At the time this article was written Gary O’Brien was Director of the Committees and Private Legislation Branch of the Senate.

The origins of the Royal Recommendation date back in England to 1706 and in Canada to 1793.1 Despite its importance, it is a requirement whose meaning remains somewhat mysterious in part because a clear statement of the scope of its application is difficult to find. Our parliamentary authorities are not entirely helpful. Bourinot's Parliamentary Procedure, which last appeared in 1916, refers to cases which have little relevance today, such as subsidies to railways, and contracts for government services. Beauchesne's Parliamentary Rules and Forms, updated in 1989, fails to provide satisfactory tests for judging whether or not a matter requires a royal recommendation and does refer extensively to jurisprudence on this question.2 Erskine May's Parliamentary Practice is much more comprehensive but the discussion is devoted to the procedures of the United Kingdom Parliament, which differ considerably from our own3. The purpose of this article is to attempt to clarify some of the basic requirements of the royal recommendation based on the precedents and traditions of the Parliament of Canada, and to identify some of the subjects which have needed His Excellency's approval.

The procedure that any measure presented to a legislature calling for the appropriation of public revenue must first be recommended by the Crown is a distinguishing feature of parliamentary government.

Sir Ivor Jennings once remarked that in approaching the subject of financial control in Parliament, "we reach the boarders of the realm where law, parliamentary privilege and parliamentary customs are all almost inextricably intertwined".4 Such intertwining makes it difficult to sort out whether the application of the royal recommendation is a legal or procedural requirement. Although claims have been made that the royal recommendation is linked to the royal prerogative in matters of supply and taxation5 it appears to fall into, what K.C. Wheare would refer to as, a class of constitutional rules which are rules of strict law6. Section 54 of the Constitution Act, 1867 states:

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.

The law officers of the Crown are directly involved in advising the government if a bill requires a royal recommendation. The Department of Justice has established a series of guidelines for determining the question and those involved in the drafting of bills ascertain if they think a royal recommendation is required, based on those guidelines.7 However, both the House of Commons and the Senate have enacted rules of procedure respecting the requirement. The Common's Standing Order 79(1) repeats the words of Section 54 of the Constitution Act. Senate Rule 82 states "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." Doubts arising about its application are referred to the respective Speaker for determination. Although the Speakers are not to give a decision upon a constitutional question or decide a question of law8, they do rule on matters involving the interpretation of their rules. Sometimes their decisions conflict with those of the department officials. In 1970, for example, in reference to a Minister's comment that the Department of Justice had given an opinion that a particular bill was in conformity with the requirements of the royal recommendation, the Speaker remarked "I would not think it is entirely satisfactory or sufficient for the Minister of Finance to say that the recommendation had been put forward by the law officers of the Department of Justice and there is therefore a presumption that it is right. I suggest that this presumption should not exist"9. In another instance, a minister noted he had reviewed the matter with his staff and that the bill in question did not impose a charge upon the people. The Speaker replied that he too had "looked at the bill very closely and I have the same doubts that I had yesterday and before" and ruled that the bill was not in order10.

In the final analysis, the requirements of the royal recommendation have traditionally been decided by reference to the precedents of the legislature, which are what Josef Redlich called "the rock" out of which parliamentary procedure is quarried11. In synthesizing the many precedents of the British Parliament on this question, Sir Gilbert Campion, in the 1946 Fourteenth edition of May's Parliamentary Procedure, derived three basic tests to determine whether an expenditure involved a charge. They were: (i) a charge must be new and distinct; (ii) an expenditure, to be a charge, must be payable out of the Consolidated Fund or National Loans Fund; and (iii) a charge must be effectively imposed.12 Campion's three tests are based upon the requirements of the present British House of Commons Standing Order 46, which states that "this House will receive no petition for any sum relating to public service or proceed upon any motion for a grant or charge upon the public revenue, whether payable out of the Consolidated Fund or the National Loans Fund or out of money to be provided by Parliament, or for releasing or compounding any sum of money owing to the Crown, unless recommended from the Crown."

