The Decision-Making Process / Motions and Amendments

December 8, 1992

Debates, pp. 14863-4

On occasion, Parliament has passed legislation which contains provisions requiring the House of Commons and/or the Senate to initiate a debate should some mechanism contained in the statute be triggered. These debates are said to be held pursuant to a statutory order. On December 3, 1992, the Order Paper and Notice Paper contained such a statutory order for consideration of a motion in the names of the Members of the Liberal Party caucus and made pursuant to subsection 7(2) of the Special Economic Measures Act. Statutes of Canada, 1992, Chapter 17. The motion proposed to amend the Special Economic Measures (Haiti) Ships Regulations which had been tabled in the House on September 8, 1992.^[1] The proposed amendment would add a new section to the Regulations requiring the Government of Canada to “urge every member of the Organization of the American States and the United Nations that has adopted measures similar to those set out in the Regulations to implement and enforce those measures.”^[2]

Pursuant to subsection 7(3) of the Act, the motion would be considered no later than Thursday, December 10, 1992, and, pursuant to subsection 7(4) of the same Act, it would be debated, without interruption, no longer than three hours unless a longer period were fixed by the House by unanimous consent. At the expiry of the time provided for debate, all questions necessary to dispose of the motion would be put forthwith.^[3]

Before the commencement of Government Orders on December 8, 1992, Mr. David Dingwall (Cape Breton—East Richmond) rose on a point of order to ask Mr. Jim Edwards (Parliamentary Secretary to the Leader of the Government in the House of Commons) to indicate when the government would be proceeding with debate on the statutory Order appearing on that day’s Order Paper. In reply, Mr. Edwards stated that the proposed amendment was ultra vires the statute. He argued that motions under section 7 of the Act were allowed only in relation to orders and regulations made under section 4 of the Act which did not deal with the relationship between Canada and countries other than the states subject to sanctions. For this reason, he suggested that the proposed amendment appeared to be beyond the scope of the regulation-making power.

The Speaker intervened and advised the House that it was not the appropriate moment to raise the matter. He urged the Parliamentary Secretary and opposition leaders to discuss the matter and then to advise him as quickly as possible as to when they wished to argue whether the motion was properly before the House so that he could set aside time for the discussion.^[4]

Following Oral Questions, Mr. Dingwall rose in the House to request the Chair’s guidance in determining the procedural acceptability of the Statutory Order. He argued that it was not the role of the Speaker to decide on the constitutionality or the substance of the statutory order, only whether the notice was properly given and how the House must proceed to dispose of the matter. Mr. Edwards countered that the Liberal amendment went beyond the scope of the Special Economic Measures (Haiti) Ships Regulations which only authorize the Government to draft regulations dealing with relations between Canada and a sanctioned state, not to commit the country to a particular position on matters of foreign policy concerning third party states. He further argued that if the Speaker were to allow debate on the matter, he would be implicitly giving a legal opinion that the amendment fell within the scope of the Act.^[5]

The Speaker ruled immediately. The full text of the ruling is provided below.

Decision of the Chair

The Speaker: I thank both the honourable Member for Cape Breton—East Richmond and the honourable Parliamentary Secretary.

I am going to remove the Chair from the position in which the Chair finds itself by reminding honourable Members that the Speaker has traditionally never been granted the authority to rule on whether or not a bill introduced into the House of Commons or an amendment introduced into the House of Commons is ultra vires. That is a matter for the courts. As a consequence, I must stay with that position.

I listened carefully to the honourable Parliamentary Secretary who I think with some ingenuity was suggesting that if I ruled otherwise I was implicitly supporting an amendment which might or might not be ultra vires. I certainly respect the honourable Parliamentary Secretary’s ingenuity in putting it that way.

However, I think I must remain with the long tradition which has been supported by many rulings that it is not the place of the Chair to rule on whether or not a bill or as I said earlier, an amendment to a bill, is ultra vires or otherwise.

I would point out that if I were to rule otherwise we could be in the position where any bill that the Government introduces could be challenged by the opposition or by members of the Government as to whether or not it is ultra vires and that would put the Speaker really in the position of the court and beyond the jurisdiction that was ever envisaged for the Speaker.

The consequence of that is that we are in a position where a motion has been filed. We are bound by a statute which says: “Where a motion for the consideration of a House of Parliament is filed in accordance with subsection 2, that House”—in this case that is this House—“shall not later than the sixth sitting day of that House following the filing of the motion take up and consider the motion unless a motion of the like effect has earlier been taken up and is being considered in the other House”, which is not the case.

That is the position we are in. It is up to the House to decide what it is going to do between now and the expiry of the six days which is mentioned in the Bill. We are, of course, bound by that.

I think that is the best I can do to assist the House at this time on this matter.

Debate on the statutory order took place later that day. The motion was negatived on division.^[6]

F0408-e

34-3

1992-12-08