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.
11:55 a.m.
NDP
David Christopherson NDP Hamilton Centre, ON
Yes, I figured that.
I'm not advocating this, but the motion that got us here reads:
That, in the opinion of the House, 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.
Is that within the range of options you think Parliament has, or do you think that has already stepped over the line?
11:55 a.m.
Full Professor, Faculty of Law, University of Ottawa, As an Individual
I did not have time to study this very closely, but a priori I would say it might go too far.
Noon
NDP
David Christopherson NDP Hamilton Centre, ON
Really? You're telling me that's what we can't do, so what do you think we can do?
Noon
Full Professor, Faculty of Law, University of Ottawa, As an Individual
As Mr. Proulx said, there can be consequences when prorogation is used. You can say that if you use prorogation, these are the consequences you will have to assume, but these consequences come after the prorogation. If you want to limit prorogation before it is done, limit the power itself. But no one can be certain.
You said right at the beginning, if I understood you well, that many experts agree this is protected under paragraph 41(a) of the Constitution Act, 1982, “the office of the Queen, the Governor General and the Lieutenant Governor”. I'm still talking about the power to prorogue.
If it is true that many experts agree it's protected under paragraph 41(a), then it means it's provided for in the Constitution. If it's in the Constitution, where is it exactly? If it is in the Constitution, where does that power begin and where does it end? That's the question I raise before this committee.
I personally think it has an implicit constitutional protection. If that is true, how can Parliament limit the Constitution of Canada? That's the main question. If it can do so, to what extent can it do so?
Noon
Conservative
The Chair Conservative Joe Preston
Thank you.
We have used all of our time for this witness. I'm happy to take a couple of one-off questions, but it will cut into the time of our next witness. I'll have to do it from a balanced point of view.
Let's have very quick questions and answers.
Madam Jennings.
Noon
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
If I am not mistaken, in terms of our ability to restrict that power, your opinion is that it cannot be done, although Parliament could decide that there would be specific consequences under certain circumstances. Parliament's law officer told us precisely that. Rather than invoking a standing order stating that the Prime Minister cannot request prorogation without meeting such and such a condition, Parliament could simply say that there would be this or that consequence if the Prime Minister requested prorogation without doing that.
In your mind, would that counter any weakening of Parliament, so that Parliament, as we say in English,
flexes its muscles. It says you can do what you want, but we're warning you that if you do certain things we don't like, here are the consequences.
Noon
Benoît Pelletier
Yes, exactly. I believe certain restrictions could be imposed, such as the ones Mr. Proulx referred to. There could ultimately be consequences from exercising the power to prorogue Parliament. There could also be acceptable limits—once again, provided that they do not alter the nature of the prerogative.
Noon
Benoît Pelletier
We would have to see just how far we can go. I have no specific ideas on that. To be frank, however, it could not, as I see it, have the effect of emasculating the prerogative or removing its discretionary nature.
If I say to you that you have the prerogative of deciding who, in this room, will have the right to leave, I presume that I am giving you some discretion.
The term “prerogative” implies a discretion, in my view. If there is no discretion there is no prerogative. If the prerogative is constitutionally protected, it means that this discretion is constitutionally protected. If it is, then a law from this Parliament could not limit that discretion.
Noon
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
Thank you, Chair.
Thank you, Professor Pelletier, for being here. The discussion has been fascinating, but I now have more questions than answers after an hour of your presentation.
One of the questions--based on some of the conversation suggesting that perhaps there could be consequences to the government--was whether prorogation should be used indiscriminately, if I can use that term.
I go back to what you said at the outset, that there are really three basic roles of government. The primary one is to pass legislation. When you talk about putting limits on the limits of the consequences, if any of the consequences were to inhibit the government's ability to pass legislation, would that overstep the boundaries of the limits you say might be able to be enacted to...?
Noon
Full Professor, Faculty of Law, University of Ottawa, As an Individual
I don't think so. In my view--and I may be mistaken--it's not the government that passes legislation; it's Parliament itself.
Noon
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
But if Parliament were not allowed...? For example, one of the things Mr. Christopherson said that was bandied about this committee was that a consequence of the Prime Minister using prorogation indiscriminately might be that he wouldn't be able to introduce legislation for a certain period of time. Wouldn't that be viewed as inhibiting the ability of the government and Parliament to pass legislation?
Noon
Full Professor, Faculty of Law, University of Ottawa, As an Individual
It's hard to say. I did not study all this at length. I would say that if Parliament itself speaks, it might be feasible to have some limits on the power to introduce bills. This has to be studied, because in the Constitution Act, 1867, there is a provision that says different kinds of bills can only be proposed by the government itself. There could be an argument that this provision protects the right to submit bills. If this is the case, if you limit that right, then you go against the Constitution. That all has to be studied very carefully.
