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View Peter Milliken Profile
Lib. (ON)
Thank you, Mr. Chairman.
I want to thank the committee for inviting me to appear today as it undertakes consideration of the question of privilege referred to it by the House on November 29, 2010, regarding the premature disclosure of the draft pre-budget consultation report of the Standing Committee on Finance.
As I indicated in my ruling on this matter, it is unusual for the chair to involve itself in committee proceedings. However, the Standing Committee on Finance felt so strongly about the leak of its draft report that it took the rare step of reporting it to the House as a possible breach of privilege, unanimously believing that it merited further investigation.
As honourable members of the committee will know, the role of the Speaker when questions of privilege are raised is narrowly defined. As House of Commons Procedure and Practice, second edition, states at page 141:
The function of the Speaker is limited to deciding whether the matter is of such a character as to entitle the Member who has raised the question to move a motion which will have priority over Orders of the Day; that is, in the Speaker's opinion, there is a prima facie question of privilege. If there is, the House must take the matter into immediate consideration. Ultimately, it is the House which decides whether a breach of privilege or a contempt has been committed.
This is precisely what has happened in this case. The Member for Outremont raised the question, I made a ruling, the House debated and agreed with the motion that was moved, and here we are with this committee seized of the matter.
I referred in my ruling to House of Commons Procedure and Practice, second edition, which is very clear about the confidential nature of committee reports. On page 1073 it states:
Committee reports must be presented to the House before they can be released to the public. Even when a report is concurred in at a public meeting, the report itself is considered confidential until it has actually been presented to the House. In addition, any disclosure of the contents of a report prior to presentation, either by Members or non-Members, may be judged to be a breach of privilege.
I went on to state on page 6560 of the House of Commons Debates that:
It is with good reason that draft committee reports are treated as confidential. To do otherwise might well prejudice the ability of committee members to engage in candid deliberations free from outside interference. Violation of this principle of confidentiality can thus be seen as direct interference with the ability of members to discharge their duties.
Confidentiality was clearly the overarching, institutional issue and its infringement was the primary reason for finding the matter prima facie.
Not so long ago, many committees had strict processes in place to protect the confidential nature of committee reports. For example, access to the draft reports was limited, copies were numbered and distributed at meetings only, and no copies were allowed to leave the room. Today, however, we've come to rely heavily on technological tools to distribute information. And while on the one hand they can facilitate our work and make us more efficient, on the other hand, they give us the ability to disseminate confidential information quickly and widely with the mere push of a button.
I do not believe it is realistic to think that it's possible to turn back the clock and return to past practices that do not harness the power of the tools that are at our disposal. As such, the real challenge for this committee, in my view, lies in developing recommendations that will facilitate the consideration of confidential documents within the context of the evolving technological environment. Whether this could be achieved through changes to the Standing Orders or whether it requires other changes in order to achieve this remains for this committee to decide.
The order of reference now before you offers the committee an excellent opportunity to investigate the larger issue of confidentiality and perhaps to recommend changes to our rules and our practices with a view to preventing this from happening again.
I would like to commend the Committee for its prompt attention to this matter, and would be pleased to answer any questions the Committee may have.
Thank you.
View Michael Chong Profile
How can we restore Parliament's relevancy to Canadians? I think a first small but important step is to take a look at reforming question period.
If there's one thing we as members around the table have all heard over the last number of years--it may not be the most intense thing we hear, but we hear it consistently during election campaigns and between elections when we go to public schools--it's that many disapprove of the way question period is conducted. So I think there is a growing divide between a body politic that is becoming increasingly apolitical and a Parliament that is becoming more and more partisan.
So what really is the problem with question period? I think the general perception in the public and among Parliament watchers is that the behaviour is terrible, it lacks substance, and is overly rhetorical. While all these are undoubtedly true, they are simply symptoms of a much deeper underlying problem. I think the real problem with question period is that members of Parliament have been stripped of the right to ask questions of the government, with the result that the vast majority of members in the House during question period are no longer true participants in question period, but mere spectators.
Let me pause here to make three very quick points. First, this is not about the current class of elected officials. I don't think that in this Parliament we have a class of elected officials who are somehow less capable and less talented than at any other time in Canadian history. I don't think the behaviour is because somehow they're a lesser group of Canadians. In fact, many have argued—and Ned Franks is one of them—that there were times in our nation's past when elected officials acted in a manner far worse than today, especially before the advent of television cameras. In my view, if you put any group of 308 Canadians in that room, within six months it would descend into the same sort of system you see today. I think the problem with question period is fundamentally its format, and the format drives the behaviour.
The second quick point I want to make concerns the decline in decorum. Some believe that decorum has really declined in recent years; others dispute that fact. People like Professor Ned Franks at Queen's University have said that there was never a golden age of Parliament.
Regardless of which point of view is correct, something has changed today. Because of modern technology like the Internet, iPads, and smart phones, what was once unseen and not televised is now not only beamed directly through television, but also beamed directly through the new media instantaneously into the cars, meeting rooms, board rooms, kitchen tables, and dining rooms of the nation. As a result, Canadians now see what was once unseen, and what they see is not something they approve of.
The third quick point I want to make is that this is not about turning question period into afternoon tea with crumpets. This is not about removing the intensity, passion, and debate from the House. It is not about making this a big round-table session where we all hold hands and hug. It's not about removing heckling. It's about fixing some of the more dysfunctional aspects of question period and making it more relevant.
The central point I want to make today is if there is one thing I would focus on out of all the six proposals in the motion, it's the fact that members have been relegated to the role of mere spectators and not participants in question period.
About 30 years ago, Speaker Jeanne Sauvé introduced changes that stripped members of the right to spontaneously rise in the House and catch the eye of the Speaker to be recognized for a question. These changes that Speaker Sauvé introduced mean that unless a member gets on the party list and has their question vetted beforehand, they cannot ask a question. The Speaker recognizes only those people on the four party lists that he or she receives each day. As a result, most members—I'd say 250, 260, 270 out of the 308 members of Parliament—are relegated to the role of spectators, since most rarely get on these lists. Rather than being attentive and potential participants in question period, members behave accordingly, as any spectator would in any forum.
