The Legislative Process / Miscellaneous

June 8, 1988

Debates, pp. 16252, 16255-8

In 1988, the Government proposed to introduce legislation to implement the Canada-United States Free Trade Agreement. From the time that notice of a Ways and Means motion was given until the debate at second reading began, several Members raised points of order concerning, among other issues, the admissibility of the Ways and Means motion, the need for the bill to be introduced prior to first reading, the nature of an omnibus bill, the long title of the bill and the fact that the bill amended other bills which were still before the House. A lengthy procedural debate took place and after hearing arguments from Members over several days, on June 8, 1988, the Speaker rendered an extensive ruling on the points raised throughout the various debates.

Among the points raised:

On May 18, 1988, Mr. Nelson Riis (Kamloops—Shuswap) rose on a point of order to assert that the Government was not required to table a notice of a Ways and Means motion for implementation of the Free Trade Agreement between Canada and the United States since the proposed amendments in no way increased the charge on the taxpayer and because such a motion might restrict Members’ ability to amend the bill based on the said motion.^[1] After stating that the Standing Orders clearly authorized the Minister to table a notice of a Ways and Means motion, the Speaker took the matter under advisement. On May 19, 1988, the Speaker heard other comments and ruled that it would be premature to deliver a ruling without seeing the contents of the bill.^[2] Although he put the question on the Ways and Means motion (notice of which had been given during the previous sitting), he indicated that did not mean he might not have further observations to make on the matter.

On May 24, immediately before putting the question on the motion for first reading and printing of Bill C-130, An Act to implement the Free Trade Agreement between Canada and the United States of America, Mr. Jean-Robert Gauthier (Ottawa—Vanier) rose on a point of order to argue that the Government was wrong in not asking leave to introduce the Bill even though a Ways and Means motion had been agreed to, since the Bill was also accompanied by a Royal Recommendation.^[3] The Speaker indicated that he would look into the matter carefully but that in the interests of the House, and to allow for the criticism put forward by the Opposition, he would proceed immediately with a vote on the introduction of the Bill, followed, if necessary, by a vote on the motion for first reading and printing of the Bill.

On May 30, as a consequence of an understanding between the Government and Opposition Members, a wide-ranging procedural debate was held on the admissibility of Bill C-130.^[4] The Hon. Herb Gray (Windsor West) rose on a point of order to discuss the first of a series of points regarding Bill C-130. His first argument was that the Bill was not an acceptable omnibus bill since the Bill attempted to amend 27 existing federal laws and that the Bill was of an “unacceptable omnibus nature, and cannot be proceeded with in this House in its present form and instead must be withdrawn.”^[5] Mr. Gray also raised concerns about the long title of the Bill, which, in his opinion, should have included a reference to all 27 statutes that were to be amended by the legislation. Mr. Gray, and other Members, argued that as the long title did not contain references to the other statutes, the opportunity for Members to amend the legislation would be limited.^[6] The Hon. Doug Lewis (Minister of State and Minister of State (Treasury Board)), on behalf of the Government, stated that the Bill was a true omnibus bill as there was a single overriding principle, that of the implementation of the free trade agreement.^[7]

On June 1, the Speaker continued to hear comments concerning the omnibus nature and long title of the Bill.^[8] Following completion of remarks on these issues, Mr. Gray then continued his point of order regarding the admissibility of the Bill by expressing concern over the transition section of the Bill and the improper use of Bill C-130 to amend bills still before the House.^[9] He argued that since Bill C-130 was seeking to amend bills that had not yet been adopted, the Bill was not in order.

The Speaker took the matters under advisement and on June 8 rendered an extensive decision which addressed each of the points brought up during the course of the debate. That portion of his ruling dealing with the Ways and Means motion attached to the Bill and the vote on the introduction of the Bill can be found in Chapter 6 on page XX. Reproduced below are the segments of his ruling detailing his reasoning on the omnibus nature of the Bill, the insufficiency of detail in its long title, and the acceptability of a Bill amending another Bill currently before the House.

