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Speech in Senate Chamber: Speech from the Throne- Motion- Address in Reply to His Excellency Governor General David Johnston's first Speech from the Throne

Speech from the Throne

Motion for Address in Reply Adopted

On the Order:

Resuming debate on the motion of the Honourable Senator Comeau, seconded by the Honourable Senator Di Nino:

That the following Address be presented to His Excellency the Governor General of Canada:

To His Excellency the Right Honourable David Johnston, Chancellor and Principal Companion of the Order of Canada, Chancellor and Commander of the Order of Military Merit, Chancellor and Commander of the Order of Merit of the Police Forces, Governor General and Commander-in-Chief of Canada.

MAY IT PLEASE YOUR EXCELLENCY:

We, Her Majesty's most loyal and dutiful subjects, the Senate of Canada in Parliament assembled, beg leave to offer our humble thanks to Your Excellency for the gracious Speech which Your Excellency has addressed to both Houses of Parliament.

Hon. Anne C. Cools: Honourable senators, I rise to speak to the motion for the Address in Reply to His Excellency Governor General David Johnston's very first Speech from the Throne of June 3 last. I thank him. I also congratulate our colleague Senator Claude Carignan on becoming the Deputy Leader of the Government in the Senate. I also thank Senator Gerald Comeau for his good service in that role over the last five years. I also thank his wife, Aurore, for her support of him. I would like to take the opportunity to thank all senators' wives and husbands for their support of us because by their faithfulness to us, they, too, serve.

Honourable senators, today I wish to speak to the lex parliamenti, the law of parliament, that vast body of law that governs all our business and actions here, that shared law that is jointly held by the whole Parliament, the Senate, the House of Commons and the Queen. The Queen is the actuating and enacting power in our constitution. I shall speak also to Her Majesty's lex prerogativa, the law of the prerogative, from which the law of parliament is granted and derived. It is at the juncture of these two branches of law and their proper observance that Parliament works well. Failure to observe this law results in bad practice. The defining characteristic of responsible government is unity and harmony between the constituent parts of the Constitution. Walter Bagehot called it fused powers.

Honourable senators, today I shall speak to two parts of the lex, at the juncture of the perogativa and the parliamenti. One is supply, and the duty of the houses is to vote supply for the dissolution period. The other is the direct vote on "want of confidence" which, though the result may be the same, is different from other confidence votes, such as on the budget, on the Throne Speech or even on supply. A direct vote on "want of confidence" is a house vote on a motion for a single proposition which states solely, that is without giving cause, that the house has no confidence in the Crown's servants, the Queen's advisors, her ministers.

(1430)

I assert that direct votes on "want of confidence" and votes on "contempt of parliament" are two different parliamentary instruments, invoking two different parliamentary powers, to two different ends. They are two different parliamentary proceedings on two different propositions; two different questions. They must not and cannot be combined as a single question, in a single motion, as on March 25, 2011 in the other place. Simply put, there are questions of contempt and there are questions of confidence, but there is no combination confidence-contempt question. The law of parliament does not function like McDonald's with combos to suit every taste.

Honourable senators, ministry changes as immediate consequences of Commons votes and the modern direct vote on "want of confidence" date to 1782. Such motions, once addresses to the king — this is an address I am speaking on — were grand statements of the causes of the house's discontent with the ministry.

However, by 1841, by Robert Peel's motion, the present form of the direct vote on "want of confidence" was established as a procedure for removing an unwanted or obnoxious ministry. By this form, the house, without stating any reason whatsoever, directly declares that it has no confidence in the sovereign's ministers. This unique motion petitions the sovereign to change his ministers, that is, to rid his council and his presence of these ministers, because their continuance in office is at variance with the Constitution.

When the house carries such a motion, the rule is that a defeated prime minister immediately resigns, and the ministry with him. We hear a lot of nonsense about confidence votes triggering elections. The rule is resignation, not an election. There is but one exception, but one alternative, to a prime minister's immediate resignation of office, which is the sovereign's royal dissolution of parliament and his royal appeal of the house's decision against the ministry to the sovereign constituent body, the people, an election. By this royal absolute power of dissolution and writs of election, the sovereign will take the sense of the country. He will submit the house's adverse decision against his ministers to the people, for their decision on the house's decision. The election vote is the people's judgment, another absolute power, on the house's judgment.

