Procedure and House Affairs Committee on May 11th, 2010

[The Chair, Conservative, Joe Preston]

I'm going to call our meeting to order. This is the 14th meeting of the Standing Committee on Procedure and House Affairs. We're continuing our study on prorogation.

I'd like to thank our witnesses for coming today. We have three professors: Nelson Wiseman, Hugo Cyr, and Eric Adams. We're going to have them at the table for the whole two hours, so that will give us a lot more time for questioning today. They're going to start us with an opening statement.

Guests, I'll apologize now for our members. This meeting always takes place over a lunch hour. With the schedules we keep, we won't have time to stop to eat any other time today, so our members will be trying to have their lunch while they're listening to you. I apologize for eating in front of you, even if I do it myself, but it's just a necessity of the job with this committee sitting from eleven until one.

We'll get some opening statements from each of you, and then that hopefully will spur on some questions from each of the members.

Mr. Adams first, please.

[Dr. Eric Adams, Assistant Professor of Law, Faculty of Law, University of Alberta, As an Individual]

Good morning. Thanks for inviting me to speak today.

Of course, it's been a pleasure to follow these proceedings from Edmonton via the Internet these past few weeks, and I know that you've already been left with a great deal of sage advice to ponder.

I'm going to do my best this morning to summon my inner Peter Russell, so here we go.

[Voices]

Oh, oh!

[The Chair, Conservative, Joe Preston]

Did you get lectured again? Oh, sorry, go ahead.

[Dr. Eric Adams]

I hope the committee has received the article I wrote last year, “The Constitutionality of Prorogation”. I sent it ahead for translation. I'm happy to speak to that article in questions or to my comments in this brief statement.

I should also say that I've just completed teaching my constitutional law course at the University of Alberta, and the one promise my students extracted from me before the exam was to have no questions on prorogation. As soon as I made that promise I regretted it, because as I sat down to draft the exam, I thought how perfect an essay question this is. It combines all of the wonderful and rich facets of our constitutional tradition, and there is a lot to disagree about.

Let me for a moment remind you of a little history. In the days surrounding the Prime Minister's request to prorogue Parliament, newspapers variously accused him of insulting the House of Commons, undermining the rights of Parliament, and stifling free speech. A majority of parliamentarians, it was reported, objected to the manoeuvre, and there was public outrage and protest from across one end of the country to the other, said The Globe and Mail.

I am speaking, of course, about August 1873, when Lord Dufferin prorogued the second Canadian Parliament at the request of Sir John A. Macdonald, a Prime Minister under siege because of the emerging Pacific scandal. But I would suggest that the lessons of Canadian history extend even farther back than that. In the period before responsible government, prorogation was an often abused power of colonial governors as a way of dispensing with the clamorous presence of legislatures that they would prefer to govern without.

Jonathan Belcher, Jr., the Lieutenant Governor of Nova Scotia, frequently prorogued the legislature of that colony when he felt like it. The Nova Scotians won't be surprised to hear that the elected representatives had very different ideas about how to govern things. The reaction in the 1760s against prorogation was part of a long road to responsible government and a more democratic constitutional order.

We arrive today at a period when prorogation has again emerged from the constitutional shadows. We are confronted by the opportunity and challenge of ensuring that our parliamentary democracy functions in keeping with our constitutional ideals. This is the principal lesson of our constitutional history. Canada possesses a Constitution, in the words of the Constitution Act, 1867, “similar in Principle to that of the United Kingdom”, meaning that in addition to its roots in the venerable traditions of parliamentary government, Canada is also guided by unwritten and flexible constitutional conventions. Our Constitution can and does change over time.

Those conventions are often clear in principle but sometimes contestable in application. Like common law itself, the principles that form the foundation of our Constitution are themselves elucidated, reinforced, and sometimes even forged in moments of disagreement.

