Parliamentary Privilege / Rights of the House

Contempt of the House: Government alleged to have disregarded Parliament

March 23, 2005

Debates, pp. 4498-500

On February 17, 2005, Jay Hill (Prince George–Peace River) rose on a question of privilege and, citing comments made by Jim Peterson (Minister of International Trade), charged the Government with disregarding Parliament and the legislative process by implementing measures contained in Bills C-31, Department of International Trade Act and C-32, An Act to amend the Department of Foreign Affairs and International Trade and to make consequential amendments to other Acts despite their defeat at second reading on February 15, 2005. After another Member spoke, Tony Valeri (Leader of the Government in the House of Commons) declared that the two departments were operating under the “parliamentary sanction of the Appropriations Act” in that the Main Estimates for 2004-05, approved by Parliament, provided funds for the operations of two departments and two Ministers. The Speaker took the matter under advisement.^[1]

On March 8, 2005, Dominic LeBlanc (Parliamentary Secretary to the Leader of the Government in the House of Commons), arguing that no contempt of Parliament had occurred, stated that the Public Service Rearrangement and Transfer of Duties Act enabled the Government to rearrange pre-existing authorities already created by Parliament and that legislation was generally used to confirm Government organizational changes. Ken Epp (Edmonton–Sherwood Park) and Alexa McDonough (Halifax) both asserted that if legislation was unnecessary, the Government should not have introduced it. Mr. Hill reiterated their point as well. The Speaker again took the matter under advisement.^[2]

On March 23, 2005, the Speaker delivered his ruling. He explained that statutory authority already existed for the Government to proceed with changes that had been made earlier by Orders in Council pursuant to the Public Service Rearrangement and Transfer of Duties Act. He commented that when the Government had introduced Bills C-31 and C-32, it was to confirm the changes that were already in the process of being implemented. He added that if the Minister’s intention in making the statements was to express a legal opinion that the reorganization by Order in Council could continue to have legal effect, then it would be difficult to find that the comments were an offence to the dignity of the House or a breach of privilege. The Speaker concluded his remarks by noting that the defeated Bills had aimed to confirm executive action already taken but that the House had refused to give that confirmation. Despite this paradox, the Speaker concluded that there was no prima facie question of privilege.

Decision of the Chair

The Speaker: I am now prepared to rule on the question of privilege raised on February 17 by the hon. Opposition House Leader concerning remarks made by the Hon. Minister of International Trade in relation to the defeat of the motions for second reading of Bill C-31 and Bill C-32, the Bills that proposed to create a Department of International Trade separate from the Department of Foreign Affairs. The hon. Opposition House Leader contends that these remarks represent a contempt of Parliament.

I would like to thank the hon. Opposition House Leader for raising this matter, as well as the hon. Member for Vancouver East, the hon. Member for Calgary Southeast and the hon. Government House Leader for their contributions when the issue was raised. I also want to thank the hon. Parliamentary Secretary to the Government House Leader for his intervention on March 8 and the hon. Member for Edmonton–Sherwood Park, the hon. Member for Halifax and the hon. Opposition House Leader for the responses to his comments.

The hon. Opposition House Leader in his original statement objected to comments made by the Minister for International Trade on the day following the defeat at second reading of Bill C-31 and Bill C-32. He pointed to articles in the Globe and Mail and the Ottawa Citizen which quoted the Minister as saying that the two departments would continue to work independently even though Parliament had voted against the Bills that proposed to split the two entities, the former Department of Foreign Affairs and International Trade.

The hon. Opposition House Leader alleges that the Minister’s words suggest that the passage or defeat of legislation was inconsequential to the separation of the departments and, in so doing, showed disregard for the role of the House of Commons. He argues that this shows such disrespect as to constitute, in his opinion, a contempt of the House.

There are two issues in the presentation made by the hon. Opposition House Leader. The first issue is the current status of the Department of Foreign Affairs and International Trade given that on February 15 the Bills containing the proposal that it be split into two departments were defeated at second reading in the House. The second issue is whether actions taken or statements made by the Minister in the wake of the defeat of Bill C-31 and Bill C-32 constitute a contempt of the House of Commons.