Decision of the Chair

The Speaker: I am now ready to rule on the arguments given some days ago with respect to Bill C-130. In my view, they were excellent arguments.

I wish to advise honourable Members that the Chair has reviewed all of the points of order relating to Bill C-130, An Act to implement the Free Trade Agreement between Canada and the United States of America. These points of order were raised by several honourable Members on May 18, May 19, [May 24], May 30, and again on June 1…

The arguments relate to five general themes: first, the acceptability of the Ways and Means motion relating to the Bill; second, the requirement for asking the House for leave to introduce a Bill based on the Ways and Means motion already adopted when a Royal Recommendation is attached to the Bill; third, the omnibus nature of the Bill; fourth, the fact that the title of the Bill does not list all the statutes to be amended by the Bill; and fifth, the issue that Bill C-130, the free trade Bill, seeks to amend certain Bills which have yet to be passed by the House or receive Royal Assent.

The Chair has decided to deal with the points of order from a thematic point of view for the sake of clarity I should like to deal with the arguments that relate to the omnibus nature of Bill C-130.

The honourable Members for Windsor West, Winnipeg—Fort Garry (Mr. Lloyd Axworthy), and Kamloops—Shuswap argued on May 30 that Bill C-130, because it seeks to amend 27 statutes, has gone, in the words of Speaker Lamoureux, “beyond what is acceptable from a strictly parliamentary standpoint”.

The honourable Member for Windsor West suggested that the ruling of Speaker Sauvé in 1982 relating to the Energy Security Bill should not be used as guidance because it was “so brief as to be peremptory”. He also referred to the outcome of the 1982 crisis over the Energy Security Bill whereby the Government proposed a motion dividing the Bill into several pieces of legislation and the House concurred with that proposal. He suggested that the Chair use that decision of the House to establish a precedent of splitting a bill by a ruling of the Speaker.

The honourable Member for Kamloops—Shuswap argued a parallel between the decision to split a resolution during the flag debate, made by then Speaker Macnaughton on June 15, 1964, and the splitting of this Bill. He referred to Citation 415(1) of Beauchesne Fifth Edition which clearly empowers the Speaker to divide a motion which contains “two or more distinct propositions”.

In attempting to resolve the issues relating to this Bill and omnibus Bills generally, I believe it might be useful to attempt first to define such a Bill. There appears to be no specific definition in the procedural authorities. The most exact definition the Chair could find and agree with is that given by the honourable Member for Windsor West, which is found at page 15880 of Hansard for May 30, 1988, where he said the following:

The essential defence of an omnibus procedure is that the Bill in question, although it may seek to create or amend many disparate statutes, in effect has one basic principle or purpose which ties together all the proposed enactments and thereby renders the Bill intelligible for parliamentary purposes.

The Chair is grateful to the honourable Member for Windsor West for those words. They have indeed assisted me greatly in arriving at a decision. I believe that his definition will stand the test of time and be useful to the House and future chair occupants for years to come.

It might also be useful for the House to address the differences between the Energy Security Bill of 1982 and Bill C-130, now before the House.

In 1982, Bill C-94, an Act to implement the National Energy Program,^[10] was a Bill to enact, through several statutes, the policy of the then administration respecting national energy. The scope of that policy was set according to criteria and the parameters as determined by the Cabinet of the day. It met with considerable opposition because parts of the Bill or the policy were objectionable to many Members. The result of the ensuing crisis was the eventual splitting of the Bill by the agreement of the House. I wish to underline that it was not by order of the Speaker.

Bill C-130, An Act to implement the Free Trade Agreement between Canada and the United States of America, as was pointed out by the Minister of State and the Parliamentary Secretary to the Minister for International Trade (Mr. John McDermid), is based on an international treaty between Canada and the United States already made public, and comprises enabling legislation required to make the agreement binding in law. The purpose of the Bill is to enact and implement the agreement. That is the single unifying thread that links all the apparent disparate provisions contained in the Bill and becomes its only object.

