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.
12:30 p.m.
As an Individual
The “disincentives” was his term, actually, and I think that's a very good idea.
I was taking the point of view of Professor Andrew Heard, the pre-eminent authority on Canadian constitutional conventions, who had written an article in The Globe and Mail suggesting that the House could adopt a resolution to express the view that it did not want the Prime Minister, or even the Governor General, to prorogue unless the House had been consulted, except in certain cases, for example—or at least not to prorogue for a longer period than was mentioned, for example, in the motion of Mr. Layton adopted recently by the House. You could have that kind of resolution, according to Professor Heard, and it would serve as a statement of what the House wants.
One of the things I would emphasize is that I would expect the Governor General, whoever it is, to take that into consideration when considering any requests for prorogation by a Prime Minister. For example, whatever you want to put in a resolution in the House, you would have to allow for prorogations when the government decides that it doesn't want to continue its agenda. You would not want to be able to block the government from doing that sensible kind of thing, so you'd have to write that resolution very carefully.
As I said, I question whether seven days is long enough, but that's another matter for debate.
The other thing is that you could put it into law, but I think we look at enforceability too much. Sometimes the statement that this is what we expect, as Mr. Walsh said, in the Constitution.... But even in law, the Governor General is aware of the laws, and if a law says that the Prime Minister is not to advise the Governor General to do something unless the House of Commons has approved, I think the Governor General would very likely say, “I think you'd better go back and get the approval”.
12:30 p.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
But that didn't seem to work with the fixed election date.
12:30 p.m.
As an Individual
Ah, but that was written very badly, and I don't know if it was done on purpose—
12:30 p.m.
Liberal
12:30 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
Thank you.
At the time of the December 2008 events that let ultimately to the prorogation of the Commons, I recall coming across, in the reading I was doing then, some reference to prorogation traditionally being for a period of not less than 40 days. I haven't been able to locate that source since, so I thought I would just ask the question: was there ever such a tradition, either here or in Britain; and if it ever existed, does it retain any meaning or not?
12:30 p.m.
As an Individual
I think the 40 days may come from one of your privileges, as you may know, not to be called to serve on a jury. Another privilege of members of Parliament is not to answer a subpoena to appear as a witness in court. Those are good for 40 days before a session and 40 days after a session. Apparently, it is a tradition that grew up in England.
Normally the proclamation would be issued at least 40 days—or around that, as it varied at different times—before the session began, because people came quite long distances, and in the 1800s and before that, travel wasn't that easy. Then you gave them time to get home, so you gave 40 days afterwards too.
So that may be what the reference was to, that if you are going to prorogue Parliament, there is no point if you are going to have the people go home and then come back again. You want to give them time to actually get home and then to come back again, so the prorogation would have been longer.
Sessions used to be very short, even in early Canada, because this was not a full-time job then. People had farms and they were doctors and lawyers and had their own practices. They had to travel. Some of them still do. They had to travel a great distance to get home, and there was not that much legislation; there was very little government legislation in the early days of Confederation.
12:35 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
I gather, then, that the 40 days has no meaning any more.
There's a supplemental question I was going to ask with regard to this, and then I have a second line of questioning. The supplemental question I was going to ask is that it sounds like your reference to how things have been done in the United Kingdom is that prorogation occurs at the end of the summer and is followed almost immediately by the Speech from the Throne, as opposed to what has been done in Canada on many occasions, commencing at the beginning of the summer, followed by a speech from the throne at some point in the autumn.
12:35 p.m.
As an Individual
It could be done that way, but something in my memory tells me that it was done a little later, just in case an emergency came up during the summer. I may be wrong about that. I don't know.
12:35 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
Then I wanted to ask you a question in regard to the proposed Standing Orders changes. I'm thinking here of the one to which you referred in your February 15 article, a Liberal proposed change to the Standing Orders. It calls for a certain amount of debate, and notice is given ahead of the rising of the House.
Obviously, if this were to be adopted, it contemplates no prorogations being possible when the House is not actually sitting. So it would deal--I'm thinking of the two most recent prorogations--with the situation that took place in December 2008, and presumably it would not deal with the prorogation that was announced on December 30, 2009.
