‘The Chair cannot justify’

The prepared text of Speaker Scheer’s ruling on Elizabeth May’s point of order.

I am now prepared to rule on the point of order raised on June 5, 2012 by the hon. Member for Saanich—Gulf Islands (Ms. May) regarding the form of Bill C-38, An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures.

I would like to thank the hon. Member for Saanich—Gulf Islands for having raised the matter, as well the hon. Leader of the Government in the House (Mr. Van Loan), the hon. House Leader for the Official Opposition (Mr. Cullen), the hon. House Leader of the Liberal Party (Mr. Garneau), and the hon. Members for Winnipeg Centre (Mr. Martin), Winnipeg North (Mr. Lamoureux) and Thunder Bay—Superior North (Mr. Hyer) for their comments.

The foundation of the arguments brought forward by the Member for Saanich – Gulf Islands is that Bill C-38 has not been brought forward in a proper form and is, therefore, imperfect and must be set aside. Specifically, the Member relies on Standing Order 68(3) which states that (quote) “no bill may be introduced either in blank or in an imperfect shape” (unquote).

In laying out her case, she argues that in its current form, the bill fails the tests of being (quote) “a proper omnibus bill” (unquote), first because it lacks one central theme, that is (quote) “one basic principle or purpose” (unquote); second because it fails to provide a link between certain items in the Bill and the Budget itself; and, third, because it (quote) “omits actions, regulatory and legislative changes” (unquote) that are purported to be included in it by representatives of the Government.

In response, the Government House Leader indicated that Bill C-38, as a Budget implementation bill, has as its unifying theme the implementation of the Budget. This, he reminded the House, arose from the adoption of the Budget by the House. To use his words (quote) “The budget sets the clear policy direction and the budget implementation bill implements that direction” and is “a comprehensive suite of measures designed to ensure jobs, economic growth and long-term prosperity”. (unquote)

Before I address the arguments put forward in this case, it is perhaps useful to remind Members of what the provisions of Standing Order 68(3) – the basis of the point of order raised by the Member for Saanich – Gulf Islands – refer to. House of Commons Procedure and Practice, Second Edition, at page 728, states:
(quote) “Since Confederation, the Chair has held that the introduction of bills that contain blank passages or that are in an imperfect shape is clearly contrary to the Standing Orders. A bill in blank or in an imperfect shape is a bill which has only a title, or the drafting of which has not been completed. Although this provision exists mainly in contemplation of errors identified when a bill is introduced, Members have brought such defects or anomalies to the attention of the Chair at various stages in the legislative process. In the past, the Speaker has directed that the order for second reading of certain bills be discharged, when it was discovered that they were not in their final form and were therefore not ready to be introduced.”(unquote)

Furthermore, at pages 730 to 734, Members can find a description of the various elements that comprise a bill. A bill must have a number, a title, an enacting clause, and clauses. It may also have a preamble, interpretation and coming-into-force provisions, and schedules. Having reviewed Bill C-38, I can assure the House that it contains all of the required elements and is therefore in proper form in these respects. In addition, the requisite notice was given for its introduction and the Bill was preceded by a Ways and Means motion, as is required. It is also duly accompanied by a Royal Recommendation.

Now the Member for Saanich – Gulf Islands has taken the argument of imperfect shape one step further in stating that Bill C-38 is not in the proper form in that it is not, in her words, (quote) “a proper omnibus bill”. (unquote)

Here again, it is perhaps useful to return to House of Commons Procedure and Practice, Second Edition, which states, at page 724, in reference to omnibus bills:
(quote) “Although this expression is commonly used, there is no precise definition of an omnibus bill.”

It then goes on to state that: (quote) “In general, an omnibus bill seeks to amend, repeal or enact several Acts, and is characterized by the fact that it is made up of a number of related but separate initiatives. An omnibus bill has (quote) “one basic principle or purpose which ties together all the proposed enactments and thereby renders the Bill intelligible for parliamentary purposes” (unquote). One of the reasons cited for introducing an omnibus bill is to bring together in a single bill all the legislative amendments arising from a single policy decision in order to facilitate parliamentary debate.” (unquote)

At page 725, O’Brien and Bosc goes on to state: (quote) “It appears to be entirely proper, in procedural terms, for a bill to amend, repeal or enact more than one Act, provided that the requisite notice is given, that it is accompanied by a royal recommendation (where necessary), and that it follows the form required.”(unquote)

Naturally, there have been a number of rulings on the subject. Among these is a ruling given by Speaker Sauvé on June 20, 1983, which can be found at pages 26537 and 26538 of Debates, where she stated that: (quote) “…although some occupants of the Chair have expressed concern about the practice of incorporating several distinct principles in a single bill, they have consistently found that such bills are procedurally in order and properly before the House.” (unquote)

