:
Thank you for inviting me here. I do have a presentation. I think it's both in English and French, which I think the clerk has. I won't read all of it because of the time limit, but I'll see how far I can go.
The foundation of our constitutional democracy rests on the principle of responsible government. The historic ruling by the House of Commons Speaker, Peter Milliken, just a few days ago on the documents relating to the Afghan detainee issue has reinforced this fundamental nature of Canadian democracy. The principle of responsible government requires that the government of the day, be it a majority government or a minority government, maintain the confidence of the House of Commons. Maintaining the confidence of the House of Commons requires the government to fully respect the constitutionally protected parliamentary privileges of all members of the House.
[Translation]
Our democracy cannot be maintained by the manipulation of the PM's conventional powers and the Governor General's prerogative powers that were ironically designed to promote democratic accountability in the Parliamentary system we inherited from Great Britain.
[English]
The Supreme Court of Canada in two major decisions has confirmed that the parliamentary privileges include holding the government to account and, as such, is the Constitution of Canada.
This foundation of democracy can be undermined by the misuse of conventional powers of the Prime Minister to advise the Governor General to prorogue Parliament to avoid a clear loss of confidence of the House or to violate the parliamentary privileges of Canadians’ elected representatives, such as proroguing to shut down parliamentary committees that are investigating serious allegations. The ability to hold senior government officials to account is at the core of parliamentary privilege, as the Speaker has just ruled.
[Translation]
A proper democratic use of the prerogative power is a legitimate power to end one session of Parliament after a substantial part of the legislative agenda has been fulfilled leading to a new Speech from the Throne.
[English]
There have been many prorogation requests by former governments and Prime Ministers, and in the early decades of the Canadian Parliament, the practice was to end a session of Parliament by prorogation rather than a lengthy adjournment. In 1982, the Standing Orders were introduced to establish fixed sessions, which have resulted in approximately 2.1 prorogations for each Parliament.
These are facts that have to be taken into account whenever there are statements made that prorogation is quite routine and has occurred 104 times before. The present 40th Parliament had three throne speeches by March 3, 2010, in four years as compared to the four prorogations by the previous government in ten years.
In order to protect these fundamental principles of our constitutional democracy and to protect the constitutionally protected parliamentary privileges of the House of Commons, I suggest that it is possible to establish a process that will lead to the establishment of binding conventional rules. This can be achieved by the passing of standing orders and supporting legislation that will achieve the following.
Firstly, by standing orders of the House of Commons, limit the conventional power of the Prime Minister to request the prorogation of Parliament from the Governor General within the first year following any Speech from the Throne unless the House of Commons consents and indicates that the government maintains the confidence of the House.
[Translation]
Secondly, the Standing Orders can require the Prime Minister to give advance notice to both the House of Commons and Senate of the intention to seek prorogation with a statement as to why such a request does not interfere with the Parliamentary privileges of members of the House and that it is not designed to avoid losing the confidence of the House. The statement should also be immediately debated in the House.
[English]
Third, the standing orders can also limit the duration of any prorogation to no more than one calendar month.
Fourth, the process leading to a binding conventional rule in this regard could include the passing of supporting legislation to reinforce the above standing orders as suggested by opposition parties. This legislation should make it clear that while the reserve powers of the Governor General to consent or refuse the request remains unfettered, the legislation should be exclusively focused on limiting the conventional powers of the Prime Minster to seek such a request in certain situations. Now, it is acknowledged that there is some constitutional uncertainty as to whether a Prime Minister and a government can violate this curtailment of his conventional powers by hiding behind the reserve powers of the Governor General. The legislation mirroring the standing orders would be aimed primarily at aiding in the creation of binding conventional rules that are broken only at political cost.
