Thank you, Mr. Chairman.
My opening statement is basically a condensation of the letter I sent to you and which I believe has been distributed to members of the committee. If that would facilitate matters, I'll make my opening statement, and we could then move to questions, if there are any.
Mr. Chairman, the issue before this committee, as I understand, is whether prorogation should be legally regulated in some manner, and if so, how. The object would to be remove the Prime Minister's de facto exclusive control of prorogation. It's not my place to address the first question, as this is a political matter. But the second question of how prorogation might be regulated involves consideration of the legal means by which this might be done.
Three questions need to be addressed. First, what is the legal nature and status of the power of prorogation? Second, can prorogation be regulated by the House through its Standing Orders or by Parliament through an act of Parliament? Third, if so, would the legislation be enforceable?
The Governor General's power to prorogue Parliament is a common law prerogative power that, according to unwritten constitutional convention, is exercisable by the Governor General on the advice of, or after consultations with, the Prime Minister. It is one of a number of prerogative powers held by the Governor General as the Queen's representative in Canada.
Another prerogative power held by the Governor General that relates directly to Parliament is the power to dissolve Parliament and call a general election.
Over time, more and more of the Crown's prerogative powers have been taken over by statute, that is, have become statutory powers vested in a minister or other public authority. Those remaining as prerogative powers in the hands of the Crown or the Governor General include, among others, the appointment of the Prime Minister and other ministers, dismissal of the Prime Minister, the summoning, dissolution and prorogation of Parliament, the making of treaties, command of the armed forces and the conferring of honours. Examples of prerogative powers taken over by statute include extradition, granting of pardons, citizenship, incorporations and expropriation.
The House of Commons, acting through its Standing Orders, only regulates its proceedings and those of its committees. Prorogation is not a proceeding of the House. The Standing Orders of the House have no binding effect outside the business of the House and its committees. This is not to say, however, that the Standing Orders could not set out some adverse procedural consequences for the government if a prorogation were obtained in a manner contrary to the expressed wish of the House.
Some have expressed the view that legislation governing the Governor General's power of prorogation would be a constitutional amendment and would require the consent of the provinces. In my view, while legislation regulating prorogation might be characterized as a constitutional amendment, this does not mean that the legislation would need to be approved by the provinces. I discuss this further in my letter to you on this matter, Mr. Chair, which I believe has been distributed to members of the committee.
One might avoid this legal argument by limiting the legislation to regulating the Prime Minister's role with respect to prorogation. The Governor General's prerogative power of prorogation is not shared with the Prime Minister. The Prime Minister has only an advisory role with respect to the exercise of this power, albeit a necessary prerequisite by constitutional convention. The advisory role of the Prime Minister is based on an unwritten constitutional political convention. If prerogative legal powers can be overtaken by legislation, it must surely be true that unwritten political rules can be overtaken by legislation.
However, a failure by the Prime Minister to comply with the statutory restrictions imposed on the advisory role of the Prime Minister would not, by itself, invalidate an exercise of the prerogative power of prorogation by the Governor General.
Although it might be possible in theory to draft legislation regulating prorogation, there remains the question of whether such legislation would be enforceable in the courts. Enforceability includes the question of justiciability. The courts consider non-justiciable those matters that do not contain sufficient legal content to enable the court to reach a legal decision on the merits.
The courts have said that the exercise of some prerogative powers, such as the power to dissolve Parliament or to appoint ministers, is not reviewable by the courts because they are not justiciable. Prerogative powers such as the dissolution of Parliament or entering into treaties or taking measures relating to national security, for example, are considered powers that either are political in nature or relate to matters that are not capable of review by a court through a judicial process.
Even if the legislation were drafted in such terms as to present a justiciable issue for the court and the court concluded that the legislation had been violated, there would remain the difficult question of how the court would enforce its decision. Likely, the prorogation would have taken place some months earlier and a new parliamentary session would already be underway. Does the court declare the prorogation invalid, as well as the subsequent parliamentary session and all parliamentary actions up to the time of the court's decision? Or once the court action challenging the prorogation is commenced, should there be no subsequent parliamentary session until the court makes its ruling?
In my view, the only effective way in which prorogation could be made subject to law and taken out of the hands of the Prime Minister in his advisory role to the Governor General is to make a formal constitutional amendment that would set down the circumstances in which the Governor General could prorogue Parliament, with or without the advice of the Prime Minister.
Thank you, Mr. Chairman.
I'll be pleased to respond to any questions members may have.
Thank you, Mr. Chairman.
Thank you, Mr. Walsh, for having shared your knowledge with us. We however see that there still remain grey areas.
I would like to come back, not to the December 30, 2009 prorogation, but to that which was granted following the coalition between the Liberal party and the NDP, supported by the Bloc Québécois.
