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 Prime Minister 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.