Thank you very much, Mr. Chair.
Ladies and gentlemen, thank you for inviting me to appear today to discuss a matter of great importance, as we know: prorogation. I was asked to address the issue from a relatively theoretical perspective. As I understand it, there is no bill under consideration at this time. Consequently, we will essentially be looking at the parameters of prorogation and trying to identify its specific characteristics. We also want to look into the future and try to see what limits could be placed on the Crown's power to prorogue Parliament. Or, we may want to see—again, looking to the future, how prorogation might—or might not—be used in future.
First of all, with your permission, I would like to make some preliminary comments that are related, to a greater or lesser extent, to the theme of prorogation. In many cases, I will not be telling you anything that you do not already know. Still, it is important to make a couple of points when examining the issue of prorogation.
First of all, parliaments, including the current one, basically have three functions. The fist two are well-known; the third, which I would like to address, is overlooked more often than not.
Of course, there is the major function of passing legislation, which is central to the legislative process.
The second one is monitoring the government, its decisions, its actions and, of course, its spending, etc.
The third major function which, as I said, is overshadowed more often than the other two, is Parliament's role in legitimizing the government.
In fact, it is Parliament which gives the government its legitimacy. Indeed, that role is central to the principle of responsible government. The principle of responsible government, or ministerial responsibility, means that, in order to retain its political legitimacy, the government must constantly enjoy the support of a majority of elected members of Parliament. This suggests that there is, in fact, a direct connection between parliamentary activity and a government's legitimacy.
In my opinion, it goes much further than just the principle of ministerial responsibility. Ministerial responsibility—when it applies—is brutal and stringent in its application. If the government loses the confidence of the elected members and, in most cases, when the issue is an important one or one where the House of Commons' confidence in the government is at stake, the government must offer its resignation to the Governor General. Those are the most obvious cases where the principle of ministerial responsibility applies—which, once again, is connected to the government's legitimization by Parliament.
I said that it goes further than that. Indeed, the weaker the Parliament—and I did not say “inactive”, nor did I talk about dissolution or the triggering of a general election, because that is not necessary—the less it is able to fulfill its functions or responsibilities. The less Parliament is valued, the less likely it is that Canadians will have a positive view of Parliament and, normally, the less political legitimacy the government can claim. In other words, there is a direct connection between Parliament's legitimacy and Parliament's effectiveness, and the legitimacy a government can claim.
Consequently, a government should normally be concerned about the health of Parliament. It should, at the very least, be respectful of parliamentary activity, because its own political legitimacy to govern is at stake.
The second major observation is that the separation of powers here in Canada is flexible. As you know, in our parliamentary system, which takes its inspiration from the Westminster model, government members—at least, the vast majority of its members—are also elected by the people, and therefore sit in Parliament where they are accountable for their decisions and their actions.
So, in Canada, we have a flexible separation of powers, unlike the system in other countries, particularly the United States, where the separation of powers is a little more rigid. In this country, the parliamentary system is characterized by the coexistence of powers, as some say. Others even talk about combined powers—in other words, a kind of cooperation that must exist between the executive and the legislative branches in order for Parliament to function.
To ensure that cooperation—or at the very least, the harmonious coexistence of the legislative and executive branches—there are a number of mechanisms—what are known as checks and balances. In other words, Parliament has a number of ways of either punishing the government, or limiting its ambitions—or, at the very least, imposing its will on the government. The reverse is also true: the government has a number of ways of punishing Parliament, making it more docile, balancing its influence, calling on it to show wisdom or simply imposing its will on Parliament.
In the first category, of course, there are mechanisms which Parliament can access to limit the executive power. There is the question period—as you know—parliamentary committees, and the process for passing legislation, which necessarily leads to debate, discussion, amendments and votes. There is also the process for approving government spending, as well as the principle of ministerial responsibility. That is Parliament's most effective recourse when it comes to punishing a government. Indeed, ministerial responsibility allows it to withdraw its confidence in the government and, on major, important questions, to force the government to resign.
