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.
11:20 a.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
Okay.
The reason I was asking that is our previous witness.... I don't know if Professor Monahan's testimony has been up long enough for you to have seen it.
11:20 a.m.
Assistant Professor, Faculty of Law, University of Western Ontario, As an Individual
No, I have not seen it.
11:20 a.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
Okay.
He wasn't dealing with this specifically, but in general he expressed concern that in dealing with the Governor General.... I'm paraphrasing to some degree and I may be doing him a bit of injustice here, but I think that in general he was expressing a reluctance, to use Bagehot’s phrase, to shine light upon magic, to have too much public exposure as to what goes on when the Governor General makes decisions. He also had some reluctance in regard to dealing with a public review or appointment process.
So I guess the question arises as a general theme. Do you think it's positive to have, as Governor General Hardie Boys was trying to do, more openness in this regard, or to have less openness? Should our current Governor General or the next one we get be more forthcoming? Or what kinds of restraints should there be on the willingness to speak out about these kinds of considerations?
I'll just throw that out in a general way.
11:20 a.m.
Assistant Professor, Faculty of Law, University of Western Ontario, As an Individual
Well, I think it has been some time since the Governor General in Canada has been called on to act politically in the way that she must now. And during that interval, public life has been transformed in Canada. There's a much greater culture of transparency and what some call a “culture of justification” of political actors offering their reasons to the public for greater transparency. So I think it's appropriate that the office of Governor General be updated in that direction.
That said, I would not support a proposal for the Governor General to provide written reasons, or reasons, or justification, or any explanation after making a decision. I think that has to be shrouded in mystery or what have you.The function of the Governor General, when receiving advice from the Prime Minister, is not the same function as the function of a judge hearing from two parties impartially and then rendering a decision. It's a different function.
I'm uncomfortable with the Governor General having to give reasons after the fact after a decision. However, I think that it can be very helpful for the Governor General to provide, as Governor General Hardie Boys did, some sorts of discussions in the abstract ahead of time, so that political actors can know where she stands on issues and can respond accordingly, either to communicate their disagreement or their agreement, as part of a process of all the political actors working together either to re-establish or to change a convention.
11:25 a.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
Just very briefly, as I only have about 20 seconds, have the subsequent Governors General in New Zealand regarded the decision rules that were discussed by Governor General Hardie Boys as being binding upon them as well or as being the kinds of rules they would use?
11:25 a.m.
Assistant Professor, Faculty of Law, University of Western Ontario, As an Individual
That, I don't know. I haven't heard any dissatisfaction about his role in New Zealand public life. I know the current Governor Generals still produce speeches and they're on the Governor General's website, but I haven't delved into that content at all.
11:25 a.m.
Conservative
11:25 a.m.
Bloc
Christiane Gagnon Bloc Québec, QC
Thank you, Mr. Miller.
A number of people have lived through prorogation of the House three times for all sorts of reasons. The last time, public opinion did not really accept it. People challenged the use of prorogation, and it probably was an abuse.
We can see that the use of prorogation has indeed been abused by the current government on several occasions. The last time, it appeared that it was not well received by public opinion. Some people, including some university professors, wanted to find out what their peers thought. There was even that young man who set about creating a website to post the reasons why the government had decided to prorogue the House.
That leads us to reflect on the need to make more prudent use of prorogation and on the role of the Governor General. As a parliamentarian, my sense is that the Prime Minister goes to ask the Governor General for advice, but she really has no choice. It would have surprised me greatly had the Governor General decided not to follow the Prime Minister's advice. Agreeing to his request is no more than a formality.
You say that there could be more transparency, but, at the same time, you say that reasons for the decision need not be given afterwards. That is a very thin line. I find it hard to believe that the Governor General could explain her reasons beforehand, but not afterwards. Agreeing to the Prime Minister's request really is nothing more than a formality. The Governor General has very little discretion.
11:30 a.m.
Assistant Professor, Faculty of Law, University of Western Ontario, As an Individual
Thank you.
There's an awful lot in your comments. With respect to how to approach this, what I'm suggesting is that the decision-making of the Governor General's office has to have some better transparency. I've suggested one way of doing it; I've drawn the line at after-the-fact reasons. I think that in transforming a public institution we have to take baby steps. I'm not certain that giving after-the-fact reasons, in our present political culture, is wise.
I believe that it would be tremendously helpful for the Governor General to talk about the role of that office, such that there could be an understanding by the Prime Minister or by others as to.... Ahead of time, she could draw a line as to when she believes she would be entitled to use the reserve powers and when not.
You say that the culture now is such that she has to accept the advice of the Prime Minister. I think there's some debate about that. I think good arguments could have been made--either way--back in 2008 as to what she could have done. It would have been very difficult, to be sure. It would have been very difficult for her to refuse the advice of the Prime Minister.
