What say the Governor General?

Nicholas A. MacDonald and James W.J. Bowden argue that the Governor General should not refuse a request to prorogue Parliament.

This paper does not intend to ignore or gloss over the way that the prorogations of 1873 and 2008 unfolded in reality; clearly the majority of the political actors – certainly Lord Dufferin and Michaelle Jean themselves – believed that the Office of the Governor General possessed the reserve power to accept or reject the prime minister’s request. But based on the available evidence, we can only conclude that the governor general’s reserve power ought not to apply to prorogation.




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What say the Governor General?

  1. "What say the Governor General?"
    I don't know, but it would be, like, super awesome of a reporter at a national news outlet could pose the question.

  2. MPs should be paid by the day. Prorogations of more than a week would be a thing of the past.

  3. "What say the Governor General?"
    I don't know, but it would be, like, super awesome of a reporter at a national news outlet could pose the question.

  4. MPs should be paid by the day. Prorogations of more than a week would be a thing of the past.

  5. I love the part "These presumptuous remarks overlooked that the governor general only receives and acts upon advice from either the cabinet as a whole or the prime minister individually".

    True. And true for everyone, Harper, Duceppe, Layton and Dion.

    Thankfully Ignatieff understands this. He has clearly stated that he would speak with all, Duceppe, Layton and Harper, should the GG ask him to try to form a government. Not before, but only IF the GG would ask him to do so.

    Contrast with Harper who TWO MONTHS BEFORE a newly-elected parliament even had a chance to meet, conspired in hotel rooms, with the 'separatists and socialists', to use Conservative jargon.

  6. I love the part "These presumptuous remarks overlooked that the governor general only receives and acts upon advice from either the cabinet as a whole or the prime minister individually".

    True. And true for everyone, Harper, Duceppe, Layton and Dion.

    Thankfully Ignatieff understands this. He has clearly stated that he would speak with all, Duceppe, Layton and Harper, should the GG ask him to try to form a government. Not before, but only IF the GG would ask him to do so.

    Contrast with Harper who TWO MONTHS BEFORE a newly-elected parliament even had a chance to meet, conspired in hotel rooms, with the 'separatists and socialists', to use Conservative jargon.

  7. I prefer Hogg's analysis of the underlying doctrine (although not his application to the facts of 2008).

  8. "…we can only conclude that the governor general's reserve power ought not to apply to prorogation."

    If that advice is accepted by current and future GGs then any PM can with impunity suspend Parliament for extended periods subject only to the constitutional requirement to sit once per year.

    That is patently insane, dangerous and, therefore, wrong.

  9. "…we can only conclude that the governor general%E2%80%99s reserve power ought not to apply to prorogation."

    If that advice is accepted by current and future GGs then any PM can with impunity suspend Parliament for extended periods subject only to the constitutional requirement to sit once per year.

    That is patently insane, dangerous and, therefore, wrong.

  10. "…we can only conclude that the governor general's reserve power ought not to apply to prorogation."

    If that advice is accepted by current and future GGs then any PM can with impunity suspend Parliament for extended periods subject only to the constitutional requirement to sit once per year.

    That is patently insane, dangerous and, therefore, wrong.

    • More and more, I think our system of government was designed for a better class of people than we have sitting.

      • Bingo

    • As you state the constitutional requirement is for Parliament to sit once per year. This is constitutional but patently antidemocratic in today's world. This is one that should be up for amendment, if ever…

  11. More and more, I think our system of government was designed for a better class of people than we have sitting.

  12. Everyone says the choices facing governors general, especially in a period of endless minority governments, are crucial and delicate. No they're not. Defer to the Prime Minister. When you're not sure who the Prime Minister is, defer to the Commons. When the Commons isn't sure, defer to the electorate. –Paul Wells, July 2010.
    http://www2.macleans.ca/2010/07/08/the-immaculate

    Still a most excellent nutshell.

  13. Everyone says the choices facing governors general, especially in a period of endless minority governments, are crucial and delicate. No they%E2%80%99re not. Defer to the Prime Minister. When you%E2%80%99re not sure who the Prime Minister is, defer to the Commons. When the Commons isn%E2%80%99t sure, defer to the electorate. –Paul Wells, July 2010.
    http://www2.macleans.ca/2010/07/08/the-immaculate

    Still a most excellent nutshell.

