At the time this article was written John
Mark Keyes was 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.
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 prmote 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
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
habilitée à adopter des projets de crédits, ou des projets de résolutions,
d`adresses ou de lois comportant des affectations de crédits, notamment
d`origine fiscale, que si l`objet lui en a été préalablement recommandé par
message du gouverneur général au cours de la session où ces projets sont
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.
Developments in Canada during the first half
of the 19th century paralleled those in the British 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
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 requirement
now found in Standing Order 79(2) that the royal recommendation be printed in
or annexed to the bill.
Detailed recommendations were printed until
1976 when the Government began using the standard form presently in use. It
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)".
This general form of recommendation has been
accepted by the Speaker of the House of Commons.3 However, it was
criticized in the Ninth Report of the Standing Senate Committee on National
Finance in 1990 because it provides members of Parliament with little guidance
on which provisions it relates to.
Some commentators have argued that the scope
of section 54 is narrower than that of the British standing order.4 This
argument relies on the differences in their wording, particularly the fact that
the standing order specifies, "whether payable out of the Consolidated
Revenue Fund or out of monies to be provided by Parliament`. It is contended
that section 54 does not apply to an "indirect" appropriation by a
provision that does not itself appropriate public money, although its
implementation will require the spending of public money. It is also contended
that the requirement does not apply to a bill containing a provision that no
payments for the cost of its implementation are to be made out of the
Consolidated Revenue Fund without the authority of an appropriation by
This argument is at variance with the
practice in both the Senate and the House of Commons. As Bourinot says:
"The constitutional provision which
regulates the procedure of the Canadian House of Commons in this respect
applies not only to motions directly proposing a grant of public money, but
also to those which involve a grant, such as loans and guarantees."5
In addition, the debates in the British
House of Commons on the 1866 amendment to its standing orders equate it to
comparable provisions in colonial constitutions, notably Canada`s. In
supporting the amendment, the Chancellor of the Exchequer said:
I believe that in all cases of legislation,
certainly in the great cases of legislation we have had in this House within
the last thirty years for Colonial Constitutions, we have been most careful to
introduce this provision. In Canada, before the present Constitution was
established, the proposals by private members to make grants of public money
became so numerous and glaring that a remedy was necessary. The remedy was to
introduce this provision.6
The broad application of the requirement is
also supported by the wording of section 54. Although it is not as specific as
the British standing order, the English version encompasses the standing order
by referring to the adoption or passage of a "vote, resolution, address or
bill for the appropriation of any pat of the public revenue". The
preposition "for" covers not only measures that appropriate, but also
those having appropriation as one of their purposes. The same idea is conveyed
in the proposed French version which speaks of "projets de credits, …comportant
des affectation de credits, notamment d`origine fiscale". Thus, a bill
that requires the appropriation of public money for its implementation is a
bill "for the appropriation". The more specific language of the
British standing order results from the history of that provision and the
attempts over 150 years to deal with particular problems. Section 54 is not
encumbered by this history and arguably the drafter of its used general
language to avoid the loopholes that had been exploited in the earlier wording
of the standing order.
The application of the requirement to
purposive measures is also supported by the references in section 54 to a
"resolution" or "address". These do not result in legally
binding provisions such as are contained in statutes. However, they can still
exert substantial political pressure on the Government to introduce legislation
to give them effect.
Finally, the broad application of the
requirement is buttressed by the continuing vitality of its rationale of
controlling expenditures. In a period of severe fiscal constraints, it makes
sense that the Executive tightly control legislation that will require
increased government spending. In addition, the current relaxation of party
discipline is returning Parliament to the era of the independent member of
Parliament that existed during the middle of the 19th century. There
is no reason to loosen executive controls that were fashioned in this era to
maintain fiscal responsibility.
The requirement is enforced through rulings
by the Speakers and the chairs of committees that review bills. The Speakers
can rule bills and amendments out of order if they lack a required royal
recommendation. Committee chairs have the same authority of the Speaker of the
House of Commons to rule on bills or amendments originating in the Senate
appears to be somewhat circumscribed. These cases are generally treated as
breaches of the privileges of the House and, as such, the Speaker can only
bring them to the attention of the House to consider when deciding whether to
accept a Senate bill or amendment.
