The Constitutional Role of the Governor General Patrick J. Monahan Vice President Academic & Provost, York University Three Questions
What is the scope of the ‘reserve powers’ of the Governor General (GG)? HtdiitibHave recent decisions on prorogation been consistent with established constitutional priil?inciples? Should there be new limits or restrictions imposed, either directly or indirectly, on the power to seek prorogation? Governor’s Reserve Power
‘Reserve powers’ are those exercised by GG through personal discretion, rather than on advice from PM Scope of reserve powers must be extremely limited, but are real 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
Scope of Reserve Powers defined by principles of responsible government Key principle is that GG must always follow the advice of prime minister who has confidence of the House 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
Responsible government is essential to legitimacy of monarchical government An unelected Head of State must strive to ensure that political decisions that matter taken by elected representatives 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
Even if there is some doubt about whether the PM continues to enjoy confidence, GG should attempt to minimize role 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
3 opposition parties announced intention to vote nonnon--confidenceconfidence in government Liberals & NDP to form coalition gov’tov’t,, supported by BQ for 18 months On December 4 PM seeks prorogation from GG until J anuary 26, 2009 – Commitment to introduce budget on Jan.27 GG grants request after discussion – Discussion of “economic situation, mood of Parliament, viability of coalition government” (Globe and Mail) GG’s discretion
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 Clear that the GG had an independent discretion to approve or reject request More difficult issue is whether her decision was correct? Exercise of discretion
GG’s discretion cannot be dictated by categorial rule -- requires case-case-byby--casecase analysis of particular circumstances 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 Election undesirable given previous election Viability/stability of alternative gov’ ttmustbeakey must be a key consideration in GG’s assessment (King/Byng precedent) 3 Key Considerations
Viability/sustainability of alternative gov’ t nature of PM’s request GG’s decision ought not to dictate political outcomes 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
Considerations in support: – Agreement in writing – 18 month time -frame – Support of individual MPs not just leaders 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 Contrast with 1985 Ontario Accord Considerations
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 Grantinggq request would not dictate political outcomes, whereas refusal would necessarily involve change of government and possible election On balance, GG made right decision Proposals to limit Discretion
Recent ppproposals to limit abilit y of PM to re quest prorogation – “7 day rule” would require House support for request “Hard cases make bad law” What is the problem we are trying to solve? Unwise to focus on specific kinds of decisions rather than general principles Reform proposals If PM enjoys confidence, rule is inappropriate since PM who enjoys confidence should be able to advise GG on exercifhise of her powers If there is doubt about whether the PM enjoys confidence , then GG should exercise Reserve powers, as described above Proposal eliminates GG from equation, transferring power to opposition parties Reform should focus on process for appointing GG