Procedure and House Affairs Committee on May 13th, 2010

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

No, I concur. As I said, I don't think that your leader did anything wrong. He was very forthright during the election: I'm looking at doing this in order to advance the social democratic ideals in which I believe. It gave him a legitimacy in my eyes that I thought Mr. Dion did not have.

I think if a Liberal leader were to go into a parallel kind of election saying, “Look, we want to win. We want a majority. We'll settle for a minority, if it's what we can get, and if we're low enough, we'll look at the possibility of a coalition”, then I'd think that's a legitimate basis on which to do it.

It does seem to me to be something that voters were right on at the moral level. I'm not arguing that the coalition would have been illegal; I'm just saying that there was something fundamentally wrong from the point of view of the participation the Liberals had in this, because they hadn't been clear. I'm really saying that I would encourage all participants to go into the next election being as forthright as your own leader was at that time.

I'm basically out of time, so I won't ask you any more questions.

Once again, I very much like the book, except for the cover art, which I think does not do justice to the seriousness and thoughtfulness of the text contained within.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Tell me you didn't design the cover yourself.

[Voices]

Oh, oh!

[Brian Topp]

I'm musing about the solidarity I owe my publisher. I shall remain diplomatically silent on the origin of the marketing materials.

[The Chair, Conservative, Joe Preston]

Thank you very much.

Go ahead, Madame DeBellefeuille.

[Claude DeBellefeuille, Bloc, Beauharnois—Salaberry, QC]

Thank you, Mr. Chair.

Mr. Topp, it is always a pleasure to hear from witnesses who are optimistic, who have a good sense of humour. There is a twinkle in your eye, it is refreshing to see. We have heard from some very interesting people who are just as passionate as you. You bring a breath of fresh air and a dreamer's perspective to the committee.

[Brian Topp]

Your witnesses are like your teachers.

[Claude DeBellefeuille, Bloc, Beauharnois—Salaberry, QC]

You are right, they enrich our discussions. We try to find witnesses who complement the issue being studied, who have diverse points of view.

We are studying this issue because we found that the use of prorogation on two occasions in such a short period of time was not justified, that the reasons given did not convince the members of the opposition. Interpreters use the word “people” a lot; I am not sure whether that conveys Mr. Reid's idea when he said that the people did not want a coalition.

In any event, I know that the recent prorogations left a very bad taste in the mouths of Quebeckers. The prorogations were seen as an abuse of power, a constitutional power that was misused, an instrument of partisan politics rather than a democratic tool to break a stalemate or renew a legislative agenda.

I listened to Benoît Pelletier, a professor at the University of Ottawa. He determined that we cannot limit the use of prorogation because the Constitution clearly says that it would not be feasible. Instead, he suggested that we make changes to strengthen the legislative branch, Parliament's authority, the authority of parliamentarians in the executive, in other words, the government. He noted that, over time, executive authority, the authority of the government, increased while the authority of Parliament decreased. It is obvious in a number of issues that are the subject of considerable debate by Parliament. Access to information is one example of a very contentious issue right now.

What is your reaction to that? To sum up Benoît Pelletier's position, it is necessary to strengthen Parliament's authority and do more to limit the authority of the executive. Do you see that as a possible solution, one that would give us more control over the misuse of prorogation, without requiring an amendment to the Constitution?

[Brian Topp]

I definitely agree with the principle of increasing Parliament's authority and limiting that of the executive. Mr. Savoie and many other students have written books and done studies that are very convincing on the phenomenon and the fact that this parliamentary system, within its British context, is the subject of a power struggle in every country where it exists. It has to do with issues that go well beyond the issue of prorogation.

In my view, it starts with adduction—where we are today. The power of Parliament, of the House of Commons, to choose who represents the government and who does not is its most important power. If the prorogation mechanism can be used to undermine the notion of confidence, all the other battles you are talking about—those involving information and the openness of the government, the tendency to minimize the importance of the law, Parliament's failure to make regulations that are increasingly important, the fact that the Cabinet is not a true cabinet—will be lost if the main battle is lost, the fundamental battle for a responsible government where elected representatives decide right from the start who represents the government. So it is important to win that battle. There will be a lot of work to do after that, but the most important thing is to win the main battle; it is the one that matters most. If that can be won, it is full steam ahead.

