Guiding the Governor General’s Prerogatives: Constitutional Convention Versus an Apolitical Decision Rule
Bruce Hicks*
Introduction nothing to alleviate the sense of uncertainty. Even a"er the fact, there continued to be con- On 4 December 2008, the Governor Gen- cern about the precedent just set and lingering eral of Canada, Her Excellency the Right Hon- doubts about what the Governor General might ourable Michaëlle Jean, granted a request from do if, when the new session of Parliament be- Prime Minister Stephen Harper for a proroga- gan in January 2009, the Prime Minister again tion of Parliament, just six weeks a"er a federal asked her to use her reserve powers, in the next election, three weeks into the new session, and instance to dissolve Parliament and call an elec- two sitting days before an opposition motion of tion. $is concern was so great that thirty-#ve non-con#dence was likely to defeat the govern- academics penned an open letter recommend- ment and pave the way for a Liberal-led coali- ing the course of action she should take if disso- tion government assuming power. lution were proposed to her in January.2 In turn, a book on the prorogation event, entitled Parlia- $e media interest in this event was high be- mentary Democracy in Crisis, was released with cause of the daily drama it o%ered and because the stated goal of helping to instruct Canadians of the constitutional questions it raised. While on the principles and rules of parliamentary de- former governor general Adrienne Clarkson mocracy, though the essays therein contained has since objected to the word crisis being used showed continuing disagreement on the #ner to describe this event, noting that “just because points of constitutional law.3 a resolution has to be found does not mean the situation is a crisis,”1 the truth is there was su&- I was one of the people called upon to pro- cient uncertainty surrounding what the Gover- vide explanations of the workings of the con- nor General could, should, and might actually stitution during the event; indeed, this is a do that public faith in Canada’s constitutional challenge for an academic at the best of times conventions and its system of responsible par- because one runs the risk of being dragged liamentary government was shaken. from observer to participant. $is was in fact what happened several days before the fateful During the event, a number of academics 4 December meeting of Canada’s de facto head were asked by the media to help Canadians un- of state and her #rst minister. In one interview, derstand the relevant constitutional rules and carried on CTV Newsnet, I said that in spite of possible decision outcomes, yet the ensuing the o"en-quoted line of a governor general’s public discussion coming from the academy did role being to thwart the will of a ruthless prime
Constitutional Forum constitutionnel !! minister (in this case, one trying to avoid a con- the idea of a cooling o% period, though they #dence vote in Parliament), the Prime Minister still emphasize that it could not have been done might successfully frame prorogation as sim- for a longer period of time, say more than six ply a mechanism to temporarily “cool things months.8 My do no harm analogy faired slightly down.” A"er all, Parliament would still be able better.9 to vote on a motion of non-con#dence upon its return in January 2009, and a viable alternative $ese events have led me to propose the the- government would either still be viable, or it sis at the centre of this article: that the governor would have already fallen apart.4 general ought to use (and acknowledge the ex- istence of) an apolitical decision rule in exercis- By 3 December 2008, when the parlia- ing her reserve powers or personal prerogatives. mentary caucuses of the political parties met Before turning to this thesis, it is worth noting in secret to plan strategy, the euphemism of a that the reason terms like cooling o% and do no “cooling o%” period had found its way into the harm have a resonance that goes well beyond talking points issued to the Conservative cau- the moment is that they o%er an emotional cus by the Prime Minister’s O&ce, and was be- heuristic.10 $at they have salience should be as ing repeated ad nausea to the throng of media, much a concern to scholars as any possible mis- which was now giving almost complete atten- conceptions surrounding the constitution they tion to this unfolding drama. might generate. In addition, media interest has not been only on the constitutional constraints Over the next twenty-four hours, I had the that bind political actors, but also on the pos- opportunity to revisit this idea a number of sible decision outcome, and while the academy times, including during the live telecast of the is usually singularly interested in the former, Governor General’s decision on the morning of the public is usually singularly interested in the 5 4 December. I pointed out that what was im- latter. All decisions, even those constrained by portant was not what the Prime Minister would clear constitutional conventions (which the re- argue but rather what the Governor General serve powers o"en are not), involve attention would accept. I also took the opportunity to both to constitutional constraints and preferred suggest that the Governor General should be outcomes. Perhaps, a decision matrix can of- guided by the principle of doing the least harm. fer insight into the constitutional rules at play I drew an analogy to the way the speaker of