Evidence of meeting #14 for Procedure and House Affairs in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was prorogation.
A recording is available from Parliament.
May 11th, 2010 / 12:45 p.m.
Associate Professor, Department of Political Science, University of Toronto, As an Individual
I don't agree because of what's happened. I want to avoid the crises we've had.
12:45 p.m.
Conservative
12:45 p.m.
Conservative
The Chair Conservative Joe Preston
That's great.
Monsieur Blais, welcome today. You have five minutes. You can share with your friends too, of course.
12:45 p.m.
Bloc
Raynald Blais Bloc Gaspésie—Îles-de-la-Madeleine, QC
Thank you very much.
I know I am chiming in late in the game. But there are a few things I want to know about, and I will get into them as simply as possible, without simplifying the debate, of course.
If I understand correctly, there are constitutional rules that govern when Parliament can and cannot be prorogued, depending on the circumstances at play. It is not clearly defined, as I understand it. There is also the executive branch, the power of the Prime Minister to do what he pleases, to a certain extent. As long as the constitutional rules have not been set out clearly, is this not a red herring? Will it be absolutely necessary to clarify the Constitution, so as to ultimately clear up any confusion regarding prorogation, the rules of application, the appropriate procedure, the individual with the authority and so forth?
12:45 p.m.
Professor of Public Law, Faculty of Political Science and Law, Université du Québec à Montréal, As an Individual
I can answer that.
First of all, it is important to understand that the Constitution uses minimal wording. It represents the bones, and the constitutional conventions flesh it out. For example, the actual position of Prime Minister is not mentioned in the Constitution Act, 1867. It is mentioned just once in the Constitution Act, 1982, and only to indicate that the Prime Minister must convene a meeting of the first ministers of the provinces. But we cannot deny that the role of the Prime Minister exists in Canada's Constitution; it exists through convention.
Through this debate, we can specify the conditions in which the power pursuant to the prerogative of the Prime Minister can be exercised, in other words, the power to ask the Governor General to prorogue Parliament. What I tried to focus on were the various ways of limiting that power and ensuring that it reflects the will of the elected majority as closely as possible.
I pointed out that the executive branch, as it is currently constituted, does not have democratic legitimacy, except indirectly. In other words, its democratic legitimacy is based on the simple notion that the person with the executive power has the confidence of the elected members. It is not a system whereby someone is elected to head the executive branch, over and above the rest. Nor is it a system whereby the executive branch has legitimacy pursuant to royal confidence. Today, confidence comes solely from the elected members.
In short, it relates to what we are trying to do. Through various means, I think we can limit that discretionary power. We are not working in a vacuum, we are truly in the process of defining the Constitution. The Constitution can be amended other than through formal amendment. There are also a number of possible options.
12:50 p.m.
Associate Professor, Department of Political Science, University of Toronto, As an Individual
You're raising the question of how much... As Professor Cyr says, we have a minimalist Constitution, in terms of what's written. Compared with the British, it's maximalist, and the reason we had to write a Constitution, even though we said we wanted one similar in principle to that of the United Kingdom, is that we agreed to have a federal state. So we had to spell out who was going to be responsible for municipal affairs and culture, and who was going to be responsible for lighthouses and buoys, and the post office. So we had to write down something. Now the French tradition is much more of a codified tradition, the civil law tradition. We have more of the common law tradition.
There are arguments for both of them, and there are strong tendencies on both sides. I think Trudeau reflected the desire for something written, whereas a lot of people liked the courts before and dealing with the old Bill of Rights—and correct me here, Eric—and felt that Canadians enjoyed the existing rights in the Bill of Rights and weren't prepared to expand beyond that. We are now talking about whether we should try to codify rules regarding prorogation or dissolution, or other reserve powers. I take it that we've restricted some prerogative powers of the crown in the past. We have.
I think the Governor General should continue to have some discretion. The danger—and I don't know if Ned Franks or Mr. Hall said this—is that if you start codifying, you may be tying your hands in terms of unanticipated situations that might arise. Yes, it was Mr. Hall who said that. He used the example of fire breaking out in the House of Commons, where you have to have something happen before something else happens.
So this is for you to decide. If it's an issue of sufficient importance and you feel so outraged by the way prorogation has been used, I think you could use the legislative route. But if one of the parties, especially the governing party, does not buy into it, this won't have the same legitimacy. I say this because once the Prime Minister leaves this House and goes to the Governor General, it's without reference to your Standing Orders. He's her primary constitutional advisor. She doesn't have to agree to what he says, but she certainly has to consider it. Who elected her? Who gave her confidence?
12:50 p.m.
Conservative
The Chair Conservative Joe Preston
Thank you.
I'm sorry, but we're well overtime.
Mr. Christopherson for a question, if you have one.
12:50 p.m.
NDP
David Christopherson NDP Hamilton Centre, ON
Thank you, Chair.
Professor Cyr, you made a comment, and if I misunderstood, then obviously please correct me.