  14. Everyone says the choices facing governors general, especially in a period of endless minority governments, are crucial and delicate. No they're not. Defer to the Prime Minister. When you're not sure who the Prime Minister is, defer to the Commons. When the Commons isn't sure, defer to the electorate. –Paul Wells, July 2010.
    http://www2.macleans.ca/2010/07/08/the-immaculate

    Still a most excellent nutshell.

    • agreed

  15. agreed

  16. As you state the constitutional requirement is for Parliament to sit once per year. This is constitutional but patently antidemocratic in today's world. This is one that should be up for amendment, if ever…

  17. What an utter shame that after 170+ years of parliamentary tradition it has become increasingly clear that we now need to pass laws to prevent governments from doing what they know is contrary to our Constitutional Conventions

  18. What an utter shame that after 170+ years of parliamentary tradition it has become increasingly clear that we now need to pass laws to prevent governments from doing what they know is contrary to our Constitutional Conventions

    • It may not actually be contrary to convention, because it happens so rarely that its not set by common practice. But it's definitely pretty sleazy!

      • Fair point :)

  19. It may not actually be contrary to convention, because it happens so rarely that its not set by common practice. But it's definitely pretty sleazy!

  20. Fair point :)

  21. Cat, let me introduce you to the pigeons.

  22. Does anyone know if the science in political science is intended to be sarcastic, ironic or just farcical?

    That said, thanks Aaron for giving the serious thoughts of these two young scholars some exposure.

  23. Cat, let me introduce you to the pigeons.

  24. Does anyone know if the science in political science is intended to be sarcastic, ironic or just farcical?

    That said, thanks Aaron for giving the serious thoughts of these two young scholars some exposure.

    • In the Intro class, they do generally hand out a large grain of salt.

  25. I would encourage everyone to read the actual article cited. It is quite well argued, takes takes on a number of leading constitutional scholars, and it written by a couple of undergraduate students. It actually changed my mind on the subject.

    (Though, I should point out the issue of the Governor General's reserve powers with respect to prorogation isn't really what is at issue during this election.)

  26. I would encourage everyone to read the actual article cited. It is quite well argued, takes takes on a number of leading constitutional scholars, and it written by a couple of undergraduate students. It actually changed my mind on the subject.

    (Though, I should point out the issue of the Governor General's reserve powers with respect to prorogation isn't really what is at issue during this election.)

    • I concur!

  27. Normal proroguation is fine….it happens everytime the govt has finished it's throne speech agenda, and passed all the bills.

    Proroguing in order to avoid a confidence motion, or in order to avoid handing documents over to parliament is not.

    That's an abuse of power, and should never be just 'phoned in'.

  28. Normal proroguation is fine….it happens everytime the govt has finished it's throne speech agenda, and passed all the bills.

    Proroguing in order to avoid a confidence motion, or in order to avoid handing documents over to parliament is not.

    That's an abuse of power, and should never be just 'phoned in'.

    • You're overlooking one of the main points of the article: after the intersession and start of the 2nd session of the 40th Parliament in January 2009, the opposition coalition could have voted to defeat the government on the Address in Reply to the Speech from the Throne, or on the estimates. But the opposition did not do so.

      • That's because it's usually a thank you to the monarch or GG….it doesn't mean they agree with a word she said.

  29. This article is a travesty – the authors have imposed their own ideological notions of 'progress' on our constitutional framework, and their selective quoting of Lord Dufferin is highly misleading.

    They ignore the fact that in 1873 Lord Dufferin restricted the powers of Macdonald's government during the period of proroguation to reflect the fact that Macdonald appeared to have lost the confidence of the House. So, yes, Dufferin felt bound to grant proroguation, but he limited what Macdonald could do by withholding the Royal Assent power on new legislation and appointments. This is what Jean should have done, but her advisors did not deign to inform her properly about the only relevant precedent.

    Stephen Harper carried on as usual and appointed new Senators during the 208-2009 proroguation – it was so easy and pleasant for him, that he did it again the next year, and in fact he was allowed to phone it in. … continued …

  30. This article is a travesty – the authors have imposed their own ideological notions of 'progress' on our constitutional framework, and their selective quoting of Lord Dufferin is highly misleading.

    They ignore the fact that in 1873 Lord Dufferin restricted the powers of Macdonald's government during the period of proroguation to reflect the fact that Macdonald appeared to have lost the confidence of the House. So, yes, Dufferin felt bound to grant proroguation, but he limited what Macdonald could do by withholding the Royal Assent power on new legislation and appointments. This is what Jean should have done, but her advisors did not deign to inform her properly about the only relevant precedent.

