Mr. Speaker, it is a pleasure to rise in keeping with our agreement to address once more some of the procedural points with respect to vote 40 and again, as per our discussions, I will try to do that in the briefest possible period without compromising the integrity of the arguments.
Part of the reason for having these points of order and the number of them is that vote 40 is a significant departure from the usual practice. The estimates document itself, in part I, page 3, reads under the heading, “Significant changes in voted spending from 2017-18 include: the Budget Implementation vote to provide new funding for Budget 2018 Initiatives”, so the estimates themselves tell us that this is a very different and very significant change in the way the government approves funding.
My point has to do with the statutory authority for a number of the votes in the estimates. I would refer you to House of Commons Procedure and Practice, third edition, which tells us on page 873 that:
The Chair has maintained that estimates with a direct and specific legislative intent—
Mr. Speaker, this speaks to your ruling from Monday.
(those clearly intended to amend existing legislation) should come to the House by way of an amending bill.
Speaker Sauvé nicely traced the development of this principle in her June 12, 1981, ruling on certain items in the estimates, and I believe it is worth quoting that ruling at length. She said:
...members have objected that in one way or another the estimates that have been submitted from time to time by the government have attempted to do more than set out the spending requirements of the government for the next fiscal year. This is of course supposed to be the acknowledged purpose of estimates and appropriation acts.
In 1971 the Chair ruled that items in the estimates that attempt to amend existing statutes are out of order. This was confirmed by most subsequent rulings.
In 1974 and 1976 the Chair went further and dealt with the question of matters of substance being put in the estimates. The Speaker, in effect, ruled that the Appropriation Act is not the place to seek authority to do something such as to establish a program. Rather, the Appropriation Act should only seek authority to spend the money for a program that has been previously authorized by a statute.
In 1977 the Chair continued to lay down these principles that should be followed in the use of the estimates and added that it makes no difference whether the item attempted to spend a large sum or simply one dollar. The distinction is unimportant. The test is whether or not the government is putting forward a spending estimate under authority it already possesses, or whether it is really seeking new legislative authority to do something.
In March of that year the Speaker said:
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—
I continue to quote from Speaker Sauvé's ruling:
In other words, the government may not by the use of an Appropriation Act obtain authority that it does not have under existing legislation.
The then Speaker summed it up in this way in December 1977:
Supply ought to be confined strictly to the process for which it was intended; that is to say, for the purpose of putting forward by the government the estimate of money it needs, and then in turn voting by the House of that money to the government, and not to be extended in any way into the legislative area, because legislation and legislated changes in substance are not intended to be part of supply, but rather ought to be part of the legislative process in the regular way which requires three readings, committee stage, and, in other words, ample opportunity for Members to participate in debate and amendment.
In that ruling, Speaker Sauvé emphasized the sequence of events required to obtain authority in a manner that is in order: First, the government must establish the appropriate legal or statutory authority for an expenditure item, and then it may seek funding for that item through an appropriation act.
Thus, she ruled three votes under Energy, Mines and Resources out of order and ordered them deleted from the main estimates. In so doing, she cited evidence that the government intended to introduce legislation with respect to the program it was seeking spending authority for under those votes. Given the need confessed by the government to enact legislation to support the programs in question, the Speaker ruled that “By asking for money now, the [President of the Treasury Board] would be putting the cart before the horse.”
She further said that:
While the significance of such a ruling is not lost, as was said on March 22, 1977, the function of the Chair is to ensure that what Parliament attempts to do is procedurally correct. Furthermore, the Chair is comforted by the fact that the President of the Treasury Board said on June 1 last, in reply to the point of order at issue here, that legislation will be introduced with respect to these programs.
While it would be a stretch to say that vote 40 alters any statutes in and of itself, it is not at all a stretch to say that it puts the cart before the horse in the way ruled out of order very clearly by Speaker Sauvé. These main estimates clearly seek funds for initiatives that require legislative changes in order to move ahead. For the benefit of the House, I will provide two examples, although I do not pretend that this is an exhaustive list, and I just want to mention again that my objections and these examples are about the procedure and not about the substance of the initiatives at hand.
My first example pertains to the item “Making Employment Insurance More Responsive and Effective”, which appears in table A2.11 of the budget as well as in the annex of the main estimates that itemizes initiatives in the budget implementation vote. On page 57 of the budget, we read:
This pilot project is scheduled to expire in August 2018. The Government proposes to introduce amendments to the Employment Insurance Act to make the current EI Working While on Claim pilot rules permanent, providing $351.9 million over five years, starting in 2018-19, and $80.1 million per year ongoing. The legislation will also include a provision to grandfather claimants who have chosen, under the current pilot project, to revert to more flexible rules....