Honourable senators, in his 1869 book On Parliamentary Government in England, volume 2, Alpheus Todd recorded a defining precedent. At page 405, he wrote that dissolutions are justified and necessary:

. . . whenever there is reason to believe that the House of Commons does not correctly represent the opinions and wishes of the nation.

Alpheus Todd, quoting Earl Grey, continued:

Upon this ground, ever since 1784, 'it has been completely established, as the rule of the constitution, that when the House of Commons refuses its confidence to the ministers of the crown, the question whether, in doing so, it has correctly expressed the opinion of the country, may properly be tested by a dissolution . . .'

Dissolution, this prerogative tool, this absolute power of the sovereign, should be used sparingly to truncate the natural life of a parliament, especially in minority government situations.

In his decision to dissolve, the Queen's representative — the sole and singular representative of all the people — must employ forbearance and sagacity. His sole concern is always the interests of the people, the common good, the public good. Alpheus Todd, citing William Ewart Gladstone in another precedent, in volume 2 at page 410 wrote:

He argued that there were two conditions necessary to justify an appeal to the country by a government whose existence is menaced by an adverse vote in the Commons. 'The first of them is, that there should be an adequate cause of public policy; and the second of them is, that there should be a rational prospect of a reversal of the vote of the House'.

Honourable senators, it is well settled that prime ministers have no right to a dissolution, even though some experts repeat that they do, as if repetition can make the untrue true. A prime minister defeated in an adverse vote of confidence is a politically and constitutionally weakened prime minister, whose power to advise is impaired. For dissolution, he must prove to, or convince a governor general that he and his ministry represent public opinion, and that the house does not. He must convince a governor general not to insist on his and the ministry's immediate resignation, but instead, that they should be continued in office and be granted a dissolution to face an election as a ministry. There is a mortal conflict between the house and the ministry. One or the other does not properly represent Her Majesty's subjects. One or the other must go. One or the other must be dissolved forthwith.

Honourable senators, this decision, an absolute power, rests absolutely with a governor general, whom a prime minister should approach in fear and trembling of majesty. In this a prime minister is a supplicant, not a potentate. Alpheus Todd again states in volume 2, at page 409, wrote:

In the House of Lords, Earl Grey denied the right of ministers, on being defeated in the Commons, to ask the crown for a dissolution of Parliament, unless there was strong reason to believe that the House of Commons had misrepresented the feeling of the country.

Remember, the present form of the direct vote on "want of confidence" replaced impeachment, attainder and other hefty methods to remove miscreant ministers from the sovereign's councils.

Honourable senators, in responsible government, "want of confidence" proceedings engage the high representative and high political powers of the house — political not partisan — to control the Queen's choice of ministers who are responsible to the house, and who are and must be members of the house; either house. In this, the lower house acts in its representative and political role. The goal of politics is the unity and harmony between the constituent and sovereign parts of the Constitution, between the representatives in both houses, the represented — that is, the people themselves — and their Queen. Votes on "want of confidence" are the high and pure politics of representation, in which these three sovereignties, in their distinct representative roles, unite to choose the members of the lower house and the members of the ministry, that is to create responsible government. The common good of the people is supreme. Many will come to know the difference between the common good and ambition, which St. Augustine called the libido dominandi, the lust for power.

Honourable senators, in Sir Edward Coke's words, we are the high and most honourable court of parliament. In Lord Bolingbroke's words, we are the grand inquest of the nation. In either house, a finding of contempt of parliament is a criminative proceeding. By this, the house assigns guilt to clearly identified persons, for offences committed against the house and, or, its members, by those persons. Such proceedings may also prescribe a remedy or punishment adequate to the offence. Contempt of parliament proceedings engage the penal and judicial powers of the house as a court, wherein each member is a judge, sitting in judgment, using the principles and practices that attend accusations in Her Majesty's courts. In this court, unlike other courts, accusations and findings proceed by debate, motions and votes, in which each member takes part. In addition, the two houses hold parliament's high superior powers, not held by the inferior courts, such as impeachment, attainder and even to proceed by bill and legislation to their goals and ends. We are the highest court in the land. That is why, in this place, Senate appointments with life tenure stand on the legal ground that they do.

