:
Thank you very much, Mr. Chair.
Ladies and gentlemen, thank you for inviting me to appear today to discuss a matter of great importance, as we know: prorogation. I was asked to address the issue from a relatively theoretical perspective. As I understand it, there is no bill under consideration at this time. Consequently, we will essentially be looking at the parameters of prorogation and trying to identify its specific characteristics. We also want to look into the future and try to see what limits could be placed on the Crown's power to prorogue Parliament. Or, we may want to see—again, looking to the future, how prorogation might—or might not—be used in future.
First of all, with your permission, I would like to make some preliminary comments that are related, to a greater or lesser extent, to the theme of prorogation. In many cases, I will not be telling you anything that you do not already know. Still, it is important to make a couple of points when examining the issue of prorogation.
First of all, parliaments, including the current one, basically have three functions. The fist two are well-known; the third, which I would like to address, is overlooked more often than not.
Of course, there is the major function of passing legislation, which is central to the legislative process.
The second one is monitoring the government, its decisions, its actions and, of course, its spending, etc.
The third major function which, as I said, is overshadowed more often than the other two, is Parliament's role in legitimizing the government.
In fact, it is Parliament which gives the government its legitimacy. Indeed, that role is central to the principle of responsible government. The principle of responsible government, or ministerial responsibility, means that, in order to retain its political legitimacy, the government must constantly enjoy the support of a majority of elected members of Parliament. This suggests that there is, in fact, a direct connection between parliamentary activity and a government's legitimacy.
In my opinion, it goes much further than just the principle of ministerial responsibility. Ministerial responsibility—when it applies—is brutal and stringent in its application. If the government loses the confidence of the elected members and, in most cases, when the issue is an important one or one where the House of Commons' confidence in the government is at stake, the government must offer its resignation to the Governor General. Those are the most obvious cases where the principle of ministerial responsibility applies—which, once again, is connected to the government's legitimization by Parliament.
I said that it goes further than that. Indeed, the weaker the Parliament—and I did not say “inactive”, nor did I talk about dissolution or the triggering of a general election, because that is not necessary—the less it is able to fulfill its functions or responsibilities. The less Parliament is valued, the less likely it is that Canadians will have a positive view of Parliament and, normally, the less political legitimacy the government can claim. In other words, there is a direct connection between Parliament's legitimacy and Parliament's effectiveness, and the legitimacy a government can claim.
Consequently, a government should normally be concerned about the health of Parliament. It should, at the very least, be respectful of parliamentary activity, because its own political legitimacy to govern is at stake.
The second major observation is that the separation of powers here in Canada is flexible. As you know, in our parliamentary system, which takes its inspiration from the Westminster model, government members—at least, the vast majority of its members—are also elected by the people, and therefore sit in Parliament where they are accountable for their decisions and their actions.
So, in Canada, we have a flexible separation of powers, unlike the system in other countries, particularly the United States, where the separation of powers is a little more rigid. In this country, the parliamentary system is characterized by the coexistence of powers, as some say. Others even talk about combined powers—in other words, a kind of cooperation that must exist between the executive and the legislative branches in order for Parliament to function.
To ensure that cooperation—or at the very least, the harmonious coexistence of the legislative and executive branches—there are a number of mechanisms—what are known as checks and balances. In other words, Parliament has a number of ways of either punishing the government, or limiting its ambitions—or, at the very least, imposing its will on the government. The reverse is also true: the government has a number of ways of punishing Parliament, making it more docile, balancing its influence, calling on it to show wisdom or simply imposing its will on Parliament.
In the first category, of course, there are mechanisms which Parliament can access to limit the executive power. There is the question period—as you know—parliamentary committees, and the process for passing legislation, which necessarily leads to debate, discussion, amendments and votes. There is also the process for approving government spending, as well as the principle of ministerial responsibility. That is Parliament's most effective recourse when it comes to punishing a government. Indeed, ministerial responsibility allows it to withdraw its confidence in the government and, on major, important questions, to force the government to resign.
On the other side, as I said, the government also has ways whereby it can impose its will on Parliament. The two most well-known and, probably, most effective mechanisms are dissolution and prorogation. By extension, I could add a third mechanism, which is summoning Parliament. Therefore, the government has two important tools at his disposal to discipline Parliament or, at least, impose its will on Parliament—once again, they are prorogation and dissolution. By extension, we could add a third mechanism, which is summoning Parliament.