If one was to formulate a similar series of tests or standards by which to judge the requirement in Canada, Campion's work is surely the most useful since the principle of the royal recommendation is the same in both countries. However, the tests should be revised since the wording of our written requirements, that is section 54, Standing Order 79(1) and Rule 82, is quite different from British Standing Order 46. For example, the Canadian requirements do not refer to a "charge" but rather to an "appropriation". Neither do they refer specifically to the "Consolidated Fund or National Loans Fund". Instead, they refer to the "Public Revenue, or of any Tax or Impost".

What follows are suggested tests taken from Campion which could be used to determine if certain matters need to be accompanied by a recommendation of the Governor General. They are based on rulings rendered by the Speakers of the House of Commons and the Senate and the written requirements. It must be emphasized that these tests reflect past practices of Parliament. In the future, Speakers may, according to new circumstances, make different decisions on these matters, which is their privilege and duty to do. The appropriate references to the Debates of the House of Commons (indicated by "HCD") and Journals of the Senate (marked "SJ") follow the examples cited. The instances referred to may fall into more than one category.

The appropriation must be new and distinct.

Campion's first test states that "the question may arise whether a proposal for expenditure or for increased expenditure is not already covered by some general authorization. The test for determining this question in the case of a substantive proposal, i.e. a provision in a bill, as introduced, is a comparison with existing law".13 The following examples may be cited as having constituted new and distinct appropriations.

(a) Increasing the amount of appropriation -- Measures which have: -- Made direct expenditures through appropriation acts or through bills which contain clauses authorizing statutory expenditures for purposes other than those provided for annually;14 Initiated payments four months early (HCD, June 27, 1972, p. 3542); Raised old age pensions (HCD, March 27, 1973, pp. 2663--4); Provided benefits to women who will adopt a child (HCD, June 23, 1977, p. 7052--3); Directed that government provide sufficient funds to rehabilitate branch lines (HCD, September 29, 1983, p. 27569--70); Directed that government establish a system of payments to agricultural producers (HCD, October 3, 1983, p. 27674--75); Changed the base year for calculation of each contribution (HCD, April 4, 1984, p. 2723); Granted sum for resettling Indian band members (HCD, June 10, 1985, p. 5604); Substituted a different escalator clause for fiscal arrangements (HCD, May 28, 1990, p. 11942); Provided that firearm owners be compensated regarding prohibited weapons (HCD, November 5, 1991, p. 4544--5); Established a fund to be distributed among referendum committees (HCD, June 2, 1992, p. 11204).

(b) Extending the purposes of the appropriation -- Measures which have: -- Redirected payments already appropriated (HCD, June 21, 1972, pp. 3336--7); Changed the destination of an estimates vote (HCD, March 24, 1970, p. 5408); Extended the objects and purposes of retirement benefits (HCD, January 17, 1983, p. 21885).

(c) Altering the conditions and qualifications of an appropriation -- Measures which have: --Altered age and other eligibility requirements of old age security (HCD, May 16, 1972), pp. 2326--7); Expanded classes of individuals for family allowances (HCD, September 13, 1973, pp. 6495--6); Extended eligibility provisions for student loans (HCD, March 20, 1974, pp. 690--1); Extended maternity leave under labour code (HCD, November 25, 1980, p. 5058--9); Extended compensation for crop damage (HCD, March 14, 1990, p. 9287).

(d) Imposing an additional liability -- Measures which have: -- Recommended, through a committee report, that government enter into negotiations on a matter (HCD, April 11, 1973, p. 3176); Increased the maximum amount of farm improvement loans (HCD, June 12, 1973, p. 4658); Raised the amount that could be borrowed for fisheries improvement loans (HCD, June 17, 1969, p. 10218); Provided that judges be given discretionary authority to recommend that the Crown pay court costs in certain circumstances (HCD, June 11, 1970, pp. 8004--5); Increased the basic coverage for deposit insurance (HCD, January 19, 1983, p. 21996).

