Private Members’ Business / Financial Limitation

Royal recommendations: not required for a bill that negotiates an agreement for redress

March 21, 2005

Debates, pp. 4372-3

On December 7, 2004, when the Order for second reading of Bill C-331, Ukrainian Canadian Restitution Act, standing in the name of Inky Mark (Dauphin–Swan River–Marquette), was called for debate, the Acting Speaker (Jean Augustine) stated that at first glance the Bill appeared to require a royal recommendation, but invited the sponsor and other Members to make submissions to the Chair.^[1] On February 22, 2005, Mr. Mark rose on a point of order to address the Chair’s concerns over the Bill. In speaking to the point of order, Dominic LeBlanc (Parliamentary Secretary to the Leader of the Government in the House of Commons) drew the attention of the Chair to the Government’s concerns with respect to Bill C-333, Chinese Canadian Recognition and Redress Act, which he argued also required a royal recommendation. The Speaker took the matter under advisement.^[2]

On March 21, 2005, the Speaker delivered his ruling. He declared that in the case of Bill C-331, clause 2(c) mandated the establishment of a permanent museum and that public funds would be needed for this. Accordingly, he ruled that the Bill would not be put to a vote at third reading unless a royal recommendation was first brought forward by a Minister. In the meantime, consideration of the Bill could continue in the House and in committee. In the case of Bill C-333, clause 4 provided for negotiations with the Chinese community before any payment could be made but did not directly authorize the spending of public funds. Explaining that the adoption of a bill either effects an appropriation of public funds or it does not do so, and that a royal recommendation is not required in respect of actions that may or may not ever happen, the Speaker concluded that a royal recommendation was not required for a bill that merely negotiates an agreement for redress. The Speaker ruled accordingly that a royal recommendation was not required in respect of clause 3 of Bill-333 and that it could proceed to a vote at third reading.

Decision of the Chair

The Speaker: I am now ready to rule with regard to issues affecting two private Members’ bills, Bill C-331, the Ukrainian Canadian Restitution Act, and Bill C-333, the Chinese Canadian Recognition and Redress Act.

Last December 7 when debate commenced on second reading of Bill C-331, the Ukrainian Canadian Restitution Act, I expressed some concern about provisions of this Bill which might infringe on the financial initiative of the Crown. At that time I asked for submissions on this matter from interested Members before the Bill was next debated.

On February 22, the Member for Dauphin–Swan River–Marquette, the Parliamentary Secretary to the Government House Leader and the Member for Glengarry–Prescott–Russell made submissions on the requirements for a royal recommendation for this Bill. The Parliamentary Secretary also made a submission of why a royal recommendation was required for Bill C-333, the Chinese Canadian Recognition and Redress Act standing in the name of the Member for Durham. The Chair wishes to thank these Members for having addressed this matter thoroughly and providing the Chair with sufficient time to consider their arguments.

The central issue which is being addressed at this time is whether Bill C-331 in its present form requires a royal recommendation. If this is the case, the Bill in its current form will not be put to a vote at third reading unless a royal recommendation is first brought forward by a Minister of the Crown. If the Bill is amended at committee or report stage, the need for a royal recommendation may be removed and a vote may be requested.

Honourable Members may recall the ruling given on February 24, 2005 with respect to the royal recommendation and Bill C-23, An Act to establish the Department of Human Resources and Skills Development. The issue which was addressed at that time is similar to the one before us today, specifically, is there an infringement on the financial initiative of the Crown? The financial initiative of the Crown, a well-established principle of our parliamentary system of Government, reserves to the Government the right to propose the spending of public funds for a particular purpose. The initiative of the Crown is assured by the constitutional requirement that any such proposal to the House must be accompanied by a royal recommendation as required by section 54 of the Constitution Act, 1867 and Standing Order 79 of this House.

Does Bill C-331 require a royal recommendation; that is, does Bill C-331 contain a proposal for the spending of public funds that would constitute an appropriation or an equivalent authorization to spend? In my view it does. Clause 2(c) states that the Minister of Canadian Heritage shall:

(c) establish a permanent museum in Banff National Park, at the site of the concentration camp that was established there,—

It is clear that it mandates the establishment of a permanent museum. Therefore, in my view, clause 2(c) constitutes an appropriation within the meaning of section 54 of the Constitution Act, 1867 and Standing Order 79. Alternatively, it constitutes an authorization to spend the necessary public funds and as such is the equivalent of an appropriation under section 54 or Standing Order 79.