An additional point about the Senate and the
royal recommendation is that a recent Speaker`s ruling suggests that a bill
will not be ruled out of order on this basis unless it contains a provision that
"clearly appropriates money".8 This ruling reflects
concern about unduly restricting the legislative powers of the Senate, not only
under rule 81, but also under another related constitutional manner and form
requirement found in section 53 of the Constitution Act, 1867. This section
requires bills that either impose taxes or appropriate public money to
originate in the House of Commons. Thus, if a bill requires a royal
recommendation, it must also originate in that House.
The requirement of the royal recommendation
has come before the courts on a few occasions. In 1926 the Exchequer Court held
that it had no power to consider whether an Act had been passed in accordance
with parliamentary procedure, including the procedure required by section 54 of
the Constitution Act, 1867.9 However, this case was decided long
before the Supreme Court decisions relating to constitutional requirements
dealing with the enactment and publication of Acts in both official languages.
These decisions demonstrate that the courts will intervene to ensure compliance
with entrenched constitutional requirements relating to parliamentary
In 1978 Justice Pigeon writing for a
majority of the Supreme Court of Canada, suggested that Parliament was freed to
ignore the requirements of section 54. He reasoned that, since they could have
been amended by ordinary legislation, they should be taken as having been
"indirectly" amended by any Act passed on conflict with them.10
However, the Supreme Court has since rejected this approach to the repeal of
constitutional language requirement governing the enactment and publication of
statutes in Saskatchewan.11 It is also difficult to reconcile
indirect amendment with Re Manitoba Language Rights where the Court rejected
the notion that constitutional requirements can be treated as
"permissive" when they are phrased in "mandatory" language.
Indirect amendments would effectively make the requirement of a royal
recommendation permissive, if not deprive it of legal effect altogether.12
It can be argued in reply that the language
rights cases have no bearing on the requirement for the royal recommendation.
Language rights benefit the general public, as well as member of Parliament,
and the courts must see that these rights are respected. The requirement for
the royal recommendation protects the rights of the Crown to control spending.
The Crown is quite capable of protecting these rights in Parliament through the
participation of Government ministers and its power to withhold royal assent.
The courts are not the proper forum for enforcing these rights.
The Supreme Court of Canada has most
recently discussed section 54 in Reference re Canada Assistance Plan. Although
the tenor of its comments is not entirely clear, the Court appears to support
the argument that it is for Parliament, and not the courts, to enforce the
requirements of this section. Justice Sopinka, said:
The formulation and introduction of a Bill
are part of the legislative process with which the courts will not meddle. So
too is the purely procedural requirement in s. 54 of the Constitution Act,
1867. That is not to say that this requirement is unnecessary; it must be
complied with to create fiscal legislation. But it is not the place of the
courts to interpose further procedural requirements in the legislative process.
I leave aside the issue of review under the Canadian Charter of Rights and
Freedoms where a guaranteed right may be affected.13
Obtaining and Communicating the Royal
A royal recommendation is obtained from the
Governor General or a Deputy Governor General (a judge of the Supreme Court of
Canada) by the staff of the Legislation and House Planning Secretariat of the
Privy Council Office. Traditionally, the recommendation as been given only for
Government bills andamendments. However, in 1995, it was given for a private
member`s bill to amend the Unemployment Insurance Act (Bill C-216)
A recommendation cannot be given for a
Senate bill or amendment because appropriation measures cannot originate in the
The Assistant Secretary to the Cabinet
(Legislation and House Planning) is responsible for deciding whether each
Government bill must have a royal recommendation. The Legislation Section
advises the Assistant Secretary in this regard, through the weekly status
report of bills. Drafters must ensure that the status report indicates which
bills require the recommendation.
In addition, when a bill is sent for final
page proof printing, the Assistant Secretary must be told whether the bill
requires the recommendation. This is done by letter under the signature of the
Deputy Chief Legislative Counsel (Legislation). The letter must also indicate,
the particular provisions of the bill that attract the requirement, in case
procedural issues are raised while the bill is in Parliament.
