Private Members’ Business / Financial Limitations

Royal recommendation: bill seeking to expand the eligibility period for maternity benefits without new expenditures

December 6, 2016

Debates, pp. 7684–5

On April 11, 2016, in a statement regarding Private Members’ Business, the Speaker indicated that spending provisions contemplated by two bills in the order of precedence infringed upon the financial prerogative of the Crown, and encouraged members wishing to make arguments regarding the requirement for a royal recommendation for these bills to do so at the earliest opportunity.^[1] One of the bills, Bill C-243, an act respecting the development of a national maternity assistance program strategy and amending the Employment Insurance Act (maternity benefits), standing in the name of Mark Gerretsen (Kingston and the Islands), sought to amend the Employment Insurance Act to expand the window of time in which existing maternity benefits could be taken if a woman worked in a hazardous job that posed a risk to her maternal health. On November 23, 2016, Mr. Gerretsen argued that his bill did not require a royal recommendation since it did not change the eligibility requirements under the Employment Insurance Act or increase the total amount or period of maternity benefits and that it therefore would not introduce new and distinct expenditures.^[2] On November 25, 2016, Kevin Lamoureux (Parliamentary Secretary to the Leader of the Government in the House of Commons) stated that by altering the qualifying period for maternity benefits, the bill amended the terms and conditions of the original royal recommendation and consequently that a new royal recommendation would be required.^[3] The Speaker took the matter under advisement.

Resolution

On December 6, 2016, the Speaker delivered his ruling. He stated that a royal recommendation specified not only how public funds were appropriated but also the objects, purposes and conditions of that appropriation. He said that, by introducing the concept of safety of the workplace during pregnancy, Bill C-243 was amending the benefit conditions set out in the initial royal recommendation. The Speaker found, therefore, that a new royal recommendation would be necessary before the question on third reading of the bill could be put.

Decision of the Chair

The Speaker: I am now prepared to rule on the point of order raised on November 23, 2016, by the hon. member for Kingston and the Islands concerning the requirement for a royal recommendation for Bill C-243, an act respecting the development of a national maternity assistance program strategy and amending the Employment Insurance Act (maternity benefits), standing in his name.

I would like to thank the hon. member for Kingston and the Islands for having raised this important matter as well as the hon. Parliamentary Secretary to the Leader of the Government in the House of Commons, the hon. member for Essex, the hon. member for Cambridge, and the hon. member for Perth—Wellington for their comments.

This bill is intended to provide for the development and implementation of a national maternity assistance program strategy and to amend the Employment Insurance Act. It is the latter portion of the bill that is at issue in the present case.

The purpose of clauses 6 and 7 of the bill is to allow a pregnant woman to claim employment insurance benefits if she has obtained a certificate, completed by a medical doctor, attesting that she is unable to perform the duties of her regular or usual employment or of other suitable employment, because the job functions may pose a risk to her health or to that of her unborn child.

Under the present regime of the Employment Insurance Act, any pregnant woman could have access to pregnancy benefits for a total of 15 weeks starting, at the earliest, eight weeks before her due date. The decision on when to begin receiving benefits is entirely up to the applicant, and the act is silent as to any governing reasons or criteria. The bill would provide access to these benefits starting 15 weeks before the due date if there is a health risk due to the claimant’s work environment.

In other words, the claimant, instead of claiming eight weeks of benefits before her baby was born and seven weeks after, could claim the entire 15 weeks prior to the birth of the child.

The member for Kingston and the Islands argued that Bill C-243 does not need a royal recommendation, since the effect of the bill would not result in an increase of the amount of benefits paid or an increase of the benefit period or of the number of weeks an individual is entitled to claim, nor would it change the eligibility requirements to make employment insurance benefits accessible to more claimants.

Since the bill would simply shift the existing entitlements, any cost associated with the changes would be merely operational. His central argument was that protecting maternal health is already a function of maternity benefits, and since the bill aims at achieving the same result through existing entitlements, it cannot be considered to be creating a new function.

He went on to indicate that since “applicants are already permitted to take benefits during their pregnancy, up to eight weeks prior to their due date, [it] is strong evidence that maternal health and maintaining a safe pregnancy are existing purposes of maternity benefits.”

The member for Essex, the member for Cambridge, and the member for Perth—Wellington indicated in their interventions that they supported these arguments.

The parliamentary secretary to the government House leader argued that the royal recommendation attached to the Employment Insurance Act covers not only the charges envisioned by the act but also the terms and conditions of each benefit. He stated that “altering when a person is eligible to receive a benefit under the Employment Insurance Act, even if the change to the benefit would not increase the overall charge, would constitute an alteration to the terms and conditions”.

House of Commons Procedure and Practice, Second Edition, at page 834 states that:

A royal recommendation not only fixes the allowable charge, but also its objects, purposes, conditions and qualifications. For this reason, a royal recommendation is required not only in the case where money is being appropriated, but also in the case where the authorization to spend for a specific purpose is significantly altered. Without a royal recommendation, a bill that either increases the amount of an appropriation, or extends its objects, purposes, conditions and qualifications is inadmissible on the grounds that it infringes on the Crown’s financial initiative.

In the present case, it is clear, as the sponsor of the bill argued, that there is no increase in the overall amount of benefits. The shifting of the time period would have no bearing on the total amount of money disbursed.

However, in these matters, the cost is not the only factor. The question for the Chair is whether or not the changes proposed would significantly alter the objects, purposes, conditions, and qualifications of the benefits such that they would require a royal recommendation.

On May 8, 2008, Speaker Milliken delivered a ruling that can be found at page 5587 of Debates, on Bill C-490, an act to amend the Old Age Security Act (application for supplement, retroactive payments and other amendments). While the bill clearly provided for increases in supplements, it also made changes in the manner in which people applied for benefits and the extent to which qualified persons could claim benefits retroactively. In Speaker Milliken’s view, this:

… would alter the conditions and qualifications that were originally placed on public spending on old age security payments when those benefits were approved by Parliament.

As I have reminded the House on a number of occasions, funds may only be appropriated by Parliament in the manner and, as explicitly stated in Standing Order 79(1), for purposes covered by a royal recommendation.

In this case, Bill C-243 does not impose any new charge on the public treasury but creates a new set of conditions, relating to the safety of their workplace for their pregnancy, under which pregnant women could have access to benefits related to their pregnancy from as early as 15 weeks before the birth of their child. Though the sponsor of the bill argues otherwise, the Chair is not convinced that the current act allows spending under the circumstances, in the manner, and for the purposes he proposes. This being a circumstance not yet envisioned in the Employment Insurance Act, it infringes on the terms and conditions of the initial royal recommendation that accompanied that act and therefore requires now a new royal recommendation. This remains the case, even if the total amount of benefits stays the same.

Consequently, the Chair will decline to put the question on third reading of the bill in its present form unless a royal recommendation is received.

I thank hon. members for their attention.

Postscript

On May 29, 2017, the Speaker made a statement to inform the House that, after careful consideration of the amendments made to the bill as reported by the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities, the Chair confirmed that the bill, as amended, no longer required royal recommendation.^[4]