Procedure and House Affairs Committee on Oct. 5th, 2006

[The Chair, Conservative, Gary Goodyear]

Let's begin this morning's meeting.

I want to say a few things here first. Colleagues, we have two witnesses appearing by video conference for today's meeting from two different locations, as well as a witness with us this morning in the room. We are giving English feed through the video conference. Unfortunately, we cannot give French feed through the video conference. I understand that's okay with the witnesses.

For colleagues you will notice that when you're watching the monitors, there will appear a yellow frame around the speaking witness. There's no yellow frame now, but if you watch your monitors the witness who is speaking will be framed in yellow.

I would also like to remind members of some of the technical aspects of a video conference. It is more difficult for the interpreters and the witnesses to follow the discussions, so I ask members as well as witnesses to speak slightly more slowly and perhaps a bit more clearly, if that's at all possible. Thank you.

We will need time at the end of the meeting, of course, to discuss upcoming meetings. I remind members that this meeting is being held in public to consider Bill C-16, An Act to amend the Canada Elections Act, fixed elections dates.

I would like to introduce our witnesses first. We have Professor Henry Milner, appearing via video conference from Sweden, where it's 5 p.m.

Good morning, Professor Milner.

[Prof. Henry Milner, Visiting Professor, Department of Political Science, Umea University, As an Individual]

From here it's good afternoon. Good morning to you.

[The Chair, Conservative, Gary Goodyear]

Thank you.

Professor Andrew Heard from Simon Fraser University, appearing from Victoria, British Columbia, where it is eight o'clock in the morning, give or take.

Good morning.

[Prof. Andrew Heard, Associate Professor, Political Sicence Department, Simon Fraser University, As an Individual]

Good morning.

[The Chair, Conservative, Gary Goodyear]

Thank you.

Of course, with us in the room we have Professor Massicotte from the University of Montreal.

Good morning, Professor, and thank you.

[Prof. Louis Massicotte, Associate Professor, Department of Political Science, University of Montreal, Visiting professor in Democracy and Elections, American University, As an Individual]

Here, it is 11:05.

[The Chair, Conservative, Gary Goodyear]

As is usual with the other meetings, this is a standard witness appearance meeting. We will begin with a brief statement from Mrs. Redman.

[Karen Redman, Liberal, Kitchener Centre, ON]

Thank you, Mr. Chair.

I would like to table a motion. We have no notices of motion in this committee, as we all know. I'd like to table it now. In deference to the teleconference I would be willing to hold the discussion to the end of the meeting, but I would like it dealt with today.

[The Chair, Conservative, Gary Goodyear]

Is that acceptable with everybody?

The chair accepts the motion, and we will deal with it after the witnesses and before the end of the meeting. Is that what you're suggesting?

[Karen Redman, Liberal, Kitchener Centre, ON]

I'll read it now, if that's acceptable, and we can deal with it before the end of the meeting.

[The Chair, Conservative, Gary Goodyear]

That's acceptable.

[Karen Redman, Liberal, Kitchener Centre, ON]

I move that this committee recommend that the Standing Orders in effect on October 5, 2006, including the provisional standing orders, be made permanent, and that the adoption of this motion be reported to the House forthwith.

[The Chair, Conservative, Gary Goodyear]

Thank you. We'll open that for discussion after the witnesses.

Proceeding with the nature of today's meeting, let's start with opening statements from our witnesses.

There's no particular order, but since you appear ready to go, let's open with you, Professor Milner. Please, your opening statements, sir.

[Prof. Henry Milner]

Thank you, Mr. Chairman. Thanks everyone.

I will be making my presentation in English, but I am certainly prepared to answer any questions in French.

I'd like to thank you all for inviting me. I'm very pleased to have the opportunity to address this committee, and I'm very pleased that the government has decided to move forward in this area.

I think some of you are familiar with the paper I did. It has been referred to. I've looked at the transcripts of some of your previous discussions, so to the extent that I have influenced progress in this area, I'm very pleased.

Obviously I can't deal with the entire issue in five minutes. I hope we have enough time during the give-and-take for other more specific aspects to be raised.

