Thank you, Mr. Chairman.
My opening statement is basically a condensation of the letter I sent to you and which I believe has been distributed to members of the committee. If that would facilitate matters, I'll make my opening statement, and we could then move to questions, if there are any.
Mr. Chairman, the issue before this committee, as I understand, is whether prorogation should be legally regulated in some manner, and if so, how. The object would to be remove the Prime Minister's de facto exclusive control of prorogation. It's not my place to address the first question, as this is a political matter. But the second question of how prorogation might be regulated involves consideration of the legal means by which this might be done.
Three questions need to be addressed. First, what is the legal nature and status of the power of prorogation? Second, can prorogation be regulated by the House through its Standing Orders or by Parliament through an act of Parliament? Third, if so, would the legislation be enforceable?
The Governor General's power to prorogue Parliament is a common law prerogative power that, according to unwritten constitutional convention, is exercisable by the Governor General on the advice of, or after consultations with, the Prime Minister. It is one of a number of prerogative powers held by the Governor General as the Queen's representative in Canada.
Another prerogative power held by the Governor General that relates directly to Parliament is the power to dissolve Parliament and call a general election.
Over time, more and more of the Crown's prerogative powers have been taken over by statute, that is, have become statutory powers vested in a minister or other public authority. Those remaining as prerogative powers in the hands of the Crown or the Governor General include, among others, the appointment of the Prime Minister and other ministers, dismissal of the Prime Minister, the summoning, dissolution and prorogation of Parliament, the making of treaties, command of the armed forces and the conferring of honours. Examples of prerogative powers taken over by statute include extradition, granting of pardons, citizenship, incorporations and expropriation.
The House of Commons, acting through its Standing Orders, only regulates its proceedings and those of its committees. Prorogation is not a proceeding of the House. The Standing Orders of the House have no binding effect outside the business of the House and its committees. This is not to say, however, that the Standing Orders could not set out some adverse procedural consequences for the government if a prorogation were obtained in a manner contrary to the expressed wish of the House.
Some have expressed the view that legislation governing the Governor General's power of prorogation would be a constitutional amendment and would require the consent of the provinces. In my view, while legislation regulating prorogation might be characterized as a constitutional amendment, this does not mean that the legislation would need to be approved by the provinces. I discuss this further in my letter to you on this matter, Mr. Chair, which I believe has been distributed to members of the committee.
One might avoid this legal argument by limiting the legislation to regulating the Prime Minister's role with respect to prorogation. The Governor General's prerogative power of prorogation is not shared with the Prime Minister. The Prime Minister has only an advisory role with respect to the exercise of this power, albeit a necessary prerequisite by constitutional convention. The advisory role of the Prime Minister is based on an unwritten constitutional political convention. If prerogative legal powers can be overtaken by legislation, it must surely be true that unwritten political rules can be overtaken by legislation.
However, a failure by the Prime Minister to comply with the statutory restrictions imposed on the advisory role of the Prime Minister would not, by itself, invalidate an exercise of the prerogative power of prorogation by the Governor General.
Although it might be possible in theory to draft legislation regulating prorogation, there remains the question of whether such legislation would be enforceable in the courts. Enforceability includes the question of justiciability. The courts consider non-justiciable those matters that do not contain sufficient legal content to enable the court to reach a legal decision on the merits.
The courts have said that the exercise of some prerogative powers, such as the power to dissolve Parliament or to appoint ministers, is not reviewable by the courts because they are not justiciable. Prerogative powers such as the dissolution of Parliament or entering into treaties or taking measures relating to national security, for example, are considered powers that either are political in nature or relate to matters that are not capable of review by a court through a judicial process.
Even if the legislation were drafted in such terms as to present a justiciable issue for the court and the court concluded that the legislation had been violated, there would remain the difficult question of how the court would enforce its decision. Likely, the prorogation would have taken place some months earlier and a new parliamentary session would already be underway. Does the court declare the prorogation invalid, as well as the subsequent parliamentary session and all parliamentary actions up to the time of the court's decision? Or once the court action challenging the prorogation is commenced, should there be no subsequent parliamentary session until the court makes its ruling?
In my view, the only effective way in which prorogation could be made subject to law and taken out of the hands of the Prime Minister in his advisory role to the Governor General is to make a formal constitutional amendment that would set down the circumstances in which the Governor General could prorogue Parliament, with or without the advice of the Prime Minister.
Thank you, Mr. Chairman.
I'll be pleased to respond to any questions members may have.