That brings me to a third point. We are part of a system where the Prime Minister has boundless power. Of course, that can be said for the Executive as a whole, but it is obviously the case for the Prime Minister. The latter has a huge amount of power. I do not need to describe it. I think that you are well aware of the extent of that power. And that prime ministerial power is necessarily seen by some Canadians as a source of imbalance in the power relationship between Parliament and the Executive. As a country, if we were to move in any particular direction, in my opinion, it would be to further limit the power of the Executive, as opposed to further limiting the power of Parliament. In other words, if there was a need to rebalance the forces within our system, that rebalancing should not involve greater government control over parliamentary activities; on the contrary, it should mean a strengthening of Parliament's powers in relation to the Executive.
My fourth observation is that the power to prorogue Parliament is a prerogative of the Crown.
Because it is a prerogative, that power should in theory—and I emphasize the words “in theory”—be subject to certain limits. However, I will qualify that quite considerably, as you will see. This power can be limited by legislation, unless it can be demonstrated that the prorogation power enjoys formal constitutional protections. What are those prerogatives? Basically, they are powers that the Crown is able to exercise simply because they have not been removed by Parliament.They are therefore powers derived from that period where all the powers of the state were vested in the sovereign. Obviously, we are going back to our ancestor, the United Kingdom. Slowly, the sovereign's powers were removed in favour of Parliament. By its very nature, a prerogative can be limited or circumscribed by legislation. That prerogative only exists insofar as Parliament has not appropriated that power. It only exists insofar as Parliament has agreed that it should remain with the Crown, unless—and this is an important distinction—it is not possible to demonstrate that the prerogative—in this case, the power to prorogue Parliament—enjoys constitutional protection.
So, the question is whether, in the Canadian context, the power to prorogue Parliament enjoys such constitutional protection. If the answer is yes, that means that no legislation can limit or abolish that power. At the very least, it cannot be limited in such a way as to alter it. If the answer is no—in other words, if the prorogation power does not enjoy constitutional protection of any kind—the normal rule is that legislation can limit the Crown's prerogative to prorogue Parliament.
One initial observation can be made. Unlike the power to dissolve Parliament, nowhere in the Canadian Constitution or the Constitution Act, 1867, for example, is there any mention of explicit constitutional protection for the prorogation power. The reason I say “unlike the power to dissolve Parliament”, is that this specific power is laid out in the Constitution Act, 1867. The legislation refers to it. Of course, that is connected to the maximum term of a Parliament, which is five years, as you know. That has not only been the case since the Charter was adopted in 1982. The provision providing for a maximum term of five years for Parliament has been in place since 1867. The power to dissolve the House of Commons is connected to the maximum term of an election mandate—the term for Parliament—and means that the Governor General can dissolve the House of Commons before the five-year term is up, if the circumstances warrant, obviously. However, there is absolutely no explicit protection for the power to prorogue Parliament.
At the same time, the Constitution does provide that the House of Commons must meet at least once a year. There must be one session every year, at least. Like the other one, that provision does not only flow from the Constitution Act, 1982; it was also part of the Constitution Act, 1867. That is all there is that can in any way be connected to the power to prorogue Parliament; however, in this particular case, the connection is a very indirect one.
Does that mean that the prorogation power enjoys no constitutional protection? That is difficult to say, because there is no explicit constitutional protection; at the same time, it could be argued that it enjoys tacit constitutional protection.
In my opinion, prorogation can be seen as a component of the separation of powers in government. The separation of powers is obviously a pillar of the Canadian state, and there is every reason to believe that the Supreme Court of Canada would recognize that even the principle of the separation of powers is based on the Constitution. In other words, the separation of powers enjoys tacit constitutional protection, and because the power to prorogue is a critical component of the separation of powers, it, too, enjoys that same constitutional protection.
None of this is absolutely clear; we are dealing with assumptions. But this is one that I, personally, subscribe to. Therefore, I support the theory that the separation of powers enjoys implicit constitutional protection and that, by that very fact, the power to prorogue Parliament, which is connected to the separation of powers, enjoys that same protection.
What is the basis for that protection? It may be derived from the preamble of the Constitution Act, 1867, which originally—in 1867—gave Canadians a Constitution that rested on the same principles as that of Great Britain. Clearly, under the preamble, there is protection for the separation of powers—this was a recognized principle in the United Kingdom in 1867—and, by extension, for the power to prorogue. As I said, that power is an essential component of the separation of powers.
Were it not derived from the preamble, the Supreme Court of Canada could find that the separation of powers is an inherent constitutional principle and, by that very fact, that the power to prorogue, which is one of its essential conditions, also enjoys inherent constitutional protection.
