Evidence of meeting #12 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 prorogation.
A recording is available from Parliament.
12:25 p.m.
Conservative
The Chair Conservative Joe Preston
If I had known we were being looked at from afar, I would have worn a better suit.
12:25 p.m.
Voices
Oh, oh!
12:25 p.m.
Conservative
The Chair Conservative Joe Preston
Madam Jennings, it is up to you to start off in this round. Thanks.
12:25 p.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Thank you, Chair.
Thank you, Mr. Franks, for your presentation. I appreciate the clarity with which you presented your views, especially the view that you do not agree with those who claim or argue that Parliament cannot in any way limit the discretionary power of the Prime Minister to request prorogation on the basis that it would be unconstitutional, according to those who argue that we can't do it, giving the examples of Westminster, which in fact has legislated.
Given that you believe Parliament can limit the discretionary power of the Prime Minister to advise the Governor General to use her reserve powers and prorogue Parliament, do you believe it needs to be done by legislation, or could it be done by Standing Orders of the House of Commons, or by a combination of both?
12:25 p.m.
Professor Emeritus, Department of Political Studies, Queen's University, As an Individual
In normal times, I would say Standing Orders would suffice because Standing Orders are the rules of Parliament and should be respected as such. They aren't always. That's why I suggested that if something is done, it should be done through legislation.
To carry it through, my belief is if you use legislation, you should not tinker. The examples I gave of long sessions, short sessions, long prorogations, short prorogations, I think indicate that we can't cover all circumstances in legislation. We have to leave something to somebody's good judgment. That's why I say, one, legislation, and, two, a majority of the House to support a prorogation.
I'm not sure that's the right way to go, but I don't think Standing Orders are the right way to go.
12:25 p.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Okay. Thank you.
We had Professor Peter Russell here. One of the points he made is that a lot of what happens in our constitutional parliamentary democracy is by constitutional conventions that are not necessarily written. His view was that the most ideal way in which to achieve a situation whereby Parliament would be able to express itself on the issue of prorogation at any time it might arise would be for a constitutional convention achieved through agreement of all parties.
12:25 p.m.
Professor Emeritus, Department of Political Studies, Queen's University, As an Individual
That would not be a convention, in my view.
12:25 p.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
I think I expressed correctly what he stated.
12:25 p.m.
Professor Emeritus, Department of Political Studies, Queen's University, As an Individual
Yes, but you can't assert a convention by saying “this is a convention”. What you're saying is “we think this ought to be a convention”. It doesn't mean that it is.
I will quote what a British Member of Parliament said, which I think applies to this sort of thing: “The Constitution is what happens.”
12:25 p.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Okay.
So although you do not recommend going by Standing Orders, you do acquiesce that it is a possibility, that it is one mechanism. Should Parliament, the House of Commons, decide to go via the route of Standing Orders, and given that Standing Orders were developed and adopted by majority vote, and that in future the sitting prime ministers adhere to those Standing Orders, do you believe that would, at some point, become part of a constitutional convention?
12:30 p.m.
Professor Emeritus, Department of Political Studies, Queen's University, As an Individual
Yes, but I have given examples—I didn't read the full paper—of sessions that lasted less than a day. I've given examples of prorogation that lasted a year. If I wanted to give examples of lengths of sessions, I could go up to over three years, or again, less than a day.
My mind has a seizure at the thought of trying to write a Standing Order that would permit a prorogation after less than a day's session or prorogation lasting almost a year, or sessions that are less than a day or sessions that are three years long.
At some point, we have to accept that we can't specify all the events and reasons that are going to affect these things.
12:30 p.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Could it not then be a Standing Order that would simply state, in general terms, in those cases when the Prime Minister has not consulted the House of Commons prior to advising the Governor General to prorogue, the first order of business, when the House comes back, will be a discussion or a debate on that issue?
12:30 p.m.
Professor Emeritus, Department of Political Studies, Queen's University, As an Individual
Absolutely, and there are options like that. What you're doing is not restricting the right or the power, or whatever you want to call it, to advise prorogation; we are insisting that the House of Commons have a hand in making the Prime Minister accept responsibility for the consequences of his or her actions. That, I don't think, is very contentious. Perhaps it's a good way to go. But you must appreciate that you're not doing anything on prorogation itself. You're simply doing something on the order of House of Commons business.