Interestingly, Bill C-130 creates no new statutes. The Canada-U.S. free trade agreement, however broad in scope it may be, clearly becomes the four corners of Bill C-130, and as such defines the content and scope of the Bill. There are no doubt many principles in the free trade agreement and some that honourable Members may differ with, but in the opinion of the Chair the main principle of Bill C-130 is to give force of law to a treaty signed by two sovereign nations.

I believe the House would agree that it is not the role of the Speaker to play broker between two national governments and to decide how best such an agreement might be put to the House. Where would a Speaker begin to divide such a Bill? Which parts of the agreement are independent of the others? At which point does the agreement dissolve if split into too many pieces?

Your Speaker was not at the negotiation table. I would suggest to the House that the Government, which bears the responsibility for the outcome of these negotiations, must equally retain the full responsibility for the manner in which the agreement is presented to the House.

I have stressed these particular questions because I want honourable Members to know that as your Speaker I spent many hours considering very carefully whether some of the arguments pressed upon me could practically be done.

Canada is unique in its use of omnibus Bills. Although the United Kingdom does adopt such Bills, its legislative practices are significantly different from ours, not least of all because of a much stricter control of time for debate on Bills. In Australia the practice appears to go the other way, that is, its procedures permit the grouping of related Bills for debating and voting purposes. For these reasons the Canadian House of Commons cannot readily rely on precedent elsewhere on these matters. I know that I was urged to look elsewhere. I again want to assure honourable Members that that indeed was done.

The date when omnibus Bills were first introduced is not certain, but the practice seems to go back as far as 1888 when a private Bill was introduced to confirm two different railway agreements. The first time that a question was raised concerning the reasons why the Government chose to amend three Acts in one Bill was on April 2, 1953.

Omnibus bills are introduced by the Government for a variety of reasons. One of the most obvious is to expedite the passage of legislation. Another is to group all the statutory amendments required for the implementation of a policy under the same bill as was the case in 1982 on Bill C-94, the Energy Security Bill.

In contrast to the reasons given by the Government for using omnibus legislation, the Opposition has argued against the acceptability of certain omnibus Bills. Among the objections cited were the lack of relevancy between the various parts of the Bill, the debate at second reading not addressing a single principle, and the lack of opportunity at second reading to vote in favour of some parts and against other parts of the Bill.

Canadian practice regarding omnibus bills has grown significantly over the last 40 years. Rulings by Speakers on the admissibility of motions and on points of order have clarified some of the problems associated with omnibus bills.

Members have often referred, as did the honourable Member for Kamloops—Shuswap, to their ancient privilege to vote on each separate proposition contained in a complicated question. The following passage from page 389 of May Twentieth Edition is used to support this argument:

The ancient rule that when a complicated question is proposed to the House, the House may order such question to be divided, has been variously interpreted at different periods…In 1888, however, the Speaker ruled that two propositions which were then before the House in one motion could be taken separately if any Member objected to their being taken together.

Although this ruling does not appear to have been based on any previous decision, it has since remained unchallenged. A complicated question, however, can only be divided if each part is capable of standing on its own.

In Canadian practice, this concept is supported by a cornerstone ruling of Speaker Macnaughton on June 15, 1964, in which he concluded that the Canadian Speaker also has the authority to divide complicated motions. After examining precedents in Britain and Canada, he stated on pages 430 and 431 of the Journals:

To summarize our procedure, it can be said that no clear precedent concerning the dividing of a question can be found in our annals…In other words, this would appear to be an unprovided case and ordinarily, under such circumstances, reference is made to current procedure in the British House…

Accordingly, it is my view that the procedure which applies in this case is the current procedure used in the British House, one which perhaps has not been used too frequently but which nevertheless must be recognized, and if it is to be observed on this occasion it would appear that the question of the dividing of a complicated motion rests with the Chair…

I must come to the conclusion that the motion before the House contains two propositions and since strong objections have been made to the effect that these two propositions should not be considered together, it is my duty to divide them…

Speakers following Alan Macnaughton have made it clear that the Chair’s authority to divide complicated questions only applies to substantive motions and does not apply to motions which relate to the progress of Bills. As Speaker Jerome explained on May 11, 1977, on page 5522 of Hansard:

…there can be no doubt that a motion containing two or more substantive provisions is quite distinct from a procedural motion or a motion which is generally described as having only the effect of dealing with the progress of a Bill. The practice in respect of substantive motions has never been extended to those motions which relate to the progress of a Bill. The use of the omnibus amending Bill is well enshrined in our practices, and I really can find no reason to set aside my predecessor’s very clear and sound reasoning, or the practice. Nor can I find any authority which would support an order of the Chair at this second reading stage that the Bill be divided.