Finally, the standing orders and the legislation can be formally transmitted by the Speaker of the House of Commons to the Governor General to inform her of the will of the Canadian people as represented through the Parliament of Canada, that she--if she is reappointed--and future Governor Generals should exercise their reserve powers to stop future anti-democratic prorogations that severely undermine the principles of responsible government. Now, there is an unwritten conventional power, based on the rights and privileges of the Speaker on behalf of the House of Commons, to have the ability to advise the Governor General on issues relating to the foundations of responsible government, and certainly the curtailment of the power of the Prime Minister to advise on prorogation against the wishes of the House of Commons would fall within the power of the Speaker of the House of Commons to advise the Governor General. It is not only the Prime Minister who has the power to advise the Governor General. What is not really known is that it is also the Speaker of the House of Commons, speaking on behalf of the House of Commons, who has the right to advise the Governor General.
In this fashion, conventional rules will be the bulwark against the ability of the Prime Minister to prorogue to avoid confidence votes or to shut down the ability of Parliament and its committees to hold the government to account. There are numerous examples of binding conventional rules that limit the Prime Minister and the government from performing certain functions, even though it is legally and constitutionally permitted to do so. Perhaps the most famous example of this is the ability of the federal government to seek the disallowance of provincial legislation. It has never been exercised—or at least once, in the early days of Parliament. The conventional rules prevent any possibility of that ability to exercise it.
It should also be kept in mind that the only thing that stopped Prime Minister Pierre Trudeau from repatriating the Constitution without substantial provincial consent was the power of conventional rules.
Responsible government demands that those who have power act responsibly in the interests of Canada. They should not be in it for themselves.
Thank you.
Welcome, Professor Mendes; glad to see you.
Based on what we've just heard--Madam Jennings' suggestion and your response--I could be wrong, but I have the impression that two different paths are being suggested, or two different considerations are at work here.
One is conventional constitutional obligations, which, as Dicey said, are those that are enforced by public opinion writ large, by public pressure, by an expectation that norms have been developed and political actors ought not to violate those norms. I think that was the avenue you were taking in your presentation.
Although I could be wrong, it sounds to me that what Madam Jennings is suggesting is actually a rule that says the Governor General will actually take the advice of the Speaker over that of the Prime Minister under certain circumstances, that it's not being enforced by public opinion but it's being enforced by a convention binding upon the Governor General. The Governor General would be acting unconstitutionally, in the British sense, in the conventional sense, to take the Prime Minister's advice.
In other words, it's not a matter of the public getting around to punishing the Prime Minister. It's a matter of the Governor General responding to a different set of expectations.
[English]
eligible to sit on the Supreme Court of Canada?
At any rate, to answer the first part of your question, as I mentioned to Madam Jennings, with regard to the disincentives that were suggested, it's certainly possible. But I think the task for the opposition, and for the other parties too.... It should be in the interests of all parties to set up a system whereby the democratic foundations of our country are observed. Those are only triggered after an act happens that the opposition disagrees with. As I think one of the witnesses said, it is punitive in nature.
What I'm trying to suggest here is to avoid that happening in the first place. In other words, you would put in place structures that would make any future Prime Minister very wary—and make it potentially suicidal for him or her—if he or she tried to do what was attempted in the last few years. That's why I'm suggesting that proactive rather than reactive systems be put in place.
I'll answer your last question next, mainly because I've forgotten what your second question was. One of the reasons I suggested that there be civil society support for what I'm suggesting here is that I was fascinated by how average Canadians, who had never been interested in anything concerning the Parliament of Canada, were so outraged by what had happened. I think it's very important for our democracy that people who normally are not political junkies or part of the chattering classes understand how important it is for our country to keep its system of responsible government. The ability to make this known to their MPs and to make it known to other civil society networks reinforces the creation of a conventional rule.
I say this because a conventional rule really arises under two conditions. One is where there is usage, and that's why I'm suggesting the standing orders. Secondly, there is a sense that the actors have to be bound by it. There's nothing more powerful than an MP's own constituency telling an elected MP that he or she should be bound by this type of process. So that's part of the ability to reinforce the creation of a binding conventional rule.
I'm sorry, what was your second question?
