Procedure and House Affairs Committee on April 29th, 2010

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Yes, but then using that logic, the fixed election day legislation clearly stipulated that it in no way affected the unfettered authority of the Governor General to dissolve Parliament and call an election. And the courts, in a lawsuit in the courts, ruled that the Governor General's authority was not unfettered.

So if you had legislation that made that same point again, then would it not survive a...?

[Prof. Peter Russell]

Again, the worry with your example and the Federal Court's treatment of the case--and I wrote the affidavit, for those who thought the request for dissolution on September 7, 2008, violated a constitutional convention--

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Really?

[Prof. Peter Russell]

--based on the debate in not this committee but the one that dealt with Bill C-16....

All parties were in agreement that snap elections would no longer be appropriate. The Prime Minister made a fantastically good speech in Vancouver saying that the fundamental purpose was indeed to have an even playing field among the parties, whereas in a snap election, the government has the advantage of finding the opposition in disarray, or down in the polls, in calling an election even though it hasn't been defeated in the House. But when the Governor General was confronted with the request, there was no indication from the opposition, certainly from the leader of the opposition, that he was willing to form a government if Mr. Harper's request was refused. There was no serious protest from the opposition parties.

I watched this very closely, as someone who has to advise the Governor General; the Governor General really had no real option. The lesson of that is that the law isn't worth much if the fundamental political reason for it, which was to avoid opportunistic snap elections, is just discarded, not just by government leaders but by opposition leaders within almost months of the law being put to the test.

I thought it was a devastating walking away of a very sound political agreement--not just by the government; let me emphasize that.

So I'm much more comfortable with legislation that has majority or even all-party support. More than legislation, just make an agreement as the heads of state did in 1926 in London--surely you're up to that--and say, under what conditions can prorogation be advised, and under what conditions does it require something more than just the Prime Minister requesting it?

I think that should be a political agreement rather than legislation. I feel strongly about that. That's my number one choice.

[The Chair, Conservative, Joe Preston]

Thank you, Madam Jennings.

Mr. Reid.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Thank you, Professor Russell.

Before I get to questions, I want to start by editorializing for a moment.

I agree with you that the courts are reluctant, with good reason, and we should be reluctant as well to give them political questions. Of course, the American Supreme Court actually has a doctrine regarding political questions, which they put in place following what was an ineffective attempt to force them to adjudicate the resolution to Dorr's Rebellion in the 1840s. I think their reasoning is wise.

I'm not sure I do agree with you on the example of the Balfour Declaration. I don't doubt that it was an agreement that was not legislated, but it only needed to have power for five years until the Statute of Westminster had gone through, unless I'm mistaken.

[Prof. Peter Russell]

No, it's much, much more. The Statute of Westminster settled one, but only one, issue. It didn't even settle that fully. It settled that where United Kingdom laws and the laws of any of the now independent, autonomous nation-states of the Commonwealth were in collision--let's say New Zealand had a law on trust that was different from the U.K. law on trust--the New Zealand law, or any of the Commonwealth domestic laws, would prevail, with one exception, and that was Canada. Because our constitution remained an act of the U.K. Parliament until 1982, that particular British law remained sovereign, superior in force to any Canadian law. It was to settle that issue that there were two or three meetings of prime ministers leading to it, which Mr. Bennett was part of in the early days of his administration, and that was the basic issue.

In fact, the key problem with the Statute of Westminster was finding a solution to the Canadian problem. But the big issue was on foreign affairs particularly; the Balfour Declaration is particularly pertinent for foreign affairs. Take a declaration of war. In 1914, the United Kingdom declared war and we were at war like that. In 1939, because of the Balfour Declaration, the United Kingdom declared war and our Prime Minister said, “Well, we'll have a discussion, and I think we'll probably be there.” But we weren't automatically at war.

There's nothing in the Statute of Westminster about that. Declarations of wars aren't acts. The Balfour Declaration is fundamental to the equality of the member nation states of the Commonwealth.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

I shouldn't have asked you that question. That was very informative, but it used up three minutes.

[Some hon. members]

Oh, oh!

[Prof. Peter Russell]

I just wanted to make sure you saw its importance. It has served us well, too.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Yes, but that took me off the track I wanted to go down, which actually comes from your book, Two Cheers for Minority Government. This came out, perhaps unfortunately, shortly before the events that have brought you here today, but you do have some material in there that's of interest.

