The Legislative Process / Stages

Consideration in committee: report to the House; requesting power to expand the scope of a private Member’s bill

May 21, 2013

Debates, pp. 16704–6

On April 25, 2013, Bob Rae (Toronto Centre) rose on a question of privilege with regard to the Eighth Report from the Standing Committee on Citizenship and Immigration, which asked the House to grant the Committee the power to expand the scope of Bill C-425, An Act to amend the Citizenship Act (honouring the Canadian Armed Forces) for the purpose of considering certain amendments. Mr. Rae argued that Standing Order 97.1^[1] provides for only two types of committee reports in relation to private Members’ bills: reports on bills, with or without amendment; and reports to extend the time for consideration of the bill in committee. He also expressed concern about the impact such a way of proceeding could have in that it would allow a majority Government to broaden the scope of a private Member’s bill to drive its own agenda. That being said, Mr. Rae asked that the Speaker rule the Report out of order. The Speaker heard from other Members on that day, on April 30 and on May 9, 2013. On May 9, 2013, Tom Lukiwski (Parliamentary Secretary to the Leader of the Government in the House of Commons) stated that Standing Order 97.1^[2] does not exclude the ability of the House to give instruction to a committee. The Speaker indicated that the matter was to be considered as a point of order rather than a question of privilege.^[3]

Resolution

The Speaker delivered his ruling on the point of order on May 21, 2013. He confirmed that the Subcommittee on Private Members’ Business must determine if a private Member’s bill violates the Constitution, that no further constitutional compliance tests are applied once bills are before the House and that the Speaker has no role in interpreting matters of a constitutional or legal nature. The Speaker stated that the House can in fact grant permission to a committee to expand the scope of a bill, either by way of a motion of instruction or through concurrence in a committee report. However, he noted that committees cannot adopt amendments that run counter to the principle of a bill, and that the Speaker retains the authority to determine the admissibility of amendments adopted in committee, either in response to a point of order or on the Chair’s own initiative. Consequently, the Speaker declared the Eighth Report of the Standing Committee on Citizenship and Immigration to be in order.

Decision of the Chair

The Speaker: Before moving on to questions and comments, I am now prepared to rule on the point of order raised on April 25 by the hon. Member for Toronto Centre regarding the Eighth Report of the Standing Committee on Citizenship and Immigration, recommending that the scope of Bill C-425, An Act to amend the Citizenship Act (honouring the Canadian Armed Forces), be expanded.

I would like to thank the hon. Member for Toronto Centre for having raised this issue, and the hon. Leader of the Government in the House of Commons, the hon. House Leader of the Official Opposition, the Parliamentary Secretary to the Minister of Citizenship and Immigration, the Parliamentary Secretary to the Leader of the Government in the House of Commons, and the Members for Winnipeg North, Saint-Lambert and Calgary Northeast for their interventions.

In raising this matter, the hon. Member for Toronto Centre explained that during its consideration of Bill C-425, the Standing Committee on Citizenship and Immigration adopted a motion recommending that the House grant the Committee the power to expand the scope of the Bill in order to allow for the consideration of what he called “amendments that the Minister of Citizenship, Immigration and Multiculturalism has asked be added to the list”.

This led to the presentation on April 23, 2013, of the Committee’s Eighth Report. He found this approach to be problematic in two respects. First, he argued that pursuant to Standing Order 97.1,^[4] committees examining private Members’ bills are restricted as to the types of reports they can present to the House. He argued essentially that since the Eighth Report falls outside these parameters, it is out of order.

His second argument centred on the impact such a manner of proceeding could have. Specifically, he expressed concern that if committees examining private Members’ bills were to be allowed latitude to proceed in this fashion, the effect of this practice “will be that the Government could, by extrapolation, even add an omnibus feature to a private Member’s bill and say it is using its majority to add everything, the whole kitchen sink, into the measure.”

The Government House Leader explained that, in view of the differences of opinion expressed in the Committee as to whether the amendments proposed were within the scope of the Bill, the Committee was seeking guidance from the House on the matter. In making this observation, he pointed out that this process would result in a number of hours of debate in the House on the Committee Report before a decision was taken.

In his presentation the Parliamentary Secretary to the Leader of the Government in the House of Commons argued that Standing Order 97.1^[5] does not preclude a committee from seeking an instruction from the House in relation to a private Member’s bill. He further explained that the Committee remains seized of Bill C-425 and that its Eighth Report in no way supersedes the 60-sitting-day deadline to report the Bill back to the House.

At the outset the Chair wishes to clarify what appear to be certain misconceptions about the nature of private Members’ bills.

The first of these has to do with the arguments made by the House Leader for the Official Opposition and the Member for Saint-Lambert in reference to the constitutional compliance of legislation sponsored by private Members.

As pointed out by the Member for Saint-Lambert, constitutional compliance is among the criteria used by the Subcommittee on Private Members’ Business to determine non-votability of private Members’ bills. House of Commons Procedure and Practice, Second Edition, describes these criteria at page 1130, including one requirement that “bills and motions must not clearly violate the Constitution Acts, 1867 to 1982, including the Canadian Charter of Rights and Freedoms”.

The Chair is not aware of further constitutional compliance tests that are applied to any kind of legislation, whether sponsored by the Government or by private Members, once bills are before the House or its committees. In addition, hon. Members will recall that in a recent ruling delivered on March 27, I reminded the House that as Speaker I have no role in interpreting matters of a constitutional or legal nature.

Another apparent source of confusion has to do with the difference between private bills and public bills. Virtually all the bills that come before the House are public bills, whether they are sponsored by private Members or by the Government.