Let us consider the first issue, the status of the Department of Foreign Affairs and International Trade.

On December 12, 2003, a number of Orders in Council were made under the authority of several statutes, including the Public Service Rearrangement and Transfer of Duties Act, the Public Service Employment Act, the Financial Administration Act and the Ministries and Ministers of State Act.

I draw the attention of the House, for example, to Order in Council numbered 2003-52 designating the Department of International Trade as a department. Other Orders in Council in this series address ancillary issues related to that designation, while the existence of the positions of Minister of Foreign Affairs and a Minister of International Trade both existed pursuant to the Salaries Act prior to that day.

The Public Service Rearrangement and Transfer of Duties Act provides that the Government, by Order in Council, may reorganize existing functions of Government for which Parliament has voted funds. In short, existing statutes grant the Government considerable leeway in proceeding with any reorganization it chooses to pursue. The Canadian custom has been to complete or confirm such rearrangements by way of legislation.

The House will note that these are some of the very points which were emphasized by the hon. Parliamentary Secretary to the Government House Leader when he spoke to this issue on March 8, saying, in part:

In reorganizing or organizing a cabinet and making use of the Public Service Rearrangement and Transfer of Duties Act, the government does not create new statutory authorities or powers. Rather, the government rearranges pre-existing authorities that have already been created by Parliament and does so in accordance with a legislative mechanism that has also been created by Parliament.

It would appear to the Chair that in general the power of the Government to reorganize, and specifically this latest reorganization, is not very well understood. The House will recall that as far back as March 2004 questions related to the reorganization were surfacing in the House.

For example, I remind hon. Members of the question of privilege raised on March 10, 2004 by the hon. Member for St. John’s South–Mount Pearl with regard to the form of the Main Estimates for 2004-05. I refer hon. Members to the Debates for that day at pages 1310 and 1311.

I also refer hon. Members to the text, Organizing to Govern, Volume One, by the Hon. Gordon F. Osbaldeston, former Clerk of the Privy Council, who explains at page 24:

For a variety of reasons—ministerial preference, better organization fit, and other reasons… —governments may decide to rearrange their organizations. The chief legislative tool for accomplishing this type of organizational change is the Public Service Rearrangement and Transfer of Duties Act. Orders in council pursuant to this Act are used principally for two purposes:

transfer of organizational subunits… from one organization to another… 

transfer of responsibility for acts or parts of acts from one minister to another… 

On page 25 he goes on to confirm:

Strictly speaking, these tools are meant only to reorganize existing functions of government for which Parliament has voted funds—any new activities must be authorized by Parliament.

So, too, in the case now before us, whether or not the House is convinced of the case for reorganization, the Government nonetheless has at hand the tools to execute those plans; legislative measures like Bill C-31 and C-32 merely complement them.

I trust that the background I have just presented will assist the House in better appreciating the current situation. Here, existing functions, notably international trade, are being reconfigured and those rearrangements have been carried out by Orders in Council. I should say that this is what distinguishes the current situation from the one cited by the hon. Opposition House Leader on which Speaker Fraser ruled in 1989. In that case, a new tax, the GST, was being proposed by the Government of the day, but enacting legislation had not yet been adopted in the House.

In the opinion of the Chair, the authority to begin the process of separating the departments rests on the series of Orders in Council adopted December 12, 2003, pursuant to existing statutory authorities granted to the Government by Parliament. That authority is set out in the law and it is not for me to judge whether it is sufficient in this case.

Following a search of our precedents, I am unable to find a case where any Speaker has ruled that the Government, in the exercise of regulatory power conferred upon it by statute, has been found to have breached the privileges of the House. Indeed, the hon. Member is not arguing that. He seems to be suggesting that the Minister’s comments amounted to a breach of privilege, but if the Minister was stating the legal position, it could hardly constitute a breach.

