Evidence of meeting #10 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 advice.
A recording is available from Parliament.
11:50 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
Well, your first point about full-blown constitutional amendment wouldn't necessarily be unanimity; it could be a seven-and-fifty rule.
11:50 a.m.
NDP
11:50 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
Well, section 44 enables there to be legislation pertaining to the federal houses, which wouldn't require the consent of the provinces. So if it's an amendment pertaining simply to the prorogation of the federal house, it may be that you're under section 44 and you don't have to be concerned about getting provincial consent.
11:50 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
That's a good question. People might say you have it in the Constitution, but the courts might still not be able to enforce it. Well, I would take the view that there are some provisions in the Constitution--I know there are--that are there very clearly and arguably aren't enforceable either.
Picture it. You have the Constitution very clearly in an article setting out the circumstances under which prorogation can be sought or prorogation can be given. I find it very hard to believe that the Prime Minister of the day is going to disregard something that is as clearly written in the Constitution and seek a prorogation. Not only that, a fortiori, it's not likely that the Governor General of the day is going to grant a prorogation that is recognizably contrary to what's in the Constitution.
There comes a point at which the Constitution sets the rules and the major players acknowledge that: you don't need to worry about court enforcement; it's simply not going to happen. Were it to happen, contrary to the Constitution, then you have a real constitutional crisis, and any court order might be marginal at best in those very extreme circumstances.
11:55 a.m.
NDP
David Christopherson NDP Hamilton Centre, ON
What sort of redress is available to Parliament if we go the standing order route, and maybe even the legislative route? I'm not sure that my question applies to both—you'll know better than I—in terms of not necessarily legally being able to stop it, but to make a statement that this is not expected, in the way that some of the examples you gave earlier about how it could be worded. My question is, if we put such a thing in place, either in a standing order or in legislation—and there may be two different answers to that—what would be the courses of action available to Parliament if that piece of legislation or the standing order was not adhered to?
11:55 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
In the case of a standing order, the House would, by its Standing Orders, presumably set out what rules apply in the event that its wish regarding prorogation were not adhered to.
In the case of legislation--
11:55 a.m.
NDP
David Christopherson NDP Hamilton Centre, ON
Sorry, can I stop you there?
We can put penalties in there. Is there anything that ultimately can lead to a contempt?
11:55 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
Well, beauty is in the eye of the beholder and contempt is in the eye of the beholder as well, as to whether you consider it that. But don't forget, even though your Standing Orders may make it evident that the House expects to get notice, if that's disregarded and if prorogation is granted, the prorogation is valid. That's a fact.
11:55 a.m.
NDP
David Christopherson NDP Hamilton Centre, ON
Yes, but you could still hold the Prime Minister accountable within Parliament in terms of his actions, even though the legal actions still took place?
11:55 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
Listen, the elephant in the room here, which is not being pointed at, is the relationship between the House and the government. There comes a point when you can write all kinds of things on a piece of paper, whether it's standing orders or legislation, but if the confidence of the House in the government is not there, that's where the House goes if the government is acting in a way that is unacceptable to the House.
I appreciate that you'd say why go nuclear with non-confidence when what you're concerned about is something less than that. Well, that's your choice, but then you're saying you do accomplish something.
The parliamentary system doesn't allow for you to have confidence but not have confidence, have it and not have it. It's either you do and the government continues in office, or you say you don't, or you do something that by tradition amounts to non-confidence, in which case the government has to seek an election, and so on.
So the big elephant in the room--which I don't want to bring up, because I'm not advocating that this matter be looked at as a confidence issue but which nonetheless infuses a lot of this discussion--goes to the nature of the relationship between the House of Commons and the government. It's one of accountability, and ultimately it gets to the point where the House has to accept the government's actions, however distasteful they might be: you hold your nose and you're carrying on with confidence in the government, implied if not expressed, or you say no, you don't have confidence, and you know what follows from that.
There isn't any other way of penalizing or slapping the wrist of the government or whatever because they're not doing things that you'd like to see them do.
11:55 a.m.
NDP
David Christopherson NDP Hamilton Centre, ON
Is a motion of contempt, if it carries, the same as a loss of confidence?
11:55 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
If the prime minister of the day chooses to take it that way, it could be.
11:55 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
It's not necessarily. You know, the only thing that really is confidence, apart from the few obvious issues like voting against the budget and so on, is a motion of non-confidence. Now, you can get into other versions of dissatisfaction, other ways of expressing it. It becomes a matter of interpretation. If you want it to be read one way, you should say so.
11:55 a.m.
NDP
David Christopherson NDP Hamilton Centre, ON
Thanks.
Assuming we legally can't stop it without a constitutional amendment, which one would be easier for the House to achieve to at least tell the Prime Minister that he violated the rules and that we are going to hold that there be a motion of contempt, and that the members say that rights have been violated--the Standing Orders or the legislation? Which is easier procedurally?
11:55 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
Obviously, going by the Standing Orders is easier. A motion is passed in the House, and it's done. Legislation, obviously, takes three stages and both houses.
11:55 a.m.
NDP
David Christopherson NDP Hamilton Centre, ON
The downside, of course, is that the Standing Orders can be removed just as easily in a subsequent Parliament.
Thanks, Chair. I appreciate that.
Thank you, Mr. Walsh.
11:55 a.m.
Conservative
The Chair Conservative Joe Preston
Thank you.
I think we have time for one more quick round if there's anybody else who has a couple of questions.
Marlene? No? Okay.
Mr. Lukiwski, you can have a quick one. We'll play around five minutes here, I think.
11:55 a.m.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
Okay. I have just a couple of simple questions.
Obviously provincial governments can prorogue as well. Are they completely separate and apart from the provisions contained in the federal government? In other words, do they have different rules per se they follow, or are they relatively similar?
Noon
Law Clerk and Parliamentary Counsel, House of Commons
They do not unless there's something in their provincial constitution covering this, but these are all unwritten rules and practices, and they apply in the provincial centres as well as the federal one.
Noon
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
If there were any changes, any constitutional amendments made at the federal level, would those have any impact on the provinces?
Noon
Law Clerk and Parliamentary Counsel, House of Commons
They need not. It depends on the terms and on how you draft the amendment and put the amendment in the act. It could be limited to the federal houses. The Governor General and her power are relative to the federal Parliament.