Shortly after I posted about NDP MP Peter Stoffer’s bill to limit the use of omnibus legislation, I heard a quibble about the bill’s mechanics.
To sort out the particulars, I asked Rob Walsh, former law clerk for the House of Commons, for his thoughts. Here is the analysis he sent along:
You cannot legislate House procedure. Or I should say, you can legislate House procedure, but the legislation will be unenforceable, so there’s no point. For example, in 2011, the Harper government brought in the Marketing Freedom For Grain Farmers Act. It did so in clear violation of section 47 of the Canadian Wheat Board Act. The plaintiff(s) took the government to court, arguing that the government had acted illegally in introducing its bill. The court agreed. So what? The court could not strike down the new legislation; it wasn’t unconstitutional, only “illegal.” The government continued with its legislative initiative, ignoring both s. 47 and the ruling of the court. The bill became law through the usual House procedures. Why? Because legislation governing House procedure is a nullity. The House can ignore it.
If Mr. Stoffer had introduced a motion amending the Standing Orders of the House to require what he has set out in his bill and the motion carried, this would thereafter apply to government bills as a rule of House procedure.
In other words: The work of the House of Commons is governed not by law, but by the standing orders. It is the latter that the Speaker follows.
Speaker Andrew Scheer touched on this point in a ruling concerning the Wheat Board in 2011:
The government House leader also spoke to the role of the Speaker in preparing rulings, and quoted from House of Commons Procedure and Practice, Second Edition, at page 261. For the benefit of the House, I would like to cite the full passage, which reads:
Finally, while Speakers must take the Constitution and statutes into account when preparing a ruling, numerous Speakers have explained that it is not up to the Speaker to rule on the “constitutionality” or “legality” of measures before the House.
The footnote to this citation, footnote 75 on page 261, refers to an April 9, 1991, ruling by Speaker Fraser at pages 19233 and 19234 of Debates, in which the Speaker ruled that the Chair must avoid interpreting, even indirectly, the Constitution, or a statute. This is a well-entrenched practice that remains in force today, and to which I alluded when this matter was first raised on Oct. 18, 2011.
Accordingly, it is important to delineate clearly between interpreting legal provisions of statutes—which is not within the purview of the Chair—and ensuring the soundness of the procedures and practices of the House when considering legislation—which, of course, is the role of the Chair.
As I wrote last week, Stoffer’s bill has almost no chance of becoming law before this Parliament is dissolved, so this is somewhat academic. But since it isn’t going to pass, the bill was already most useful as a point of academic discussion—ahead of an election, mind you, that could have two parties promising to do something about omnibus legislation.