Financial Procedures / Business of Supply

Legislative phase: main estimates; admissibility of a vote

June 11, 2018

Debates, pp. 20647–9

On May 29, 2018, Daniel Blaikie (Elmwood—Transcona) rose on a point of order concerning Treasury Board vote 40 in the Main Estimates 2018-19, also referred to as the “budget implementation vote”. According to Mr. Blaikie, vote 40 was a central fund that authorized Treasury Board to allocate monies to various departments and agencies. He stated that this pre-approval of funding for all new government budget initiatives was not consistent with the legal mandate of the Treasury Board under the Financial Administration Act or with the supply process. He asked the Speaker to order that vote 40 be struck from the Main Estimates 2018-19. The Speaker took the matter under advisement.^[1] On May 30, 2018, Mr. Blaikie raised another point of order regarding the budget implementation vote. He argued that some of the initiatives it contained did not have any legislative authority, particularly two initiatives that appeared to be dependent on Bill C-74, Budget Implementation Act, 2018, No. 1, which was not yet in effect. Mr. Blaikie also contended that vote 40 should have been referred to the various committees directly responsible for the departments and agencies for which initiatives were included in vote 40.^[2] On June 1, 2018, Kevin Lamoureux (Parliamentary Secretary to the Leader of the Government in the House of Commons) rose to inform the House that, in his view, the vote fell within the mandate of the Treasury Board and that there were ample precedents of monies being granted to a central fund. The Assistant Deputy Speaker (Carol Hughes) again took the matter under advisement.^[3]

Resolution

On June 11, 2018, the Speaker delivered his ruling. He reminded the House that it was up to the government to determine which committees each vote would be referred to. In his view, finding that the Treasury Board could not manage this fund on the grounds that it was not of the same nature as other central funds would require a rather narrow reading of the Financial Administration Act. He also reiterated that it was up to the government to define the form that its request for funds would take and stated that he could not rule that the initiatives identified by Mr. Blaikie lacked existing legislative authority. He explained that Speakers have ruled items in the estimates to be irregular only when they have clearly lacked a legislative basis or have sought to amend existing legislation. He found that the vote was indeed in order.

Decision of the Chair

The Speaker: I am now prepared to rule on the points of order raised on May 29, 2018 and May 30, 2018 by the hon. member for Elmwood—Transcona regarding vote 40 under Treasury Board Secretariat in the main estimates 2018-19, also known as the budget implementation vote.

On May 29, I ruled on an earlier point of order of his regarding the same vote. In that ruling, I indicated that speakers have generally been reluctant to rule that an item in the estimates was out of order except in clear cases where the supply item had a legislative dimension and was not pure supply.

The hon. member, in his intervention of May 29, argued that the funds sought under vote 40 do not appear to be for a purpose under Treasury Board’s legal mandate, as defined in the Financial Administration Act. Instead, it is a central fund from which Treasury Board will allocate money to other departments and agencies for them to carry out their mandates. He felt this circumvented the usual practices for supply. He also contended that this vote cannot reasonably be compared to other central funds under Treasury Board, which are all either consistent with its legal mandate or otherwise justifiable.

The Parliamentary Secretary to the Government House Leader responded to this point by arguing that the hon. member’s reading of the Treasury Board’s mandate was too narrow. In his view, there was no question that these matters fall within the legal mandate of the Treasury Board. He also cited my earlier ruling indicating there is ample precedent for monies to be granted to a central fund.

On May 30, the hon. member for Elmwood—Transcona argued that some of the specific initiatives in vote 40 lack proper legislative authority. In particular, he noted that initiatives relating to employment insurance and cybersecurity seem dependent on measures contained in Bill C-74, Budget Implementation Act, 2018, No. 1. As this bill is not yet law, he felt it was not proper for the government to seek appropriations for its implementation.

Finally, given that vote 40 will fund a variety of initiatives in various departments and agencies, the member felt it problematic that the vote had been referred to a single committee, the Standing Committee on Government Operations and Estimates. In his view, it would be more appropriate for the initiatives in vote 40 to have been studied by the committees directly responsible for those departments and agencies.

I will deal with this last point first. When the estimates are tabled, they are automatically referred to committee in accordance with Standing Order 81(4). As is the case with documents tabled under Standing Order 32, it is the government that determines to which committee each vote will be referred. While this used to be done by motion, the Standing Orders were amended in 2001 to make the referral automatic. The minister now provides the Table with the list of committees to which separate votes are sent for study. In the case of vote 40, it was referred to the Standing Committee on Government Operations and Estimates, a committee with a fairly wide-ranging mandate on matters relating to estimates. In its study of vote 40, the committee is free to invite whomever it feels appropriate. I do not believe there is any role for the Speaker to become involved in the matching of votes and committees.

On the matter of the legal authority for the spending, House of Commons Procedure and Practice, third edition, at page 873, indicates:

The Chair has maintained that estimates with a direct and specific legislative intent (those clearly intended to amend existing legislation) should come to the House by way of an amending bill.

My predecessors have addressed this issue in a number of different rulings. Speaker Jerome, in a ruling found on page 607 of the Journals of March 22, 1977, explained:

… the government receives from Parliament the authority to act through the passage of legislation and receives the money to finance such authorized action through the passage by Parliament of an appropriation act. A supply item in my opinion ought not, therefore, to be used to obtain authority which is the proper subject of legislation.

