Evidence of meeting #21 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 convention.
A recording is available from Parliament.
NDP
David Christopherson NDP Hamilton Centre, ON
But in any circumstance, regardless of refused or accepted, just if the GG makes a decision, why not have to give some rationale for it?
Assistant Professor, Faculty of Law, University of Western Ontario, As an Individual
Why should the GG give a reason or rationale for accepting the Prime Minister's advice?
NDP
David Christopherson NDP Hamilton Centre, ON
Well, that would be a simple statement, wouldn't it? It would be, “I've accepted the advice of the Prime Minister because I don't think there's anything harmful, untoward, blah blah blah, thank you very much, and subjects be seated...”.
Assistant Professor, Faculty of Law, University of Western Ontario, As an Individual
Is that not implicit in accepting the advice of the Prime Minister? If that's all that's to be said—
NDP
David Christopherson NDP Hamilton Centre, ON
But if you set the pattern that there needs to be some kind of accountability, then in those times when it is controversial, the Canadian people will be looking at something other than two hours of a camera focused on a doorway.
NDP
David Christopherson NDP Hamilton Centre, ON
That was the reality of what we went through the last time.
At the end of the day when she came forward...well, she never did come forward. When the Prime Minister eventually emerged through said doorway and announced that he had what he wanted, the person who made the decision didn't say a word, and still hasn't.
Why? What would be the harm in coming forward and saying, “Here's why I've decided what I've decided”? The rest of us have to live with that, notwithstanding senators, who don't have to answer to anybody, anywhere, anytime. But the rest of us involved in making laws are accountable.
I don't understand. All I'm hearing so far is that because it's a little risky, or you're nervous, you don't want to do it. That's not really a reason, I don't think, but obviously you do. Okay, fine. We're going to go on. If I have time, I would like to return, then, to the main—
I don't know...you make recommendations and you expect them to be defended.
On March 17, the House passed this motion put forward by Mr. Layton: That, in the opinion of the House, the Prime Minister shall not advise the Governor General to prorogue any session of any Parliament for longer than seven calendar days without a specific resolution of this House of Commons to support such a prorogation.
What are your thoughts on that specifically?
Assistant Professor, Faculty of Law, University of Western Ontario, As an Individual
Do you want my thoughts on the motion?
Assistant Professor, Faculty of Law, University of Western Ontario, As an Individual
I think the motion can provide a good starting point for the formation of a convention.
The agreement is what's important here. If that motion can attract the requisite agreement, then you have what you came for.
NDP
David Christopherson NDP Hamilton Centre, ON
Do you think changing the Standing Orders of the House is sufficient or do we need to add a legislative change also? Or do you think doing both is belt and suspenders and is redundant?
Assistant Professor, Faculty of Law, University of Western Ontario, As an Individual
I see them both as simply evidence of agreement. I don't see that legislation is any more evidence of agreement than a standing order is, provided that the agreement is there.
NDP
Conservative
The Chair Conservative Joe Preston
Madam Jennings, we'll have five-minute rounds this time. We'll see if we can get through that and see if everybody who wants a chance gets a chance.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Thank you, Chair.
Thank you, Professor Miller.
Given the suggestions you made following what's taken place in New Zealand, I would have to say that it might be of interest to have the Governor General, prior to any specific use or exercise of his or her authority and powers, whether they be regular or reserve, to in some way make public the kind of process behind that kind of exercise, but not once an actual decision--an exercise of authority--has been taken by the Governor General, so not to then publicly justify any particular decision. I actually agree with you on that. It may be because of my legal training.
Should we, as a House of Commons, attempt to change the convention, to change our constitutional framework in order to require a Governor General to have to justify specific decisions that have been taken, I do think that then we're on the road to eroding our actual parliamentary democracy and our democratic institutions that uphold that democracy. I am in full agreement with transparency, but I do think there are occasions when that's a dangerous road, and it's not one that I personally would want to take.
However, I do believe that in the interests of transparency that it is a good idea that the Governor General may wish to expound a bit on the process that leads him or her to a decision, in the way that Adrienne Clarkson did once she was no longer Governor General. But I think it should be done while they are a sitting Governor General, because that can then inform the public and shed more light. It's not some scary thing like the Wizard of Oz behind the curtain pulling all of the levers without anybody knowing. This way, we would know what the levers were. We may not know the sequence in which they were pulled, but we would know what the levers are, so we that gives us a good sense of arriving at our own idea of what the justification is.
However, on the issue of the motion--
Assistant Professor, Faculty of Law, University of Western Ontario, As an Individual
Can I just interrupt you right there?
Assistant Professor, Faculty of Law, University of Western Ontario, As an Individual
It's just to say that I agree with you completely.
Assistant Professor, Faculty of Law, University of Western Ontario, As an Individual
Sorry. I've interrupted you.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Now, on the issue of the motion.... Actually there are two motions, a NDP motion and a Liberal motion, that deal with attempting to modify the Standing Orders of the House of Commons to provide a regulatory—if I can use that word—framework for prorogation, not in any way impeding or limiting the Governor General's exclusive authority on that.
You have said that's a good starting point. But if I understand you correctly--and this is what I'd like you to comment on--given what you have said about convention, for a convention to actually become a convention it would require, if I'm not mistaken, in your view, not simply a majority vote. If it were a majority vote, then it would be practice. The respect of that particular rule by all parties subsequently would ultimately lead it to being an actual convention. Or it would need to have consent of all parties for it to be established immediately as a convention. Am I correct that this is what you're saying?
Assistant Professor, Faculty of Law, University of Western Ontario, As an Individual
Yes, that's correct. The significance of the motion isn't in the motion itself; the significance is in how it's received by the political actors. So it has ordinary force as a motion, but the way that everyone looks at it and says yes, that's the phrasing, we all agree on the statement of principle....