To recap then, since I promised the hon. Member for Halifax that all would be made clear in this ruling, statutory authority, namely the Public Service Rearrangement and Transfer of Duties Act, already exists to proceed with the changes that were originally made in December by Orders in Council pursuant to that Act. When the Government introduced legislation, specifically Bill C-31 and Bill C-32, since, as explained the hon. Parliamentary Secretary to the Government House Leader, it was as a complement in keeping with “… Canadian practice… to confirm major changes in Government organization through legislation”. We can think of these Bills as similar to the miscellaneous statutes amendments bills that come before Parliament from time to time.

From a reading of the Bills, it appears to me that they enshrine in statute the new names of the departments and Ministers and spell out the mandate of international trade, not in the cryptic language of the Order in Council but in the more Cartesian vocabulary of legislative drafting. Furthermore, Bill C-31 appears to create a new post of Associate Deputy Minister of International Trade.

Thus, as the House well knows, on December 7, 2004, Bill C-31, An Act to establish the Department of International Trade and to make related amendments to certain Acts, and Bill C-32, An Act to amend the Department of Foreign Affairs and International Trade Act and to make consequential amendments to other Acts, were introduced and read a first time. These Bills were debated at second reading in early February, each coming to a vote on second reading, that is to say a vote on approval in principle of each Bill, on February 15. Both Bills were defeated at second reading.

Where does that leave matters?

The procedural consequence is clear. Bill C-31 and Bill C-32 will not proceed further in this session.

The legal consequence is not for me to address. The Chair is unable to determine what future legislative measures the Government may bring forward to complete or confirm the division of the two departments. That is for the Government to determine.

As my predecessors and I have pointed out in many previous rulings, where legal interpretation is at issue, it is not within the Speaker’s authority to rule or decide points of law. This principle is explained on pages 219 and 220 of House of Commons Procedure and Practice:

—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.

If the Chair cannot pronounce on the legality of Government action, it is up to the Speaker to examine the situation and to weigh the arguments of the hon. Opposition House Leader to determine from a purely procedural perspective whether the privileges of the House have been breached.

I can only assume that the Minister, in stating his intention to continue with the establishment of the Department of International Trade, is planning to proceed for the moment under existing authorities.

In a similar vein, the Chair has noted and draws the attention of the House to the form of the Main Estimates for 2005-06. Those documents present separate budgets for foreign affairs and for international trade, though the formal name Foreign Affairs and International Trade is still invoked.

Is there cause for concern, however, that the privileges of the House are breached where the Government continues with its departmental reorganization by Orders in Council after confirmation of these initiatives was not approved by the House? Am I to find here a prima facie breach of privileges of the House?

It seems to me that in making the statement outside the House, which gave rise to the point of privilege of the hon. Opposition House Leader, the Minister might only have meant to indicate that the reorganization by Orders in Council continues to have legal effect. If that was the intent of the Minister’s remark and the actions taken are legally valid, which I must assume is the case, it is difficult to find this comment offensive to the dignity of the House and therefore a prima facie breach of privileges.

That is not to say that the comments, if reported accurately, do not concern me. I can fully appreciate the frustration of the House and the confusion of hon. Members, let alone those who follow parliamentary affairs from outside this Chamber. The scrutiny of legislation is arguably the central role of Parliament.

The decision of the House at each stage of a Government bill determines whether or not the proposal can go forward. How can the decisions of the House on these Bills be without practical consequence?

We appear to have come upon a paradox in Canadian practice. Bill C-31 and Bill C-32 aimed to confirm executive action, action already taken pursuant to statutes by non-legislative means, and the House of Commons has refused to give that confirmation. It leaves the Government and the House in a most unfortunate conflict on the matter but, on the information I have, I cannot find that this constitutes a prima facie breach of the privileges of the House.

At the end of all this, it seems to me that what we have here is an unfortunate incident that has impacted upon the working relationship between the House and the Government. The hon. Government House Leader has said that the Government is reviewing its parliamentary options. The Chair would encourage the Government, during the course of that review, to have further consultations with all parties in the House to clarify events and restore the central working relationship to its usual good form.