Thank you so much, Mr. Chair.
I think it has to be said, to begin, that Parliament has been dismissed as sort of a done-in team in the past. It's been said that it can't be done, and that the other team is too strong. In a way, we're in the seventh game of a series here.
So who should we look to for inspiration as we begin this discussion this morning? Les Glorieux de Montréal. Just as a new day has dawned in the National Hockey League with Canada's team, so I suggest that hopefully this discussion you're having will have a similar effect on Parliament and we can come back in Parliament as Les Glorieux have begun to do.
My name is Brian Topp. I'm grateful for you having me here today. I've read the available committee transcripts with great interest, and I've learned a lot from them. You've had a very interesting discussion to date, and I'm here to add a few thoughts.
During most of the 1990s, I worked in the Government of Saskatchewan. One of my duties, for five years or so, was to oversee our government's House business office, which is the support arm to the government House Leader.
This modest credential gives me a bit of small, well-disguised sympathy for the government members sitting in the minority on this committee. You don't always have an easy job, I suspect.
I've been active in federal politics with the New Democratic Party of Canada during the past three elections, but I should add that what follows are strictly my own views and in no way represent those of our party, our leader, or our caucus.
I would like to speak about two topics: first, the substance of the matter; and then the issue of implementation. So I would like to speak about this issue of prorogation and confidence that the committee has been wrestling with, and then I'd like to speak about the issue of what should be done to address these issues, which is the debate you've having about standing orders, or a Parliament act, or a constitutional amendment.
In my view, the power to declare or withdraw confidence is the fundamental power of the House of Commons. There are other critically important powers, such as the right to originate money bills, but the right to assign and withdraw confidence in the ministry is the crux of the matter, the central act of legitimacy and political power in our political system between elections. That being so, I submit that subordinate or unelected players must not interfere in its exercise. I refer here to the cabinet, the Senate, and the Governor General, as well as the courts. To do so is to attack responsible government in Canada at its root.
It is therefore my view, and I hope it will be your view, that the crown should and must never again seek to interfere in the sitting of the House of Commons when a confidence vote is properly before it.
I understand that a number of fairly complex proposals have been made by parliamentarians on this subject. I urge the committee to clarity and simplicity. I suggest you find a way to say that when a confidence vote is properly before the House, the House cannot be prorogued or otherwise interfered with in any circumstances, for any reason, by anyone, until that confidence vote has been dealt with.
This committee is asking itself some broader questions about the right of the crown to prorogue the House even in circumstances when there isn't a confidence vote before it. I offer the same advice: keep it simple so that penalties and consequences don't become acceptable costs of doing business.
If you feel the need to pass rules on the broader issue of prorogation without a confidence vote before the House, I suggest you establish that the Prime Minister shall not advise the prorogation of the House without a prior authorizing vote by all MPs, ever, in any circumstances, at any point in the parliamentary calendar.
Let me say a few words about confidence votes. It's generally understood that if the government is defeated on a money bill, it has lost confidence, but both Prime Minister Pearson and Prime Minister Martin arguably suffered defeats in the House that resemble this and remained in office due to what I think we could call “clever manoeuvring”. It is also, unfortunately, long-standing practice in Canada's Parliament for the government of the day to point to whatever it wants and declare that matter to be a confidence vote.
That's a form of political blackmail that neatly reverses the purpose of such votes and turns them from an exercise in accountability into an instrument for the reinforcement of executive power.
If we are going to say that the House cannot be prorogued when a confidence vote is before it, then a definition of what a confidence vote is seems called for. I suggest the following.
I suggest that you consider establishing that a confidence vote should be defined as a motion—a privileged and important motion—proposed by a parliamentarian to immediately end the mandate of a sitting government and to trigger one of two outcomes: either a loyal address to the Governor General respectfully requesting that she authorize an election, or a loyal address to the Governor General respectfully requesting that she immediately replace the ministry with a specified alternative ministry. Governments, of course, are always free to resign or to threaten to do so for any issue they like.
For an example of how this could work, I refer you to article 67 of the German constitution. This mechanism, which is called the “constructive vote of non-confidence”, worked smoothly in October 1982 to replace the Social Democratic government led by Helmut Schmidt with a Conservative one led by Helmut Kohl. I don't celebrate the political outcome, but I point to it as an example of how a Parliament can smoothly deal with confidence votes and the replacement of a ministry with another in a manner that is not controversial and doesn't raise issues of legitimacy.
Spain has a similar provision in articles 113(1) and 114(2) of its constitution. Hungary has a similar provision in article 39/A(1) of its constitution.
That gets us briefly to the issue of implementation. You've been debating this: standing orders, a bill, or a constitutional amendment? I of course defer to the many learned legal experts and professors who have appeared before you, but I can't resist offering my two cents' worth.
To begin with, I see the committee has spent some time pondering the issue of enforceability, which is central to the question of what form to use. I suggest you not worry about that overmuch.
If you legislate clearly and without complexity, with no escape hatches or weasel words, I think you are then entitled to expect that both the Prime Minister and the Governor General will govern themselves accordingly. In other words, I agree with Thomas Hall, in his presentation at the beginning of your discussions, that if the rules are clear, the Governor General at least can be expected to abide by them. If this proved not to be the case, fundamental issues about the office of the Governor General and the future of the crown in Canada might then arise, and I think you can expect the Governor General to be mindful of this.
This being so, my advice, for whatever it's worth, is to both immediately amend the Standing Orders and to introduce an appropriate Parliament act to enshrine these principles into law. I suggest immediately amending the Standing Orders, and I say this respectfully, because the present ministry probably cannot prevent you from doing so.
I suggest introducing appropriate legislation to make these rules less vulnerable to a future act of executive power by a majority government or some other majority combination. I doubt such a law would be adopted by the present Parliament, given the current majority in the Senate, but I suggest that it be introduced and that all parties of like mind commit to reintroducing it each and every session until it is adopted in its own good time. When, at some point, the circumstances before us today come to an end, I suspect the odds will improve and an appropriate amendment will be adopted into law.
Until then, the majority of the House can, should, and must speak clearly and authoritatively, something you can do through the Standing Orders. This is a moment I urge you not to miss.
Thank you.
