Evidence of meeting #20 for Procedure and House Affairs in the 43rd Parliament, 2nd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was prorogation.
A recording is available from Parliament.
Bloc
Alain Therrien Bloc La Prairie, QC
Was the sole purpose of prorogation to stifle the WE Charity scandal?
Associate Professor, Political Science, University of Calgary, As an Individual
I don't think there's any question that's the case, yes.
Bloc
Alain Therrien Bloc La Prairie, QC
I'm not quite sure what more there is to say. I think it's obvious to everyone, except our friends opposite.
You said prorogation usually serves as a way to hit the reset button. When the government decided to prorogue Parliament for six weeks, we were under the impression that the government would be putting forward policy changes and a different vision.
Did you detect a change in vision or policy? Was there a clean break or a resetting of the clock, so to speak? Did you feel that was something the government did? I did not. It came back and it was business as usual—same as before, as though nothing had happened.
Did you see a difference?
Associate Professor, Political Science, University of Calgary, As an Individual
I'm not here to testify in a partisan capacity, so I'm going to be careful about passing judgment on the government's broader political agenda.
We're in the same dominating political issue of the day, the ongoing public health crisis, and that hasn't changed since last March.
Bloc
Alain Therrien Bloc La Prairie, QC
Was it a mistake to shut down Parliament for six weeks? You said the period between prorogation and the recall of Parliament should be short. In the midst of a pandemic, it is utterly irresponsible to prorogue Parliament.
Associate Professor, Political Science, University of Calgary, As an Individual
Mr. Therrien, on that front, I agree with your assessment. Given the number of times the government has needed urgent legislation to respond to the public health crisis since March 17, it was running an extraordinary risk to leave the House of Commons shuttered for as many weeks as it was. To recall Parliament earlier would have required a Throne Speech and all of the procedural issues around the recall of Parliament, delaying urgent legislation if some had been needed.
At the time that prorogation was executed, it was unclear whether the government might need additional emergency legislation during that period. There was a risk in proroguing Parliament and then calling it back some weeks later.
Bloc
Alain Therrien Bloc La Prairie, QC
You mentioned the delay in Parliament's study of the medical assistance in dying legislation, Bill C-7. Briefly, could you comment on the negative consequences caused by the delay in Parliament's study of the bill.
Associate Professor, Political Science, University of Calgary, As an Individual
Members will know that, on the issue of the medical assistance in dying legislation, there is an ongoing controversy and there are ongoing implementation issues across the country on this. It's unclear to me whether Bill C-7, as currently crafted, will resolve all the issues that were identified by the Quebec courts with the Truchon decision, and all the other potential issues that might need to be resolved in settling the medical assistance in dying legislation.
We don't know this for a fact, but would the legislation have been improved by more fulsome debate in the House of Commons? I think that's the question to ask.
Liberal
The Chair Liberal Ruby Sahota
Thank you very much.
Thank you, Monsieur Therrien.
Mr. Blaikie, you have two and a half minutes.
NDP
Daniel Blaikie NDP Elmwood—Transcona, MB
Thank you, Madam Chair.
Mr. Brodie, in your opening testimony, you made reference to the fact that this is a first-of-its-kind study here in Parliament, in terms of the government being required to give some reasons for its prorogation. That was something that the Liberals brought in during the last Parliament because they were—ostensibly anyway—concerned with preventing the political abuse of prorogation, yet here we are.
I think it's pretty clear for a lot of us that the prerogative for prorogation was abused and was used to get the government out of a political crisis, which I don't think is the legitimate use of that. Here we are discussing the reasons after the fact, but I'm wondering what can come out of this exercise. It seems that something we haven't talked about yet is the legitimate role of the legislature, or bringing the legislature into decisions about prorogation. I recognize that traditionally it is a prerogative of the Crown, but just because things have been a certain way doesn't mean they must always be a certain way.
It seems to me that if a government truly wanted to have politically uncontentious prorogations, or to resolve the political tensions around a prorogation in advance, they would include the legislature in these kinds of decisions.
I wonder if you have any reflections for the committee on that interplay between executive power and the legislative branch and what kinds of reforms we might consider that go beyond asking the government to give a justification after the fact. We can all dispute whether that's an accurate justification or whether there were other reasons that were the real reasons behind it, but what could we recommend or what should we be thinking about in terms of concrete measures to prevent the political abuse of the prorogation power?
