The Constitutional Role of the Governor General Patrick J. Monahan Vice President Academic & Provost, York University Three Questions

ƒ What is the scope of the ‘reserve powers’ of the Governor General (GG)? ƒ HtdiitibHave recent decisions on prorogation been consistent with established constitutional priil?inciples? ƒ Should there be new limits or restrictions imposed, either directly or indirectly, on the power to seek prorogation? Governor’s Reserve Power

ƒ ‘Reserve powers’ are those exercised by GG through personal discretion, rather than on advice from PM ƒ Scope of reserve powers must be extremely limited, but are real ƒ Confirmed by December 2008 precedent – GG met with PM for over 2 hours & consulted with her own advisor prior to granting PM’s request for prorogation Principles of Responsible Gov’t

ƒ Scope of Reserve Powers defined by principles of responsible ƒ Key principle is that GG must always follow the advice of prime minister who has confidence of the House ƒ Reserve power could only arise if there is doubt over issue of confidence – Increase in minority gov’ts increases situations of doubt, making GG’s reserve power more significant Considerations of legitimacy

ƒ is essential to legitimacy of monarchical government ƒ An unelected must strive to ensure that political decisions that matter taken by elected representatives ƒ GG must not assess the wisdom of advice received from a PM who possesses confidence – Prorogation of December 30, 2009 consistent with constitutional principle since PM enjoyed confidence Considerations of legitimacy

ƒ Even if there is some doubt about whether the PM continues to enjoy confidence, GG should attempt to minimize role ƒ Strive to ensure that political processes dtdeterm ine ou tcomes t o great est ext ent possible – “let the players play” principle December 2008 Precedent

ƒ 3 opposition parties announced intention to vote nonnon--confidenceconfidence in government ƒ Liberals & NDP to form coalition gov’tov’t,, supported by BQ for 18 months ƒ On December 4 PM seeks prorogation from GG until J anuary 26, 2009 – Commitment to introduce budget on Jan.27 ƒ GG grants request after discussion – Discussion of “economic situation, mood of , viability of coalition government” (Globe and Mail) GG’s discretion

ƒ Gov’t had survived a vote of confidence had not yet been defeated, but defeat appeared certain – 161 MPs had indicated in writing support for coalition ƒ Clear that the GG had an independent discretion to approve or reject request ƒ More difficult issue is whether her decision was correct? Exercise of discretion

ƒ GG’s discretion cannot be dictated by categorial rule -- requires case-case-byby--casecase analysis of particular circumstances ƒ If the GG refused this request , gov ’ t would have been defeated; options then would be: – (i) election; – (ii) call on Mr. Dion to form gov’t ƒ Election undesirable given previous election ƒ Viability/stability of alternative gov’ ttmustbeakey must be a key consideration in GG’s assessment (King/Byng precedent) 3 Key Considerations

ƒ Viability/sustainability of alternative gov’ t ƒ nature of PM’s request ƒ GG’s decision ought not to dictate political outcomes ƒ BUT “economic situation” does not appear to be an appropriate matter for GG – GG should focus on relevant constitutional considerations and principles, not economic ppyolicy Viability of Alternative gov’ t

ƒ Considerations in support: – Agreement in writing – 18 month time -frame – Support of individual MPs not just leaders ƒ Considerations against – Coalition formed in haste; not been feature of campaign – Uncertain status of proposed Prime Minister ––22--partyparty coalition supported by a 3rd is unwieldy and untested ƒ Contrast with 1985 Ontario Accord Considerations

ƒ PM’s request was bounded – time limited (7 wks) – Only sacrificed 7 days of scheduled sitting time ––Gov’tGov’t committed to vote of confidence upon resumption ƒ Grantinggq request would not dictate political outcomes, whereas refusal would necessarily involve change of government and possible election ƒ On balance, GG made right decision Proposals to limit Discretion

ƒ Recent ppproposals to limit abilit y of PM to re quest prorogation – “7 day rule” would require House support for request ƒ “Hard cases make bad law” ƒ What is the problem we are trying to solve? ƒ Unwise to focus on specific kinds of decisions rather than general principles Reform proposals ƒ If PM enjoys confidence, rule is inappropriate since PM who enjoys confidence should be able to advise GG on exercifhise of her powers ƒ If there is doubt about whether the PM enjoys confidence , then GG should exercise Reserve powers, as described above ƒ Proposal eliminates GG from equation, transferring power to opposition parties ƒ Reform should focus on process for appointing GG