I should emphasize as well that the remedy sought by the honourable Member is not to divide the Bill according to the separate statutes to be amended but by subject matter. Were that to be attempted, it would place before the Chair, it seems to me, questions of interpretation and responsibility for the drafting of an extremely complex order, which in my opinion the Chair ought not to attempt.

This conclusion had already been stated by Speaker Lamoureux on January 23, 1969, on page 617 of the Journals and was also echoed by Speaker Sauvé on June 20, 1983, on pages 26537 [and 26538] of Hansard.

In conclusion, the Canadian practice regarding the authority of the Chair to divide questions has been reserved solely for substantive motions which contain more than one proposition, where Members object to their being taken together, and the Chair has determined it is possible to divide the motion into more than one distinct proposition.

While some Members may feel that Speaker Sauvé’s ruling in 1982 was too brief, one quote from that ruling seems to summarize the Chair’s traditional position:

For my part, in the present circumstances, there seems little point in offering yet another opinion on a question so well addressed by my distinguished predecessors. The matter is there for all to see. It may be that the House should accept rules or guidelines as to the form and content of omnibus Bills, but in that case the House, and not the Speaker, must make those rules.

The Chair therefore must rule that while Bill C-130 is an omnibus Bill, it has the single purpose of enacting an international agreement amending several statutes. As such, it conforms to our practice and should be allowed to proceed. Until the House adopts specific rules relating to omnibus Bills, the Chair’s role is very limited, and the Speaker should remain on the sidelines as debate proceeds and the House resolves the issue.

A further point raised by the honourable Member for Windsor West and the honourable Member for Kamloops—Shuswap was the insufficiency of detail in the long title of the Bill because it does not list all of the statutes being amended therein. Honourable Members might wish to consult Driedger’s The Composition of Legislation, Legislative Forms and Precedents for information on this point. This work may not have the same weight as Beauchesne or Erskine May, but it is a respected authority in legislative drafting. On pages 153 and 154 there is an explanation of Canadian practice as it relates to long titles, which clearly demonstrates that every Act being amended need not be mentioned in the title and that the Canadian practice has evolved differently from British practice by the use of generic language. If honourable Members feel, however, that such a course is necessary, I suggest that they should proceed by way of amendment and not by a decision of the Speaker to reject the Bill. The Chair wonders if including all of the statutes in the title of the Bill would thus make it any more acceptable to those who oppose it.

Finally, the Chair will address the last point which was raised on Wednesday, June 1, 1988, by the honourable Member for Windsor West. The honourable Member stated that Bill C-130 now before the House, in certain of its clauses, proposed changes to two other Bills, Bill C-60, the Copyright Act, and Bill C-110, the Canadian International Trade Tribunal Act, neither of which, to date, has received Royal Assent, one of which, Bill C-110, is at report stage. In response, the honourable Minister of State, referring to two decisions by Speaker Lamoureux, indicated that Bill C-130 was properly before the House and that the second reading motion could be put.

To begin, I should report to the House upon the status of the two Bills mentioned earlier.

Bill C-60, the Copyright Act, has been adopted by both the Senate and the House and is awaiting Royal Assent.

Bill C-110, the Canadian International Trade Tribunal Act, is on the Order Paper at report stage.

On April 20, 1970, Mr. Speaker Lamoureux ruled on a situation somewhat related to the present one involving a Bill which appeared to be dependent upon two other Bills then before the House. Speaker Lamoureux expressed sympathy for the Members’ views in part, but at page 6048 of Hansard his comment reads as follows:

…[the] debate is an interesting one and the argument is not without merit. If it has fault, it is that it might be premature.