:
It's all right, Chair. No problem. Thank you.
Thank you very much, Mr. Mendes, for your attendance. It's been very enlightening. It's been a little bit of a different approach from....
I want to follow up on where Madam Jennings was, because it was after the fact...and I raised this at an earlier meeting here. I was told that the GG did not see the letters that were signed by the party leaders because of the issue of “only the Prime Minister can give advice”.
As to conflicting advice, that's not really a problem. When the GG is consulting with the Privy Council members, they may be getting all kinds of different advice about what to do.
But on the issue of the Speaker being able to...I'm very curious on that. What would the process be for the conveying from Parliament?
I also want to say, to get this out there, that even now the government still has a problem understanding the separation between the executive council and the majority rule of Parliament. The majority rule of Parliament is supreme: you become Prime Minister through a majority vote of the House of Commons. That is why so many of us were upset over the nonsense being spewed by the Prime Minister the last time--about something being undemocratic, and hijacking, and coup, and all of that. I mean, it worked well politically, I'd give you your due there, but it was way the hell off the reality.
The reason we don't normally see that is that with majority governments, the matter of a confidence vote is not even paid any attention to, because you're going to win every vote 10 times out of 10. It only arises with minority governments. Therefore, the notion is absolutely wrong that advice coming from the Speaker—if it were even equal to that of the Prime Minister—is somehow a misrepresentation of fair justice. It seems to me that it makes every sense in the world that the GG would be aware of the advice of the Prime Minister of the day, but if there were a majority opinion from Parliament that's different, then the GG needs to hear that, too.
I'm curious about what the process is. Is it just an ordinary motion passed by a majority that says, “We convey the following to the GG”, and empower the Speaker to do that? Is it that straightforward?
:
I didn't know that, but thanks for advising me.
Voices: Oh, oh!
Mr. Tom Lukiwski: Thanks to Marlene for giving up her time.
Here is one quick point and then a question, Professor. Thank you for being here.
The point I would make in respect to David's point about advice from the Speaker to the Governor General—and perhaps at the end, if you have time to comment on this, I'd welcome your comments—is that my understanding from a constitutional perspective is that there's a big difference between “advice” in the constitutional sense and just giving information. To David's point, that the letter may or may not have been read, I don't know, but how does the Speaker give information to the GG that there is a coalition, or an agreement among the opposition parties, that they can do whatever they want to do? That letter is more an informational piece, as I interpret it, than “advice” in the constitutional sense. Before you depart from the meeting, I'd like to hear an answer to that.
My question is something from our previous meeting, with Rob Walsh and Thomas Hall. I'm sure you've seen or listened carefully to the testimony of both of them.
Mr. Hall basically disagreed with you, in an article you had written in the Ottawa Citizen, on whether or not committees could be allowed to meet during prorogation. You argued that they could sit. Mr. Hall argued that it would not--in his opinion at least--be constitutional to do so, because once the House closes down, committees cease to function. In fact, if committees—he was referring to standing committees—continued to sit, then there would be nothing to suggest that a Committee of the Whole would not be able to sit. That would in fact just do an end-run on prorogation.
I'd be interested to hear your interpretation concerning Mr. Hall's point, which disagrees, I think fundamentally, with yours, and whether or not you have a counter-argument to Mr. Hall's point on the unconstitutionality of committees sitting during prorogation.
I think we're all aware of the fact that the Speaker of the House has the right, indeed the obligation, to inform the Governor General of the House's privileges, and he does so in a ceremonial manner when he attends in the Senate the Speech from the Throne. I think there is a distinction between informing, stating the rights that exist outside the powers of the Governor General, because under our Constitution and that of the British...the crown, while it retains some powers, doesn't have all powers, and laws must be passed by the houses of Parliament and then go to the Queen or the Governor General, as the case may be, for signature. The same thing applies: our legalities are not decided upon by the Queen or the Governor General but by the courts. No money can be spent without the approval of the House of Commons and so on.
