I'd like to begin by thanking the committee for the invitation to be here today. This committee is addressing a matter of great importance for the governance of the country, and I'm honoured to be here working with you. I hope what I have to say will be of use to you.
Some of what I have to say today about constitutional conventions and constitutional law has been said, and said very well, by previous witnesses. My remarks are mainly to indicate where I agree and disagree with what has been said about the nature of conventions, as well as to raise some issues that have not yet been addressed with respect to the role of the Governor General.
There was also, early in these proceedings, some question about whether the Governor General was bound by convention to act only on the advice of the Prime Minister, or whether the Governor General could instead equally accept instruction from the Speaker of the House of Commons or perhaps other sources. On this point at least, there's no doubt about the relevant convention: the Governor General is to act on the advice of the Prime Minister.
In some previous meetings, there appears to have been some confusion caused by the ambiguity of the word “advice”. The Governor General is free to receive information from whatever sources she chooses, but “advice” in this context has a specific technical meaning when we're talking about the Governor General's constitutional obligations. The Prime Minister's advice to the Governor General is in fact “instruction” or “direction”. In its subtle constitutional convention, the Governor General receives advice in this restricted technical sense only from the Prime Minister.
With that out of the way, I'd like to say a few words about conventions. It might be helpful to recap some fundamental points that have been established by previous witnesses, particularly Professors Russell and Heard, both of whom I have great admiration for.
First of all, in the Canadian constitutional order, the power to prorogue Parliament rests exclusively with the Governor General. Secondly, there is a constitutional convention that the Governor General acts on the advice of the Prime Minister and no one else. This is a convention of broad application, of course, and is not limited to matters of prorogation. Third, the Governor General holds in reserve a discretionary power to refuse to act on a Prime Minister's advice in exceptional circumstances.
Now, as a constitutional lawyer, it's important for me to acknowledge at the outset that conventions are not posited law, and we have little to learn about them from courts. While we in Canada tend to take the patriation reference as the starting point of any discussion on the nature of conventions, the rest of the common law world views this as a bit odd.
The ordinary course is for questions of conventions to be resolved by political actors without recourse to courts, as was done by the U.K. Parliament in 1981 when the Kershaw committee, aided by evidence from Oxford's legendary Geoffrey Marshall and John Finnis, produced a masterful analysis of the conventions surrounding patriation. The Kershaw committee's reports are nearly forgotten in Canada, but are a reminder of the primary role of Parliament in interpreting constitutional conventions.
It bears repeating that what makes conventions difficult to work with is that, in the central case, the rules governing their creation and change make them resistant to non-consensual change. It's a simple matter to determine when legislation is enacted, amended, and repealed. The same holds, more or less, for the common law. But with conventions, it's a different story. It's the parties' stable conduct that settles things. Without this stable conduct--and, more to the point, the underlying agreement that is reflected in the conduct--there is no convention.
With conventions, it's not always immediately clear whether a party's action is an infringement of the convention, or an amendment to a convention, or a replacement of an old convention with a new one. This is because the legitimacy of the action depends on whether the action is accepted and adopted by other political actors. There are no rules that can tell you when this is going to happen.
This committee, it seems to me, is concerned with the question of how to modify a particular convention or to create a new convention to govern the request to prorogue. As you're all aware, there are two ways to create a convention. The first, responsible for our most fundamental conventions, is by subtle practice over time, as parties cohere around the soundness of a particular course of action. The second way to create a convention is by simple agreement. In both cases, it's the agreement and the stability of the agreement that makes a convention and gives it force.
I agree with Professor Russell and part company with Professor Heard to the extent that Professor Heard has suggested to you that a constitutional convention surrounding the power to request or grant prorogation could be established by a majority vote in the House of Commons. The idea of creating a convention that binds one of the affected parties over the objection of that party seems to me to be inconsistent with the very concept of a convention.
A new convention about the advice that can be given to the Governor General by the Prime Minister, or the exercise of the reserve power by the Governor General, cannot be created by the simple agreement of a majority of Parliament. To hold otherwise would require a concept of constitutional convention that's alien to our constitutional tradition.
I'd like to move now to some comments about the role of the Governor General. While this committee has been asked to study relevant issues pertaining to prorogation, it seems to me that prorogation is really a microcosm of a larger issue, which is the circumstances in which the reserve powers of the Governor General can be exercised and the role Parliament can play in changing the conventions governing the exercise of those powers.
In the commentary I wrote on the events of December 2008, I emphasized that the Governor General had the reserve power to refuse the if she concluded that the request was in violation of a constitutional convention and, in that sense, was unconstitutional. It required an assessment on the part of the Governor General of whether the request was a good faith attempt by the Prime Minister to act in the best interests of the country, or if it was made for mere partisan advantage or was an abuse of authority in some other way. There has to be an assessment of the reasons given by the Prime Minister in these circumstances, and an independent exercise of judgment by the Governor General.
