royal Recommendation as:
The authorization provided in a message of the Governor General for the consideration of a bill approving the spending of public monies proposed in a bill. The Royal Recommendation is provided only by a minister and only in the House of Commons. This requirement is based on section 54 of the Constitution Act, 1867.
Without a Royal Recommendation, a bill appropriating public monies is not properly before Parliament. This fact reflects the fundamental principle that the Crown must agree to proposed expenditures, which first must be considered by the elected house. This principle is part of the foundation of responsible government and helps ensure a coherent fiscal structure. It is given expression in rule 10-7, which establishes that “The Senate shall not proceed with a bill appropriating public money unless the appropriation has been recommended by the Governor General.”
During consideration of the point of order, it was explained that the provisions of Bill C-44 relating to the Canada Infrastructure Bank authorize substantial payments from the Consolidated Revenue Fund. Other elements of the bill also authorize payments from the fund. Therefore, the proposed division of the bill would result in two bills appropriating public money as a result of a Senate initiative. It is difficult to see how this respects either the spirit or the letter of the Rules and basic parliamentary principles.
This does not, and let me emphasize this, mean that the Senate cannot amend a bill in accordance with rules and practice. The Senate can also defeat clauses, and even reject a bill entirely. All these possibilities are, however, substantially different from the Senate initiating steps to create two bills, both of which require the Royal Recommendation, where there was previously only one bill with one recommendation.
Although the motion at issue respects the mechanics for splitting a bill, its adoption would, in effect, result in Senate action initiating two bills, each requiring a Royal Recommendation. For this reason I feel compelled to rule the motion out of order.