Financial Procedures / Supply

Request for supply omitted from the Throne Speech: designation of a continuing order for the business of Supply; use of Governor General’s Special Warrants while Parliament stands adjourned; Speaker does not rule on constitutional or legal matters; privileges of Members concerning Supply process not breached

May 2, 1989

Debates, pp. 1175-9

On April 6, 1989, after having given the Speaker notice the previous day, Mr. Peter Milliken (Kingston and the Islands) rose on a question of privilege to allege that there had been a breach of all members’ privileges in that the Governor General had omitted to ask the House for supply in the Throne Speech of Monday, April 3, 1989. Mr. Milliken argued that as a result of this omission, and because the primordial role of the House of Commons in financial matters had been ignored, the Government had no valid grounds for asking the House to designate a continuing order for the business of Supply.^[1] Moreover, Mr. Milliken said he feared that the Government intended to rely on Governor General’s special warrants, which are permitted by virtue of section 30 of the Financial Administration Act when the House is not sitting, instead of having spending estimates examined and approved by Parliament. Hon. Doug Lewis (Minister of Justice and Attorney General of Canada) said that the House should not hear this question of privilege because it had not been raised at the first possible opportunity. He asserted that the question should have been raised on Tuesday, April 4, 1989, when the House voted unanimously on a motion respecting the business of Supply for the calendar year 1989.^[2] Other Members also intervened in the matter.^[3] The Speaker reserved his judgement and on May 2, 1989, returned to the House to deliver his decision which is reproduced in extenso below.

Decision of the Chair

The Speaker: I am now ready to rule on the arguments presented several days ago with respect to the Question of Privilege relating to the supply process. On April 6, after giving the Chair the required written notice, the honourable Member for(Kingston and the Islands) and the honourable member for Glengarry—Prescott—Russell (Mr. Don Boudria) rose in the House to argue a case of privilege.

The honourable Member for(Kingston and the Islands) claimed that the ancient rights of Members of Parliament have been denied in so far as the granting or withholding of Supply. I quote from page 177 of Hansard:

Why did we move to consider the Business of Supply when no supply had been requested from Her Excellency, the Governor General, at the opening of the session?

Both he and the honourable Member for Glengarry—Prescott—Russell also expressed serious reservations as to the use of Governor General’s warrants by the government as it is their view that such use of warrants has superseded the usual Supply process.

During the discussion on this question of privilege, the honourable Member for Kamloops (Mr. Nelson Riis) also rose in support of the contention that the rights of the House had been breached. In reply, the honourable Minister of Justice and Attorney General argued that the question of privilege had not been raised at the first opportunity available. He indicated that all of the requirements of the Financial Administration Act had been met by the Government.

Before I get into the substantive issues on Supply, I would briefly like to address the matter of whether this question was brought forward within a reasonable period of time as required by our practices. The honourable Members for(Kingston and the Islands) and for Glengarry—Prescott—Russell gave the Chair written notice on April 5 that they would be raising a question of privilege. Since one of their complaints arose as a result of apparent omissions in the Speech from the Throne which was read on April 3, the very earliest occasion that they could have raised the matter was on April 4. On that day, by agreement, the House only heard two short speeches before adjourning. In fairness to all honourable Members, I have to conclude that notice was given at a reasonably early opportunity.

I wish to remind honourable Members that questions of privilege must be raised in a timely fashion. If a matter is so serious that the privileges of this House must be invoked, then it stands to reason that the practice of bringing these matters to the attention of the House at an early opportunity must be respected. In the present submission, I feel that the practice has been respected.

Since the business of Supply is a complex procedure and since many of the new Members have not yet had an opportunity to examine its components, I feel that this would be an appropriate time to briefly review certain aspects of the Supply process.

The business of approving the spending plans of the Government is one of the major responsibilities of Parliament. The process by which the Government submits its projected annual expenditures for parliamentary approval is known as the Supply process. Once Supply is granted, the Government can draw on the Consolidated Revenue Fund to meet its financial obligations.

The basic principle supporting the Supply process is that the Sovereign, or the Crown, is charged with the management of all payments for Public Service. The Crown acting on the advice of its responsible ministers makes known to the Commons the pecuniary needs of the Government; the Commons, in return, grants such supplies as are needed to satisfy these demands.

The House of Commons has an important role to play in this complicated process. It is in the Commons where the Government’s projected expenditures—known as the “Estimates”—are first tabled and the legislation to implement the estimates—known as the Appropriation Bill—is introduced. Section 53 of the Constitution Act, 1867 stipulates that all financial legislation, and this includes Government expenditures, must originate in the House of Commons. This requirement is reaffirmed in the Commons’ own rules of procedure, more specifically Standing Order 80(1), a point which was clearly referred to by honourable Members the other day.

As a result of the fact that Main Estimates for the upcoming fiscal year are usually adopted at the end of June, the Government could be without funds from the beginning of the fiscal year in April to the end of June. The rules accordingly provide for the Government to request an advance against the Main Estimates which is known as Interim Supply. From time to time during a session, the Government may also require additional funds which are introduced by way of Supplementary Estimates.