That's not advising the Governor General. That's informing her of the fact that we are asserting the rights that exist under our Constitution. Advising is different. Advising relates to the Governor General's exercise of her powers, the powers that actually remain in her hands, the executive powers. I'm genuinely unaware of any cases where the Speaker provides advice.
Going back to Mr. Holder's question, can you provide any examples in Canadian constitutional history or indeed in British constitutional history within the last couple of centuries, or indeed the provincial constitutional history of our provinces, where the Speaker is advising the Queen/Governor General, or Lieutenant-Governor as the case may be, as to the use of the actual powers residing in the executive as opposed to informing her of the other powers that are not within her purview?
:
Some of you who sit in committee with me know that I have a Cape Breton mother.
I'll tell you, Professor, you have more opinions than she does, and that takes some doing. I say that with great regard.
Another one of your opinions was when you declared the members opposite as “the coalition”. I'd like to defend them, if I could--but you have given them a formal title, and that's your opinion, I know.
An hon. member: We'll take it.
Mr. Ed Holder: I knew you would, actually.
The Chair: Through the chair, please, through the chair.
Mr. Ed Holder: Through the chair, yes, because they are interrupting me, Chair.
Here's my question for you, if I can. I want to come back to the question I asked. I would appreciate it if you would undertake to provide a formal response as well of your comments. Give us a letter so that I can get some context for this, because, if you don't mind, you're a professor and you research things and you'll do this thoughtfully.
I asked you, and apparently my preamble was a little long so I didn't give you the chance to properly answer--
:
I am very pleased to be here, Mr. Chairman.
The question before us is one of profound importance to Canadian parliamentary democracy, the rules of which are not written in law books or the formal Constitution; they depend mostly on agreed-upon principles, practices, and conventions, meaning that you people--you members of Parliament from all parties--are required to agree. When you don't agree, you leave the country without rules and you leave your Governor General, whom I sometimes advise, in the position of being a referee in a game in which the players don't agree on the rules. So I am delighted to see members of all parties here trying to work on this one issue of prorogation. It is just one of several on which consensus is lacking and convention is needed, and I'm very pleased that you're here.
You have my statement. I'll go over it quickly and tell you some things I'm sure you know.
Prorogation is the ending of a session of Parliament without dissolving Parliament. Normally it's an uncontentious event in the life of Parliament, and not controversial. Its normal use is to bring a session to an end when much of the work of the session is done and there is a recognized need for a seasonal break. A new session of Parliament is opened after the break with a Speech from the Throne setting out a new government agenda. That's the norm, and indeed all the prorogations that I'm familiar with have basically been of that kind.
The power to prorogue, the legal power to prorogue, does not rest with you. It does not rest with the . It quite clearly rests with the crown. As of King George VI’s letters patent in 1947, that particular power of the crown, along with the power to dissolve and summon Parliament, was to be exercised by the Governor General of Canada from then on.
Well-established constitutional convention requires that the Governor General exercise this power only--only--on the advice of her chief constitutional adviser, the Prime Minister of Canada. That's the normal rule.
Recent controversy has arisen over whether there are any circumstances in which the Governor General should question and possibly decline a Prime Minister’s request for prorogation. In the two situations that have provoked the controversy, we're concerned with whether prorogation was being advised by a Prime Minister to avoid the government’s accountability to the House of Commons.
Prime Minister Harper’s advice on December 4, 2008, that the Governor General should prorogue Parliament appeared to many to be aimed at avoiding an imminent vote of confidence in the House of Commons. As you know, the confidence of the House of Commons is literally the licence to govern in Canada. The Prime Minister’s advice on December 30, 2009, that the Governor General should prorogue Parliament appeared to be aimed at avoiding the scrutiny of a House of Commons committee looking into the treatment of Afghan detainees.
Constitutionally, this controversy raises the issue of whether any--any--discretionary power at all is reserved to the Governor General in exercising the power to prorogue Parliament.
