The Legislative Process / Stages

Passage of Senate amendments: request to divide a bill

December 5, 2002

Debates, pp. 2334-6

On December 4, 2002, Bill Blaikie (Winnipeg–Transcona) rose on a point of order with respect to an instruction from the Senate to its Standing Committee on Legal and Constitutional Affairs that it divide Bill C-10, An Act to amend the Criminal Code (cruelty to animals and firearms) and the Firearms Act, into two Bills.^[1] Mr. Blaikie stated that it was inappropriate for the Senate to divide a bill passed by the House of Commons and that, since the original Bill had been accompanied by a royal recommendation, the division of that Bill would result in the creation of two new Bills, at least one of them involving public funds, originating in the Senate and would thereby infringe upon the financial privileges of the House. Since, at the time of Mr. Blaikie’s point of order, a message had not yet been received from the Senate, nor was a motion on notice to send any message to the Senate, the Speaker declined to address the matter until such a message had been received and stated that ultimately it was a matter for the House to decide. Mr. Blaikie then unsuccessfully sought and was declined the unanimous consent of the House to send a message to the Senate asking it to reverse its decision. The Senate message indicating that the Bill had been divided in two and asking for the concurrence of the House was received at the end of the sitting on December 4. Carol Skelton (Saskatoon–Rosetown–Biggar) rose on a point of order the following day to argue that it was not in order for the Senate to divide a bill from the House, and that the House cannot waive its privileges.^[2] Immediately thereafter, Peter MacKay (Pictou–Antigonish–Guysborough) rose on a question of privilege on the same issue. Other Members also contributed to the discussion.

On December 5, 2002, the Speaker delivered his ruling. Since there had been no change in the circumstances, manner and purpose of the appropriation of public revenue in the Bill that was the subject of the royal recommendation, he saw no need to insist on the financial prerogatives of the House. He stated that the privileges of the House would indeed be involved should the Senate divide a House bill without first obtaining the House’s concurrence. However, concurrence having been requested in this case, the Speaker stressed that it was up to the House to address the issue as it saw fit by claiming its privileges or by waiving them by way of a motion to concur in the Senate message. Accordingly, the Speaker concluded there was no breach of privilege.

Decision of the Chair

The Speaker: I am ready to rule on the point of order raised yesterday by the hon. Member for Winnipeg–Transcona and again today by the hon. Member for Saskatoon–Rosetown–Biggar, and then the question of privilege raised by the hon. Member for Pictou–Antigonish–Guysborough this morning, concerning the message received from the Senate relating to Bill C-10, An Act to amend the Criminal Code (cruelty to animals and firearms) and the Firearms Act, and the actions taken by the other place in connection with this Bill.

I wish to thank the hon. Member for Acadie–Bathurst, the Parliamentary Secretary to the Leader of the Government in the House, and the hon. Member for Sarnia–Lambton for their interventions.

On Wednesday, December 4, the hon. Member for Winnipeg–Transcona raised a point of order to draw to the attention of the House the action taken by the hon. Senate in dividing Bill C-10 into two Bills, Bill C-10A, which the other House passed, and Bill C-10B, which it still retains. The hon. Member pointed out that this was the House that should decide which pieces of House legislation were divided up and how they should be dealt with. At that time no message had been received from the other place and therefore the matter was, in the view of the Chair, hypothetical. The Chair was not prepared to deal with a purely academic matter, noting that it was inappropriate until a message had in fact been received. I did point out however, that though the Chair might have something to say in this matter, that was probably a matter for the House to decide.

A message from the Senate on Bill C-10 was received at the end of Wednesday’s sitting, and the matter has now properly been brought to the attention of the House. There is also a motion on the Order Paper for consideration of the Senate amendments to the Bill. As hon. Members are aware this motion, when called, is debatable and amendable and the Government House Leader has just indicated that he intends to call this matter before the House tomorrow.

I must point out at the outset that I cannot make comments on the workings of the honourable Senate. This would be quite inappropriate.

The fact that Bill C-10 was reinstated from the previous session, as provided for by Special Order of this House, does not have any bearing on its subsequent proceedings, either in this House or the other place.

As noted in the intervention of the hon. Member for Saskatoon–Rosetown–Biggar, this is not the first time the Senate has divided a bill originating in this House. In 1988 the other place divided Bill C-103, An Act to Increase Opportunity for Economic Development in Atlantic Canada to establish the Atlantic Canada Opportunities Agency and Enterprise Cape Breton Corporation and to make consequential and related amendments to other acts, and returned only part of the Bill to the House.