For that reason, I am relatively sanguine about what others are terming a constitutional crisis. In debating the constitutional moments of December 2008 and 2009--and we have been debating them, not only Parliament but in newspapers, classrooms, academic journals, on blogs, and in living rooms--we're working toward a better understanding of our Constitution and its underpinnings.

I think we are in the midst of constitution-building. And the ongoing debates among citizens, academics, and parliamentarians will ultimately shape the constitutionality of prorogation in the broadest sense.

There are several ways to alter the manner in which the Parliament of Canada can be prorogued. I'll mention them just briefly. I think these types of changes exist on a continuum, from the strict formality of a constitutional amendment on one end, to the more flexible and ongoing process of shaping a constitutional convention on the other. I have little doubt that, carefully drafted, a constitutional amendment under section 44 of the amending formula could constrain the ambit of the Prime Minister's discretion to seek prorogation from the Governor General. I think it's equally the case that legislation could accomplish similar constraints.

The Supreme Court of Canada has made it clear that the crown prerogative, of which the power to prorogue is a clear example, can be abolished or limited by expressly drafted legislation.

There's an important distinction, however, between what the Constitution allows and whether such a change is advisable. Just because the Constitution says you can do something, of course, does not necessarily mean you should. Just as we would hopefully agree that a Prime Minister should not request an open-ended or lengthy prorogation on the eve of a vote of non-confidence that he is likely to lose, so we should also be cautious about over-legalizing and unduly constraining parliamentary processes that for the most part have worked very well over our history.

That is then the challenge for all of us: to fashion parliamentary rules, processes, and conventions that respect Parliament, responsible government, and democracy. The Canadian Constitution depends on noble efforts such as this.

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you very much.

Professor Wiseman.

[Dr. Nelson Wiseman, Associate Professor, Department of Political Science, University of Toronto, As an Individual]

Thank you for inviting me.

I haven't benefited from having been in a constitutional law class, or any class, so I'm learning from Eric's comments, as I've learned from the comments of the witnesses who have appeared before you. My comments were drafted right after I was invited here.

I'm a political scientist, and my comments were written and I approach this subject primarily from a political point of view. If my comments are hard-hitting, they've also been moderated and modified by what I've heard from the witnesses from whom I've learned a lot.

I want to thank Angela Crandall for tuning me in, literally, in a way, to the broadcasts by giving me directions on how to access them. I've listened to all of them, and to some I've listened repeatedly, particularly those of your excellent legal counsel, Rob Walsh.

In support of the most recent prorogation of Parliament, the Prime Minister asserted that prorogation is fairly standard procedure. It had occurred 104 times since Confederation. By my count it has occurred 120 times, if we tally prorogations that were followed by dissolutions.

This does not buttress the Prime Minister's point, however, that his recent prorogations have been routine, which is what a Conservative Party e-mail has alleged. The reason is that, with rare exception, prorogation has occurred as described in Bourinot's Parliamentary Procedure and Practice. Let me quote him:

As soon as the business of the two houses is concluded, or so nearly completed that there can be no doubt as to the time of prorogation…

Eugene Forsey said the same thing, and let me quote him:

When both houses have finished a session’s business, Parliament is “prorogued” until the next session.

Only then is prorogation routine. Forsey considered an unwarranted prorogation a usurpation of the rights of the House of Commons and a travesty of democracy. Prorogation is more than merely delay, for it prevents the House from voting, holding the government to account, and possibly bringing it down.

According to Forsey, an uncalled-for prorogation constitutes a subversion of the Constitution. Courts and lawyers can do absolutely nothing in such cases. Let me quote Forsey again:

The only protection against such conduct is the reserve power of the crown, the Governor General, to refuse such prorogation or dissolution, and, if necessary, to dismiss the Government.

As Forsey's daughter Helen has written, “It doesn’t get much clearer than that.”