From what I've seen of the discussion and from what I've read of the background papers, my feeling is that some aspect, perhaps the wider aspect, hasn't been given the attention it deserves. Too much attention has been given to the technical constitutional aspect. The real reason why fixed elections are a good idea has disappeared in this discussion, and I'm going to try to emphasize that.

I'm not a constitutionalist. My specialty is comparative politics, looking at institutions and how they work in various countries, including this country, where I teach every year. I come at this from that perspective.

My general feeling is that the Constitution has been used to unnecessarily narrow the proposal both in its content and also in the way it has been presented and discussed. To some extent, at least, the real reason behind moving toward fixed election dates hasn't been given the attention it's due.

I realize there is a constitutional aspect. Some people argue that in order to do anything more than what's in the current bill could require a constitutional amendment. My suspicion is that that's not the case. We've seen movements in Westminster systems—in Canadian provinces, in four Australian states, and in the assemblies of Scotland and Wales.

Frankly, I don't see the need for the escape clause that has been put right at the beginning of this bill, namely that nothing shall affect the powers of the Governor General, which has been interpreted as allowing the Prime Minister, even in a majority situation, to call an election if he or she so chooses. The only constraints, therefore, are not written constraints. But the fact is that since there is an official normal election date in the law, this would place a greater constraint on the ability of a majority Prime Minister to act.

My feeling is that the law should be very explicit about these constraints so that the Prime Minister in question will be more bound by them, and also because it sends out a very important message to the people. Obviously a minority government normally presents unusual circumstances. In a majority government, the normal case is that the election will take place as set by law, and only in unusual or exceptional circumstances could it be otherwise. The law has to be extremely clear on this.

The point I want to make—and this is a very general one—is that the discussion has so much focused on, in Parliament, the concerns of parliamentarians. Elections should not be focused on the concerns of parliamentarians. They should be focused on the concerns of voters.

The basic idea of fixed election dates—and that's why we have them in most countries like Canada—is that the normal voter or anybody involved with the election—journalists, potential candidates, civic education teachers, anybody interested in getting people interested and involved in the electoral process—is able to do so under very simple and clear conditions that cannot be manipulated by politicians. That's the whole principle. The election belongs to the people. One, it should be clear that way, and two, people shouldn't think otherwise. We know how powerful cynicism is about politics, about partisanship getting in the way of what politics should be about, and we shouldn't invite that unnecessarily.

I would argue that the government is taking a step in the right direction. It's moving by certainly announcing that there will be a fixed election on a given date. But the law should be much more explicit in terms of sending out a message to Canadians that this is the normal way we will proceed: under normal circumstances, you can count on elections taking place on this date, and no one is going to change that.

Thank you very much, Mr. Chairman.

[The Chair, Conservative, Gary Goodyear]

Thank you very much, Professor. We appreciate your comments and your time this morning.

We will now move to Professor Heard for your opening statement. Thank you, Professor.

[Prof. Andrew Heard]

Thank you very much.

I'm going to read my initial comments to facilitate the translation process at this point. I will try to keep my comments brief, to the point, and touch on the three areas I was told the committee wished especially to hear about. I look forward to more detailed discussions with your questions.

In my view, the bill largely preserves the status quo ante, with the major exception of shortening the maximum life of a parliament to four years. As with the three provincial measures dealing with the same subject, Bill C-16 sets a maximum life of four years for the legislature, while explicitly preserving the Governor General’s power of dissolution.

Legally the Governor General’s power of dissolution must be exercised in tandem with the Prime Minister. Both the proclamation issued under the royal prerogative to dissolve Parliament and the actual election writs issued under the Canada Elections Act must be done by and with the advice of the Prime Minister. As I can explain in detail later, the law gives the Governor General the upper hand in this process, while convention ensures that the Prime Minister usually, but not always, is the actual decision-maker.

The decision to dissolve Parliament is normally made by the Prime Minister, and the Governor General must act on his or her advice to sign the proclamations and writs. However, constitutional conventions also provide the Governor General with the power, in certain circumstances, to refuse the Prime Minister’s dissolution advice. This refusal is most widely supported for a minority situation where an alternative government could be formed by another Prime Minister.

