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.
Conservative
The Chair Conservative Joe Preston
You can give a quick answer, if you have one, to the first question that David asked. If not, we'll stop him there. He's really on a roll today.
As an Individual
I'm not sure I remember the first question.
Conservative
The Chair Conservative Joe Preston
Okay. That one is finished.
I don't see enough time on the clock to have one more round. I'm happy to entertain some type of one-off questions very quickly for our witness, if there are any. If not, we'll then move forward.
Go ahead.
As an Individual
I would comment very briefly on some of the questions that were asked to Mr. Walsh. There was a question from someone about committees.
Conservative
The Chair Conservative Joe Preston
At the will of the committee, it's their time you're taking, so I'll have to ask if it meets their approval.
Sure. It's okay.
As an Individual
There was a question about committees meeting and changing the Standing Orders to allow this. Mr. Walsh was absolutely right about their privileges.
I would go further. I know I'm disagreeing with something that Errol Mendes, a constitutional law professor, wrote in the Ottawa Citizen. He approved of the idea of having committees sit during a prorogation. I think he's totally wrong. I would go so far as to say it's unconstitutional, in the British sense of that term, for committees to sit during a prorogation. I know the Ontario Legislature does this. They've never been challenged on it, but you have no grounds to do it.
The reason is that in your procedures in the House, you are autonomous. The courts cannot interfere in your procedures when you're constituted as a House. When the crown sends you home, there is no House of Commons. For everything the committees do, they're supposed to be portions of the House and acting under the authority of the House. Once you've been prorogued, there is no House.
If it were possible to have committees sit during a prorogation, then you could get around prorogation by saying that the committee of the whole is going to continue sitting. If you can do it for a small committee, you can do it for a larger committee, and a larger committee, and have everybody continue sitting. That's the reductio ad absurdum argument. To that question I would say no, don't do it. It's not constitutional and it could cause you problems, as Mr. Walsh pointed out.
I think Mr. Reid asked a question about the effect on the provinces. One of the reasons the Constitution states that we need provincial consent to change the office of the Governor General or the Queen is that if we were to do that, we would affect the provinces.
In the wording of any legislation, you would have to be careful that you're not taking away the power of prorogation from the Queen or the Governor General. You could regulate it. You could limit its application. But if you took it away entirely, it would not be transmitted down to the provinces. I think you'd get into a legal and constitutional issue there. They derive their powers through the letters patent that have been given to the Governor General.
NDP
David Christopherson NDP Hamilton Centre, ON
But through Mr. Reid's questioning, Mr. Walsh did say we could be exclusive and do a one-off that would affect only the federal, as long as we were specific. You're saying the specificity needs to be there.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
I gather the point you're making, Mr. Hall, is that unlike Australia, where the state governors are separately appointed by the crown and have a direct relationship back to Buckingham Palace, in Canada the structure is that we have lieutenant-governors in each of the provinces appointed by the Governor General on the advice of the Prime Minister, as opposed to being appointed by the Queen on the advice of the state premier, as in Australia, or provincial premiers here. That's the distinction.
Conservative
Bloc
Pierre Paquette Bloc Joliette, QC
I understand that if we restrict prorogation without abolishing it, Parliament will be able to do so without negotiating with the provinces.
Bloc
Pierre Paquette Bloc Joliette, QC
Mr. Walsh referred to section 38, which is the amending formula, but I did not understand why. In fact, the amending formula requires seven provinces and 50% of the population. So how could Parliament circumscribe prorogation without having to consult?
As an Individual
There are two provisions. There is first of all section 44 of the Constitution Act of 1982 which allows us to legislate in relation to the Privy Council, for example. So this deals with the advice that members of the Privy Council, such as the Prime Minister, give to the Governor General. We have that right under this section.
As for section 38, I do not remember in what context he referred to it.
Bloc
Pierre Paquette Bloc Joliette, QC
He said section 38, but I believe he meant section 44. I believe he misspoke.
Bloc
Conservative
Conservative
The Chair Conservative Joe Preston
If you think of anything else for the good of this committee and would like to send it to us in writing, you can also do that.