Under the Canadian system of government,
the Crown alone initiates all public expenditure and Parliament may only
authorize spending which has been recommended by the Governor General.[54]
This prerogative, referred to as the “financial initiative of the Crown”, is
the basis essential to the system of responsible government and is signified by
way of the “royal recommendation”. With this prerogative, the government is
assigned the responsibility for preparing a comprehensive budget, proposing how
funds shall be spent, and actually handling the use of funds. The Constitution
Act, 1867 states that:
It shall not be lawful for the
House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for
the Appropriation of any Part of the Public Revenue, or of any Tax or Impost,
to any Purpose that has not been first recommended to that House by Message of
the Governor General in the Session in which such Vote, Resolution, Address, or
Bill is proposed.[55]
The language of the Constitution is echoed
in the Standing Orders of the House of Commons.[56]
For the first 100 years following
Confederation, any bill or clause appropriating money had to be preceded by a
House resolution, whose wording defined precisely the amount and purpose of any
appropriations sought. The resolution was moved by a Minister of the Crown and
was recommended by the Governor General.[57]
Every appropriating clause of the subsequent bill had to conform to the
provisions outlined in the resolution, and no Member could move amendments to
the legislation that would have the effect of increasing the amount or altering
the purposes which the resolution had authorized.[58] To alter an
appropriating clause, the government had first to obtain a new resolution from
the House, again recommended by the Governor General, embodying the change.
Because the debate on the financial
resolution was often repeated at the second reading stage of the bill, the
House eliminated the resolution stage in 1968.[59]
The Crown’s recommendation would now be conveyed to the House as a printed
notice which would appear in the Notice Paper and again in the Journals
when the bill was introduced, and be printed in or appended to the bill.[60]
The rule change did not alter the constitutional requirement for a royal
recommendation, only the procedure to be followed.
Detailed recommendations were printed until
1976, when the government began using the current formula, which is as follows:
His/Her Excellency the Governor General
recommends to the House of Commons the appropriation of public revenue under
the circumstances, in the manner and for the purposes set out in a measure
entitled (long title of the bill).[61]
In 1994, the Standing Orders were again
amended to remove the requirement that a royal recommendation had to be
provided to the House before a bill could be introduced.[62] The royal
recommendation can now be provided after the bill has been introduced in the
House, as long as it is done before the bill is read a third time and passed.
However, the government has maintained the practice of providing the royal
recommendation to their own bills at the moment they are put on notice for
introduction in the House.[63]
The royal recommendation accompanying a bill must be printed in the Notice
Paper for a 48-hour period, printed in or appended to the bill and recorded
in the Journals.
As a royal recommendation may only be obtained
by a Minister of the Crown, and because Ministers do not usually sit on
committees, any amendment calling for additional public spending may only be
proposed and considered at report stage. If necessary, the Minister puts the
royal recommendation accompanying each motion in amendment at the report stage on
the Notice Paper.[64] The notice period is 24 hours when consideration of the report
stage of the bill takes place after second reading, or 48 hours when it
takes place at second reading.[65]
If a royal recommendation is placed on notice, it is entered in the Journals
for the sitting during which the motion in amendment at the report stage
referred to in the royal recommendation is moved and seconded.[66] It also appears in
the version of the bill adopted by the House of Commons at third reading.
In general, there are two types of bills
which confer parliamentary authority to spend and therefore would require a
royal recommendation:[67]
appropriation acts, or supply bills, which
authorize charges against the Consolidated Revenue Fund up to the amounts
approved in the estimates; and
bills which authorize new charges for purposes
not anticipated in the estimates.[68]
The charge imposed by the legislation must be “new and distinct”; in other
words, not covered elsewhere by some more general authorization.[69]
An appropriation accompanied by a royal
recommendation, though it can be reduced, can neither be increased nor
redirected without a new recommendation.[70]
Because financial legislation must originate in the House of Commons, bills
that require a royal recommendation may not be introduced in the Senate.[71]
A royal recommendation not only fixes the
allowable charge, but also its objects, purposes, conditions and qualifications.