I'd like to remind members that up to the 1980s, members of Parliament had the right—as Speaker Jerome called it, the right, not the privilege—to rise in the House, catch the eye of the Speaker, and ask questions of the government that were often driven by the concerns that members had heard from the previous weekend when they had returned home to their ridings. That no longer is the case. I believe this is one reason for the growing disconnect between the people we represent and the topics being debated in the House.
The party lists also weaken the authority and discipline of the Speaker. If a member misbehaves in question period one day and the next day appears on the party list, the Speaker has no authority to not recognize that member. Up to the 1980s, if a member was misbehaving the Speaker would refuse to recognize them for days, if not weeks. At some point the member realized that if he or she was going to be able to represent their constituents, they would have to be on better behaviour in order to be recognized by the Speaker.
I think the party lists are another big reason for the dysfunction we often see in question period.
My motion has proposed six areas of reform; I'm not wedded to each and every one of them. This Parliament is made up of 308 members. It's the wisdom of the 12 members on this committee to decide which of the six, or other proposals, to proceed with, and it's up to the House as a whole to concur in that report.
If I were to pick one of the six proposals, it would be the fourth proposal that is the most important, which is to allocate a portion of the questions each day for backbench members.
The committee has up to six months to consider the various proposals, and other ones. It may decide to reject, amend, or adopt the six proposals I've made. It may decide to add additional proposals for change.
I think the motion provides some viable and reasonable proposals for reform, and I hope the committee will be able to report back to the House by April 6, 2011.
Thank you very much.
View Judy Foote Profile
Lib. (NL)
Thank you.
And thank you to Mr. Chong for being here as a witness today. I think you're right when you say that Canadians want to see a change in the House of Commons, particularly during question period.
I think all parties have endeavoured to do something about the decorum in the House, and I think we all need to be recognized for that. That's not to say that there still aren't improvements that can be made.
I accept your motion, of course, which passed in the House. I want the opportunity now to ask questions about some of the elements of your motion. I guess I'll start with the first one, where you talk about “elevating decorum and fortifying the use of discipline by the Speaker, to strengthen the dignity and authority of the House”.
My understanding is that the Speaker has all the authority he needs at this point to exercise discipline. You seem to think otherwise. Do you want to elaborate on that?
View Michael Chong Profile
It's the paradox of the Speaker. This Speaker and previous Speakers have traditionally interpreted the enforcement of the rules at the level they believe the House will accept. I believe the Speaker's current enforcement of the rules is the one that he believes the House wants as a whole.
Now, if the committee reports back, and the House concurs in the report, that the rules should be more vigorously interpreted, the Speaker would more rigorously enforce the rules.
This is an opportunity, through this report and the concurrence in that report by the House, to strengthen the Speaker's authority.
View David Christopherson Profile
Thank you, Chair. I appreciate it.
Mr. Chong, thank you again for the work you've done. It is very interesting.
Like you, I have a lot of concerns about the way we do things. I got into politics, as most of us did, to change things that we didn't agree with, but I have to say that my experience has tempered that a bit, in terms of change for the sake of change isn't always the way to go. You have to make sense, particularly when we're dealing with the traditions of Parliament, and we need to walk carefully.
Like some members here, I have a fair bit of experience in these areas, having served on city and regional councils and then in the Ontario legislature, where I both asked questions and answered questions as a minister, and I've done the process of preparing for question period. I've also been a house leader and a deputy speaker, and there are my six years plus here. I have some idea of these issues in other arenas too.
Let me say at the outset, for the 26 years plus that I've been in elected office, in every arena I've been in, there has always been an issue that the current clowns in place are worse than the previous clowns, and decorum is always the issue. On the Hamilton city council, when you're having fist fights in the back parking lot, there might be some justification, but for the most part it's always thus and everybody is always better.
We've had them. It's true. There are those of you who know.
I want to be specific. I'm just going to throw some thoughts out to you, in no particular order, Michael, and get your feedback.
On increasing the time of the question, I was one of those who had to learn to go from one minute to 35 seconds, and being somebody who is long-winded to start with, this was a major challenge. But I have to tell you, in terms of the quality of the responses, I'm not yet convinced they're either any better or worse. For the person asking the question it was often better because you had a little more time to lay out the issue, to put things in context for anybody watching who didn't know the issue. And most people don't know the particular issue, especially if it's local or a very detailed one within a portfolio. Ministers can use the one minute usually to get up, as they do now only for twice as long, to brag about what's great about their ministry and their government and their leader, etc.
I have to say also that this occurred to me, and again, this is the benefit of being on all sides of the House: there are times when the answer to a question is no, and to have the Speaker say they took 45 seconds to ask the question and he wants you to take 45 seconds to answer it, well, no, no, no.... That could become a joke too. I'm just not sure that alone nails it.
I don't have a lot of time, so I'm just going to jump around. I'm going to jump to the end so I get this in. I do believe, however, that the absolute key to everything you've raised for the most part comes down to Parliament telling the Speaker to increase the level of discipline through the rules. I've seen deputy speakers, who don't have the same relationship with Parliament that the Speaker himself, in this case, has. But Speakers are sovereign. Whatever they rule, that's it. There is no appeal. There's nowhere to go. And I have seen Speakers stand up and just by standing the place goes dead quiet. If you're heckling, you're watching the Speaker because they're one of those who don't let you get away with it.
Chris Stockwell, if anybody knows Chris Stockwell, was one of the best speakers I've ever served under, and it was partly because he was really tough on the rules, but he was really fair. He was always fair-minded about things. So I'll get that out there.
