Procedure and House Affairs Committee on June 1st, 2010

[The Chair, Conservative, Joe Preston]

I'll call the meeting to order. This is meeting number 17 of the Standing Committee on Procedure and House Affairs. We are studying prorogation.

Members, we will be having Professor Heard as our first witness today for approximately an hour. We have some committee business we're going to be looking at in the second hour. That will include how we're going forward on this study and a discussion of the calendar for Thursday.

Professor Heard, it's great to have you here today. We'd love to have you give us an opening statement. I know that you've been watching us, and it's great to know people have been watching our committee from afar.

Please give us a bit of an opening statement. We'll get to members' questions right after that.

Professor Heard, I give you the floor.

[Prof. Andrew Heard, Associate Professor, Department of Political Science, Simon Fraser University, As an Individual]

Thank you, Mr. Chair.

First I want to thank you for inviting me.

It's a great pleasure to be here in the nation's capital and to visit from the west coast.

There is a range of topics you've already covered in your previous meetings that I'd be delighted to discuss in the question period that follows, including the nature of constitutional conventions, constitutional amendment procedures, the role of the Governor General, and who can offer advice.

In my introductory comments, however, I'd like to tackle two basic questions. The first is a relatively easy one for me to answer: should we try to limit the power of prorogation?

Prorogation is usually a routine matter that resets the parliamentary agenda. In many parliaments around the Commonwealth, prorogation occurs on an annual basis. In Great Britain, for example, it occurs every November. But this schedule simply does not leave enough time for the proper consideration of complex matters, and many parliaments now allow the reinstatement of business at an advanced stage in the new session.

Given the widespread reinstatement of unfinished business, some political systems have questioned the basic value of dividing parliaments into separate sessions. The modern practice in New Zealand, for example, is to operate the whole three-year lifespan of Parliament as one session. Even if prorogation were to occur, New Zealand provides that business does not lapse. In addition, it is even possible to reinstate business from a previous Parliament.

It is important to note that prorogation can be used constructively in emergencies to suspend Parliament until it becomes practical to resume business.

In rare circumstances, however, prorogation can be used by the crown to interfere in the House's ability to conduct business. Prorogation in these cases is intended to prevent the House from holding the government to account. This third category of prorogation effectively turns the clock back to a bygone era, when the crown prorogued or dissolved Parliament whenever it felt seriously challenged.

As a result, I believe it would be appropriate for the House to defend itself against such interference, assert its right to control its own affairs, and limit the power of prorogation.

The second question I'll address is much more difficult to answer: how should the power of prorogation be regulated?

The essential principle, in my view, is that the consent of the House of Commons should normally be obtained before Parliament is prorogued. I say “normally” since we must allow for the unexpected arising of acts of violence, epidemics, natural disasters, etc., that could prevent the House from deliberating.

A variety of tools is available to achieve this principle of consent: a constitutional convention; a motion in the House of Commons; a change to the Standing Orders; statutory changes to the Parliament of Canada Act; modifications to the letters patent; and constitutional amendment. In the end, it may take a combination of methods.

One could tackle the problem directly by changing the Governor General's powers of prorogation, but there are also other indirect ways to achieve much the same results. You've heard suggestions that the Standing Orders might be changed to provide disincentives, but I'm not sure that the ones considered would be enough to be effective.

Even so, I do think that Standing Orders could be used to good effect. For example, they could be amended to say that all business would be automatically reinstated following prorogation unless the House decides otherwise.

The Standing Orders could stipulate that a vote on reinstatement be held within a certain number of days at the start of a session. This way, a government could reset the parliamentary agenda if it wished, provided a majority of the House agrees.

Another option would be to create a set period for a session of Parliament. Since the life of this Parliament is now limited to four years, the Parliament of Canada Act could stipulate that there shall normally be two sessions of Parliament. One could simply leave the length of those two sessions to be worked out in practice or stipulate a clear length for the sessions. In either event, however, one would have to allow for prorogation to deal with emergencies.

Neither of these changes would, in themselves, achieve the desired effect of ensuring that the House normally consents to prorogation. They would have to be coupled with some other statement about the need for this consent and those statements should be very clear and strongly worded.

It might be sufficient for the House to pass a motion declaring that it views prorogation without its consent to be an obstruction of the House's ability to conduct business. The Standing Orders could then set out the procedure for providing that assent.

Legislation to this effect would, of course, have an even stronger effect.

In any case, one would still have to make provision for prorogation to deal with emergencies.

Alternatively, as you have already heard, one could pass a motion declaring that any government that prorogued Parliament without consent would forfeit the confidence of the House. The weakness in this approach is that it would provide an easy way for a government to seek an early dissolution under the fixed election date legislation.

