Procedure and House Affairs Committee on May 6th, 2010

[Christopher White]

Absolutely.

[The Chair, Conservative, Joe Preston]

Thank you very much for coming.

We'll suspend just for a moment while we change witnesses. Thank you.

[The Chair, Conservative, Joe Preston]

I'll call the meeting back to order. Professor Weinstock is here with us now.

I thank the group for your cooperation on the timing in the first hour. As I mentioned then, this room will be occupied at one o'clock by another committee, so we need to finish just a little bit before one. I thank you all for your short questions and answers. It works very well for us.

Professor, perhaps you'd like to give us an opening statement and tell us a little about yourself as well as what your thoughts are on the issue we are studying here today. Then we'll rotate through the parties and ask you some questions in that period of time.

Thank you for coming, and let's go ahead and do that. And please, don't mind that some of the members, including me, may be consuming food while you're talking. We're not trying to be rude, but we work straight through our lunch hour these days.

[Daniel Weinstock, Professor of Philosophy, Université de Montréal]

I understand.

[The Chair, Conservative, Joe Preston]

Thank you.

[Daniel Weinstock]

And I appreciate that eating will perhaps make you less ferocious with me during the question period.

[The Chair, Conservative, Joe Preston]

That's what we're hoping.

[Daniel Weinstock]

Thank you very much for having me here. It's a pleasure and an honour, and at the same time a bit of a sacrifice, since being here means that I'll have to spend the fifth game of the Canadiens-Pittsburgh semifinal in Ottawa rather than in Montreal. But I'm sure that some of you will direct me to the appropriate sports bar to be surrounded by Canadiens fans rather than Senators fans.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

You should listen to it in French on my side of the river.

[Daniel Weinstock]

Oh, maybe I should. I'll talk to you after.

I imagine the reason I'm here is that in January I wrote a letter that snowballed beyond what I'd expected. It ended up being signed by close to 300 academics, for the most part professors of law, political science, and some of us oddball philosophers.

It made a couple of points, which I think over the course of the last four or five months have become part of the public debate. Indeed, I think one of the gratifying things about the letter is that probably a lot of what I'll say in going over, very briefly, what's in the letter will be boringly redundant to you now. I think perhaps it wasn't so much in January when we wrote the letter.

I wouldn't want to insult you by going into too much detail about it, but the point we wanted to make to Canadians is that we have a very peculiar parliamentary system. I guess they're all peculiar, but the particular peculiarities of ours means that the way in which different powers are held in check as opposed to the American system does not depend so much on painstaking rules being spelled out, black on white, but rather on conventions, some of which go back hundreds of years in the British parliamentary tradition, and also on the very important notion of trust.

Particularly important powers are vested in the office of the Prime Minister, much greater power is vested there than in the power of the presidency in the United States. As we saw in the last few months during the health care debate, you can be a popular president with majorities in both Houses and yet not be able to get anything done.

Relatively speaking, a lot more power is vested in the office of the Prime Minister, even in the context of a minority government, such as the ones that we have had over the course of the last few years. The notion of trust is therefore extremely important in that those powers are understood to be abusable. They aren't checked by rules that can be pointed to, black on white. They can be abused, and the trust of Parliament and the trust of the Canadian people through their representatives are based on the understanding that they will not be abused.

When one thinks about it, prorogation is quite a considerable power, though nobody knew the word before about a year and a half ago or they confused it with Polish meat-filled delicacies.

As opposed to adjournment, as opposed to calling it a recess, it really is the ability to hit the reset button, as it were, start things from scratch. It is understood that in the life of a government that will be necessary. One can come to the end of the natural life of a legislative agenda, even if all the bills haven't been gone through. One feels sometimes that a government does need to hit the reset button.

Where trust connects with this issue is that there has to be an appreciation on the part of both the population at large, whose trust in this institution is extremely important, and on the part of parliamentarians that when the reset button is hit, it is done because something of that order has occurred, and there is an understanding on both sides of the floor that there is no useful purpose left in pursuing the legislative agenda that was announced in the previous throne speech.

I think that in the last few years we have seen a worrying abuse of that power, a slide toward the use of that power for more partisan, tactical purposes.

In retrospect, 20/20 hindsight, this might have been something that we could have come to expect. We have come into a period of minority governments, first a Liberal minority government and now a Conservative minority government, which will last for how long? It is natural to expect the office of the prime minister and the governing party to reach for the tools that are at their disposal to offset the relative lack of power or lesser power that the fact of being a minority government entails as opposed to being a majority government.

