Thank you.
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.
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.
12:10 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
I suppose the relevant consideration would be whether the person is in a position to be privy to matters that are discussed with the Governor General--that is, a privy councillor--or someone else who.... It couldn't, I presume, be a person off the street; there would be a limit as to that kind of person being present.
My understanding is that it's normal for the Governor General to have access to constitutional experts. We are told, although no one knows for sure, that Professor Hogg was one such expert, and there may have been others. Although I don't know this, I assume that what happens is the Governor General consults with them separately. She may get up and leave the room or invite the Prime Minister to leave the room and then discuss that with them without the Prime Minister present. So they aren't actually privy to her discussion with the Prime Minister; they're only privy to her account of what advice she has been proferred.
Does that summarize your understanding of that?
12:10 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
That's the report I've seen as well, but I'm not sure what the question is pertaining to that.
12:10 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
I guess the question is whether what I've just described seems constitutionally proper.
12:10 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chairman, I'm winging it a bit here.
I always thought the Governor General, constitutionally, was required or expected to get legal advice from the Privy Council Office, not necessarily in private, away from the Prime Minister. But it could be that she would go to the Privy Council Office to get her legal advice on the question put to her, or any question, but certainly the question or demand put to her by the Prime Minister. And I don't suppose she has to take that advice in the presence of the Prime Minister. She could do it privately.
Going to outside parties I think was a bit of a departure. At least to the extent that we learned about it for the first time, it seems to be a departure. The reason I say this is because I've always thought the Governor General's position is one that has to maintain its political neutrality, and its relationship to the government of the day is one of following the advice of the government of the day. To go to outside parties is to distance yourself from the government of the day and to give yourself a source of advice that could run against the advice of the Prime Minister of the day, whereas the Privy Council Office of course is part of the government that the Prime Minister heads, so advice from the Privy Council Office is arguably consistent with advice from the Prime Minister. The advice from the Privy Council Office is not about whether to prorogue or not, but the legalities of what her role is and that sort of stuff.
To go to an outside party surprised me. There are others who think that's perfectly fine and that she's entitled to do it. It surprised me. I would have thought that she ought to have taken the legal advice from the Privy Council Office and limited it to that, but that's just my own view.
12:10 p.m.
Conservative
12:10 p.m.
Conservative
The Chair Conservative Joe Preston
Okay. If we can, I'd like to end it there so we can have our second witness. Can we suspend just for a moment, and we'll bring our other witness on?
Mr. Walsh, it's always great to have you here. Thank you so much for your answers to our questions today and to the written document you supplied us with. Don't go far if we need you again.
I'm just kidding.
12:10 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
Would you want me to stay here for the next--
12:10 p.m.
Conservative
The Chair Conservative Joe Preston
No, no. I'm just teasing. Maybe later on we may actually have more questions of you, but this study will carry on.
12:10 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
Well, I can assure you that I will be following the further proceedings with great interest.
12:10 p.m.
Conservative
The Chair Conservative Joe Preston
Thank you. It's always nice to know that there's somebody out there watching us.
12:10 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
And you may hear from me.
12:10 p.m.
Conservative
The Chair Conservative Joe Preston
Thank you very much.
We'll suspend just for a moment, and we'll have our second witness come.
12:15 p.m.
Conservative
The Chair Conservative Joe Preston
We're back to order.
We have Thomas Hall with us.
My understanding is that you're somewhat familiar with this committee, sir. Do you have an opening statement? Please feel free to give it to us, and then we'll try to ask you some questions about the issue we're studying.
12:15 p.m.
Thomas Hall As an Individual
Thank you very much, Mr. Chair.
I'd be much more comfortable in Angela's spot as the clerk of the committee than down here. I thought that if I were ever invited to be down at this end, it would be a cold day in the spring, and it is.
12:15 p.m.
As an Individual
I was right.
I'll just give you a little bit of my background. I don't have a law degree. I'm not a lawyer, but I read a lot. I was a clerk at the House of Commons for over twenty years, and I belong to a group of procedural nerds. We like to think that if Mr. Milliken had not become an MP and had become a clerk instead, he would have been a member of our group.