Professor Russell said in part, “Such an addition”, meaning a change in the Standing Orders, which is the motion to us sitting here now:
Such an addition...would surely be as binding on the prime minister as all other standing orders. Failure of a prime minister to observe the standing order could result in a ruling of contempt of Parliament and a defeat of the government on a non-confidence motion.
We've also talked about potential disincentives to a Prime Minister: losing the right to second reading for a period of time, introduction of bills, all kinds of things, but you introduced what I thought was a new concept and I wanted to tease it out a bit, if you will. I jotted down that we could word something in such a way that the Standing Orders would say the government would be considered to have lost the confidence of the House if the following, etc. I have never heard of a confidence motion coming in through the back door. Confidence is pretty big. As one professor said—it might have been Professor Russell—the majority vote in the House of Commons is what gives you the licence to be the government.
Do you feel strongly that you could do that? Could you load up a disincentive that says you will have de facto lost the confidence if...and then whatever you say after that? Do you really believe that will work?
First of all, do I have it right? If so, just give me your thoughts on why you think that would work.
12:55 p.m.
Professor of Public Law, Faculty of Political Science and Law, Université du Québec à Montréal, As an Individual
Okay. I'll express myself in English because I just want to make sure this will be correctly understood by everyone. I fully trust the translators, but maybe this time I'll just say it directly in my own words.
I do believe that you understood correctly what I suggested. In recent times it has often been suggested that it is up to the government to decide whether something is an issue of confidence or not. It is not up to the government to say so. When there is a majority in Parliament, there is no issue. When the government says it is a confidence issue, because the government has a majority of the seats, then obviously it is a confidence issue. Otherwise, it is up to Parliament to decide whether something is a confidence issue or not.
I do believe it would be possible to say in advance what would be considered a non-confidence vote. If I had suggested that a failed attempt to introduce a financial bill would be considered a confidence issue, I don't think that would have raised that many eyebrows. Of course, in itself, failing to pass a financial bill is not necessarily a non-confidence vote, as we have seen in the past. It has happened that the Liberals suggested a money bill, it didn't pass, and very quickly they were able to garner the Social Credit vote to make sure Parliament would not fall. In my view, there is no reason why we cannot set in advance what would be considered an issue that would raise non-confidence by Parliament in the government, similar to stating in advance that not passing a money bill would be considered a confidence issue. I would suggest that you could set any other suspensive conditions for the equivalent of a non-confidence vote.
12:55 p.m.
NDP
12:55 p.m.
Associate Professor, Department of Political Science, University of Toronto, As an Individual
I am skeptical about this. A number of you were in the House in 2005 when you tried to bring down the Martin government. You all insisted this was a confidence matter, and they said no, it was attached to a committee's report and therefore was a procedural motion.
The people who decide whether it's confidence or not on these bills are the government. It's not the opposition, unless it's explicit you're voting non-confidence. We saw this in the 2005 case, when you said, “We're voting non-confidence in you, but the only way we can do it is by attaching it to this committee report.” The government said, “Well, too bad, that's a procedural way. It isn't the formal motion of non-confidence. We haven't given't you an opportunity to vote on it.”
Correct me if I'm wrong. Didn't the Prime Minister earlier this year say every bill would be a matter of confidence? So the government does decide whether it wants to fall on the long gun... Any piece of legislation it wants to introduce is confidence.
1 p.m.
Conservative
The Chair Conservative Joe Preston
We're pretty much out of time.
Mr. Adams, do you have any comment on that?
Then thank you all for coming today. I apologize on behalf of the fire crew.
Mr. Reid, did you have a point of order?
1 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
Thank you.
On a point of order, Mr. Chair, we did lose some of our time here. We had three witnesses today instead of two, and I thought this was a particularly productive panel. I don't want us to make a decision now to bind ourselves, but we should give ourselves the opportunity of inviting these witnesses back.
At the very least, we should extend to them the same invitation we have given to Mr. Hall, as they see things transpiring and further testimony, of sending written material that could be distributed to committee members.
1 p.m.
Conservative
The Chair Conservative Joe Preston
Great. Your chair will take the blame for three witnesses on one day. We will attempt not to do that, but sometimes scheduling works that way. And I thank you for bringing up the future information piece.
I challenge you all and ask you all, if you're glued to your TV sets watching this committee—that's not likely the case, but if you hear us venture into an area where you have an opinion, please send it forward to us. We'll attempt to use all the information that we get in our final report moving forward.
Thank you very much for that, and thank you again for attending today. I am sorry that we did miss part of it, so we will leave open the opportunity to call you back at some future date if we find we need to. The study is going on somewhat long.
For the committee's business piece, on Thursday there will be two more witnesses on prorogation, and then we'll be in our constituencies for a week.
The week we're back will not be about prorogation. On Tuesday it will be the main estimates, with the Speaker and the Chief Electoral Officer. On Thursday, the report will be ready on the use of technology in the House, so we'll do that, and then a bit of committee business after that.
We'll go back to prorogation right after that, with an idea of when we will finish and when the report will be ready.
Thank you.
The meeting is adjourned.