My message today is this. Contrary to many Canadian citizens who would like to see a ban on prorogations and to have the current government pay the price for the practice that has existed for years in this country, I say be very careful. Don't go too far in banning or limiting the power to prorogue, but at the same time try to find some way to restore the authority of Parliament vis-à-vis that of the government. If bringing some limitations to the power to prorogue is a way to restore the authority of Parliament vis-à-vis the government, then it has to be studied, and it must be studied with an open mind. That's my view.
12:05 p.m.
Conservative
The Chair Conservative Joe Preston
Great. Thank you.
It's been fascinating. Professor Pelletier, perhaps with the will of the committee, we may even have to have you back at some point to answer some more questions, or, if you don't mind, we may send you a letter asking you some more questions. I thank you for your appearance here today, and thank you for all the knowledge you've given us.
12:05 p.m.
Full Professor, Faculty of Law, University of Ottawa, As an Individual
Mr. Chair, thank you for having received me. If you ever have a bill to study, I'd be pleased to study it with you.
12:05 p.m.
Conservative
The Chair Conservative Joe Preston
You want to come. All right. Super. You're invited.
I will suspend the committee for about one minute while we switch witnesses.
10:09 a.m.
Conservative
The Chair Conservative Joe Preston
Let's call the meeting back to order so we can have as much time as possible with Professor Franks.
It's good to have you here today, sir. It's always special to have you. You got to hear a bit of Professor Pelletier. I know it would be a boring world if we all agreed with everyone, so you're going to make it less boring today, I hope.
Let me give you the opportunity for an opening statement. Brief is better because we'll get more questions if you're brief. If you're not, it means we're getting knowledge anyway, so I'm okay.
I give you the floor. Thank you very much for coming.
12:10 p.m.
Dr. Ned Franks Professor Emeritus, Department of Political Studies, Queen's University, As an Individual
Thank you, Mr. Chairman.
I was very interested in some of Professor Pelletier's remarks, and I don't agree with some of them. As I go through, I'll try to explain that.
I did produce a written document, which I believe is being translated and passed on to you.
12:10 p.m.
Conservative
The Chair Conservative Joe Preston
Yes, we have it, but it's not finished being translated yet, so we can't distribute it. We'll get it to the committee at some point, but it probably will not be today.
May 4th, 2010 / 12:10 p.m.
Professor Emeritus, Department of Political Studies, Queen's University, As an Individual
Okay, good. But that does mean I can read out some pieces here.
12:10 p.m.
Professor Emeritus, Department of Political Studies, Queen's University, As an Individual
I begin by saying that prorogation is not a dirty word. Prorogation is a necessary and useful tool for ending a session of Parliament and beginning a new one between general elections. Then I go on to a section of what prorogation is.
I make the distinction between prorogation and adjournment, because I think that's often confused and misunderstood. Adjournment, historically and at present, is in the control of the House of Commons, and prorogation is done by the Governor General, the crown, on the advice of the Prime Minister.
When and why has prorogation been abused? I believe there's been some confusion on this, so you will excuse me if I go into some detail. In 1873, Sir John A. MacDonald, Prime Minister, fearing a non-confidence vote over the Pacific scandal, asked the Governor General, Lord Dufferin, to prorogue Parliament in order to avoid a vote of confidence.
Dufferin thought long and hard and he consulted widely, including with the British government. After much deliberation, Dufferin granted MacDonald the prorogation, but he limited it to 10 weeks, which was tacked on to the end of the summer adjournment. Parliament did not meet between May 25 and October 12 of that year. When they did meet, MacDonald still faced a vote of confidence. He found he was still losing support and he resigned on November 5.
Sir Alexander Mackenzie took over as Prime Minister two days later, and he requested, and was granted, a prorogation of Parliament that same day. Without meeting again, Canada's second Parliament was dissolved on January 2, 1874. A general election was held on January 22, and Mackenzie won handily. If Prime Minister MacDonald did abuse prorogation by using it to avoid a vote of confidence, retribution was only delayed, not prevented. Mackenzie did not last long as Prime Minister, as most of you know. They said his greatest virtue of being Prime Minister was that he had been a stonemason and his greatest weakness as a Prime Minister was that he had been a stonemason.