12:15 p.m.
As an Individual
We can make him an honorary member.
We do have one researcher from the Library of Parliament who is an honorary member. He used to be the researcher for this committee, in fact, for many, many years.
We discuss things, and we have discussed over the years all kinds of esoteric things, not just the procedure in the House but things like prorogations and dissolutions and constitutional amendments.
I really should mention them, perhaps. One of them still works here at the House of Commons: Terry Moore, in the table research branch. Charles Robert, in the Senate, is a principal clerk there and is very well informed on these issues. And David Gussow is a retired table officer from the House of Commons.
We still communicate with each other and discuss these items. We are all self-taught on these issues. I'm not a political scientist, and I'm not a lawyer, but I like to say that my twenty-some years here gave me a degree in applied parliamentary science.
I agree with everything Mr. Walsh has said to you. What I'll try to do, though, is bring it down from a legal level and make it a little bit more familiar, if I may.
The prerogative powers of the Governor General--or of the crown, I should say, because they are really of the crown and are just transmitted to the Governor General through letters patent from the sovereign in England--are, as Mr. Walsh said, are common law powers. They do not exist in written legislation. Two of them are referred to in our Constitution. These prerogative powers dealing with the relationship of the crown and Parliament are to summon Parliament, to prorogue Parliament, and to dissolve Parliament.
This is all historical, and I think you have to look at prorogation in that light: that it was the crown that needed a Parliament to meet, it was the crown that needed the money, and it was the crown that needed Parliament in order to legislate. So these prerogative powers are all designed, basically, from the crown's perspective to say, “We want to summon you to do this work. You've finished what we assigned you in the throne speech, what we said we wanted you to consider. Go home. But I'm not calling any elections because I may call you back.”
Prorogation is actually an extension, a carrying over. If you look at the etymology of the word, it means “to go forward”. It doesn't mean to put an end to a session. That's its effect, but it actually is a going forward of Parliament; it's a carrying it over to a later time when a new agenda is going to be presented.
These things are all familiar to you, but if you think about it, when you want to put limitations on prorogation, you're also not just keeping the government from sending you home; you may be doing some other things as well, because prorogation has to take place not just when the agenda is finished, but it may take place because the crown changes who the prime minister is. It may take place because there's an emergency. So you have to be very, very careful in drafting anything that it won't cause a problem that's unforeseen down the road.
For example, the motion that was adopted, that was proposed by Mr. Layton in the House, gives you, I think, seven days for a prorogation. What happens if that's not sufficient? What happens if the Parliament Buildings burn down because they've been neglected so long?
Excuse that reference. I had to get that in.
If they burn down and it takes longer to set up in a new place, when the fire happens you can't get an adjournment motion passed, so somebody has to say, “We're not sitting any more, guys; go home, and we'll set up a temporary place for you.”
These are things you have to consider when you start playing around with these prerogative powers, because they do give flexibility. What you've been looking at is a case where many people say it has been abused. Not everyone says that, obviously, but some people say it has been abused. As the lawyers like to say, bad cases make difficult law--or is it difficult cases make bad law? I think I have it backwards. So you have to be very careful and aware of all the repercussions.
I would suggest to you that prorogation may be just the tip of the iceberg, and that what you really want to look at are the prerogative powers and how they affect you. The prerogative power of dissolution has had much more effect on this Parliament and the previous Parliament than anything else, because you can threaten to make something a confidence measure and threaten dissolution. That is a prerogative power that is much more important in the life of a Parliament, particularly in a minority government. You need to expand and look at that.
I should mention to you that the U.K. is looking at prerogative powers. The British are very concerned with some of the aspects of this and are seeking to modernize it. I've sent some references to your researchers and to the clerk about some of the British publications that have looked into prerogative powers.
By the way, one of them contains in it a suggestion for legislating with regard to the prerogative power dealing with war, declaring war and mobilizing troops. The crown does not have to consult the House of Commons. To his credit, Prime Minister Stephen Harper consulted the House of Commons with regard to Afghanistan, but he didn't have to. The prerogative power allows them to mobilize the troops and send them in, without any agreement of the House of Commons or the Senate.
