Financial Procedures / Ways and Means

Motion referring to a document not tabled in the House

January 29, 1990

Debates, pp. 7546-9

On January 24, 1990, Mr. Nelson Riis (Kamloops) rose on a point of order regarding a Ways and Means motion concurred in the previous day which referred to a technical paper that had not been tabled in the House. The Member argued that this omission flouted both the parliamentary tradition which holds that a Ways and Means motion must be based on a document tabled in the House and the age-old practice that financial measures must originate in the House of Commons. According to Mr. Riis, the omission could create uncertainty about the scope of the Bill and the nature of the amendments the House could propose to it. The Hon. Michael Wilson (Minister of Finance) requested time to prepare a reply and the Speaker took the matter under advisement.^[1] During Routine Proceedings, immediately prior to "Introduction of Government Bills", the Speaker asked the House to vote on the introduction and first reading of the Bill based on the Ways and Means motion at issue. He said he would deliver his ruling before the House proceeded with second reading of the Bill.^[2] The following day, Mr. Wilson confirmed that the technical paper was not tabled but that other documents giving out information on the substance of the Ways and Means motions were tabled. The Minister also indicated that he would table the technical paper if the Speaker wished him to do so. Other Members also participated in the discussion.^[3] The Speaker reserved his judgement and on January 29, 1990, returned to the House to deliver his decision which is reproduced in extenso below.

Decision of the Chair

Mr. Speaker: There is agreement in the House, I understand, that I render a judgment now on a point of order raised by the honourable Member for Kamloops a few days ago rather than wait until the completion of Routine Proceedings. I am prepared to do that.

On January 24, 1990, the honourable Member for Kamloops rose on a point of order to contest the procedural acceptability of a Ways and Means motion in which there had been concurrence the previous day. While the Chair allowed the Bill, which was based on this motion, to be introduced and read a first time, I indicated to Members at the time that I would not allow second reading debate on the Bill to begin until the procedural arguments raised by the honourable Member for Kamloops had been considered and a decision rendered. I am now ready to rule on this matter.

Before entering into the case itself, I would like to address a technicality on the timing of the Member 's point of order. The Member for Kamloops explained that he did not raise his point of order on January 23 because Standing Order 83(3) states, "a motion to concur in" a ways and means motion "shall be forthwith decided without debate or amendment".

The Chair would like to point out that the practice and rules of the House would not preclude a Member from raising a procedural objection to the admissibility of a Ways and Means motion when it is called.

Beauchesne Fifth Edition, Citation 235, states:

Any Member is entitled, even bound, to bring to the Speaker's immediate notice any instance of what he considers a breach of order- He should do so as soon as he perceives an irregularity in the proceedings which are engaging the attention of the House.

The Chair simply wants to point out the difference between the restriction against debate on the motion of concurrence and the raising of a point of order. I am quick to point out that while I have made these remarks in the interests of clarification, it makes no difference to the ruling I will make and in no way was the honourable Member for Kamloops prejudiced against putting his point of order and arguing the matter. In short, the Member could have raised his procedural arguments on January 23 but could not have debated the subject matter of the motion.

Let me now proceed to render my decision. On January 24, the honourable Member for Kamloops pointed out that a phrase in the motion of Ways and Means moved by the Minister of Finance referred to a document which had not been tabled in the House of Commons. Specifically, the important passage read:

That a tax-be imposed after 1990 under the Excise Tax Act at the rate of 7 per cent-as set out in the document entitled "The Goods and Services Tax" tabled in the House of Commons by the Minister of Finance on December 19, 1989 and "The Goods and Services Tax Technical Paper" issued by the Minister of Finance on August 8, 1989.

It is the second document referred to in the motion which at that time had not been tabled in the House.