12:30 p.m.
Conservative
12:30 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
Thank you.
Professor Franks, I'd like to come back to section 18 of the British North America Act in a moment. But first, with regard to conventions and how one could establish conventions, I'm going to posit two possible outcomes that could have been exercised the first week the House was back in session at the beginning of 2009 or 2010.
Within a week of coming back, a motion of non-confidence is introduced. It says that whereas it was illegitimate to prorogue Parliament in order to do whatever it was the Prime Minister was trying to achieve, the House has lost confidence in the government. On the basis of that, if the majority votes in favour of the motion, we have an election. The voters bring back a government that is not a Conservative government--maybe it is the Liberals, or a minority or a majority, whatever. That would suggest to me that after that experience, we would say a convention exists.
In contrast, if we have an election on that basis and a Conservative government is returned, it would suggest to me that, more or less, a convention doesn't exist on this subject.
In terms of determining when a convention comes into existence, is my understanding of those scenarios a reasonable one in your mind?
12:30 p.m.
Professor Emeritus, Department of Political Studies, Queen's University, As an Individual
There's an expression, if I can remember it: one swallow does not make a summer. I don't think one motion in Parliament establishes a convention.
12:30 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
It's through an election, though, and voters have gone out to say that they think....
12:30 p.m.
Professor Emeritus, Department of Political Studies, Queen's University, As an Individual
No, I don't think the voters establish conventions either. I think they're much more complex than that.
The point of these issues is that they can be argued in many different directions. Conventions, by and large, are loose. I mean, there are some pretty tight ones. For instance, if a government loses a vote that is declared a vote of confidence--that's a convention--then the government must either resign or ask for an election and dissolution of the House. That, I think, is about as ironclad as you can get, and it's very simple. But when people vote, I do not believe they vote on prorogation; they vote on the whole record of the government.
I mean, we're not, as they used to say in Russia, the working class united in objecting to the government's improper use of prorogation. Our working class isn't united. And I still suspect that there's a pretty high proportion of Canadians, and probably even politicians, who don't appreciate what prorogation technically is.
12:35 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
Actually, to be honest, I thought you were going to say that you thought my hypothesis was valid.
Actually, it gets at the essence of what I was trying to get at anyway, which is that conventions can't just be invented out of thin air. It's really hard to establish them. It doesn't happen because some person in the political system would like it to happen`it happens because there is more widespread agreement.
May 4th, 2010 / 12:35 p.m.
Professor Emeritus, Department of Political Studies, Queen's University, As an Individual
Some conventions can be enforced in the courts, and I believe that the confidence convention could be. But many conventions are simply what one might call a condensation of expert opinion on what actually happened in the past, and that is open to contestation. That is why I emphasize that, in my view, yes, we have the power in the Canadian Parliament to legislate on prorogation and to define its terms, but other people argue the other side.
12:35 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
I have one last question. I have less than a minute left to ask and get your answers.
Section 18 of the BNA Act, 1867, which you cited, speaks to the privileges, immunities, and powers held by the Parliament of Canada, the Senate and the House of Commons of Canada, and links them to the powers that existed in the British Parliament circa 1867, at the time of its passage. You dealt with how that relates to the passing of laws, acts of Parliament, that would govern prorogation. The suggestion came up earlier with our first witness that you could perhaps use Standing Orders to deny the government the right to introduce certain kinds of legislation if, in the minds of Parliament, it had improperly used prorogation prior to the return of the House.
It seems to me that trying to limit the government's ability to introduce legislation in the House would go beyond the powers that had existed in the British Parliament circa 1867 by means of a Standing Order. They could not have done that then, and I think, therefore, you couldn't do that now. But I'd be interested in seeing if you agree with that assessment.
12:35 p.m.
Professor Emeritus, Department of Political Studies, Queen's University, As an Individual
I think that is a more dubious approach than legislation. I can look at it and see so many ramifications that I have worries. It's sort of the parliamentary equivalent of a school teacher saying, “Go stand in the corner and don't say anything for the next two hours.” I don't think that's the way that our Parliament wants to relate to government; at least I hope it isn't.
12:35 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
I think in fact you'd make the country partly ungovernable, and hence you'd be better off simply voting non-confidence and having an election to see if the voters agree with you.