the by taking both constraints and outcomes into House of Commons casts a vote in the event of account. a tie, suggesting that the very reason the Gov- ernor General might be willing to accept a rec- In the days and weeks following proroga- ommendation of prorogation was that it le" the tion, the merits of enunciating an apolitical most options in play before a Parliament that decision rule became more evident. During would be returning one month later to deal this period, the government reconsidered its with the con#dence questions that were sure to policy positions, the national executive of the top the parliamentary agenda (via a new throne Liberal Party preempted its leadership contest speech and a promised budget). by anointing a leader, and the new leader of the opposition rejected the triparty coalition agree- A number of academics have since written ment, opting instead to support the government. 6 about the events surrounding this prorogation, Each of these political events was driven not by and several have objected to the idea of proroga- new developments within Parliament but by the tion as a cooling o%, arguing that such an inter- continued lack of clarity regarding application pretation is anathema to constitutional conven- of the relevant constitutional conventions. tion as it implies a value judgment. As Andrew Heard has put it, “considerations, such as the Elsewhere I have argued that some of the need for a prolonged cooling o% period… are drama could have been avoided if the Governor absolutely none of the governor general’s con- General has simply issued written decisions.11 cern when making a decision on constitutional While this would have eliminated the sense of grounds.”7 Others have been less o%ended by crisis and provided clarity for future decisions
!' Volume 18, Number 2, 2009 in identical circumstances, it has since be- asking three questions: are there precedents, is come apparent that we need to go further: the there a reason for these precedents, and do the need is not simply for less ambiguity, it is for constitutional actors involved believe that they predictability. are bound by these precedents?14 Each of these questions (that together make up the “Jennings A formal decision rule o%ers predictability. test” for the existence of a constitutional con- $at members of Parliament (MPs) can predict vention) poses a particular challenge for the re- how the speaker of the House of Commons will serve powers, including the power to summon, cast his or her deciding vote, for example, allows prorogue, and dissolve Parliament, appoint and party whips and MPs to predict vote results, dismiss ministers, and withhold royal assent.15 thereby preventing undesired defeats of legisla- tion, particularly on matters of con#dence that will precipitate a federal election. Understand- Reserve Powers ing and predicting the decisions of the governor general would have similar bene#ts for the ex- $e Supreme Court of Canada, in its Patria- act same reason. It is the purpose of this article tion Reference, used the Jennings test and stated to )esh out this idea by considering the relative that, for a convention to exist, the speci#c ac- tors a%ected by the rule must have agreed to be merits of relying on conventions to guide the 16 governor general’s exercise of the reserve pow- bound by it. In the minority opinion, penned ers or adopting (or perhaps openly acknowledg- by then chief justice Bora Laskin, it was also ing) a formal apolitical decision rule. argued that a convention must be clear and removed from controversy, and that it is the $e # rst part of this article deals with plenary unit that must agree to be bound.17 constitutional conventions, beginning with a Nevertheless, the royal prerogative is only exer- review of the literature, to illustrate the inher- cised by the governor general personally when ent ambiguity that surrounds conventions in the other constitutional actors, speci#cally the general and the personal prerogatives in par- prime minister but also the other party leaders ticular.12 $e governor general’s reserve power in Parliament, are not in agreement. $ese mo- concerning dissolution is then modeled to illus- ments are always controversial; the nuances of trate that, even with a minimalist approach, de- the convention to be followed are rarely clear; cisions must be taken that fall outside of such a and the plenary unit will be in discord. One model. $e second part of the article deals with might even characterize these instances as mo- the idea of a formal apolitical decision rule, and ments of constitutional crisis. begins with a consideration of the decision rule adopted by speakers in Parliament. While such For the most part, the governor general qui- a rule may already underlie decisions taken by etly summons, prorogues, and dissolves Parlia- the governor general, who must manage com- ment (as recommended by the prime minister) peting parliamentary interests while remaining without any controversy. But it is on those oc- outside of the political fray, it is only by formally casions that the governor general is called upon enunciating the rule that ambiguity can be re- to reject the recommendation of the prime moved and predictability assured. minister or to substitute an alternative that the exercise of the royal prerogative becomes truly personal. By de#nition, in these instances the Constitutional Conventions relevant constitutional actors are not in agree- ment, and the very fact that these instances are Sir Kenneth Wheare has advanced the clas- rare means that there is a paucity of precedent sic de#nition of a constitutional convention as upon which to base the argument that a conven- “a binding rule, a rule of behavior accepted as tion exists to guide constitutional practice. obligatory by those concerned in the working of the constitution.”13 Building on this de#ni- When Albert Venn Dicey #rst identi#ed the tion, Sir Ivor Jennings has suggested that the existence of conventions, he observed that some existence of a convention can be ascertained by “have nothing but a slight amount of custom in