The Member for Kamloops claimed that a Tax Bill had been founded in part on a document released through the press and not tabled in the House. And this, he contends, challenges the age-old practice that Money Bills must originate in the House. Furthermore, he asks whether amendments can now be proposed to the Bill increasing the tax to 9 per cent since the technical paper referred to in the motion outlined a plan for a 9 per cent tax.

The Chair acknowledges that these are serious questions worthy of careful consideration and a full explanation.

Before proceeding, it might be appropriate to explain briefly the significance of the Ways and Means motion, especially to our listening audience, but I suspect sometimes it might be of great help also to honourable Members.

Our parliamentary procedures are based on the premise that before a Government imposes any new tax, or before it seeks to continue any expiring tax, or before it increases the rate or scope of an existing tax, the Government must table a notice of a Ways and Means motion in the House.

"Ways and Means" is the expression used to describe the process by which the Government obtains the resources necessary to meet its expenses. In other words, how it raises taxes. Therefore, our practice requires that a notice of a motion outlining the proposed changes in taxation law be tabled in the House and that this motion be adopted in priority to first reading of a Tax Bill.

This motion of Ways and Means does not have to be identical to the subsequent taxation bill. In some cases, this motion is almost a word-for-word version of the subsequent Bill, but in other cases it may be simply a one-paragraph statement generally explaining the proposed changes.

Honourable Members can be forgiven if sometimes they are in a state of perplexity as to just what exactly is appropriate to include or to leave out of a Ways and Means motion because there has been a very great variety of forms, wording and structure of Ways and Means motions over the many years of the history of our Parliament.

In some cases this motion is almost a word-for-word version of the subsequent Bill, as I have said, but in other cases it may be simply aone-paragraph statement generally explaining the proposed changes. Our Standing Orders specify that the Bill must be, and I quote, "based on the provisions" of the Ways and Means motion. Many of my predecessors have explained in rulings that the words "based on" do not mean "identical to".

I would now like to return to the case presently before us.

When the Member for Kamloops argued that the Ways and Means motion contains reference to a document not tabled in the House, he raised a number of important issues. First, the Chair has been asked to pronounce on whether it is proper for a Ways and Means motion to refer to a document not tabled in the House.

In considering whether a Ways and Means motion should only refer to documents tabled in the House, the argument appears to hinge on whether the House and Members had access to the documents and that these documents were public in nature. The need for such access is obvious. However, I hasten to add that there is nothing in our Standing Orders or in our practice to restrict all references in Ways and Means motions solely to documents tabled in the House.

The particular document in question, the technical paper issued on August 8, 1989, has an interesting history. As the Minister of Finance himself pointed out on January 25, 1990, the technical paper was the subject of a self-initiated committee study which resulted in the presentation of a report to the House on November 27, 1989. This technical paper was also the subject of a supply motion moved by the Member for Yorkton-Melville (Mr. Lorne Nystrom) on October 12, 1989, and I quote from page 4578 of Hansard where the Member, when he commenced debate on the part of the New Democratic Party, said:

I rise today to ask the House to reject this proposal in the technical paper on the goods and services tax.

He was there referring to the technical paper which I have just mentioned.

There is ample evidence that this particular document was well known in parliamentary circles and that copies were readily available to Members from the distribution office. Therefore, in terms of Members' access to this paper, the Chair must conclude that there is no problem. Furthermore, in making his argument on Thursday, January 25, the Minister offered to table the August 8 technical paper and, indeed, did so on Friday, January 26.

On strictly procedural grounds, I wish to repeat again there is no requirement that motions only refer to documents tabled in the House. Unless required by statute or our own Standing Orders, documents are tabled in the House as a courtesy for information purposes.

Far more problematic to the Chair is the ancillary question raised by the honourable Member for Kamloops concerning the possibility of amendments to the Bill based on the Ways and Means motion. This turns, of course, on the relationship between the motion and the taxation bill. The Member argues that the motion imposes an uncertain scope around the goods and services tax bill. Specifically, he points to the contradiction between the 9 per cent tax as outlined in the technical paper and the 7 per cent tax as set down in the December, 1989 document and the motion.

