Procedure and House Affairs Committee on June 15th, 2010

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

But if I understand, for instance, if in the House of Commons one party or another tables a motion to amend the Standing Orders to create some kind of framework through the Standing Orders on prorogation, and it is adopted by a majority vote, it would not equal a convention, because it was not supported by all parties in the House.

[Dr. Bradley Miller]

That's correct. It would not be a convention. It could become one later.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Yes. If, through time, the different parties that form government, that do not form government, and those that may have no hope in hell of ever forming government or have no interest in ever forming government, all adhered to it, then ultimately it could become a convention.

[Dr. Bradley Miller]

Yes.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you so much.

[The Chair, Conservative, Joe Preston]

Good. I let you go on just a little longer, but you're making a great point there about how we got to a convention.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Don't I always, Chair?

[The Chair, Conservative, Joe Preston]

Of course. I'm sorry. My mistake today--

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Don't equivocate now....

[The Chair, Conservative, Joe Preston]

Mr. Albrecht.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you, Mr. Chair.

Thank you, Professor Miller, for being here today. You've really been helpful in terms of outlining the difference between advice to the Prime Minister and information from any source to the Prime Minister. I think those words have been used interchangeably in the past. For me, that has been helpful.

You also pointed out that the conventions are created either by a practice over time or by an agreement of all parties. They can't be instituted simply by a majority of Parliament, as my colleague has just reaffirmed.

Right near the end of your talk you mentioned a hearing or a discussion with the Governor General appointee. I'm not clear on whether that hearing would occur prior to it being ratified. If so, would one party in that hearing have the power to veto the recommendation of the Prime Minister? Would you need unanimous consent of that group? How would you envision it, for example, in regard to having an appointee brought before a committee and then one or two of the committee members disagreeing with the majority? How would you envision that playing out?

[Dr. Bradley Miller]

I wouldn't envision anything that is different from the process currently followed for appointments to the Supreme Court. Correct me if I'm mistaken about the process, but as I understand it, that appointment rests with the Prime Minister throughout.

I am not entirely sure what the status is of a hearing before Parliament, but there is even greater value with the appointment of the Governor General than there is in following that process for a Supreme Court nominee, because it's much more relevant for the function of the Governor General to hear from parliamentarians as to what they expect from a Governor General. This is an opportunity for a face-to-face interaction directly with members of Parliament that would not occur subsequently in the tenure of the Governor General.

I'm not proposing any sort of hearing where anyone has any veto over the proposal or anything like that. I'm just suggesting that there is some value in a face-to-face meeting in the House prior to taking office.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

So in some ways, it would be subsequent to the appointment, but now you're sitting down with him or her trying to discover what their modus operandi is in terms of how they would approach a question like a request or the advice of the Prime Minister to prorogue Parliament.

[Dr. Bradley Miller]

Yes.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

That's helpful, because I would have some difficulty with the former interpretation where it's possible that one or two members could actually veto the appointee or the appointment being ratified. So that's good.

Thank you. That's all.

I will share my time.

[The Chair, Conservative, Joe Preston]

There are a couple of minutes left on your time, Mr. Albrecht.

Is there anyone else on your side? No?

Monsieur Guimond, there is nothing from you today...?

Mr. Christopherson, would you like another throw?

[David Christopherson, NDP, Hamilton Centre, ON]

I'm good, Chair. Thanks.

[The Chair, Conservative, Joe Preston]

Excellent.

Rodger?

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

No. Go ahead.

[The Chair, Conservative, Joe Preston]

Good. We've given everybody a chance today and we've done all we can do. That's fantastic.

As you can see by our questions, Professor Miller, we're well into this. We've had many views from others.

If I can just sum up a little, though, Madam Jennings asked you.... We're going to supply you with the quote she used, on the Speaker's advice, and we'll ask for you to answer that and give it back to this committee, if you can.

If I could just throw in another piece on it, too, we've had more than one witness suggest that the Speaker is able to give advice to the Governor General, or at least.... The interpretation, as you've said in your opening remarks, is whether it's advice or information. If that were the case, then, would the Senate Speaker also have the same purview...? Does he have the same ability? What would happen if the advice were contrary?

[Dr. Bradley Miller]

That puts us on some fairly tricky ground.

[The Chair, Conservative, Joe Preston]

Right.

[Dr. Bradley Miller]

I do not know whether the Senate Speaker has the same access to the Governor General. I can't see a reason in principle why not; I've heard of no convention to the contrary.

If the advice, and here I don't want to misspeak.... It's not so terribly important if the information is contrary from the Speaker of the House or the Speaker of the Senate. Because it's not advice in the constitutional sense, as it is from the Prime Minister: this is just some background information saying that these are things you need to be aware of when you are making your decision.

I would be very surprised if it were not already the case that the Governor General has multiple advisers who do not always agree.

[The Chair, Conservative, Joe Preston]

Multiple information suppliers....

[Dr. Bradley Miller]

Yes. I'm now causing—