In Canada's system of parliamentary government as it's evolved over about 150 years, constitutional convention requires that the Governor General normally exercise the legal powers vested in the crown on the advice of ministers responsible to the House of Commons to achieve a responsible government.
However, there's a strong case for holding that in certain exceptional circumstances the Governor General, as a representative of the crown, must hold in reserve a discretionary power to refuse a Prime Minister's advice.
The principle governing the use of such a reserve power of the crown would be that its use--a discretionary decision of the Governor General--is necessary to prevent the undermining of responsible parliamentary government. That's the key to when it's proper for the Governor General to decline to follow the advice of a Prime Minister.
In the case of prorogation, one can conjure up a situation in which a Prime Minister facing defeat in the House of Commons advises the Governor General to prorogue Parliament, not for a few weeks as was done on December 4, 2008, but for an indefinite period of time: “Your Excellency, just prorogue Parliament, and when I'm damned ready for it, you can bring it back, and I'm not saying when that will be.” Now, if the Governor General had no discretion--none--and had to always do what the Prime Minister advised, then, I think, given that possible situation, parliamentary democracy would be in great jeopardy, if that advice had to be followed.
Nothing like the situation I've conjured up has happened in Canada. Nonetheless, the possibility that such advice “might” be rendered surely creates a strong case for holding that in receiving prime ministerial advice for prorogation, the Governor General has to be regarded as more than a clerk--a royal clerk, a clerk with a crown on--who just says, “What do you want? Oh, you want prorogation. Yes, here it is. I'm not going to ask any questions. Go away; prorogue the people's House, the biggest democratic institution in Canada. I don't know what you're doing, but I'm just a clerk here. I have to do whatever you tell me to do.”
In our constitutional system, we look to constitutional conventions for the rules governing the proper use of legal powers. That's what conventions are; they're political agreements. That's why I emphasize it's crucial for you folks to agree on the proper use of political power. In this case it's the proper use of the Governor General’s legal power to prorogue or to refuse a prorogation.
Does the Governor General ever have the right to reject a Prime Minister’s advice to prorogue Parliament? If the Governor General has that reserve power, under what circumstances can it be used? Under what circumstances is it proper for her to refuse a request and advice to prorogue?
Do we have in Canada today, as I speak, a constitutional convention governing this situation? Remember, the situation isn't the normal advice for proroguing toward the end of a session when everything is done and it's time for summer holiday, Christmas break, or whatever. It's when it's highly controversial and a large part of the country and the political system think it's a way of avoiding accountability to Parliament. Has the Governor General reserve power in these situations, and precisely under what circumstances is it to be used?
In paragraph 9--you'll forgive me--is a little diversion about how you figure out--how you figure out--whether there is a constitutional convention. They're spooky things, aren't they? You can't just look them up in a book. They're not even like your Standing Orders. Speaker Milliken has an easier job, in a way. He has Bourinot and all those books. Constitutional conventions are not easily identified, particularly when they're hotly contested.
The Supreme Court of Canada made a decision on the occasion of patriating the Constitution without provincial consent. The Government of Canada was going to change the Constitution of the country in fundamental ways by going to Britain without the consent of the provinces. That situation was not governed by anything in the Constitution Act, 1867. It is silent on amending the Constitution, but is governed entirely by constitutional convention.
The Supreme Court had to work hard on whether there was a constitutional convention in that situation, and how to go about finding out if there was one. I will quote a paragraph on how the Supreme Court laid down a methodology--not just for them but for us too. It's a pretty good methodology. It's been widely accepted by those who write about the Constitution and teach it in our schools and universities. It's worth reading carefully.
This is what the Supreme Court of Canada said in figuring out whether there was a constitutional convention requiring provincial consent before asking Britain to amend the Constitution of Canada.
They began with, “We have to ask ourselves three questions”.
Notice it's three questions. A lot of people think it's just their first question, “What are the precedents?” They say, okay, so that's it: “What are the precedents?”