In theory too, the Governor General may personally decide that Parliament should be dissolved and demand that the Prime Minister comply. However, this would be very controversial, indeed, and it could only be considered in the most drastic of circumstances, such as when Parliament is paralyzed and apparently beyond the control of a cabinet determined to cling to power.

In its current form, Bill C-16 neither alters nor is directly affected by the confidence convention. I can briefly summarize a difficult topic by noting that modern constitutional authorities generally agree on three types of votes involving a test of confidence. These various confidence votes can be grouped into three broad categories. The first two are relatively unambiguous.

The first is any otherwise ordinary motion that the government has designated in advance to be a matter of confidence.

The second group of confidence votes relates to motions to approve broad government policy, and defeats on these motions clearly demonstrate lost confidence. These votes include the Address in Reply to the Speech from the Throne and the main budget motions. Most commentators also include the main budget implementation and supply bills in this category, which involve confidence, but we should note that other money bills do not.

The third set of confidence votes are the problematic group, occurring on motions worded to convey a lack of confidence in, or the serious censure of, the government or members of cabinet. The key for categorizing either stand-alone motions or amendments as confidence votes must inherently hinge on their wording. The problem is just what wording makes a motion a test of confidence.

Some examples are unmistakably clear, such as the one that precipitated the last election: “That this House has lost confidence in the government.” But a review of motions over the past century reveals that motions with much more varied and convoluted wording have been considered tests of confidence. As a result, motions become tests of confidence because their wording conveys a loss of confidence, a condemnation of the government, a call for resignations, or a declaration that the government is not fit, or has no right, to hold office.

Constitutional conventions have a limited legal status, but the courts have made use of them in various contexts. There are a few possible ways in which conventions might arise in judicial consideration of Bill C-16's current provisions, and I do not believe judicial consideration of conventions will significantly alter the bill’s current provisions.

However, the courts would be called upon to adjudicate the confidence convention if the bill were amended or a constitutional amendment proposed to prevent premature dissolutions, except when a government has lost confidence. In my view, this is highly undesirable for two reasons: one, the confidence convention currently has vital flexibility and room for evolution; and two, a confidence vote is a supremely political act that should not be subject to either judicial interpretation or enforcement.

Currently, the Governor General is the ultimate enforcer of the confidence convention. Although she is an appointed official, convention requires that either the current Prime Minister accepts political responsibility for her actions, or a new Prime Minister is appointed who will.

On the constitutional issue, it's not a question of if it is possible in our parliamentary system but it's a question of which process should be used. And in my view, the current provisions of Bill C-16 are achievable through ordinary legislation, but constitutional amendment may be needed to achieve its supposed objective of precluding early election calls not resulting from a loss of confidence. Amendment may well be required in the latter case, because changes substantially affecting the Office of the Governor General require a unanimous amending formula.

On a more optimistic note, the proliferation of similar legislative measures at the provincial level may raise citizen expectations for majority governments to last the full years. In B.C., for example, common discussions of elections are already premised on the belief that four-year cycles are required. Ironically, this proposed legislation may best achieve the government's stated objective by generating a new constitutional convention to limit a Prime Minister's election options.

Thank you.

[The Chair, Conservative, Gary Goodyear]

Thank you very much, Professor Heard. I appreciate your comments as well.

Now we'll move to Professor Massicotte, for your opening statement, sir.

[Prof. Louis Massicotte]

Thank you, Mr. Chairman.

Ladies and gentlemen, thank you for inviting me.

I am familiar with Bill C-16 and the debates that took place in the House of Commons at second reading on September 18 and 19.

I will be making my presentation in French.

I can make an audible noise in English, enough to teach in an American university, so I'm willing to answer your questions in either language.

In the debate of which I am aware, I believe I was able to discern a reasonable consensus among the participants with respect to the nature and scope of the legislation. It is commonly referred to as the fixed election date bill, but everyone seems to clearly understand that in reality, the election calendar will not be as definitive as it is for our neighbours to the South, for example.