To avoid defeat in December 2008 when little parliamentary business had been conducted--the House had sat for only 13 days--the Prime Minister manipulated the crown’s reserve power to prorogue Parliament. In December 2009, after the prorogation, he said prorogation was needed to “recalibrate” his government’s agenda. This was an odd rationale, as it meant abandoning half of his government’s bills, some of which have since been reintroduced. The Conservative MP for Kelowna ventured that prorogation ensured the government could not be defeated before it tabled its budget. Other members of the Conservative caucus said it was imperative that MPs remain in their ridings to hear constituents’ concerns. Responding to public revulsion, the director of communications for the Minister of Finance rhetorically asked, “Where was the outrage toward the previous 104 instances” of prorogation? The answer is simple. No Prime Minister has so abused the power to advise the Governor General to prorogue Parliament.

The Prime Minister’s former chief of staff, Tom Flanagan, whom you all know, understood the obvious: the purpose of prorogation was to terminate Parliament’s probing of the Afghan detainee issue.

So what has been the record of other prime ministers with respect to prorogation? We heard from Eric that only once, in 1873, has prorogation occurred in the context of parliamentary controversy. Pierre Trudeau prorogued Parliament eight times; in all but one case, it was for less than a day. The exception lasted six days. The Mulroney government prorogued Parliament twice in nine years for a total of 64 days. Jean Chrétien’s first three of four prorogations lasted 37 days. This government’s last two prorogations alone total 114 days.

Given the contexts in which they occurred, they represent, in my opinion, blatant abuse by the Prime Minister of his power to advise the crown on the exercise of the reserve power.

How long is an unjustified period of prorogation? There is no precise answer. It's like asking how many trees make a forest. Only the Governor General can check such behaviour. Technically, a government or a Prime Minister may ask the Governor General to prorogue Parliament for up to a year—and after meeting for a few hours and having its throne speech voted on, it then may ask for another prolonged prorogation.

Jean Chrétien was lambasted for his last prorogation. It occurred during the transition to a new Prime Minister, a backbencher. It was reasonable that the incoming Prime Minister, Paul Martin, would want a fresh parliamentary session to introduce his own legislative initiatives and not preside over his predecessor’s leftovers. To be sure, Chrétien’s last prorogation postponed the Auditor General’s report on the sponsorship scandal, but no one knew how damning her language would be.

On the heels of public rancour, declining poll numbers, and street demonstrations—between 10,000 and 15,000 people braved the cold weather on January 23, according to media reports—the Prime Minister determined post-prorogation that parliamentarians should forego their planned spring breaks because much work required attention. This rationale amuses, because at least one minister had said the government could accomplish more without Parliament. Why parliamentary work scheduled for January and February required a postponement to March and April is puzzling only to those gullible enough to give credence to the government’s shifting and contradictory justifications for prorogation.

Liberal and NDP proposals to limit the Prime Minister’s power to advise the prorogation of Parliament may be toothless unless they become, I've been thinking, something of a campaign issue. The Governor General’s discretion to deny a Prime Minister’s request for Parliament’s dissolution became such an issue in 1926. The result demonstrated that the route to abridging prime ministerial power is very slippery. Nothing in any law, motion, or parliamentary standing order regarding prorogation can limit the crown’s prerogative power, unless it takes on the status of a convention. Conventions require repeated use, I believe, and especially a willingness by political actors to abide by them. They are reinforced if there is some understanding of them by the public. The opposition parties voted for the government’s fixed election date law, but when the Prime Minister violated its spirit, they rolled over. The issue went unmentioned in the leaders’ debates, leaders’ tours, and campaign advertising. This rendered the law worthless, a waste of your time.

Now the public’s widespread misunderstanding of how Parliament functions will be perpetuated unless attention is drawn to the basic rules of Canada’s constitutional democracy. In December 2008, the Prime Minister brilliantly convinced much of the public and the media that elections are about choosing a Prime Minister rather than parliamentarians. He proved equally persuasive to the constitutionally unacquainted in asserting that a party’s parliamentary plurality democratically trumps Parliament’s majority. You cannot fault him. However constitutionally shaky his plea, his political neck was on the line, and he escaped execution. Indeed, it emboldened him.

