Procedure and House Affairs Committee on May 4th, 2010

[Dr. Ned Franks]

Well, yes. Again, I can't see prorogation being a major election issue, but I do think that when people vote...you know, it's only putting a mark on a piece of paper, but it's one of the most complex acts that we do in our lives, because it's the summation of everything we have thought about the government, the opposition, everything else, what we feel about ourselves, what we feel about the country, what we feel about the future, all put into one little X.

The closest we've ever come, I think, to an election on one issue was the one I referred to with the Mulroney government, the election on free trade, but even that was a more complex thing than only free trade. So I worry about getting an election on prorogation, because if I were going to list the top 20 issues that concern Canadians, prorogation would not be among them.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Reid.

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

Thank you very much.

[The Chair, Conservative, Joe Preston]

Monsieur Paquette, are you up again?

[Pierre Paquette, Bloc, Joliette, QC]

First of all, thank you for your presentation. I am very anxious to read your actual brief.

Since you began your presentation by saying that you disagree in some respects with Professor Pelletier, could you tell us what you think of his theory that the right to prorogue Parliament, even for the Prime Minister, enjoys tacit constitutional protection and that it is a component of the separation of powers between the executive and the House of Commons?

I saw that you were here earlier, so you heard his comments regarding the mechanisms available to the House of Commons and to the Executive, or the Prime Minister. He identified two in particular: dissolution and prorogation, which are untouchable from a constitutional standpoint. Ultimately, the only way to place limits on the prorogation power—this is his conclusion—would be through a full constitutional amendment. What are your views on that?

[Dr. Ned Franks]

You are right. I do not agree with Professor Pelletier.

The reason I don't agree is that the British Parliament has legislated on prorogation, and my reading of that legislation--I've read the text of the three acts--is that it says nothing about the powers of the crown. It simply says prorogation shall not occur.

Now, what we could do in Canada is not legislate on prorogation but on the Prime Minister's right to advise the crown, his powers to advise the crown. I suggest in my paper that that's a safe way to go, but my reading of British precedent is that the British Parliament has never been in any doubt about its power to regulate the use of prorogation through legislation. It has never had any doubt. It had that power in 1867, it had it in 1918, and doubtless it believes it still has it.

[Pierre Paquette, Bloc, Joliette, QC]

Were these laws challenged in the British Supreme Court?

[Dr. Ned Franks]

They have never been challenged in England. There is no doubt in my mind, however, that they would be challenged here in Canada.

[Pierre Paquette, Bloc, Joliette, QC]

Yes, it certainly looks that way.

I have one last question. Professor Mendes also suggested that the Speaker of the House of Commons has the tacit constitutional power to advise the Governor General and that he could therefore convey the will of Parliament to the Governor General, asking that the request to prorogue not be granted.

Do you believe that power really exists?

[Dr. Ned Franks]

That is very interesting.

I would say no. The Governor General can talk to anybody he or she wants to talk to. Governor General Michaëlle Jean, Governor General Clarkson before her, and presumably previous governors general have consulted people.

There's the recognized legal representative or the legal adviser to the Governor General, Professor Peter Hogg, but there are many others who are consulted by governors general. Certainly, the Governor General could consult the Speaker of the House. He is one of the eminent recognized positions of authority in our Constitution.

But for formal advice, which is advice in a constitutional sense and a legal sense, the only person who can advise the Governor General is the Prime Minister. It is a very powerful convention. It's a convention, but it's one that is the absolute base of our system of responsible government, government in Parliament, and the crown being part of Parliament, as well as a separate body, which is the personification of the crown in the Governor General.

Let me see if I can explain it a little differently. I have no doubt that when issues like prorogation or dissolution come up, the governors general widely consult. For example, if you read Adrienne Clarkson's memoirs, she makes it very clear that when Prime Minister Martin was returned with a minority in 2004 or 2005, it was almost evenly balanced. I believe it's the Parliament in which Peter Milliken as Speaker cast more deciding votes than had ever been cast before. That's in total and not just for any Speaker.

[Pierre Paquette, Bloc, Joliette, QC]

I believe it will make five years this week. Time certainly flies, does it not?

[Dr. Ned Franks]

C'est formidable.

In her memoirs, she says that she consulted widely and carefully on the question. If Mr. Martin were defeated soon after the House met and he requested dissolution, and there was an alternative government in waiting, should she grant him the dissolution or refuse his advice? In the memoirs, she concluded that within four months after Parliament met, she would refuse the request for dissolution. After that, she would accept it.

That's hypothetical, and another Governor General might think the same thing, but it gives you a very clear example of a Governor General facing a question wherein she might have to reject the advice of a Prime Minister. She consulted widely. In an informal sense, she received advice or opinions from the people she consulted with, but it wasn't advice in a constitutional sense.

We have to be very careful about the fact that the Speaker of the House of Commons would be giving views and opinions and not constitutional advice.

