Procedure and House Affairs Committee on June 10th, 2010

[Prof. Patrick Monahan]

And in the case where there is doubt about whether the Prime Minister enjoys the confidence of the House, it is necessarily the case that the Governor General will have to step back and assess the appropriateness of the request that's being made.

[Christiane Gagnon, Bloc, Québec, QC]

Okay.

Under the current government's rule, Parliament has been prorogued more often than in the past. The public and the media were left with the impression that the government did not want to face the House of Commons. So, prorogation was a way for the government to circumvent the problem, instead of holding a confidence vote.

You said that it was possible to determine that the Prime Minister enjoyed the confidence of the House. I am not so sure of this, but, at the same time, the public wasn't happy with the way the country was being governed, and there was some fallout. Besides, this is why we are in committee.

Do you think that this way of proceeding, that is, asking the Governor General to prorogue Parliament, was justified? We say we want to limit the Prime Minister's authority to seek prorogation, but we need to know what circumstances must be present in order for him to make this request.

[Prof. Patrick Monahan]

I think the issue of when the Prime Minister should ask for prorogation, the nature of the request, if he has the confidence of the House, is really a judgment for the Prime Minister to make. But it will have real consequences, and this most recent request has had very real consequences. Indeed, there was a demonstration at my university, as amazing as you might think, of students against prorogation. When one of the ministers of the government came to hand out a cheque, there was a demonstration about prorogation. It was the most amazing thing you could imagine. Prior to December 2008, no one would have even known what prorogation was.

So I think there are real consequences, and I think we should recognize that and not try to remedy this particular situation through some rules that may have these unusual consequences.

[The Chair, Conservative, Joe Preston]

Merci.

Mr. Christopherson.

[David Christopherson, NDP, Hamilton Centre, ON]

Thanks, Chair.

Interesting presentation, Professor. Thank you.

I want to pick up on your comment that you found it odd--and I'm paraphrasing--that we would focus on a particular power, particularly given that there may be unintended consequences. Then I think you made a comment that because they are unintended, we don't know what they are. But by that theory alone, we would never do anything, because there are unknown consequences. A reasonable person would have to have some idea of what those potential unintended consequences would be before you used that for a reason not to do something.

[Prof. Patrick Monahan]

That's fair enough. It seems to me the related question is if you're going to do something, you have to say, what is the problem we are trying to remedy? What is that problem? Is the problem that a Prime Minister who may or may not enjoy the confidence of the House seeks to avoid facing the House? Is that the problem? If that is the problem, then I say that is dealt with by the reserve powers of the Governor General, and there's no necessity to try to deal with a problem that is not a problem.

If, alternatively, the problem is one where the Prime Minister does enjoy the confidence of the House, there's no question that the Prime Minister enjoys the confidence of the House, but we're going to subject the ability to seek prorogation to seven days, then you are immediately throwing this issue of prorogation into a major constitutional confrontation, because any request will immediately force the House into a motion of confidence on the request. That will be the consequence. Therefore, now, any time the Prime Minister, who has enjoyed the confidence, there has been no doubt, wants to make a request, the matter is going to become a matter of confidence and there could be an election over a prorogation of two months. You say, what's the problem? Maybe there is no problem. But we don't know.

I'm not sure why any request for prorogation must automatically become a matter of confidence, because that is in effect what that proposal would do.

[David Christopherson, NDP, Hamilton Centre, ON]

The issue for us, of course, is that the Prime Minister would have confidence, but his powers are not unlimited. It's not a monarchy; the Prime Minister doesn't just rule. Parliament is still supreme. When we're talking about prorogation, we're talking about when Parliament sits. You could argue there's nothing more fundamental for Parliament to be seized with than when they're going to sit.

I want to move on to the argument you made that restricting the Prime Minister's ability to give advice to the GG constrains the GG. I just want to read to you from our law clerk's presentation to us:

The advisory role of the Prime Minister is based on an unwritten constitutional political convention. If prerogative legal powers can be overtaken by legislation, it must surely be true that unwritten political rules can be overtaken by legislation. Thus, legislation seeking to regulate prorogation without falling under paragraph 41(a), [which is the constitutional amendment] discussed above, might seek to regulate only the advisory role of the Prime Minister and not the power of prorogation held by the Governor General.

However, a failure to comply with the statutory restrictions imposed on the advisory role of the Prime Minister would not by itself invalidate an exercise of the prerogative power of prorogation by the Governor General.

He's basically contending that the Governor General's powers have not been touched. Even if the Prime Minister violates any rules we put in front of him, the GG still reserves her powers. Therefore, we're not doing an end run around the Constitution; we are constitutionally within our right to confine the Prime Minister, not having at all touched the powers of the GG.

That's my street interpretation of the law clerk's proposal.

[Prof. Patrick Monahan]

I haven't read the law clerk's submission on that, but it seems to me you would be faced with a situation where somehow legislation would say the Prime Minister may not seek a prorogation. There would have to be some kind of clause to say that nothing in this law limits the powers of the Governor General.