Abuse of Parliament predates this administration. The Liberals regularly made major policy announcements in Parliament only after they had made them outside Parliament, and they pioneered the arbitrary rescheduling of opposition days to avoid defeat during the dying days of Paul Martin’s government. In fact, they wouldn't accept a non-confidence motion when it was put in right in front of their faces. Canada’s Parliament, according to the director of the constitution unit at University College London, is “more dysfunctional than any of the other Westminster parliaments...in Australia, New Zealand, the U.K. and Scotland”. Only in Canada has a government secured the prorogation of Parliament to save itself from political defeat or difficulty, and only in Canada has a Governor General been a party to that. The next step in Parliament’s decline could come with the introduction of the budget at a Tim Hortons, following the model of Ontario’s last Conservative government, which presented theirs at a Magna facility.

The Prime Minister’s most recent abuse of prorogation proved to be a fiasco. It has many Canadians waking up and realizing that all is not well with their parliamentary system. They have learned that although the Governor General is theoretically able to restrain prime ministerial power, in practice the Prime Minister almost always does what he wants and may effectively undermine Parliament’s will.

It seems to me—and I agree with Professor Russell here—that a possible way to limit prime ministerial power with respect to prorogation is to have the four parliamentary party leaders negotiate, sign, and publish a document that sets out specific rules regarding prorogation. Such rules would not limit the reserve powers of the crown, but they could check the Prime Minister’s freedom to advise the Governor General on the issue of prorogation. It would offer the Governor General some guidance and relief from difficult positions, such as those in which she was placed by the Prime Minister in his two most recent requests for prorogation.

Whether the opposition makes the power to prorogue or dissolve Parliament an issue at the time of the next election is up to them. If they do not, the cavalier use of prorogation and dissolution by a Prime Minister will only sink deeper roots.

I also have comments—which we can handle in the question period—with respect to the proposals by the other presenters, which have been very informative.

[The Chair, Conservative, Joe Preston]

Super. That's great. I'm glad you've been paying attention beforehand, because it does help us to have you comment on some the other people's testimony.

Professor Cyr, it's your turn.

[Hugo Cyr, Professor of Public Law, Faculty of Political Science and Law, Université du Québec à Montréal, As an Individual]

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.

[The Chair, Conservative, Joe Preston]

Thank you. Merci.

Monsieur Proulx, you'll be starting us off today.

Let's try to go with a round of seven minutes, and then we'll add to that after we have a little more time for questioning today.

Please try to direct your question, whether to an individual member of the witness panel or to all, remembering that your time will be inclusive of what you ask and their answers.

Monsieur Proulx.

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

Thank you, Mr. Chair.

Thank you, Mr. Cyr.

Thank you, Mr. Wiseman and Mr. Adams, for appearing in front of the committee this morning.

Mr. Wiseman, I have a suspicion that you have ideas you'd like to talk to us about in regard to the possibility of sanctions that have been discussed with previous witnesses. You mention in your opening remarks that:

Nothing in any law, motion, or Parliamentary Standing Order regarding prorogation can limit the crown's prerogative power unless it takes on the status of a convention.

However, could we take action through the Standing Orders to penalize or to slow down the government--for example, if we were to say in the Standing Orders that if the government prorogues, if the governing party prorogues Parliament, when Parliament returns, it will be x amount of months, or x amount of weeks, or x amount of days for the governing party's members to be allowed to table private members' business, or other sanctions towards that particular party?

[Dr. Nelson Wiseman]

That was a suggestion by the clerk, Mr. Walsh, and I thought it was quite innovative. I thought he gave you a number of good ideas there.

Of course, and this is just my understanding—I have to defer to constitutional lawyers and other constitutional experts—what you put in your Standing Orders doesn't matter. It can't limit the Prime Minister, I don't believe, from going to the Governor General. When Parliament is reconvened, I can't see why you can't say there won't be second reading on any bills for 60 or 90 days. That could be something imposed. The prorogation will still have gone on. It's another issue related to dissolution.