Having the Prime Minister on one day is probably one of the ones I'm most interested in, simply because most of us don't get an answer from the Prime Minister. Most of us can stand up and ask the Prime Minister a question in our third, fourth, fifth question slot. The Prime Minister normally doesn't respond, throws it over to another minister or the House leader. The only time the Prime Minister.... And this was true of the premiers in my day: they would only answer questions from the leaders. They felt obliged to do that to show the respect for another leader who could theoretically become Prime Minister, so they would give them the respect of standing up. Sometimes they'd look at them, sometimes they didn't, depending on the relationship, but they did stand up and address the questions that came from the leaders. Beyond that, they'd toss it to somebody else.
The idea of an ordinary backbencher getting a shot at the Prime Minister has some real merit. And in terms of looking at this in a non-partisan way, the notion of freeing up the Prime Minister of the day--not the other ministers, I'm not as keen on that at all, and I'll explain why if I have time--to spend more time doing the Prime Minister's job has some merit. It's a complex country, a complex world, so I'm a bit open to that.
I'm not so open to scheduling the ministers. I understand what you're saying about the wasted time. I went through that--the butterflies in the stomach every day when you have a front-page issue and you're getting ready for question period and you know you're about to be drilled and so much is riding on it. But on the other hand, the ministers also don't know what you're going to ask on any given day, and that forces a good minister to stay on top of all their files. A bad minister, quite frankly, can keep an eye on three or four files or be prepared for a day or two. But on any given day, someone could stand up and ask you anything in your portfolio, and you had better know your major files; you had better know the procedures that are involved; you had better know where things are, and if you don't, it's going to show very quickly.
The other thing on that is that as tough as it is and with the time that's wasted, the most wonderful sound in the world when you're a minister is “this House now stands adjourned”, because then there's no more question period, and you're in control of everything. Life as a minister when the House isn't sitting is really good. When the House is sitting, it's really good, but it's really tougher.
So in my view there's a balance there. I have some other thoughts, but I'll give you a chance to respond, if I've left any time.
View Yasmin Ratansi Profile
Lib. (ON)
Are you kidding?
Mr. Chong, thank you very much for being here.
This is something that needs to be done, because students and other people come from my riding, and they see us, and they wonder. Knowing my professional vantage especially, people wonder how a person who used to do receivership can be in such a position where everybody is yelling. Everybody is supposed to be quiet--right?
I'll give you a few questions, and then you can take the time to answer them.
When you talk about elevating the decorum and fortifying the use of discipline by the Speaker, doing so is at the discretion of the Speaker. You stated there was a specific incident in which the Speaker enforced the true meaning of the rules, and there was a revolt. So the Speaker either has the power or doesn't have the power. Could you tell me what happened?
You are suggesting that he fortify it. How can he fortify it? If the weapon is available, why isn't he using it? I know Speaker Blaikie used to use them quite effectively.
View Claude DeBellefeuille Profile
Thank you, Mr. Chairman.
Thank you for appearing here this morning, Mr. Chong.
I listened to your responses to the various colleagues around this table, and what surprised me is that you suggested that the ministers who are not likely to be asked questions during oral questions are wasting their time, in the same way as backbench members who don't have the opportunity to ask questions. I'm a whip, and I don't have the opportunity to ask a lot of questions, but I believe that question period, for me, is an exciting and formative time in shaping my knowledge. I like to hear the questions from the other parties, and I like to hear the answers from your ministers—when they give any. It's also important for me to hear the answers and not just to ask questions. I'm very much insulted when I see a minister, for example, who knows the subject does not concern him, reading his newspaper or Maclean's magazine without paying attention to the questions of the other parties or to his colleagues' answers. I believe it is part of our job to ask questions, but also to listen to what the others say. That enables us to open our minds.
Decorum is a lively topic of discussion for us, as Mr. Paquette said earlier, particularly since the start of the session. I believe that the problem is not the way question period is conducted, but rather decorum. Decorum is based on one thing, the willingness of the Speaker, leaders and whips to enforce the rules already in place. If the Speaker were more respectful of the rules and enforced them more, if the House leaders of each party set the example and the whips enforced the rules, quite sincerely we would not be here around this table discussing a reform of oral questions.
The proof of that is that significant efforts have been made in the past few weeks. As a result, for example, the Bloc Québécois has often been allowed the seventh question. Consequently, there are more questions, more decorum, more respect, less racket and more exchanges between the opposition and government parties.
We agree about the lack of decorum, Mr. Chong, but we don't agree on the nature of the problem. I would say to you that, even if we change the container, the content will still be the same; we won't be changing much or improving much.
Don't you think that the role of the opposition is to ask the government the best questions, the most embarrassing questions possible, until it proves to us that we are wrong and it is right? In that way, democracy is practised in a much fairer manner. If government backbenchers ask questions only to promote the actions of their government, I don't believe we're doing citizens a service in the discovery of reality. In other words, don't you think that question period will lack appeal if all we do half the time is promote what the government is putting forward rather than raise questions the government will have to answer?
View Marcel Proulx Profile
Lib. (QC)
Thank you, Mr. Chairman.
Good morning, Michael, and thank you for appearing before the committee. There are a number of points in your presentation and in your bill with which I do not agree. As a whip, I'm opposed to the idea of randomly selecting the names of members who may ask questions. Unfortunately, we're required to enforce a certain discipline within the political parties. That applies to oral questions, to the period set aside for statements by members and to other privileges that must be applied in order to impose or restore a certain discipline. For example, I object to the idea of you randomly allowing a member who completely deviates from party rules to ask questions.
I have been objecting for a long time to the three questions that the government may ask. That gives it three opportunities to hold a press conference. If the government wants to hold press conferences, it can simply call them and disclose what it wants to announce.
When you say that ministers take four hours a day to prepare, you insult our intelligence, Mr. Chong. If we do a count, we realize that the same minister, your house leader, answers about 70% of the questions put to your government. In fact, some ministers in your party have never answered a single question. They have a car, driver, and staff. They act as though they have prepared for question period; they arrive in the House with documents and a computer in hand, but they know perfectly well that they will never have to answer a single question.