A royal recommendation for a Government bill
is communicated to the House of Commons before the bill is introduced and is
included with the notice of introduction in the Notice Paper. After the bill
has received first reading, the recommendation is printed in the Journals and
included on page 1a of the first reading print. As previously noted there is no
need for the recommendation to set out the details of the provisions being
recommended. A general recommendation is sufficient.14
For a private member`s bills, the
recommendation is given before report stage. Although this is technically
possible with Government bills as well, the previous practice of obtaining the
recommendation before introduction has been maintained.
The recommendation must be given in the
session i which the bill is introduced (Standing Order 79(1)). If the bill is
reintroduced in a subsequent session, another recommendation is required.
Similarly, a recommendation given for a bill that is later withdrawn cannot be
applied to another bill.15
An amendments to a bill cannot be made in
committee if the amendment requires the royal recommendation.16 If a
committee makes such an amendment, the bill will not be allowed to proceed at
report stage unless the Speaker order the amendment to be removed.17
Amendments requiring the royal
recommendation can only be made at report stage. Notice of the recommendation
must be published in the Notice Paper with notice of the amendment no later
than the sitting day before the day on which report stage begins (Standing
Orders 76(3) and 76.1(3)).
Drafters of Government bills must advise the
instructing officials early as early as possible on whether an amendment
requires the royal recommendation. This will enable them to prepare their
parliamentary strategy. Also, to ensure that the recommendation is obtained in
time, the drafters must advise the officer in the Legislation and House
Planning Secretariat who is responsible for the bill at least 24 hours before
notice of the amendments is to be given. They must also provide a copy of the
amendment in both official languages.
Determining Whether the Recommendation is
The determination of whether the royal
recommendation is required depends on the interpretation of the words "for
the appropriation of any part of the public revenue, or of any tax or
impost" and "affectation de credit, notamment d`origine fiscale"
in section 54 of the Constitution Act, 1867. Parliamentary custom and usage in
both Canada and Britain suggest that it is required for any provision that
would authorize a new and distinct charge to be effectively imposed on public
When deciding whether a bill contemplates a
new and distinct charge the financial impact of each provision must be assessed
to determine whether it introduces a charge that is not authorized by existing
legislation. An amending bill requires the royal recommendation not only if it
extends its objects and purposes, or relaxes its conditions or qualifications.18
By the same token, an amending bill that merely re-enacts or consolidates
existing expenditure provisions does not require the recommendation.19
In preparing amendments to a bill, the test
is whether they would result in an increased charge in relation to the existing
legislation, rather than the bill as introduced. For example, if a bill as
introduced would reduce an existing charge, an amendment that would restore all
or part of the charge does not require the recommendation.20
The effective imposition of a charge may
occur either directly, as in an appropriation bill, or indirectly where the
implementation of a provision will require public expenditures, for example
provisions establishing administrative bodies.21 Although a Commons
Speaker`s Ruling seems to contradict this22, the ruling has been
largely ignored in the subsequent rulings, noted below, in which the
recommendation was required.
