Evidence of meeting #17 for Procedure and House Affairs in the 40th Parliament, 3rd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was business.
A recording is available from Parliament.
Associate Professor, Department of Political Science, Simon Fraser University, As an Individual
Yes. So you would have two two-year sessions in a Parliament. Just make it routine and carry on. Allow for emergencies and prorogation and that kind of circumstance, but let's just defuse the issue and ensure that Parliament gets on with its business.
Conservative
The Chair Conservative Joe Preston
Thank you.
We are moving to a five-minute round now. We're going to try to get in everybody who wanted a question today.
Madam Jennings, let's go to that and see if we can do it.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Thank you.
I just want to make sure that I understand some of the suggestions you've made, both to Monsieur Guimond and to Mr. Christopherson.
The House could adopt a motion amending the Standing Orders, I assume, which would indicate that the House views prorogation without its consent as an obstruction to it conducting its normal business. A second motion--or it could be included in the same motion--would stipulate that it's not a matter of confidence. And/or another motion amending the Standing Orders would state, “That the House of Commons would approve a decision by the Governor General not to acquiesce to a Prime Minister's request for prorogation without consent of the House”. Either included in that, or in a separate motion, it would stipulate that it also would not be a matter of confidence.
Did I understand you correctly?
Associate Professor, Department of Political Science, Simon Fraser University, As an Individual
That's close enough. Yes.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Okay. So “close enough”: does that mean 90 out of 100 or 60 out of 100?
Associate Professor, Department of Political Science, Simon Fraser University, As an Individual
I'm drawing a distinction between perhaps an ordinary motion that simply states an opinion of the House and is recorded and could be worded in a way that is an enduring statement of a House position, not the opinion of the day. I believe the House can pass an ordinary motion that is meant to have a definitive statement and an enduring kind of quality. The statements about unauthorized prorogation being an obstruction of the House could be in that kind of context.
One could put those statements in the Standing Orders. I prefer to see the Standing Orders limited to more of a procedural matter, but the House can put whatever it wants in the Standing Orders. The Quebec National Assembly last year tried to put a definition of confidence matters in theirs, so you could put whatever you want in the Standing Orders, perhaps as a preamble to a section that lays out when and how consent should be given by the House of Commons.
You could do it either way. The value of putting it in the Standing Orders is that there is no question, then, that this is meant to be an enduring statement. If it's a motion passed in the 40th Parliament, when we come to the 44th Parliament, the government could say, “That was back in the 40th Parliament and we've moved on since then”.
Conservative
Harold Albrecht Conservative Kitchener—Conestoga, ON
Thank you, Mr. Chair.
Thank you, Mr. Heard, for being here today as well.
I read your article dated December 2008. In the middle of that article you make the statement that “...the advice to prorogue parliament is arguably quite unconstitutional”. Yet at the beginning of the article, you point out, “The Governor General has reached a very difficult and historic decision...”, and you go on to point out, “A difficult decision implies that there are good reasons to decide in either direction...”. You say that “...the Governor General has a duty to intervene in the political process as little as possible.”
Your second point reads as follows: ...the governor general is bound to normally act on any constitutional advice offered by a prime minister who commands the confidence of a majority in the House of Commons. Since the Conservative government won the confidence votes held on the speech from the throne in the last week of November, Mr. Harper could apparently address the governor general with authority.
In my opinion, those two thoughts from the middle of your article and the ones at the beginning are somewhat at opposite ends of the spectrum. This confirms what we've observed in the last number of weeks as we've tried to study this issue. We hear a wide variety of opinions from different experts from all across the country.
My question is this. If you were writing this article today, are there any positions that would be modified in light of what's happened since that prorogation? Or would it be 99% the same as what you wrote in 2008? I don't know if you get the gist of my question. It's a long question.
Associate Professor, Department of Political Science, Simon Fraser University, As an Individual
I have in fact written two further pieces on the 2008 prorogation, in which I enlarge on a number of issues. My conclusion ends up being the same, but I think my appreciation of the nuances and the appreciation that there really is a considerable foundation for the opposing arguments.... And this is one of the perks of being an academic: one can say that the other position is brilliant, but I just happen to like mine a little more or find it a little more convincing.
In terms of the 2008 prorogation, very clearly, there are strong arguments to be made that the Governor General should have acted on the advice. The normal position is that so long as the government has a relatively fresh confidence mandate from the House of Commons, it can insist on most matters put to the Governor General. The exception to that in this case was, I felt, that it was unconstitutional advice in trying to prorogue the House while a clear confidence motion was on the agenda and would be held within a matter of days. That's where I had problems with it.
Conservative
Harold Albrecht Conservative Kitchener—Conestoga, ON
I guess the point I'm trying to highlight there is that the very recent adoption of the throne speech clearly--politically, at least--gave a clear understanding that Parliament actually was giving the Prime Minister and the government its confidence.
Associate Professor, Department of Political Science, Simon Fraser University, As an Individual
Yes, and normally that would be definitive, and I think the procedural gaffe since Confederation was made by the official opposition in not standing up on that Thursday afternoon and asking the Speaker to defer the vote until Monday. It was nonsensical, in my view, for the three different parties to stand up and decry the economic statement and say they would be voting against it, and then an hour later walk into the House and vote confidence in the same government. It was a piece of parliamentary theatre that I appreciated from afar.
Conservative
Bloc
Christiane Gagnon Bloc Québec, QC
I would like you to inform us about how parliamentary work is done in Great Britain. You said that prorogation of Parliament has already been decided there.