Furthermore—and I believe it was David who raised this question—a good minister doesn't need a four-hour briefing every day in order to know his files. He knows his files. You'll tell me that some parliamentary secretaries need a briefing before oral questions because they don't have the same opportunities. I agree. Having previously occupied that position, I know that's necessary.
You mentioned longer questions, but you say you don't want question period to be extended. In other words, you want to reduce the number of questions. I'm opposed to that. You say we have to restore to the Speaker of the House the rights he should have or to call members to order. I'm sorry, but the Speaker already has rights. A number of members, both David and I and others, have previously sat in that chair and used the existing Standing Orders to call members to order in various ways.
A number of years ago, when I occupied that chair, a member from your party constantly shouted and always offered his opinion when he didn't have the floor. At one point, I refused to give him the floor, and when your party's whip asked me why I had done so, I told him that member definitely had nothing further to say as he had spent half an hour shouting. Let me tell you that member stopped shouting and we allowed him to speak again.
In your bill, you raise a number of points that may be interesting in small doses. You present ideas with a view to restoring parts of rules and customs that should still be in effect. However, it's been a very long time since the Speaker of the House called a government member to order. I would say there are many occasions when he could do that. That's his choice. However, I don't think there's any genuine desire to change matters. On a number of occasions, it has been moved that decorum be restored to the House, but someone has always objected to that idea, or else accepted it then subsequently done the opposite.
As long as there are individuals in the government who continue to play the fool when they answer questions from the opposition parties, there will be no possible solution to the decorum issue. This situation merely encourages the opposition parties to become more talkative, indeed more violent. Many of our recommendations—
Am I done, sir?
View Tom Lukiwski Profile
Thank you, Chair.
Thanks very much, Michael, for coming here.
I think one thing we've discovered here today is that there's clearly a wide variance of opinion on your motion. Nonetheless, your motion is one that I think has a great deal of interest among all members here, and I think all members of Parliament. I'm glad we've got six months in which to write a report, because I can see this discussion developing among our members here, and perhaps even with other witnesses. Hopefully, at the end of the day, whatever this committee decides will result in some improved decorum, and maybe improved functioning of the House.
I want to make a few comments, and then ask one specific question.
With overall decorum, I still think, and other members have spoken before me and have said the same thing, it primarily is the responsibility of the members themselves, and particularly the parties and the House leaders. You mentioned earlier in your presentation that you have seen in the last few weeks an improvement in decorum, and so have I. That is a direct result of all the House leaders and whips getting together and agreeing to try to temper the enthusiasm, shall we say, of their members. Yes, from time to time there are still some outbursts, but generally speaking over the last three weeks I think we've seen a marked improvement in decorum. That's a result of, and credit to, all of the parties together agreeing to try to improve decorum. While I think the spirit behind your bill is laudable, I also firmly believe that the main function of decorum is the responsibility of the House itself and the parties themselves. So I hope we can continue to work together, and I've been very encouraged by what I've seen.
The second comment I would make is on the role of the Speaker. I agree that the Speaker, and I think other members have said this as well, needs to be more engaged, shall we say, in discipline. Whether it's the committee report that gives or encourages the Speaker to use the levers at his disposal more effectively, I don't know. I certainly would be in favour of that. But I think that some of the more effective ways of dealing with it you've already mentioned, and others have. Marcel just spoke about it when he was in chair. To me, the most effective way of say punishing or reprimanding a member is to make that member invisible to the chair. We all want to get on camera, right, and if you are not recognized by the chair, and this could go on for an extended period of time, that is going to smarten up that member very quickly. If that member is prevented from either asking a question, prevented from making an SO 31, prevented from doing anything in a public fashion, that's severe discipline. I think that's something the Speaker should be doing on more occasions than he has in the past.
Regarding technological changes, I hadn't thought about it, but I really like your suggestion for our consideration of lowering the volume of the microphones. I'll refer to an example, and I think everyone here knows it to be true. One of our members, Rob Bruinooge, when he was parliamentary secretary for the Minister of Indian Affairs, on many occasions would have to go up and answer questions in the House when the minister was absent. When Rob got up to speak, he's such a soft-spoken gentleman that automatically the volume in the House just went down, because they were straining to listen to what his answer was. He never did anything more or less. He always spoke in the same very soft tone. I think you're onto something there, that if we just lower the volume on our earpieces, that may be something.
I also agree with something you said--I had it down in my notes here, and you mentioned it just before I got to speak--on the use of cameras. When you've got hecklers, they're doing so I think as much as anything because they know that they're hiding behind the cloak of anonymity. If you opened up that lens, and if their constituents could see some of these people yelling and screaming, with their faces flushed, I think if they got a few calls from their constituents saying “You look like a complete jerk-off, what are you doing there?”, that would have a very positive effect on lowering the temperature.
Mr. Marcel Proulx: We already know the names of those.
Mr. Tom Lukiwski: I get those letters without even being on the camera.
I think that widening the camera lens is something that could be very positive.
I disagree with one thing you mentioned with regard to Speaker discipline, and that's expulsion, for two reasons. One, of course, is that many people--as, quite frankly, I sometimes did as a political adviser in years past before I was elected, I'm ashamed to say--would advise a member to get that person kicked out. Why? Because then you go right to the cameras outside the House, and you become a cause célèbre. You could become a spokesperson. Why were you kicked out? I was fighting.... It's an advantage to people to get kicked out sometimes, and they do it purposely. So I don't think that should be something that we really encourage the Speaker to do.
The second thing is that if you expel somebody, in my view there would have to be some sort of right of exception. Theoretically—and I hope this would never happen, but follow it with me—let's say there's a minority Parliament and there was a very important, very close vote coming up. Our speakers are elected. All of a sudden the Speaker, in trying to gain advantage to his or her own party, expelled somebody from the government, let's say because the Speaker knew the vote was going to come down to a difference of one or two votes. He was expelled the day before a critical vote and he was not allowed to come back into the House for a week. You deny that person his right to vote and it could affect the outcome of whether a government falls or not. If you do that, you would have to do something there.