I would like you to take a few minutes to explain to us the distinction between the role of the Governor General and that of the Prime Minister. The Prime Minister, who has a consultative role, initiates the request, but the ultimate decider is the Governor General. But, as we have seen, the Governor General took a long time before reaching a decision. Rumour has it that it was a much longer wait than what the Prime Minister had expected. I would not say that these things are usually automatic, but let us say that, duration wise, you generally have to count on the time it takes to have a cup of tea with a biscuit. The Prime Minister then leaves with his prorogation in hand. I am going to make a political comment, because I am in politics. You, however, must stay on the sidelines. Apparently, the process was so difficult that it could cost Michaëlle Jean her position. Given that the Prime Minister can hold a grudge and that he has a good memory, the renewal of the Governor General's mandate could be in peril.
Could you explain to us the distinction between the role of the Prime Minister and that of the Governor General?
We can make him an honorary member.
We do have one researcher from the Library of Parliament who is an honorary member. He used to be the researcher for this committee, in fact, for many, many years.
We discuss things, and we have discussed over the years all kinds of esoteric things, not just the procedure in the House but things like prorogations and dissolutions and constitutional amendments.
I really should mention them, perhaps. One of them still works here at the House of Commons: Terry Moore, in the table research branch. Charles Robert, in the Senate, is a principal clerk there and is very well informed on these issues. And David Gussow is a retired table officer from the House of Commons.
We still communicate with each other and discuss these items. We are all self-taught on these issues. I'm not a political scientist, and I'm not a lawyer, but I like to say that my twenty-some years here gave me a degree in applied parliamentary science.
I agree with everything Mr. Walsh has said to you. What I'll try to do, though, is bring it down from a legal level and make it a little bit more familiar, if I may.
The prerogative powers of the Governor General--or of the crown, I should say, because they are really of the crown and are just transmitted to the Governor General through letters patent from the sovereign in England--are, as Mr. Walsh said, are common law powers. They do not exist in written legislation. Two of them are referred to in our Constitution. These prerogative powers dealing with the relationship of the crown and Parliament are to summon Parliament, to prorogue Parliament, and to dissolve Parliament.
This is all historical, and I think you have to look at prorogation in that light: that it was the crown that needed a Parliament to meet, it was the crown that needed the money, and it was the crown that needed Parliament in order to legislate. So these prerogative powers are all designed, basically, from the crown's perspective to say, “We want to summon you to do this work. You've finished what we assigned you in the throne speech, what we said we wanted you to consider. Go home. But I'm not calling any elections because I may call you back.”
Prorogation is actually an extension, a carrying over. If you look at the etymology of the word, it means “to go forward”. It doesn't mean to put an end to a session. That's its effect, but it actually is a going forward of Parliament; it's a carrying it over to a later time when a new agenda is going to be presented.
These things are all familiar to you, but if you think about it, when you want to put limitations on prorogation, you're also not just keeping the government from sending you home; you may be doing some other things as well, because prorogation has to take place not just when the agenda is finished, but it may take place because the crown changes who the prime minister is. It may take place because there's an emergency. So you have to be very, very careful in drafting anything that it won't cause a problem that's unforeseen down the road.
For example, the motion that was adopted, that was proposed by Mr. Layton in the House, gives you, I think, seven days for a prorogation. What happens if that's not sufficient? What happens if the Parliament Buildings burn down because they've been neglected so long?
Excuse that reference. I had to get that in.
If they burn down and it takes longer to set up in a new place, when the fire happens you can't get an adjournment motion passed, so somebody has to say, “We're not sitting any more, guys; go home, and we'll set up a temporary place for you.”
These are things you have to consider when you start playing around with these prerogative powers, because they do give flexibility. What you've been looking at is a case where many people say it has been abused. Not everyone says that, obviously, but some people say it has been abused. As the lawyers like to say, bad cases make difficult law--or is it difficult cases make bad law? I think I have it backwards. So you have to be very careful and aware of all the repercussions.
I would suggest to you that prorogation may be just the tip of the iceberg, and that what you really want to look at are the prerogative powers and how they affect you. The prerogative power of dissolution has had much more effect on this Parliament and the previous Parliament than anything else, because you can threaten to make something a confidence measure and threaten dissolution. That is a prerogative power that is much more important in the life of a Parliament, particularly in a minority government. You need to expand and look at that.
I should mention to you that the U.K. is looking at prerogative powers. The British are very concerned with some of the aspects of this and are seeking to modernize it. I've sent some references to your researchers and to the clerk about some of the British publications that have looked into prerogative powers.
By the way, one of them contains in it a suggestion for legislating with regard to the prerogative power dealing with war, declaring war and mobilizing troops. The crown does not have to consult the House of Commons. To his credit, consulted the House of Commons with regard to Afghanistan, but he didn't have to. The prerogative power allows them to mobilize the troops and send them in, without any agreement of the House of Commons or the Senate.
These kinds of things are being looked at in the U.K. One of the suggestions was that they legislate with regard to this. That was by a committee in the House of Commons, I believe. The House of Lords recommended that a resolution be adopted, and that's very much in accordance with what I think the Liberals and the NDP were looking at, or what you've done. That is, get a resolution through that's very clear and declares the will of Parliament, and it would have the effect of permanency, of something in the Standing Orders, and this would be followed.