Constitutional Forum constitutionnel !( their favour and are of disputable validity,” and this purpose to give the prime minister greater “may be violated without any other consequence independence and exert additional in)uence than that of exposing the Minister or other per- over the exercise of the governor general’s per- son by whom they were broken to blame or un- sonal prerogatives.23 popularity.”18 $is suggestion has been univer- sally criticized as it runs contrary to the notion $e very use of the word “advice” for this of a convention as a binding rule.19 Nevertheless, document is signi#cant. With respect to exer- it would seem to be an apt description for the cises of the royal prerogative, a convention exists exercise of the reserve powers. that ministerial advice should never be refused, so it is binding on the governor general. It is With little precedent to work with, the gov- noteworthy that British prime minister Harold ernor general (like all constitutional actors pre- Macmillan refused to use the word advice when sumably) is guided in part by democratic theory requesting dissolution, insisting instead that it in her exercise of the reserve powers. Indeed, be called a recommendation since a prime min- Dicey himself was guided by considerations of ister has “no right to advise a dissolution.”24 democracy in his reckoning of conventions. His stated goal in taking what were nothing more than vague customs, imbuing them with dem- Governor General’s Decision- ocratic principles, and calling them a “consti- Making Autonomy tutional morality” binding the Crown, was to “secure the ultimate supremacy of the elector- Disagreement over the application of con- ate as the true political sovereign of the state.”20 stitutional conventions as they relate to the gov- In operationalizing this model, the convention ernor general’s exercise of the reserve powers is emerged that most exercises of the royal pre- not simply a question of ambitious politicians rogative — used by the Crown to govern — placing the monarch, and her representative, should be decided by ministers who must then in a politically awkward position as they ac- answer for their exercise before Parliament and tively try to take over powers which they have before the electorate. $e evolutionary nature been previously denied. Scholars too disagree of conventions has le" some exercises of the about the implications of democratization for royal prerogative in the hands of the governor the Crown. Put simply, does democratic theory general personally (the reserve powers) because eliminate any non-ceremonial role for the mon- there has been no agreement to allow ministers arch, rendering her a #gurehead, or is there a speci#c political role for an unelected head of of the Crown to exercise them directly. It is ar- 25 gued here that the royal prerogative remains state, even a hereditary one, in a democracy? personal in these instances is to ensure it is not Figure 1 presents a continuum of possible exercised to the advantage of any single branch degrees of autonomy in decision making. Legal of government. scholars will tend to fall on the more restrained Nevertheless, ministers and prime minis- end of the continuum (suggesting a limited role ters have repeatedly tried to seize the reserve for the head of state) while their political scien- powers. For example, in England it has only tist counterparts will likely fall toward the less been since British prime minister Stanley Bald- restrained end (though one of the features of win that a prime minister has recommended the constitutional conventions today is that there is disagreement over their application even when dissolution of Parliament without discussion in 26 the full Cabinet.21 Shortly therea"er, a 1920 Ca- starting from similar conceptual positions). 22 nadian order-in-council authorized the Cana- Sir William Anson, for example, was of the dian prime minister to make the recommenda- view that everything the King, or by extension tion for dissolution to the governor general and the governor general, did required advice (i.e., while this continued to be done through a min- a minister willing to take responsibility for it), ute of council, in 1957 the unprecedented inven- noting that the King could “either convert his tion of an “instrument of advice” emerged for ministers to his point of view or, before taking
!* Volume 18, Number 2, 2009
Figure 1 Governor General’s Decision-Making Autonomy