The last thing I would like to say is that there has to be an exception rule—
Bradley Miller
View Bradley Miller Profile
Bradley Miller
2010-06-15 11:04
Thank you.
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.
Thank you.
View Marlene Jennings Profile
Lib. (QC)
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.
View Tom Lukiwski Profile
Very quickly, Professor--I know your time is very limited--we've had discussion from previous witnesses about the ability, the right, the authority of the Speaker of the House to give advice to the Governor General as to whether or not the House has confidence. I'd like to get your opinion on that. Even more particularly, we've talked about whether, if the Speaker of the House has that right, the Speaker of the Senate perhaps also has the right to give advice.
If that is the case, what would happen, in your opinion, if the advice from the two Speakers were conflicting? What could be done then?
Andrew Heard
View Andrew Heard Profile
Andrew Heard
2010-06-01 11:20
Let me start with perhaps the more interesting one, and one that's been debated in some of your previous testimony, and that is the ability of the Speaker to be in contact with the Governor General, shall we say. I think it is in fact a clear and ancient right of the Speaker to have an access to the monarch or the monarch's representatives to convey the wishes of the House. This is a very ancient and well-established right that arose as Parliament was asserting its power to the crown.
This was most recently and clearly reaffirmed by Speaker Milliken in November 2005, when there was a motion passed asking the Speaker to inform the Governor General that, if there were to be an election, the House would prefer the election to be held on a certain day. There was some discussion as to whether this motion could be put and whether the Speaker could in fact approach the Governor General.
The Speaker ruled that the House could make any kind of motion to express an opinion and that he, as a servant of the House, would be more than willing to have a cup of tea with the Governor General and inform her of the House's opinion, but while he was putting it in a whimsical way, this was a very clear affirmation of the Speaker's acceptance of his right to inform the Governor General of the House's motions.
So yes, that could be one way: to create a mechanism whereby the Governor General is directly informed that a majority of the House holds a certain opinion on prorogation. The suggestion I made was essentially to pass a motion that was worded in an enduring way, so that there would be a sort of standing authorization from the House to refuse assent that had not previously been consented to by the House or needed for an emergency.
Brian Topp
View Brian Topp Profile
Brian Topp
2010-05-13 11:16
Thank you for those questions.
I learned through hard experience to leave it to the law clerks to do the drafting, so it seems to me that what's appropriate to do is to discuss the drafting instructions and what their intent is. I think it's appropriate to begin with great clarity—because clarity has served this Parliament in the past—and to say that the goal we are seeking is that when a confidence vote is before the House, the House shall not be prorogued.
We know that the House of Commons cannot issue orders to the crown. We also know that the history of Parliament, going back to a field in 1215, is of slow, succeeding acts that can be interpreted as acts of lèse-majesté in which we have respectfully asked the crown to be so kind as to not shut down the people's House when it is dealing with a confidence matter, which is its central role.
So I do think that clear words need to be found. I had a look at these constitutional articles that I'm referring to. These constitutional articles and the three constitutions I've referred to are very elegantly written, with very few words, clear words that cannot be misinterpreted, whose intent is clear. That's what I call on you to do. I believe the law clerk can achieve that.
So I do believe, as I have argued, that when or if, as I urge you, we could get to a world in which the House makes it clear that it is not to be prorogued when a confidence vote is in front of it, what is a confidence vote merits definition—perhaps not an exclusive definition, because it's hard to do that, but certainly with greater clarity than there is today.
I refer you to this model of voting to say, “There shall now be an election”, which is often what a confidence vote is understood as. For example, when the Clark government was defeated, everybody understood that an election therefore resulted. But I think this growing practice of constructive votes of no confidence is also very useful, because it eliminates all of the issues of legitimacy around Parliament's role in establishing who the ministry shall be, which is, of course, the guts of responsible government.
On this very interesting issue of enforceability, I think it is a mistake at this stage of the game to put enforceability measures into these acts, because I submit that it risks trivializing what is the central issue of responsible government, which is can Parliament determine who the ministry is?
Just to be absolutely blunt about it, speaking to you from having seen the other side of the table—in a provincial legislature, to be clear, which is a very different game—faced with a choice between defeat and replacement and having to give up some opposition days, many governments would accept giving up the opposition days. So we run the risk of trivializing the act of responsible government and of accountability by establishing penalties. We run the risk of turning them into a cost of doing business. I think that's very unwise when we're talking about the central power of Parliament.
I submit that the central power of Parliament should be spoken about in appropriate terms and without complexity or trivialization, and I believe the Governor General would get the message if it were spoken clearly, as has been the case many, many other times in the past. For example, the principle that money bills shall originate in the House of Commons was one that was voted by a House of Commons.
This interesting revelation that the Governor General needs to listen to the Speaker, which would have been useful to know in the recent past, is an interesting mechanism that could perhaps be used to hard-wire in that the Governor General shall listen to the House of Commons before interfering in its core function that it performs in our Parliament.
Gary Filmon
View Gary Filmon Profile
Hon. Gary Filmon
2010-05-11 15:58
We cannot give you that information, but we can assure you that the information was available to Mr. Speaker, who was the member who conducted the inquiry. There was no information withheld from him.
Hugo Cyr
View Hugo Cyr Profile
Hugo Cyr
2010-05-11 11:25
Good morning. Thank you, it is an honour to be invited to take part in the deliberations of the Standing Committee on Procedure and House Affairs.
I hope that my presentation can make even a modest contribution to the committee's discussion of an issue of paramount importance to the development of parliamentary democracy. It is often by taking a step back from standard practices that we rediscover the guiding principles behind those practices. The last two prorogations that we saw seemed to be moving away from those standard practices. The first occurred when the government was facing a possible non-confidence vote and the second when some of the government's actions in the conflict in Afghanistan were the subject of a parliamentary review on alleged human rights violations.