Furthermore, you suggested that it was fundamentally impossible to impose any enforceable rules without amending the Constitution, and that is true. However, our political tradition confers a lot of power to political conventions. I do not think these are pre-revolutionary circumstances we are dealing with, but we did learn a lesson in December 2008: that the House of Commons needs to strengthen its authority.

So it would be good to do what we are discussing at the moment; it would set the right tone. We would win the series; there would be other battles, of course, but it would be a good start.

[Claude DeBellefeuille, Bloc, Beauharnois—Salaberry, QC]

I have a minute left? Very well. A minute is not much time. Do you have a question, Ms. Gagnon?

[Christiane Gagnon, Bloc, Québec, QC]

I just got here.

[Claude DeBellefeuille, Bloc, Beauharnois—Salaberry, QC]

Mr. Topp, I am moved by your optimism, but I do not get the sense that we are going to make much progress right now or in the near future, since it seems that voters will be sticking to the same path for some time to come: electing small minority governments.

In Quebec, the 10 or 12 most recent polls show a strong tendency to elect a majority of Bloc Québécois members, and that means—unless the Conservative government's bill does not pass, reducing Quebec's weight—that we should expect to see minority governments.

Do you not find that having successive minority governments disrupts long-standing rules? It forces us to think, to get used to alliances or coalitions, to be open to new ways of governing. We need to face the new dynamic that has been decided by the people, by voters.

[Brian Topp]

I agree with your analysis and your findings.

[The Chair, Conservative, Joe Preston]

A short answer, please.

[Brian Topp]

I agree with your analysis and your findings. So let's get back to the issue. Given that we will probably have a minority government for some time to come—you are absolutely right, but this is politics, so who knows—the most important thing to do is to define the rules to establish who represents the government, precisely because we have minority governments.

[The Chair, Conservative, Joe Preston]

Mr. Christopherson, you're up.

[David Christopherson, NDP, Hamilton Centre, ON]

Thank you very much, Mr. Chair.

Brian, it's good to see you. Thank you for coming today.

Just for the record, for the history books of Canada, we do want to acknowledge that notwithstanding the sophistication and cosmopolitanism that Mr. Topp brings, he doesn't normally like to wear a tie. Out of respect for Parliament and Canadians, he wore a tie, and I want Hansard to reflect the fact that he felt that strongly about this. We can't get him to do it at any other meeting I've been to, I'll tell you.

Reference has been made to your book, and that's one of the reasons we brought you here: you have first-hand experience with a number of these issues. It's particularly interesting to hear the government members beginning to plant the seeds and suggesting that unless a hypothetical coalition is declared early on, there's no legitimacy in it.

They managed to kill the issue and they won. I give them their due. They did it by publicly demonizing the whole notion of coalitions. I think we're slowly getting past that, but I want to ask your thoughts on this idea that it has to be declared ahead of time. I'll ask you to link it to the fact that on at least two occasions--and I stand to be corrected if I'm wrong--the current government, in a minority situation, passed their budgets and stayed in power with the support of the Bloc, because budgets are votes of confidence. Of course, it was the ingredient of the Bloc's support for the proposed coalition of the NDP and the Liberals that the government used to focus their major demonization, if you will.

It's interesting to see them trying to put this forward as, “If you're not declaring ahead of time, it's not going to have any legitimacy”. I'd like some of your thoughts on that. We don't have a lot of time. I'll link it with another question.

I was interested in your reference to Germany, Spain, and Hungary in terms of some of the language they had that you thought was very effective. I see you have a paper beside you with some of that. I'll give you an opportunity to read some of that to us, because I'd like to hear the clarity that you're quite supportive of.

[Brian Topp]

Holy smokes. Well, in the time you likely have, let me just offer you a few comments.

I think democracy is a vulnerable thing and the privileges of Parliament are vulnerable things. One of the good things that could come out of the politics of this Parliament would be a commitment by all parties to leave what is constitutional as constitutional and leave what is political as political.