action, must #nd other ministers who agree Court noted that conventions are unenforce- with him.”27 Walter Bagehot — famous for the able by the courts, although they are enforced pronouncement that a constitutional monarch by other institutions of governance including has only the right to be consulted, to encourage, the head of state.34 Of course even the most and to warn — thought that if there should ever minimalist constitutional role for the governor be an instance when the King felt his ministers general, some argue, places a decision burden were acting against the public interest, the King on that o&ce which goes beyond what ought to should dissolve Parliament and see if the people be permitted by a democratic constitution. To would change the government for him.28 complicate matters, it is a role that the public perhaps expects, given the frequent invocation Even those most reluctant to acknowledge of the line (attributed to Eugene Forsey) that an autonomous decision-making role for the the governor general must “thwart the will of a head of state are confounded by the question of ruthless prime minister.”35 While this is a mis- who appoints a prime minister when there is a representation of Forsey’s much nuanced think- vacancy. As British prime minister Harold Wil- ing on conventions, it re)ects a popular concep- son pointed out, an outgoing prime minister tion of the governor general’s role and this, in has no duty, much less a right, to recommend turn, points to a very real danger. If the public 29 who should form a government. Berriedale has expectations for the governor general that Keith argued that that duty belongs to the new contradict the constitutional conventions con- prime minister who is advising the Crown on straining exercises of the reserve powers, this his own appointment, citing British prime min- can undermine the o&ce and the conventions ister Robert Peel’s claim that “I am by my ac- which are a part of our system of government. ceptance of o&ce responsible for the removal of What is more, this situation is likely to get 30 the late government.” $e advice given to King worse as the combination of Canada’s electoral George V by the lord chancellor was that poten- system and its regionalized politics continues to tial ministers (including a possible prime min- deliver indecisive elections. Governors general ister) cannot render advice, nor can the King be may be increasingly called upon to use their re- 31 bound by such. Jennings has rightly dismissed serve powers. this idea of retroactive advice as “pure #ction.”32 Others have argued that the key to the exercise of the reserve powers is not so much the advice Modeling a Constitutional as it is the presence of an identi#able minister Convention as a Decision Rule who can be held to account for the decision be- fore Parliament and the electorate.33 Each strain Figure 2 re)ects a minimalist approach to of opinion is a variation on the theme of strip- the governor general’s exercise of the reserve ping the head of state of decision-making au- powers that most scholars, irrespective of where tonomy, while still permitting for eventualities they are on the continuum (including the thir- in which decisions need to be taken. ty-#ve who penned the open letter in January 2009), can agree the governor general has by In the Patriation Reference, the Supreme convention. In this construct the governor gen-
Constitutional Forum constitutionnel !+ Figure 2 Minimalist Role for the Governor General in Dissolution, Appointment, and Dismissal
p t
Less than one year
Multiple years
p t
eral is called upon to exercise very little discre- equally has no need to use discretion. At some tion. Following an election, which was called point a"er a year, if the prime minister recom- on the recommendation of the prime minister, mends dissolving Parliament the governor gen- the governor general initially does nothing. If eral simply obliges, whether or not that request the prime minister is moved by the election re- came a"er a defeat on a parliamentary motion sult to resign, then the governor general simply of non-con#dence in the government. But what calls upon the leader of the party with the most if this occurs before a year has passed? Here, members in the Commons, or the second most even scholars sharing the minimalist approach members if the prime minister’s party got the disagree. $e thirty-#ve who penned the open most seats, to form a government. If the prime letter had to acknowledge that they could not minister does not resign, even if he fails to win agree among themselves that the governor gen- the most seats in the Commons, he can face the eral should call upon the leader of the opposi- House and try to win a vote of con#dence. If tion to form a government if a prime minister’s the prime minister is promptly defeated on a recommendation for dissolution or defeat on motion of non-con#dence, then it is assumed a motion of non-con#dence occurs within six by most scholars that he will then resign and or, perhaps as many as, nine months of the last the governor general, upon receiving the prime election. minister’s resignation, will simply turn to the leader of the opposition to form a government. While not mentioned in the open letter, an- $e involvement of the governor general in other likely point of disagreement among schol- these matters is straightforward and requires ars is whether or not the governor general can no exercise of discretion. dismiss a prime minister. It is always assumed that the prime minister will resign if she fails If the prime minister meets Parliament and to get dissolution or if she is defeated on a mo- retains its support, then the governor general tion of non-con#dence. But what happens if the