At that time the propriety of the Senate’s action was raised and Mr. Speaker Fraser ruled on the matter. His ruling was extensive and exhaustive and has been much quoted this morning, although I must say the quotations seemed selective and incomplete.

Some hon. Members: No.

The Speaker: I am afraid so. I know hon. Members would not think of such a thing but it seems to have happened.

In that ruling of July 11, 1988, at pages 17382 to 17385 of the Debates, the Speaker noted that there were several cases in which the Speaker of the House of Commons had ruled certain bills originating in the Senate out of order because they infringed the financial privileges of this House.

Mr. Speaker Fraser noted a precedent where two Commons bills were consolidated into a single legislative measure by the Senate. That took place, and the Parliamentary Secretary made reference to this as well, on June 11, 1941, with a message from the Senate asking for the concurrence of this House. The Commons agreed with the Senate proposal. I would refer hon. Members to the Journals of June 11, 1941, at page 491. On that occasion, the Commons waived its traditional privilege and a single bill was eventually given Royal Assent.

In the 1941 case, the Senate specifically sought the concurrence of the House for its action and it was the disposition of this House to accept it. In the 1988 case, the Senate did not seek the Commons’ concurrence in the division of the Bill and simply informed this House that it had done so and returned half of the Bill. The House did not accept that action by the Senate and the Senate subsequently reversed itself and the Bill was adopted by the Senate in its original form.

In making his ruling in 1988, Speaker Fraser stated at page 17384:

The Speaker of the House of Commons by tradition does not rule on constitutional matters. It is not for me to decide whether the Senate has the constitutional power to do what it has done with Bill C-103. There is not any doubt that the Senate can amend a bill, or it can reject it in whole or in part. There is some considerable doubt, at least in my mind, that the Senate can rewrite or redraft bills originating in the Commons, potentially so as to change their principle as adopted by the House without again first seeking the agreement of the House. That I view as a matter of privilege and not a matter related to the Constitution.

In the case of Bill C-103, it is my opinion, and with great respect of course, that the Senate should have respected the propriety of asking the House of Commons to concur in its action of dividing Bill C-103 and in reporting only part of the Bill back as a fait accompli has infringed the privileges of this place.

In the current case, unlike the case in 1988, the Senate explicitly seeks the concurrence of this House in its action. This was contained in the message we received from the Senate yesterday.

The hon. Member for Saskatoon–Rosetown–Biggar cited Mr. Speaker Fraser to the effect that the privileges of the House had been infringed. However the hon. Member did not fully cite a passage she read to the House where the Speaker went on to state the following:

However, and it is important to understand this, I am without the power to enforce them directly. I cannot rule the Message from the Senate out of order for that would leave Bill C-103 in limbo. In other words, it would be nowhere. The cure in this case is for the House to claim its privileges or to forgo them, if it so wishes, by way of message to Their Honours, that is, to the Senate, informing them accordingly.

I agree fully with Mr. Speaker Fraser in this matter. Just as the cure proposed at that time was for the House to claim its privileges or to forgo them if it so wished, that is the course that is available to the House in respect of the message that we have received today.

With respect to the royal recommendation, the Chair cannot see that there has been any change in the circumstances, manner and purpose of the appropriation of public revenue in the legislation that was the subject of the royal recommendation, and so I see no need to intervene to insist on the financial prerogatives of the House in this case.

In his intervention, the Parliamentary Secretary pointed out that the financial provisions in Bill C-10 applied to that part of the Bill that had been returned to the House as Bill C-10A, that is the firearms section, which had been passed by the other place without amendment. I have examined that part of Bill C-10, which has been appended to the Senate message as Bill C-10B, the cruelty to animals section, and I am of the opinion that it would not require a royal recommendation were it introduced into this House in that form.

In conclusion, I want to make three points. First, the Chair does not see any grounds to intervene with respect to the financial aspects of this issue. Second, while the Speaker agrees with the view of Mr. Speaker Fraser that privileged matters are involved where the Senate divides a House bill without first having the House’s concurrence, this is not the case in this instance. Our concurrence has in fact been requested.

Therefore I cannot find that there is a prima facie question of privilege, but I stress that it is open to the House to address this issue as it sees fit and as it no doubt will do by adopting some kind of motion in respect of this matter.

Finally, in their consideration of their motion to concur in the Senate Message, I would remind all hon. Members that they will have the opportunity to debate fully the motion and propose whatever amendments they see fit within the rules that they wish to do to that motion.