Associate Professor, Political Science, University of Calgary, As an Individual
Mr. Blaikie, thank you for that question.
In my book on the subject, I tried to outline the many complicated aspects of the relationship between cabinet, the Prime Minister's prerogatives of leadership, the decisions of the cabinet and Parliament as a whole, of which decisions over prorogation and the recall of Parliament are only one of a complicated web of relations between the two. If you want aspects—
The Clerk
I'm sorry to interrupt you again, Dr. Brodie.
The interpreters are indicating that the sound quality still isn't good. I think it was working well when you were holding it up closer to your mouth.
I apologize again. Go ahead.
Associate Professor, Political Science, University of Calgary, As an Individual
No, I'm sorry. It's good to be reminded.
Liberal
The Chair Liberal Ruby Sahota
We've had a lot of injuries, and I think people don't realize that it's very difficult for the interpreters. It has to go through another line in order for them to listen. That is why we're so on top of that.
I have stopped the time, so don't worry. This is not cutting into your time. You have about 15 more seconds to make your point.
Associate Professor, Political Science, University of Calgary, As an Individual
Thank you.
Let me say that as part of the negotiations between the parties for a review or revision of the Standing Orders, this is one issue amongst many that would need to be considered. Personally, I would put other issues further ahead in priority in those negotiations, but obviously that's a political decision for parties to make as the Standing Orders are redrafted.
NDP
Liberal
The Chair Liberal Ruby Sahota
Yes, it is the end of your time, and I think it's the end of Professor Brodie's time with us as well.
Thank you very much. I'm sorry you weren't able to stay with us longer, but we appreciate your coming to testify.
Associate Professor, Political Science, University of Calgary, As an Individual
Thank you.
Liberal
The Chair Liberal Ruby Sahota
I also apologize to the rest of the committee. This was unexpectedly sprung on all of you, and you had to reassess how to formulate your questions for today because of this. It was a last-minute conflict that was an emergency-type situation. This was the only way I could figure out to accommodate it.
However, we will carry on with our other two fabulous witnesses.
Let me know on the spot if you'd like to change up the questioning order. We are going to now start with our six-minute rounds and carry on into our five-minute rounds, as we would be at a regular meeting, if that's okay with everyone.
We'll hear from Professor Turnbull, please.
Dr. Lori Turnbull Associate Professor, Director, School of Public Administration, Dalhousie University, As an Individual
Good morning. Thank you so much for inviting me to the committee. I'm very happy to be here.
I'll make a brief opening statement if I can, just to situate myself in the conversation.
As you know, the Parliament of Canada was prorogued from August 18 until September 23, 2020, and in accordance with section 32(7) of the Standing Orders of the House of Commons, the government must provide a report to Parliament outlining the reasons for prorogation.
That report was submitted in October of last year. The reporting requirement was introduced by the Liberal government in 2017. In March of that year the government House leader circulated a document called “Modernization of the Standing Orders of the House of Commons”, the intent of which was to generate discussion about parliamentary reform.
The paper took the view that parliamentary institutions are outdated and must change to meet public demands for greater accountability, transparency and relevance. Among the proposals for reform was a requirement that in the event of a prorogation, the government must issue a report that states the reasons for opting to prorogue. The document also stated that some governments have used the prerogative to prorogue as a political tool to dismiss Parliament early so as to avoid scrutiny and accountability. The motivation behind the reporting requirement is to make governments accountable for the decision to prorogue Parliament and perhaps to deter prorogations that are driven primarily by political opportunism.
As a bit of background on prorogation and what it is as a tool, prorogation is part of the royal prerogative and is exercised in Canada by the Governor General on the advice of the Prime Minister. To prorogue Parliament is to stop the proceedings of Parliament, usually for a specified period of time. Unfinished business dies on the Order Paper. When Parliament is resumed, a new Speech from the Throne is delivered.
The prerogative to prorogue Parliament does not derive from the most noble of intentions. In his essay, “British and Canadian Experience with the Royal Prerogative”, Bruce Hicks explains how the concept of prorogation came into existence in England in 1530. At the time parliaments did not meet for sessions as they do now, but instead were summoned by the king when he needed supply and then dissolved. With every summoning of a new parliament, the membership changed.