The hon. Member has advised the House that the new museum would be housed in an existing building and restructuring costs would be paid from funds obtained from the negotiated restitution. However, this is not indicated in the Bill, and the Chair can only rely on the text of the Bill in these matters.

I appreciate the hon. Member sharing with the House what is contemplated by this Bill. No doubt the hon. Member and others supporting this initiative have been mindful of the need to minimize the cost of this project to the public purse, but costs there nonetheless would be, and for a new and distinct purpose: a Ukrainian Canadian museum at Banff, Alberta. I must assume that these costs would be met by public funds from the Consolidated Revenue Fund. The mandatory language allows me no other interpretation of clause 2(c).

Clause 3 has been challenged by the hon. Parliamentary Secretary to the Government House Leader who contends that it also requires a royal recommendation. Clause 3 states, in part:

The Minister of Canadian Heritage shall—negotiate—a suitable payment in restitution for the confiscation of property and other assets from Ukrainian Canadians.

The House will recall that in an initial ruling relating to Bill C-331 made on December 7, 2004, it was determined that this clause did not require a royal recommendation. The hon. Parliamentary Secretary now argues that the notion of a restitution payment created a positive obligation, in his words, to spend funds. I have now given the matter further consideration and I find no requirement for a royal recommendation.

If the term “positive obligation” means that the Government is given a mandate to spend public funds, then I would expect to see legislative text that clearly indicates an intention to expend those funds.

This Bill provides for a negotiation with the Ukrainian community before any payment can be made, implying that no restitution amount may ever be determined. Accordingly, it cannot be said that this Bill upon enactment would effect an appropriation of public funds. At the very least, a bill effecting an appropriation of public funds or an equivalent authorization to spend public funds does so immediately upon enactment.

Once Parliament approves a bill that requires a royal recommendation, there should be nothing further required to make the appropriation. To subject an appropriation to a subsequent action beyond the control of Parliament is in effect for Parliament to delegate its powers and responsibilities in respect of supply to someone else. This Parliament cannot do.

When Parliament adopts a bill, it is either effecting an appropriation of public funds or it is not doing so. A royal recommendation is not required in respect of actions that may or may not ever happen and so is not required in respect of clause 3 of the Bill.

Now let us turn to Bill C-333, the Chinese Canadian Recognition and Redress Act sponsored by the hon. Member for Durham.

In this case as well the hon. Parliamentary Secretary argued that the Bill required a royal recommendation because it would impose a positive obligation upon the Government to spend public funds once the amount of redress was negotiated and formed part of an agreement between the Government of Canada and the National Congress of Chinese Canadians.

The hon. Parliamentary Secretary drew attention to Clause 4 that reads:

The Government of Canada shall negotiate an agreement for redress with the National Congress of Chinese Canadians, to be proposed to Parliament for approval.

He argued that the negotiated agreement provided for did not detract from the positive obligation imposed upon the Government by the Bill. The Chair does not agree with that position.

For the reasons I just gave in respect to Bill C-331 and its restitution clause, I cannot accept that Bill C-333 constitutes an appropriation within the meaning of the term in section 54 of the Constitution Act, 1867, or Standing Order 79. Nor do I consider that it constitutes an equivalent authorization to spend public funds under these authorities.

Accordingly, to summarize, in the case of Bill C-331, the Ukrainian Canadian Restitution Act standing in the name of the hon. Member for Dauphin–Swan River–Marquette, a royal recommendation will be required before it can be put to a vote at third reading in its current form. In the meantime, consideration of this Bill can continue in the House and in committee.

With respect to Bill C-333, the Chinese Canadian Recognition and Redress Act standing in the name of the hon. Member for Durham, a royal recommendation is not required to negotiate an agreement for redress. This Bill in its current form can proceed to a vote at third reading.

I wish to thank the House for its patience in allowing me to review the requirements for a royal recommendation.

As it is the responsibility of the Chair to ensure that Private Members’ Business is conducted in an orderly manner, the Chair will continue to bring to the attention of the House those private Members’ bills on the Order of Precedence which may require a royal recommendation.

If the Chair does not identify a specific bill having need of a royal recommendation, it would still be open to any Member to raise his or her concerns at an early opportunity. In this way the House can proceed in an informed manner in its consideration of Private Members’ Business.