On the other side, as I said, the government also has ways whereby it can impose its will on Parliament. The two most well-known and, probably, most effective mechanisms are dissolution and prorogation. By extension, I could add a third mechanism, which is summoning Parliament. Therefore, the government has two important tools at his disposal to discipline Parliament or, at least, impose its will on Parliament—once again, they are prorogation and dissolution. By extension, we could add a third mechanism, which is summoning Parliament.
That brings me to a third point. We are part of a system where the Prime Minister has boundless power. Of course, that can be said for the Executive as a whole, but it is obviously the case for the Prime Minister. The latter has a huge amount of power. I do not need to describe it. I think that you are well aware of the extent of that power. And that prime ministerial power is necessarily seen by some Canadians as a source of imbalance in the power relationship between Parliament and the Executive. As a country, if we were to move in any particular direction, in my opinion, it would be to further limit the power of the Executive, as opposed to further limiting the power of Parliament. In other words, if there was a need to rebalance the forces within our system, that rebalancing should not involve greater government control over parliamentary activities; on the contrary, it should mean a strengthening of Parliament's powers in relation to the Executive.
My fourth observation is that the power to prorogue Parliament is a prerogative of the Crown.
Because it is a prerogative, that power should in theory—and I emphasize the words “in theory”—be subject to certain limits. However, I will qualify that quite considerably, as you will see. This power can be limited by legislation, unless it can be demonstrated that the prorogation power enjoys formal constitutional protections. What are those prerogatives? Basically, they are powers that the Crown is able to exercise simply because they have not been removed by Parliament.They are therefore powers derived from that period where all the powers of the state were vested in the sovereign. Obviously, we are going back to our ancestor, the United Kingdom. Slowly, the sovereign's powers were removed in favour of Parliament. By its very nature, a prerogative can be limited or circumscribed by legislation. That prerogative only exists insofar as Parliament has not appropriated that power. It only exists insofar as Parliament has agreed that it should remain with the Crown, unless—and this is an important distinction—it is not possible to demonstrate that the prerogative—in this case, the power to prorogue Parliament—enjoys constitutional protection.
So, the question is whether, in the Canadian context, the power to prorogue Parliament enjoys such constitutional protection. If the answer is yes, that means that no legislation can limit or abolish that power. At the very least, it cannot be limited in such a way as to alter it. If the answer is no—in other words, if the prorogation power does not enjoy constitutional protection of any kind—the normal rule is that legislation can limit the Crown's prerogative to prorogue Parliament.
One initial observation can be made. Unlike the power to dissolve Parliament, nowhere in the Canadian Constitution or the Constitution Act, 1867, for example, is there any mention of explicit constitutional protection for the prorogation power. The reason I say “unlike the power to dissolve Parliament”, is that this specific power is laid out in the Constitution Act, 1867. The legislation refers to it. Of course, that is connected to the maximum term of a Parliament, which is five years, as you know. That has not only been the case since the Charter was adopted in 1982. The provision providing for a maximum term of five years for Parliament has been in place since 1867. The power to dissolve the House of Commons is connected to the maximum term of an election mandate—the term for Parliament—and means that the Governor General can dissolve the House of Commons before the five-year term is up, if the circumstances warrant, obviously. However, there is absolutely no explicit protection for the power to prorogue Parliament.
At the same time, the Constitution does provide that the House of Commons must meet at least once a year. There must be one session every year, at least. Like the other one, that provision does not only flow from the Constitution Act, 1982; it was also part of the Constitution Act, 1867. That is all there is that can in any way be connected to the power to prorogue Parliament; however, in this particular case, the connection is a very indirect one.
Does that mean that the prorogation power enjoys no constitutional protection? That is difficult to say, because there is no explicit constitutional protection; at the same time, it could be argued that it enjoys tacit constitutional protection.
