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.
Conservative
The Chair Conservative Joe Preston
It's good to be noticed.
Monsieur Paquette, are you up today?
Thank you, and welcome, again, today.
Bloc
Pierre Paquette Bloc Joliette, QC
Thank you.
Thank you for your opening remarks, Mr. Pelletier. I was already somewhat aware of your theory. I do want to thank you for accepting the Committee's invitation to appear.
As you mentioned, the Committee is studying this matter to see if there is something that can be done, or whether the idea of limiting the Prime Minister's power to prorogue Parliament is going nowhere.
I would like you to explain once again—because I did not do much constitutional law at university—why you believe the power to prorogue is a component of the separation of powers.
Benoît Pelletier
Once again, it is connected to the checks and balances I referred to when I began my opening remarks. In other words, Parliament has a certain number of mechanisms available to it to discipline the government.
I mentioned question period, committees and ministerial responsibility itself. As for the government, it also has a certain number of tools available to it to pressure Parliament, and those tools are well known. The primary ones are dissolution, of course, and prorogation. And, by extension, as I said, summoning Parliament.
Those are the mechanisms that are deemed to provide for checks and balances between the executive branch and the legislative branch within our parliamentary system.
With that background, I have concluded that the prorogation power is tied to the separation of powers, because it provides for these checks and balances between the legislative branch and the executive branch. It contributes to those checks and balances. Therefore, I do not see how the prorogation power could be dissociated from the very principle of the separation of powers.
Obviously, other experts may not share my opinion, but as I see it, it is really one of the checks and balances that are essential to our parliamentary system.
Pierre Paquette Bloc Joliette, QC
So far, a great many people have presented their views on this. I am thinking in particular of Professor Mendes, from the University of Ottawa, whom you probably know. He said that, without affecting the Governor General's power to prorogue, it would be possible to limit the ability of the Prime Minister, as senior advisor, to go to the Governor General to ask that Parliament be prorogued.
Some have compared this to Bill C-16 on fixed date elections. Basically, it is the House of Commons expressing its wish that the government not call elections for partisan reasons and that it have a fixed term of office. However, we also know that in that bill, there was a provision that did not challenge… In a way, it is wishful thinking. And Mr. Mendes explained that, even if it is wishful thinking, over time, a kind of constitutional convention is established whereby the prorogation power cannot be exercised outside of the conditions laid out in the legislation.
In fact, he made a number of suggestions, and I would like to run them by you to see what you think.
First of all, he talked about using the Standing Orders of the House of Commons to prevent the Prime Minister from asking for prorogation in the first year following a Speech from the Throne.
Also, the Prime Minister would have to advise the Senate and the House of Commons in order for there to be a debate subsequently—in other words, a prorogation could not last more than one month. He also proposed a number of other things that would result in the establishment of constitutional conventions, which would become binding over time.
Is that an avenue that could be explored or are we really looking at a constitutional amendment?
Benoît Pelletier
As you describe it, I would say it is not as conceivable as Mr. Mendes has presented it to be.
The first point is that many experts only consider subsection 41(a) of the Constitution Act, 1982, which deals with the office of the Queen. Everyone agrees that the office of the Queen cannot be changed without a formal constitutional amendment.
I go a little further than that, as I believe the prorogation power itself enjoys constitutional protection as a component of the separation of powers. Without even talking about the office of the Queen, I believe the power to prorogue Parliament, as a discretionary power and prerogative, enjoys constitutional protection.
If that is the case, it means that no significant limits can be placed on the Crown's discretion.
The restrictions you referred to earlier, such as preventing prorogation from taking place--
Benoît Pelletier
Yes, but I am not sure that this would, in fact, be feasible from a legal standpoint. I believe the prerogative is protected constitutionally and implies discretion. That discretion cannot be touched, and legislation must not prejudicially affect it.
There is a second point as well. You talked about the legislation on fixed date elections, but I am sure you noted that the principle of ministerial responsibility is nevertheless protected and respected in that legislation. In my opinion, it is a poor example under the circumstances. The principle under discussion here is left intact—in other words, the primary principle, that being ministerial responsibility. If I apply the same argument to prorogation, I would say that you would also have to respect the principle of prorogation in any bill that attempted to set parameters around it. This goes back to what I said earlier: the legislation must not be so broad as to alter the prorogation power or place excessive limits on that power.