Henry VIII invented the concept of prorogation as an alternative to dissolution when he found a parliament whose membership was supportive of him. Rather than dissolving parliament and dismissing its members, proroguing parliament allowed the same members to come back.
In recent years, some prorogations in Canada have been controversial—and Professor Brodie made reference to some of these—because they have seemed motivated by political considerations rather than procedural necessity or completion of mandate.
In December of 2008, then prime minister Stephen Harper sought a prorogation of Parliament less than two months after a general election that had resulted in a Conservative minority government. The government was facing a vote of confidence and opposition parties had indicated publicly that they intended to defeat the government and form a coalition in its place. Prime Minister Harper's decision to seek prorogation was interpreted by many as driven exclusively by the desire to dodge a confidence vote that his government was sure to lose.
A constitutional debate emerged about whether the Governor General holds the discretionary power to refuse a request for prorogation from a prime minister whose mandate from the House of Commons is in question. In the end, the House prorogued and upon return the government held confidence for another two years.
This is not the only controversial prorogation in recent years. In 2012 the Ontario legislature was prorogued upon the resignation of former premier Dalton McGuinty. The government was criticized for silencing the legislature to avoid hearings related to a contempt motion instead of allowing for the appointment of an interim premier and the resumption of legislative business.
More recently, in 2020, the legislature in Nova Scotia was prorogued as Premier Stephen McNeil prepares to exit politics. Nova Scotia's legislature sat only 13 days in 2020 and was the only legislature in Canada not to meet during the COVID-19 period.
The report on the 2020 prorogation offers justification for the decision based on the unprecedented and unanticipated circumstances facing the government at the time. The global pandemic was both a public health and an economic crisis. The Speech from the Throne that was delivered in December of 2019 did not and could not foresee the situation and, therefore, was no longer useful or relevant as a plan for the future. The report spoke to the need for the government to reset itself to develop a bold and comprehensive plan in response to the devastating effects of COVID-19.
A prorogation in the late summer provided an opportunity to work on such a plan and the Speech from the Throne upon the resumption of Parliament in September forced a confidence vote on the government's proposed approach. The report says that the government feels duty-bound and honour-bound to ensure that it holds the confidence of the House before proceeding with these new measures.
The report does not mention another relevant political context at the time. The minority government was under intense criticism because of the decision to give the WE organization the responsibility to administer a $900-million student grant program. The organization had ties with the Prime Minister's family as well as with that of then minister of finance Bill Morneau.
Over the course of the summer, parliamentary committees heard testimony from the Prime Minister, the Clerk of the Privy Council, Marc and Craig Kielburger of the WE organization, the former board chair at WE, as well as several ministers and senior public service executives. Prior to the announcement of the prorogation, the former minister of finance resigned. Like other prorogations mentioned above, this one was criticized for its apparent political motivation.
I have some concluding thoughts.
The power to prorogue Parliament falls under the royal prerogative and, therefore, is exercised by the Governor General on the advice of the Prime Minister. In Canadian history there has never been a case in which a Governor General has refused a request for prorogation, so it's seen in practice as a power that is in the hands of the Prime Minister.
A prime minister's access to the Crown prerogative to use powers to summon, prorogue and dissolve Parliament confers enormous political advantage, and efforts to put limits on these powers are somewhat ineffective and are political rather than constitutional. Even if selection dates have been ignored for political purposes, voters don't always punish strategic or off-cycle election calls.
Standing Order 32(7) can be said to have the intent of deterring the use of prorogation for political purposes, but I would argue that the reporting requirement doesn't necessarily deter politicized prorogation and might actually invite increased political rhetoric that is meant to offer retroactive justification for the decision to prorogue.
Liberal
The Chair Liberal Ruby Sahota
Thank you, Professor Turnbull.
I didn't want to ruin your flow, but we're well over time for introductory remarks.
Associate Professor, Director, School of Public Administration, Dalhousie University, As an Individual
My apologies.
Liberal
Associate Professor, Director, School of Public Administration, Dalhousie University, As an Individual
Yes, you could have stopped me before.
Liberal
The Chair Liberal Ruby Sahota
Okay.
Professor Cyr, you have five minutes for your introductory remarks.