It could be argued, as the honourable member Mr. Scott Reid has done, that it is politically inappropriate or merits a political sanction at the polls to run an election saying you will never ever govern with another party, and then, a few months later, turn around and seek to do a coalition. I think it could be argued that politically there should be a price to pay for that at the ballot box in a subsequent election, but it is not correct to say that it is constitutionally illegitimate, therefore, for the House of Commons to do its fundamental work of picking the ministry.

That is the debate that we mixed up in the last two years. The people of Canada heard a very confusing debate about what parliamentarians are permitted and not permitted to do, not as political issues but as constitutional ones. I think the merit of the discussion you're having now in learning from recent experience and acknowledging that plenty of mistakes were made by everybody here is that we should be clear that it is fit and proper for the House of Commons to form whatever ministry it wants, whatever the players have said in a prior election, because the circumstances in which they operate are defined by that election and are inherently unpredictable. What you say during an election campaign cannot predict what the result will be after the election campaign, and therefore you'll conduct yourself differently, perhaps. The players in the British Parliament have just proved that.

With regard to this question of clarity of language, just to illustrate it in one sentence, we can turn, for example, to article 67(1), bearing in mind that I think this is an Internet translation. I'm not saying that it is precise in every word.

It says:

The Bundestag shall express its lack of confidence in the Federal Chancellor only by electing a successor with of a majority of its Members and requesting the Federal President to dismiss the Federal Chancellor. The Federal President must comply with the request and appoint the person elected.

That is very clear, and it has worked out in constitutional practice. If you want to remove the sitting government under this clause, then you have to say, “It is not Prime Minister Reid who shall be heading the ministry; it will be Prime Minister Christopherson”. That's nice and clear, and it produces a change in the ministry without constitutional issues.

There will always be political ones. When this happened in 1982, our tribe in Germany was not happy and argued about it for many years, but that's politics; constitutionally, the House was allowed to do it.

[David Christopherson, NDP, Hamilton Centre, ON]

Do they deal with prorogation? One of the difficulties we've heard from a lot of the academics, professors, and experts is that there's not a lot of reference to prorogation. It's there, but there hasn't been a great analysis. Are you aware of any of the examples that touch on the issue of prorogation in their language?

[Brian Topp]

I didn't do a constitutional study in Germany, Spain, or Hungary of their prorogation language, although I think it would be an interesting exercise to get the parliamentary library to do.

I do have a comment on prorogation, if you like.

[David Christopherson, NDP, Hamilton Centre, ON]

Yes, very much so.

[Brian Topp]

Our government has routinely used prorogation in the functioning of our legislature, as you will find in all legislatures. We routinely brought our parliamentary program to the end, roughly every mid- to late June, essentially every year, so we could do a throne speech and a new budget the following year. The Saskatchewan legislature ran on a fairly predictable routine. It was well understood by all the members, including that government bills that did not pass by the end of June typically died on the order paper.

It might interest you to know that this routine on prorogation significantly empowered the opposition. What they would do and the result.... I don't know if this still happens; I haven't looked at proceedings in the Saskatchewan legislature for some time. But certainly when I was there, the opposition would hold up all the bills until the last two or three days, knowing full well that they were all about to die on the order paper. And then there would be this fascinating political discussion in the last days of the session on what was going to go and what would not go. So in that way, prorogation actually worked for the opposition.

[David Christopherson, NDP, Hamilton Centre, ON]

That's actually what happened in Ontario too; the same kind of negotiations.

[Brian Topp]

Very good.

I do agree with some of your witnesses that you need to be a little bit careful about this issue and know that prorogation is a broader tool. In my comments today, I call on you to focus on the issue of when prorogation is used to prevent the House from performing its fundamental constitutional responsibility. That seems to me to be the issue before us.

Whether you need to ring-fence prorogation otherwise--the broader debate--personally I'm a lot less exercised about it than about this central point.

[David Christopherson, NDP, Hamilton Centre, ON]

Thanks a lot, Brian.