', Volume 18, Number 2, 2009 prime minister does not resign? who would recommend the dissolution of both chambers of Parliament, which he promptly Of course, this minimalist view of the did.37 Less controversially, the Australian gov- exercise of the personal prerogatives is not ernor general refused the recommendation of shared by all scholars. As noted in the previous three prime ministers to dissolve Parliament section, there are those who feel the governor a"er a defeat on a vote in the lower house (1904, general should exercise no decision without 1905, and 1909). In Canada, a prime minister advice and those who see a speci#c role for has never been dismissed; nor have governors the head of state including a role as mediator general ever denied prorogation or commanded of relations between executive and legislative the summoning of Parliament without prime branches. ministerial advice. Without precedents to draw upon, the gov- Complications in Conceiving ernor general will have to ask herself (and her Conventions as Decision Rules personal advisors) questions before exercising her reserve powers that require a subjective for- To begin with, it needs to be recognized ay into autonomous decision making. As Figure that the minimalist role for the governor 3 illustrates, answering the questions the gov- general in Figure . is based upon the premise ernor general must ask herself will require de- that conventions are respected by all relevant grees of discretion that might be uncomfortable constitutional actors. But the discretion for some. constitutional convention grants the governor general in the exercise of the reserve powers $is list of questions is by no means ex- is itself premised on some political actors not haustive, and it is only designed to illustrate the always respecting the rules. Not to put too degree of discretion that might be required of #ne a point on it, but the only reason to have the governor general in exercising the reserve a governor general exercise reserve powers, powers. It needs to be pointed out that there rather than surrender all royal prerogative to are a large number of even more controversial ministers who will be bound by constitutional considerations that have been advanced as wor- convention, is to guard against a ruthless prime thy of consideration, in addition to those men- minister refusing to respect the constitution. tioned in Figure 3. For example, Michael Valpy and Ned Franks suggest that the “state of Can- Constructing a decision rule out of conven- ada’s economy, the viability of an alternative tion thus becomes complicated. As conventions coalition government, and the mood of Parlia- are based, in the #rst instance, on precedent, ment and the country” were all considerations authors who discuss conventions are forced to discussed in the two-and-a-half-hour meeting examine each reserve power individually to de- that led to prorogation.38 termine the relevant precedents. Dismissal and appointment of ministers, prorogation, dissolu- $e questions in Figure /, however, are tion and summoning of Parliament, and royal questions that scholars have recommended assent, are all informed by precedents involving the governor general consider in an e%ort to di%erent circumstances. shield her from making political decisions, but even here we can see a subjective dimension For example, the last time the King consid- that could cast doubt on the nonpartisanship ered dismissing a British prime minister was in of the role of governor general. What is 1913 over controversy regarding Home Rule for needed is a more clearly de#ned decision rule, Ireland, though Jennings argues that dismissal one that will insulate the governor general would not have been constitutionally justi#ed 36 from the accusation that she took partisan in that instance. In 1975, Australian governor considerations into account in exercising her general John Kerr dismissed the Whitlam gov- reserve powers. ernment a"er a series of defeats on legislation in the Senate and appointed a prime minister
Constitutional Forum constitutionnel '- Figure 3 Questions that May be Considered by the Governor General in Exercising Reserve Powers
Autonomy in decision making: Dependent on advice Personal
On appointment of a prime minister On summoning Parliament
On dissolving Parliament On dismissing a prime minister
An Apolitical Decision Rule actors responsible for enforcing conventions, including the governor general. $e idea for an apolitical decision rule was #rst advanced on this side of the Atlantic in Precedent for an apolitical decision rule -*'/ with respect to the speaker of the legislative assembly of the united province of Canada. In the 1844 #rst edition of what is now the It was proposed that on those rare instances leading authority on British parliamentary where he was called upon to break a tie vote privilege and practice, Sir $omas Erskine May in the assembly he should not use his vote in noted that the speaker had asserted the right to a partisan manner, but rather to “keep the cast his vote, like any other member, “according question as long as possible before the House to his conscience, without assigning a reason,” though he could “best discharge his duty by in order to a%ord a further opportunity to 40 the House of expressing an opinion upon it.”/+ leaving the bill open to further consideration.” $is practice was based on an earlier decision In every edition of Erskine May since, the rule by a speaker of the United Kingdom House of has taken the form that “in order to avoid the Commons, and it provides a useful model for an least imputation upon his impartiality, it is apolitical decision rule capable of guiding not just usual for him, when practicable, to vote in such parliamentary speakers but others institutional a manner as will not make the decision of the house #nal, and to explain his reasons, which