Again, I will dispense with the rest of that quote for the sake of time.
Along with the announcement of new funding, the budget clearly signalled the government's intent to modify existing legislation. Indeed, it is quite clear that the money announced is for the program after its legal infrastructure is altered. Announcing this intention in the budget is perfectly in order and presents no problem in and of itself.
The problem comes once this item is included in the estimates prior to the government's instituting the required legislative changes. Unfortunately, this is exactly what the government has done.
How do we know this is what the government has done? We know because on the one hand, the item “Making Employment Insurance More Responsive and Effective” appears in the main estimates annex for Treasury Board—
Mr. Speaker, thank you, and I thank my colleagues who have called for order in the chamber.
How do we know this is what the government has done? We know because on the one hand, the item “Making Employment Insurance more Responsive and Effective” appears in the main estimates annex for the budget implementation vote, seeking a little over $130 million in spending authority to implement the changes the budget tells us require legislative changes to implement.
However, we do not just glean this from the budget document. More important, the legislative changes contemplated in the budget document are currently in Bill , the budget implementation act, 2018, No. 1, and that bill is currently before the House.
In the Department of Finance's briefing binder for the clause by clause review of that bill, we read, “Amendments are proposed to the Employment Insurance Act (EI Act) to make permanent the default rules of the current Working While on Claim pilot project.” This is essentially exactly what we are told the money is for in the proposed appropriation act. It then goes on to say, “Transitional provisions are proposed to allow claimants to revert to the rules of a previous pilot project on an optional basis.” Again this is the same language for which we are being told the money is being appropriated. Again, for the sake of time, Mr. Speaker, you can check out those documents on your own, but I think I have quoted enough to give you an idea.
These changes in the budget implementation act are clearly meant to authorize the program changes for which the government is seeking appropriations under the item “Making Employment Insurance more Responsive and Effective”. The budget implementation act is still before the House and has yet to go to the Senate. In other words, it is some ways away from being passed, even if the government acts on its propensity for time allocation in order to pass the budget implementation act through the House once it returns from committee, which it now has. Forgive me for the notes, having prepared them a little in advance. It will nevertheless have to pass through the other place.
We cannot prejudge how quickly the bill will pass in the other place. Nor do I think the possible use of time allocation would be a basis on which to say that the proposed allocation for this item would be in order. The cart is clearly before the horse in this case, and the vote ought therefore be ruled out of order.
It is likewise with the item “Ensuring Security and Prosperity in the Digital Age”. Under the rubric of Treasury Board vote 40, the government is seeking to appropriate a little over $100 million across eight different departments, including $43 million for the Communications Security Establishment. From the budget document, on page 203, we learn:
Canada's plan for security in the digital age starts with a strong federal cyber governance system to protect Canadians and their sensitive personal information. To that end, the Government proposes to commit $155.2 million over five years, and $44.5 million per year ongoing. to the Communications Security Establishment to create a new Canadian Centre for Cyber Security.
In order to establish the Canadian Centre for Cyber Security, the Government will introduce legislation to allow various Government cyber security functions to consolidate into the new Centre. Federal responsibility to investigate potential criminal activities will remain with the RCMP.
It is clear legislative changes to establish the new Canadian centre for cybersecurity are integral to the purpose for which the government is seeking to appropriate funds under the Treasury Board vote 40 item, “Ensuring Security and Prosperity in the Digital Age”.
It is also clear that the government has chosen to seek spending authority for this initiative without first obtaining the requisite legislative authority. The evidence that it has is undisputable, as the legislative measures required to establish the Canadian centre for cybersecurity are also in the budget implementation act, 2018 No. 1 currently before the House.
The Department of Finance's briefing binder for the clause by clause review of the bill reiterates verbatim the passages from the budget I just quoted, so I will spare you, Mr. Speaker, quoting from that document because the two are in fact exactly the same.
Once again, the budget implementation bill is currently before the House. It has not passed. It may not even be close to passing, though the timeline here is irrelevant.
To quote Speaker Jerome from March 21, 1977, the matters touch:
... very fundamentally upon the right of parliament to function, the right to examine the spending program and to control the spending program through parliamentary votes, which is perhaps the most fundamental aspect of the work of parliament.
In conjunction with that is the legislative role. It is clear that some statement ought to be attempted to separate those powers which the House possesses by way of supply and those powers which the House possesses by way of legislation. That is not a task that I look forward to with particular relish. It is an important task..
