I'll go fairly quickly.
Basically, I was saying that the prime minister advises the governor general to prorogue Parliament, and as long as the prime minister commands the confidence of the House, the governor general is bound by that advice. In 2008, the prime minister, who was facing a confidence vote, requested that Parliament be prorogued. There was a question as to whether the governor general of the day was bound by the prime minister's advice. In the end, she granted the request for prorogation, but not immediately—it was only after several hours of reflection. Some believe that she exercised her power of reservation because she felt it was the right thing to do under the circumstances. Until recently, the request was said to have been granted automatically.
I want to bring a very important case in the United Kingdom to the committee members' attention. The Supreme Court of the United Kingdom was recently called upon to issue a decision on the legality of the prorogation requested by the British prime minister. The court recognized that prorogation is the prerogative of the Crown. However, the court also recognized that it has the jurisdiction to review the exercise of the prerogative power—it being a justiciable issue—just as the court has the jurisdiction to scrutinize other prerogatives, including in foreign affairs.
The test applied by the courts is whether the prorogation is valid in law. The prorogation cannot have the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and the body responsible for holding the government, or the executive, to account.
With respect to judicial review in the United Kingdom, the government had to show that it had reasonable justification to prorogue Parliament. According to Professor Paul Craig, prorogation is indeed a mechanism to end a session of Parliament, but he also says the following:
The use of prorogation to silence a recalcitrant Parliament is an improper purpose.
Therefore, the courts would consider it to be illegal. In the case of Brexit, the Supreme Court ruled that the prorogation was unlawful and void, and Parliament had to reconvene.
Of course, we don't know what impact a similar decision would have in Canada, but there are precedents. In Khadr, the Supreme Court established that the prerogative powers asserted by the Crown, even in foreign affairs, can be subject to judicial review. That means there is a risk. While the reasoning provided afterwards, once Parliament has been recalled, may provide some transparency, it does not solve all the problems.
Now, I'd like to propose to the committee a way to reduce the risk of encountering this type of imbroglio. The proposal is based on the fact that the prime minister's advice is binding on the governor general only if the prime minister has the confidence of the House of Commons. In other words, the House determines whether the prime minister has its confidence, not the other way around. The House is the master of its decisions as to whether its confidence in the government is maintained.
Even the Standing Orders of the House of Commons refer to a confidence vote. According to Standing Order 6, the election of a Speaker shall not be considered to be a question of confidence in the government. It is implicitly recognized that the Standing Orders can determine the conditions in which a confidence vote may be held. In Quebec, the National Assembly sets out these terms in its standing orders and rules of procedure. A set of conditions must be met in order for the National Assembly to be deemed to have maintained its confidence in the government.
To reduce the likelihood of imbroglios, I propose amending the Standing Orders of the House of Commons to provide for the following eventuality: if the prime minister submits an opinion to the governor general to prorogue Parliament without first having passed a resolution to that effect in the House of Commons, the government is deemed to have lost the confidence of the House of Commons. As a result, the governor general would not be bound by the prime minister's advice.
I can speak to the proposal in more detail during the question and answer period.