For this reason, a royal recommendation is required not only in the case where
money is being appropriated, but also in the case where the authorization to
spend for a specific purpose is significantly altered.[72] Without a royal
recommendation, a bill that either increases the amount of an appropriation, or
extends its objects, purposes, conditions and qualifications is inadmissible on
the grounds that it infringes on the Crown’s financial initiative.[73]
However, a royal recommendation is not required for a bill whose effect is to
reduce taxes otherwise payable.[74]
Since the mid-1990s, and especially since
2005, there have been many Speakers’ rulings on cases relating to the royal
recommendation. Almost invariably, these precedents have involved public bills
sponsored by private Members on which points of order were raised and in which
the Chair’s ruling considered the unique and specific provisions of each particular
bill.[75]
In the past, when a public bill sponsored
by a private Member infringed on the financial initiative of the Crown, the
Speaker did not allow it to go forward.[76]
However, ever since Standing Order 79 was changed in 1994, private Members’
bills involving the spending of public money have been allowed to proceed
through the legislative process, on the assumption that a royal recommendation
will be submitted by a Minister of the Crown before the bill is to be read a
third time and passed.[77]
If a royal recommendation is not produced by the time the House is ready to
decide on the motion for third reading of the bill, the Speaker must stop the
proceedings and rule the bill out of order.[78]
Under Standing Order 79(2), the royal
recommendation accompanying a bill must be published in the Notice Paper,
printed in or annexed to the bill and recorded in the Journals. Since 48
hours’ notice is required and only two one-hour periods are allocated to the
report stage and third reading for a public bill sponsored by a private Member,
the royal recommendation must be placed on notice at least 48 hours before the
second one‑hour period for the consideration of the measure in question.
If the debate concludes during the first hour, the Speaker will refuse to put
the question and will rule the bill out of order in the absence of a royal
recommendation. If, however, the debate is set to resume for a second hour, the
Speaker will refuse to put the question to a vote at the conclusion of the
debate and will rule the bill out of order in the absence of a royal
recommendation. In the event that a royal recommendation is placed on notice,
it will appear in the Journals for the sitting during which the order is
called for consideration of the bill to which the recommendation applies. It
will also appear in the version of the bill as adopted by the House of Commons
at third reading.
In March 2003, the
House adopted a comprehensive reform of the provisions of the Standing Orders governing
the consideration of private Members’ business.[79] These changes led
the House to pay greater attention to the royal recommendation. As a result of
the reforms adopted in 2003, the number of private Member’s bills that can be
submitted to a vote has increased, and more of these bills can now reach third
reading.[80]
Moreover, since those Members entitled to do so should, in principle, be able
to have a measure debated in the House of Commons at least once each
Parliament, the Speaker wants to give them every possible opportunity to
correct any procedural faults their bills might have. A number of novel
practices have therefore been instituted.
When it appears almost certain that a
private Member’s bill will require a royal recommendation, a team of
legislative counsel and clerks promptly informs the sponsor so that the latter
can make any necessary changes. At the same time, after reviewing all the bills
on the Order of Precedence at the beginning of a Parliament, the Speaker communicates
to the House a list of those that at first glance appear to infringe on the
financial prerogative of the Crown. The Speaker then invites the Members to
explain why, in their view, each of these bills should or should not receive a
royal recommendation.[81]
The Speaker will then hear these points of order at the appropriate time and will
normally make a ruling at the beginning of the second hour of debate.[82]
If necessary, the Speaker will make a definitive ruling at a later point in the
legislative process.[83]
This review also takes place at the beginning of a new session,[84] and when the Order
of Precedence for Private Members’ Business is replenished.[85]
The Speaker has the duty and responsibility
to ensure that the Standing Orders pertaining to the royal recommendation, as
well as the constitutional requirements, are upheld. There is no provision
under the rules of financial procedure that would permit the Speaker to leave
it up to the House to decide or to allow the House to do so by unanimous
consent. These imponderables apply regardless of the composition of the House.[86]
[54]Bourinot, 1st ed., p. 462. Public expenditure is a
charge upon the public revenue. See also Speaker Parent’s ruling, Debates,
February 12, 1998, p. 3765.