But the Supreme Court quite rightly goes on, drawing on massive literature on the writing on constitutional convention. They didn't make this up. They were like students reading all the key books and pulling out of those books what they learned.
They second thing they say you have to ask, which is crucial, is “Did the actors in the precedents”--the key political people, really, in the precedents--“believe that they were bound by a rule?” There was a rule and they were bound by it, and by that they mean politically bound--morally bound, if you like.
The third one is the one that I find is most often forgotten: “Is there a reason for the rule?” The Supreme Court adds an important thought that we should all keep in mind:
A single precedent with a good reason may be enough to establish a rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it.
:
I'm almost done. I'm sorry, I'm a long-winded guy.
I wanted to apply that Supreme Court methodology to the issue before us: conventions concerning prorogation.
First, there are plenty of precedents of uncontested requests for prorogation, but to the best of my knowledge there have been no situations analogous to either 2008 or 2009, both situations where prorogation was contested because its purpose appeared to be to avoid the government's accountability to Parliament. Nor was there any indication in those uncontested precedents that the actors in the precedents--that is, the government and opposition political leaders--believed they were bound by a rule that it is legitimate for the government to advise prorogation at any time, for any length of time, and for any reason whatsoever.
If such a rule were to be put forward, it is difficult to think of the reason that might be given for such a rule other than that in a democracy the Prime Minister should always get his way. But I comment that while such a reason might be considered appropriate in a democracy in which the head of government, the Prime Minister, is directly elected by the people--that might be all right--it is not appropriate in a parliamentary democracy where the Prime Minister depends for his licence to govern on the confidence of and accountability to Parliament.
So I would have to conclude that we do not have a constitutional convention governing contested requests for prorogation.
The next page has a couple of suggestions on where you might go.
The first is to realize that constitutional conventions do not always arise gradually, historically, through precedents. They can come from an agreement made by the relevant political actors on a grave matter of great importance, a disputed matter. I give the example of the Balfour Declaration in 1926, that in effect changed the British Empire into the British Commonwealth of Nations, and an agreement on the equal status of the United Kingdom, Australia, Canada, Eire, New Zealand, and South Africa. That was done through a conference, a meeting of prime ministers. They issued a declaration that they all agreed to. It was fundamental in changing the constitutional status of these countries.
In paragraph 11, I deal with the one motion we've had during this contested period, the one indication of a possible basis for a convention. As you all know, on March 17 of this year, the House of Commons passed a motion that was moved by the Honourable Jack Layton requiring that the Prime Minister seek the consent of the House of Commons before advising of a prorogation of more than seven days.
This motion cannot, in my view, be regarded as a constitutional convention, because it was opposed by the Prime Minister and members of the government caucus. The Prime Minister in particular is one of the key actors involved in prorogation, and he would not feel bound by the Layton motion. But that motion, I suggest--always hopeful--could be an important step towards establishing a constitutional convention, if it becomes the basis for discussing, in this committee or a special committee struck for the purpose, the possibility of an agreement on conditions that should apply to prime ministerial advice to prorogue.
So far we have not really heard what conditions, if any, the Conservatives think should apply to the rendering of such advice. Hearing the government's case would be a very valuable thing for Canada.
If the parties did agree on rules that should govern prime ministerial advice to the Governor General to prorogue, in my view such an agreement would be a constitutional convention. You would have created a constitutional convention, and as such it would not be legally binding. Constitutional conventions, as our Supreme Court has said, will not be enforced by the court, but they could be identified by the court. They can settle arguments about them, but they won't enforce them. Such a convention would have great political force and it would in all likelihood be complied with by the Governor General.
Finally, I've heard, as one does reading the papers and Hansard, of a possibility of the Standing Orders of the House being changed, possibly along the lines of something like the Layton motion, through a majority vote in the House but with the Conservatives, the government caucus members, still opposing the motion. What about that?
