Procedure and House Affairs Committee on May 13th, 2010

[The Chair, Conservative, Joe Preston]

Thank you.

That completes our first round. We're going to move to a five-minute round. We'll need to be fairly succinct and share time, if possible, because there are some who will not get a chance to speak if we don't.

Quickly, Mr. Savage.

[Michael Savage, Liberal, Dartmouth—Cole Harbour, NS]

Thank you, Chair.

Mr. Topp, I'm not normally a member of this committee, so I've come in today with...but this is an issue of interest to all parliamentarians, I think, and increasingly to Canadians.

I want to touch on what you were just going to, which is the use of prorogation in terms of exceptional use and normal use. Canadians have a sense now that the government prorogued in each of the last two years, 2009 and 2008, but in fact it has prorogued three years in a row. In 2007, the House was due to come back in mid-September and the House was prorogued to October. There were some new ministers being sworn in and so on. That wasn't raised much as a national issue, because it was seen as a “normal”--if you could use that term--use of prorogation.

I want to ask you to what extent you think, in dealing with prorogation, you have to look at whether there are times that prorogation is necessary, sensible. Some prorogations may last a week, a day, depending on the circumstance; it may be because the Prime Minister is going to a meeting that it's been prorogued, as opposed to what happened in 2009 and 2008.

You were straying a bit in that direction, talking about Saskatchewan, and I wonder if there's anything else you would add about the difference between whether you call it normal or unexceptional prorogation versus other prorogations.

[Brian Topp]

Well, my first comment is that as a member of Parliament, I'm sure you appreciate better than I do that what is before Parliament is extremely complex, and the way it is going to unfold over time is hard to predict. It is very hard to write rules now that are going to be appropriate in every circumstance for the next 50 to 100 years. I think this committee confronts that when it is musing about how to ring-fence the prorogation powers. I was just discussing with your colleague that there are occasions when it is entirely appropriate for government to use the prorogation power, and when doing so helps the opposition.

I'm not sitting here today urging you to abolish the prorogation right. As you know, it's a complex constitutional artifact that has resided in the reserve powers of the crown. I think it is best to deal with what the House does not want, and what you clearly, I submit, should not want based on your experience.

One thing for sure I think we can say is that, let's face it, it's relatively rare for opposition parties to put formal motions of confidence before the House. If we look over recent parliamentary history, it's the government that tends to trigger confidence votes more than the opposition, for obvious political reasons.

But when a formal confidence vote is before the House--and I suggest you define what such a motion would be--then I think you want to say that the House cannot be prorogued under any circumstances. You're doing that in vocal exercise of your legitimacy as the elected representatives of the people. It is, of course, a form of a request to Her Majesty the Queen through the Governor General. It has perhaps no constitutional validity, but for the reasons I outlined, I submit it would probably be a powerful convention.

As to broader issues and whether you should ring-fence it, I didn't get into those today. I know you've been discussing them and you have some proposals before you. I suggest you be careful, especially with complex rules, because it's hard to predict what will happen in the future.

[Michael Savage, Liberal, Dartmouth—Cole Harbour, NS]

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Savage, and thank you for joining us today.

Mr. Reid is next, very quickly. He and Mr. Lukiwski are sharing.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

The obvious problem with some of the proposals that have been given, especially those that involve disincentives, is they don't really have any relation to the kind of situation that was faced in 2008.

I want to return very briefly to some things Mr. Christopherson raised. He made a comment on what I was speaking about. One of the problems that struck me in 2008 was that the throne speech was approved. There was a vote on division, but nonetheless it wasn't struck down.

I've always been mystified as to why the opposition didn't simply vote against that. That being done, you wouldn't had to have had any kind of.... The tests that it was necessary to come up with, which you detail in your book, wouldn't have been necessary. The Prime Minister would never have commanded a majority in Parliament.

So that's been a mystery. Perhaps you could shed some light on that.

[Brian Topp]

Of course, the defeat of a throne speech is a confidence matter, and would have got us to the world we're in here, which is a debate about who a new ministry should be.