[57] See, for example, Journals, April 24, 1873,
pp. 205‑6; May 8, 1873, pp. 302‑4;
May 20, 1873, pp. 396‑9; June 2, 1960,
pp. 527‑8; June 7, 1960, pp. 539‑40.
[58] See, for example, Journals, April 11, 1939,
p. 325.
[59] See the Fifth Report of the Special Committee on Procedure of the
House, presented to the House on December 20, 1968 (Journals, pp. 562,
573, 579).
[60] The rule is as follows: “The message and recommendation of the
Governor General in relation to any bill for the appropriation of any part of
the public revenue or of any tax or impost shall be printed on the notice paper
and in the Votes and Proceedings when any such measure is to be
introduced and the text of such recommendation shall be printed with or annexed
to every such bill”. See Journals, December 20, 1968,
p. 573 (Standing Order 61(2) of 1968).
[61] Keyes, J.M., “When Bills and Amendments Require the Royal
Recommendation: A Discussion Paper and Guidelines”, Canadian Parliamentary
Review, Vol. 20, No. 4, Winter 1997‑98, p. 16.
[62] Standing Order 79(2). See the Twenty‑Seventh Report of the
Standing Committee on Procedure and House Affairs, Minutes of Proceedings
and Evidence,June 9, 1994, Issue No. 16, pp. 6‑7,
presented to the House on June 8, 1994 (Journals, p. 545),
and concurred in on June 10, 1994 (Journals, p. 563).
[63] See, for example, Bill C‑45, An Act to amend the National
Defence Act and to make consequential amendments to other Acts (Journals,
March 3, 2008, p. 496; Order Paper and Notice Paper, March 3,
2008, p. III), and Bill C‑46, An Act to amend the Canadian Wheat
Board Act and chapter 17 of the Statutes of Canada, 1998 (Journals,
March 3, 2008, p. 496; Order Paper and Notice Paper, February 29,
2008, p. III). Occasionally, the government has provided a royal
recommendation after first reading. See, for example, Bill C‑45, An
Act to amend the Criminal Code (judicial review of parole ineligibility) and
another Act, introduced and given first reading on June 11, 1996
(Journals, p. 510), and royal recommendation given at second
reading stage on June 14, 1996 (Journals, p. 553).
[64]Notice Paper, December 7, 2006, p. V; June 4,
2007, pp. V‑VIII.
[66] See, for example, Journals, June 9, 2003, pp. 875‑9;
June 4, 2007, pp. 1463‑6.
[67] For a discussion on the requirement of a royal recommendation,
see Walsh, R.R., “Some Thoughts on Section 54 and the Financial
Initiative of the Crown”, Canadian Parliamentary Review, Vol. 17,
No. 2, Summer 1994, pp. 22‑9. The most recent borrowing
authority bills tabled in the House of Commons have been accompanied by a royal
recommendation. See Journals, February 23, 1994, p. 188;
February 27, 1995, p. 1174; March 6, 1996, p. 55;
February 18, 1997, p. 1146.
[68]May, 23rd ed., p. 849. See also Standing Senate
Committee on National Finance, Proceedings, March 21, 1990,
Issue No. 20, p. 6.
[69]May, 23rd ed., p. 882. Speaker Parent has ruled
that, where statutory authority exists to cover the payment of compensation for
something for which the government is authorized to assume liability, extending
the liability does not itself require a royal recommendation (Debates,
February 12, 1998, pp. 3765‑6). “Where sufficient
statutory authority already exists for payments to which bills relate, no
further … recommendation is required” (May, 21st ed., edited by
C.J. Boulton, London: Butterworths, 1989, p. 717). See also Speaker
Parent’s ruling, Debates, February 10, 1998, pp. 3647‑8.