'. Volume 18, Number 2, 2009 Figure 4 Application of Decision Rule to Prime Minister’s Request for Prorogation (2008)
Decision: Decision Decision Options left in Play: Options left in play: Options left in play: are entered in the Journals.”41 In the Canadian three options before the Governor General in House of Commons, this apolitical decision December of 2008: accept or refuse the Prime rule means the speaker, when obliged to vote, Minister’s recommendation to prorogue Parlia- chooses not to defeat a bill at #rst reading, sec- ment, or dissolve Parliament (on this matter, at ond reading, or committee stage, and to leave least, there was a precedent). As can be seen, the the bill in its current form rather than vote to decision to prorogue Parliament had the advan- have it amended.42 tage of leaving the most possibilities before Par- liament. Dissolving Parliament would simply $e advent of verbatim transcripts of pro- have forced a new election, and permitted the ceedings is a relatively recent phenomenon, so government to continue. Refusing prorogation the #rst full transcript of a speaker’s ruling on would have le" more options in play than disso- this question is 1976, where the British speaker lution, but there were several factors that limit- con#rmed Erskine May’s formulation, but also ed these options further, including the House of made the interesting observation that while the Commons’ rules concerning opposition votes speaker and his or her deputies are expressly and a signed agreement between opposition casting their votes in a manner to ensure fair- parties, so the refusal of prorogation in practice ness between both sides of the House, the would have only le" in play the appointment of media will inevitably refer colloquially to the the opposition leader as prime minister in a co- chair as having cast its vote for or against the alition government. government.43 Did the Governor General consider the Application of an apolitical decision rule viability of the coalition? Would she, having prorogued Parliament, agree to dissolution in If we look at Governor General Lord Byng’s January were the government to be defeated, or exercise of the reserve powers in the now-famil- would she appoint a coalition government? Was iar King-Byng a%air of 1926, we see a governor the fact that the Liberal leader resigned (with a general deciding to leave the matter before Par- leadership contest underway) a consideration in liament as long as possible. He refused Prime her decision to accept prorogation? Would she Minister Mackenzie King’s request for dissolu- have been more likely to refuse dissolution of tion and, following King’s subsequent resigna- Parliament if the Liberal leadership had been tion, allowed for the leader of the opposition to settled? Indeed, it is not important that we an- try to form a government (a process that took swer any of these questions, only that we ac- months rather than days). It was only when knowledge that some doubt existed about what Parliament was shown to be truly dysfunctional the Governor General might do. that he granted the request for dissolution. Figure 4 illustrates the implications of the
Constitutional Forum constitutionnel '/ Merits of an apolitical decision rule provides for the possibility of coalition gov- ernments since leaving the matter before Par- Having the governor general issue a written liament as long as possible ensures that politi- decision explaining her exercise of the reserve cal parties have an opportunity (perhaps even powers would remove a great deal of uncertain- an incentive) to explore various permutations. ty and strengthen the constitutional conven- Yet it relieves the governor general from an 44 tions hedging their use. Having the governor overt role in the establishment of a coalition general acknowledge and formalize the use of government. an apolitical decision rule would allow predict- ability in her future exercises of the royal pre- rogative, thereby creating a level playing #eld Conclusion for members of Parliament. $e control of the reserve powers by con- Pointing out that an apolitical decision rule stitutional convention su%ers from inevitable guides the governor general in her work may ambiguity as they must be applied amid con- not eliminate the media using colloquialisms troversy and over the disagreement of the con- like a cooling o% period to summarize the out- stitutional actors. Certainly Canada’s electoral come of the exercise of the reserve powers, but system, with the growth in regional politics it would go further than the current approach and parties, has been returning more divided in claiming for the o&ce of governor general Parliaments, a phenomenon which is likely to a process that ensures impartiality and objec- continue. $is means, in turn, that the gover- tivity. It would also clarify for Canadians how nor general will be called upon more frequently their parliamentary system works; the very to exercise the reserve powers. If the public’s acknowledgement that the governor general is expectation of the governor general is that she striving to keep matters before Parliament un- appropriately acts on her discretion in exercis- til the Commons has fully explored all options ing her reserve powers, then ambiguous