On April 11, 1994, Speaker Parent faced similar objections to another budget bill – C-17 – when a Member argued that the House was being asked to take a single decision on a number of unrelated items. As can be found at pages 2859 to 2861 of the Debates, the Speaker disagreed, noting that in the Chair’s opinion:
(quote) “…a common thread does run throughout Bill C–17; namely, the government’s intention to enact the provisions in the recent budget, including measures to extend the fiscal restraint measures currently in place.” (unquote)

The second argument raised by the Member for Saanich—Gulf Islands, which is irrevocably linked to her first argument regarding the need for a central theme, was that there are elements found in Bill C-38 that were not provided for in the Budget. It would be useful, at this juncture, to remind Members that the long title of Bill C-38, An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures, is very broad, as is typical in bills of this kind. Clause 1 of the Bill, which contains its short title, provides that (quote) “This Act may be cited as the Jobs, Growth and Long-term Prosperity Act” (unquote) and thus restates the very broad scope of the measure. O’Brien and Bosc, at page 731, notes that the long title sets out the purpose of the bill, in general terms, and must accurately reflect its content. Speaker Fraser, on June 8, 1988, at page 16257 of the Debates, also referred to the use in our practice of generic language in bill titles and stated that:
“…every Act being amended need not be mentioned in the title”.

If the long title had been specific and limited in scope, then the hon. Member might have had a sounder basis for claiming that the Bill goes beyond what was contained in the Budget. However, the title of Bill C-38 is wide in scope, and therefore, it is an accepted practice that the content of the Bill could be similarly broad.

The third point raised by the Member for Saanich—Gulf Islands relates to her contention that representatives of the Government, during debate at second reading of Bill C-38, claimed that the Bill gave legislative effect to policy decisions that are not in fact contained in the Bill.

What the Member is raising here is perhaps a question of relevance in debate or a dispute as to facts. As Speaker Milliken stated at page 5411 of the Debates on October 27, 2010: (quote) “It is not the Speaker’s role to determine who is right and who is wrong. I know there are disagreements over some things that are said in this House, but it is not up to the Speaker to decide either way”. (unquote)

It may well be that Members, in their remarks, spoke about elements of the government’s fiscal or regulatory policy intentions that were not contained in the Bill, or that may flow from the Bill if it is passed. These are matters that are beyond the purview of the Speaker. Given the generous latitude for relevance which is typically accorded to Members on such wide-ranging debates, including that on the Budget, it is in keeping with parliamentary practice that issues raised in debate would not exactly mirror the contents of legislation in every respect. As such, while these concerns are certainly pertinent to the wider debate surrounding the bill, they do not, in and of themselves, point to a technical deficiency in the Bill itself.

As the Member for Saanich—Gulf Islands noted, my predecessors have frequently been called upon to rule on matters pertaining to omnibus bills. In this regard, her argument that, (quote) “… there is a compelling case that the House must act to set limits around omnibus legislation” (unquote) is one that has been made before. On these occasions, the key question faced by Speakers has been: What is the role of the Chair in dealing with such matters?

As Speaker Sauvé said on March 2, 1982 at page 15532 of the Debates: (quote) “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.” (unquote)

Speaker Fraser, in the June 8, 1988 ruling referred to by the Member, advanced his own view of the role of the Chair in dealing with omnibus bills, by stating, at page 16257 of Debates: (quote) “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.” (unquote)

Indeed, the Member for Saanich—Gulf Islands herself also recognized the limited role of the Speaker in such circumstances, stating: (quote) “It is clear that the Speaker is not, at present and in the absence of rules from the House to limit the length and complexities of omnibus bills, entitled to rule that an omnibus bill is too long, too complex or too broad in scope.” (unquote)

It may well be time for Members to consider our practices for dealing with omnibus bills. However, in the absence of any clear rules, I find myself agreeing with Speaker Fraser, that the most appropriate role for the Chair is to step aside and allow the House to determine the matter.

When addressing similar matters in relation to omnibus bills, Speaker Jerome on May 11, 1977, at page 5523 of Debates, and Speaker Parent on April 11, 1994, at page 2861 of Debates, both suggested that Members could propose amendments at report stage to delete clauses they felt should not be part of a bill, or vote against it. We all know that this has certainly been done with respect to Bill C-38.

In the same ruling by Speaker Parent, again at page 2861 of Debates, he stated: (quote) “…it is procedurally correct and common practice for a bill to amend, repeal or enact several statutes. There are numerous rulings in which Speakers have declined to intervene simply because a bill was complex and permitted omnibus legislation to proceed.” (unquote)

Perhaps the Standing Committee on Procedure and House Affairs which is engaged in a review of the Standing Orders could examine this thorny issue as part of its study. But until such time as the House feels compelled to set new limits on omnibus legislation, as your Speaker, I must continue to be guided by current rules and practice. Having reviewed the submissions made by hon. Members and the relevant precedents – including the many rulings just cited – the Chair cannot agree with the honourable Member for Saanich – Gulf Islands to conclude that Bill C-38 is not in the proper form and therefore should not be allowed to proceed.