Honourable senators, it has been the invariable practice of both houses not to entertain criminative charges against any person except upon the ground of some distinct and definite basis. It is also well established that criminative responsibility and liability are regarded as essentially personal in character and include the ability to form intent, will and actions. Criminative accusations and proceedings should clearly identify the incriminated by name. Other parliamentary principles and practices include the right of the impugned or the accused to meet the charges or accusations and to make a full and sufficient defence, in person or by counsel, at the bar of the house or as the house may choose. We call this due process, natural justice and fair play. The mind of parliament is a common law mind, well stocked with well-honed principles and practices. It is also well settled that the judicial and the political should not be united and that the one should not be used to achieve the other.

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Honourable senators, on a supply day, and under the rubric "business of supply," last March 25, days before March 31, the most critical day in the annual supply cycle, and though supply had not been voted, a single motion combining a question on "want of confidence" with a question on contempt was moved and carried in the other place:

That the House agree with the finding of the Standing Committee on Procedure and House Affairs that the government is in contempt of Parliament, which is unprecedented in Canadian parliamentary history, and consequently, the House has lost confidence in the government.

Honourable senators, the term "the government" does not identify a person and is not a legal person, as a corporation is. It is a vague, aggregate term that includes the Queen and every single file clerk in every department. In both houses, members often use the words "the government" to mean "the ministry," or interchangeably with the words "the ministry." That may be just fine in debates, and even in some "want of confidence" motions, but not so in rigorous, strenuous, criminative proceedings, like contempt of parliament. These engage the high powers of parliament and owe high duties to the impugned or accused, the more so when they are holders of Her Majesty's high offices of state, engaging the public interest. The house could not have intended to incriminate the many thousands of government employees in its finding of contempt of parliament. That no precedent could be found in Canada, Britain or Australia for finding "the government" in contempt should have been a hint that some were worshipping at the wrong altar.

Honourable senators, I had said that there is no "combo" confidence-contempt of parliament question. The election results prove this. On election day, May 2, the represented, the people, ruled. They sustained the ministry, the very ministry condemned by the house, and reversed the house's judgement absolutely on both counts, that is, both the non-confidence and the contempt of parliament. Elections are about the people's individually held electoral franchises, granted by their sovereign's prerogative and not easily tampered with. Jowitt's Dictionary of English Law, Volume 1, page 831, defines "franchise" as:

. . . a liberty or privilege.

At common law, a franchise is a royal privilege or branch of the Crown's prerogative, subsisting in the hands of a subject, either by grant or by prescription.

The electoral franchise, that is, the qualification of persons entitled to elect members to the House of Commons, is Her Majesty's instrument by which her subjects share in Her Majesty's government. They share in her absolute royal powers, in majesty. The election vote reversed, overturned and vacated the contempt finding. The electoral franchise, the direct vote on "want of confidence," and the House of Commons grew up together. As political and social phenomena, they developed together. The direct vote on "want of confidence" became precedent because it expressly defines the question that the Governor General will put to the people. I conclude that the combo motion set no precedent and was simply a bad practice.

Honourable senators, I turn to parliament's founding principle, the national finance, the public spending, "the control of the public purse," over which —

The Hon. the Speaker pro tempore: Honourable Senator Cools, I regret to inform you that your 15 minutes have expired. Are you going to ask for more time?

Senator Cools: Yes, thank you.

The Hon. the Speaker pro tempore: Five minutes is granted.

Senator Cools: — over which, since 1678, the House of Commons has claimed pre-eminence. The House of Commons has claimed pre-eminence over the national finance since 1678. Last March, days before March 31, Her Majesty's most needy date in the annual supply cycle, the house was dissolved without completing its necessary business of voting supply, even though there had been no disagreement on supply and the confidence defeat was not on supply. Though the supply bills were in hand, the other place was focused on the "combo" motion and did not vote supply to defray the ordinary expenses of Her Majesty's public service and administration during the imminent dissolution period. Canada is unique in this, and was, and I believe still is, the only Commonwealth country where elections take place without supply being voted before. The absurd result is that the house gives a blank cheque to the very ministry it has condemned and forces that very ministry to appropriate money from the Consolidated Revenue Fund without the house's authority, that is, without the house's pre-eminence. This is done by Governor General's Special Warrants under the Financial Administration Act.

Honourable senators, just after dissolution, April 1, the first day of the new supply year, was the date of the first of two Special Warrants, which totalled $24.5 billion. These sums are too large to be justified as a proper use of these Special Warrants. For some time, the house had known that a majority was intent on crystallizing a dissolution, and on election readiness, which should include supply readiness. The house has a duty, as does the Senate, to vote supply for Her Majesty's needs during dissolution when the house is unable to sit. It has the procedural tools to do so. By contrast, last March the Senate was ready and awaiting those supply bills, under the leadership of Senator Day and Senator Gerstein, chairmen of our National Finance Committee. They were waiting and ready to receive those supply bills.