If you're inquiring into the political circumstances at the time, as opposed to the constitutional issues, I guess my answer is that the government had not made a terrible blunder yet that had united the opposition and created the political circumstances permitting such an act, which is my point that you have to make a difference between the constitutional rules and political realities.

Then the issue is about whether a constitutional or a legitimacy issue arises. I remember this being raised at the time. The throne speech had passed. I don't quite remember the details of where it was, but let's take it as read that it “passed”. Did that mean the government had survived a formal confidence vote and the matter could never again be raised, whether the House had confidence or not?

My answer is that you will not take that view when, perhaps years from now, you are back on the opposition benches. I think you will take the view that the House of Commons is always free to turn to the issue of confidence in a ministry, in principle, and can do so in many circumstances, the most obvious one being on defeat of a money bill, and also on defeat of a throne speech. I submit you could also hardwire into at least the Standing Orders some other specific ways, which everyone would know: this is a confidence vote that's properly before the House.

So that's my answer to your question. In terms of constitutional practice, it would be entirely appropriate, having given confidence in a government on Monday, to then vote it out on Tuesday. That's the genius of our system.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Right--but vote it out and have an election as a result. The relevant question here, I think, is that there is some point at which it is legitimate for the Prime Minister to go to the Governor General and advise, “I want a new election; call an election.” There is a point at which, for example, in the absence of having commanded Parliament's support ever, the throne speech having been voted down, the Prime Minister cannot tender such advice and expect it to be listened to. It would be disregarded, and the Governor General will turn to the leader of the opposition.

Clearly you wouldn't draw the line and say that once you got the throne speech through, the Prime Minister could then give this advice. There is some point--I think you would say--at which the Prime Minister can give that advice, having lost the confidence of the House.

This is the question I'm really asking you here: under the current situation--not under the situation you're proposing, which would change the rules of the game--what would that point be, in your mind?

[Brian Topp]

Of course, you're taking us to the King-Byng debate and the issue of whether a Governor General can call on the second party in the House when the party with the most seats reports that it does not enjoy the confidence of the House.

My view is that Governor General Byng was absolutely right and that Prime Minister King was absolutely wrong. It was constitutionally perfectly proper for the Governor General to call on the leader of the Conservative Party to seek to form a government.

That was a political misjudgment, because in fact Mr. Meighen could not command a majority, as became evident within some 48 hours. But constitutionally that was the right call.

Now--as I understand what you're asking--does the Governor General's right to do extinguish over time during the life of a Parliament? I would argue that as a constitutional matter...bearing in mind that we're talking about political conventions here, but to the extent they are unwrittenly constitutional in the British tradition. The Governor General always has the power to call on another parliamentarian to try to form a government. The issue is whether that will work politically when the next election comes along. The closer the next election is, the riskier it is for all concerned. But that's politics, not constitution.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

The real question is that at some point--

[The Chair, Conservative, Joe Preston]

Mr. Reid--

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

--she could ignore the advice or reject the advice of the Prime Minister.

[The Chair, Conservative, Joe Preston]

Thank you for recognizing I'm here, but you are past the five minutes.

Some lessons on sharing with Mr. Lukiwski will have to happen in the future.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

He doesn't share his toys either.

[Voices]

Oh, oh!

[The Chair, Conservative, Joe Preston]

Madame Gagnon, do you have a question?

[Christiane Gagnon, Bloc, Québec, QC]

I want to know what approach the Governor General could take within the current context of Canadian parliamentary government. Could she refuse the Prime Minister's request to prorogue the House? It would be pretty shocking for her to refuse the Prime Minister's prorogation request for whatever reason. Perhaps we should limit the procedure that a Prime Minister, or the current Prime Minister, must follow in certain situations, when it is very clear, as it was the last time. Everyone knows, the government did not want to deal with the issue of Afghan detainees or the matter of the environment. It thought that the public would have a short memory. We did not have an easy time of it. When we went back to our ridings, people said that we were on holiday. The public lost its confidence in politicians. People understood the game the government was playing.