After listening to the previous witnesses, I would say this is really a seminar on constitutional law. Let us hope that this seminar—necessary as a result of recent events—sheds light on how our institutions operate and, in particular, provokes a fuller discussion of how to make those institutions more representative. In fact, the British parliamentary system has evolved through a constant transfer of jurisdiction from the Crown to Parliament, in which elected representatives participate. That evolution gave rise to two cardinal principles of British constitutional law.
First there is the principle of parliamentary sovereignty, which holds that the will of Parliament is above that of the other branches of the government, including the executive. The battle for parliamentary sovereignty was hard-won through the gradual attrition of the Crown's discretionary powers. In fact, according to the traditional definition, the Crown's so-called prerogative powers are nothing more than the remnants of royal powers that have not yet been discarded or abolished through legislation.
Second there is the principle of responsible government, which holds that the government must be accountable to Parliament and cannot legitimately govern unless it has the confidence of the elected members of the House of Commons. I would point out that we have a system of responsible government, which means that the government is responsible to Parliament and that we no longer have what used to be known as a dual Parliament, in which the government was responsible to both the elected officials and the monarch at the same time. Today's concept of responsible government holds that the government is responsible solely to the elected officials. Recognition of that principle put an end to a system of government whereby an unelected executive did not have to report to the elected members of the House of Commons.
Both of those principles, which are at the heart of our constitutional system, stem from the idea that political legitimacy is in the hands of the elected members. Do we need to be reminded of that here? I say “here” because the need for a reminder became apparent just recently; you need only open the newspaper or listen to the radio to see that the need is clear. Do we need to be reminded here that, unlike the presidential system, Canada's executive is not elected? Therefore its democratic legitimacy is only indirect. That legitimacy resides solely in the fact that the executive has the confidence of the elected members and that, in principle—and we saw exceptions to this principle not that long ago—ministers are chosen from among the elected members. Anyone who is appointed a minister without first being elected must still try to get elected at the first opportunity.
All of that may explain the fact that, in Canada, the principle of the separation of powers, at least the separation of the legislative and executive branches, is not quite as cut and dried as in other political systems. In Canada, we have trouble viewing that principle as a true constitutional principle, because of how difficult it is to reconcile with the notion of parliamentary sovereignty.
That being said, the desire of the House of Commons to better govern the use of the prorogation prerogative by requiring the Governor General's approval is in line with the movement to expand the responsibilities of elected members with respect to important decisions on the operation of the government.
When studying the democratic control of the use of prorogation, it is important to consider three key questions. The first is to ask who is currently exercising the prorogation prerogative and under what conditions. I think that question can be dealt with rather quickly. Today, as everyone knows, it is the Governor General who orders the prorogation of Parliament on the advice of the Prime Minister.
The second question is how to limit the use of the prerogative by the Governor General to ensure that its use better reflects democratic values or is at least supported by them. A number of suggestions have been put forward to date. The possibility of a constitutional amendment was discussed, as well as all the difficulties associated with that procedure. The possibility was raised of distinguishing between the duty of the Governor General in this area and her other functions so that the use of the prerogative could be amended through legislation. That is a possible option, albeit a risky one. There was talk of amending the constitutional conventions that set out the conditions in which the Prime Minister can advise that Parliament be prorogued and the conditions in which the Governor General must heed that advice.
I will quickly go through the three criteria, which Peter Russell mentioned, since we often forget to list them. First of all, there is a practice, a single case can be sufficient if there is consent and a good reason. A series of standard practices that lack the consent of the officials and a good reason cannot constitute a custom, thus a practice. Second, there is the feeling of the stakeholders who are connected by the practice. Third, the convention must help the parliamentary system run smoothly.
As for the types of conventions that could be amended, namely, there is the exercise of the prerogative itself. For example, a session could have a minimum duration, as in other parliamentary systems. But amending the constitutional conventions directly related to the exercise of the prorogation prerogative would require limiting the Governor General's discretionary flexibility in exercising that prerogative.
The list of individuals from whom the Governor General is allowed to seek advice or information could be amended. Some have suggested the possibility of the Speaker of the House speaking to the Governor General, which may surprise some people. It is obvious that when a Prime Minister steps down, so the country does not have a Prime Minister, the Governor General is not cut off from all contact with her Parliament. So there are clearly other methods of communication that are already recognized. That aspect could be amended. I would point out that, according to the book on parliamentary procedures, recommendations to the Governor General concerning prorogation constitute what are known as the special prerogatives of the Prime Minister. It should, however, be noted that a number of the prerogatives of the Prime Minister traditionally known as “special” have been amended over the years to give other members the right to exercise them. That is the case with the traditional special prerogative of appointing a provincial administrator. A provincial administrator is someone who replaces the lieutenant-governor if the lieutenant-governor is not available.
Today, when someone needs to be appointed to replace a provincial administrator, for example, it is often done through an Order in Council of the Privy Council. And, in recent years, it has been the heritage ministers making those orders, not the Prime Minister.
So there is some flexibility in those areas.
The fourth option is to create incentives or deterrents to influence the Prime Minister's actions. A motion or amendment to the Standing Orders could be put forward to require the advance notification of the House and the threat of sanctions if the Prime Minister advises the Governor General to prorogue Parliament without the consent of the majority of members.
The fifth option is, I think, new or original. It is based on the fact that because the Governor General is not bound by the advice of the Prime Minister unless he has the confidence of Parliament and given that that confidence is conferred by Parliament itself and not the government, it is up to the House to determine whether the government in power still has the confidence of Parliament. It would be possible to adopt a suspensive condition censorship measure. It could be something along these lines. The Prime Minister would be deemed to have lost the confidence of the House if he were to go to the Governor General to request that Parliament be prorogued without obtaining the prior approval of the majority of members; in that case, as soon as the Prime Minister went to the Governor General without a positive vote, the Governor General would no longer be bound by the Prime Minister's advice because he would have lost the confidence of Parliament.
That is one approach that could make things easier. Regardless of which mechanism is adopted, it is important to ensure that the Governor General's discretion is reduced as much as possible and respects the will of the elected instrument of the state, in other words, the House of Commons.
