Evidence of meeting #26 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.
Liberal
Conservative
The Chair Conservative Joe Preston
It's the Governor General who does that.
But that's where the Constitution is on it, right? He or she does not, of course, have to say yes.
Liberal
Yasmin Ratansi Liberal Don Valley East, ON
So if the power of prorogation did not enjoy constitutional protection, what did he mean by that?
Committee Researcher
It was a very elaborate discussion. He went through the separation of powers that he saw in the Constitution, and among them was the prorogation power. He felt that this was part of the Constitution, the prorogation power, in that it enjoyed tacit constitutional protection as part of the Constitution, either in the preamble or he found it elsewhere. So you could not necessarily legislate to do with the Constitution without a constitutional amendment.
Liberal
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
Yes, and I think that's the problem. The term “prorogation” is not actually mentioned in the Constitution, but the preamble to the 1867 Constitution says that whereas the provinces—which it then lists—are desirous of creating a Constitution for Canada “similar in Principle to that of the United Kingdom”, in the United Kingdom, the practice of prorogation had pre-existed. So the question is to what degree....
Of course, we've used prorogation in practice, and the question is to what degree, formally, prorogation exists and what kinds of limitations there are on our ability to make changes to it, and, if so, who would make those changes. We have more than one constitutional amending formula in terms of limitations that would be placed on it.
Then, separate from that discussion of the pure legalities, which presumably you can only resolve by submitting a reference question to the Supreme Court, there is the question--I think Andrew Heard was addressing this to some degree, because he's an expert on constitutional conventions--of the degree, conventionally, to which the Prime Minister's ability to make recommendations to the Governor General on what to do is limited. That's the question we're struggling with over here.
Conservative
The Chair Conservative Joe Preston
Are there further questions--on the ability to pass legislation, or about legislation--on this matter?
There's nothing? Okay.
Andre, let's move on to amending the Constitution.
Committee Researcher
Other witnesses suggested an amendment to the Constitution. Indeed, Mr. Walsh suggested that, in his view, the only surefire way to make the power of prorogation subject to law was through a formal constitutional amendment. The formula to be used would depend on the purpose of this constitutional amendment.
Indeed, Mr. Adams agreed with this statement. In fact, he stated that the Prime Minister's discretion to seek prorogation from the Governor General could in fact be constrained, and there were two parts to that. There was the ability of the Prime Minister to advise the Governor General and then there was the Governor General's discretion to grant prorogation. Mr. Adams felt that you could constrain the Prime Minister's ability to advise the Governor General through a constitutional amendment.
Liberal
Yasmin Ratansi Liberal Don Valley East, ON
When we have these recommendations or suggestions made, supposing we as a committee were to take option C; would we do a study on it? What would be our next step?
This is a subject that would really get everybody's hackles up, so what would we be doing?
Conservative
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
That's a great question, Yasmin, because we went over a lot of ground when we had these witnesses come forward.
I think one of the larger questions this committee has to determine is just that: what do we do with this now? As we've discussed over the past couple of meetings, we have a fairly heavy agenda as a committee with other issues, whether it be the Referendum Act or Michael Chong's bill, etc.
I guess, Chair, I would ask you at the end of our discussion here to maybe conduct a bit of a walk-around or consultation with all members of this committee to see if there is a consensus to pursue this now or if we should go back to the agenda that we'd established through the steering committee and put this on the back burner for a while. I think Yasmin is right; if you want to get into this, it's going to take a while. There could be a number of different studies. Just the mere fact of looking at changing the Standing Orders might involve a pretty intensive study. Certainly amending the Constitution would take, I think, an awful lot of time.
So there's that larger question this committee has to discuss--namely, what do we do with this? It's good to get everybody briefed up, because many members weren't here when we had that discussion, but where we go from here I think is the big question.
I'll look for your leadership on that one, sir.
Conservative
The Chair Conservative Joe Preston
Thank you, Mr. Lukiwski. You summed up fairly closely to where I am.
I would think that when we go to the opinion paper on the Referendum Act, it's going to be a much more black-and-white situation. I'm prejudging, but it's going to be, “You can either do this or this, or you can do that or that, or this matches this up with the provincial referendum act”.
This was really intriguing. I have already shared my views on Professor Russell, but almost all the witnesses brought forward five, ten meetings' worth of study. Everything they said was, gee, you know, we could go down that path, or we could go down this path. But it just has become.... You know, a snowball collects snow as it rolls down the hill. Each thing that was brought up had something in it, and it was--as you said--gee, that would really be neat to do, but it's a whole separate way to go on it.
This committee will have to decide at the end of the day where we are on this study and which direction we'll take. But let's wait until the end to try to decide that. As I said, let's maybe wait until the end of the other presentations on the Referendum Act, and Mr. Chong's stuff, to say, “I really like that prorogation thing, but maybe we'd better go this way, because it's real work”. I'm not saying this isn't, but sometimes I go to the library for fun and other times I go for research, and these are....
Mr. Christopherson.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
On a point of order, Mr. Chair, I do go to the library for fun, and I never see you there.
NDP
NDP
David Christopherson NDP Hamilton Centre, ON
Thanks, Chair.
I know you're allowing discussion that's maybe a little out of sequence, but I want to remind everybody that we do have a starting point. The House, by majority vote, passed the following on March 17:
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.
Now, I know we're not mandated at all, and we're not constrained, but in terms of proceeding, let's remember what was sent here. That is a starting point to at least focus our discussions--
NDP
David Christopherson NDP Hamilton Centre, ON
It has at least majority support to get it here at least, so it is a starting point.
Conservative
The Chair Conservative Joe Preston
Absolutely. Most of the witnesses were asked about that motion, and they were asked for their opinion as to how—