Finally, you referred to the establishment of a possible constitutional convention. The fact remains, however, that even if a constitutional convention were to be established whereby the government had to show self-discipline in its use of prorogation, if the government were to decide one day that it was no longer going to show that kind of self-discipline, in my view, the Constitution would trump that constitutional convention. And, since I believe the prorogation power enjoys implicit constitutional protection, once again, that protection would trump the constitutional convention.
Conservative
The Chair Conservative Joe Preston
We're at seven and a half minutes. So we're being very good today.
Mr. Christopherson, you're up.
NDP
David Christopherson NDP Hamilton Centre, ON
Thank you, Chair. I appreciate that.
Thank you very much, Professor, for being here today.
At the risk of speaking out of turn—and I'll hear if I have—I think most of us accept that the power to prorogue exists in the Constitution. If we want to change prorogation in any way, we're talking about a constitutional amendment. And in speaking on this, I'm a layperson, not an academic, so I am going to say all of the following in pedestrian language. What we're looking at is making changes to the procedures that happen prior to the Prime Minister of the day taking the request formally to the GG. We accept that the GG has that residual or direct authority. What we're questioning is whether we can put certain restrictions on the Prime Minister that would not have constitutional backing, but would be enforceable through an array of other things, including some disincentives that would be in place. For instance, it's been mentioned that maybe a Prime Minister who prorogues without following a procedure in a resolution or in the Standing Orders would not be allowed to introduce certain government bills and wouldn't be able to do certain things that normally they would, so that there is a political price. The array of disincentives is a detail that we're not yet at. What we're still trying to come to grips with I think is the concept of where we can work and what our options are within that.
So I just want the following to be clear. When you talk about constitutional power, Professor, you are talking about the crown and not the Prime Minister per se. So my question would be....
Oh, I see you shaking your head, so I'd better stop there.
Full Professor, Faculty of Law, University of Ottawa, As an Individual
When I talk about the power of the crown, it is de facto the power of the Prime Minister. I don't know any power of the crown that is a real power of the crown and not exercised under, I would say, the influence of the Prime Minister. So in today's world, the power of the crown is de facto exercised by the Prime Minister.
NDP
David Christopherson NDP Hamilton Centre, ON
Are you suggesting that the GG has no reserve discretionary decision-making power?
Full Professor, Faculty of Law, University of Ottawa, As an Individual
Exactly. With regard to prorogation, yes, this is my--
NDP
David Christopherson NDP Hamilton Centre, ON
I'm sorry, I just want to be clear, sir. You are suggesting that the GG would not have the right to say no.
Full Professor, Faculty of Law, University of Ottawa, As an Individual
Exactly--concerning prorogation. Concerning dissolution, it would be something different because of the consequences.
NDP
David Christopherson NDP Hamilton Centre, ON
Okay. But what about changing his actions then, the procedures--he, she, the Prime Minister--everything that happened prior to the actual meeting.
Full Professor, Faculty of Law, University of Ottawa, As an Individual
Then could you impose some limits on the power of the crown to prorogue, under the influence of the Prime Minister?
NDP
David Christopherson NDP Hamilton Centre, ON
I see. You're making the link so strong. You're saying that anything we bind the Prime Minister to means we're trying to do it to the--
Full Professor, Faculty of Law, University of Ottawa, As an Individual
NDP
Full Professor, Faculty of Law, University of Ottawa, As an Individual
Could you impose some limits? The answer is yes. That is what I said to Mr. Proulx before. But there is a limit to what you could do in terms of limits. The limits themselves should be limited, because if you go too far you change the nature of the power itself, and it's not a prerogative animal. Where is the line? It is very difficult to draw. Where is the line between what you can do and what you cannot do? It's difficult to say.
So could there be some limits? My answer is yes, as I said to Mr. Proulx before. But there is a limit to what you can do in terms of limiting--
NDP
Full Professor, Faculty of Law, University of Ottawa, As an Individual
If you prohibit the use of the power to prorogue for a certain period of time, in my view, it goes against the nature of prerogative. Prerogative is something that can be used at the discretion of the crown, de facto the Prime Minister. So if you limit the period during which prorogation is possible and not possible, you go too far.
NDP
David Christopherson NDP Hamilton Centre, ON
I'm going to run out of time, sir. That's why I'm interrupting, and I do apologize for that.