Honourable senators, governing is a trust of the sovereign, sworn to in her coronation oath. The whole of responsible government, with its political party system, is to enable the sovereign to carry on that trust, the business of serving her people, through the public service and the public administration. To not vote supply is to compromise Her Majesty, not the ministry. I think we can honestly say that all agree that Her Majesty's ministry should treat her employees and creditors fairly and should pay her bills judiciously.

Honourable senators, the confederation fathers constituted the Senate as the federal house, to embody the confederation. They vested it with a larger role in the national finance than was then ascribed to the United Kingdom House of Lords. They wanted Senate and federal oversight in the national finance, in the raising of taxes in one region to be spent in another. Appropriation of money by Governor General's Special Warrants cannot replace appropriation by parliament and was never intended to do so. The House of Commons may vote supply, or it may deny supply for good and debated reasons. However, it simply cannot neglect its duty of supply, nor can it drag the Senate's role in the national finance under it. The Senate's role in the national finance is not so easily dismissed.

Honourable senators, in closing, I would like to ask the Governor General to reassert these principles and to insist, as other viceregals have in the past, on supply before dissolution. Simply put, no supply, no dissolution. No dissolution without control of the public purse.

Honourable senators, these are both difficult matters, but I shall be revisiting the particular matter of supply. My plan is to visit this in the near future. I have already had discussions with several senators. I will give a more fulsome speech on the use of Governor General's Special Warrants over many years and the history of them, which is a very valid and old history, and also the fact that too many have now become so habituated to the availability of Governor General's Special Warrants that they no longer insist that the house complete its necessary business prior to dissolution.

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In the near future, I shall speak in a fulsome way on this subject and shall do so in the form of a motion asking the National Finance Committee to study this important matter. Her Majesty simply cannot be compromised. Her Majesty's employees and creditors must be treated fairly and justly. Both houses have the proper tools to do this.

Last March, honourable senators, had the houses sat another 24 hours, the supply bills could have been passed. Few senators know much about the supply process, but that March period is an extremely deadly time in the supply process. I intend to explain all of this in that speech.

This is an address to His Excellency. As honourable senators know, an address is the mode of speaking to the sovereign. Since we are speaking directly to His Excellency, I thought it might be useful to record some of these principles and to urge their close observation. I thank honourable senators for their attention.

The Hon. the Speaker pro tempore: Further debate? Are honourable senators ready for the question?

Hon. Senators: Question.

The Hon. the Speaker pro tempore: It has been moved by the Honourable Senator Comeau, seconded by the Honourable Senator Di Nino, that the following Address be presented to His Excellency, the Governor General of Canada — shall I dispense?

Some Hon. Senators: Dispense.

The Hon. the Speaker pro tempore: Are honourable senators ready to adopt the motion?

Hon. Senators: Agreed.

(Motion agreed to and Address in Reply to the Speech from the Throne adopted.)

[Translation]

Hon. Claude Carignan (Deputy Leader of the Government): Honourable senators, I propose that the address be engrossed and presented to His Excellency the Governor General by the Honourable the Speaker.

The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?

[English]

 

Point of Order

Hon. Joan Fraser: Honourable senators, I rise on a point of order. A moment ago, I may have missed something. I believe that I heard His Honour ask if honourable senators were ready for the question; but I did not hear him call the vote.

Did you actually call the vote, Your Honour?

The Hon. the Speaker pro tempore: I think I did. Perhaps I could ask the table. My recollection is that I said:

Are honourable senators ready for the question?

It has been moved by the Honourable Senator Comeau, seconded by the Honourable Senator Di Nino, that . . .

Is it your pleasure, honourable senators, to adopt the motion?"

Carried.

That is my recollection.

What is the will of the Senate?

Some Hon. Senators: Agreed.

Hon. Anne C. Cools: Honourable senators, I believe that there were two motions. The first motion was on the address; and the second motion was for the engrossing. There were two distinct propositions.

The Hon. the Speaker pro tempore: Yes, there were.

(On motion of the Honourable Senator Carignan, ordered that the Address be engrossed and presented to His Excellency the Governor General by the Honourable the Speaker.)