These inherent constitutional principles can be found, in particular, in the Reference re Secession of Quebec, a ruling handed down by the Supreme Court of Canada in 1998, as you know. Of course, the Court did not identify the separation of powers as an inherent principle in that ruling, but the logic followed by the Supreme Court in the Reference re Secession of Quebec, which relies on the identification of inherent constitutional principles, would, in my view, support the theory that the separation of powers is also an inherent constitutional principle—even though, as I just said, the Supreme Court did not recognize it as such in the above-mentioned reference. However, no one believes that the principles identified by the Court in that reference are exhaustive. Therefore, there could be others, including the separation of powers. If the separation of powers does enjoy such implicit constitutional protection, either under the preamble of the Constitution Act, 1867, or as an inherent constitutional principle, the odds are that the power to prorogue, which is an essential component of the separation of powers, enjoys exactly the same protection.
That leads me to the next point. If it is true that the prorogation power enjoys constitutional protection under the theory I have just put forward—either through the preamble of the Constitution Act, 1867 or as an inherent constitutional principle—then how can this constitutional principle be amended or revoked? If this principle truly enjoys the constitutional protection I have just described, the odds are that it can only be amended or revoked in accordance with subsection 41(a) of the Constitution Act, 1982, which provides for unanimous consent with respect to anything dealing with “the office of the Queen, the Governor General and the Lieutenant Governor”.
It is important to remember, however, that were we to conclude that, contrary to my claim, the prorogation power does not enjoy implicit or tacit constitutional protection, subsection 41(a) would probably not apply, as it deals with amendments to the Constitution of Canada. In that case, a simple Act of Parliament could limit, and even do away with the power to prorogue—the Crown prerogative that I described previously. However, if it is given constitutional status, as I believe it has, any amendment should be subject to the rule of unanimous consent laid out in subsection 41(a).
So, as I see it, that is pretty much the constitutional setting, so to speak, as regards the power to prorogue Parliament. In addition to that constitutional setting, there are, of course, a whole series of questions which are political in nature. For example, could too frequent use of the power to prorogue Parliament have the effect of weakening Parliament and destabilizing parliamentary activity? And does it not ultimately place too much power in the hands of the Executive, compared to the Legislative Branch? I honestly believe it does. I think that repeated, regular or even annual use of prorogation in our political system—specific to Canada—would run the risk of making Parliament extremely weak in relation to the government. That is even more so the case because, as I said earlier, our system is one where the powers of the Prime Minister and the Executive are already immeasurable, and probably excessive compared to those of Parliament.
If we were to do something in this area, in my opinion, any actions take us in the opposite direction. In other words, we should not be increasing the government's power, as I mentioned earlier, by allowing it to prorogue the House of Commons on a regular, or even, annual basis. It should be the opposite. The powers of Parliament should be strengthened in relation to those of the Executive and the government.
:
I begin by saying that prorogation is not a dirty word. Prorogation is a necessary and useful tool for ending a session of Parliament and beginning a new one between general elections. Then I go on to a section of what prorogation is.
I make the distinction between prorogation and adjournment, because I think that's often confused and misunderstood. Adjournment, historically and at present, is in the control of the House of Commons, and prorogation is done by the Governor General, the crown, on the advice of the Prime Minister.
When and why has prorogation been abused? I believe there's been some confusion on this, so you will excuse me if I go into some detail. In 1873, Sir John A. MacDonald, Prime Minister, fearing a non-confidence vote over the Pacific scandal, asked the Governor General, Lord Dufferin, to prorogue Parliament in order to avoid a vote of confidence.
Dufferin thought long and hard and he consulted widely, including with the British government. After much deliberation, Dufferin granted MacDonald the prorogation, but he limited it to 10 weeks, which was tacked on to the end of the summer adjournment. Parliament did not meet between May 25 and October 12 of that year. When they did meet, MacDonald still faced a vote of confidence. He found he was still losing support and he resigned on November 5.
Sir Alexander Mackenzie took over as Prime Minister two days later, and he requested, and was granted, a prorogation of Parliament that same day. Without meeting again, Canada's second Parliament was dissolved on January 2, 1874. A general election was held on January 22, and Mackenzie won handily. If Prime Minister MacDonald did abuse prorogation by using it to avoid a vote of confidence, retribution was only delayed, not prevented. Mackenzie did not last long as Prime Minister, as most of you know. They said his greatest virtue of being Prime Minister was that he had been a stonemason and his greatest weakness as a Prime Minister was that he had been a stonemason.