There is a third question that needs to be asked: how do we make sure that prorogation does not deprive Canadians of an active Parliament for an undue length of time? You are all familiar with the rule in the Constitution Act, 1982, that sets out one session per year. Parliamentary approval methods of varying lengths of time can be combined. The rules of the House could be amended to allow certain types of committees to continue their activities during prorogation. In fact, if, in general during prorogation, the members are relieved of their parliamentary duties until the House and its committees resume their activities in the new session, it would be nonetheless wrong to think that, for the time in question, Parliament had ceased all of its activities during such a prorogation.
Unless I am mistaken, this committee does not necessarily cease its activities during prorogation or, at the very least, does not lose its members because they are appointed for the entire duration of a Parliament, pursuant to Standing Order 104(1). The speaker, the deputy speaker and the members of the Board of Internal Economy also continue in office. So there is at least one committee that operates during prorogation. Prorogation has no effect on the activities of members involved in parliamentary associations or international and interparliamentary exchange programs. In short, the Standing Order can be amended in this regard.
There is one last option: a recall mechanism could be put in place in the event that the Prime Minister delayed in ordering the opening of a new session. For example, the majority of the Board of Internal Economy could hold a vote, the result of which would then be communicated to the Speaker of the House of Commons, who could in turn speak to the Governor General.
Those are some of the mechanisms I suggest for dealing with these issues. I hope they will serve to enrich your discussion and help you carry out your duty with respect to the evolution of the parliamentary system.
Thank you very much.
View Pierre Paquette Profile
View Pierre Paquette Profile
2010-05-04 12:42
Yes, it certainly looks that way.
I have one last question. Professor Mendes also suggested that the Speaker of the House of Commons has the tacit constitutional power to advise the Governor General and that he could therefore convey the will of Parliament to the Governor General, asking that the request to prorogue not be granted.
Do you believe that power really exists?
Errol Mendes
View Errol Mendes Profile
Errol Mendes
2010-04-29 11:04
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.
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.
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.
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.
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.
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.
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.
View Marlene Jennings Profile
Lib. (QC)
Therefore, I would like you to comment a little further on the issue of a suggestion that Rob Walsh made that changes to the standing order, as proposed by some opposition parties, would in fact have no effect in the sense that if the Prime Minister of the day ignored them, went and requested prorogation, and that prorogation was given by the GG, the prorogation itself would remain valid and legal. Therefore, the committee and the House, if we want to go that route of limiting the Prime Minister's authority and prerogative to request prorogation, we might want to go the route of having standing orders that would be punitive—well, he actually said, “disincentives”; I should stop using the word “punitive”, because that's not the word that Mr. Walsh used.
Secondly, I'd like to hear a little bit more from you on the issue of the unwritten conventional law or right of the Speaker to advise the Governor General of the will of the House.
Errol Mendes
View Errol Mendes Profile
Errol Mendes
2010-04-29 11:14
What's little known is that the Speaker can exercise the rights and privileges on behalf of the House of Commons to seek to advise the Governor General on issues that relate to responsible government. The Prime Minister is not the only one who has the ability to advise the Governor General. The Speaker also has that power.
View Marlene Jennings Profile
Lib. (QC)
That's wonderful.
Some of my colleagues in the House like to recall the coalition government agreement between the Liberals and the NDP in 2008 and the fact that a letter was sent by the Liberals, and a letter that was signed by the leaders of opposition parties, to the Governor General.
Had this little-known rule been known that the Speaker has the right to provide advice to the Governor General of the will of the House, and had in fact there been some type of a motion in the House, then the Speaker and the House could have at the time, if it were adopted in that motion, instructed the Speaker to inform the Governor General formally of what had been happening or whatever.
View Scott Reid Profile
Right, but just the one....
What I'm getting at here is that in terms of taking advice from the Speaker, I just wanted to ask you, (a), what the matters are—if you're familiar with this—on which the....not the general thoughts about the House Commons, but where that actually applies, the Speaker offering advice to the Governor General, and it being taken? And (b), if I'm not mistaken, the underlying convention, or the foundational basis, on which the convention of the taking advice from the Prime Minister rests is this: the Governor General, or the Queen, takes advice only from a single source, as opposed to saying, “I can consult, and therefore effectively pick and choose.”
I'm wondering how we deal with having multiple sources. I think that is a real shift, having multiple sources of advice coming to the Governor General, and the Governor General choosing. Perhaps I'm wrong, but does that not seem to you like a very substantial shift in the role of the Governor General to something that hasn't existed for a very long time under our system--having multiple sources of advice on which the executive can choose?
Errol Mendes
View Errol Mendes Profile
Errol Mendes
2010-04-29 11:21
It's my opinion that the reason why the Speaker would have that power is that, as we saw just yesterday, he is in effect the guardian, so to speak, at least in terms of principles, of the rights and privilege of you, the elected members of the House of Commons. So that core foundational right of elected members of the House of Commons is I mentioned, on two occasions the Supreme Court of Canada has said it's part of the Constitution of Canada. And given that, that makes those rights and privileges on equal power to the powers of the Governor General.
Therefore, when the Speaker exercises his duty to uphold the rights and privileges of the elected members of the House of Commons, he's actually acting on the basis of that constitutional power to seek to advise the Governor General. You may call it multiple actors, but it's based on sound constitutional principles.
View David Christopherson Profile
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?
Errol Mendes
View Errol Mendes Profile
Errol Mendes
2010-04-29 11:30
The Speaker, as we've seen on several occasions now, has a lot of powers to advise that things be carried out, and this could be one of them. Yes, you could have a formal resolution.
The other thing, which came up in the previous session, is that resolutions, if they're structured properly, can have as much power as standing orders. A resolution properly crafted asking the Speaker to do this could be the way by which it could happen.
View Tom Lukiwski Profile
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.