[70] See Speaker Lamoureux’s ruling, Journals,
June 21, 1972, p. 396.
[71]Constitution Act, 1867, R.S. 1985, Appendix II,
No. 5, s. 53; Standing Order 80(1). See, for example, Speaker Lamoureux’s
rulings, Journals, November 12, 1969, pp. 79‑80;
June 12, 1973, pp. 401‑2; Speaker Parent’s ruling, Debates,
February 12, 1998, p. 3765. With regard to Bill S‑14,
An Act to protect heritage lighthouses, which provided a mechanism for
designating heritage lighthouses and a requirement that they be maintained,
Speaker Milliken ruled that a royal recommendation was not necessary as the
bill did not immediately require the expenditure of public funds (Debates,
June 20, 2005, p. 7397). See also Debates, October 29, 2003,
pp. 8899‑900. Expenditures that may be required to ensure this
provision of the bill is carried out fall within departmental operational costs
for which an appropriation would have been obtained in the usual manner.
[72] See Speaker Milliken’s rulings, Debates, February 24,
2005, pp. 3939-42, in particular p. 3940; May 9, 2005,
pp. 5779-80; November 8, 2006, pp. 4905‑6.
[73] During the debate on a resolution to raise by way of loan an amount
not to exceed $750 million for paying and redeeming certain loans and
purchasing unmatured securities, a Member moved in amendment that part of the
loan be raised by the issue of currency by the Government of Canada. The
amendment was ruled out of order on the ground that it was “proposed with a
view to substituting an alternative scheme to that proposed with the Governor
General’s recommendation”. See Journals, April 11, 1939,
p. 325. See also Speaker Lamoureux’s rulings, Journals,
June 21, 1972, p. 396; February 5, 1973, p. 93.
[74] See Debates, October 16, 1995, p. 15410. On
this occasion, Speaker Parent ruled that the repayment of tax revenues already
received was not an appropriation of public money.
[75] See, for example, Debates, February 11, 2008,
pp. 2853‑4; June 2, 2005, p. 6582; February 8, 2005,
p. 3253; June 13, 2005, pp. 6990-2; October 26, 2005,
pp. 9133‑4; November 22, 2007, pp. 1264‑5;
November 6, 2006, p. 4758; May 2, 2008, pp. 5381‑2;
November 24, 2005, p. 10133; March 21, 2005, pp. 4372‑3;
October 20, 2006, p. 4039; November 6, 2006, p. 4719;
November 9, 2006, p. 4979; November 10, 2006, p. 5027;
March 23, 2007, p. 7845; April 18, 2007, p. 8376;
November 26, 2007, pp. 1314‑5; May 8, 2008,
pp. 5586‑7; December 7, 2004, p. 2412; September 25,
2006, pp. 3197-8; September 27, 2006, pp. 3314-5; November 8, 2006,
p. 4906; October 3, 2005, pp. 8293‑4; September 20, 2006,
pp. 3044-5; February 23, 2007, p. 7261; May 15, 2007,
pp. 9515-6.
[76] For examples of private Members’ bills ruled out of order because
they infringed on the financial initiative of the Crown, see Debates,
April 20, 1971, pp. 5093‑4, 5096‑7;
February 6, 1973, p. 1018; September 18, 1973,
p. 6690.
[77] Note that in December 1994, a Royal Recommendation was provided for
a private Member’s public bill, Bill C‑216, Unemployment Insurance Act
(Jury Service). See Journals, December 6, 1994, p. 997,
Debates, p. 8734.
[78] See, for example, Debates, June 1, 2007, p. 10057;
November 30, 2007, p. 1608.