Clearly, the government is seeking to appropriate funds without first having established the legislative authority for the appropriation. It cannot assign funds to an entity that does not yet exist. This is a principle that at least some government departments seem to understand.
The government's pension for life initiative for veterans is announced in the budget, including an estimate of the cost. However, no request to appropriate funds was made in the estimates, and the departmental plan clearly states that legislative changes must be made before the department can include the expenditure in its financial plan. Presumably, the request for funding will come through a supplementary estimates after Parliament has passed the appropriate legislation.
There are other examples that are more vague. I was prepared to offer some detail, but I will try to go through it in a more rapid fashion. I will simply mention these examples.
The first one is the new intellectual property strategy. That is an item under vote 40. The language in the budget document very clearly contemplates the possibility of legislation as part of the program. The item “Modernizing Canada’s Regulatory Frameworks” also contemplates the possibility of legislation in order to realize the program for which it is requesting an appropriation of funds. The item “A New Process for Federal Election Leaders’ Debate” also very clearly contemplates the possibility of legislation in order to achieve the program purposes for which the government is seeking an appropriation of funds. The item “Stabilizing and Future Transformation of the Federal Government’s Pay Administration (Phoenix)” also contemplates legislative changes for the purpose for which it is requesting those funds.
What do all of these examples have in common? In all of these cases, the government is seeking an appropriation of funds under the main estimates. In all of these cases, the information we have, which is not always presented in the estimates but in the budget document instead, the government explicitly contemplates changes to legislation as an integral part of fulfilling the purpose for which it is seeking spending authority. In some cases, it seems more likely than in others that legislation would, strictly speaking, be required in order to spend the money toward accomplishing the program goal.
However, I humbly submit that while this level of uncertainty with respect to required legislative authority is perfectly acceptable in the budget, it is not acceptable in the estimates. Had these programs gone through the Treasury Board process, as items usually do before their inclusion in the estimates, we would have the necessary level of detail with respect to the programs contemplated in order to assess their legislative requirements. It is because of the novel mechanism of vote 40 that Parliament cannot make this assessment, a situation that undermines its ability to provide proper oversight of government spending and subverts the established supply processes of this place.
Some members may want to interject at this point and say, “But wait, vote 40 is structured in such a way as to prevent expenditures for which an appropriate legal mandate does not exist.” The problem with that defence is the question of who decides whether the appropriate legal mandate for certain expenditures exist.
Under the normal process, parliamentarians would be able to review appropriations and match them up with existing authorities prior to approving the estimates. If there were a dispute about proper authorities, Parliament would simply be able to withhold the funding until the problem was rectified.
Under vote 40, the funding would already be approved. Therefore, if the government goes ahead and spends money on a new program and reports on that in a supplementary estimates, and note I say “report” and not “request approval”, and a member suspects that the program requires new statutory authority, what is the member to do? The spending has been pre-approved and the money has been spent. Parliament cannot simply take it back.
The point here is that Parliament should be the arbiter of whether expenditures are within the legal mandate of the departments or organizations doing the spending. That is what our oversight role for government spending requires, and it is our right as the ultimate guardian of the public purse.
There you have it, Mr. Speaker. There are at least two items under vote 40 that are clearly out of order because they put the cart before the horse by requesting appropriations for measures that do not currently have the appropriate legal mandate. We know that because the legislative changes are currently before the House. The point is perhaps most succinctly put in Beauchesne's fifth edition, citation 486, where is says:
If a Vote in the Estimates relates to a bill not yet passed by Parliament, then the authorizing bill must become law before the authorization of the relevant Vote in the Estimates by an Appropriation Act.
The point was also clearly stated by Speaker Sauvé on June 21, 1982, when she said:
As I said in my ruling of June 12, 1981, an item that seeks to establish a new program in the absence of other legislative authority and the funds to put it into operation runs counter to the rulings of the Chair since 1974, which hold that legislation is required to authorize new programs, particularly matters of major substance.
This point was made again by Speaker Fraser on March 20, 1991, when he said:
It appears common ground in the arguments that have been made, first, that statutes ought not to be amended by means of items in the estimates; second, that authority to act in cases where statutory provisions already exist should be sought by the passage of amending legislation and only then the money to finance that action should be sought through appropriation acts...In both instances authority is sought, first, to implement the Senate committee report which recommended the allowances and, second, to pay the allowances. The very wording of the votes confirms that there is no existing statutory authority under which the allowances could be paid. If the statutory authority existed there would be no need to seek approval for implementation in this fashion. The type of authority sought here is akin to approval in principle and, as was made clear in the ruling of both Speakers Lamoureux and Jerome, should be sought through legislation other than appropriation bills.