Does this annul all ongoing work or does it have any influence on the quantity of work done by the Parliament? You can imagine that there are fixed dates for prorogations that come back with increasing frequency! Tell us a bit about the mechanics. Tell us how it works.
Associate Professor, Department of Political Science, Simon Fraser University, As an Individual
As far as I understand it, there is a routine reinstatement of a large amount of business; it's not all the business, but a large amount of business is routinely reinstated. So matters that began in one session would be picked up in the next session from essentially where they were previously. That's my understanding.
I could be misinformed on that, but in effect, it's something similar to what occurs in this House of Commons, where in recent years a fair number of the matters that died on the order paper are reinstated in the next session, essentially where they were before. I think that's the case in most of the modern parliaments; there's quite a wide scale of reinstatement of business.
What is unusual in some instances is that in some parliaments, the existing parliament can state that they want these particular issues to carry over into the next session. So it would be possible, where prorogation is done on a regular basis, that prior to prorogation the House passes a motion saying that “Bills 34, 36, and 59 shall be reinstated”, and this in effect gives no option to the House or the government in the next session.
In New Zealand, they did that with their parliament. You could reinstate issues from one parliament to another, which would be curious, because then an election could occur between events, and the election could be fought on issues where the public was saying, “We reject those policies that were being proposed in the old parliament”.
That's one reason why, in 2005, New Zealand stopped the ability of a current parliament to state that matters shall be carried forward into a new parliament, because they believed that things should be left to a new parliament to decide whether they're carried forward. That's very different from a new session of the same parliament, where there's no theoretical problem of the same parliament binding itself to carry matters forward.
Bloc
Bloc
Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC
Yes, I will be brief, Mr. Chair.
I just want to finish the question that I wanted to put to you at the end of the previous round table.
As chance would have it, over the past two years, the Prime Minister used prorogation in December, at the end of the year. As you remember, it was two years ago. This was in order to avoid facing a Liberal-NDP coalition supported by the Bloc Québécois. He resorted to prorogation. And this time, on December 30, 2009, it was in order to avoid the whole issue of Afghan prisoners, etc.
If, as in England, Parliament was prorogued on December 31 of each year, would we have to change various legal and legislative instruments to avoid...? The event happened in late December. Now if the House must be prorogued in December of each year, and if in March or in September, some other event occurs, some other coalition or some other documents that the government does not want to show, the Prime Minister could once again resort to prorogation if we had not limited this power.
Associate Professor, Department of Political Science, Simon Fraser University, As an Individual
This is one reason I was suggesting that the Standing Orders might be amended to state that all business would be carried over from one session to another, so if you had a routine prorogation at a set date, the normal understanding would be that all matters would be reinstated. The government has the advantage of a prorogation gap, as it were, to let matters settle, come back with a throne speech, re-present its position, and have a confidence motion, but then carry on with the business that was largely on the agenda before, with some new items.
If it wished to reset the parliamentary agenda, then there would be provision for the routine consideration, at the beginning of the new session, of whether those matters would be fully reinstated or whether we would pick and choose from those. But I think the effect of a regular prorogation, with the assumption that all business will carry over unless the House decides otherwise, creates a disincentive for tactical prorogation and still allows the business of Parliament to be continued and reset if the majority of the House feels it should be reset.
Conservative
The Chair Conservative Joe Preston
Thank you, Monsieur Guimond.
Mr. Cuzner, do you have a quick question or two?
Liberal
Rodger Cuzner Liberal Cape Breton—Canso, NS
I do. I'm confident that they'll add nothing to our study, but I'm just sort of nosy on this.
Just prior to the 2008 prorogation, a furor erupted around the coalition. As a political scientist, a respected professional in your field, were you somewhat surprised by the lack of understanding of the Canadian parliamentary system that was shown by a lot of the electorate with regard to the legitimacy or illegitimacy of the coalition?
Again, I don't think this will add anything to our discussion here, but I'd just like to get your opinion.
Associate Professor, Department of Political Science, Simon Fraser University, As an Individual
You've touched on an interesting issue. I think that gets to the heart of whether we could just rely on constitutional conventions and the informal understandings that had kind of structured prorogation powers. Up until perhaps 15 or 20 years ago, I think there was a very strong understanding of the nature of conventions and the importance of these moral rules, at least amongst the governing class.
What I've seen in the last 15 or 20 years is an erosion of the consensus on the value of those rules as a set of rules, and a belief among many actors, and even among scholars as well, that conventions are simply a guide and they can be adjusted at will and in effect what happens at the end of the day will be whatever happens--that these are not binding rules in the large sense, except for a very small number of them.
So at an elite level, there's been an erosion of the consensus on these rules. Out in the general public, their understanding of what goes on is reflected in this erosion of the consensus. So their understanding of what goes on in Parliament and what happens with an election has been undermined by very conflicting messages coming from the governing classes, political commentators, and so on.
The net result is a very low level of political literacy. I'm not surprised, because I teach a first-year political science class every year, and I'm always wildly entertained by what my students believe are in fact the rules of the game. Also, during the 2008 episode, I did a number of open-line radio shows, and I can only say that I was entertained by the passionate views, in particular those on the legitimacy of the coalition and whether in fact a new government could be formed so soon after an election. Something that particularly had me impassioned was the attacks on the legitimacy of the Bloc Québécois participating in it.
I had a very entertaining open-line radio session in Alberta in trying to convince Albertans that the Bloc Québécois was in fact a very constructive presence in our political system, and we were very fortunate to have a political party such as the Bloc Québécois pursuing their dreams through the electoral process. As a result, it is all the more important that our electoral process be held to the highest integrity and the rules involved be maintained as much as we can.