In my opinion, prorogation can be seen as a component of the separation of powers in government. The separation of powers is obviously a pillar of the Canadian state, and there is every reason to believe that the Supreme Court of Canada would recognize that even the principle of the separation of powers is based on the Constitution. In other words, the separation of powers enjoys tacit constitutional protection, and because the power to prorogue is a critical component of the separation of powers, it, too, enjoys that same constitutional protection.
None of this is absolutely clear; we are dealing with assumptions. But this is one that I, personally, subscribe to. Therefore, I support the theory that the separation of powers enjoys implicit constitutional protection and that, by that very fact, the power to prorogue Parliament, which is connected to the separation of powers, enjoys that same protection.
What is the basis for that protection? It may be derived from the preamble of the Constitution Act, 1867, which originally—in 1867—gave Canadians a Constitution that rested on the same principles as that of Great Britain. Clearly, under the preamble, there is protection for the separation of powers—this was a recognized principle in the United Kingdom in 1867—and, by extension, for the power to prorogue. As I said, that power is an essential component of the separation of powers.
Were it not derived from the preamble, the Supreme Court of Canada could find that the separation of powers is an inherent constitutional principle and, by that very fact, that the power to prorogue, which is one of its essential conditions, also enjoys inherent constitutional protection.
These inherent constitutional principles can be found, in particular, in the Reference re Secession of Quebec, a ruling handed down by the Supreme Court of Canada in 1998, as you know. Of course, the Court did not identify the separation of powers as an inherent principle in that ruling, but the logic followed by the Supreme Court in the Reference re Secession of Quebec, which relies on the identification of inherent constitutional principles, would, in my view, support the theory that the separation of powers is also an inherent constitutional principle—even though, as I just said, the Supreme Court did not recognize it as such in the above-mentioned reference. However, no one believes that the principles identified by the Court in that reference are exhaustive. Therefore, there could be others, including the separation of powers. If the separation of powers does enjoy such implicit constitutional protection, either under the preamble of the Constitution Act, 1867, or as an inherent constitutional principle, the odds are that the power to prorogue, which is an essential component of the separation of powers, enjoys exactly the same protection.
That leads me to the next point. If it is true that the prorogation power enjoys constitutional protection under the theory I have just put forward—either through the preamble of the Constitution Act, 1867 or as an inherent constitutional principle—then how can this constitutional principle be amended or revoked? If this principle truly enjoys the constitutional protection I have just described, the odds are that it can only be amended or revoked in accordance with subsection 41(a) of the Constitution Act, 1982, which provides for unanimous consent with respect to anything dealing with “the office of the Queen, the Governor General and the Lieutenant Governor”.
It is important to remember, however, that were we to conclude that, contrary to my claim, the prorogation power does not enjoy implicit or tacit constitutional protection, subsection 41(a) would probably not apply, as it deals with amendments to the Constitution of Canada. In that case, a simple Act of Parliament could limit, and even do away with the power to prorogue—the Crown prerogative that I described previously. However, if it is given constitutional status, as I believe it has, any amendment should be subject to the rule of unanimous consent laid out in subsection 41(a).
So, as I see it, that is pretty much the constitutional setting, so to speak, as regards the power to prorogue Parliament. In addition to that constitutional setting, there are, of course, a whole series of questions which are political in nature. For example, could too frequent use of the power to prorogue Parliament have the effect of weakening Parliament and destabilizing parliamentary activity? And does it not ultimately place too much power in the hands of the Executive, compared to the Legislative Branch? I honestly believe it does. I think that repeated, regular or even annual use of prorogation in our political system—specific to Canada—would run the risk of making Parliament extremely weak in relation to the government. That is even more so the case because, as I said earlier, our system is one where the powers of the Prime Minister and the Executive are already immeasurable, and probably excessive compared to those of Parliament.
If we were to do something in this area, in my opinion, any actions take us in the opposite direction. In other words, we should not be increasing the government's power, as I mentioned earlier, by allowing it to prorogue the House of Commons on a regular, or even, annual basis. It should be the opposite. The powers of Parliament should be strengthened in relation to those of the Executive and the government.