Speaker Lamoureux then suggested that the House proceed with consideration of the Bills in question until the third reading stage, at which time procedural arguments should be brought forward if the circumstances warranted further consideration.

Less than one year later, Speaker Lamoureux was again faced with an identical situation which he resolved by stating, in part, on February 24, 1971, at page 3712 of Hansard:

There is…nothing procedurally wrong in having before the House, at the same time, concurrent or related Bills which might be in contradiction with one another either because of the terms of the proposed legislation itself or in relation to proposed amendments.

Mr. Speaker Lamoureux ruled that the second reading motion of the Bill could proceed as the House was not giving final approval to the Bill.

On February 5, 1973, Mr. Deputy Speaker McCleave, in deciding upon a similar conflict concerning the third reading of the unemployment insurance Bill and an appropriation Bill, reviewed the history of events with regard to Bills amending Bills in the same session. Mr. Deputy Speaker McCleave made an interesting observation which I believe is applicable to our situation when he said, in part, on page 974 of Hansard:

…[In 1958] bills to amend the Excise Tax Act and the Customs Tariff were being considered, and, while no decision was made by the Chair, it would be fair to suggest…that it was felt at that time that it was not a question of order but rather a matter of how best to achieve logical progression of companion or interdependent bills through the House.

Mr. Deputy Speaker McCleave ruled that the debate should proceed on the third reading motion on the unemployment insurance Bill.

Having now reviewed with honourable Members the available precedents, I must declare that the practice of one Bill amending another Bill still before the House or not yet given Royal Assent is an acceptable one.

However, if at third reading, circumstances exist whereby the Bill is amending another Bill still before the House, then I would be disposed to abide by Speaker Lamoureux’s decision and hear further argument at that time.

There were other issues raised during the procedural debate on Bill C-130 that I will define as side issues but worthy of comment. The honourable Member for Essex—Windsor (Mr. Steven Langdon) expressed concern about the administrative provisions in the Bill which are not covered in the Ways and Means motion.

Standing Order 84(11) states that “The adoption of any Ways and Means motion shall be an order to bring in a Bill or Bills based on the provisions of any such motion.” Several Speakers have made it clear that the critical words are “based on” and that it does not mean “identical to”. On those occasions, the Speakers have cautioned the House that “the terms of the Ways and Means motion are a carefully prepared expression of the financial initiative of the Crown and frequent departures from them can only invite deterioration of that most important power”. See Journals of December 18, 1974, page 224.

The honourable Member for Ottawa—Vanier referred to the opportunity to vote on the separate provisions of the Bill. I must tell him that he is anticipating both the committee and the report stage of the Bill and I am grateful to him for reminding both the House and the Minister of the Speaker’s role at the Report Stage. The honourable Member also suggested that a larger Legislative Committee ought to be appointed in relation to this Bill. That may indeed be desirable, but this is a matter clearly within the scope of the powers of the Striking Committee on which the honourable Member sits.

Finally, some honourable Members raised the issue of the constitutionality of Bill C-130. On this point, I can only refer honourable Members to Citation 240 of Beauchesne Fifth Edition, which reads:

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…

In conclusion, I wish to summarize my decision....

…Bill C-130 is indeed an omnibus Bill—it meets the definition as stated by the honourable Member for Windsor West in that it has a single purpose, while amending various statutes but without further guidance of the House and based on the practice to this day, it should be allowed to proceed without interference from the Chair;

…the title of the Bill can be amended to be explicit or to reflect the statutes contained therein at the committee stage;

…the matter of Bill C-130 amending Bills now before the House should be raised at third reading if the same situation still exists.

I do wish to thank all honourable Members who contributed to the procedural discussion. No doubt, the Chair will be taxed further as this Bill makes its way through the House, but I am deeply indebted to all Members for the manner and the tone of the procedural discussion thus far. I hope honourable Members will accept that the Chair and others have striven mightily to ensure that all of the important points that were raised have been met and dealt with in this ruling. I regret that it has taken time, but the arguments presented were taken very seriously.

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1988-06-08