In November 2008, Prime Minister Harper, soon after an election, and after Parliament had sat for only 13 days, faced an imminent vote of confidence, which he likely would have lost. Even though the three opposition parties, which together enjoyed a majority in the House, had publicly committed themselves to supporting a coalition government composed of Liberal and NDP parties, the Governor General, Michaëlle Jean, granted Mr. Harper's request. Scholars do not agree on whether or not the Governor General made the correct decision in terms of constitutional traditions and practices. The Liberal Party had a new leader and the unity of the three opposition parties had disintegrated by the time the new session began in late January 2009.
I should make it clear at this point that I am on the side of those who believe she made the right decision.
In December 2009, while Parliament was adjourned, Prime Minister Harper requested a prorogation. This appeared to be a strategic move by Prime Minister Harper to gain a majority in the Senate, and he succeeded in delaying criticism over the Afghan detainee issue, though it came back with a vengeance when Parliament reconvened in March 2010. This prorogation, while it did not raise any significant constitutional issues, did lead to a lot of controversy over the use and abuse of prime ministerial power to bypass and avoid Parliament by advising the Governor General to prorogue Parliament. And of course that's why we're meeting here today on this.
There is one issue that I want to emphasize, and that is the November 2003 adjournment by Prime Minister Chrétien. While the House was adjourned then, Prime Minister Chrétien advised the Governor General to prorogue Parliament. This has frequently been cited as an example of abuse because it is claimed that it permitted Mr. Chrétien to avoid having to accept the Auditor General's report on the sponsorship affair. At the time, Prime Minister Chrétien had no need to prorogue Parliament to prevent tabling of the Auditor General's report because Parliament had already been adjourned. Reports cannot be tabled in the House while it is adjourned. Quite likely, the early adjournment of the session--normally it would have been a month later, in December--had something to do with delaying the tabling of the Auditor General's report. Prorogation did not and could not.... Mr. Martin replaced Mr. Chrétien as Prime Minister on December 12, 2003, during a period of prorogation. The reason for the prorogation almost certainly was to facilitate the change of prime ministers and allow the new Prime Minister, Paul Martin, to start with a clean slate. It had nothing to do with the timing of the tabling of the Auditor General's report.
This prorogation followed normal parliamentary procedures. It did not at the time, and does not now, raise any constitutional or other issues about the abuse of prorogation. I just want to make that clear.
Here is a question: does Parliament have the constitutional power to constrain, through legislation or other means, the Prime Minister's use of prorogation? And here I take issue with some people you have heard from.
This question has been raised in relation to the recent problems in Canada, with the claim being made that prorogation is a prerogative power of the crown and cannot be limited by Parliament. This is not correct.
The British Parliament has legislated to restrict prorogation several times. In 1640, when Parliament and King Charles I were at loggerheads over a taxation issue, Parliament passed an act that prevented its dissolution or prorogation without Parliament's consent. The act stated:
…that this...parliament, now assembled, shall not be dissolved, unless it be by Act of Parliament to be passed for that purpose. Nor shall it be, at any time or times, during the continuance thereof, prorogued or adjourned, unless it be by act of parliament to be likewise passed for that purpose.
Parliament went on to abuse this power by continuing to sit for nine years without dissolution, the infamous Long Parliament. Whether or not the Long Parliament was a worse abuse than the governing of Britain by Charles I as an absolute monarch in the absence of Parliament for the preceding 11 years is irrelevant. The point is that the British Parliament asserted its fundamental constitutional right to govern its own affairs in deciding at that time that it, and it alone, could choose when it should be dissolved or prorogued. This was merely a claim of constitutional power. The British monarch still retains the power to prorogue, though, as in Canada, this power is exercised on the advice of the Prime Minister.
Nevertheless, the British Parliament has not been reticent in passing legislation to set limits on prorogation. It passed acts in both 1867 and 1918 that ensured that the period of prorogation after an election—after the writs are returned, in Canadian parlance—would be sufficiently long to allow members to attend the opening of the new Parliament. This was especially important in 1918 to give members who were serving in the armed forces enough time to get back to England from overseas.
Section II.18 of the Constitution Act, 1867, as amended, states that the Canadian Parliament has the same powers that the British Parliament had in 1867:
18. The Privileges, Immunities, and Powers to be held, enjoyed, and exercised by the Senate and by the House of Commons and by the Members thereof respectively shall be such as are from Time to Time defined by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act [1867]...and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland and by the Members thereof.
The British Parliament legislated on prorogation in 1867 and 1918. Therefore, the Canadian Parliament also has that power. Prorogation has not been a contentious issue in Britain for many centuries. Sessions there continue to run on an annual schedule, and the British Parliament is normally prorogued, much as it used to happen in the Canadian Senate, through a ceremony in the House of Lords in which the Queen or her representative lists the accomplishments of the session and states the date for the reconvening of Parliament.
