Procedure and House Affairs Committee on June 1st, 2010

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

All right. I guess it leads to this question, because we're asking constitutional experts and scholars to come here and to perhaps give their advice, but more importantly, I think, to give their opinions. If you had the ultimate power to deal with the issues of prorogation, how would you deal with them?

For example, would you eliminate the ability to prorogue altogether, such as in New Zealand, or would you, through a combination of changes to the Standing Orders, legislative changes, or whatever, deal with prorogation in a manner that you think would satisfy both the will of Parliament but also the constitutional ability of a government to prorogue? What would you suggest if you had free rein to develop a set of protocols?

[Prof. Andrew Heard]

Ultimately, I'm skeptical of the value of prorogation. I think there are certain circumstances in which it is useful to reset the parliamentary agenda and start a new session, but they are rare, so maybe the compromise would be to have set sessions so there is no issue of manipulation of timing and agendas and so on.

My initial preference would be to say that in a four-year Parliament there shall be two sessions, providing another session to deal with some emergency or other. In my view, that could and should be able to be put into the Parliament of Canada Act so that it's a legislated stipulation that there will be two sessions.

One could just simply leave it at that. It would work out to roughly a two-year period, probably, or one could say that the second September following an election, there shall be a new session. There are fewer constitutional questions if you just say there will be two sessions of Parliament, normally, because then you haven't really disturbed the Governor General's power of when to call it. If you try to nail down the date, then some people would argue you're actually taking the discretion away from the Governor General.

I believe that Parliament has the right and power to do that anyway, through ordinary legislation that would fulfill the requirements under section 44, unilateral amendments to the Constitution if need be. To recap, my short answer is to simply state there will be normally two sessions of Parliament and put it in the statute. One could leave a little wiggle room for the government or one could stipulate that it would be in the second September.

[The Chair, Conservative, Joe Preston]

You have one left.

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

You'd mentioned in your comments that you weren't a big fan of prorogation and the right of governments to prorogue. But you mentioned in your opening statements that obviously, from time to time, and history has proven this to be true, there are extraordinary circumstances--for example, in a time of war--when it would be certainly the right of government and probably the need of Parliament to prorogue to deal with those extraordinary changes in circumstances. Do you think there should be some sort of extraordinary measures protocol put in place?

[Prof. Andrew Heard]

Absolutely. I think it's essential that some exception is made for emergency situations. There's no doubt that something terrible could happen and Parliament simply could not meet, or if it were to meet, it would have to fundamentally reorder itself. Prorogation then is essential.

As well, I wouldn't like to see set periods for a prorogation, because in an emergency situation or a war one might need to have a very extended period when the House is prorogued. But those are exceptions to the rule rather than what should and could be the norm in everyday Parliament.

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

Do you think those extraordinary measure protocols would—

[The Chair, Conservative, Joe Preston]

Your time is up, Mr. Lukiwski.

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

Sorry, Chair.

We'll get back to you.

[The Chair, Conservative, Joe Preston]

Sorry, Mr. Lukiwski.

Monsieur Guimond.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Thank you, Mr. Chair.

Professor, thank you for having come all this way for this presentation. You are working in the department of political science. Thus, you should be able to appreciate the difference between... Is it all right?

[Prof. Andrew Heard]

Yes.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

You are able to appreciate the difference between the legality of an act done by a prime minister, or by a government, and the morality of the same act. With regard to legality, the Prime Minister may have the right to prorogue at will, on a monthly basis if it pleases him, but the fact of proroguing in order to avoid facing a storm or facing timelines that might be embarrassing for him is a different matter. I would like to hear you regarding these two points of view.

[Prof. Andrew Heard]

You are quite right to distinguish between trying to set legal or formal limits on the Prime Minister's prorogation powers and talking about the moral constraints. We've operated until recently on those moral constraints.

The constitutional conventions that had built up, the informal ways of doing it, and the moral expectations of it were essentially that the power of prorogation would only be used for procedural or policy agenda matters, not as a confrontation with the House of Commons. It's really just the more recent events that created this controversy that prorogation could perhaps be used to challenge the right of the House of Commons to deal with business before it. That brings us here today.

In one respect, it would be great if we did not even need to discuss this and if that moral consensus had held that prorogation should be an agenda issue rather than a power issue between the crown and the House of Commons. Ultimately, whatever route is chosen has to depend upon a moral consensus that the Prime Minister's power should not be used to confront the House or to shut down the House.

It doesn't matter whether you put it in the Standing Orders or the legislation. A very determined Prime Minister could still push this to the limit, and the ultimate protection in Canada is a moral consensus that it is wrong for the crown to use its powers in this fashion.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

You began your presentation—right from the very first words of your presentation—by drawing a parallel with the British system where prorogation has practically become an institution. In fact, every year, there is a prorogation and the new session begins by a Speech from the Throne.

This makes me think—I am not criticizing you and I do not want to provoke you into an argument over this—that you are trivializing things and making them less dramatic than they are. I don't know the exact term for this in French. You seem to be saying that what happened here in Canada... because you strongly suspect that if you have been called up as a witness and that this question is now being studied... A letter with several points was sent by the leader of the Liberal Party, Mr. Ignatieff, and a motion was tabled by Mr. Layton on behalf of the NDP. Consequently, if we study this issue, this repeated use of prorogation each time something happens that the Prime Minister finds inconvenient, it is because this subject is of concern to parliamentarians. Now you seem to be-trivializing both events by telling us that in any case, in England, there is a prorogation every November.