In the event that honourable Members or the public are wondering how this contradiction could be there, it is clearly there because the technical paper was written and made public some time ago and, of course, mentioned 9 per cent and the December document reflected changes in government policy. That is why the document refers to a 7 per cent tax.

On the strict matter of the rate itself, I should immediately say that the specific terms of the motion refer to a 7 per cent tax. When I say "the specific terms of the motion", I am talking about the specific terms of the Ways and Means motion which refer only to a 7 per cent tax and the Bill and any proposed amendments would therefore have to be limited to that rate as an upper limit.

On January 25, 1990, the honourable Minister of Finance also spoke to this point of order. He stated that the reference in the Ways and Means motion to the August 1989 technical paper-hat is the one that spoke about 9 per cent, the first one-and the December 1989 document tabled in the House had been made to be, in his words, "helpful". As he explained on page 7470 of Hansard, and I quote the Minister:

In short, we made reference to the August technical paper as an historical milestone of the GST policy development process in an effort to be helpful to Members of this House- In closing, I would again submit that the Ways and Means motion tabled on Monday of this week stands on its own in providing the scope and the legal authority for the GST legislation, with or without the reference to the August technical paper that my honourable colleague has referred to.

The Chair will accept the explanation given by the honourable Minister that the reference to the documents in the Ways and Means motion is peripheral to the expression of the financial initiative of the Government.

There would be very real difficulties in basing a Tax Bill on documents which were part of a consultative process, not least of all because those documents are not congruent one with the other. Each of the documents details different areas of concern on the general issue of the goods and services tax.

I must say in passing that I and others have examined both of these documents. They have been reviewed very carefully by the Chair in the preparation of this judgment.

In terms of proposing future amendments based on these documents, the Chair could be left in the unenviable position of reconciling the contradictions in these documents, trying to determine what constitutes the four corners of the Bill and the scope of the intended tax.

I think honourable Members, and I am sure the Minister, would agree that this would have been an intolerable procedural situation and one causing the Chair and the House some considerable difficulty.

In this regard, the Chair is reminded of a statement made by one of his predecessors, Speaker Jerome, when he had to decide on the relationship between a Ways and Means motion and the subsequent Bill. On December 18, 1974, Speaker Jerome said:

-the terms of the Ways and Means motion are a carefully prepared expression of the financial initiative of the Crown, and frequent departure from them can only invite deterioration of that most important power.^[4]

As presently worded and distanced from the August and December technical documents, the Ways and Means motion declares simply that a goods and service tax will be implemented after 1990, calculated at a rate of 7 per cent:

a) of the value of the consideration in respect of taxable supplies, on recipients of such supplies made in Canada;

b) of the aggregate of the duty paid value of the goods and any excise tax imposed under the Excise Tax Act in respect of imported goods, on every person who imports goods into Canada; and

c) of the value of the consideration in respect of taxable supplies, other than goods, imported into Canada, on recipients resident in Canada.

I think it should be noted that, in short, this particular Ways and Means motion presents a very broad statement of the financial initiative of the Government vis-a-vis the goods and services tax and so would appear to permit considerable scope for amendments to the Bill within, of course, the 7 per cent rate ceiling.

The terms of the motion itself which I have just outlined must serve as a beacon to guide Members in drafting any amendments. Consequently, in view of the Minister's explanation to the House that the motion stands on its own and does not derive any authority from documents previously issued by the Government, the Chair concludes that Bill C-62, which is based on the Ways and Means motion concurred in on January 23, may now proceed for second reading.

I want to say in addition that the argument put forward by the honourable Member for Kamloops was obviously extremely well researched and was very succinctly presented. I hope that honourable Members will be satisfied that in this judgment we have dealt adequately with the matters raised.

I thank the honourable Minister for assisting the Chair in the clarifications contained in his statements.

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1990-01-29