The British are very good at following the prescribed plan without having to go to court and getting things enforced. So there's a cultural difference that you may want to take into account, but it is something that's very characteristic of the British. A lot of their conventions work on these assumptions.
I'll just mention to you about prorogations, when they occur. I read the debate that occurred on motion in the House about prorogation, and a lot of the comments were made about the frequency of prorogations.
The frequency of prorogations should never really be an issue. I think it's a bit of a red herring for you, because if you're well organized--and here we go back to the British--they start with a throne speech in the fall, set out their legislative program. Remember, until recently, with devolution, they were legislating for the whole country, for everything. They had no provincial legislatures except in Northern Ireland. They finished their program sometime in the late spring or early summer, and then they waited till the fall, prorogued, and started the new session. So the prorogation is annual. That's a very nice, neat, organized way of doing it.
I believe some of the provinces may do it twice a year. I've only worked in one provincial legislature, briefly.
Surprisingly enough, it was at the National Assembly of Quebec. I worked there a few years ago. I have to confess that I do not remember if there have been two prorogations or only one.
I will finish very shortly. I know you're looking at the clock.
One of the things that was never mentioned in the media, dealing with the prorogation—and it was said during the debate, I think by , but I'm maybe wrong there—is about the precious time that was being wasted. This was in a totally different context, but the precious time reference made me think that if anybody should worry about prorogation it should normally be the government, because it only has a certain amount of time to be government with that particular Parliament before another election will come up. And when you send the House away and Parliament away, you're not getting your legislation through, you're not doing any of the things that the people who support you expect you to do. So if anybody should have been concerned about losing precious time because of the length of that last prorogation, I think it should have been the government.
I say this just as friendly advice. I was surprised it wasn't mentioned in any newspaper articles about the fact that you lost that precious time.
From the point of view of the opposition, the precious time was not getting legislation through. They're looking at it from the point of view of being able to scrutinize government—the scrutiny of your work—and to offer advice, or criticism if you will. I see the word “advice” made somebody smile.
I think I should shut up now and see if you have some questions for me.
The “disincentives” was his term, actually, and I think that's a very good idea.
I was taking the point of view of Professor Andrew Heard, the pre-eminent authority on Canadian constitutional conventions, who had written an article in The Globe and Mail suggesting that the House could adopt a resolution to express the view that it did not want the Prime Minister, or even the Governor General, to prorogue unless the House had been consulted, except in certain cases, for example—or at least not to prorogue for a longer period than was mentioned, for example, in the motion of Mr. Layton adopted recently by the House. You could have that kind of resolution, according to Professor Heard, and it would serve as a statement of what the House wants.
One of the things I would emphasize is that I would expect the Governor General, whoever it is, to take that into consideration when considering any requests for prorogation by a Prime Minister. For example, whatever you want to put in a resolution in the House, you would have to allow for prorogations when the government decides that it doesn't want to continue its agenda. You would not want to be able to block the government from doing that sensible kind of thing, so you'd have to write that resolution very carefully.
As I said, I question whether seven days is long enough, but that's another matter for debate.
The other thing is that you could put it into law, but I think we look at enforceability too much. Sometimes the statement that this is what we expect, as Mr. Walsh said, in the Constitution.... But even in law, the Governor General is aware of the laws, and if a law says that the Prime Minister is not to advise the Governor General to do something unless the House of Commons has approved, I think the Governor General would very likely say, “I think you'd better go back and get the approval”.
There was a question about committees meeting and changing the Standing Orders to allow this. Mr. Walsh was absolutely right about their privileges.
I would go further. I know I'm disagreeing with something that Errol Mendes, a constitutional law professor, wrote in the Ottawa Citizen. He approved of the idea of having committees sit during a prorogation. I think he's totally wrong. I would go so far as to say it's unconstitutional, in the British sense of that term, for committees to sit during a prorogation. I know the Ontario Legislature does this. They've never been challenged on it, but you have no grounds to do it.
The reason is that in your procedures in the House, you are autonomous. The courts cannot interfere in your procedures when you're constituted as a House. When the crown sends you home, there is no House of Commons. For everything the committees do, they're supposed to be portions of the House and acting under the authority of the House. Once you've been prorogued, there is no House.
If it were possible to have committees sit during a prorogation, then you could get around prorogation by saying that the committee of the whole is going to continue sitting. If you can do it for a small committee, you can do it for a larger committee, and a larger committee, and have everybody continue sitting. That's the reductio ad absurdum argument. To that question I would say no, don't do it. It's not constitutional and it could cause you problems, as Mr. Walsh pointed out.
I think Mr. Reid asked a question about the effect on the provinces. One of the reasons the Constitution states that we need provincial consent to change the office of the Governor General or the Queen is that if we were to do that, we would affect the provinces.
In the wording of any legislation, you would have to be careful that you're not taking away the power of prorogation from the Queen or the Governor General. You could regulate it. You could limit its application. But if you took it away entirely, it would not be transmitted down to the provinces. I think you'd get into a legal and constitutional issue there. They derive their powers through the letters patent that have been given to the Governor General.