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Expert insight on the Governor General’s dilemma


 

University of Toronto law professor Ed Morgan is an expert on the Constitution and the traditions that underpin Parliamentary government. As Prime Minister Stephen Harper spoke with Governor General Michaelle Jean at Rideau Hall, Morgan answered our questions about the decision she must soon make. An edited version of that conversation:

Q. What rules will guide the Governor General this morning?

A. All we have on these matters is a phrase that says our Constitution is similar to the constitution of the United Kingdom, and we know they have an unwritten constitution. So we’re into the area of unwritten constitutional conventions. The so-called reserve powers of the Crown are not unlimited but they are just unwritten.

Q. So she’ll have to look back to how her predecessors acted at moments like this?

A. You have to look at the conventional uses of these powers. Typically the Governor General has formal powers, but in all of Canada’s modern history, Governors General have acted on the prime minister’s advice. In these rare times of constitutional crisis, when they have to exercise independent decision-making, that’s when the conventions come into effect.

Q. Is there any precedent for this crisis?

A. The one precedent is the King-Byng affair of the mid-1920s. There are lots of parallels between that affair and today. A minority Liberal government was looking at a non-confidence vote and asked the Governor General, not to prorogue in that case, but to call a new election. The Conservatives with the support of the Progressives said they could form a government, not a coalition but coalition-like. Governor General Byng turned to them and said, ‘Give it a try.’ They tried and failed, and were rebuked by the public in the election that followed, returning Mackenzie King with a  majority.

Q. What if either Harper or his opponents don’t like whatever decision Michaelle Jean makes? Can they ask a court to overrule her?

A. These conventions are not judicially enforceable. The courts won’t strike down her decision one way or the other.

Q. A lot of Canadians just don’t get this. They think whoever wins an election gets to govern, period, until there’s another election.

A. That’s the core of the problem. Formally speaking, we elect a Parliament not a prime minister. That’s what Stéphane Dion is trying to impress upon people: we elect a Parliament and we need to let Parliament find its stable governance. But people commonly don’t think that way. We have debates among the party leaders just like the Americans have debates between the candidates for president. People don’t think they are electing a parliament; they think they are electing a prime minister to lead the government.

Q. So our parliamentary traditions clash with public perceptions.

A. Our formal parliamentary system has bumped up against what goes on in popular discourse. People think we elected Harper, but we elected a whole bunch of MPs.

Q. Does the Governor General have any real choice here? Rejecting Harper’s plea for suspending parliament would amount to dismissing him.

A. The very fact that you need authorization from the Governor General to prorogue parliament means that there is some leeway there for the Governor General to say Yes or No.

Q. So he has to persuade her.

A. It’s incumbent on the PM to present a good justification. And here it looks as if there is one. The usual justification for proroguing is that MPs have to consult. There is certainly a good case to be made that MPs should go out and consult with their constituents.

Q. So what would you say she should do?

A. She’s got to take the least interventionist path, which would be to accede to his request.


 

Expert insight on the Governor General’s dilemma

  1. I don’t agree that a prorogue is the “least interventionist path.” Whether or not the public gets it, the need for the House to have confidence in the government is basic stuff in our system. It’s essential. In this case, the House has clearly lost its confidence in the government. In order to avoid a vote – to save his own skin – the Prime Minister is seeking to prorogue.

    By acceding to his request, the Governor General would, thus, be trampling on the will of the House. How is that the least interventionist course? It would seem to me, that the least interventionist course would be to let debate in the House unfold as it will.

  2. I find the repeated oversimplifications of the King-Byng affair such as the one Prof. Morgan makes above particularly unhelpful in the current Debate. Yes, Byng refused to allow the Liberal PM King to call an election to avoid a vote of censure. However, how they got to that point is significantly different.

    The 1925 Election ended with the Meighen’s Conservatives winning the most number of seats, but King refused to step down after the election. He gained the support of the Progressives to maintain power, despite having ‘lost’ the election. After one of King’s Minister’s was found to have accepted bribes, the informal coalition of the Liberals and the Progressives started to come apart. King fired that minister, but then promptly nominated him to the Senate, further damaging relations with the Progressives.

    King had by then lost two votes in the commons and was facing a third, dealing with the corruption charge against his minister. Rather than face the third vote, King asked for Gov. General Byng to call an election. SINCE, IN FACT, THE CONSERVATIVES HAD MORE SEATS, BYNG ASKED THEM TO FORM A GOVERNMENT, rather than call an election (emphasis here on the key thing that is repeatedly left out). The Conservative leader Meighen formed a government with an informal coalition with the Progressives.

    King then tried to appeal to London to overturn Byng’s decision, but was unsuccessful. The Liberals were later able to swing the Progressives back to their side and force an election.

    The significant difference between the King-Byng affair is that the existing government was an informal coalition that had come apart, and the new coalition included the party that had in fact won the most seats.

  3. There are two fundamental constitutional conventions involved.

    First, responsible government means that the govt must have the confidence or support of the House of Commons. Harper appears set to lose a vote of confidence and Dion apparently is set to have the support of a majority of the House.