deci- is a reminder that it is to Parliament that the sions will lead to dissatisfaction with this of- government is responsible. In fact, the decision #ce and with Canada’s parliamentary system rule itself would strengthen the hand of the leg- of government. Yet, the democratic theory in- islative branch by switching the scales from a forming these very same conventions points to process that is singularly reliant on prime min- a rather straightforward decision matrix. Put isterial recommendation to one that is centred simply, to respect responsible government a on parliamentary accountability. governor general should naturally try to exer- cise her reserve powers such that as many op- One #nal point should be made about co- tions as possible will remain available to elected alition governments. Jennings has stated that to members of Parliament. $is decision rule has ensure impartiality, “[t]he rule is that on defeat been acknowledged to be apolitical by speakers and resignation of the Government the Queen in Parliament since before Confederation, and should #rst send for the leader of the Opposi- is used to ensure that their nonpartisan o&ce 45 tion.” On the other hand, Geo%rey Marshall is kept above the political fray they are periodi- has argued that in minority parliaments, hav- cally called upon to mediate. $is approach has ing the governor general appoint a coalition admittedly never been expressly adopted by a government would be more in keeping with the governor general, but then again, no explana- governor general’s duty to remain impartial as tion for a governor general’s exercise of the re- a coalition government would have the support serve powers has ever been expressed formally, of the majority of elected MPs, certainly more so even the reasons underlying convention are support than the leader of any single political largely speculative. party.46 $e evidence supports this, as coali- tion governments tend to “pull the government It seems likely that governors general in the towards the centre of the policy spectrum and past have followed this very decision matrix, reduces the distance between the government whether consciously or not. $ey may have been and the voters.”47 An apolitical decision rule guided simply by an attempt to respect conven-
'0 Volume 18, Number 2, 2009 tions though, as Patrick Monahan points out, 3 Russell and Sossin, eds., supra note 1. governors general are not likely to be schooled 4 $e coalition proposal was just taking shape at in the constitution.48 It is more likely that gov- the time of this comment. ernors general have been driven by a sense of 5 More accurately it was a live telecast of the Gov- fairness and a commitment to the principles of ernor General’s front door, as everyone waited for the “possibility” of the Prime Minister emerging responsible government. Some may have been to announce her acceptance of his recommenda- simply responding to a need to protect the o&ce tion. If his recommendation for prorogation had of which they were made temporary custodians. been refused, and this is especially true if he then But each of these motives point to the existence tendered his resignation and it was accepted, he of a decision rule such as the one elaborated was expected to leave by the side door and make here. no comments on the grounds of Rideau Hall (though one can imagine he would have had However, it is necessary to go further and plenty to say when he returned to Parliament publicly acknowledge and embrace the merits Hill). $e governor general by tradition never of this decision rule. $is rule allows the head of makes a comment. state to remain above the political fray as guard- 6 In addition to the fourteen papers published in ian of the parliamentary system of government, Parliamentary Democracy in Crisis, supra note as court of last resort for certain constitutional 1; and Andrew Heard, “$e Governor General’s questions, and as the ultimate defender of the Decision to Prorogue Parliament: Parliamentary interests of the true political sovereign of the Democracy Defended or Endangered?” Points of state — the people. For those who desire a mini- View, Discussion Paper No. 7 (Edmonton: Centre for Constitutional Studies, 2009). See also Brad- malist role for the governor general, the rule re- ley W. Miller, “Proroguing Parliament: A Matter moves much of the subjectivity implicit in deci- of Convention” (2009) 20 Public Law Review sion making informed by precedent. 100; and Donald A. Desserud, “$e Governor General, the Prime Minister and the Request to Having a formal rule enunciated will cre- Prorogue” (2009) 3:3 Canadian Political Science ate a more level playing #eld so that political Review 40. In addition, LawNow published a actors can predict outcomes, which will reduce number of papers on prorogation in its Novem- the speculation among academics and the me- ber 2009 edition, online:
