Good morning. Thank you, it is an honour to be invited to take part in the deliberations of the Standing Committee on Procedure and House Affairs.
I hope that my presentation can make even a modest contribution to the committee's discussion of an issue of paramount importance to the development of parliamentary democracy. It is often by taking a step back from standard practices that we rediscover the guiding principles behind those practices. The last two prorogations that we saw seemed to be moving away from those standard practices. The first occurred when the government was facing a possible non-confidence vote and the second when some of the government's actions in the conflict in Afghanistan were the subject of a parliamentary review on alleged human rights violations.
After listening to the previous witnesses, I would say this is really a seminar on constitutional law. Let us hope that this seminar—necessary as a result of recent events—sheds light on how our institutions operate and, in particular, provokes a fuller discussion of how to make those institutions more representative. In fact, the British parliamentary system has evolved through a constant transfer of jurisdiction from the Crown to Parliament, in which elected representatives participate. That evolution gave rise to two cardinal principles of British constitutional law.
First there is the principle of parliamentary sovereignty, which holds that the will of Parliament is above that of the other branches of the government, including the executive. The battle for parliamentary sovereignty was hard-won through the gradual attrition of the Crown's discretionary powers. In fact, according to the traditional definition, the Crown's so-called prerogative powers are nothing more than the remnants of royal powers that have not yet been discarded or abolished through legislation.
Second there is the principle of responsible government, which holds that the government must be accountable to Parliament and cannot legitimately govern unless it has the confidence of the elected members of the House of Commons. I would point out that we have a system of responsible government, which means that the government is responsible to Parliament and that we no longer have what used to be known as a dual Parliament, in which the government was responsible to both the elected officials and the monarch at the same time. Today's concept of responsible government holds that the government is responsible solely to the elected officials. Recognition of that principle put an end to a system of government whereby an unelected executive did not have to report to the elected members of the House of Commons.
Both of those principles, which are at the heart of our constitutional system, stem from the idea that political legitimacy is in the hands of the elected members. Do we need to be reminded of that here? I say “here” because the need for a reminder became apparent just recently; you need only open the newspaper or listen to the radio to see that the need is clear. Do we need to be reminded here that, unlike the presidential system, Canada's executive is not elected? Therefore its democratic legitimacy is only indirect. That legitimacy resides solely in the fact that the executive has the confidence of the elected members and that, in principle—and we saw exceptions to this principle not that long ago—ministers are chosen from among the elected members. Anyone who is appointed a minister without first being elected must still try to get elected at the first opportunity.
All of that may explain the fact that, in Canada, the principle of the separation of powers, at least the separation of the legislative and executive branches, is not quite as cut and dried as in other political systems. In Canada, we have trouble viewing that principle as a true constitutional principle, because of how difficult it is to reconcile with the notion of parliamentary sovereignty.
That being said, the desire of the House of Commons to better govern the use of the prorogation prerogative by requiring the Governor General's approval is in line with the movement to expand the responsibilities of elected members with respect to important decisions on the operation of the government.
When studying the democratic control of the use of prorogation, it is important to consider three key questions. The first is to ask who is currently exercising the prorogation prerogative and under what conditions. I think that question can be dealt with rather quickly. Today, as everyone knows, it is the Governor General who orders the prorogation of Parliament on the advice of the Prime Minister.
The second question is how to limit the use of the prerogative by the Governor General to ensure that its use better reflects democratic values or is at least supported by them. A number of suggestions have been put forward to date. The possibility of a constitutional amendment was discussed, as well as all the difficulties associated with that procedure. The possibility was raised of distinguishing between the duty of the Governor General in this area and her other functions so that the use of the prerogative could be amended through legislation. That is a possible option, albeit a risky one. There was talk of amending the constitutional conventions that set out the conditions in which the Prime Minister can advise that Parliament be prorogued and the conditions in which the Governor General must heed that advice.
I will quickly go through the three criteria, which Peter Russell mentioned, since we often forget to list them. First of all, there is a practice, a single case can be sufficient if there is consent and a good reason. A series of standard practices that lack the consent of the officials and a good reason cannot constitute a custom, thus a practice. Second, there is the feeling of the stakeholders who are connected by the practice. Third, the convention must help the parliamentary system run smoothly.