Is there a way, by rule or otherwise, that the Governor General could refuse to prorogue the House in certain situations?

[Brian Topp]

That is a very interesting question. In fact, most of the instructions that pertain to limiting the Governor General's power were written by the executive. So it would seem that, when the Prime Minister requests that Parliament be prorogued, the Governor General has to grant his request, regardless of the circumstance, even in the event of a confidence vote in the House. Consequently, it seemed that the Governor General did what she was supposed to. We learned that the Governor General, as instructed by the Crown and the Prime Minister, understood that her role was to always grant the Prime Minister's prorogation request, regardless of the circumstances.

In my view, the House has to give the Governor General a new instruction through the Speaker of the House of Commons. It can be done. In other words, on top of the instructions to limit the power in question and the suggestions she was given, another is added—in the case of a confidence motion before the House, the Governor General must not grant a prorogation request from the Prime Minister, when he is clearly trying to use the measure to prevent the House from voting on that confidence motion. It would start there, and then other questions would need to be answered, broader ones, as to what the instructions to the Governor General would be. That would be a very good place to start.

[Christiane Gagnon, Bloc, Québec, QC]

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you very much.

I'd really enjoy it, Mr. Christopherson, if you could be succinct and brief and share some of your time.

[David Christopherson, NDP, Hamilton Centre, ON]

You mean be uncharacteristic.

Something just popped into my head when you mentioned the possibility of a confidence motion. I'm just playing devil's advocate. Could the opposition play a role by starting to play games too, by throwing in a motion of non-confidence that really is not going to carry, the sole purpose of which is to trip up a prime minister who otherwise would be within his rights to prorogue? As most of us have acknowledged, it's an important tool that Westminster parliamentary democracy needs. That's one question.

Secondly, it's interesting; you suggested that we avoid going to penalties. There's been a lot of discussion around that. If I understood your thinking, it was that since it's a life-or-death decision, and a government's always going to choose life, then why trivialize this by saying therefore in life and death if you cross that threshold you're going to have these little things happen to you, relatively speaking?

My question to you would be, though, faced with life and death, no matter what, every government will always choose life. Therefore, if there are no penalties, then they've walked across that threshold, because they made the same determination they would make whether there were penalties or not, and yet without the penalties they've gotten away with it. Could I just have your thoughts on that?

[Brian Topp]

Perhaps, if you don't mind, I'll speak to this question of penalties. I don't think we have much time.

Probably one of the things I feel most strongly about is that you would be making a very big mistake to establish penalties in these rules. Just to restate my argument, I think the risk you run is that a penalty will become the cost of doing business in this game, and that the result will be that instead of reinforcing the fundamentals of responsible government and the central power of Parliament, you will have trivialized it.

Your question is that if we don't have penalties, won't it be the case that a future executive will simply go ahead--

[David Christopherson, NDP, Hamilton Centre, ON]

And do it anyway.

[Brian Topp]

My answer is that I think in this matter we should have faith in our fundamental system of government and in the role of the crown and the Governor General. I think if Parliament speaks clearly and without ambiguity, without weasel words, without conditions and without such penalties that raise questions of doubt and complexity into it, and says that when a vote of confidence is before the House, you shall not prorogue in any circumstances, period--in clear language similar to what you find in this constitutional language that I referred to--then I would be quite surprised if the Governor General permitted that to happen. That being so, it would have the power of convention, and I think the role that you should end up in is that no prime minister would do it because they would know with considerable certainty that it would not work. And if it did work, then what we would have learned is that the step we had taken wasn't sufficiently powerful, and there would be plenty of precedent in parliamentary history for a House in such circumstances to then take stronger and stronger measures.

But begin with the principles, and begin by speaking clearly, and then see if practice tells you that you haven't been strong enough.

[David Christopherson, NDP, Hamilton Centre, ON]

Thank you very much.

Thanks, Mr. Chair.