In November 2008, Prime Minister Harper, soon after an election, and after Parliament had sat for only 13 days, faced an imminent vote of confidence, which he likely would have lost. Even though the three opposition parties, which together enjoyed a majority in the House, had publicly committed themselves to supporting a coalition government composed of Liberal and NDP parties, the Governor General, Michaëlle Jean, granted Mr. Harper's request. Scholars do not agree on whether or not the Governor General made the correct decision in terms of constitutional traditions and practices. The Liberal Party had a new leader and the unity of the three opposition parties had disintegrated by the time the new session began in late January 2009.
I should make it clear at this point that I am on the side of those who believe she made the right decision.
In December 2009, while Parliament was adjourned, Prime Minister Harper requested a prorogation. This appeared to be a strategic move by Prime Minister Harper to gain a majority in the Senate, and he succeeded in delaying criticism over the Afghan detainee issue, though it came back with a vengeance when Parliament reconvened in March 2010. This prorogation, while it did not raise any significant constitutional issues, did lead to a lot of controversy over the use and abuse of prime ministerial power to bypass and avoid Parliament by advising the Governor General to prorogue Parliament. And of course that's why we're meeting here today on this.
There is one issue that I want to emphasize, and that is the November 2003 adjournment by Prime Minister Chrétien. While the House was adjourned then, Prime Minister Chrétien advised the Governor General to prorogue Parliament. This has frequently been cited as an example of abuse because it is claimed that it permitted Mr. Chrétien to avoid having to accept the Auditor General's report on the sponsorship affair. At the time, Prime Minister Chrétien had no need to prorogue Parliament to prevent tabling of the Auditor General's report because Parliament had already been adjourned. Reports cannot be tabled in the House while it is adjourned. Quite likely, the early adjournment of the session--normally it would have been a month later, in December--had something to do with delaying the tabling of the Auditor General's report. Prorogation did not and could not.... Mr. Martin replaced Mr. Chrétien as Prime Minister on December 12, 2003, during a period of prorogation. The reason for the prorogation almost certainly was to facilitate the change of prime ministers and allow the new Prime Minister, Paul Martin, to start with a clean slate. It had nothing to do with the timing of the tabling of the Auditor General's report.
This prorogation followed normal parliamentary procedures. It did not at the time, and does not now, raise any constitutional or other issues about the abuse of prorogation. I just want to make that clear.
Here is a question: does Parliament have the constitutional power to constrain, through legislation or other means, the Prime Minister's use of prorogation? And here I take issue with some people you have heard from.
This question has been raised in relation to the recent problems in Canada, with the claim being made that prorogation is a prerogative power of the crown and cannot be limited by Parliament. This is not correct.
The British Parliament has legislated to restrict prorogation several times. In 1640, when Parliament and King Charles I were at loggerheads over a taxation issue, Parliament passed an act that prevented its dissolution or prorogation without Parliament's consent. The act stated:
…that this...parliament, now assembled, shall not be dissolved, unless it be by Act of Parliament to be passed for that purpose. Nor shall it be, at any time or times, during the continuance thereof, prorogued or adjourned, unless it be by act of parliament to be likewise passed for that purpose.
Parliament went on to abuse this power by continuing to sit for nine years without dissolution, the infamous Long Parliament. Whether or not the Long Parliament was a worse abuse than the governing of Britain by Charles I as an absolute monarch in the absence of Parliament for the preceding 11 years is irrelevant. The point is that the British Parliament asserted its fundamental constitutional right to govern its own affairs in deciding at that time that it, and it alone, could choose when it should be dissolved or prorogued. This was merely a claim of constitutional power. The British monarch still retains the power to prorogue, though, as in Canada, this power is exercised on the advice of the Prime Minister.
Nevertheless, the British Parliament has not been reticent in passing legislation to set limits on prorogation. It passed acts in both 1867 and 1918 that ensured that the period of prorogation after an election—after the writs are returned, in Canadian parlance—would be sufficiently long to allow members to attend the opening of the new Parliament. This was especially important in 1918 to give members who were serving in the armed forces enough time to get back to England from overseas.
Section II.18 of the Constitution Act, 1867, as amended, states that the Canadian Parliament has the same powers that the British Parliament had in 1867:
18. The Privileges, Immunities, and Powers to be held, enjoyed, and exercised by the Senate and by the House of Commons and by the Members thereof respectively shall be such as are from Time to Time defined by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act [1867]...and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland and by the Members thereof.
The British Parliament legislated on prorogation in 1867 and 1918. Therefore, the Canadian Parliament also has that power. Prorogation has not been a contentious issue in Britain for many centuries. Sessions there continue to run on an annual schedule, and the British Parliament is normally prorogued, much as it used to happen in the Canadian Senate, through a ceremony in the House of Lords in which the Queen or her representative lists the accomplishments of the session and states the date for the reconvening of Parliament.