[Prof. Andrew Heard]

I think what I was trying to convey is that in some political systems prorogation is simply a matter of routine. It's not a matter of controversy at all; it's just simply done on an annual basis in Great Britain. Here, in Canadian Parliament, up until the 1980s, prorogation appeared roughly on an annual basis as well. It was only in the 1980s and 1990s that everyone switched to roughly a two-year session.

In my comments, I was trying to convey that there is a routine way in which prorogation has been used, and it's not controversial in that sense. The difficulty with this routine prorogation is that it prevents a long-term study of measures before the House, and the solution had been to carry forward or reinstate a lot of business from the previous House.

That has led to a questioning of the value of the prorogation at all and that's where I have some skepticism of the value of prorogation. When two-thirds or three-quarters of the business is routinely reinstated, why do we bother with the prorogation?

I do get concerned and I get very passionate about prorogation being used in the third sense, that of the crown trying to shut down the House of Commons and prevent the House of Commons from doing its business. That's why I would suggest some fairly strong language in any measures dealing with prorogation: to try to avoid this extremely rare and hopefully not repeated instance.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Have I any time left?

[The Chair, Conservative, Joe Preston]

You have 30 seconds.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

In that case, I will come back during the second round of questions.

[The Chair, Conservative, Joe Preston]

Okay. That's great.

Oh, I'm sorry. I was ignoring Mr. Christopherson. I was about to move on.

David.

[David Christopherson, NDP, Hamilton Centre, ON]

Thank you, Chair. My apologies for being late. The public accounts committee ran late, so I wasn't here for the opening remarks. Unfortunately, without any written remarks, I may just have limited questions because I don't want to ask things that have already been dealt with.

But to pick up on what you just said, which I did hear, you mentioned that what should be in place is strong language--I think you used the term “strong language”--to prevent any potential abuse. Can I push that a little further? What kind of strong language? How should that be structured?

Because that is our concern. It's not the regularization. We've all accepted that it's a regular part of business, notwithstanding your comments that we could do without it. But it is the potential abuse and the notion that what happened could ever be repeated again, or something worse; that is what many of us are trying to prevent. So when you say “strong language”, sir, what should we be looking at? What are some ideas?

[Prof. Andrew Heard]

One suggestion I had given was a motion to declare that the House views prorogation without its consent as an obstruction of the House's ability to conduct business. I use that language because it then raises the issue of a possible contempt motion.

And here, I would become schizophrenic, because I think it's important to have very strong language that ups the ante. I do have a serious hesitation about constructing something where it automatically becomes a matter of confidence, because if the House is going to rule on the government being in contempt of the House, the government, I think, would quite naturally say that this is a matter of confidence. How can the House have confidence in a government that is in contempt of it?

There are two ways around that. One is for the House to further refine this. If it feels that it wants to make prorogation a matter of ordinary business, the House could, as part of the motion, say that “this shall not be a matter of confidence”, that this is very serious, but we're exclusively saying this is not a matter of confidence. That's a two-edged sword as well, but if it's made a matter of confidence, then the government is upping the ante, and it could resign, if it lost the motion, and call an early election.

One of my earlier comments was that the difficulty in making it an automatic confidence issue is that a government could use prorogation, then, as a means to call an early election under the fixed election date legislation.

[David Christopherson, NDP, Hamilton Centre, ON]

I apologize if you've already commented on this, but what are your thoughts on the notion of penalties should the Prime Minister go to the GG without first securing a majority vote of the House?

[Prof. Andrew Heard]

One suggestion I had was for the House to pass a motion saying that it would support or approve--some kind of wording like that--the Governor General refusing a prorogation that hadn't been heard without its consent or was needed for an emergency. In that sense, the Governor General would be acting to reflect the wishes of the elected House of Commons rather than purely on personal prerogatives. The idea would be then to empower the Governor General to prevent a wrongful prorogation to occur in the first place.

Again, it's a two-edged sword, because if advice from the Prime Minister is refused, the Prime Minister could go all the way and resign and then you'd have quite a sweet pickle. However, if this is coupled with some kind of motion that, as I said, defuses this and says that this is not a matter of confidence, then the Governor General would be quite authorized, I think, to refuse a resignation and say, “Sorry, I don't accept your resignation, as the whole issue is this Parliament must continue to do its business, and you're the Prime Minister, so get on and govern”.

We've had some examples in the past of vice-regal people refusing advice and the first minister carrying on. In Newfoundland in 1971 the premier wanted an election. The Lieutenant Governor privately said no and the premier simply carried on, because the Lieutenant Governor said, “I'm saying no because we had an election recently and I want to see this government function”. So the premier said okay. It was some months later that an election was in fact held, once it became clear that the House couldn't function.

I think this is an important principle to re-establish: that refused advise should not automatically authorize a Prime Minister to resign and make it a confidence issue. What we're trying to instill here is the ethos that Parliament should be allowed to function while it can and the government should continue to govern while it can.

[David Christopherson, NDP, Hamilton Centre, ON]

In earlier comments, did you have a preference for a resolution, a change to the Standing Orders, a legislative change, or all of the above?

[Prof. Andrew Heard]

All of the above. The main preference, as I had voiced to an earlier question, was to take the matter off the agenda, perhaps by just saying that there should normally be two sessions in a Parliament, with or without setting when the second session--