When bills and amendments require the royal recommendation.

• Author: Keyes, John Mark

John Mark Keyes is Senior Counsel with the Legislation Section of the Department of Justice. This is a revised version of a paper delivered to the Canadian Study of Parliament Group Meeting on June 12, 1997. The author gratefully acknowledges the contribution of his colleagues in the Legislation Section who helped with their comments and revision of the French text of this article, particularly Claude Bisaillon, Philippe Hallee, Louise Faille and Bernard Mechin.

In general terms, the royal recommendation is required for any bill or amendment that envisages the spending of public money. The bill or amendment cannot be adopted by the House of Commons unless it has been recommended to the House by the Governor General. This paper is intended to provide guidance on whether bills, or amendments to them, require the royal recommendation. It is also intended to promote discussion of some of the murkier aspects of this subject.

The requirement for the royal recommendation has a number of sources. The first is section 54 of the Constitution Act, 1867:

54. It shall not be lawful for the House of Commons to adopt or pass any vote, resolution, address of 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.

Although a French version of section 54 has yet to be adopted, the following is the wording proposed in the Final Report of the French Constitutional Drafting Committee.

54. La Chambre des communes n'est habilitee a adopter des projets de credits, ou des projets de resolutions, d'adresses ou de lois comportant des affectations de credits, notamment d'origine fiscale, que si l'objet lui en a ete prealablement recommande par message du gouverneur general au cours de la session ou ces projets sont presentes.

This wording also has official status in so far as both versions are repeated almost verbatim in Standing Order 79(1) of the House of Commons. The requirement for the royal recommendation is also reflected in Rule 81 of the Senate, which says: "The Senate shall not proceed upon a bill appropriating public money that has not within the knowledge of the Senate been recommended by the Queen's representative."

History and Purpose of the Requirement

The requirement for a royal recommendation originates in British parliamentary practice and is based on the constitutional principle that the Crown, rather than the House of Commons, should take the initiative in granting public money.

Until late in the 17th century, grants of public money were linked to levies of taxes. The House of Commons was content to consider and approve requests from the Crown to impose taxation measures and use the proceeds. This changed by the 18th century when Parliament assumed greater control of public spending through the tabling of estimates and the approval of particular appropriations. However, revenues often exceeded the amounts appropriated leaving surpluses in the Consolidated Fund. To prevent members of the House from initiating legislation o grant this money, a standing order was made in 1713 stating: "That this House will receive no petition for any sum of money relating to the public service but what is recommended by the Crown."

This standing order was given a broad interpretation and applied not only to petitions, but also to any other steps that would tend to impose a burden on the public purse. In 1852, the standing order was amended to reflect this practice. "That this House will receive no petition for any sum of money relating to the public service or proceed upon any Motion for granting any money but what is recommended by the Crown."

The standing order was again amended in 1866 to deal with a drafting practice that had been developed as a means of avoiding the requirement of the royal recommendation. Bills were being drafted with clauses saying that the expenses necessary to implement them were to be paid out of money to be voted by Parliament. Passage of these bills effectively bound Parliament to approve subsequent measures appropriating money to implement the bills. The 1866 amendment was intended to deflect this practice by extending the requirement of the royal recommendation to grants of money "to be provided by Parliament". The amended standing order said: "That this House will receive no petition for any sum of money relating to the public service or proceed upon any Motion for granting any money, whether payable out of the Consolidated Revenue Fund or out of monies to be provided by Parliament, unless recommended from the Crown."

This amendment also signalled a development in the basis for the royal recommendation. In addition to providing the Crown with a means of controlling expenditures, it also facilitated the scrutiny of bills having financial implications by flagging them to members of Parliament.

Bourinot comments that:

In the old legislature of Canada, previous to 1840, all applications for supplies were addressed directly to the House of Assembly, and every governor, especially Lord Sydenham, has given testimony as to the injurious effects of the system. The Union Act of 1840 placed the initiation of money votes with the Crown, and this practice was strictly followed, up to 1867, when the new constitution came into force. "One of the greatest advantages of this union will be that it will be possible to introduce a new system of legislation, and, above all, a restriction upon the initiation of money votes," observed Lord Sydenham in his celebrated report. (1)

Bourinot is speaking here or section 57 of the Union Act, 1840. This provision was copied almost verbatim into section 54 of the Constitution Act, 1867. The principles underlying the requirement in Canada also match those in the British Parliament, as indicated by Bourinot:

The cardinal principle, which underlies all parliamentary rules and constitutional provisions with respect to money grants and public taxes is this, when burthens are to be imposed on the people, every opportunity must be given for free and frequent discussion, so that parliament may not, by sudden and hasty votes, incur any expenses, or be induced to approve of measures, which entail heavy and lasting burthens upon the country. (2)

It is also worth noting that until 1968, the Standing Orders of the House of Commons said that bills requiring the royal recommendation had to be preceded by the adoption of a financial resolution. The resolution precisely defined the amount and purpose of the proposed appropriation. During the 1960s, the House of Commons found that the debate at the resolution stage was frequently repeated at second reading.

In order to reduce the amount of time spend on these bills, the resolution requirement was replaced with the...