    Stephen Harper carried on as usual and appointed new Senators during the 208-2009 proroguation – it was so easy and pleasant for him, that he did it again the next year, and in fact he was allowed to phone it in. … continued …

    • … continued …

      The authors of the article, MacDonald and Bowden, argue for a narrower vice-regal reserve power in the name of democracy, when the danger today is not constitutional monarchy but the lack of checks and balances within our political system and the elected tyranny that may result. Parliament is required to meet only one day a year, and if unconditional proroguation is permitted each time a government encounters some political turbulence, we're going to end up with even more rotten governance than we now have.

      • So why didn't the parliament vote down the government in January 2009?

        • I don't understand the relevance of your question. I'm addressing the situation where a Prime Minister requests a proroguation after statements from the opposition indicate that the government will be defeated. Should the GG grant a proroguation? The answer might be 'yes', but there should be strings attached.

          • The relevance of Nick's question is that the opposition failed to deliver on its intention of bringing down the government. Prorogation does not change the seat distribution in the House; therefore, nothing prevented the opposition from defeating the Harper government on the Address in Reply to the Speech from the Throne or the estimates except its own lack of will.

  31. … continued …

    The authors of the article, MacDonald and Bowden, argue for a narrower vice-regal reserve power in the name of democracy, when the danger today is not constitutional monarchy but the lack of checks and balances within our political system and the elected tyranny that may result. Parliament is required to meet only one day a year, and if unconditional proroguation is permitted each time a government encounters some political turbulence, we're going to end up with even more rotten governance than we now have.

  32. In the Intro class, they do generally hand out a large grain of salt.

  33. That's not entirely correct. Well, constitutionally it is, but if you read the article further, you'll find that there's a lot more to it.

    In practice, parliament would need to sit for considerably longer in order to *at the very least* elect a speaker, hear the Speech from the Throne, go through the Address in Reply to the Speech from the Throne, present the budget, debate the budget, vote on the budget, table the estimates, debate the estimates, and the vote on the estimates – not to mention any supplementary estimates that come up or any legislation the government may wish to pass. And all of these are votes of confidence.

    Without approval from parliament (with the occassional exception of special warrants), the government can't spend money. If nothing else, this is why we have "grievances before supply."

  34. So why didn't the parliament vote down the government in January 2009?

  35. My understanding is that the system takes this into account – if all the required money bills were not passed during the one day parliament sat, the money would not be authorized and financial obligations would not be met, but the government would still meet the requirement for sitting.

  36. My understanding is that the system takes this into account – if all the required money bills were not passed during the one day parliament sat, the money would not be authorized and financial obligations would not be met, but the government would still meet the requirement for sitting.

    • There are a lot of negatives there, but I think the gist is correct – ultimately though, if the goverment doesn't pass the money bills, it can't spend money. And so it can't really govern…

      The governor general can issue special warrants for the government to make expenditures that haven't been approved by parliament, but this is only when parliament is dissolved. There was a controversial case in 1988 when a special warrant was used during prorogation, but a private member's bill introduced by none other than Peter Milliken was enacted in 1997, strictly limiting the use of the special warrants to periods of dissolution.

  37. That's all fair, but the point is a rogue PM could simply shutter Parliament for a year and create fiscal and constitutional chaos. If these guys' arguments are accepted the only recourse would be the GG's reserve power to dismiss him/her. Parliament (and conceivably the Cabinet) gets shut out of what becomes a 2-man game between the PM and the GG.

    That's a rather extreme diminution of Parliament as the pre-eminent constitutional body in the nation. No?

  38. That's all fair, but the point is a rogue PM could simply shutter Parliament for a year and create fiscal and constitutional chaos. If these guys' arguments are accepted the only recourse would be the GG's reserve power to dismiss him/her. Parliament (and conceivably the Cabinet) gets shut out of what becomes a 2-man game between the PM and the GG.

    That's a rather extreme diminution of Parliament as the pre-eminent constitutional body in the nation. No?

  39. There are a lot of negatives there, but I think the gist is correct – ultimately though, if the goverment doesn't pass the money bills, it can't spend money. And so it can't really govern…

    The governor general can issue special warrants for the government to make expenditures that haven't been approved by parliament, but this is only when parliament is dissolved. There was a controversial case in 1988 when a special warrant was used during prorogation, but a private member's bill introduced by none other than Peter Milliken was enacted in 1997, strictly limiting the use of the special warrants to periods of dissolution.

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