Time for constraints on omnibus bills

Opinion

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This article was published 01/06/2024 (497 days ago), so information in it may no longer be current.

In the first week of May, what has become a predictable controversy in the Manitoba Legislature arose when the NDP government introduced an omnibus bill called the Budget Implementation Tax Statutes and Amendment Act (known by the snappy acronym BITSA).

The Progressive Conservative opposition immediately feigned outrage that the government was short-circuiting the normal legislative process by cramming BITSA with numerous non-budgetary provisions.

Similar accusations were made by the NDP when in opposition. Each party claims the other is guilty of greater subversion of the normal legislative process.

BITSA is the leading example of what are called omnibus bills. The label omnibus is applied to bills which seek to repeal, enact or amend multiple statutes through one bill.

In the case of BITSA, instead of being limited to provisions related to government taxing and spending decisions which require the approval of the legislature, governments now regularly include non-financial measures.

The controversy over such bills tends to conflate incorrectly their procedural admissibility as legislative measures under the traditions and rules of legislatures with their use by governing parties for reasons of political convenience.

Currently, the Manitoba legislature has no rules restricting the use of omnibus bills. The procedural acceptability of a BITSA bill has been challenged occasionally by the opposition, arguing that MLAs should not be forced to vote for or against the entirety of a bill which combines multiple matters. However, Speakers have always ruled, most recently in December, 2020, that they lack authority to rule on how legislation is drafted.

Not all omnibus bills are bad. When they combine a variety of provisions organized around a unifying purpose, they can help legislators to understand the interrelationships among a range of enactments or amendments. A coherent omnibus bill can help to focus debate.

Finally, omnibus bills can increase the pace of the legislative process and enact time sensitive measures expeditiously.

There are a number of problems involved with omnibus bills, especially BITSA bills, in the Manitoba context. Recent BITSA bills have contained dozens of changes, many of them not directly connected to the budget.

Two brief examples will have to suffice.

The 2024 bill from the NDP government includes such major provisions as: changes to labour laws making it easier to form a union and banning the use of replacement workers during lockouts/strikes; provisions to establish a seniors advocate as an officer of the legislature; and amendments to the election financing act to increase rebates of eligible expenses paid to parties and candidates.

The PCs complain that packing the bill with such policy initiatives diverts time and attention from budgetary matters which are meant to be the main purpose of BITSA. In response, the government claims the use of such an omnibus bill is necessary as a way around opposition intentions to delay progress on bills, and that the former PC government was guilty of even more serious misuse of omnibus bills.

Back in 2020, the NDP objected strenuously to the Pallister government’s BITSA bill, pointing out that 30 pieces of legislation were affected. Its strongest opposition was to the provision which allowed the cabinet to impose a 2.9 per cent Manitoba Hydro increase, bypassing the Public Utilities Board. Another contentious item was the provision preventing children, mainly Indigenous children, from seeking redress for the diversion of millions of dollars from a federal program for foster children into provincial general revenues.

The procedures for the legislature’s handling of BITSA compromises the frequent boast by MLAs that Manitoba has an open legislative process which allows for public input into the approval of legislation. That boast is based on the fact that the rules provide for the referral, after second reading, of most bills to a standing committee for detailed study, which can involve hearing from pertinent witnesses.

There is no rule which requires that BITSA bills go to a standing committee and governments ensure this rarely happens.

Instead such bills are debated in the full House, which means that particular BITSA provisions receive less attention, do not benefit from outside testimony, and there is less opportunity to raise public awareness.

Omnibus bills represent a quandary for opposition parties. When they vote to oppose contentious provisions, the governing party accuses them of rejecting popular measures.

Opposition attempts to use criticism and delay to force governments to split omnibus bills invariably fail.

This leads to two questions.

Is it enough for the governing party to incur some short-term negative publicity as a deterrent against the misuse of BITSA bills? Or, should a rule be adopted — such as that used in the House of Commons since 2017 — which allows the Speaker to divide omnibus bills for the purposes of voting at second reading, which would allow for major non-financial matters to be debated separately and referred to a standing committee for public presentations.

Omnibus bills should not be banned, but there should be constraints imposed on their use. It is past time for the rules committee of the legislature to study the issue.

Paul G. Thomas is professor emeritus of political studies at the University of Manitoba.