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Speech in Senate Chamber: Appropriation Bill No. 1, 2017-18, Bill C-41, An Act for granting to Her Majesty certain sums of money for the federal public administration for the financial year ending March 31, 2018

Honourable senators, I speak to second reading of our supply Bill C-41, Appropriation Act No.1, An Act for granting to Her Majesty certain sums of money for the federal public administration for the year ending March 31, 2018.  This is our first supply Bill in the annual supply cycle April 1, 2017 to March 31, 2018.  This Bill sets out by vote the sums of money required by Treasury Board and the government for the first period of this new supply cycle.  This Bill requests the total amount of $30,140,965,114, which sums and votes were put before the Commons House and the Senate as the Main Estimates 2017-18.  On April 1, this Saturday, Treasury Board, and all government, will shift into this new annual supply cycle that will end March 31, 2018.  Bill C-41 is Treasury Board’s total requested payments on the monies and votes set out in the Main Estimates for this first supply period.   Bill C- 41 will grant 3/12 of the year’s voted amounts.  The remaining 9/12 will be granted by a second appropriation in June.   For long, the Senate and Commons practice each year has been to vote these two bills by March 31, because the fiscal year end brings large financial demands on Treasury Board to meet the financial needs of the public service, the public administration, and their expenditure, known as the national and public finance.  These last two weeks of the annual supply cycle year’s end are most demanding.  I note that these appropriation bills cannot be moved and adopted in the Senate, until the two related Senate National Finance Committee Reports on the Supplementary and Main Estimates have been adopted here.  It is an established Senate practice that the Senate’s adoption of its National Finance Committee Report on the Estimates is the signal to bring on the debate and vote on their related Appropriation Acts. The goal is to avoid absolutely the constitutional calamity that would be the Senate defeat of the House of Commons Appropriation Bill, and its negative consequences for the Treasury Board ministers and the government.  Our Committee Reports on the Estimate are pathfinders, leading the way for the safety and wellbeing of their supply Bills’ adoption here.  The goal is to absolutely avoid conflict between the House of Commons and the Senate on supply and the public finance.  The Senate has a large constitutional duty, in the national finance and expenditure, to consider and study Treasury Board’s Main and Supplementary Estimates in our Senate National Finance Committee.  The Confederation Fathers gave the Senate this role in our confederating statute, the British North America Act 1867.  This year 2017, we celebrate our enduring, abiding and now one hundred and fifty year old constitution, which I believe is the finest constitutional instrument ever devised by the hands of man.  In 1867, Lord Carnarvon, Britain’s Colonial Secretary, sponsored it in the House of Lords.  After this, it was adopted in the Commons House.  Her Majesty Queen Victoria gave it Her Royal Assent.  In London, the Fathers had worked with Lord Thring, the brilliant legislative drafter. This statute’s longevity is attributed to his masterful skills.  I note that Queen Victoria’s May 22, 1867 Proclamation of the British North America Act, which came into force July 1, listed the names of Canada’s first senators, selected from the pre-confederation provinces legislative council members.  I note that Quebec Resolution 14, later London Resolution 15, recommended this, and also, that such selection must pay due regard to the political parties, then critical in our political process.  The B.N.A. Act section 25 said:

25. Such Persons shall be first summoned to the Senate as the Queen by Warrant under her Majesty’s Royal Sign Manual thinks fit to approve, and their Names shall be inserted in the Queen’s Proclamation of Union.1 

This spent section 25 was repealed by the post confederation Statute Law Revision Act 1893.

Honourable senators, the Fathers gave the Senate its large constitutional role in the national finance.  The Senate accepts British Commons House anciently claimed ownership of supply, their sums and monies voted by our Commons House to finance the expenses of Her Majesty’s civil list, the public service and public administration.  In parliamentary debates and papers, these monies were described as aids, subsidies and supplies. Canada’s House of Commons was constituted like the house of a unitary state.  But the Senate was constituted as the house that embodies and actuates the federation.  For this, this Senate has long had a Standing Senate Committee on National Finance, on which I serve.  Senate practice has long held that this Committee’s Chairman must be an opposition supporter, currently Conservative Senator Larry Smith, and that the Vice Chairman must be a government supporter.  The problem is that the Senate has no government supporter caucus, which is too bad.  Supply bills, properly called appropriation bills, are so named because the Commons House is said to appropriate monies as their parliamentary grants for the public expenditure that are aids, subsidies and supplies.  L.A. Abraham and S.C. Hawtrey’s 1964 A Parliamentary Dictionary defines “appropriation” at page 21 thus:           

It is one of the cardinal rules of the system of public finance that no money may be spent for any other purpose than that for which it was authorized by Parliament.  The allocation of a sum of money for expenditure on any object is said to be “appropriated” by Parliament for a particular purpose.2        

Colleagues, the Commons House claims ownership of these appropriated sums, asserting them as their gifts to their sovereign.  I note that the Royal Assent which grants our bills the force of law is given here in the Senate, the upper and the royal house of parliament, in which Her Majesty’s Representative, the Governor General, or in his stead a deputized Supreme Court Justice, grants the Royal Assent to Bills.  This gives them the force of law as statutes.  When the bills assented to are financial, tax, supply and appropriation bills, the ceremony reveals much about the Commons House ownership of appropriation bills.  For Royal Assent, the Governor General, having come to the Senate, takes the Senate Speaker’s chair.  The Senate Speaker dispatches our ancient officer, the Usher of the Black Rod, to the Commons House to bring its members and Speaker before His Excellency in the Senate.  Black Rod says to the Commons:

It is the pleasure of His Excellency the Governor General of Canada that they attend him immediately in the Senate Chamber.

