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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)
View Yasmin Ratansi Profile
2010-10-28 11:45
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)
View Marcel Proulx Profile
2010-10-28 12:08
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.
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