In particular, you relied heavily on Jonathan Boston's book, where he's dealing with New Zealand and trying to advise New Zealanders who I think have accepted that they're into a realm of more or less perpetual minority governments. As to what goes on in non-Westminster systems in Europe with the idea of drawing lessons that can then be applied to the New Zealand situation, I think our discussions tend to revolve in this committee around the more recent prorogation, where this is really not an issue. It's the former prorogation and the attempt to replace the government with another government that is at issue there.

At any rate, just in passing, I'd like to get information on something. You cite Boston's citation of Germany, Spain, and Sweden as permitting what are called “constructive non-confidence votes”, and I gather only constructive non-confidence votes--that is, votes in which not only do we say we have no confidence in the government but we would have confidence in a government led by so-and-so.

[Prof. Peter Russell]

That's right.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

That seems to me to be something where, if we were to adopt something like this, one has actually moved from the Westminster model, in which a non-confidence vote leads to an election.

Am I wrong? Is that not effectively a revolution in the conventions that govern us?

[Prof. Peter Russell]

It would certainly be a change, Mr. Reid.

We can change governments without an election--at least, most constitutional scholars have thought so--if, after an election, the incumbent government meets the House and wants to carry on but is quickly defeated and there's a clear alternative. One can argue about how much time must have elapsed since the election--or how little time has elapsed--but if it's still only a few weeks or a few months, most constitutional scholars think if there's an alternative government, and the Governor General, or the Lieutenant-Governor in the case of a province, thinks it does have a pretty clear chance of having the confidence, you can change governments.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Reid--

[Prof. Peter Russell]

So that's there now.

What you do with a constructive vote of non-confidence is that you would all have to agree on it. And in doing it, you'd have to recognize that this is quite a big change. A constructive vote of non-confidence--again, a vote saying “We don't have any confidence in this government, but we do have confidence, and a majority of us would support, this party, with this leader, if they formed the government”--could come any time during a parliamentary session, as has happened in Germany, not just a few weeks or months after the election.

So that would certainly be a different way of operating our parliamentary system. I happen to think it would be healthy change, because it would make all members of Parliament very careful about confidence votes and save the country from constantly being on the brink of election. I think that being constantly on the brink of the election is not good for the steady legislative work of Parliament or the steady kind of leadership you want in government.

I hope this is something you will be thinking about.

I'm glad you asked the question.

[The Chair, Conservative, Joe Preston]

I am too. Thank you.

Monsieur Guimond.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Thank you, Mr. Chair.

I should have brought my stopwatch to see how much...

[Prof. Peter Russell]

Okay. I've got the right channel now.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

I hope this technical difficulty will not affect my time.

Professor Russell, thank you for appearing before us. Unlike Mr. Reid, I cannot pretend to have read your book from beginning to end. My parliamentary activities and my weekend commitments require so much work that I have no time to read it.

But I took the time to listen to you and to read your notes. By the way, your document is very well written, both in English and in French. In both languages, in the second paragraph, you bring up the idea of what is “normal“ twice: “Normally, prorogation is an uncontentious event in the life of a Parliament. Its normal use is to bring a session to an end...”

Later in the text, you say that there has really been controversy seeing that Prime Minister Harper used it twice, two Decembers in a row. There is no need for me to remind you of the two controversial incidents since everyone here is in the know.

Actually, you have some doubts about the political use of prorogation. Could you comment on the issue quickly? Do not give me a four-minute answer because I only have five minutes and I have other questions.

[Prof. Peter Russell]

I'm sorry, but what was your question?

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

We must define prorogation so that it does not become a political tool. Is that what you are recommending?

[Prof. Peter Russell]

I'm recommending that this committee and your House, of which you are a part, reach an agreement on how you're to be closed down. That's a crucial part of the life of any body, and I think you have to decide.

The idea that you can be closed down anytime, for any length of time, for any reason, by the Prime Minister, even a Prime Minister who doesn't have a majority in your House, strikes me as making you very vulnerable, if I may say so, to being shut down in all kinds of situations. And many of the people of Canada are very disturbed by it; they're not disturbed when prorogation is used normally.

You have, in the Layton motion, one way of doing it. I must underline that none of the other Westminster parliamentary countries have crafted a rule for this. I've checked with New Zealand, Australia, and the United Kingdom. They haven't had this great public controversy about prorogation.

So you are in uncharted territory, sir, and I think you have to discuss what kind of rule would make some sense to you all, not just to the three parties who passed the Layton motion.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

You are aware that the Standing Committee on Procedure and House Affairs has the power to amend the Standing Orders of the House of Commons. Is that so?

[Prof. Peter Russell]

Yes.