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.
Law Clerk and Parliamentary Counsel, House of Commons
You used the word “codicil”. I think of that in terms of wills, and you'd have to bring back King George VI to execute it.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
I perhaps should have used a different term, but I take your point.
Law Clerk and Parliamentary Counsel, House of Commons
I'm not sure, actually, Mr. Chairman, whether or not the letters patent of 1947 would have to go back to the Queen of England to be modified there, as opposed to being modified directly here in Canada. Legislation here could do much of that, but I think if you were to actually try to play with that instrument, you might have to go back to the Queen of England.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
That would be the Queen, presumably, acting on the advice of the Prime Minister of Canada.
Conservative
Bloc
Pierre Paquette Bloc Joliette, QC
I would like to come back to your conclusion.
You say that the only truly effective way to regulate the prorogation power of both the Prime Minister and the Governor General would be to amend the Constitution. You outlined several possibilities in the answer you provided. Formal constitutional amendments would involve negotiations with the provinces in this case, for example, is that not so?
Law Clerk and Parliamentary Counsel, House of Commons
It depends. In my view, if an amendment were made directly to the Constitution, there would be no limit. We could decide on anything with regard to the powers of the Governor General. We could indeed decide whether or not the consent of the provinces is required.
Bloc
Pierre Paquette Bloc Joliette, QC
In this case, in your opinion, we could amend the Constitution so as to remove the Governor General's power to prorogue Parliament, and we could do this without having to negotiate with the provinces?
Law Clerk and Parliamentary Counsel, House of Commons
With regard to amendments to the Constitution, if we followed the process set out in section 38, we could amend the Constitution to establish rules that would apply to the power to prorogue or to dissolve Parliament, for example.
Bloc
Pierre Paquette Bloc Joliette, QC
I also understood that we could have an act framing the Prime Minister's authority with regard to consultation. Furthermore — I wish to ensure that I understood correctly —, you also say that it is somewhat similar to the fixed elections date act: it is a pious wish, but the adoption of such a law would really have no impact legally speaking.
Law Clerk and Parliamentary Counsel, House of Commons
The fixed date elections act did not at all deal with the role of the Prime Minister. The purpose of the first section of this act was to amend section 51.6 of the Canada Elections Act, to which the following clarification was added:
56.1 (1) Nothing in this section affects the powers of the Governor General [...]
This gave the Prime Minister the ability to advise the Governor General with regard to the calling of an election. This is indeed a reservation set out in the act:
[...] including the power to dissolve Parliament at the Governor General's discretion.
The Governor General acts in accordance with the advice of the Prime Minister. If this act stated expressly that the Prime Minister could not give advice to the Governor General other than every four years, or something of that nature, it would be a different story.
Bloc
Pierre Paquette Bloc Joliette, QC
The way in which the act was drafted therefore left the door open to the Prime Minister.
Bloc
Pierre Paquette Bloc Joliette, QC
As an example, following prorogation last December 30, certain proposals were put forward, among them that the Prime Minister should provide notice before advising the Governor General and that there should be a debate or a vote in the House.
In your opinion, is this a path that could be followed? If so, would it be effective?
Law Clerk and Parliamentary Counsel, House of Commons
According to the Standing Orders of the House of Commons, as I was saying earlier, if the Prime Minister asks for prorogation before advising the House of Commons, procedural consequences must ensue. However, legally speaking, it must be stated that the Prime Minister is expressly prohibited from asking the Governor General to prorogue Parliament without having given notice to the House of Commons. That is clearly set out in the legislation. Then, there is the problem of knowing what the court will decide.
Law Clerk and Parliamentary Counsel, House of Commons
If the Governor General has already authorized prorogation, if a new parliamentary session has begun and the court finally renders a decision, what will happen? Will all of the parliamentary measures taken become invalid?
Bloc
Pierre Paquette Bloc Joliette, QC
You talked of the possibility of enforcing a law that would act as a disincentive to having recourse to prorogation. You gave several examples. In the context of the debate that followed prorogation December 30 of last year, a great many concerns were expressed with regard to the fact that the government had put an end to the session in order to prevent the special committee on the Canadian mission to Afghanistan from pursuing its work. Could one of the disincentives be that committees be authorized to continue to work following the prorogation of Parliament?
Law Clerk and Parliamentary Counsel, House of Commons
The House of Commons is free to authorize committees to pursue their work after prorogation, but the problem is that Parliament cannot grant parliamentary privileges beyond a parliamentary session. That is where the problem lies. Committees can meet, but...
NDP
David Christopherson NDP Hamilton Centre, ON
Thank you, Chair.
Thank you, Mr. Walsh. It's always stimulating to have you at the end of the table.
If I'm getting this right, we could go to a full-blown constitutional amendment, the usual unexpected unanimity practically, and go through the whole of that, or we could do separate legislation, but not necessarily a constitutional amendment. Or we can do Standing Orders changes, which would not have the effect of prohibiting but would give the House follow-up actions.
Is there anything I'm missing? Is there a piece I'm leaving out?