As O’Brien and Bosc explains at page 1178:

Private bills must not be confused with private Members’ bills. Although private bills are sponsored by private Members, the term “private Member’s bill” refers only to public bills dealing with a matter of public policy introduced by Members who are not Ministers.

Thus both Government and private Members’ bills are subject to the same basic legislative process, namely introduction and first reading, second reading, committee stage, report stage and, finally, third reading. At the same time, the House has seen fit to devise specific procedures for dealing with public bills sponsored by the Government and private Members alike.

For example, Standing Order 73^[6] allows the Government to propose that a Government bill be referred to committee before second reading after a five-hour debate. The purpose of this rule is to allow greater flexibility to Members in committee by enabling them to propose amendments to alter the scope of the measure.

The procedures in place for dealing with private Members’ bills are likewise many layered, and have evolved in response to particular situations faced by the House in the past. This is the case with the provision for a maximum of two hours of debate at second reading, which came about to allow the House to consider more items and thus to allow more private Members to have their measures considered. Similarly, Standing Order 97.1^[7] was originally brought in to ensure that private Members’ bills referred to committee would be returned to the House and to the order of precedence in a timely fashion.

In the present case, it appears to the Chair that the essence of the procedural question before me is to determine whether the House has the power to grant permission to a committee to expand the scope of a private Member’s bill after that scope has been agreed to by the House at second reading and, if so, whether this can be achieved by way of a committee report.

House of Commons Procedure and Practice, Second Edition, is helpful in this regard. It states at page 752:

Once a bill has been referred to a committee, the House may instruct the committee by way of a motion authorizing what would otherwise be beyond its powers, such as, for example, examining a portion of a bill and reporting it separately, examining certain items in particular, dividing a bill into more than one bill, consolidating two or more bills into a single bill, or expanding or narrowing the scope or application of a bill.

Clearly then, by way of a motion of instruction, the House can grant a committee the power to expand the scope of a bill, be it a Government bill or a private Member’s bill. An example can be found at page 289 of the Journals for April 27, 2010, where an opposition Member moved a motion of instruction related to a Government bill.

Having established that the House does have the authority to grant permission to a committee to expand the scope of a bill through a motion of instruction, the question becomes whether a committee report is also a procedurally valid way to achieve the same result.

The Member for Toronto Centre is correct in saying that the explicit authority to present this type of report is not found in Standing Order 97.1,^[8] which exists to oblige committees to respect deadlines for reporting back to the House on private Members’ bills. In that respect, Standing Order 97.1^[9] continues to apply.

However, Standing Order 108(1)(a)^[10] does grant committees this power under their more general mandate to:

examine and enquire into all such matters as may be referred to them by the House [and] to report from time to time.

In describing the three broad categories of reports that standing committees normally present, O’Brien and Bosc, at page 985, describes administrative and procedural reports as those:

in which standing committees ask the House for special permission or additional powers, or those that deal with a matter of privilege or procedure arising from committee proceedings.

An example of a committee reporting on a matter related to a bill may be found in the Journals of April 29, 2008, where, in its Sixth Report, the Standing Committee on Environment and Sustainable Development felt compelled to provide reasons why it did not complete the study of a particular private Member’s bill.

Finally, O’Brien and Bosc, at page 752, further states:

A committee that so wishes may also seek an instruction from the House.

This undoubtedly could be done only through the presentation of a committee report to the House.

What this confirms is that the authority of the House to grant permission to a committee to expand the scope of a bill can be sought and secured, either through a motion of instruction or through concurrence in a committee report.

O’Brien and Bosc summarizes this well at page 992 [and 993]:

If a standing, legislative or special committee requires additional powers, they may be conferred on the committee by an order of the House—by far the most common approach—or by concurrence in a committee report requesting the conferring of those powers.

Later, O’Brien and Bosc explain, at page 1075:

Recommendations in committee reports are normally drafted in the form of motions so that, if the reports are concurred in, the recommendations become clear orders or resolutions of the House.

Just as the adoption of a motion of instruction to a committee would become an order of the House, so too would the adoption of a committee report requesting the permission of the House to expand the scope of a bill.

Of course, it has always been the case that instructions to a committee must be in proper form. According to O’Brien and Bosc, at page 754, such instructions must be “worded in such a way that the committee will clearly understand what the House wants”.

It is nevertheless clear to the Chair that there is genuine disquiet about the impact of this attempted procedural course of action. The Chair is not deaf to those concerns and, in that light, wishes to reassure the House that this manner of proceedings does not obviate the need for committees to observe all the usual rules governing the admissibility of amendments to the clauses of a bill, which are described in detail at pages 766 to [771] of House of Commons Procedure and Practice, Second Edition.

In particular, granting a committee permission to expand the scope of a bill does not, ipso facto, grant it permission to adopt amendments that run counter to its principle. Were a committee to report a bill to the House containing inadmissible amendments, O’Brien and Bosc at page 775 states:

The admissibility of those amendments, and of any other amendments made by a committee, may therefore be challenged on procedural grounds when the House resumes its consideration of the bill at report stage. The admissibility of the amendments is then determined by the Speaker of the House, whether in response to a point of order or on his or her own initiative.

For all of the reasons outlined, I must conclude that the Eighth Report of the Standing Committee on Citizenship and Immigration is in order. I thank all hon. Members for their attention.

Postscript

Five motions for concurrence in the Eighth Report of the Standing Committee on Citizenship and Immigration were placed on the Notice Paper. The motions were never debated, and the Report was never adopted by the House. On June 18, 2013, by unanimous consent, Bill C-425 was deemed reported by the Committee without amendment. On February 26, 2014, by unanimous consent, the order for consideration at report stage of Bill C-425 was discharged and the Bill withdrawn.^[11]