That vote 40 does permit the establishment of new programs is clear in its wording. It does authorize the creation of new grants, and it said so. I do not have that wording because I have been trying to be brief, but I have referred to that wording in the past in other arguments. The caveat that they must conform to existing legal mandates is cold comfort to a Parliament that will have already authorized the disbursement of funds and finds out only after the fact how it was actually spent. Effectively, Parliament will have lost the power to decide for itself whether the government has acted within its legal mandate or whether legislative changes are required to authorize the new initiatives.
Beyond those two items, there are a number of others where it is unclear whether legislative changes would be required to legitimize expenditures that vote 40 seeks to authorize. Once again, in these cases, Parliament should get to judge once the program is adequately developed. This is ordinarily the case through the supply process as we know it, but the mechanism of vote 40 subverts that process and Parliament's power of oversight along with it.
Canada's constitutional monarchy is largely based on the British model, which developed largely through Parliament's efforts to limit or appropriate royal prerogative power. The most significant way in which it achieved that goal was by gaining control over public expenditures and the power to raise revenue. The creep of power does not always come by way of conniving maniacs. Sometimes it comes a little more gently with the sense of entitlement typical of those accustomed to power. Parliament is—
Yes, Mr. Speaker. On this particular point of order, I think I can wrap up in about a minute or so, and with any time I have remaining, I will begin to address the second point of order.
Whatever its intentions, the government of the day has presented a very new way of approving funds in the estimates, which I think violates some of the long-standing principles of the process of supply. I believe it is incumbent upon you, Mr. Speaker, to strike vote 40 from the main estimates in order that the parliamentary process be upheld.
By way of explanation, I know that some members may, therefore, feel that the new budget initiatives are not going to get funded. That is simply not the case. Only $221 million of those programs have been allocated by Treasury Board. Those could appear in supplementary estimates.
Moreover, under Standing Order 82, if there are other initiatives that have since been approved by Treasury Board, the government does have an extraordinary way of seeking the approval of Parliament for those initiatives. There are many ways that the government can obtain funding quickly for an initiative that is actually approved and ready to go. The striking of vote 40 need not mean that those initiatives not get funded.
My second point of order today with respect to vote 40 has to do with the implications of vote 40 for study at committee. I know that the vote and the estimates are currently before committee, but the problem is that the structure of the vote actually undermines the committee study process. House of Commons Procedure and Practice is very clear that the appropriate standing committee, the subject expert committee, is the committee that ought to be studying the initiatives presented within the estimates for a particular department.
For instance, on page 1013, House of Commons Procedure and Practice tells us, “When the estimates are tabled in the House, each standing committee receives an order of reference for those departmental and agency votes which relate to its mandate.” However, by including all of the government's new budget initiatives under one Treasury Board vote, the government has disrupted the normal process by which votes are referred to the appropriate subject expert committee. Instead, the 247 new spending initiatives contemplated in the budget and proposed in the estimates by way of vote 40 are referred to only one committee, the Standing Committee on Government Operations and Estimates, which is then expected to study and evaluate the new initiatives for every department, initiatives as disparate as strengthening the Canada Border Services Agency, indigenous sport, Canada's co-chairmanship of the G20 Working Group, and hundreds more.
Asking a single committee with no subject area expertise to examine all of those items would be an unrealistic expectation in the best of circumstances, but I would remind members that this House and its committees have even less time to study the estimates this year than they did last year or any other year before it. Last year, the Standing Orders were changed to allow for the tabling of the main estimates to occur as late as April 16, and in fact that was the date they were tabled. The putative reason for reducing the time for studying the estimates was that we would have more information to better scrutinize the demands in those estimates.
However, we are now in a position where, as I pointed out at previous sitting, the estimates contain less information about proposed new government spending, and have instead substituted promises of post facto reporting for offering information up front. Whereas that information would once have come through the supplementary estimates process concurrently with the request for spending authority, the government, this year, is asking for the authority up front. It is important that the study of the estimates at committee not be undermined by an unprecedented eccentric vote structure that excludes new initiatives from the scope of study of the appropriate committee. As you rightly pointed out on Monday, Mr. Speaker, the study of the estimates does not happen in this place; it happens at those committees. Therefore, it is very important that not be undermined by having—
I appreciate the demands of time. I hope I can resume this point once this important business is concluded.