Procedure and House Affairs Committee on Oct. 21st, 2010

[Andre Barnes]

Mr. Walsh was the first to bring forward the idea of disincentives. He said not that he would suggest to do so, but his disincentives that he had mentioned—

[Yasmin Ratansi, Liberal, Don Valley East, ON]

You have two bullet points there.

[Andre Barnes]

No, I didn't list his actual disincentives. For example, he said:

...there shall be five additional opposition days in the first supply period in the new session, or no government bill shall be considered for a second reading within 60 days of the opening of the session.

He provided those two examples, and of course Mr. Heard provided his two as well.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Mr. Reid, can I finish...or are you trying to explain this part?

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

Yes, I am.

I think the key thing with his suggestions was he was saying that, from a legal point of view, there's nothing you can do through the Standing Orders that can prevent a prorogation from occurring. You can only have after-the-fact punishments, if you wish, that take place after Parliament is resumed.

I think that's the thrust of it. The actual suggestions were more or less off-the-cuff illustrations of that.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Okay, thank you.

So whenever we give sanctions, if they do not have teeth, does it make sense, and is it what the committee posed?

[The Chair, Conservative, Joe Preston]

We have made no proposals.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

No, no--posed a question, when they were talking about disincentives.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Mr. Chair, I don't think it's so much not having teeth; it's a deterrent after the fact. So when a prime minister is considering whether or not to prorogue, he'd have to consider that when he gets back he'll have to wait for 90 days to introduce government legislation. It's those kinds of deterrents--potential deterrents.

[The Chair, Conservative, Joe Preston]

On some of the deterrents that were mentioned, I tend to agree with Mr. Reid: many of these things were way off the cuff. I don't even know if they were things we could legally do, but they were talked about.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Thank you.

[The Chair, Conservative, Joe Preston]

Are there other questions on the Standing Orders change section?

Mr. Christopherson.

[David Christopherson, NDP, Hamilton Centre, ON]

Thanks, Chair.

Under the first paragraph, you mention that if a committee sat during a prorogation period they wouldn't have parliamentary privilege. Can that be extended? Do we have the authority to change that aspect as Parliament?

[The Chair, Conservative, Joe Preston]

If I remember right, the witnesses we asked—and I'm sorry, I don't mean to speak on your behalf—said that, no, it's a constitutional change. We could not somehow just buy an insurance policy to cover privilege during the time of prorogation. If the House is not sitting, there is no member's privilege.

Mr. Lukiwski.

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

Further to Yasmin's question and the whole thing about disincentives, I think Scott and Harold were right; most of the disincentives that were discussed were really sort of just blue-skied, right? But if there are to be disincentives, obviously we would have to look at them very carefully.

As an example, every time that Parliament is reconvened, or a new session of Parliament begins, there's a pro forma bill that comes in. It's usually called Bill C-1. That gives the government the authority to introduce legislation. That could--I don't know the answer to this--if that were delayed 60 days, or 90 days, or whatever, also inhibit the introduction of private members' bills.

So if you are looking at disincentives, as I think the point was made by a number of our witnesses, you have to look very carefully at the consequences of each of the disincentives to make sure that what you're hoping for is actually what you get, as opposed to unintended consequences, and that may be one of the unintended consequences.

I think the whole issue of disincentives would almost be a separate study, because it really is very tricky at times to come up with something that doesn't impact negatively on other parts of the legislative proceedings.

[The Chair, Conservative, Joe Preston]

I remember Professor Russell, my favourite witness of all time--he will forever be my favourite witness—admonishing the chair once during his testimony about, you know, just shut up and listen, kid, because we're going to tell you what happens.

[Voices]

Oh, oh!

[The Chair, Conservative, Joe Preston]

I'm paraphrasing his words there, of course....

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

It's almost a direct quote.

[Voices]

Oh, oh!

[The Chair, Conservative, Joe Preston]

The crack analyst says, yes, I was right there.

At any rate--this is further to what Mr. Lukiwski said--he said not to use “gotcha” politics with this, because whenever you try, you mess up. I think those were his words, too; don't play gotcha with it, because it's going to be tougher.

So that pretty much sums up that part.

Are there further questions on the section on Standing Orders and the testimony that we heard?

Great.

Andre, you can move on to enacting legislation.

[Andre Barnes]

Some witnesses suggested that legislation ought to be enacted. Among them, Mr. Franks and Mr. Adams suggested that, in their opinion, the federal Parliament could legislate in respect to prorogation.

On the other hand, Mr. Pelletier stated that legislation could only be brought forward in respect of prorogation if it was found that the power of prorogation did not enjoy constitutional protection. It was his view, and he was not certain, that the prerogative power of prorogation did in fact enjoy tacit constitutional protection as part of the separation of powers in the Constitution.

Similarly, Mr. Russell noted that the bringing forward and passing of legislation in respect of prorogation could run the risk of a potential judicial review. So it might not be, in his view, the soundest way to go about restricting the power of prorogation.

In addition, there was a suggestion by Mr. Topp--his was in conjunction with a standing order change as well--that he would like to see the House not be able to prorogue when seized by a matter of confidence.

Lastly, Mr. Heard suggested that it would be possible to normalize prorogations. Given that there is a set election period of four years, one could, for example, state that a prorogation must occur at a midway point, or that a Parliament will be composed of two sessions, and that could be legislated.

[The Chair, Conservative, Joe Preston]

Are there questions on that?

Ms. Ratansi.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

I just need clarification.

Mr. Pelletier suggested that legislation could only be brought forward in respect of prorogation, that the power of prorogation did not enjoy constitutional protection.

At the moment, within the Constitution, the Prime Minister has the right to prorogue Parliament, correct?

[The Chair, Conservative, Joe Preston]

Wrong. The Prime Minister has the opportunity to ask the Governor General to prorogue Parliament.