Well, of course my view is it's not a constitutional convention, but such an addition to the Standing Orders would surely be as binding on the Prime Minister as all other standing orders are. Failure of a Prime Minister to observe this new standing order, if one were added to the Standing Orders, could result in a ruling or a finding of contempt of Parliament and a possible defeat of the government on a non-confidence motion.
According to constitutional convention, a Governor General would be entitled to dismiss a Prime Minister who refused to resign or ask for a dissolution--I should have added that--after losing a vote of no confidence in the House.
I've put my own view in the final paragraph, and I thank you for the time to get here.
I believe it would be best for Canada to have the rules governing prime ministerial requests for prorogation settled in a consensual manner by our elected political leaders. Closing down Parliament, the people's house, the democratic institution of this country, is not a routine event. It's an act of great importance to parliamentary democracy in Canada. Canadians will be ill-served by their elected representatives if they're unable to reach an agreement on this matter and leave the country vulnerable to another grave political constitutional crisis with no rule in place to govern the crisis.
Thank you.
:
--based on the debate in not this committee but the one that dealt with Bill ....
All parties were in agreement that snap elections would no longer be appropriate. The made a fantastically good speech in Vancouver saying that the fundamental purpose was indeed to have an even playing field among the parties, whereas in a snap election, the government has the advantage of finding the opposition in disarray, or down in the polls, in calling an election even though it hasn't been defeated in the House. But when the Governor General was confronted with the request, there was no indication from the opposition, certainly from the leader of the opposition, that he was willing to form a government if Mr. Harper's request was refused. There was no serious protest from the opposition parties.
I watched this very closely, as someone who has to advise the Governor General; the Governor General really had no real option. The lesson of that is that the law isn't worth much if the fundamental political reason for it, which was to avoid opportunistic snap elections, is just discarded, not just by government leaders but by opposition leaders within almost months of the law being put to the test.
I thought it was a devastating walking away of a very sound political agreement--not just by the government; let me emphasize that.
So I'm much more comfortable with legislation that has majority or even all-party support. More than legislation, just make an agreement as the heads of state did in 1926 in London--surely you're up to that--and say, under what conditions can prorogation be advised, and under what conditions does it require something more than just the Prime Minister requesting it?
I think that should be a political agreement rather than legislation. I feel strongly about that. That's my number one choice.
:
Yes, but that took me off the track I wanted to go down, which actually comes from your book,
Two Cheers for Minority Government. This came out, perhaps unfortunately, shortly before the events that have brought you here today, but you do have some material in there that's of interest.
In particular, you relied heavily on Jonathan Boston's book, where he's dealing with New Zealand and trying to advise New Zealanders who I think have accepted that they're into a realm of more or less perpetual minority governments. As to what goes on in non-Westminster systems in Europe with the idea of drawing lessons that can then be applied to the New Zealand situation, I think our discussions tend to revolve in this committee around the more recent prorogation, where this is really not an issue. It's the former prorogation and the attempt to replace the government with another government that is at issue there.
At any rate, just in passing, I'd like to get information on something. You cite Boston's citation of Germany, Spain, and Sweden as permitting what are called “constructive non-confidence votes”, and I gather only constructive non-confidence votes--that is, votes in which not only do we say we have no confidence in the government but we would have confidence in a government led by so-and-so.
Prof. Peter Russell: That's right.
Mr. Scott Reid: That seems to me to be something where, if we were to adopt something like this, one has actually moved from the Westminster model, in which a non-confidence vote leads to an election.
Am I wrong? Is that not effectively a revolution in the conventions that govern us?
:
Yes; I think the country would be better off, though, if you could reach a unanimous decision.
I read the debate very carefully on the Layton motion on March 17. I read the government comments on it. I read them very carefully. I didn't see anything put forward by the government on what they thought the rule should be, other than possibly—they never stated it as crudely, or rudely, maybe, as I did, or as straightforwardly as I did—to have any requests for prorogation, of any length of time, no time limit at all, it doesn't matter. If, unlike 's request, a Prime Minister said, “Shut down the House; just shut it down, and I'll let you know, Madam, when it can come back”, I haven't heard from the government--Canada hasn't heard, your committee hasn't heard, as far as I know the House of Commons hasn't heard--on what is the government's position on the rule that should govern requests of the Prime Minister.