One can't really imagine a situation, other than rebellion within the ranks of the governing party, that would lead to a prime minister using the power to prorogue in the way that has been done.

I'm not a political scientist, but my armchair understanding of the political forces at play suggests that we are entering a period of successive minority governments in the medium term. We really have to think long and hard about something that we didn't have to think long and hard about in a period of our history when majority governments were the norm.

I think that although harsh words were spoken when the prorogations occurred last year and the year before, in retrospect one can realize that for a government trying to stay afloat, for a government involved in the cut and thrust of parliamentary affairs, it is a natural thing to just reach for whatever tools are there in order to offset the sort of relative powerlessness or lesser power that minority status affords. But given the importance of this important power's being perceived by parliamentarians and by Canadians at large as being used for the common good rather than for tactical purposes, we felt that it was necessary to call the attention of Canadians—and we weren't the only ones to do so—to the fact that something perhaps quite technical and fiddly was going on that had much larger ramifications in the potential it had to offset the very subtle, unspoken, unwritten balances and checks on powers that are written into the fibre of our institutions, as opposed to spelled out in clear rules.

I went through—and I'll stop with this—the briefing paper that was prepared for this committee and found out that the prorogation power is said to be the...is it the ugly duckling, or the silent partner...? There's very little written about it. We have to rely on conventions, we have to rely on traditions, we have to rely on our sense of the ways in which this power can and cannot be used to serve the common good.

Perhaps I'll speak one last sentence, if you'll allow it. In the intervening months an interesting spate of proposals has come out, both from academia and from the opposition parties—the NDP and the Liberals—about rules that might be put in place to address this problem.

I'll just sound a skeptical note about this type of approach. While it's something that is quite natural as a reaction, one that I thought of after the prorogation—what rules can we put in place just to make this harder?—I was led to the following thought, which I presented when I was invited by the Liberal Party to one of their meetings held during the prorogation period: essentially, that any system of rules can be gamed. Any system of rules can fall foul to the cut and thrust of partisan politics. I have yet to encounter a set of rules that can't be gamed. When I presented this a couple of months ago, I used a hockey analogy invoking Sean Avery. I won't do that now, although I could, if I were asked in questions.

So I think that at the same time as we think about what rules can be put in place, we have to be quite lucid about the fact that rules and procedures probably won't be enough and that what is needed is something like a new political culture of minority governance that, in a way, infuses the ethos of parliamentarians just as much as it does the rules.

When I look at the proposals that have been put forward, a lot of them are extremely plausible at first glance. But to the extent that they involve throwing the ball back into Parliament, the play of partisan forces can just end up taking over there as well. So here is a bit of a skeptical note about some of the roads we might think about travelling. We may need a new set of rules, but we can't ignore the much more difficult task of thinking about how we can create a new culture of governance, a new ethos of governance, for the minority situations that seem to be with us for the foreseeable future.

I'll stop with that, and thank you very much.

[The Chair, Conservative, Joe Preston]

Thank you so much for your opening statement.

We'll go to questions. I think we'll start with a seven-minute round. Let's see if we can do that.

Madam Jennings, you're up.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you.

Thank you, Professor Weinstock, for being here today, for having agreed to appear as a witness.

I know the analogy that you used involving Sean Avery.

Have you had an opportunity to follow the previous witnesses?

[Daniel Weinstock]

I have not, no. I only just found out that this can all be followed online, and I will.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Okay.

I'd like to ask you a few questions.

Professor Peter Russell appeared earlier before this committee, and he had a number of points. His point 11 states:

On March 17 of this year, the House of Commons passed a motion, moved by the Hon. Jack Layton, requiring that the Prime Minister seek the consent of the House of Commons before advising a prorogation of more than seven days.

Professor Russell goes on to say:

This motion cannot be regarded as a constitutional convention, because it was opposed by the Prime Minister and members of the government caucus. One of the key actors involved in advising prorogation does not feel bound by the Layton motion.

But then he says:

But that motion could be an important step towards establishing a constitutional convention, if it becomes the basis for discussing with government members in this committee or a special committee the possibility of an agreement on conditions that should apply to prime ministerial advice to prorogue.