If one were to make legislative changes, there's the added concern that a formal constitutional amendment might be required because the powers of the Governor General are involved. This is an interesting and complex issue that I'd be happy to explore, but let me simply say at this stage that there is a strong argument that Parliament can legislate on prorogation or the length of parliamentary sessions.

Unfortunately, reliance on disincentives that occur after the fact may not be effective enough. It may ultimately be necessary to provide a way to ensure that wrongful prorogations do not occur in the first place.

The solution need not be found in trying to constrain the Governor General's power of prorogation. It may be enough to empower the Governor General to exercise her reserve powers to refuse advice from the Prime Minister.

The House might, as part of any motions on the subject, declare that it approves of the Governor General's refusal of any advice to prorogue that is not agreed to by the House and not needed to deal with an emergency. In essence, such a refusal would be exercised with the blessing of the elected House of Commons.

In conclusion, I believe it would be wise to establish a rule that the House of Commons should normally consent to prorogation. There is a wide range of options available to achieve this goal, and a combination of approaches might be required to ensure compliance.

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you very much.

Madam Jennings, you're up.

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

Thank you, Mr. Chair.

Thank you, Professor Heard.

This committee is looking at the possibility of amending the Standing Orders. You've dealt with the issue of how that might happen, but you also said that, should the House of Commons decide to adopt a motion declaring that prorogation without its consent could be deemed contempt of Parliament, one might wish to have legislation accompanying such a motion to make it that much stronger.

When you discussed the possibility of legislative changes, you stated that a strong argument can be made that Parliament can legislate on the issue of prorogation without constitutional amendments being required to do so. Could you expound a little on that?

[Prof. Andrew Heard]

Do you mean on the ability to legislate on prorogation and length of sessions?

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

Yes.

[Prof. Andrew Heard]

As you've heard before, the real stumbling block is the requirement for unanimous consent dealing with amendments to the office of Governor General. There are a number of constitutional scholars who believe that the office of Governor General includes all the powers of the Governor General, so in effect one can't touch the Governor General, and the provinces can't touch the Lieutenant Governor.

I'm not persuaded by this argument because I believe it may be unworkable. The powers of our vice-regal officers are a combination of common law and statutory powers. The normal rule that has been established by the Supreme Court of Canada is that common law prerogative powers can be appealed or amended at any time by ordinary statute. That's a fundamental principle of the British constitutional law that we've adopted.

Before 1982, there was a wide range of legislative changes made to the prerogative powers. It would be an absolute nightmare to actually sort out, across all 11 jurisdictions, which matters are still common law prerogative powers and which have been changed by statutory powers.

And I think it would be very odd to move from a principle that Parliament can at any time legislate on the prerogative powers, to move from that position to one where you need the unanimous consent of 11 legislatures to make any changes to the common law powers. That, to me, turns on its head one of the most basic principles of parliamentary sovereignty over the crown. So I would read the office of Governor General as a very narrow construction, largely relating to the existence and perhaps the appointment of people to that office.

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

You say that a myriad of legislation has amended common law powers. Can you give us some examples?

[Prof. Andrew Heard]

There's one that this committee looked at a few years back when it came to the fixed election date legislation and looking at dissolution. We commonly talk about dissolution being a prerogative of the crown. What we know of dissolution is that it is actually three different acts: one of them is dissolving the House; the next one is setting the election date; and the third one is summoning the Parliament to another session.

The actual dissolution and the summoning are matters that are covered in the Constitution Act, 1867. Some people say that did or did not disturb the common law powers. We don't know for sure whether it has, but there's certainly an overlap, and normally one would say that the statutory law has displaced the common law powers.

They are clearly constitutional, in a sense, because they're referred to in the 1867 act. However, the actual act of setting an election date and starting an election is a statutory power of the Governor in Council under the Canada Elections Act. That same change has been made in 9 out of the 10 provinces, whereby the actual instigation of an election is done by the Governor in Council.

Newfoundland is the only province where--by statute, actually, not common law anymore--the start of an election is begun by the Lieutenant Governor under statute. In Great Britain, it still remains a common law power of the monarch to dissolve and call an election.

So that's one example of changes that have been made and differences in different jurisdictions.

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

Okay. There's another point that I would like to hear more about from you. You were talking about possible legislative changes. My notes say that the House might declare that it would approve of a refusal by the Governor General to acquiesce to a request from the Prime Minister to prorogue when that request doesn't meet certain conditions or standards. Now, I may have added on that last little piece, because my notes don't continue so I'm trying to make sense of that sentence.

But I would like to hear you further on that, because we have had witnesses before us who have talked about how, either through Standing Orders or through legislation, the House could attempt to limit or set conditions whereby it would approve of a prime ministerial request for prorogation under certain circumstances, and if that request did not meet the circumstances, there could be disincentives.