(e) Imposing New Expenditures and duties on government departments and regulatory bodies -- Measures which have: Established a corporation of members appointed from among the public service (HCD, March 2, 1976, p. 11430); Established a refugee claims board (HCD, July 21, 1977, pp. 7866--83); Provided that officers and employees of a task force be selected from the Public Service (HCD, November 9, 1978, pp. 975--7); Created a Solar Energy Institute (HCD, February 20, 1979, pp. 3423--5); Created a Crown Corporation to manufacture drugs (HCD, March 28, 1969, p. 7264); Created a nuclear control board (HCD, December 17, 1982, p. 21717--8); Increased the size of the Board of Directors of Canada Post (HCD, April 7, 1981, p. 9052); Appointed a Board of Directors to Investment Canada (HCD, April 30, 1985, p. 4231--2); Created a national institute for youth justice (HCD, October 31, 1991, p. 4286); Established a firearm training program (HCD, November 5, 1991, p. 4544--5); Established programs regarding aboriginal people (SJ, February 27, 1991, p. 2262).

Doubts sometime arise whether an appropriation can be called "new and distinct". For example, on March 20, 1974, a private member's bill was presented which extended the provisions of the Student Loans Act to more categories of persons. An argument was made that the recommendation which accompanied the parent statute in 1964 was stated in general terms and might not have precluded the member's amendment. The Speaker ruled: "I do not think that a financial proposal which might have been permissible in 1964 can now be put forward under the provisions of a recommendation which had effect only in relation to the initial Student Loans Act." The Speaker quoted S.O. 79, in particular the words "in the session". He stated "the recommendation which was presented to the House in 1964 had force an effect for that session only" (HCD, March 20, 1974, pp. 690--1). On another occasion, following the withdrawal of a government bill to which was attached a royal recommendation, a private member gave notice of a similar bill. The Speaker ruled that once the bill was withdrawn, there was no recommendation for a member to seize upon and attach artificially to his own bill (HCD, December 7, 1970, p. 1790). In another instance, a private member had included as a clause to his bill, the provision that "nothing the present Act shall be interpreted as requiring the expenditure of public funds." The Speaker ruled that this clause "and similar clauses in other bills, whatever their purposes or object may otherwise be, will not be given any consideration in determining whether or not there is any infringement of the financial initiative of the Crown" (HCD, November 9, 1978, pp. 975--7).

The expenditure, to be an appropriation, must be payable from any part of the public revenue, or any tax or impost.

Given that there is no authoritative definition of "public revenue", arguments are sometimes put forward that if an expenditure is made from a fund which is self--supporting or from an account other than the Consolidated Revenue Fund, it may not require the Governor General's recommendation. The following rulings have been made with respect to the appropriation of funds from accounts other than the Consolidated Revenue Fund.

(a) Canada Pension Plan Account -- Subsection 108(4) of the Canada Pension Plan (R.S.C. C--8) states that "No payment shall be made out of the Consolidated Revenue Fund under the section in excess of the amount of the balance to the Credit of the Canada Pension Plan Account". On April 20, 1971, a private member attempted to extend benefits under the Canada Pension Plan and argued that the monies in the CPP were not public revenue but contributions. The Deputy Speaker of the House of Commons stated that "the whole problem revolves around the question of whether the contribution, voluntarily or involuntarily, constitutes an impost as understood by the provisions of our financial practice or by the terms of our Standing Order... It seems to me that [the private member's bill] must be construed to be a measure by way of an impost" (HCD, April 20, 1971, pp. 5096--7). He ruled the bill was not in order. On February 13, 1992, the Speaker of the Senate ruled that a bill which proposed to change the limitation period for the CPP disability pension for someone who has not reached the age of 65 was not in order on the grounds that it contravened Rule 82 (SJ, February 13, 1992, pp. 528--31).

(b) Unemployment Insurance Account -- The following measures have been ruled out of order: Changes to the objectives of a U.I.C. bill (HCD, February 5, 1973, pp. 958--63); Amendments to the qualifying period for U.I.C. (HCD, December 15, 1975, p. 10006, 10022); Addition of new benefit (HCD, December 16, 1975, pp. 10073--4); Enlargement of the class of claimants and increase of U.I.C. benefits (HCD, April 27, 1983, p. 24921--2).

An appropriation must be effectively imposed.