Another thing struck me in the discussions. It came up a number of times about amending the Constitution. Section 44 refers to your power to change the executive Government of Canada, the Senate and the House of Commons. Now, provinces have used section 45 repeatedly and creatively since Confederation, which is a power they were given at Confederation--subsection 92(1); it's now section 45. You got that power in 1949, and there seems to be a hesitance.

I think if you pass a law—and I haven't read your fixed election date law, but I did hear the Prime Minister isn't even mentioned in it—why don't you make it explicit that you're doing it pursuant to section 44?

I know Nova Scotia did this when they had a conflict, when they expelled, I believe, an MLA in the late 1980s. His name was MacLean. He raised a charter case around this and the courts did not entertain it. They said this was an example of a province changing its own constitution. So that's one way if you are going to go the legal route. You can do both, but you can do it that way. In other words, you cite section 44 explicitly. I think that would reinforce it. I think that would give the Governor General something of a card in terms of her discussions with the Prime Minister. Her job is partly to advise, warn, and consult.

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

Thank you.

Mr. Cyr, I found the fifth item you mentioned interesting. It involved the Prime Minister obtaining a show of confidence by the House of Commons in order to recommend to the Governor General that she prorogue Parliament.

Could you explain how that would work? Before going to the Governor General, would the Prime Minister hold a vote in the House of Commons to obtain the confidence of members, in order to recommend prorogation? Is that it?

[Hugo Cyr]

Not exactly, because the question that would be put to the House would ask whether Parliament should be prorogued or not. It would not be a confidence vote. A confidence vote could always be added, but the idea is that, before the Prime Minister could go to the Governor General, he would need the approval of the majority of members in the House.

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

Pardon me for interrupting, but, if I understand correctly, the Prime Minister could not go to the Governor General unless he had the permission of the House of Commons to recommend prorogation.

Is that what you are saying?

[Hugo Cyr]

Exactly, and if a Standing Order were adopted to that effect and he did not do so, he would be deemed to have lost the confidence of Parliament. That concept is not completely new in constitutional law. England had such a rule about 500 years ago, when the king had to obtain Parliament's approval in order to prorogue it. It fell to the wayside, but history tends to repeat itself, and that could be the case here. It is time to make the use of political institutions more democratic.

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

To bring about that change or democratization, you suggest taking away the Prime Minister's prerogative power to approach or advise the Governor General. If the Prime Minister were to need the approval of the House of Commons to go and see the Governor General, I am not so sure he would get it all that often.

[Hugo Cyr]

With a majority government, that approval is guaranteed because the government controls the vote. Given the strong tendency in Canada to toe the party line, it would not be a problem.

In a minority government, it would spark a debate that would have to yield a general consent.

The Standing Order could, however, be drafted in such a way that only the Prime Minister, for instance, would have the power to put the question to the House. It could be structured so that the Prime Minister would retain the right to take the prorogation initiative, instead of letting everyone move a vote on a resolution, a motion on prorogation—somewhat similar to the idea that only the government can introduce a money bill.

That would respect the principle of government initiative while requiring the consent of the elected members.

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

I am not sure whether—

[The Chair, Conservative, Joe Preston]

Thank you. You're already at seven minutes.

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

Already?

[The Chair, Conservative, Joe Preston]

You're 49 seconds past seven minutes. Do you see how flexible I'm being today? This is incredible.

Mr. Reid, I think you're next.

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

Thank you, Mr. Chair.

I have two questions. The first is for Professor Cyr, and the second is for all the witnesses.

Professor Cyr, to your knowledge, is there another parliament in the Commonwealth that has a preventative non-confidence motion?

[Hugo Cyr]

I have not seen it in other Commonwealth parliaments, but I have to admit that I have not checked them all. The idea is, however, inspired by various forms of rationalized parliamentary government, obviously tailored to British-style parliamentarism.

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

Is it discussed in academic parliamentary literature?