Occasionally, a bill has expressly provided
that no payments are to be made for its implementation without the authority of
a further Act of Parliament or that it is not to be construed as requiring an
appropriation. For example, Bill C-300, introduced on June 10, 1996, contains
the following clause: "13. No payment shall be made out of the
Consolidated Revenue Fund to defray any expense necessary for the
implementation of this Act without the authority of an appropriation for the
purpose by Parliament." However, such a provision does not shield a bill
from the requirement for a royal recommendation.23
The English version of section 54 says that
the charge must be payable out of "any part of the public revenue or of
any tax or impost". The proposed French version does not confine the
source of the payment to "public revenue", but instead speaks of an
"affectation de credits notamment d`origine fiscale". However, this
difference may be insignificant because of the breadth of the expression
"public revenue" which, as the French version suggests, includes
taxes and impost. Justice Stamp has commented:
"The public revenue" is an ancient
term of art dating at least from the year 1816 when by the Consolidated Fund
Act 1816 all public revenues of Great Britain and Ireland "were
consolidated into one Consolidated Fund of the United Kingdom".24
In Canada, the corresponding Consolidated
Revenue Fund is defined in section 2 of the Financial Administration Act as
"all public monies that re on deposit at the credit of the Receiver
General". Section 2 also defines "public money!:
"public money" means all money
belonging to Canada received or collected by the Receiver General or any other
public officer in his official capacity or any person authorized to receiver or
collect such money, and includes
and revenues of Canada,
borrowed by Canada or received through the issue or sale of securities,
received or collected for or on behalf of Canada, and
money that is paid to or received or collected by a public officer under or
pursuant to any Act, trust, treaty, undertaking or contract, and is to be
disbursed for a purpose specified in or pursuant to that Act, trust, treaty,
undertaking or contract;
Finally, the concept of public revenue also
appears to include non-monetary assets such as land and railway companies.25
The following are examples of instances where
the royal recommendation was, or was not, required.26
Royal Recommendation Required
or alteration of charges against public money: provisions altering the method
of calculating a charge27 or extending or altering the purposes of a
charge, the amount, the time during which it may be made, the cases where it
may be made or the class of persons to whom it may be made, for example;
the application of a social assistance program to persons who were not
the benefits of such a program.29
the commencement date of such a program.30
the maximum amount authorized to be charged for sucha program.31
from one body to another money appropriated to pay the expenses of the first
revenue: the appropriation of money through taxing provisions.33
plan contributions: appropriation of money collected as contributions to a
departments, Crown corporations and other bodies: provisions relating to
government departments, Crown corporations or other bodies, for example:
the number of members of the board of a Crown corporation.36
for the appointment of officers and employees.37
functions: provisions imposing additional functions on bodies funded by public
money if the functions are substantially different from their existing
or other regular charges: provisions for salaries or other charges to be paid
out of the Consolidated Revenue Fund.
due to the Crown: provisions forgiving or extending time for payment of debts
due to the Crown, but not including the remission of taxes or fees, which is
regarded as the granting of an exemptions.39
provisions granting, guaranteeing or forgiving loans, or extending the time for
repaying them or the maximum amounts that may be loaned;40
provisions authorizing the Crown to borrow money, the basis for the requirement
here being the Crown`s liability to pay interest.
liability: provisions under which the Crown would incur liability or contingent
liability to pay money, for example liability to pay court costs ordered by a
Royal Recommendation Not Required
Procedures: Provisions that merely establish procedures for the expenditure of
or Reduction of Charges against Public Money: provisions that repeal an
existing charge or reduce the amount or restrict its purposes.43
Authorized Charges: Provisions authorizing charges that are already or were
previously authorized by Parliament, for example, a bill consolidating or
revising existing legislation or authorizing spending for a particular group of
people already covered under general legislation.44
Functions: Provisions imposing additional functions on publicly funded bodies
if the functions are of the same nature as their existing functions or are
conferred for similar purposes.
Jurisdiction: Provisions increasing the jurisdiction of the courts or creating
exemptions: Provisions that provide exemptions from taxes.46
Exemptions: Provisions for exemption from penalties due the Crown.47
provisions: provisions that clarify the scope of a charge against public money,
for example by amending the definition of "non-profit organization"
to include a "municipality owned corporation".48
of fees: Reduction of administrative fees to a point that is still sufficient
to recover the related costs of administration.49
1. Bourinot, Parliamentary Procedure and
Practice in the Dominion of Canada, 4th ed., T.B. Flint ed. (1916)
2. Ibid. pp. 404-405.
3. House of Commons, Debates, November 3,
1970, pp. 836-7.
4. See J. Small, "Money Bills and the
Use of the Royal Recommendation in Canada: Practice versus Principle?"
Ottawa Law Review vol 27 (1995) p. 33 and R.R. Walsh, "Some Thoughts on
Section 54 and the Financial Initiative of the Crown" Canadian
Parliamentary Review, vol 17 (1995) p. 22.
5. Bourinot p. 406.
6. United Kingdon, Hansard, (March 20,
1866). (3) p. 598
7. See House of Commons, Debates, April 26,
1990, pp. 10719-10726; however, note rulings to the contrary in Debates, July
14, 1959 p. 5984 and November 12, 1969, p. 28.