To paraphrase Mackenzie King, what Bill C-16 offers us are elections at fixed dates, to the greatest extent possible, but probably at dates that are not fixed. The Prime Minister will still be able to ask the Governor General to hold an early election, and not only if the government loses the confidence of the House. This is an interesting compromise.

A totally rigid election calendar is extremely rare in parliamentary systems. In that regard, among sovereign countries, Norway is the exception that confirms the rule. However, it is common to restrict the right to dissolve Parliament. In practice, election dates are more predictable under other parliamentary systems than in Canada.

That being the case, the temptation is great to suggest that Bill C-16 will change nothing; however, giving into that temptation would be a mistake. With this bill, a prime minister will not be able to request and secure the dissolution of Parliament as easily as before. In that context, it will be much more difficult to call an election simply to make it easier for a government to be re-elected. But one should not underestimate the climate, and thus a potentially negative public reaction to that kind of decision. It would definitely be starting off on the wrong foot for a prime minister to have to spend the first week of an election campaign responding to accusations of political opportunism, or even of having broken the law.

So, I endorse this bill. I must say that some of the arguments made in support of this legislation are not as convincing as others, but in my view, the strongest argument relates to equity. Giving a party leader the privilege of choosing the date of the next election, without any guidelines, gives that party an exclusive advantage, which may be a less decisive factor that some may say or believe. In my opinion, the general thrust of the Elections Act is clearly to put all the players on the same footing. That is an argument we hear over and over again in the debate and there is a good reason for that: it's a valid argument.

Where I did get the sense that there is a difference of opinion among MPs was with respect to the desire of some to take advantage of this bill to explicitly set out in legislation, and perhaps even in the Constitution, the conventions governing responsible government. As far as that goes, I'd say that it's quite a nice idea, but I don't see it as being urgent.

There has been a tendency to do that in Continental Europe. In France, they call it “rationalized parliamentary government”. It's clear and has more of an educational thrust. You have a short paragraph laying out exactly when a government is defeated and when it is not. I'd say that our practice in this area, which for the last century and a half has been to rely on conventions that I personally am quite familiar with, having studied parliamentary tradition, has served us quite well. There have been some ambiguous cases. Mention has been made of the May 2005 vote, but as you know, the debate did not last long. Ultimately, the House of Commons clearly reaffirmed its position. The lesson I draw from the May 2005 episode is that technicalities do not allow a government to prolong its existence indefinitely.

The other idea that has come forward is that some would like to amend one of the existing conventions by abolishing the prime minister's power to make any issue a matter of confidence. Let's just clarify what we're talking about here. This refers to a situation where a prime minister says to members of Parliament: “You may not like every detail of the measure I am proposing but, in my subjective opinion, it is fundamental. So, I am going to put you in the position of having to either accept or refuse; I am putting my head on the block. If you reject this measure, I will consider that I have lost your confidence and will advise accordingly. ” That is what happens when a prime minister asks for a vote of confidence. Some would like to see that abolished.

I do not agree. This practice is a feature of pretty well every parliamentary system, and there is a very important reason for that, which has to do with the very nature of the parliamentary system. A parliamentary system is not just one based on a legislative assembly of parliamentarians where the government does nothing more than fulfill the will of the House of Commons. Under a parliamentary system, what is known as the Executive does not just carry out orders. The strength of the parliamentary system is tied to the government's ability to show leadership, subject to the House of Commons' power to defeat it and the ultimate power of the electorate to arbitrate a fundamental disagreement that may have arisen between the government and Parliament.

Basically, Mr. Chairman, I endorse this bill both because it reduces the possibility of a prime minister abusing his power to dissolve the House of Commons, and because it maintains that power while at the same time increasing the chances that it will be used more appropriately.

In closing, I would just say that it is quite rare for a government to propose an institutional measure that it does not benefit from in one way or another. Now that this opportunity has arisen, I believe you should take full advantage of it.

Thank you.

[The Chair, Conservative, Gary Goodyear]

Merci, Professor Massicotte.

What we're going to do now is go to our first round of questions. Unless the committee disagrees, then because we have a number of witnesses, we'll go with a seven-minute first round. Is that agreeable?

We will start in the usual order, with our Liberal members, and I have Mr. Owen up as the first questioner.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you, Chair.