[Pierre Paquette, Bloc, Joliette, QC]

Thank you, Mr. Franks.

[The Chair, Conservative, Joe Preston]

Mr. Christopherson.

[David Christopherson, NDP, Hamilton Centre, ON]

Thank you very much, Chair.

Professor, it's good to see you again.

[Dr. Ned Franks]

It's nice to see you, sir.

[David Christopherson, NDP, Hamilton Centre, ON]

It's good to be working together again.

I'm going to take advantage of you being here to ask one quick question, because we may be heading here. If a motion of contempt is passed, can it be deemed to be confidence? Some are asking how you can find a government or ministers of a government in contempt and still be able to say that you have confidence in the government. Some are suggesting you could put in the resolution that this is clearly not a motion of confidence. In other words, if there were a desire to find contempt but not trigger an election, could that be done, or does one inadvertently lead you to two, whether you like it or not?

[Dr. Ned Franks]

No. I have not examined the historical precedence on this. I suspect if we looked very carefully we would find many times over history that ministers of the crown were found in contempt or the equivalent--impeachment used to be the most common thing there--and it did not force the government to resign. Whether that's true for a Prime Minister I don't know, but a Prime Minister, as we understand it, is a relatively recent innovation--less than 200 years old.

The answer there is very curious. Procedural motions are not, in their nature, confidence. I'll give you an example of something that I consider should be a motion of procedure that we've never had in Canada and that I'd like to see.

I have found over the years that the Budget Implementation Act gets bigger and bigger and covers an awful lot of things not included in the budget sometimes. The Senate recommended that the Budget Implementation Act be divided into several and go to the different committees for examination. I certainly think that should happen. That would be a procedural motion, and I don't think it would be a vote of confidence.

Just as an aside, one of the reasons I get excited about that is because I'm an avid whitewater canoeist, and the one last year, in my view, doesn't protect whitewater rivers adequately enough.

[David Christopherson, NDP, Hamilton Centre, ON]

Thank you.

I'm going to jump straight to a question that I hope you can launch from, in terms of the various components. All I want to do is put in front of you the motion that the House carried, which was:

the Prime Minister shall not advise the Governor General to prorogue any session of any Parliament for longer than seven calendar days without a specific resolution of this House of Commons to support such a prorogation.

Professor, can I include your thoughts on that as a Standing Order change or resolution, but also as legislation--whether one or the other or a complement? I know you're not keen on the Standing Order part, so I'm ready for that.

[Dr. Ned Franks]

One of the wonderful virtues of the parliamentary system is that the Constitution is what happens. Our Constitution is a little bit written; the British Constitution is a whole series of cases and events with many conflicting things.

I tried to give examples of prorogations that were very short and happened after a session that only lasted a few days and prorogations that were very long and happened after long sessions. Every one of those was justifiable.

I had a feeling that motion covered too little and didn't really cover it in a way I was comfortable with. You wanted to get at the Prime Minister advising prorogation in order to escape the scrutiny of Parliament. Every time I go back to it I say that if it is going to be entrenched in Standing Orders or legislation, it has to be that prorogation be supported by a motion in the House of Commons.

[David Christopherson, NDP, Hamilton Centre, ON]

Do you believe that is a reasonable restriction or a constitutionally allowable restriction on the powers of the PM?

[Dr. Ned Franks]

Oh, gosh, I haver back and forth on that. I could live with it. As you can appreciate, the only time it would be significant would be in a minority Parliament. Of course, those are the only times when prorogation becomes a dirty word.

I always wind up in this by saying that the more we leave to the good sense of the electorate, and the more that politicians of all stripes are trembling in their boots at the thought of how what they do affects the electorate, the better we are as a country. That's hyperbole; I hope you'll forgive me.

I'm uneasy about either legislation or Standing Orders. I think it's like a split decision in the House. I have to vote with the noes on this. In other words, don't change it; keep the discussion going. I think I'd wind up arguing we should not alter the present system, but we should make sure that our processes of Parliament--and this is a very good one--educate the media, the public, parliamentarians as to the issues and implications of prorogation so that we can understand it better.

You will recall that I gave the example of the 2003 prorogation as a non-issue. That has been so misunderstood in the press that I find it quite depressing that this is brought out time and time again as an example of an abusive prorogation. If it was an abuse, it was an abuse of the adjournment, and the adjournment was on a motion of the House because it wasn't in accordance with the normal Standing Orders.

[David Christopherson, NDP, Hamilton Centre, ON]

Your lack of clarity is affecting my sense of where you're at.

[Dr. Ned Franks]

Join the crowd, sir.

[The Chair, Conservative, Joe Preston]

It is going to be a very short one, a quick question, if you want it, or we can finish where we are.

Mr. Lauzon and Mr. Reid each had one quick question.

David, you might have one, too.

Okay, let's go fast.

Guy.