In determining whether there is reason to believe that the Prime Minister is overreaching constitutional authority in the circumstances, there's no reason why the Governor General should not have the benefit of information provided by Parliament. This is not a matter of being advised by Parliament in the constitutional sense, but a matter of simply receiving information. To the extent that there is currently doubt about the appropriateness of the Speaker providing such information to the Governor General, there is now an opportunity for Parliament to agree on some avenue to communicate to the Governor General any relevant circumstances or information needed to best exercise her discretion.
New and flexible rules are not needed, but simply good information and good judgment. The Governor General needs flexibility to determine, for example, when a request to prorogue is made for the purpose for which the power exists--when a government has lost confidence, when to dissolve Parliament, when to call an election, etc.
Canadians have become accustomed to an office of Governor General with little to no political function. Given the sort of statecraft that's now needed from the office, and the culture of transparency and public justification that now pervades public life, some changes to the office and how it relates to Parliament are now needed.
We can benefit from the experience of countries like New Zealand, where the office of Governor General was transformed after the adoption of proportional representation. Governor General Hardie Boys, for example, used public addresses to explain the criteria he would use in determining whether a proposed government would likely command the confidence of the House.
I'm not suggesting that the Governor General should have to justify specific decisions made after the fact with reasons to the public, but it would enhance the authority of the Governor General to hold other political actors to account if the Governor General were to be politically or publicly accountable in some way, and it would provide for some common understanding of how the office functioned. Such public accountability can be provided, for example, through public statements about how she would view the role of information provided from Parliament, or statements about criteria she would use for decisions and the exercise of the reserve powers.
While Parliament is not in a position to insist that the Governor General take any of the actions I have suggested, it's entirely appropriate for Parliament to express its desire for the Governor General's office to take steps to increase the transparency of its decision-making. Another possibility, and one that was suggested by former Governor General Adrienne Clarkson, would be to hold a parliamentary hearing for appointees to that office. Such a hearing, similar to those recently employed prior to the appointments to the Supreme Court, could provide an opportunity for an incoming Governor General to dialogue with Parliament first-hand about the expectations of the respective roles of Parliament and the executive.
Thank you so much, Professor Miller, for your presentation.
I would like to come at it from the angle of the Speaker. Should a majority of the House decide or should there be a unanimous decision of the House on some aspect of the issue of prorogation and a wish to have its point of view brought to the attention of the Governor General, it has been suggested to us that the way in which this can happen is through the Speaker, and that the Speaker would have access to the Governor General virtually at any point.
If I can just read for you something that was brought to our attention, it's called “Access to the Governor General: A Little-Known Parliamentary Privilege”, and it states:
At the opening of the First Session of a new Parliament, the newly elected Speaker of the House of Commons presents himself or herself to the Governor General in the Senate Chamber before the latter delivers the Speech from the Throne. The Speaker addresses the Governor General by an established formula, which is as follows:
May it please Your Excellency,
The House of Commons has elected me their Speaker, though I am but little able to fulfil the important duties thus assigned to me. If, in the performance of those duties, I should at any time fall into error, I pray that the fault may be imputed to me, and not to the Commons, whose servant I am, and who, through me, the better to enable them to discharge their duty to their Queen and Country, humbly claim all their undoubted rights and privileges, especially that they may have freedom of speech in their debates, access to Your Excellency’s person at all seasonable times--
That phrase was underlined by the witness who brought this to our attention.
--and that their proceedings may receive from Your Excellency the most favourable construction.
So basically what that witness was bringing to our attention--and other witnesses more or less agreed--was that the House of Commons can express its will, not just on prorogation, but on other issues that may be convention, that may be actual law, and bring the House's opinion or view to the attention of the Governor General, if it might be of interest in terms of her or him exercising their exclusive authority or reserve authority. That could be done through the Speaker.
I'm not sure if that's something you have considered, but if it is, I'd be very interested in hearing what you have to say about it.
A number of people have lived through prorogation of the House three times for all sorts of reasons. The last time, public opinion did not really accept it. People challenged the use of prorogation, and it probably was an abuse.
We can see that the use of prorogation has indeed been abused by the current government on several occasions. The last time, it appeared that it was not well received by public opinion. Some people, including some university professors, wanted to find out what their peers thought. There was even that young man who set about creating a website to post the reasons why the government had decided to prorogue the House.
That leads us to reflect on the need to make more prudent use of prorogation and on the role of the Governor General. As a parliamentarian, my sense is that the Prime Minister goes to ask the Governor General for advice, but she really has no choice. It would have surprised me greatly had the Governor General decided not to follow the Prime Minister's advice. Agreeing to his request is no more than a formality.
You say that there could be more transparency, but, at the same time, you say that reasons for the decision need not be given afterwards. That is a very thin line. I find it hard to believe that the Governor General could explain her reasons beforehand, but not afterwards. Agreeing to the Prime Minister's request really is nothing more than a formality. The Governor General has very little discretion.