In the absence of rules or guidelines regarding omnibus legislation, the Chair cannot justify setting aside Bill C-38 and, accordingly, must rule that Bill C-38 in its current form is in order.

I thank hon. Members for their attention.




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‘The Chair cannot justify’

  1. Notwithstanding the ruling, I think that is a rather cheeky reference on the Speaker’s part to the April 1994 ruling on Bill C17, which was raised by the then-member for Calgary West… the now-member for Calgary Southwest, and Prime Minister, Stephen Harper.
    Even in defeat, there are little victories.

    • That’s rather like, “On the bright side, when they hang me, I’ll defecate on their nice clean gallows.”

      • That’s rather over the top.
        Think about what is REALLY being achieved here. Whether in one bill or many, the provisions in C-38 are getting passed – the Conservatives have a majority and that’s not changing. The question is just how much bad PR for the government can the opposition muster in the process (and no, I don’t think there’s a tipping point at which the PR would be so bad that the Tories would actually cave and split the bill – their M.O. is to entrench themselves further, not capitulate).
        I think they’ve done a good job in that regard, and back to my original point, I think it actually is a reasonable victory that in losing this motion, they at least got the Speaker to identify that at one point Stephen Harper was on the other side of this debate.
        Furthermore, the content of Speaker Scheer’s ruling are in substance identical to the ruling of Speaker Parent back in 1994 – I certainly don’t this ruling should reflect on any potential partisan bias on Scheer’s part – the precedent was already set.

        • Not convinced on the bias part, but I agree with the rest of what you said.

  2. Is anyone surprised by Scheer’s ruling?
    I was not.
    Major kudos to Ms May – we need more like her

  3. The Chair cannot justify … his own existence. What’s the point of having procedures and rulings and someone in the chair, if all he is ever able to do is to declare his own impotence and allow unreasonable, undemocratic behaviour to continue?

    • So what did he (Scheer) get wrong? While I haven’t read the material he references his ruling at least appears to make sense. It seems to me that if the speaker was going to rule in favour of the point of order that he’d need very firm grounds to do so. I’m not particularly knowledgeable about parliamentary rules and procedures so I’d be happy to be told what you feel was incorrect about his ruling.

      By the way I don’t approve of the omnibus bill, but to me it seems to be a problem with MPs voting like trained seals on party lines, and of course the lack of desire of previous parliaments to set limits on omnibus bills.


      • It may well be that Members, in their remarks, spoke about elements of the government’s fiscal or regulatory policy intentions that were not contained in the Bill, or that may flow from the Bill if it is passed.”

        Right there he’s acknowledging that the bill is incomplete — that the government intended for more to be in it than there is. Thus, the bill is imperfect and should be taken back until those points are remedied. Whether that is by making changes to the bill to include the points and issues brought forward by the members as being in the bill, or by having the individual members involved make statements acknowledging that what they thought was going to be in the bill is not there, and that these omissions are intended doesn’t matter. The bill is incomplete, thus imperfect, until those points are properly addressed.

        Instead he claims that he’s not allowed to actually look at what was said vs what was in the legislation, leading to the outrageous situation whereby even a blank bill could be submitted and would have to be allowed through, because what the government said it would contain does not have to be in it.

        • So are all of Chretien’s budgets “incomplete”, because he said he’d get rid of the GST, and didn’t?

          • Did he tell that to the House in his budget speech, person who isn’t Rick?

        • I disagree with your conclusion (since a blank bill has got an honest-to-God written rule about it) but I do agree that it is outrageous to give a pass to cabinet ministers who are SAYING the bill does something when it in fact does not. We here in the peanut gallery would call that lying, unless the bill is imperfect. And we’ve seen it before–with the fixed-date election law. What a farce that turned out to be. Anyway, when you have a clear case of Ministers of the Government lying to parliament such as we have here, I would expect the Speaker to do something about it. The easy way out for him would have been to conclude the bill was imperfect, and not that the Ministers lied.

          • Fine. It could be a bill with one line in it: “This bill amends, repeals, and adds various acts of legislation.”

            Then it’s not semantically blank for the pedants out there.

          • Except that according to the rules that would be “incomplete”.

            (quote)
            Furthermore, at pages 730 to 734, Members can find a description of
            the various elements that comprise a bill. A bill must have a number, a
            title, an enacting clause, and clauses. It may also have a preamble,
            interpretation and coming-into-force provisions, and schedules.
            (end quote)

          • Christ.. do I have to write out a whole bill for you to understand the point?
            Fine. A number then.

            Call it C-666
            A title: Governing Canada Better
            An enacting clause:
            This bill is enacted by the government of Canada.