8. See Senate, Debates, February 4, 1997, p.
9. The King v. Irwin  Ex. C.R. 127.
10. Re Agricultural Products Marketing Act
 2 S.C.R. 1291.
11. R. v. Mercure  1S.C.R. 265.
12 Re Manitoba Language Rights  S.C.R.
13 Reference re Canada Assistance Plan 
2 S/C/R/ 525.
14 House of Commons, Debates, November 3,
1970, p. 836-7.
15 House of Commons, Debates, December 7,
1970, p. 1790.
16 See the Notes following Standing Orders
76(5) and 76.1 (5) and Erskine May, Parliamentary Practice, 21st
ed., C.J. Boulton ed. (1989) p. 722.
17 House of Commons, Debates, April 23, 1975
18 Fraser, et al., Beauchesne’s
Parliamentary Rules and Forms, 6th ed. (1989) p. 183.
19 Ibid., p. 185 and Senate, Debates,
February 4, 1997, p. 1460.
20 See Houe of Commons, Debates, April 26,
1990, p. 10723; however, see contra House of Commons, Debates, March 26, 1985,
21 Erskine May, 21st ed. P. 713.
22 See House of Commons, Debates, January
16, 1912 p. 1281.
23 See House of Commons, Debates, November
9, 1978, p. 975-7 and Senate, Debates, October 23, 1991, p. 289.
24 Lush v Coles  2 All ER 585 p. 588.
25 Bourinot p. 503.
26 These examples are based on Erskine May,
21st ed. Pp. 713-718 and Beauchesne’s 6th ed., pp.
184-186, Selected Decisions of Speaker Lucien Lamoureux (House of Commons,
Canada, Ottawa: 1985) and Selected Decisions of Speaker James Jerome (House of
Commons, Canada, Ottawa: 1983). They are also drawn from a collection of
Speaker’s Rulings compiled by the Table Research Branch of the House of Commons
and by the Legislation Section of
27. House of Commons, Debates, April 23,
1990 p. 10541.
28. Parliamentary Counsel Memoranda,
February 26,1964 and March 3,1964 and House of Commons, Journals, September
27,1971 pp. 828-29, May 16,1972 p. 301, May 17,1972 pp. 306-7, December 15,1975
pp. 935 and 936 and June 23,1977 pp. 1213-4 and Senate Journals, June 13, 1989
p. 156, October 23, 1991 pp. 286-289 and February 13, 1992 pp. 538-31.
29. House of Commons, Debates, November 28,
1966 pp. 10469-71 and 10498-99 and House of Commons, Journals, November 30,1966
pp. 1080-81, October 10, 1966 pp. 118-9 and December 17,1970 pp. 217~8.
30. House of Commons, Journals, June 27,1972
31. House of Commons, Journals, February 5,
1973 pp. 92-94.
32. House of Commons, Debates, November
12,1969 p. 728.
33. House of Commons, Debates, October
14,1986 p, 311 and March 31, 1987 p. 4745.
34. House of Commons, Debates, April 20,1971
35. House of Commons, Debates, July 11, 1988
p. 17367 and March 28, 1969 p. 7265.
36. House of Commons, Debates, December 10,
1963 p. 5665.
37. House of Commons, Journals, November
9,1978 pp. 130-1 and February 20, 1979 pp. 393-5 and Senate Journals, June 6,
1978 p. 464.
38. Senate, Journals, February 27,1991 pp.
39. Erskine May pp. 714-5.
40. House of Commons. Journals, June 17,
1969 pp. 1172-73, January 29, 1970 pp. 357-8 and February 6, 1973 pp. 97-8.
41. House of Commons, Journals, June 11,
1970 pp. 994-5.
42. House of Commons, Debates, January
16,1912 pp. 1282.
43. Erskine May p. 716.
44. Senate, Debates, February 4, 1997 p.
45. Erskine May p. 717.
46. Senate, Debates, February 4, 1997 p.
47. Erskine May p. 717.
48. House of Commons, Debates, June 11, 1973