Welcome, witnesses. Thank you very much for making yourselves available to us, one in person and two in different time zones.

Professor Milner, on behalf of all of us, I'd like to thank you for your very insightful paper for the Institute for Research on Public Policy. It has given us a great grounding and framework by which to discuss this important project. I think you're right in your reading of both our discussions in this committee and in the House, that there is general agreement that going to a more fixed system is a good thing.

I'd like to just raise a few issues for each of you, with reference to points that each of you have made.

I hope I haven't misunderstood you, Professor Milner, but you've suggested that we need to be explicit about the constraints on the right of the Prime Minister to request a dissolution, and only in exceptional circumstances—I think you used the word “exceptional”—should that be permitted in a majority government. If I could just leave those “exceptional circumstances” for a moment, I would look to Professor Heard's comment that this bill in front of us does really nothing in terms of convention other than to shorten the maximum length of a parliament.

Then I go to Professor Massicotte's reflection that in fact, as a matter of equity, this is a good thing—that's the key reason—but also, when there was a majority government, it would be seen as an act of electoral opportunism. Therefore, there would be a sufficient constraint against a Prime Minister seeking a dissolution in a majority situation.

My question is this generally. If it's only in “exceptional circumstances”, how do we define them? If we define them or however we define them more explicitly in the bill, do we then keep the courts out in the situation of Professor Heard's third situation? And I agree with him that it's wise to try to keep the courts out of parliamentary issues of this sort.

The final question is on the equity position that has been mentioned by Professor Massicotte. There's equity between parties, yes, but there's also an issue of equity within a party, which I wouldn't mind your reaction to. The Prime Minister, as leader of that party, may actually threaten to dissolve Parliament and call an election, threaten his own caucus with such an action, in order to block any attempt to overthrow his leadership. I wouldn't mind the experience of any of you with that sort of situation.

[The Chair, Conservative, Gary Goodyear]

Excuse me, witnesses. I probably should have explained that a seven-minute round means seven minutes for questions and answers. Mr. Owen has used up three minutes on the question, so I would like you to please do your best to answer.

We'll start with Professor Milner. If you could possibly keep your answer to one minute, we'll end up getting all these questions answered. I know that's difficult, but please do your best. Thank you.

[Prof. Henry Milner]

The definition of exceptional circumstances is not a simple one, and I would have liked to see some attempt in the drafting of the law. My ideal would be something like the German system, where in a majority system you'd still need a vote of non-confidence. This would mean the government would have to engineer a vote of non-confidence from its own members, which would take really extraordinary circumstances for it to act. In other words, the idea would be that when the government loses the confidence of the House, only then can we have a premature election, whether in a majority or a minority situation.

The second point I want to make is particularly in relation to Mr. Massicotte's interpretation. This is all a matter of interpretation. You can interpret the law as an incentive that will make it harder for the Prime Minister in a majority situation to call a premature election, but we don't really know. Nothing in this law is going to tell us whether this will happen. I'd like to believe this will happen. Minimally, I would like to see a very clear statement accompanying the law that would say that give Canadians a message saying this is what we expect. It seems to me that's the very least we could expect, and it would be publicized in a very clear way. Perhaps it could still happen; I'm not ruling it out.

I would go further, possibly, if the consensus is that all this does is reduce the five-year term, make it a bit shorter, and that ultimately the room to manoeuvre of a majority Prime Minister really hasn't changed very much. I suggest--and if we want to avoid a constitutional issue--we could go further and do what they do here in this country, in Sweden, and in Finland, and that is that we would change the incentives. It's a very simple process. The next election would simply take place on the third Monday in October after the last regular election, so a premature election would not change that. That would have a very strong disincentive to anybody bringing down a government prematurely. That's an extreme measure, and I'd hope we could avoid that, but I wouldn't want to end up with the status quo, except a slightly shorter length of Parliament.

[The Chair, Conservative, Gary Goodyear]

Thank you, Professor.

Professor Heard, have you any comments?

[Prof. Andrew Heard]

No, I think I'll pass on this one. Thank you.

[The Chair, Conservative, Gary Goodyear]

Professor Massicotte.