View Ed Holder Profile
View Ed Holder Profile
2010-04-29 11:46
Well, thank God Mr. Rae, when he was Premier of Ontario, didn't do outrageous things.
I want to say a couple of things. You've prefaced many of your comments, sir, with “it is my opinion”. I appreciate the candour, because I respect that it is your opinion. Just like the opinion that the first minister gives to the Governor General, you're certainly giving us your opinion as well.
You said that you agree that the constitutional approach is not the way to go. Your appeal to constituent groups, as I've heard your testimony today, gives me the sense that you're trying to make the civil society argument. That is, what you can't get through the front door, you're trying to get through the back door. That's just how I feel in terms of how you presented.
Here's my question to you. You've indicated that the Speaker has equal power to the Prime Minister in terms of appeals to the Governor General. I'm actually quite shocked by that in terms of the ability of the Speaker to advise the Governor General.
Where is the precedent for that, in Canada, where that has happened to this point?
Errol Mendes
View Errol Mendes Profile
Errol Mendes
2010-04-29 11:47
Well, we could go back into that debate again. However, the power of the Speaker, as was evidenced yesterday, comes from the Speaker being, if you like, the guardian of the rights and privileges of the elected members of the House of Commons--
View David Christopherson Profile
Thank you very much, Chair. I appreciate that.
I just want to go back to something. You were asking about the proactive and reactive, and you were asking for a scenario.
I haven't thought this all the way through, but it is a most recent example. The Prime Minister didn't even have the courtesy to go to see the GG. He placed a phone call. I'm surprised that he didn't just send her a quick e-mail and then suspend Parliament.
In that case, I don't think there was any real notice. I stand to be corrected if House leaders knew or if party leaders were given the courtesy, but as a member of Parliament, I learned about it through the media. It was already a done deal.
I'm just asking how we would then trigger the right of Parliament to have our Speaker go and give the majority point of view to the GG, in addition to the point of view of the Prime Minister, if we're already in regular recess, over, say, the Christmas period. How do we do that?
Errol Mendes
View Errol Mendes Profile
Errol Mendes
2010-04-29 11:50
First, once you've done your standing orders and the supporting legislation, they can be transmitted in advance, before anything happens. In addition, in the situation you mentioned, I think there was almost a week's discussion--by the chattering classes, I admit--that prorogation was imminent. But certainly you can actually combine that by sending the standing orders you've already done plus the legislation so that there is advance notice.
Errol Mendes
View Errol Mendes Profile
Errol Mendes
2010-04-29 11:52
That's where the possibility of not having the system be effective could work out. I think the most you can hope for, if this system is put in place, is that the Governor General will have enough knowledge about the rights and privileges of the elected members that he or she will be able to exercise the reserve powers in a way that preserves the rights and privileges of the House of Commons.
It's not going to be totally guaranteed, but given the fact that the Governor General will have sufficient information about what the will of the House is, I hope that will be sufficient. Keep in mind also that the other sanction is the political cost. If you look at some of the most important conventional rules, it's the political cost that has kept the conventional rule binding, in terms of the disallowance power, for over a century. It was only the political cost.
View Scott Reid Profile
Thank you, Mr. Chair.
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?
Errol Mendes
View Errol Mendes Profile
Errol Mendes
2010-04-29 12:00
Mr. Reid, you are absolutely right on everything you've said, and that's the reason why I think it is sufficient for the Speaker to basically present the Standing Orders to the Governor General so that it is informing the Governor General that this is what the will of the House, of Parliament, is. Therefore, she can then use her reserve powers to reject the advice.
So thank you very much. I think you've reinforced what my position is.
View Ed Holder Profile
View Ed Holder Profile
2010-04-29 12:02
You gave your opinion that the Speaker has the power to advise the Governor General. I asked you where, in Canadian parliamentary history, was the precedent.
Errol Mendes
View Errol Mendes Profile
Errol Mendes
2010-04-29 12:02
The Speaker has the ability, and has done on many occasions, to inform the Governor General of the way in which the...and he's says it's ceremonial, but it could easily extend to basically informing the Governor General of what the Standing Orders are all about.
View David Christopherson Profile
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?
Peter Russell
View Peter Russell Profile
Peter Russell
2010-04-29 12:50
There is not, to my knowledge, either convention or written law on who can speak and advise the Governor General. I've advised the Governor General, and I'm sure as hell, as a professor, not mentioned in any law or convention. The Governor General gets advice, seeks advice, from a number of sources. I'm not even a lawyer.
As to whether it would be proper for the Governor General to hear advice from the Speaker, in my view, it's just fine. I think the Speaker has to think carefully about it, because if the Speaker is getting into a hot political issue and the Speaker's legitimacy.... We know that we've evolved the office of the Speaker so the legitimacy is based on the consent of the various parties of Parliament, and it's seen to be a position that's independent of any partisan affiliation. So I think the Speaker would have to think very carefully about going out.
Anybody who thinks letters addressed to the Governor General don't arrive and get read should be very careful about asserting that unless they have very strong evidence. The premise of your question, that the famous letter, which millions of Canadians actually saw in their newspapers and on television, never got the eye of the Governor General, to me is a pretty outlandish kind of possibility.
But if you want to assert that, then I think you should check it out.
View Ed Holder Profile
View Ed Holder Profile
2010-04-29 12:56
Question two: the Speaker has equal power--this is what he said, “equal power”--to advise the Governor General as the Prime Minister. Yes or no?
Peter Russell
View Peter Russell Profile
Peter Russell
2010-04-29 12:56
Oh, no, I don't agree with that. The Prime Minister is the chief constitutional adviser of governments in all the Westminster countries.
William Farrell
View William Farrell Profile
William Farrell
2010-04-27 12:50
When the Speaker is sworn in, when he appears before the Governor General in the Senate, one of the first things he does is claim the usual rights and privileges. One of those is access to the Governor General at all convenient times. There is a convention, if you will, that the Speaker of the House, when speaking and acting for the House, can meet with the Governor General at any time and inform her of things. He can advise her in that way.
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