Campion's third test notes that in the British Parliament "the effective imposition of a charge has been extended by an amendment to SO No. 46 to include the imposition of charges upon "money to be provided by Parliament" which before 1866 had been excluded, probably on the ground that it implied no immediate charge but only authorized the presentation of estimates. But there remain certain recognized methods of recommending expenditure without proposing a charge -- by moving an abstract resolution and by the report of a select committee."15

In the Canadian Parliament, there are contradictory precedents on the question of whether a measure which does not directly involve an expenditure but only confers upon the government a power for which money may be voted by Parliament later, requires a recommendation. On January 16, 1912, the Speaker of the House of Commons determined that a bill, designed to furnish machinery for the expenditure of money to be voted subsequently by Parliament, may be introduced without a royal recommendation.16 However, the following matters have been ruled out of order on the grounds that they contained provisions that monies were to be voted later: -- Bill which stated that the expenditures were to be provided later by Parliament (HCD, February 6, 1973, p. 1018); Bill which stated that the payments would be made when and if such monies are provided by Parliament (HCD, September 18, 1973, p. 6690); Bill which stated that the sums required shall be paid out of such monies as may be appropriated by Parliament (HCD, November 29, 1983, p. 29275--7).

The precedents cited suggest that many different kinds of measure require a royal recommendation in order to be properly before Parliament. Frustrations are sometimes expressed that the interpretations made by the Speakers of the requirement are too restrictive, especially since the function of Parliament is to "parler" or talk, and because so many public issues today involve the expenditure of funds. Recent draft suggestions on parliamentary reform put forward by the Standing Committee on House Management are sensitive to this frustration. A draft recommendation being considered by the Committee is that "a private Member's bill which contains financial provisions that are incidental to the main or primary purpose of the bill should be permitted to be introduced and debated. A second reading debate would take place on such a bill, but it could not proceed beyond second reading unless a royal recommendation was signified."17 However, such a recommendation does not preclude the fact that at some point a measure would have to be scrutinized and a decision rendered on whether it meets the requirements of the royal recommendation. It is hoped that the foregoing will be of some assistance in determining this question.

Notes

1. On December 11, 1706, the British House of Commons adopted a resolution stating "that this House will receive no Petition for any sum of Money relating to public Service, but what is recommended from the Crown". On June 11, 1713, the resolution was made a Standing Order. On June 25, 1852, the words "or proceed upon any Motion for granting any Money" were added to the rule. On March 20, 1866, a further restriction was made by adding the words "whether payable out of the Consolidated Fund or out of monies to be provided by Parliament" and on March 6, 1971, the words "or the National Loans Fund" were included. See Gordon Reid, The Politics of Financial Control: The Role of the House of Commons (London: Hutchinson University Library, 1966, pp. 35--41). With regard to Canada, in January, 1793, the House of Assembly of Lower Canada (Quebec) adopted a rule which stated that it "will receive no petition for any sum of money relating to public service but what is recommended by His Majesty's Governor, the Lieutenant--Governor or person administering the Government at the time". The rule was in force up until 1834 (the same year as the adoption of the Ninety--Two Resolutions), when it was rescinded. See Lower Canada Assembly Journals, 1834, p. 118. The Assembly of Upper Canada (Ontario) had no equivalent rule. Commenting on the fact that the royal recommendation was not required in Upper Canada, John Beverly Robinson, who served as Attorney General in the House of Assembly, stated "Measures of public utility are taken up by any of the members indifferently; and if a member, moving for public aid to a work in which the inhabitants took a warm interest, and knowing that, a majority of the Assembly were willing and desirous to make the grant, were to be disabled from even bringing the subject under discussion, because the Lieutenant--Governor would send down no message recommending it, it would at once be felt that a direct control was exercised by the Crown over the deliberations and acts of the Legislature in a manner that could not, and does not occur in England". Canada and the Canada Bill (Toronto: S.R. Publishers Limited, Johnson Reprint Corporation, 1967), pp. 191--192.Lord Durham, in his 1839 Report on the Affairs of British North America was scandalized that there was no rule requiring a royal recommendation in either Upper or Lower Canada. He wrote "the prerogative of the Crown which is constantly exercised in Great Britain for the real protection of the people, ought never to have been waived in the Colonies; and if the rule of the Imperial Parliament, that no money vote were introduced into these Colonies, it might be wisely employed in protecting the public interests, now frequently sacrificed in that scramble for local appropriations, which chiefly serves to give an undue influence to particular individuals or parties." See Lord Durham's Report edited by M. Craig (Toronto: McClelland and Stewart, Carleton Library, 1963, pp. 144--145). In accordance with Durham's wishes, the royal recommendation requirement was made part of the Union Act, 1840. Section 57 of that Act stated "…that it shall not be lawful for the said Legislative Assembly to originate or pass any Vote, Resolution, or Bill for the Appropriation of any Part of the Surplus of the said Consolidated Revenue Fund, or any other Tax or Impost, to any Purpose which shall not have been first recommended by a Message of the Governor to the said Legislative Assembly during the Session in which such Vote, Resolution or Bill shall be passed."The author of this article wishes to acknowledge the contributions made by the staff of the Committees and Private Legislation Branch of the Senate in compiling Branch files on the question of the Royal Recommendation from which the precedents cited in the article are taken.