The period of the prorogation in Britain normally lasts a week or so and occurs in the fall. The long summer break, not the period of prorogation, is the pause that refreshes the British Parliament and parliamentarians.
I want to emphasize this next point, because I think there's some confusion on it. This power of Parliament to legislate on prorogation does not affect the reserve powers of the crown. Governor General Michaëlle Jean would have exercised these reserve powers if she had refused Prime Minister Harper’s advice to prorogue in 2008.
The reserve powers of the crown are not defined. The fact that they exist simply affirms that it might be in the national interest, on rare occasions, for a British monarch or a Canadian Governor General to ignore or go against the advice of a Prime Minister, or even act independently of the advice or lack of advice from a Prime Minister. In other words, the legislation on prorogation in Britain does not affect those reserve powers, and it would not in Canada.
If Britain were to undergo a lengthy period of what the British term a hung Parliament and in Canada a minority government, a British Prime Minister, following Stephen Harper’s example, might well want to use prorogation as a political tactic. The British Parliament might then have to decide--as might the Canadian--that restrictions must be placed on the Prime Minister’s powers to advise prorogation.
What are the options for reform? Parliament has the power to define the circumstances in which a parliamentary session can be prorogued and the sessions and conditions of prorogation. Perhaps the simplest way to do this would be for Parliament to define through legislation the terms, conditions, and occasions on which the Prime Minister can advise the Governor General to prorogue a session.
Trying to limit the Prime Minister’s power to advise prorogation through a motion risks a defiant Prime Minister saying that the motion itself is only advisory and does not constitute a compelling instruction requiring obedience.
Some of the options, listed roughly from least to most dramatic, are:
Number one, do nothing. With only three contentious prorogations in over 140 years, this problem does not seem to be the most pressing facing Canada. On the other hand, with two contentious prorogations within less than two years and the prospect of continuing minority Parliaments and governments, a review of prorogation in all its aspects is a timely exercise.
I should add there that the ultimate consequences of the act of the government, regardless of what Parliament does, is what the electorate thinks of it. I think we have to bear in mind when we're tinkering with constitutional machinery such as prorogation that ultimately the electorate is going to pass its judgment. Often we have to defer our own judgment to the electorate.
Number two, we can prevent a Parliament from being prorogued until a session has lasted a decent period of time. This has its attractions, but it risks preventing Parliament from having short sessions, which are appropriate in some circumstances. For example, in the first session of the 34th Parliament in 1988-89, the House of Commons sat only 11 days and only one bill was introduced. It received royal assent, but that bill--the free trade legislation with the United States--had been far and away the most important issue in the preceding election campaign. I believe that short session was appropriate and so was prorogation.
Number three, limit the duration of a prorogation. In theory, the Constitution Act of 1867 does not prevent a government from terminating a session early in a year and then delaying holding the next session until late the following year. In other words, theoretically the Constitution permits Parliament to go nearly two years without meeting.
The fifth session of the 18th Parliament, from 1936 to 1940, lasted only six days and the sixth session lasted less than one day. It met and was adjourned the same day--January 25, 1940. In other words, between June 3, 1939, and May 16, 1940--a period of more than 11 months--the House of Commons sat only seven days. Canada declared war against Germany on the 10th of September 1939, during the six-day session of that September.
For the remainder of this crucial period, Canada was governed without the participation of Parliament. This absence of a parliamentary presence for a crucial period, as Canada mobilized for World War II, did not arouse a great deal of indignation and protest at the time. The less than one day session of January 25, 1940, was simply to ensure that Parliament met at least once during that year.
Number four, we can require the House of Commons’ support for a prorogation. The discretion to advise prorogation could be taken away from the Prime Minister and in effect given to the House of Commons. In other words, Parliament could legislate that the Prime Minister may only advise the Governor General to prorogue Parliament when the House has passed a motion to that effect. If the House was adjourned and not in session when the Prime Minister wanted to prorogue a session--and this has occurred frequently in the past--the advice to prorogue would have to be supported by party leaders representing a majority of the House of Commons.
I could go on, but I shall stop here, emphasizing that prorogation should not be considered in isolation. The parliamentary system in Canada is under stress from a great many pressures and a great many different functions and areas. The use and abuse of prorogation is only one way that governments respond to these stresses. Many, but perhaps not all, of these stresses are the product of continuing minority Parliaments. I think Britain is looking at us with great interest at this point in time to learn, if possible, and benefit from our experience.
Thank you, Mr. Chair.