[David Christopherson, NDP, Hamilton Centre, ON]

Why would you have to say that if you believe it's there anyway? If you believe it's there in reserve, do you have to really repeat it?

[Prof. Patrick Monahan]

You would have to say it, otherwise it would give rise to the possibility that it would be a constitutional amendment. Indeed, that is what the provisions were in the fixed date election law that was enacted in 2008. The law said there shall be an election on a certain date in 2009, but nothing in that requirement limited the powers of the Governor General, which therefore meant that the Prime Minister could, notwithstanding that law, go to the Governor General prior to that and seek an election. That has now been upheld by the Federal Court of Appeal as valid. Therefore, on this proposition the law would say the Prime Minister may not seek prorogation, but if he does, it's okay. So I'm not sure what such a law would accomplish.

[David Christopherson, NDP, Hamilton Centre, ON]

We're also looking at measures.

[The Chair, Conservative, Joe Preston]

Thank you.

Professor Monahan, can you give us 15 more minutes?

[Prof. Patrick Monahan]

Yes.

[The Chair, Conservative, Joe Preston]

Then let's do another round of five minutes, if we can, starting with the official opposition.

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

I'm okay.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

On a point of order, we have committee business afterwards.

[The Chair, Conservative, Joe Preston]

We left that as committee business in case we had the report on technology back, but we do not have the translation back.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

So there will not be committee business.

[The Chair, Conservative, Joe Preston]

We have nothing to do on committee business.

Mr. Reid.

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

Thank you, Mr. Chairman.

Professor, do you think Lascelles principles that have been applied to the acceptance or refusal of requests to dissolve the House have any applicability here?

As you know, in 1950 the private secretary to King George VI published a letter in The Times in which he discussed the principles that he thought applied. He said:

...it can be properly assumed that no wise Sovereign—that is, one who has at heart the true interest of the country, the constitution, and the Monarchy—would deny a dissolution to his Prime Minister unless he were satisfied that: (1) the existing Parliament was still vital, viable, and capable of doing its job; (2) a General Election would be detrimental to the national economy; (3) he could rely on finding another Prime Minister who could carry on his Government, for a reasonable period, with a working majority in the House of Commons.

The first criterion has no relation to prorogation by definition, because all parties are assuming that the current Parliament is viable. But what about points (2) and (3)? If the Governor General were trying to make a decision as to whether or not to accept a recommendation for prorogation, would they serve as a good basis on which to formulate the decision?

[Prof. Patrick Monahan]

I think in principle it's difficult to apply principles that might reply to a request for dissolution to one for prorogation, because they're quite different, as we know, and as you know and you're suggesting.

In the dissolution situation, the Prime Minister is saying, “I want an election now.” There has only been one case where such a request has ever been refused, which is the 1926 case, which is itself still a matter of some uncertainty. But in the case of dissolution, the only alternative for the Governor General at that point would be, it seems to me, to ask, is there an alternative Prime Minister who could be called upon to form a government? If not, then it's not clear to me that there would be any other option but to grant the request for dissolution.

That would require an assessment by the Governor General. It would require an assessment as well of how close in time we were to the previous election. The closer in time you were to the previous election, the more tendency there would be for the Governor General to want to find that there is an alternative government.

So I think the principles in the dissolution scenario are rather different from those in the prorogation scenario.

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

Right.

What attracted me to this, and looking at parallels, is there is emphasis on finding another Prime Minister to carry on the government, obviously, because presumably by refusing a request for prorogation, one of the consequences of refusing advice is you're actively dismissing your Prime Minister, are you not?

[Prof. Patrick Monahan]

Some commentators have made that proposition, and indeed Mr. King in 1926 immediately resigned upon the Governor General refusing his request. It's not clear to me that the Prime Minister would necessarily be required to resign. It would depend upon the discussion between the Governor General and the Prime Minister at that time.

If the Governor General did not wish there to be an election but there was no alternative government, I could imagine the Governor General, if she refuses the dissolution, asking the Prime Minister, “Do you nevertheless wish to maintain or continue in office?” And he may, at that point, say, “I'm going to resign.” It's not clear, necessarily, that he has to resign.

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

So in the case of a prorogation, going back now to 2008, the thought that has occurred to me--and I may very well be wrong, from what you're saying--is that had the Governor General said to the Prime Minister, “I'm turning down your advice to prorogue”, my assumption would have been that that would have required him to resign on the spot.

Am I incorrect that she couldn't have legitimately said, “I'm refusing your advice, but I want you to stay on to see the outcome of the confidence vote that will be taking place next week”?

[Prof. Patrick Monahan]

I do not see why the Prime Minister should have resigned at that moment. He could have, but the House was to meet on the following Monday. I assume the results would have been that the House would meet, there would have been a vote taken, and as a result of that vote the government would have been defeated. At that point, Mr. Dion would have been called upon to form the government.

If he had resigned at that point, I would imagine she would have simply at that point called upon Mr. Dion and would not have had to wait.

I do not think he would have had to resign at that time. I think it would have been appropriate for him to continue in office until the following Monday.