Procedure and House Affairs Committee on June 1st, 2010

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Cuzner.

Mr. Reid.

And I'd like to point out that we've had everybody ask a question today. I had it all covered until Mr. Lauzon walked back into the room, so we may have to give him a chance after you're done.

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

Thank you, Professor Heard. I'm not sure whether our Bloc Québécois members want to laugh or cry at the news that you think they are a wonderful and permanent addition to the Canadian political scene.

[Voices]

Oh, oh!

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

At any rate, I've read your book. This is quite an old edition of your book that I have here. Has a new one come out or is this still—

[Prof. Andrew Heard]

I'm in the middle of writing the second edition now, so all of this is happening at a wonderful time for me.

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

I suppose it's just as well that you didn't publish it right before we had the 2008 prorogation.

[Prof. Andrew Heard]

That's right.

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

It's true.

Anyway, I read this many years ago and very much enjoyed it, and I'm sure I'll enjoy what you come out with when you do your update.

I was comparing your notes with regard to the Governor General's powers with those comments that have been made by some other authors. For example, I have a paper here by Bradley Miller, from the University of Western Ontario, on conventions relating to the prorogation of Parliament.

You talked about one of the things that I want to ask you about, but I'm not sure you're conclusive in what you arrive at here. It is dealing with whether Governors General or Lieutenant Governors, as the case may be, should be regarded as having some degree of genuine discretionary powers, or simply as people who could be following a rule book and it almost doesn't matter who they have in there-- they just have to find the right rule and then follow it through.

It's almost as complicated as the rules of golf, in that there's a rule for absolutely everything you do, and presumably every golfer should be able to do the same thing.

You give an example from 1986, when the Nova Scotia Supreme Court made a ruling that a Lieutenant Governor could have rejected some advice, which suggests that he could have rejected or accepted it. Maybe I'll just ask the question that way. What is your sense? Is there actual discretion in situations such as the prorogation situation?

[Prof. Andrew Heard]

This is something I've actually given a fair amount of thought to and have been rewriting that chapter on the Governor General earlier this year.

I would say yes: there is very important discretion left to the Governor General to decide whether to do this or to do that. But the most important caveat I now add to that statement is that while the Governor General or Lieutenant Governor has the freedom to make a decision one way or the other in certain circumstances, this is not in fact entirely their personal decision.

Whatever action the Governor General takes must be something that the government at least acquiesces to, so the prerogative powers do not simply say the Governor General can do whatever she wants. It's that the Governor General can do whatever she wants and have a government agree to, whether it's the current government or a new government.

If the Governor General is going to refuse the advice of the Prime Minister, this could lead to a resignation. So the Governor General must know in advance of considering a refusal whether in fact she could form a viable government that would take political responsibility for it. This is something I stress: whatever action the Governor General takes has to be something that the elected politicians are willing to take political responsibility for, whether it's the government of the day or a new government.

So there is discretion, but it's not by any means that a Governor General can simply do whatever she feels is best. She can only do what the current government or a replacement government is willing to acquiesce to and, ultimately, defend to the public.

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

Okay.

I have a second question that I'll give briefly because I know I'm running out of time. In each case, we're faced with a prorogation in the context of a minority parliament--obviously it's great to be a majority parliament--but at the point at which the House returns, there always remains the option of the House choosing to defeat the government at that point.

[Prof. Andrew Heard]

Right.

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

It seems to me that this has significant implications in that, effectively, prorogation in the event.... I'll start with in the event of an electorate that doesn't support the government; it's just simply a way of putting off the inevitable.

I suppose that in the event as we had in 2008-2009, that of a situation in which the House of Commons hadn't supported or, given a chance to vote, wouldn't have supported the government, but in the event of an election, the voters, it seems, would have re-elected the government and perhaps given it a majority based upon the considerations that the electorate was applying at the time and what the polls say....

I struggle with how one empowers the House of Commons to a greater degree through rule changes without effectively disempowering the voters. I want your thoughts on that, if you could, please.

[Prof. Andrew Heard]

There's no easy answer to that one. It comes back to an early question of how the public views the political system and the rules and the facts of the case. I think one unfortunate misunderstanding among many in the public is a very fractured notion of what the role of the House of Commons is in the political system.

A long succession of majority governments in the 20th century kind of established the notion that the government is completely in control and the House is there simply as a debating forum and to stamp the government's business. What we have in the 21st century are more minority governments, which are bringing home the issue that the government has a right to set the policy agenda, but the House of Commons must be in control of approving that business and deciding who has the legitimate right to govern, particularly following an election.