During lengthy periods when Parliament is dissolved or prorogued, an urgent need for funds may occur. Under special conditions, provided for in the Financial Administration Act, the Government may draw on the Consolidated Revenue Fund after a special warrant has been signed by the Governor General. Unlike interim supply and supplementary estimates, the use of Special Warrants is not a routine matter and the Government is required to inform the House, after the fact, when the warrants are tabled. Subsequently the supply granted by the Governor General will be included in the first supply Bill for scrutiny and approval by the House.

Now to address the specific points raised by honourable Members in their question of privilege of April 6.

The first point refers to the fact that in the Speech from the Throne, the Governor General neglected to request the House to appropriate the funds required to carry on the services and expenditures of her Government. Because of this omission, it was argued that the Government could not and should not have asked the House to designate a continuing Order for Supply.

If I may refer honourable Members to the operative Standing Order.

Standing Order 81(1) states:

At the commencement of each session, the House shall designate, by motion, a continuing Order of the Day for the consideration of the business of supply.

Honourable Members will note that the Standing Orders use the word “shall” and no specific mention is made in this Standing Order about the necessity of having a request in the Speech from the Throne to appropriate funds. If I may draw your attention to the commentary found in the Annotated Standing Orders relating to Standing Order 81(1), page 250, it reads as follows:

During the Speech from the Throne at the start of each session, the Governor General traditionally addresses the House and says, “You will be asked to appropriate the funds required to carry on the services and expenditures authorized by Parliament”.

I would like to stress the use of the word “traditionally”. As the honourable Member for(Kingston and the Islands) himself pointed out, there have been occasions when the Governor General has neglected to read this traditional phrase in the Speech from the Throne. He specifically referred to two previous cases: September 8, 1930 and December 12, 1988. A careful review of all Speeches from the Throne since 1867 has revealed that there were two other such cases, namely: January 25, 1940 and October 9, 1951. The case of 1951 is of particular interest to the Chair because while no reference was made to Supply in the Speech from the Throne, the House did appoint a Committee of Supply.

The Chair appreciates the comments made by the honourable Member but wishes to point out to the House that the Standing Orders do not specify that a request for funds appear in the Speech from the Throne prior to designating a continuing Order of the Day for Supply. As the Annotated Standing Orders explains, this phrase is a tradition but not a requirement of the Standing Orders.

Procedurally speaking, the Government is obligated to act in accordance with the terms of Standing Order 81(1) and I must therefore conclude that the Government has respected the rules of the House in designating a continuing Order of the Day for the consideration of supply.

The Chair would now like to turn its attention to the next issue raised by the honourable Members relating to the use of Governor General warrants.

Many people are puzzled as to the nature of these Warrants. To begin with, I would like to point out a difficulty we are encountering in the use of terms; there are Governor General Warrants and Governor General Special Warrants. Governor General warrants as described in Section 28 of the Financial Administration Act are used frequently. Every time that Parliament adopts an appropriation Bill and Royal Assent is given, the Governor General must then sign a Warrant before the Government can draw on the Consolidated Revenue Fund.

Governor General special warrants are different. When Parliament is not in session and a payment is urgently required for the public good, the Governor in Council may, by order, direct the preparation of a special warrant to be signed by the Governor General authorizing a payment to be made out of the Consolidated Revenue Fund if there is no other appropriation pursuant to which the payment may be made. This is in accordance with Section 30 of the Financial Administration Act. The Minister of Justice when participating in the debate on the question of privilege, was quick to point out that the Government, in issuing the present Special Warrants, did so precisely because of the three conditions just mentioned.

Special Warrants make it possible for the work of Government to continue even though Parliament is not sitting, and the Supply process has not been completed, or begun anew. Special warrants may be used to pay the Crown’s bills from the time of dissolution until the new Parliament has met or during prorogation and adjournment periods, so long as the terms and conditions of the Financial Administration Act are met and respected by the Government.

According to the Financial Administration Act, every Special Warrant is to be published in the Canada Gazette within 30 days after it is issued. Within 15 days after the commencement of the next session of Parliament, the Government must also table in the House of Commons a statement showing what Special Warrants were issued.

Moreover, the amounts appropriated by special warrants are to be included in the next Supply Bill so that the payments made by Special Warrant will come before the House for review and decision.

The honourable Member for(Kingston and the Islands) suggested that Special Warrants can only be used during the dissolution of Parliament. His colleague, the honourable Member for Glengarry—Prescott—Russell, made reference to 10 occasions when special warrants were used during this period. According to John Stewart’s 1977 book, The Canadian House of Commons: Procedure and Reform,^[4] there are 12 instances where special warrants were used. Since 1977, we have found three other such occasions, for a total of 15.

