PM's claim Senate can't amend budget bills contains 'some baloney'
Prime Minister Justin Trudeau responds to a question during question period in the House of Commons on Parliament Hill in Ottawa on Wednesday, May 4, 2016. (Sean Kilpatrick / THE CANADIAN PRESS)
Joan Bryden, The Canadian Press
Published Thursday, June 29, 2017 9:10AM EDT
OTTAWA -- "The issue around budgets, of course, is it's the House of Commons that votes on budgetary measures, and the Senate is, of course, welcome to look at it and make recommendations. But the legitimacy happens from the House of Commons on this."
-- Prime Minister Justin Trudeau, interview with Global TV's West Block, broadcast June 18, 2017
The House of Commons and the Senate sent each other snarky messages last week in a dispute over which chamber of Parliament has the ultimate authority over money bills.
MPs from all parties in the Commons summarily rejected amendments the Senate had made to Bill C-44, legislation to implement the measures in last March's federal budget, informing the upper house that the amendments "infringe upon the rights and privileges of the House."
The message was consistent with the prime minister's previous, repeated warnings that only the elected Commons has the "legitimacy" to decide budgetary matters and that the unelected Senate has no business trying to rewrite a budget bill.
Senators eventually acquiesced to the will of the elected chamber and dropped their insistence on the amendments but, at the same time, they took the unprecedented step of reasserting their right to make such amendments.
"The Senate confirms its privileges, immunities and powers as provided under the Constitution to amend legislation, whatever its nature or source," senators informed the Commons in a message supported even by Peter Harder, the government's representative in the Senate.
"We asserted our rights as a Senate, as an institution, with respect to our role and responsibilities on all legislation," Harder said, emphasizing the word "all."
So, who's right?
Spoiler alert: The Canadian Press Baloney Meter is a dispassionate examination of political statements culminating in a ranking of accuracy on a scale of "no baloney" to "full of baloney" (complete methodology below).
This one earns a ranking of "some baloney" -- Trudeau's statement is partly accurate but important details are missing.
The Senate's friskiness on C-44 has prompted hyperventilating in some quarters that Trudeau's more independent, less partisan chamber of sober second thought is coming back to bite him and taking the country down the road to a potential constitutional crisis.
But the fact is that the dispute over the Senate's power to amend money bills dates back 150 years, to the very first standing orders or rules adopted by the House of Commons at Confederation.
According to the annotated standing orders of the House of Commons, the elected chamber immediately proclaimed its pre-eminence over all financial matters and asserted that financial legislation could not be altered by the Senate. That rule -- standing order 80(1) -- was based on the text of a resolution passed by the British House of Commons in 1678 and it remains on the books to this day.
Senators have never accepted this limitation on their powers.
After numerous disputes, a special committee of the Senate was created in 1918 to consider the issue. It concluded that the Senate "has and always had since it was created" the power to amend financial bills, provided that such amendments did not increase spending or taxation.
The power to amend money bills "was given as an essential part of the Confederation contract," the committee said. Moreover, it said the Commons' claim to the same exclusive rights and privileges over money bills as enjoyed by its U.K. counterpart was "unwarranted" under the provisions of Canada's Constitution.
Sect. 53 of the Constitution stipulates that money bills "shall originate in the House of Commons." While that prohibits the Senate from initiating money bills, senators maintain it doesn't stop them from amending or even defeating them.
As Sen. Joe Day, leader of the independent Liberals, put it during debate on C-44: "The standing orders or rules of one chamber cannot prescribe or limit the constitutional powers of Parliament's other chamber."
The Senate has frequently flexed its legislative muscle in defiance of the Commons' claim to pre-eminence in financial matters. But the House's response to such Senate impertinence has been inconsistent over the years.
"Since Confederation, the Senate has regularly asserted the right to amend money bills," notes the "House of Commons Procedure and Practice," second edition.
"In some instances, the House of Commons has rejected the Senate's amendments and claimed its financial privilege. On other occasions, however, the House has waived its privileges and accepted the Senate amendments ... However, the House has, on occasion, accepted or rejected amendments with no reference made to its privileges whatsoever."
Six months ago, Finance Minister Bill Morneau asked the Senate to use its power to amend money bills -- a power his government now claims doesn't exist -- to remove controversial changes to the Bank Act from a budget implementation bill.
Last week, independent Liberal Sen. Serge Joyal, a constitutional expert in his own right, mischievously challenged the government to refer the issue of which chamber has authority over money bills to the Supreme Court.
Peter Hogg, Canada's foremost constitutional authority, suspects the failure to ever seek a court ruling on the subject is deliberate, designed to leave governments with the flexibility to accept or -- in the case of Morneau and the Bank Act -- request Senate amendments when it suits them.
"It does look as though the value of flexibility in practice will ward off any attempt to get a court ruling," he said.
In the absence of a court ruling, Hogg is uncertain how a court might interpret sect. 53 of the Constitution and whether it limits the Senate's power to amend financial bills.
"On this one, I am not confident about the correct interpretation," he said.
"But I would lean in the direction of the House of Commons' position on the basis that a bill that has been amended by the Senate has not wholly 'originated' in the House of Commons."
University of Waterloo political scientist Emmett Macfarlane leans in the other direction.
"Sect. 53 only limits where money bills can originate, which is in the House of Commons. So it is true that the Senate enjoys the formal power to amend or even defeat money bills and I would be surprised if a court were to rule differently," he said.
University of Regina political scientist Howard Leeson said he too would "tend to side with the Senate."
"I believe that there is nothing in the plain reading of sect. 53 to prevent it," he said, adding that it would be "interesting to see this tested in the Supreme Court."
Trudeau's assertion that only the House of Commons has the "legitimacy" to decide budgetary matters is a matter of dispute that has been raging between the two houses of Parliament for 150 years. Experts are divided over which chamber is correct.
For these reasons, Trudeau's assertion scores a rating of "some baloney."
- No baloney -- the statement is completely accurate.
- A little baloney -- the statement is mostly accurate but more information is required.
- Some baloney -- the statement is partly accurate but important details are missing.
- A lot of baloney -- the statement is mostly inaccurate but contains elements of truth.
- Full of baloney -- the statement is completely inaccurate.