The omnibus question

Could something be done to limit omnibus legislation?

The Canadian Press, Globe, Postmedia, CTV and iPolitics give the year’s first budget a once-over. Jordan Press notes that the legislation includes changes to intellectual property law.

We’ve been over the trouble with omnibus legislation of this sort before: in short, such bills complicate Parliament’s ability to properly scrutinize and pass judgement on the laws that are placed before it. (Fun fact: So far as I can tell, not a single budget bill since 2011 has been amended by a committee studying it: 2,000 pages of legislation passed by the House without a single change.)

There’s a larger discussion to be had here about Parliament’s ability to properly scrutinize legislation—including the independence of MPs and committees—but so far as wide-ranging, barely coherent omnibus legislation is concerned, the Conservatives seem unlikely to decide now that it would be nicer of them to break with the practice. The question thus becomes what a future government might do to restrict the practice.

Last May, in Britain the House of Commons committee on political and constitutional reform released a report on “ensuring standards in the quality of legislation.” Among the concerns: omnibus legislation.

“Omnibus”, “portmanteau” or “Christmas tree bills” attracted particular criticism. These are large multi-topic bills, upon which a Department “hangs” a number of areas of policy, like baubles on a Christmas tree. Dr Ruth Fox, Director of the Parliament and Government Programme at the Hansard Society, highlighted some of the problems this type of bill can present:

If you look at the size of the bills that are going through, the Conservative party, when it was in Opposition, would talk strongly against the number of large Christmas-tree, omnibus bills that the previous Government took through Parliament after Parliament, yet we are seeing some of that happening again. The Localism Bill had to be published in two parts, for example, with a lot of disparate provisions.

On this count, the committee posited that “multi-topic bills risk becoming simply too big to be scrutinised effectively,” but its recommendation was rather tepid.

We recommend that for large multi-topic bills, the Minister in charge of the bill explain to Parliament why this large scale format has been chosen. If there is a good reason for the legislation being brought forward then Parliament can be confident that the Government has given proper consideration to the importance of parliamentary scrutiny.

The Harper government would likely argue that it already does this. Why is it bringing forward such multi-faceted bills? Well, because that’s what’s needed to implement the budget and keep our economy strong and so on and so forth. (In the minority parliaments, opposition parties were perhaps too afraid of forcing an election to refuse to pass such bills. In the current majority parliament, the only thing standing between passage of an omnibus bill is the ability or willingness of Conservative backbenchers to object.)

Over-arching all of the British committee’s recommendations were two ideas: the creation of a legislative code of conduct and a committee on legislature standards. Here is a suggestion that, so far as omnibus bills are concerned, any such code should include stronger language.

The implication is that there is a presumption that ‘large multi-topic bills’ should not be used, but the standards resists the temptation to be so bold as to actually say that, and instead it asks for an explanation for why the government has decided to depart from the norm of single topic bills. Why not demand more? The code could say: large multi-topic bills should not be used, any departure from this norm must be justified in a statement in the explanatory notes which explains why the Bill could not be separated into individual bills. This highlights the root of my main problem with code, it does not contain any substantive legislative standards. None of the standards included state in clear terms what legislation should and should not do.

When Speaker Andrew Scheer declined to intervene in the matter of C-38 in 2011, he, like Speakers before him, cited the distinct lack of rules in this regard.

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…

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…

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.

That might point in the direction of a response: pass a rule (an amendment to the Standing Orders perhaps?) that sets out a standard that a future Speaker might be able to enforce.

At the very least, or at least for now, we might start referring to omnibus legislation as “portmanteau bills” because that sounds fancier.

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