[79] See the Sixty-Sixth Report of the Standing Committee on Procedure
and House Affairs, presented to the House on June 12, 2002 (Journals,
p. 1571). See also the Committee’s Fourth Report, presented to the House
on October 30, 2002 (Journals, p. 138), and concurred in on
November 6, 2002 (Journals, p. 170). See the First Report of
the Special Committee on the Modernization and Improvement of the Procedures of
the House of Commons, presented to the House and concurred in on
February 20, 2003 (Journals, p. 439), as well as the
Committee’s Third Report, presented to the House on February 28, 2003 (Journals,
p. 492), and concurred in on March 17, 2003 (Journals,
p. 495). See also the Thirty-Seventh Report of the Standing Committee on
Procedure and House Affairs, presented to the House and concurred in on
May 11, 2005 (Journals, pp. 738-9). For further
information on the reform of the Standing Orders governing the consideration of
private Members’ business, see Chapter 21, “Private Members’ Business”.
[80] During the take-note debate on the Standing Orders early in the
First Session of the Thirty‑Eighth Parliament, a Member argued that the
royal recommendation was being interpreted much more strictly than in the past
(Debates, April 11, 2005, pp. 4857‑8). Speaker Milliken
took the opportunity to say that the obligation to inform the House of the
exigencies of the Standing Order regarding the royal recommendation was less at
a time when few public bills sponsored by a private Member were subject to a
vote (Debates, May 9, 2005, pp. 5779-80).
[81] See Debates, November 18, 2004, pp. 1553-4;
May 31, 2006, pp. 1777-9.
[82] See Debates, December 11, 2007, pp. 2020‑1;
January 31, 2008, p. 2434 (explanatory statement); February 11,
2008, pp. 2853‑4 (Speaker’s ruling). See also Debates,
October 18, 2007, pp. 63-5; October 23, 2007,
pp. 239-40 (explanatory statement); November 22, 2007,
pp. 1264‑5 (Speaker’s ruling).
[83] See Debates, November 9, 2006, p. 4979 (ruling at
the second reading stage, during the First Session of the Thirty-Ninth
Parliament, that a royal recommendation is required); October 17, 2007,
p. 53 (statement to the effect that the bill, as reinstated during the
Second Session of the Thirty-Ninth Parliament, no longer requires a royal
recommendation since all its provisions were deleted in committee);
October 29, 2007, p. 469 (ruling at the report stage to the effect
that Motion No. 2, to re-establish one of the provisions that was deleted
in committee, requires a royal recommendation). See also Debates,
September 27, 2006, pp. 3314‑5 (ruling at the second
reading stage to the effect that a royal recommendation is not required);
February 8, 2007, pp. 6548‑9 (ruling at the report stage
to the effect that amendments adopted in committee do not create a new and
distinct purpose that involves new spending and that a royal recommendation is
still not necessary); February 14, 2007, pp. 6816‑7 (ruling
upheld pursuant to a point of order raised the day prior to the taking of the
deferred recorded divisions on the report stage motions). See also Debates,
February 13, 2007, pp. 6796-9.
[84] Just as individual items of private Members’ business continue
their legislative progress from session to session, the Chair’s rulings on
these same items likewise survive prorogation. See Debates,
October 17, 2007, p. 53.
[85] See Debates, December 7, 2006, pp. 5768‑9;
May 4, 2007, pp. 9086‑7; December 7, 2007,
p. 1902; March 11, 2008, pp. 3971‑2; June 10, 2008,
pp. 6818‑9.
[86] See Deputy Speaker Laniel’s ruling, Debates,
November 9, 1978, pp. 975‑7; Deputy Speaker Francis’
ruling, Debates, November 3, 1983, pp. 28655‑7;
Speaker Milliken’s ruling, Debates, February 24, 2005,
pp. 3939-42, in particular p. 3942. On that occasion, the Speaker
told the Members that, “while the dynamics of a minority House might be quite
different from the dynamics in a majority situation, the constitutional basis
of our parliamentary system has not changed and the prerogatives of the Crown
remain intact”. See also Debates, September 20, 2006,
pp. 3044‑5.