Nothing in the wording of vote 40, as I read it, seeks to amend existing legislation. The hon. member acknowledged as much in his intervention. He questioned whether the Treasury Board has the legal authority to spend for the purposes of the initiatives contained in vote 40. It is clear, however, from the vote wording that the funds are to be granted to the Treasury Board so that it can transfer them to other departments and agencies. As the hon. member himself concedes, the vote wording specifically says that expenditures of the funds must be for purposes “within the legal mandates of the departments or other organizations for which they are made.”

The hon. member’s objection, really, is a matter about which department is seeking the funds. He does not feel it appropriate that Treasury Board requests money for a central fund on behalf of other departments or agencies. As I stated in my ruling on May 29, 2018, there is ample precedent for central funds. The hon. member for Elmwood—Transcona cited many of these in his intervention. While he argues that vote 40 is of a different nature than other central funds, I am not convinced that Treasury Board lacks the legal authority to manage it. As the hon. parliamentary secretary argued, this would require a rather narrow reading of the Financial Administration Act. I do not believe the vote can be ruled out of order on that basis.

Again, as I indicated in my earlier ruling, it is up to the government to determine the form its request for funds will take. It is for members to decide, in studying and voting on the estimates, whether or not the money should be granted. In the case of vote 40, some members may wish that the request had been in a different form. In the end, they are left to make a decision on the request as the government has presented it. The Chair’s role is limited to determining if the request for funds is in a form that does not require any separate legislative authorization and if it respects the limits of the supply process.

This brings me to the final point raised by the hon. member for Elmwood—Transcona. He argued that certain initiatives do not appear to have existing legislative authority, but instead appear to be dependent on legislation currently before Parliament or yet to be introduced. Speaker Sauvé, in a ruling found at page 10546 of the Debates of June 12, 1981, indicated, “the Appropriation Act should only seek authority to spend the money for a program that has been previously authorized by a statute” and that, by seeking funds for programs where the legislation had not yet been introduced, the government was putting the cart before the horse.

On March 21, 1983, she addressed a similar matter. Vote 10c under Industry, Trade and Commerce in that year’s supplementary estimates provided for payments under the Small Business Investment Grant Act, which was still before the House in the form of Bill C-136. In ruling the vote out of order, she stated at page 23968 of the Debates:

Vote 10c clearly anticipates legislation and, in that sense, seeks to establish a new program in the absence of other legislative authority and seeks the funds to put it into operation.

The matter to be established, then, is whether existing legislative authority is lacking for the initiatives identified by the hon. member for Elmwood—Transcona. Absent this authority, it would be premature for the government to be seeking funds. Previous Speakers have noted that it is not always easy to identify the legislative authority for particular initiatives in the estimates. Unfortunately, the parliamentary secretary, in his response, did not directly address this point. This information would have been helpful for the Chair in determining whether such authority is lacking.

The hon. member asserted that, as the budget indicated that certain initiatives would be the subject of legislation, it follows that such initiatives should not receive funding through the estimates until that legislation is passed. It is not entirely clear to the Chair, however, that these activities have been shown to lack existing legislative authority. To take, for example, the matters relating to cybersecurity, according to annex 1 of the main estimates, the funds are to be transferred to the Communications Security Establishment, CSE, which has an existing legislative mandate under the National Defence Act. While Bill C-74 does indeed provide for the transfer of certain employees from other departments to the CSE, I believe that the CSE does have a mandate under existing legislation to spend for such purposes. Were the government proposing to grant funds to an organization not yet created or for an entirely new purpose, I believe there would be a valid objection, but that does not appear to be the case in the examples enumerated by the hon. member.

I must admit that, at the outset, the matters regarding Employment Insurance caused me some concern. The main estimates themselves explain, at page I–9 and I–10:

Costs related to Employment Insurance benefits and Children’s benefits are the largest components of the items excluded from the estimates. Most Employment Insurance costs are paid directly out of the Employment Insurance Operating Account, rather than a departmental appropriation, and are therefore not specifically included in estimates.

The authority to spend funds for the purposes of paying employment insurance benefits is statutory, pursuant to the Employment Insurance Act. It is not entirely clear why this request has been included in vote 40, whether it is truly additional funds or whether the amount has been included for information purposes. Regardless, the question to determine is whether legislative authority for the request is lacking. The hon. member for Elmwood—Transcona indicated that the funds were to make permanent an existing pilot project for people working while on claim. While the provisions in Bill C-74 make this change to the Employment Insurance Act, it is clear to me that there was legislative authority under the existing act for the pilot project.

While the hon. member raised important questions, Speakers have generally ruled items in the estimates to be irregular only when they clearly lacked a legislative basis or when the items themselves sought to amend existing legislation. I do not believe that to be the case with vote 40, and therefore I rule that it is indeed in order.

I appreciate the hon. member’s vigilance in ensuring that proper practices are followed regarding the estimates. As this is the first time the House has been presented with a budget implementation vote of this nature, it is important to ensure that the limits of the supply process are respected. That said, I also want to remind the hon. member of my ruling of June 4, 2018, when I underscored the importance of being concise when presenting a point of order. Even on a matter as complex as the estimates, it should not require multiple lengthy interventions to make one’s point. I am certain all hon. members will keep this in mind in preparing their arguments.

I thank hon. members for their attention.

Editor’s Note

On May 25, 2018, Mr. Blaikie rose on a point of order claiming that Treasury Board vote 40 failed to provide sufficient information regarding the government’s spending plans.^[4] In his ruling on May 29, 2018, the Speaker found that it was up to the government to determine the form its request for funds would take and that the Speaker’s role was to ensure compliance with the supply process.^[5] The ruling can be found on page 280.