Thank you for inviting me here. I do have a presentation. I think it's both in English and French, which I think the clerk has. I won't read all of it because of the time limit, but I'll see how far I can go.
The foundation of our constitutional democracy rests on the principle of responsible government. The historic ruling by the House of Commons Speaker, Peter Milliken, just a few days ago on the documents relating to the Afghan detainee issue has reinforced this fundamental nature of Canadian democracy. The principle of responsible government requires that the government of the day, be it a majority government or a minority government, maintain the confidence of the House of Commons. Maintaining the confidence of the House of Commons requires the government to fully respect the constitutionally protected parliamentary privileges of all members of the House.
Our democracy cannot be maintained by the manipulation of the PM's conventional powers and the Governor General's prerogative powers that were ironically designed to promote democratic accountability in the Parliamentary system we inherited from Great Britain.
The Supreme Court of Canada in two major decisions has confirmed that the parliamentary privileges include holding the government to account and, as such, is the Constitution of Canada.
This foundation of democracy can be undermined by the misuse of conventional powers of the Prime Minister to advise the Governor General to prorogue Parliament to avoid a clear loss of confidence of the House or to violate the parliamentary privileges of Canadians’ elected representatives, such as proroguing to shut down parliamentary committees that are investigating serious allegations. The ability to hold senior government officials to account is at the core of parliamentary privilege, as the Speaker has just ruled.
A proper democratic use of the prerogative power is a legitimate power to end one session of Parliament after a substantial part of the legislative agenda has been fulfilled leading to a new Speech from the Throne.
There have been many prorogation requests by former governments and Prime Ministers, and in the early decades of the Canadian Parliament, the practice was to end a session of Parliament by prorogation rather than a lengthy adjournment. In 1982, the Standing Orders were introduced to establish fixed sessions, which have resulted in approximately 2.1 prorogations for each Parliament.
These are facts that have to be taken into account whenever there are statements made that prorogation is quite routine and has occurred 104 times before. The present 40th Parliament had three throne speeches by March 3, 2010, in four years as compared to the four prorogations by the previous government in ten years.
In order to protect these fundamental principles of our constitutional democracy and to protect the constitutionally protected parliamentary privileges of the House of Commons, I suggest that it is possible to establish a process that will lead to the establishment of binding conventional rules. This can be achieved by the passing of standing orders and supporting legislation that will achieve the following.
Firstly, by standing orders of the House of Commons, limit the conventional power of the Prime Minister to request the prorogation of Parliament from the Governor General within the first year following any Speech from the Throne unless the House of Commons consents and indicates that the government maintains the confidence of the House.
Secondly, the Standing Orders can require the Prime Minister to give advance notice to both the House of Commons and Senate of the intention to seek prorogation with a statement as to why such a request does not interfere with the Parliamentary privileges of members of the House and that it is not designed to avoid losing the confidence of the House. The statement should also be immediately debated in the House.
Third, the standing orders can also limit the duration of any prorogation to no more than one calendar month.
Fourth, the process leading to a binding conventional rule in this regard could include the passing of supporting legislation to reinforce the above standing orders as suggested by opposition parties. This legislation should make it clear that while the reserve powers of the Governor General to consent or refuse the request remains unfettered, the legislation should be exclusively focused on limiting the conventional powers of the Prime Minster to seek such a request in certain situations. Now, it is acknowledged that there is some constitutional uncertainty as to whether a Prime Minister and a government can violate this curtailment of his conventional powers by hiding behind the reserve powers of the Governor General. The legislation mirroring the standing orders would be aimed primarily at aiding in the creation of binding conventional rules that are broken only at political cost.
Finally, the standing orders and the legislation can be formally transmitted by the Speaker of the House of Commons to the Governor General to inform her of the will of the Canadian people as represented through the Parliament of Canada, that she--if she is reappointed--and future Governor Generals should exercise their reserve powers to stop future anti-democratic prorogations that severely undermine the principles of responsible government. Now, there is an unwritten conventional power, based on the rights and privileges of the Speaker on behalf of the House of Commons, to have the ability to advise the Governor General on issues relating to the foundations of responsible government, and certainly the curtailment of the power of the Prime Minister to advise on prorogation against the wishes of the House of Commons would fall within the power of the Speaker of the House of Commons to advise the Governor General. It is not only the Prime Minister who has the power to advise the Governor General. What is not really known is that it is also the Speaker of the House of Commons, speaking on behalf of the House of Commons, who has the right to advise the Governor General.
In this fashion, conventional rules will be the bulwark against the ability of the Prime Minister to prorogue to avoid confidence votes or to shut down the ability of Parliament and its committees to hold the government to account. There are numerous examples of binding conventional rules that limit the Prime Minister and the government from performing certain functions, even though it is legally and constitutionally permitted to do so. Perhaps the most famous example of this is the ability of the federal government to seek the disallowance of provincial legislation. It has never been exercised—or at least once, in the early days of Parliament. The conventional rules prevent any possibility of that ability to exercise it.
It should also be kept in mind that the only thing that stopped Prime Minister Pierre Trudeau from repatriating the Constitution without substantial provincial consent was the power of conventional rules.
Responsible government demands that those who have power act responsibly in the interests of Canada. They should not be in it for themselves.
Thank you.