Perhaps it would have been much easier if she had, ahead of time.... Well, she would never have anticipated the situation; I certainly can't suggest that. But if ahead of time there were rules set out in advance, that would strengthen the position of the Governor General, who could then later say that these rules have not been followed and this is why I'm now refusing the advice of the Prime Minister.
11:30 a.m.
Assistant Professor, Faculty of Law, University of Western Ontario, As an Individual
It would be some articulation of what the convention is regarding prorogation. I don't have a proposal for what those rules ought to be. That is something for the political actors to come to, political actors who include the Governor General. All I'm suggesting is that there needs to be some discussion, as you are all engaged in, to come to an agreement as to how things will work going forward.
11:30 a.m.
Bloc
Christiane Gagnon Bloc Québec, QC
It would need some kind of committee in which all the stakeholders would take part. It could reflect on more precise rules to ensure that opposition parties would also be consulted on such a move and that everyone would agree on certain rules. In the case of prorogation, accepting it is one thing, but there is also how long it will last. Often that is what shocks opposition parties. We are here to sit, to defend legislation. In our committees, we have been left hanging. There was something frustrating in that, because we were no longer able to do the work that parliamentarians are supposed to do. We came back to the House in March. The session is out of balance because it was chopped by five weeks. We have less time in which to work in our committees. We are suffering the consequences.
Perhaps prorogation could have been better identified in terms of its justification and its duration. But it has to be said that, in one way, that makes no sense, because, before this session ends, we are not going to be able to deal with bills that come back to the Order Paper.
11:30 a.m.
Assistant Professor, Faculty of Law, University of Western Ontario, As an Individual
Well, what sort of format or venue is used for these discussions is something that's beyond my expertise, but certainly the discussions are of great value and are necessary.
June 15th, 2010 / 11:35 a.m.
NDP
David Christopherson NDP Hamilton Centre, ON
Thank you, Chair.
Thank you very much, Professor, for attending today. I appreciate it.
Perhaps I could just pick up where Madame Gagnon left off on the GG. Another presenter had the same opinion you have: that it's not in the best interests of our system for the GG to give reasons after the fact.
I'm still having some trouble getting my head around that. I've mentioned before that Canadians are no longer as deferential as they used to be to all the powers that be, even up to and including the Queen and her representatives. And as for this notion that there's some kind of mysticism that needs to be protected in order to make the system work.... I'm just having trouble getting there.
Please help me understand why you believe it wouldn't be wise for the GG to give reasons. There's so much power there, so much authority, and in this day and age of accountability--and we're living through that personally as members of Parliament, writ large--accountability is the cornerstone. And here we are, saying that the highest authority in the country, we could argue, with the ultimate power to decide who gets to form a government, is to remain in secret as to why certain decisions are made. Help me to understand in that context how keeping things secret is helpful.
11:35 a.m.
Assistant Professor, Faculty of Law, University of Western Ontario, As an Individual
I don't think the language of mystery and mystique is particularly helpful here.
11:35 a.m.
NDP
11:35 a.m.
Assistant Professor, Faculty of Law, University of Western Ontario, As an Individual
I don't think it's helpful, the language of mystery and mystique, that keeping something shrouded in secrecy is a good in itself...I don't mean to say that. We lawyers tend to be a rather cautious lot, so I'm reluctant to recommend a very large change like that.
However, more importantly, in circumstances where the Governor General refuses the advice of the Prime Minister, the focus is then removed from the Governor General. What seems to me to be important, then, is what subsequently happens in the House; when the advice to the Governor General is refused, things are sent back to the House of Commons, where the House can take what steps it will.
11:35 a.m.
NDP
David Christopherson NDP Hamilton Centre, ON
Let's try to stay general. You used the term--and I jotted it down--that you weren't sure it's “wise”. Why? What are the downsides? What are your concerns? What if we said, “Continue to exercise the powers, but we would like an explanation...”? What is the harm that you think could happen? I'm not seeing that.
11:35 a.m.
Assistant Professor, Faculty of Law, University of Western Ontario, As an Individual
I don't know. It's just a step into the unknown.
11:35 a.m.
NDP
David Christopherson NDP Hamilton Centre, ON
Just because it's unknown, we don't want to go there...? Is that the only reason?
11:35 a.m.
Assistant Professor, Faculty of Law, University of Western Ontario, As an Individual
That's as good as I can come up with at—
11:35 a.m.
NDP
David Christopherson NDP Hamilton Centre, ON
But I could give you a good argument on the other side, and I already did, as to why we need to do that. There's no response to that. You just say that it's unknown.
11:35 a.m.
Assistant Professor, Faculty of Law, University of Western Ontario, As an Individual
Well, what was the response I gave? I think what I said was that once the advice has been refused—