Constitutional Forum constitutionnel '! existence of unwritten constitutional conven- tions are shaped by emerging and evolving ideas tions. Albert Venn Dicey, Introduction to the of the nature and legitimacy of government. Study of the Law of the Constitution, 10th ed. See W.S. Holdsworth, “$e Conventions of the (London: Macmillan, 1865) [Dicey] at 422. John Eighteenth-Century Constitution” (1932) 17 Iowa Stuart Mill had in 1861 suggested the existence of Law Review 161. “unwritten maxims” of the constitution. See J.S. 21 Baldwin “consistently increased the importance Mill, Considerations on Representative Govern- of the prime minister by transferring de#nitely ment (Chicago: Henry Regnery, 1961). $ere are to his o&ce control of the discretionary power of a number of threads of Dicey that can be traced the Crown.” See A. Berriedale Keith, !e King, back to nineteenth-century writers. See O. Hood the Constitution the Empire and Foreign A"airs: Phillips, “Constitutional Conventions: Dicey’s Letters and Essays 1936-7 (London: Oxford Uni- Predecessors” (1966) 29 Modern Law Review 137. versity Press, 1938) at 41. 13 Kenneth Clinton Wheare, Modern Constitutions 22 Ibid. (Oxford: Oxford University Press, 1951) at 179. 23 When asked about this change in the House of For a study speci#cally of Canadian conventions, Commons, the parliamentary secretary to the see Andrew Heard, Canadian Constitutional prime pinister claimed that the earlier mecha- Conventions: !e Marriage of Law and Politics nism of conveying the recommendation through (Oxford University Press, 1991). a formal “minute of Council was considered 14 Ivor Jennings, !e Law and the Constitution, 5th inappropriate as a means of addressing the ed. (London: University of London Press, 1960) Governor-General on those matters on which at chapter 3. the tendering of advice is the responsibility of the 15 Some of these prerogatives, such as withholding Prime Minister alone and not of the Committee royal assent, are argued to no longer exist due to of the Privy Council.” Canada, House of Com- the negative precedent that they have not been mons Debates vol. 4 (4 April 1966) at 3776 (John used in recent years. $is is the case made over R. Matheson). No explanation was given for how the powers of disallowance and reservation. See this had become a prime ministerial responsibili- for example, Peter W. Hogg, Constitutional Law ty in Canada, or how a new and creatively named of Canada, 4th ed. (Scarborough: Carswell 1997) “instrument of advice” could emerge within the [Hogg, Constitutional Law] at 120. However, codi#ed system of privy council documentation caution should be urged as this was also the posi- inherited from the British. tion scholars took concerning section 26 of the 24 Harold Macmillan, Riding the Storm 1956-1959 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, (London: Macmillan, 1971) at 750. reprinted in R.S.C. 1985, App. II, No. 5. Eugene 25 $is is a debate that equally underlies discussions Forsey called this section the “Cheshire cat” of over the powers of the judiciary and over the ap- the Constitution, yet Prime Minister Brian Mul- propriate role for the Senate in Canada. roney was able to convince the Governor General 26 Ironically, this legal scholar/political scientist and the Queen to use this clause to appoint ad- positioning is reversed in the debate over the role ditional senators in 1990 so as to ensure passage of the courts relative to Parliament, with Cana- through the Senate of the goods and services tax. dian political scientists tending to argue for a 16 $is was a higher level of concurrence than more limited judicial role. See for example, F.L. originally advocated by Jennings, and was sug- Morton and Rainer Knop%, !e Charter Revolu- gested by Hogg, Constitutional Law, ibid. at 9. See tion and the Court Party (Peterborough: Broad- Reference re: Amendment of the Constitution of view Press, 2000); Christopher Manfredi, Judicial Canada, [1982] 1 S.C.R. 753 [Patriation Refer- Power and the Charter: Canada and the Paradox ence] at 878-80. Jennings is explored in greater of Liberal Constitutionalism (Don Mills: Oxford detail in Re: Objection by Quebec to a Resolution University Press, 2001), and contrast legal schol- to amend the Constitution, [1982] 2 S.C.R. 793 ars Peter W. Hogg, “$e Charter Revolution: Is it [Objection by Quebec]. Undemocratic?” (2002) 12 Constitutional Forum 17 Patriation Reference, ibid. at 760. constitutionnel 1; and Kent Roach, “Constitu- 18 Dicey, supra note 12, footnote 26. tionalism and Commons Law Dialogues Between 19 See Geo%rey Marshall, Constitutional Conven- the Supreme Court and Canadian Legislatures” tions: !e Rules and Forms of Political Ac- (2001) 80 Canadian Bar Review 481. $is might countability (Oxford: Clarendon Press, 1986) suggest a bias for particular institutions. [Marshall]. 27 Marshall, supra note 19 at 20. 20 Dicey, supra note 12 at 422. A"er all, conven- 28 Walter Bagehot, !e English Constitution (Cam-
'' Volume 18, Number 2, 2009 bridge: Cambridge University Press, 2001). gruence Between Citizens and Policymakers?” 29 Harold Wilson, !e Governance of Britain (Lon- (2006) 39:10 Comparative Political Studies 1243. don: Harper Collins, 1977) at 22. 48 Patrick Monahan, Constitutional Law (Toronto: 30 Berriedale Keith, !e British Cabinet System Irwin Law, 2002) at 79. (London: Stevens, 1951) at 449. 31 Harold Nicolson, King George the Fi#h: His Life and Reign (London: Constable, 1952). 32 Ivor Jennings, Cabinet Government (London: Cambridge University Press, 1961) [Jennings] at 449. 33 Andrew Heard, “$e Governor General’s Sus- pension of Parliament: Duty Done or a Perilous Precedent?” in Russell and Sossin, eds., supra note 1 at chapter 4. 34 Patriation Reference, supra note 16 at 881-83. $is was a&rmed in Objection by Quebec, supra note 16 at para. 98. 35 See for example, W.T. Stanbury, “Write it Down: Codify the Unwritten Conventions for Canada’s Sake” !e Hill Times (15 December 2008); and Larry Zolf, “Boxing in a Prime Minister” CBC News (28 June 2002), online: CBC
Constitutional Forum constitutionnel '(