We have also heard from other witnesses who have suggested that, should the House decide to put any kind of limits or make its views known in any way on the issue of the authority to request prorogation by a Prime Minister, the Speaker could inform the Governor General. Then, I'm assuming, that would fall into the situation you mentioned: that if the House did act in that way, the Governor General would have an arsenal for refusing.

[Prof. Andrew Heard]

Yes. There's a number of issues in your comments.

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

Yes, that's typical, and all of my colleagues are saying, “Yes, that's Marlene”.

[The Chair, Conservative, Joe Preston]

And you have 20 seconds left.

[Voices]

Oh, oh!

[Prof. Andrew Heard]

Let me start with perhaps the more interesting one, and one that's been debated in some of your previous testimony, and that is the ability of the Speaker to be in contact with the Governor General, shall we say. I think it is in fact a clear and ancient right of the Speaker to have an access to the monarch or the monarch's representatives to convey the wishes of the House. This is a very ancient and well-established right that arose as Parliament was asserting its power to the crown.

This was most recently and clearly reaffirmed by Speaker Milliken in November 2005, when there was a motion passed asking the Speaker to inform the Governor General that, if there were to be an election, the House would prefer the election to be held on a certain day. There was some discussion as to whether this motion could be put and whether the Speaker could in fact approach the Governor General.

The Speaker ruled that the House could make any kind of motion to express an opinion and that he, as a servant of the House, would be more than willing to have a cup of tea with the Governor General and inform her of the House's opinion, but while he was putting it in a whimsical way, this was a very clear affirmation of the Speaker's acceptance of his right to inform the Governor General of the House's motions.

So yes, that could be one way: to create a mechanism whereby the Governor General is directly informed that a majority of the House holds a certain opinion on prorogation. The suggestion I made was essentially to pass a motion that was worded in an enduring way, so that there would be a sort of standing authorization from the House to refuse assent that had not previously been consented to by the House or needed for an emergency.

[The Chair, Conservative, Joe Preston]

Thank you.

You're just a little over, Madam Jennings.

I do this so seldom, but I want to ask a question. If the Speaker has the ability to ask for advice, does the Speaker of the Senate have the same ability?

[Prof. Andrew Heard]

That's a very good question.

[The Chair, Conservative, Joe Preston]

I always have good questions; I don't know the answers.

[Prof. Andrew Heard]

What I know from history is that it was the Commons Speaker who consistently asserted that right. One would think so, because out of the British traditions, the Speaker of the House of Lords is in fact a cabinet minister and a member of the Privy Council. So one would assume that there is a form for the Senate Speaker.

[The Chair, Conservative, Joe Preston]

And if the advice from the two was contrary...?

[Prof. Andrew Heard]

That would be very interesting.

[Voices]

Oh, oh!

[The Chair, Conservative, Joe Preston]

Yes, it would be, wouldn't it?

Mr. Lukiwski, I'll let you go from there. I'm sorry, but I just had to satisfy an urge.

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

Thank you, Chair.

Thank you, Professor Heard, for being here.

I'd like to hear a little more of your analysis and your opinion, at least on how prorogation could be limited within our current constitutional conventions. You mentioned, for an example, that particularly in a minority Parliament, if we had fixed election dates, a government wishing to force an election or break a fixed election date could perhaps request prorogation. If it was refused by the House, that would potentially trigger an election.

You also mentioned that you anticipate—and correct me if I'm wrong, I don't want to be putting words in your mouth—or at least foresee a situation whereby, through a combination of changes to the Standing Orders, statutory or legislative changes, and those types of approaches, Parliament wouldn't necessarily have to amend the Constitution.

Here's my first question. Are there other Westminster models of government you're aware of that have such a combination of factors and that allows what you're suggesting should be done here in regard to the limits to the government's ability to prorogue?

[Prof. Andrew Heard]

I'm not aware of deliberate attempts to try to change the powers to prorogue. The closest one can come to it is in New Zealand, where they've simply abandoned the notion of sessions, and recent Parliaments have one session for the whole Parliament.

To the extent that there's been discussion of it, it has been questioning the value of proroguing at all. One of the big concerns is how parliamentary business gets lost; it becomes much less efficient to have to restart or pick and choose the business that is carried over.

For the most part, it simply has not been an issue in most parliaments. The only example I'm aware of, in a modern post-World War II parliament where a prorogation occurred in circumstances similar to those of 2008, occurred in Sri Lanka--in 2001, I believe--where there was an impending confidence motion that the government was set to lose and the House was prorogued.

But in the thriving democracies, this has simply never been used that way. The power of prorogation has not been a political issue so there hasn't been an attempt to try to regulate it. We're discussing it in Canada because there were these controversial examples and the question has arisen; we can perhaps live with the examples that have occurred, but there may be different circumstances in the future that we want to try to avoid. So we were essentially carving fresh ground here.