Having come, the Commons members and their Speaker stand behind the Senate bar.  A clerk at the table reads the titles of the bills awaiting Royal Assent, except the supply bills, which the Commons Speaker has in his possession, in his own hands.  The Governor General quietly nods his Assent to the other bills.  Our ancient officer, the Clerk of the Senate, announces his Royal Assent thus:

In Her Majesty’s name, His Excellency the Governor General of Canada doth assent to these bills.    

                   

Honourable Senators, now to the Royal Assent of the supply bills, which are in the Commons Speaker’s hands, clearly in his possession.  With the supply bills in his hands, the Commons Speaker addresses His Excellency the Governor General thus:

May it please Your Excellency:                                                                                          The Commons of Canada have voted supplies to enable the Government to defray certain expenses of the public service.  

In the name of the Commons, I present to your Excellency the following bills:   

Bill C-40, An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2017,

Bill C-41, An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2018,

To which bills I humbly request Your Excellency’s Assent.

 

A Senate reading clerk goes to the Bar, and retrieves the bills from the Commons Speaker, bowing to His Excellency several times in both directions.  This reading clerk then reads the titles of these supply bills.  His Excellency again quietly nods his head to signify His Assent to the appropriation bills.  Our Clerk of the Senate announces the Royal Assent to these bills in the words:

In Her Majesty’s name, His Excellency the Governor General of Canada thanks her loyal subjects, accepts their benevolence and assents to these bills.

 

 Honourable senators, the Royal Assent ceremony acts  out  the Commons House possession and ownership of appropriation and supply which they treat as their gifts and benevolence to their Sovereign, ever  mindful that the enacting and actuating power in our Constitution is Her Majesty Queen Elizabeth II, our Head of State, our Head of Government and Our Head of Parliament.  All legal power and authority is vested in Her.  We must also be mindful that the Commons House jealously holds its power of the control of the public purse, and jealously defends and maintains this power.  That being the case I note and strongly assert that the Senate has the constitutional power to correct,  amend  and even defeat Commons financial bills, limited only by section 53 of the Constitution Acts 1867 that says:

53. Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or impost, shall originate in the House of Commons.3 

The Senate may not originate a bill to appropriate monies or to raise taxes.  This Commons constitutional right and power were anciently birthed, developed and grown in Britain’s House of Commons and its constitution in the three large and enduring principles known as representation by population, no taxation without representation, and the financial initiatives of the Crown.  These principles are expressed in the one custom that financial or money bills that raise taxes, appropriate the public revenue must begin in the Commons House on motion of a minister of the Crown.  No back benchers. Please, only Her Majesty’s Canadian cabinet ministers may move such motions.   

Honourable senators, there is much misunderstanding about the proper role of parliament.  In Britain’s House of Commons on March 25, 1884, speaking to 3rd reading of the consolidated fund bill, Lord Randolph Churchill said that the House of Commons first duty was to grant and control supply for the finance of the public administration and public service. The U.K. Commons Debates records this, at page 752.  

Legislation was not the first Business of Parliament; it never has been, and he hoped it never would be.  The first Business of Parliament was to grant Supply to the Crown; and it was the duty of the House of Commons, when that Supply was asked for, to inquire with care for what purposes that Supply was required, in what manner that Supply would be expended, and by what methods that Supply would be raised.  That was, undoubtedly, the first duty of the House of Commons; and it was because of the persistent, continual, and studied neglect of this principle by Her Majesty`s Government that the finances of this country were in such disorder.  It would be well for the country if this House were to recognize this Constitutional practice in a Standing Order, and to lay down that legislation should not be proceeded with until Supply had been almost entirely disposed of.4                                                                                                                                      

Churchill expressed the known concerns for parliament’s growing neglect in the control of the public purse.

Honourable senators, I remind colleagues of the Commission of Inquiry into the Sponsorship Program and Advertising Activities.  Commissioner Justice Gomery, in his Report, noted some failures in the Supplementary Estimates.  He wrote at page 60:

Supplementary Estimates request funds from Parliament to accommodate increases in expenditures after the Main Estimates have been submitted.  It is not unusual for up to 10 percent of the expenditures of some programs to be contained in Supplementary Estimates. The committee review of Supplementary Estimates is customarily even more cursory than that of the Main Estimates.  The Commission’s Fact Finding Report found that the Sponsorship Program was not identified in the Estimates as a separate activity and that the statutory authority for the Program was far from clear. Indeed, concerns about both the ability of the Estimates to serve as a control document over government financial administration and the adequacy of the review of the Estimates by Parliament and parliamentary committees appear to be shared by experts and parliamentarians alike.5

Justice Gomery speaks to his perceived inadequacy of the Supplementary Estimates respecting the Sponsorship Scandal.  His recommendation 1 said:

To redress the imbalance between the resources available to the Government and those available to parliamentary committees and their members, the Government should substantially increase funding for parliamentary committees.6

Some Canadian scholars have written on this.  In his 1962 book, The Public Purse, Norman Ward said, at page 247:

The most pertinent question concerning parliamentary control of this spacious spending is whether or not the democratic devices for examining public expenditures have developed as rapidly as the rising costs of government.  There is only one possible answer: no.  Important changes in the Commons’ procedure have taken place, to be sure, and some of the most recent show promise as the basis for future development.  But the House has been extremely slow, and excessively cautious, in inventing institutions to cope with rapidly growing and complex executive affairs, and members still complain with justification of the hasty voting of supply on the last day or two of the session.  The House now thinks nothing of granting as a matter of course, sometimes literally without consideration, sums larger than those on which it used to spend entire sessions.7

Honourable senators,   I thank colleagues for their attention.  I strongly urge senators to be active and vigilant in our Senate’s critical and important constitutional role in the public and national finance.