There's an awful lot in your comments. With respect to how to approach this, what I'm suggesting is that the decision-making of the Governor General's office has to have some better transparency. I've suggested one way of doing it; I've drawn the line at after-the-fact reasons. I think that in transforming a public institution we have to take baby steps. I'm not certain that giving after-the-fact reasons, in our present political culture, is wise.
I believe that it would be tremendously helpful for the Governor General to talk about the role of that office, such that there could be an understanding by the Prime Minister or by others as to.... Ahead of time, she could draw a line as to when she believes she would be entitled to use the reserve powers and when not.
You say that the culture now is such that she has to accept the advice of the Prime Minister. I think there's some debate about that. I think good arguments could have been made--either way--back in 2008 as to what she could have done. It would have been very difficult, to be sure. It would have been very difficult for her to refuse the advice of the Prime Minister.
Perhaps it would have been much easier if she had, ahead of time.... Well, she would never have anticipated the situation; I certainly can't suggest that. But if ahead of time there were rules set out in advance, that would strengthen the position of the Governor General, who could then later say that these rules have not been followed and this is why I'm now refusing the advice of the Prime Minister.
But if you set the pattern that there needs to be some kind of accountability, then in those times when it is controversial, the Canadian people will be looking at something other than two hours of a camera focused on a doorway.
Voices: Oh, oh!
Mr. David Christopherson: That was the reality of what we went through the last time.
At the end of the day when she came forward...well, she never did come forward. When the Prime Minister eventually emerged through said doorway and announced that he had what he wanted, the person who made the decision didn't say a word, and still hasn't.
Why? What would be the harm in coming forward and saying, “Here's why I've decided what I've decided”? The rest of us have to live with that, notwithstanding senators, who don't have to answer to anybody, anywhere, anytime. But the rest of us involved in making laws are accountable.
I don't understand. All I'm hearing so far is that because it's a little risky, or you're nervous, you don't want to do it. That's not really a reason, I don't think, but obviously you do. Okay, fine. We're going to go on. If I have time, I would like to return, then, to the main—
I don't know...you make recommendations and you expect them to be defended.
On March 17, the House passed this motion put forward by Mr. Layton:
That, in the opinion of the House, the Prime Minister shall not advise the Governor General to prorogue any session of any Parliament for longer than seven calendar days without a specific resolution of this House of Commons to support such a prorogation.
What are your thoughts on that specifically?
Thank you, Professor Miller.
Given the suggestions you made following what's taken place in New Zealand, I would have to say that it might be of interest to have the Governor General, prior to any specific use or exercise of his or her authority and powers, whether they be regular or reserve, to in some way make public the kind of process behind that kind of exercise, but not once an actual decision--an exercise of authority--has been taken by the Governor General, so not to then publicly justify any particular decision. I actually agree with you on that. It may be because of my legal training.
Should we, as a House of Commons, attempt to change the convention, to change our constitutional framework in order to require a Governor General to have to justify specific decisions that have been taken, I do think that then we're on the road to eroding our actual parliamentary democracy and our democratic institutions that uphold that democracy. I am in full agreement with transparency, but I do think there are occasions when that's a dangerous road, and it's not one that I personally would want to take.
However, I do believe that in the interests of transparency that it is a good idea that the Governor General may wish to expound a bit on the process that leads him or her to a decision, in the way that Adrienne Clarkson did once she was no longer Governor General. But I think it should be done while they are a sitting Governor General, because that can then inform the public and shed more light. It's not some scary thing like the Wizard of Oz behind the curtain pulling all of the levers without anybody knowing. This way, we would know what the levers were. We may not know the sequence in which they were pulled, but we would know what the levers are, so we that gives us a good sense of arriving at our own idea of what the justification is.
However, on the issue of the motion--
Yes, you prompted something.
We've had what has been an interesting discussion with the past few witnesses. I'm not sure that it's been entirely fruitful on the discussion regarding the Speaker of the House and, sort of parenthetically, the Speaker of the Senate.
My impression from the remarks or the formula that the Speaker of the House reads at every throne speech.... As one of the members of the House of Commons jostling around the bar of the Senate, I get to hear it each time, and it seems to me what that's really about is a reaffirmation of the settlement of 1688—or if you wish, of 1660 and the restoration—and the establishment of the fact that the House of Commons is part of a Parliament. It has certain privileges that the crown can't take away, and the crown can't arrange to have access of the House of the Commons. The ministers around the crown can't freeze out the access of the House of Commons as a whole to the Governor General.
By the same token, it's also the reaffirmation of our freedom of speech. We can speak in the House without facing any consequences. We have parliamentary privilege in that regard. I think that's what's going on.
The Speaker of the Senate, if I'm not mistaken, is appointed by the Prime Minister. It's actually in our Constitution. It's actually written down that it's not an independent post. I suspect, therefore, that it would have lesser rights in this regard. It's really, in a sense, a government post. That's just an observation. He's not elected by the Senate.