As for the types of conventions that could be amended, namely, there is the exercise of the prerogative itself. For example, a session could have a minimum duration, as in other parliamentary systems. But amending the constitutional conventions directly related to the exercise of the prorogation prerogative would require limiting the Governor General's discretionary flexibility in exercising that prerogative.
The list of individuals from whom the Governor General is allowed to seek advice or information could be amended. Some have suggested the possibility of the Speaker of the House speaking to the Governor General, which may surprise some people. It is obvious that when a Prime Minister steps down, so the country does not have a Prime Minister, the Governor General is not cut off from all contact with her Parliament. So there are clearly other methods of communication that are already recognized. That aspect could be amended. I would point out that, according to the book on parliamentary procedures, recommendations to the Governor General concerning prorogation constitute what are known as the special prerogatives of the Prime Minister. It should, however, be noted that a number of the prerogatives of the Prime Minister traditionally known as “special” have been amended over the years to give other members the right to exercise them. That is the case with the traditional special prerogative of appointing a provincial administrator. A provincial administrator is someone who replaces the lieutenant-governor if the lieutenant-governor is not available.
Today, when someone needs to be appointed to replace a provincial administrator, for example, it is often done through an Order in Council of the Privy Council. And, in recent years, it has been the heritage ministers making those orders, not the Prime Minister.
So there is some flexibility in those areas.
The fourth option is to create incentives or deterrents to influence the Prime Minister's actions. A motion or amendment to the Standing Orders could be put forward to require the advance notification of the House and the threat of sanctions if the Prime Minister advises the Governor General to prorogue Parliament without the consent of the majority of members.
The fifth option is, I think, new or original. It is based on the fact that because the Governor General is not bound by the advice of the Prime Minister unless he has the confidence of Parliament and given that that confidence is conferred by Parliament itself and not the government, it is up to the House to determine whether the government in power still has the confidence of Parliament. It would be possible to adopt a suspensive condition censorship measure. It could be something along these lines. The Prime Minister would be deemed to have lost the confidence of the House if he were to go to the Governor General to request that Parliament be prorogued without obtaining the prior approval of the majority of members; in that case, as soon as the Prime Minister went to the Governor General without a positive vote, the Governor General would no longer be bound by the Prime Minister's advice because he would have lost the confidence of Parliament.
That is one approach that could make things easier. Regardless of which mechanism is adopted, it is important to ensure that the Governor General's discretion is reduced as much as possible and respects the will of the elected instrument of the state, in other words, the House of Commons.
There is a third question that needs to be asked: how do we make sure that prorogation does not deprive Canadians of an active Parliament for an undue length of time? You are all familiar with the rule in the Constitution Act, 1982, that sets out one session per year. Parliamentary approval methods of varying lengths of time can be combined. The rules of the House could be amended to allow certain types of committees to continue their activities during prorogation. In fact, if, in general during prorogation, the members are relieved of their parliamentary duties until the House and its committees resume their activities in the new session, it would be nonetheless wrong to think that, for the time in question, Parliament had ceased all of its activities during such a prorogation.
Unless I am mistaken, this committee does not necessarily cease its activities during prorogation or, at the very least, does not lose its members because they are appointed for the entire duration of a Parliament, pursuant to Standing Order 104(1). The speaker, the deputy speaker and the members of the Board of Internal Economy also continue in office. So there is at least one committee that operates during prorogation. Prorogation has no effect on the activities of members involved in parliamentary associations or international and interparliamentary exchange programs. In short, the Standing Order can be amended in this regard.
There is one last option: a recall mechanism could be put in place in the event that the Prime Minister delayed in ordering the opening of a new session. For example, the majority of the Board of Internal Economy could hold a vote, the result of which would then be communicated to the Speaker of the House of Commons, who could in turn speak to the Governor General.
Those are some of the mechanisms I suggest for dealing with these issues. I hope they will serve to enrich your discussion and help you carry out your duty with respect to the evolution of the parliamentary system.
Thank you very much.