I'd like to know, do you agree that notwithstanding the fact that a majority of members of the House of Commons adopted that motion, it does not in fact constitute a constitutional convention?

[Daniel Weinstock]

Yes. My understanding is that it can't really be considered as a constitutional convention. Part of the reason I think so is precisely that I've spoken at great length about the issue with Peter Russell. His expertise is second to none in this country, and therefore I defer to him in matters constitutional—although I think it makes sense to view it that way.

One thing it does, and part of what establishing a new cultural of governance is going to require, is precisely motions like this, which, while they do not rise to the level of constitutional conventions, nonetheless, if you will, raise the political price on acting in certain ways. They raise the visibility, first of all, don't they? This is something that was happening under the noses of Canadians for over a century without their knowing it: prorogations, which are a normal part of parliamentary procedure. I think it is a historical step, as it were, in the direction of perhaps establishing a constitutional convention, in that it is now something that it will be much more difficult for this Prime Minister or any other prime minister to do without having to at least rhetorically address the kinds of concerns that are expressed in that motion.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you so much.

Professor Russell also stated that he wondered, in his point 13:

What if the Standing Orders of the House were to be changed along the lines of the Layton motion..., but with the Conservatives still opposing the motion? Such an addition to the Standing Orders would surely be as binding on the Prime Minister as all other Standing Orders. Failure of a prime minister to observe the Standing Order could result in a ruling of contempt of Parliament and a defeat of the government on a non-confidence motion. According to constitutional convention, a Governor General would be entitled to dismiss a prime minister who refused to resign after losing a vote of non-confidence.

I think Professor Russell takes the idea of a standing order that would provide the parameters for a prime minister to advise the Governor General to use her authority to prorogue Parliament to the extreme. Others have like you suggested that it's not a bad idea to have something in the Standing Orders, but to do it in such a way that it doesn't bind and put Parliament into an even more conflictual position; to do it in such a way that, either prior to the prorogation, if there were a time limit or a number of days of prior notice—or if that was not followed, then once a new session had resumed—it would allow at that point for Parliament to express its opinion on what had taken place, without necessarily leading to a non-confidence vote.

That is not an either/or; it's not the big bludgeon weapon; it's simply that it would provide an opportunity at some point for Parliament to express its point of view. If such a standing order were adopted, the Speaker would be within his right to request a meeting with the Governor General in order to inform her of the Standing Orders once they had been adopted.

[Daniel Weinstock]

In general, in thinking about ways in which to create over time an ethos of governance in a perhaps long-term minority situation wherein different parties will succeed one another in being in power in a minority situation, I think anything that would exacerbate the conflictual nature of Parliament would be a bad thing.

We're not used to minority government. When you look at European countries in which it's a fact of daily life, coalitions are a fact of daily life. The British, our cousins in parliamentary tradition, are going through an election right now, and the spectre of a hung Parliament and of a possible coalition—1974 all over again—is feeding a kind of terror.

I don't think that need be the case. I think there are perfectly functional European democracies that have, through different routes, arrived in a situation in which coalition-building is a necessity. But coalition-building is made a lot easier when people haven't been cast in the kind of conflictual situation that a binding standing order might exacerbate.

I think in a way it might take a longer time to create the more consensual way of dealing with the powers vested in the Prime Minister by doing it without the quick fix. I think we ought to be wary of quick fixes, of magic bullets that will solve this problem once and for all, and certainly of ones that might make the situation worse, because at the risk of repeating myself....

Something just beeped. Have I been talking too long?

[The Chair, Conservative, Joe Preston]

You're getting close. I don't know what the beep was, but it was really timely.

[Daniel Weinstock]

Right.

Now I forgot what I was going to say.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

It was “not to exacerbate”.

[Daniel Weinstock]

Yes, not to exacerbate, and.... There was a point that was probably brilliant and central to the future of Canadian parliamentary democracy that I've now forgotten.

[The Chair, Conservative, Joe Preston]

I'm certain it will come back to you during Mr. Reid's time.

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

I'm responsible for the beep. It's a little timer I use to keep track of my own time so that I can make sure to ask the questions in the right order.

I feel a bit like the postman who showed up and interrupted Coleridge from his writing down “Kubla Khan” and caused us to lose all those brilliant bits of verse.

[Daniel Weinstock]

I'm sure it's on the same scale.

[Some hon. members]

Oh, oh!