            Clauses:
            1. This bill amends, repeals, and adds various acts of legislation to better govern Canada.

            fini.

            Now, semantically and pedantically that’s a complete bill.
            Substantively, it’s blank. But you’re saying, and the speaker is saying, that it’s just fine.

            Really?

          • The bill would have to have some substantive content, but Scheer’s ruling does give the government confirmation and guidance to creating any form of kitchen-sink omnibus bill they like: give it a really broad title and then load it up!

            Scheer’s ruling is well argued; that by no means makes it right. As @tobyornotoby:disqus pointed out above, his bias was then made evident in his grouping of separate motions for voting.

          • The problem is, according to Scheer’s ruling, it doesn’t have to have any substantive content. “These are matters that are beyond the purview of the Speaker”

          • At this point, I almost expect the government’s management of Parliament to be eroded to:

            - Convene the annual session

            - Introduce a single mammoth budget bill so vague that it can serve as a fig leaf for any government decision or policy for an entire year

            - Invoke time constraints on debate, hold a vote

            - Prorogue Parliament

          • Parliament would still likely need one or two brief follow-up sittings to pass the Supplementary Estimates, as well as the Main Estimates for the following year (including receiving the annual Departmental Reports on Performance, and Plans and Priorities, which are part of the estimates). When the Budget’s Ways and Means Motion and Implementation Act are passed, the Government doesn’t usually know exactly how much the measures will cost each year, just a rough idea (that’s why the round numbers), hence the need for follow-up legislation to update the estimates. There are currently three rounds of supplementary estimates, so if we switched to a model of annual sessions of Parliament, like you predict, you’d probably see 4 sittings of Parliament, then a prorogation to end the cycle. These “quarterly” sittings would also have the advantage of bringing Parliament back periodically to be ready to legislate the end of labour disputes and address other “events” that come up through the year. But I think that’s all.

          • There you go. Or subject to the next point of order (privilege in this case) it could say, “this bill does stuff”

        • @toby, Thwim – thanks — those seem like reasonable rebuttals, I particularly agree with the point about the bill’s absurd title. It’s a shame that governments are always too short sighted to rule on things like omnibus bills because they want to settle for a short-term partisan advantage.
          @Rick – I don’t like the Liberals, and I really was not fond of the Chretien governments but after over six years of Conservative governments I feel that your question is entirely irrelevant. Particularly since you can’t even accuse Elizabeth May of hypocrisy over this.

          [edit] P.S. I don’t envy anyone Scheer on this, on the assumption that he is trying to be fair handed it can’t be easy deciding when enough is enough.

      • 1. He rules that having a broad title is all that’s needed to make the bill related or an ominbus bill. In future legislation need only be named, A bill to Govern Canada and anything and everything can go in it. What is the meaning of a bill title if it means everything and nothing? The title on its own makes the bill imperfect.
        2. As indicated by Thwim below, Scheer refuses to even take into consideration the point May made that cabinet ministers ultimately responsbile for enforcing the legislation amended by this bill have repeatedly referred to measures that aren’t in the bill. Should he not at least investigate, inquire of those ministers whether this is the legislation intended or not?
        3. The next second after he makes his “my hands are tied as usual” ruling, he takes the rather activist approach of grouping amendments to expedite the passage of the bill. How does he know what the will of the House is? Did the movers of those amendments request this?
        Scheer is behaving like a trained seal himself, afraid to make a difference and face the issue at hand, and in so doing presiding over the weakening of parliament yet again.

  4. From what I understand, the Speaker followed the rules and made the proper, correct ruling – which is essentially the same ruling that has been made multiple times before with multiple Speakers. So attacking the Speaker is pretty much just partisan sniping. If you want to stop omnibus bills then you need to get parliament to change the rules, so start pressuring political parties to put it in their platforms. I know the Liberals and NDP are angry about this bill (rightfully so), but have they actually promised to change the rules if they form the government? They should.

    (edited to remove the more egregious typos)

    • How do you edit on here now? I’m embarrassed at the number of typos I make but don’t see them until after their posted.

      • There should be an ‘edit’ button on the line with your name, to the right of the time posted.

    • It’s a possibility.

  5. I hate to say I told you .
    ….
    The point here is not how good I was or how stupid this majority was, but it is that this “once a generation”bill is going to show how big a mistake Canadian people could make.

    When everything said and done, shit still happens.

  6. “Having reviewed Bill C-38, I can assure the House that it contains
    all of the required elements and is therefore in proper form in these
    respects.”

    But Bill C-38 has a number of problems with it arising from cited sections slated to be amended that refer to sections that are not even present in the current legislation. I would contend that Scheer did not even examine the bill itself, too busy coming up with an explanation for why the bill should stand, why he cannot do anything, and why he’s always sporting such a s#*!-eating grin all the time.

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