I think one step of reasserting the House's primacy in the political system would be to require the House's consent to prorogation, because it is a practical and a symbolic statement that the House is the one that's been elected by the people and the House should be ultimately in control of its affairs and the parliamentary process. The government of the day has a very important right to propose matters, but it's the House that actually disposes of how they will be approved or not, or changed.

My suggestion about trying to have some kind of statement in the regulation of prorogation is tied up in a belief that it is important to make some kind of visible and public reinstatement of the House of Commons in the political process.

I'm sorry. That's a very convoluted and torturous answer to what was a good question.

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

Thank you very much.

[The Chair, Conservative, Joe Preston]

Monsieur Lauzon, for a short question, and we'll finish up.

[Guy Lauzon, Conservative, Stormont—Dundas—South Glengarry, ON]

I have a very quick question as we're over time.

Thank you for being here, Professor Heard. We've had other academics appear before us and have had these interesting discussions.

You mentioned in your opening comments that prorogation is usually a routine matter. Really controversial prorogations haven't come up very often in our short history.

After speaking about this with different professors and different academics, I'm paraphrasing here, but at the end of the day after a lot of discussion I think that at least some of them said that you have to be very careful here, because you might be going down a slippery slope, or you might be getting into areas where you really don't want to go to. Maybe we are overreacting to the exception. Maybe the rule isn't so bad. We have to be careful not to overreact to this exception.

I think it was Professor Franks who said that it probably isn't worth going there, that probably we should maintain the status quo. Do you have any thoughts about that?

[Prof. Andrew Heard]

Yes. I do appreciate the kind of extraordinary circumstances that have brought us to this juncture, but I think the likely continuation of minority governments, in the intermediate future anyway, makes it important for the House to consider the role of the House in the governing process and the parliamentary agenda-setting process.

I think it is a very valuable exercise for the House to establish its role in consenting to prorogation. I think it's part of this process of re-establishing the identity and the legitimacy of the House in its relationship with the government of the day. I think that is a very worthwhile exercise for future governments: to be reminded that the House is the master of its own affairs and that the government needs the consent of the House.

I think it's important to do this. The suggestions I've tried to make should allow for some degree of flexibility in terms of dealing with unforeseen circumstances, but in the routine day-to-day process of parliamentary business, I think the emphasis should be on being able to get as much business done as possible. If the House wants to continue in a longer session, perhaps it should have the freedom to do so. If it's a fixed session, that's fine, but the House should decide, as a House, how long it sits and when it has finished its business.

[Guy Lauzon, Conservative, Stormont—Dundas—South Glengarry, ON]

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you.

Professor Heard, we thank you for coming today. I have one quick question. I know the committee will allow it because I've only had one today and I don't normally ask any.

Monsieur Lauzon stated that most of this happens during minority governments. Prorogation is almost a non-issue during majority governments, but you gave your view on that piece.

But we've had other witnesses who have said to us that some of what you're asking about, or that we've been talking about here, is creating new conventions, either through motions or...you gave a fairly long list of how to create that new convention. But many have suggested to us that the convention can't be created by a minority and—I'll use the words of Professor Russell—it will take “all the actors in this game” for us to create a new convention.

What's your view on it being done while there is a minority? Because perhaps it would not be all of the actors who would be involved in creating the convention.

[Prof. Andrew Heard]

I think that's a very good and piercing question, actually.

[The Chair, Conservative, Joe Preston]

Thank you. That's twice today. Could somebody mark this down?

[Voices]

Oh, oh!

[Prof. Andrew Heard]

There are two ways to answer that. One way is that if one was just going to set out to create a new convention, I think Professor Russell was suggesting there'd be some statement that was agreed to by all the leaders of the parties and you would need all four in order to do it, and that would be, in essence, the normal way of instantly creating a new convention, because all the major actors would have agreed.

There's a different sense in which a convention relating to Parliament may be created, and that is where the majority makes a motion and declares something to be the case. It could be on what does or does not constitute a matter of confidence, for example. In that case, in my view, it doesn't matter whether the government agrees or not. If the majority of the House says that this is or is not a matter of confidence, that is a definitive statement, and it changes the constitutional convention relating to confidence. It can do that because the essence of confidence is whatever the House says is confidence or not.

In terms of prorogation and so on, it's one of those situations where the House's opinion is in fact ultimately the most determinative. If a majority passes it with the dissent of the government, then I would say that the majority has still created a convention that is binding on the government.

[The Chair, Conservative, Joe Preston]

Thank you for your time.

We've gone a little over because I know you've travelled a long way, and I wanted to give everybody a chance. Thank you so much for answering all of our questions today. It has really added to our confusion.... No--

[Voices]

Oh, oh!