The honourable Member for Glengarry—Prescott—Russell referred to the fact that the only time that a Special Warrant was used outside of an electoral period was to repair the roof of the first Parliament building in the 1890s. This Act was first adopted in 1878 under the title An Act to Provide for the Better Auditing of the Public Accounts. In Section [32(2)] of that Act we read:

If, when Parliament is not in session, any accident happens to any public work or building which requires an immediate outlay for the repair thereof…the Governor in Council may order a special warrant to be prepared…

It is important to note the phrase, “when Parliament is not in session”. During the early years following Confederation, Parliament only sat for a few months of each year. As time went on, the business of Government became more involved and Parliament met more frequently. In 1951, an amendment to the Financial Administration Act actually defined what was meant by the phrase, “when Parliament is not in session”. Further amendments were made to that definition in 1958 and this resulted in the version we have today, namely: “Parliament shall be deemed to be not in session when it is under adjournment sine die or to a day more than two weeks after the day the Governor in Council made the order directing the preparation of the special warrant”^[5].

This part of the Act clearly states that a special warrant may be issued during periods when Parliament has been dissolved for an election, prorogued or during periods when Parliament is adjourned for a lengthy period. Honourable Members may be quite correct in stating that all previous special warrants (except for one) were issued after Parliament was dissolved for an election, but if one reads the Act itself, there is no inference that the words “not in session” were to be restricted to dissolution periods. It is an indisputable fact that when both Houses are in a state of prorogation, Parliament is “not in session”.

All this being said, the Chair must now decide whether or not the matters raised by the honourable Members constitute a prima facie question of privilege. The Opposition contends that the Government has been using the Financial Administration Act to circumvent the traditions and conventions of the supply process. The Government argues that the provisions of the Act have been followed, an Act validly passed by Parliament.

Having just explained the provisions of the Financial Administration Act in the matter of Special Warrants, the Chair finds itself in an awkward position for I do not want the House to misconstrue these comments as anything other than background for the information of all honourable Members. The question of whether or not the terms of the Financial Administration Act have been respected in this instance is not a matter that was raised in the arguments put forward on April 6, nor indeed is it a matter upon which the Chair would be in a position to rule.

The Chair has no authority to venture beyond the realm of parliamentary practice and procedure into questions of law.

The honourable Members for(Kingston and the Islands) and for Glengarry—Prescott—Russell argue that conventions in our Constitution have been breached in this instance. The Chair wishes to restate what my predecessors have so often reminded the House, that the Speaker has no role in interpreting matters of either a constitutional or legal nature. Let me quote Citations 117(6) and 240 from Beauchesne Fifth Edition:

117.(6) The Speaker will not give a decision upon a constitutional question nor decide a question of law, though the same may be raised on a point of order or privilege.

240. The Speaker will not give a decision upon a constitutional question nor decide a question of law, though the same may be raised on a point of order or privilege.

In addition, let me refer to a decision of Mr. Speaker Lamoureux of July 8, 1969, on [pages 1319-20] of the Journals where he says:

I have had occasion in the past to indicate that it is not the responsibility of the Chair to rule on questions of law or on constitutional questions. This ruling has been made in many instances by previous Speakers. I should like, if honourable Members would allow me to do so, to quote at this time a ruling made by the Deputy Speaker on Friday, October 25, 1963. It reviews some of the authorities on this point: “I have listened with much interest to the argument made by the honourable and learned Member for Rosedale (Mr. Macdonald). I gather the essence of the argument he submits now is that the bill should not be considered, that it is out of order because it is ultra vires the Parliament of Canada. My submission at this time is that it should not be the responsibility of the Chair to rule whether a particular bill or particular piece of legislation submitted to Parliament is or is not within the competence of this House.”

The reason for these citations are straightforward. The Speaker should not sit in judgment on constitutional or legal matters. That role belongs more properly to the courts and the administration of justice. Previous Speakers have been very careful in strictly addressing themselves to matters of a parliamentary or procedural nature while avoiding dealing with constitutional or legal matters. Similarly, in this instance, the Chair must restrict its examination to the question of a possible infraction of the Standing Orders.

After studying the circumstances of this case to determine whether the ancient rights of Members of Parliament have been denied in relation to the granting or withholding of supplies, the Chair concludes that the Government has respected all of the procedures required by the House. As the honourable Member for(Kingston and the Islands) has himself said, the House will have an opportunity to pronounce itself on the moneys found in the Special Warrants when the House votes on the next appropriation Bill.

While Members may complain that they do not have an opportunity to examine these expenditures before they have been allotted, the very nature of special warrants calls for the approval of the House after the fact. The cure for that complaint lies more properly within the legislative process by amending the Financial Administration Act to the greater satisfaction of the majority of Members in the House. As to the argument that the law has been breached, honourable Members have other avenues available to them to demonstrate and establish those facts.

After considerable reflection, the Chair finds that no Standing Orders have been contravened, and it has not been demonstrated that a prima facie breach of a Member’s privilege has occurred.

I want to thank honourable Members for raising the matter which is of course fascinating to all of us in this House and to all of us who follow parliamentary traditions and conventions.

I must point out that the response of the Chair has been lengthy but in my view the arguments presented to the Chair were worthy of very serious and lengthy consideration. I thank honourable Members.

F0602-e

34-2

1989-05-02