As we are faced with the possibility of a snap election next month, all federal political parties need to limit the use and scope of omnibus bills. Governments of all partisan stripes come into office promising to curb this practice but end up succumbing to them when they serve their own interests.
Nothing increases voter cynicism more than politicians using tricks to advance partisanship over the common good. Thus, the best way forward would be to have an all-party agreement to limit these legislative tactics.
It is clear now that such legislative manoeuvres – no matter which party does it – are proving problematic for parliamentary democracy, particularly for the notion that every issue before parliament deserves equal scrutiny. When bills pass through the legislative process, they are assigned to various committees that examine the bills and invite stakeholders and witnesses to scrutinize them. This is central to the process of democratic oversight.
There is nothing wrong with the concept of omnibus bills per se, but it is only how they are used. Historically, they were used for rational reasons and to limit time spent on a bill that was achieving a singular objective.
After all, an omnibus bill is simply a piece of legislation that creates, amends, or repeals different statutes at the same time, but which has one underlying and unifying purpose which ties together all the proposed amendments. As public policy gets more complex, this is one convenient and intelligent way to achieve that. However, things are dicey when a government sticks in two or more unrelated items into a single omnibus bill. This strays from the whole idea of an omnibus bill. Moreover, changing multiple things in a single bill has a tendency of getting the government in trouble.
Two significant examples deserve mention.
Many critics are now pointing out – justifiably so – that the nature of how the deferred prosecution legal tool was made available to prosecutors was problematic, in that it was inserted into a huge federal budget implementation bill. Many rightfully ask what an important amendment to Canada’s Criminal Code dealing with corporate crime was doing in a budget bill.
Thus, critics argue that in dealing with the entire federal budget bill, they were not able to properly scrutinize the addition of deferred prosecution. As many are aware, the use of the deferred prosecution tool was at the centre of the whole SNC Lavalin scandal that led to the allegations of interference in the independence of the Attorney-General.
Of course, the Liberal government is certainly not only to blame for what many call a legislative trick. The federal Conservatives and their predecessor party pushed through bills that contained multiple issues all at once, in an attempt to thwart legislative scrutiny of the bill.
Back in 2013, the Conservatives under Prime Minister Stephen Harper got into hot water after introducing two large bills, Bill C-38 and Bill C-45, which together contained more than 800 pages and 160 legal and regulatory changes, many of which affected Indigenous communities and the environment. Most dangerously, one of the bills contained changes to the Indian Act affecting democratic elections on reserves on land surrenders. All these disparate changes were bound to raise justifiable concern by different stakeholders.
First Nations and environmentalists rightly were concerned about the scrutiny many of these issues would not be adequately receiving in this format.
Criticism over these two omnibus bills crystallized and led to the Idle No More movement, an Indigenous-led protest movement that created a crisis for the then sitting government and re-focused the national policy agenda away from many important issues of the day.
The obvious problem is various parties have incentives to criticize the abuse of omnibus bills when the sitting government uses them, but they lack incentives to limit them when they are in power. If the party that forms the government limits their use, they lose a significant legislative tool at their disposal for partisan ends when they are back in power.
Despite growing criticisms of omnibus bills under the Mulroney and Chretien governments, they became normalized through successive rulings by Speakers allowing them.
Some constitutional experts, however, note that changing the status quo on omnibus bills does not require a constitutional amendment or even a law. The most direct way is for the government to change the House of Commons rules of procedure and restrict the use of omnibus bills.
The Speaker could also take a stand and rule them out of order, depending on the circumstances. Or the new so-called “non-partisan” Senate could decline to consider House legislation that had not been properly scrutinized. There are many ways to move beyond the status quo.
All parties need to come together and look at the bigger pictu7re of Canadians’ faith and confidence in our democratic institutions and limit the abuse of omnibus bills.