Is it actually possible to rewrite the Standing Orders so as to prohibit a prorogation during a period when the House isn't sitting, or is that in fact a procedural impossibility, in your opinion?
12:35 p.m.
As an Individual
The way the Liberal proposal was first put forward, I don't think it took into account certain little glitches or difficulties. For example, if you want to prorogue during the summer, say, just before the House is due to return in September, and the House isn't sitting at that time, what would you do? That wasn't covered in their original press release. They didn't cover what you do if the Prime Minister dies. What do you do if his plane crashes, like the Polish president's, heaven forbid? Those kinds of glitches weren't considered.
What do you do if right after an election it's not absolutely clear who might be able to demand the confidence of the House? So the government that was in office before the election continues to meet. It meets the House, and when it meets the House it proposes its throne speech and has a debate on the throne speech, and that's when it's defeated.
12:35 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
I was thinking of this--Ontario in 1985.
12:35 p.m.
As an Individual
Yes. When it's defeated at that point, then the leader of the opposition should normally be the one invited by the crown to form a government.
If that happened, then you would expect the new Prime Minister to want to prorogue, to give a restart, with his own throne speech, and however long that takes. That wasn't envisaged either.
12:35 p.m.
Bloc
Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC
I want to start by telling you, Mr. Hall, that it is a great pleasure to see you back before this committee. You really left your mark as a clerk. I had the opportunity to work with you. You are living proof that retirement has not dampened your intellect. You are still as sharp as ever.
My questions will be along the lines of those of Mr. Reid. You mentioned that you would support changing the Constitution in order to define the circumstances. Let us say we amend the Standing Orders in order to circumscribe the process. You wrote in an article, referring to an academic paper, that if there was a resolution from the House of Commons, this would be a part of the Governor General's consideration. Technically, that is fine. But the last time, the government prorogued on December 30. If we are not sitting, the prorogation procedure is different.
We will rise in June and let us say that after the break, in August, a rumour is going around and is picked up by reporters that the House will not come back on September 20 and that resumption has been delayed until October. How would we be able to meet? Or if the prorogation came into effect quickly and there was no longer a Parliament, how could we meet in order to pass a restrictive resolution or make any decision? We need to look very closely at any amendment to the Standing Orders as well as the feasibility of such an exercise.
12:40 p.m.
As an Individual
That is a very good question. I take it that the Prime Minister had made his decision or at least considered the possibility of a prorogation well before the day it was requested.
If we amend the Standing Orders or pass a resolution having the same effect, the Prime Minister would have to take this into account and plan around it. Actually, it was not an emergency prorogation but a well considered prorogation. I believe the Prime Minister had some goals in his mind, among which obviously changing the make-up of Senate committees. He could have debated this well before, there was no urgency to do that on December 30.
12:40 p.m.
Bloc
Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC
Exactly. Obviously, he did it with a very precise objective in mind, which I do not question. After all, we are politicians and not members of some church group or bridge club. He obviously did it to annoy the opposition. It was well planned. We could not expect him to say that he seriously considered proroguing the House on December 30 because he wanted to change the composition of the Senate and cool down the special committee on the Canadian mission in Afghanistan which was becoming rather hot, if I may use that phrase.
Mr. Walsh confirmed that the Prime Minister has a political role in this exercise and the Governor General a judicial role.
So I do not understand your comment.
12:40 p.m.
As an Individual
Ultimately, if you pass a resolution or amend the Standing Orders or even pass legislation, this will prevent the Prime Minister from using prorogation as a political tool in the way he did.
12:40 p.m.
Bloc
Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC
However we will need to look closely at the language. As you mentioned earlier, we got burned with the fixed date election legislation. The government added a little clause saying that elections would be held on a fixed date but that they could be held before that fixed date. This is what gave us the 2006 elections.
12:40 p.m.
Conservative
The Chair Conservative Joe Preston
You are over the five minutes there. I was being generous to you, even without knowing I was.
12:40 p.m.
Bloc
12:40 p.m.
Voices
Oh, oh!