Until you have a good discussion of that, I don't think we're going to get very far, other than perhaps laying the groundwork for another crisis--a standing order change, opposed by the government; a new standing order, violated by the Prime Minister; and then we're into a crisis.
You may say, “Well, the Prime Minister is just wrong, and we'll defeat him and we'll fight an election on it.” Okay--but I don't think that's the way most Canadians want parliamentary government to be conducted in Canada, to have elections fought over vital rules, be they on the access of a committee to security documents or on the rules governing prorogation.
You have a responsibility, you members of Parliament, to try to work it out here. Can you imagine an election over these matters? You know what an election is all about—TV advertising, spin doctors. Do you think that's a good way of resolving fundamental rules of how you operate parliamentary democracy? I do not.
I'm sorry to go on here, but I'm trying to put all your feet to the fire. You've got a job to do--not to just go back to the Canadian people with parliamentary democracy in Canada in disarray because there's not an agreement on fundamental rules because you haven't even worked at it.
:
Well, on my way back from the woodshed--
Some hon. members: Oh, oh!
Mr. David Christopherson: --I would muster up the courage to ask a couple of questions.
First of all, I want to thank you, Professor. I envy those who were your students. I'm sure they got the message, whatever it was you were conveying. You're an excellent teacher. Thank you for that.
I have two questions, if I have time.
First, I'm surprised no one has gotten back to this. The previous speaker, Professor Mendes, was putting forward the notion—his opinion—that under our Constitution, the Speaker has the right to provide advice to the GG on behalf of a majority of Parliament where the Speaker, or that majority, would believe the advice is contrary to that of the Prime Minister.
It took us all by surprise, because there were letters signed by the leaders, in the one crisis we got into, that, should the GG not allow the prorogation, there was a good chance of a majority to be found.
To our understanding--we don't know for sure yet, because a lot of this happens in the dark--we don't think that letter ever got in front of the GG. It could have changed history if it had. Therefore, the question of whether or not our Speaker would have the constitutional right, upon a motion of the House, to convey an opinion to the GG, where a decision is being put in front of him or her by the Prime Minister, that may be contrary, would be allowed. Had that happened and the letter been forwarded, who knows how history would have turned out?
Could you give us your thoughts on Professor Mendes' contention that this constitutional right exists for the majority of Parliament and the Speaker?
Thank you, Professor Russell. I agree with my colleague Marlene that it's been....
It happens the odd time, Marlene. Don't have a heart attack.
One time I actually agreed with Yvon Godin twice in one meeting. I thought he was going to faint.
It's been very instructive, and more than that; what David said about your being a good teacher, I concur. It's always been my contention that a good teacher is about more than just imparting dry, factual information; it's the presentation skills that come along with it. You are far better, sir, than many we have seen at this committee.
My question to you is along the line of constitutionality versus democratic will. You've just referred to the fact that the Governor General is really responsive to the wishes of Canadians. It really comes down to a situation we had two years ago, when a prorogation took place. That's when there was an opportunity for the three opposition parties to present their case to the Governor General requesting that they be given the opportunity to form a coalition government. The prorogation took place shortly thereafter.
I have no argument with the fact that from a constitutional standpoint, that could occur, quite correct. But how would you, sir--this is more of a political debate argument, and I understand that--interpret it if the following hypothetical scenario took place? Let's say there was a coalition agreement among three opposition parties shortly after a federal election--I'm talking within weeks or months--but it was demonstrated empirically that the majority of Canadians, over 50%, did not want that coalition government to govern.
From a constitutional standpoint, it was certainly within the constitutional purview for a coalition government to govern. But the Governor General also was aware that the majority of Canadians wanted no part of that.