    Second, the Governer General should act on the advice of the Prime Minister. In normal circumstances, the GG does as requested. However, Harper is seeking to avoid a non-confidence vote and thus undermine the notion of responsible govt. The GG does need to uphold constitutional conventions and parliamentary democracy, particularly where other political actors are attempting to undermine the constitution (written and unwritten). Harper’s request to prorogue Parliament is therefore a dubious one. In that light, the GG would be upholding the convention of responsible government and protecting parliamentary democracy in refusing to prorogue Parliament. The GG does retain some discretion over the use of the Royal Prerogative in just such cases.

  4. King did not win a majority in 1926, the King-Byng election. He won another minority (116 of 245 seats), and governed by coalition.

    Many people have been making this mistake. Am I missing something?

  5. Zamprelli:

    King didn’t win a majority in 1926, but he did have the largest number of MPs (116 to the Conservatives’ 91) and he had a pact with other parties that lead the liberals to not run in all ridings, and forming an alliance with the Progressives again.

    So, no majority, but a much much clearer mandate than he had previously.

    (Incidentally, King’s improved seat count came despite the fact that he was behind Meighen’s Conservatives by a reasonable margin in he popular vote)

  6. Here’s the nut of the problem as I see it: in a republican system there is a separation of power between the executive and the legislative branches of government – a system of checks and balances.

    In a parliamentary system, the executive is chosen from the legislative branch (the House of Commons). To allow the government to prorogue whenever s/he wants tilts the whole system too far in favour of the prime minister who then can control both branches of government.

    I think Jean should prorogue, but I’ll find out in a few minutes.

  7. Indeed. What I’m getting at – and I think you’ll agree – is that the perceived public backlash against Lord Byng is a bit of a myth.

  8. Well, the backlash against Byng may or may not be true, because while i see no reason to question his decision, King flat-out lied about the situation during the election. King traveled across the country claiming that England has interfered with his government’s decision to take the question to the people. Of course, in actuality, Byng was determined for Canada to resolve its own issues while King appealed to the Colonies Office in London.

    The reason I say the backlash may or may not be true is that Byng was probably in the right, and I think most people would have agreed with that, but I assume that King did a much better job getting his message out than Byng would have.

  9. Bob Rae had the most succinct observation: “like a kid pulling a fire alarm to avoid writing an exam he knows he’s going to fail”.

  10. R Keller,

    I think it’s more like asking for a rain delay when your losing the game and the skies are clear.

    Steve,

    King was no doubt more wily in terms of messaging. But the election results, particularly the popular vote, suggest there was no wave of outrage. Just something Harper should consider if he thinks this will play out the same way.

  11. I would agree that granting prorogation is a poor precedent to set, and it is just escaping a parliamentary vote.

    If the result was inevitable, and prorogation left Canada with an ineffective government for about 2 months, I would say that it is the wrong thing to do. However, I do not feel that the house is as likely to vote non confidence in January as they are next week. This coalition is pathetically unsteady in my eyes, and I think a month or two of waiting will allow the internal tensions to tear them apart.

    In that light, not granting prorogation is perhaps more damaging to the country.

    Therefore, I am much much more comfortable with an election.

  12. Looks like the GG chose prorogation. Frankly, I am not pleased.

  13. The only real question was “You mean I actually have to listen to this a$$hole?”

  14. Frankly, I am pleased. Now the opposition has time to flesh out its skeleton plan and find out how many advisors it can count on and other details that aren’t quite as set down as we were led to believe; the Conservatives have a chance to write and release their plan; then we (voters) will have a clear picture of the alternatives when the opposition decides whether to accept the Conservative budget or take the path which will enact their own.

  15. “You won’t recognize Canada when I am done with it”

    He got that right, democracy a thing of the past.

  16. who said “”you won’t recogonize Canada when I am done wiht it”?? Was it said today?

  17. The idea that to prorogue is poor precedent is silly. A minority government by definition is constantly under threat of a no confidence vote. To prorogue doesn’t change that. It just gives the parliament time to work out the situation is a deliberate way. There is no hint of a the possibility that Harper is somehow permanently trying to avoid a confidence vote if the house wants it.

  18. I would say I agree that her choice this morning was the least interventionist. At this point it is impossible to determine if Harper’s government truly has lost some support among the people who elected it. Since no party can claim a majority by itself and the Bloc is a hazy third to make the majority the coalition claims it has, this is an important consideration. Jean did exercise her personal perorogative and this will give Canadian’s pause, yet in doing what Stephen Harper required she has thrown democracy back to the people to sort out a favourite. By January it will be much clearer how much support Harper’s government has and where public opinion sits for her to exercise her personal perogative again.

  19. It’s over. Never mind cracks in the coalition. The Liberals themselves are cracking. Rae says “take ’em out” no matter what. Iggy is not so sure. Dion is starting to back off in caucus. Kyryganis, Sgro, and Valariote are all musing about how this may not be such a great idea. Dion keeps dropping the ball (nice YouTube video last night.)

    Can a party in the throes of an all-out leadership revolt really maneuver itself into government? Of course not. Bob Rae will fight like hell to keep the coalition alive because it’s his one chance of usurping Iggy as the natural choice for leader. It won’t work. Even if all the Liberals end up on side, the coalition itself will crack, complements of celebratory separatists who can’t keep their mouths shut, and rabid social activists within the NDP who will insist on $50 billion in “stimulus”.

    It ain’t gonna work progressives. Give it up. Go home. Lick your wounds. And try again. Sucks to be you.

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