These kinds of things are being looked at in the U.K. One of the suggestions was that they legislate with regard to this. That was by a committee in the House of Commons, I believe. The House of Lords recommended that a resolution be adopted, and that's very much in accordance with what I think the Liberals and the NDP were looking at, or what you've done. That is, get a resolution through that's very clear and declares the will of Parliament, and it would have the effect of permanency, of something in the Standing Orders, and this would be followed.
The British are very good at following the prescribed plan without having to go to court and getting things enforced. So there's a cultural difference that you may want to take into account, but it is something that's very characteristic of the British. A lot of their conventions work on these assumptions.
I'll just mention to you about prorogations, when they occur. I read the debate that occurred on Mr. Layton's motion in the House about prorogation, and a lot of the comments were made about the frequency of prorogations.
The frequency of prorogations should never really be an issue. I think it's a bit of a red herring for you, because if you're well organized--and here we go back to the British--they start with a throne speech in the fall, set out their legislative program. Remember, until recently, with devolution, they were legislating for the whole country, for everything. They had no provincial legislatures except in Northern Ireland. They finished their program sometime in the late spring or early summer, and then they waited till the fall, prorogued, and started the new session. So the prorogation is annual. That's a very nice, neat, organized way of doing it.
I believe some of the provinces may do it twice a year. I've only worked in one provincial legislature, briefly.
Surprisingly enough, it was at the National Assembly of Quebec. I worked there a few years ago. I have to confess that I do not remember if there have been two prorogations or only one.
I will finish very shortly. I know you're looking at the clock.
One of the things that was never mentioned in the media, dealing with the prorogation—and it was said during the debate, I think by Mr. Hill, but I'm maybe wrong there—is about the precious time that was being wasted. This was in a totally different context, but the precious time reference made me think that if anybody should worry about prorogation it should normally be the government, because it only has a certain amount of time to be government with that particular Parliament before another election will come up. And when you send the House away and Parliament away, you're not getting your legislation through, you're not doing any of the things that the people who support you expect you to do. So if anybody should have been concerned about losing precious time because of the length of that last prorogation, I think it should have been the government.
I say this just as friendly advice. I was surprised it wasn't mentioned in any newspaper articles about the fact that you lost that precious time.
From the point of view of the opposition, the precious time was not getting legislation through. They're looking at it from the point of view of being able to scrutinize government—the scrutiny of your work—and to offer advice, or criticism if you will. I see the word “advice” made somebody smile.
I think I should shut up now and see if you have some questions for me.
12:25 p.m.
Conservative
The Chair Conservative Joe Preston
Please don't, but let's use it as answers to our questions.
Madam Jennings, you're first.
12:25 p.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Thank you, Chair.
Thank you, Mr. Hall. I've read your articles that you've co-authored with W.T. Stanbury in The Hill Times with great interest. I note that on February 15, 2010, you wrote an article that says:
Can the Prime Minister's power over prorogation of Parliament be restricted without amending the Constitution? Yes, it can. It's time to start the process now as part of a series of reforms to limit the excessive powers of the PM.
I'll leave it to all of my colleagues here, if they have not already read the article, to do so.
I'll have two questions, depending on your answer to the first. Were you in the room when Mr. Rob Walsh presented and then answered questions of this committee?
12:25 p.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Therefore you heard Mr. Walsh state that on the issue of the Standing Orders, if the Standing Orders are used to attempt to regulate the Prime Minister's discretionary or executive authority to request prorogation, it would not be enforceable, and that if one wishes to go the standing order route, the way to do it would be to say “in the event that the Prime Minister has got, on request, prorogation without having fulfilled X, Y, and Z, in the session following that prorogation...”, and then there could be a series of sanctions. It could say, “for the first 60 days it's all private members' business”. It could say that the government will not be able to move second reading of any government bill for a certain specified number of days.
I would like your view of that.
12:30 p.m.
As an Individual
Mr. Walsh and I don't disagree, really. I think it's a question of emphasis in different places.
I liked his suggestion that that's the way you could do the punishments—or the penalties; let's put it that way. It sounds better than punishment.