The reserve power

Earlier this year, Nicholas MacDonald and James Bowden argued that the Governor General has no discretion to refuse a request to prorogue Parliament. In the latest issue of Canadian Parliamentary Review, Peter Russell counters.

On that question, it is my view, and it is a view that I believe is shared by a great many constitutional scholars, that “in this democratic age, the head of state or her representative should reject a prime minister’s advice only when doing so is necessary to protect parliamentary democracy.” Those words of mine are quoted, with what I take to be approval, by MacDonald and Bowden in their article. The justification for the convention is to ensure that parliamentary government is democratic and not controlled by an hereditary head of state or her representative. It follows that if a prime minister’s advice seems seriously adverse to the functioning of parliamentary democracy, it should not be followed. An authoritarian prime minister might be as much a threat to parliamentary democracy as an authoritarian sovereign.




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The reserve power

  1. In the Canadian context, an authoritarian prime minister is a much greater and real threat than a ceremonial sovereign could ever be. After all, the sovereign takes an oath to govern the according to the respective laws and customs of the countries of the realm while the government controls the legislative agenda, entirely in a majority government – unless his party “Thatchers” him/her.

  2. The GG is the last line of defence in protecting our democracy.

     The constitutional expert Eugene Forsey stated that a “Governor General must take all steps necessary to thwart the will of a ruthless prime minister.”

    • Constitutional scholar R. MacGregor Dawson said:

       ”The [Prime Minister's] advice
      given may be bad; it may be shortsighted; it may be foolish; it may even be
      dangerous – these considerations may induce the governor to remonstrate with
      his ministers and try to win them over to his point of view; but if they
      persist, his only course of action is to shrug his shoulders and acquiesce. The
      decision is not his, but that of his government, and eventually the people and
      their representatives will deal with those who have proffered the advice.”

       The Crown is the last line of defence when a
      prime minister’s advice genuinely threatens Westminster parliamentarism as we know it.
      However, most of these arguments in favour of the governor general’s
      intervention inappropriately put the onus on the Crown as the first recourse
      rather than as the last resort. If Parliament did not approve of the Harper
      government, it could have withdrawn its confidence in January 2009 upon the
      introduction of the budget.

       We need to put the onus on parliament because
      while the queen reigns, parliament rules.

      • Well if that was true, we don’t need a GG at all.

        A rubber stamp is cheaper.

  3. The whole argument of whether the Governor-General should have been able to prorogue at Harper’s request is a bit of a Red Herring, IMO, as the Governor-General is an appointee.  The act of proroguation should require the consent of a majority of our elected representatives within the House of Commons, which clearly was not the case the last two times.  Not that it currently does require the consent of the House, but it should.  Just as appointed Senators should not be able to overturn the will of the House (as they did, in the service of Harper), the appointed GG should not be allowed to thwart the will of the House (as she did, in the service of Harper).

    All this is moot now, though, as we’ve elected a majority.

  4. MacDonald/Bowden article made me laugh – experts mostly arguing and bickering about King-Byng and then someone else throws wrench into works with “the little-known Macdonald-Dufferin prorogation of 1873 …. ” . 

    It is description of why Westminster model is both brilliant and maddening.
     
    It is very fexible – we have a bunch of clever people who have spent entire lives studying minutiae of public admin and they can’t agree on something as simple as whether GG should follow PM or not when deciding to prorogue. 

    From MacDonald/Bowden article:

    Of the scholarship on the Harper-Jean prorogation of 2008, Andrew Heard occupies one extreme in his support for the use of the reserve power in matters of prorogation and the argument that Governor General Michalle Jean should have rejected Prime Minister Stephen Harper’s advice to prorogue in 2008. 

    In the middle, C.E.S. Franks also acknowledges the applicability of the reserve power to prorogation but reluctantly concludes that “the governor general made the right decision.” Peter Hogg, Adam Dodek and Barbara Messamore accept that the reserve power still applies to prorogation but believe that the governor general wisely accepted the prime minister’s advice for various reasons more emphatic than those of Professor Franks. 

    Professor Hogg, for instance, believes that an imminent vote of confidence suffices to activate the reserve power that allows a governor general to reject a prime minister’s advice. 

    At the other extreme, Henri Brun argues that the governor general possessed no personal discretion because the reserve power does not apply to prorogation; he supports a more narrow interpretation of the power and would sanction it only in the gravest emergency. Guy Tremblay agrees with Professor Brun and believes that “the governor general must accede to a request of prorogation or dissolution.” 

    Finally, based on the writings of the late Professor Robert MacGregor Dawson, the Harper-Jean prorogation of 2008 did not meet the constitutional test on the acceptable use of the reserve power. 

    Of these scholars, only Professor Messamore devoted serious attention to the little-known Macdonald-Dufferin prorogation of 1873 and applied its lessons to the Harper-Jean prorogation of 2008; in contrast, Professors Franks and Russell invoked the King-Byng Affair of 1926, which involved dissolution and not prorogation, and therefore provides a bad example with respect to the Harper-Jean prorogation.

    • he supports a more narrow interpretation of the power and would sanction it only in the gravest emergency

      I’m curious, in the specific context of prorogation, what exactly the experts would deem to be a “grave” situation?  Is there a more “grave” use of the prorogation of our elected Parliament than to avoid a vote of our elected Parliament?  If we accept that it’s acceptable to shut down Parliament in order to avoid a confidence vote in Parliament, then is it even metaphysically possible for there to exist some other condition under which it would be unacceptable to shut down Parliament?

      What would be an example of a worse reason to shut down Parliament than avoiding a vote of Parliament?  Not that I’m entirely convinced that the GG was wrong, but if it’s correct that the GG can’t overrule a PM who’s proroguing Parliament to avoid a vote of confidence, what reason for proroguing Parliament do you suppose would be beyond the pale?

      • “What would be an example of a worse reason to shut down Parliament than avoiding a vote of Parliament? ”

        In theory, I agree with this but most Canadians don’t think about theory. Many Canadians just want Parliament to work, do its job. 

        In practice, my guess is that GG does much polling to gauge where Canadians are on specific topics or issues and makes decisions based on what majority of Canadians think.

        There was not widespread public support for coalition taking over from Con and GG made sure it did not happen. GG would overrule PM if what he was requesting was clearly going against mood of Nation. 

      • We argued that the reserve power doesn’t apply to prorogation any longer. Read the article if you want the full explanation…

      • I would ask, rather: is there a threat more grave than a parliament that isn’t willing to follow through on its intention to withdrawn its confidence in the government? As the article says, nothing prevented the 2nd session of the 40th Parliament from withdrawing confidence in the government.

  5. a view that I believe is shared by a great many constitutional scholars

    [Citation Needed]. Lame as appeal to authority, lame as appeal ad populem.

  6. To clarify, both Nick and I believe that the viceregal reserve powers still apply to dissolution (since Peter’s article kind of implies the contrary). “No Discretion: On Prorogation and the Governor General” doesn’t even discuss dissolution, as the title suggests.

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