The period of the prorogation in Britain normally lasts a week or so and occurs in the fall. The long summer break, not the period of prorogation, is the pause that refreshes the British Parliament and parliamentarians.
I want to emphasize this next point, because I think there's some confusion on it. This power of Parliament to legislate on prorogation does not affect the reserve powers of the crown. Governor General Michaëlle Jean would have exercised these reserve powers if she had refused Prime Minister Harper’s advice to prorogue in 2008.
The reserve powers of the crown are not defined. The fact that they exist simply affirms that it might be in the national interest, on rare occasions, for a British monarch or a Canadian Governor General to ignore or go against the advice of a Prime Minister, or even act independently of the advice or lack of advice from a Prime Minister. In other words, the legislation on prorogation in Britain does not affect those reserve powers, and it would not in Canada.
If Britain were to undergo a lengthy period of what the British term a hung Parliament and in Canada a minority government, a British Prime Minister, following Stephen Harper’s example, might well want to use prorogation as a political tactic. The British Parliament might then have to decide--as might the Canadian--that restrictions must be placed on the Prime Minister’s powers to advise prorogation.
What are the options for reform? Parliament has the power to define the circumstances in which a parliamentary session can be prorogued and the sessions and conditions of prorogation. Perhaps the simplest way to do this would be for Parliament to define through legislation the terms, conditions, and occasions on which the Prime Minister can advise the Governor General to prorogue a session.
Trying to limit the Prime Minister’s power to advise prorogation through a motion risks a defiant Prime Minister saying that the motion itself is only advisory and does not constitute a compelling instruction requiring obedience.
Some of the options, listed roughly from least to most dramatic, are:
Number one, do nothing. With only three contentious prorogations in over 140 years, this problem does not seem to be the most pressing facing Canada. On the other hand, with two contentious prorogations within less than two years and the prospect of continuing minority Parliaments and governments, a review of prorogation in all its aspects is a timely exercise.
I should add there that the ultimate consequences of the act of the government, regardless of what Parliament does, is what the electorate thinks of it. I think we have to bear in mind when we're tinkering with constitutional machinery such as prorogation that ultimately the electorate is going to pass its judgment. Often we have to defer our own judgment to the electorate.
Number two, we can prevent a Parliament from being prorogued until a session has lasted a decent period of time. This has its attractions, but it risks preventing Parliament from having short sessions, which are appropriate in some circumstances. For example, in the first session of the 34th Parliament in 1988-89, the House of Commons sat only 11 days and only one bill was introduced. It received royal assent, but that bill--the free trade legislation with the United States--had been far and away the most important issue in the preceding election campaign. I believe that short session was appropriate and so was prorogation.
Number three, limit the duration of a prorogation. In theory, the Constitution Act of 1867 does not prevent a government from terminating a session early in a year and then delaying holding the next session until late the following year. In other words, theoretically the Constitution permits Parliament to go nearly two years without meeting.
The fifth session of the 18th Parliament, from 1936 to 1940, lasted only six days and the sixth session lasted less than one day. It met and was adjourned the same day--January 25, 1940. In other words, between June 3, 1939, and May 16, 1940--a period of more than 11 months--the House of Commons sat only seven days. Canada declared war against Germany on the 10th of September 1939, during the six-day session of that September.
For the remainder of this crucial period, Canada was governed without the participation of Parliament. This absence of a parliamentary presence for a crucial period, as Canada mobilized for World War II, did not arouse a great deal of indignation and protest at the time. The less than one day session of January 25, 1940, was simply to ensure that Parliament met at least once during that year.
Number four, we can require the House of Commons’ support for a prorogation. The discretion to advise prorogation could be taken away from the Prime Minister and in effect given to the House of Commons. In other words, Parliament could legislate that the Prime Minister may only advise the Governor General to prorogue Parliament when the House has passed a motion to that effect. If the House was adjourned and not in session when the Prime Minister wanted to prorogue a session--and this has occurred frequently in the past--the advice to prorogue would have to be supported by party leaders representing a majority of the House of Commons.
I could go on, but I shall stop here, emphasizing that prorogation should not be considered in isolation. The parliamentary system in Canada is under stress from a great many pressures and a great many different functions and areas. The use and abuse of prorogation is only one way that governments respond to these stresses. Many, but perhaps not all, of these stresses are the product of continuing minority Parliaments. I think Britain is looking at us with great interest at this point in time to learn, if possible, and benefit from our experience.
Thank you, Mr. Chair.