2. See Bourinot's Parliamentary Procedure and Practice (Toronto: Canada Law Book Company, 1916, Fourth edition), pp. 404--415; Beauchesne's Parliamentary Rules and Forms (Toronto: Carswell, 1989, Sixth edition, pp. 183--187.

3. See Erskine May, Parliamentary Practice (London: Butterworths, 1989), pp. 711--718, 751. For example, the Parliament Act 1911 contains a precise definition of a money bill. Section 1(2) of the Act defines a "money bill" as a public bill which in the opinion of the Speaker of the House of Commons contains only provisions dealing with all or any of the following subjects, namely, the imposition, repeal, remission, alteration, or regulation of taxation; the imposition for the payment of debt or other financial purposes of charges on the Consolidated Fund or the National Loans Fund, or on money provided by Parliament or the variation or repeal of any such charges; supply; the appropriation, receipt, custody, issue or audit of accounts of public money; the raising or guarantee of any loan or the repayment thereof; or subordinate matters incidental to those subjects or any of them. In Canada, there is no equivalent statutory definition.

4. Sir Ivor Jennings, Parliament (Cambridge: Cambridge University Press, 1957, Second edition), p. 283.

5. See Alpheus Todd, On Parliamentary Government in England (London: Longmans, Grace, 1867), volume 1, p. 690.

6. K.C. Wheare, Statute of Westminster and Dominion Status (Oxford: Oxford University Press, 1953, Fifth edition), p. 1.

7. See Senate of Canada, Proceedings of the Standing Senate Committee on National Finance, November 2, 1989, pp. 17:5, 17A.1--2. See also the Report of the Standing Senate Committee on National Finance entitled "The Form and Use of Royal Recommendations", February, 1990.

8. Beauchesne, op. cit., c.168(5), p. 49.

9. House of Commons Debates, October 26, 1970, p. 575.

10. Ibid., June 12, 1973, p. 4658.

11. Josef Redlich, The Procedure of the House of Commons: A Study of its History and Present Form (New York: AMS Press, 1969), Vol. 2, p. 4.

12. Campion originally used the word "Exchequer" in test number two. See also Reid, op. cit., pp. 34--35 with regard to Campion's contribution to the rules of financial procedure in the British House of Commons.

13. May, op. cit., Twenty--first edition, p. 712.

14. In the present Third Session of the 34th Parliament, 68 of the first 115 government bills introduced in the House of Commons have been recommended by His Excellency. See House of Commons, Status of Bills and Motions, Feb. 26, 1993.

15. May, op. cit., Twenty--first edition, p. 713.

16. See House of Commons Journals, January 16, 1912, pp. 118--119. See also Beauchesne's Sixth edition, p. 186, cc 613--614.

17. House of Commons, Draft Report on Parliamentary Reform, Standing Committee on House Management, November 26, 1992, pp. 17--18. It should be noted however, that there are many instances in the past where Speakers have allowed second reading debate to take place on a private member's bill even though they have expressed procedural reservations that the bill did not contain a royal recommendation. Some examples are HCD, March 2, 1976, p. 11430; HCD, November 9, 1978, pp. 975--7; HCD, February 20, 1979, pp. 3423--5; HCD, November 25, 1980, p. 5058; HCD, February 13, 1981, p. 6841; HCD, January 19, 1982, p. 21996.