Are the governor general’s reserve powers a safeguard of democracy?

by Bruce Hicks 

Two weeks into the first session of Parliament following last October’s federal election, with the minority Conservative government facing imminent defeat over an ill-advised financial statement and a possible Liberal-NDP coalition government waiting in the wings, the media suddenly began to speculate about whether Prime Minister Stephen Harper would ask Governor General Michaëlle Jean to “prorogue” Parliament. Given that prorogue is not a word in common use in Canada, making it unlikely that this idea originated with the popular press, and that the ship of state is a vessel that leaks from the top, it seems apparent that the source of the idea was the Prime Minister’s Office. However, for an explanation of what “prorogation” was and whether it should be granted, the media turned to academics.

Political scientists and law professors could agree that “prorogation” means the ending of a session of Parliament and the termination of all business, but not the end of the Parliament itself or the calling of a new election (which would be “dissolution”). After prorogation, within a period of one year, a new session of Parliament with the same MPs is summoned. They also told Canadians that the decision to prorogue, or to dissolve, Parliament was within the Governor General’s “reserve powers” or “personal prerogatives,” meaning that it was her call. Agreement on what she should do was more elusive. After all, a request for “prorogation” under threat of defeat on a confidence question had never occurred before in Canada

In response to CTV host Dan Matheson’s question, “How come we have a bunch of constitution experts telling us she can do that, and we have another handful saying she can’t do that?”,1 I replied that the lack of precedent forced academics to draw on their respective areas of specialization. People specializing in administrative law, constitutional law, voting behaviour, rational choice, game theory or comparative politics have different expertise, which may lead to different prognostications.

In the event, on December 4, Jean granted Harper’s request for prorogation. Pursuant to convention, she made no public pronouncement and issued no written explanation of her reasons. I contend that, as things stand, the “conventions” concerning reserve powers are not worth the paper they are not written on. For the conventions to operate effectively, the Governor General should issue written decisions, and there should be an acknowledgement that it is within the purview of Parliament to set conditions for their exercise in the future.

Lord Elgin’s vision

As the parliamentary system evolved in England, the Crown lost much of its discretionary power. Parliament extended its authority into most jurisdictions, and ministers of the Crown assumed responsibility for the remaining “royal prerogatives.” However, a few items – prorogation, dissolution, the summoning of Parliament and the choice of prime minister – were held in reserve. These are the monarch’s “personal prerogatives” or “reserve powers.”

Though the Crown has some personal discretion in their exercise, there is a genuine belief that this discretion will be used to safeguard the constitution and the public’s interest. Yet as recently as 1834, King William IV dismissed a prime minister because he personally objected to the PM’s proposed policies. Queen Victoria let her personal friendship with Lord Melbourne keep him in office for two years after he had lost the confidence of Parliament. And in 1963, Queen Elizabeth II used her discretion to choose Lord Home as Prime Minister and Tory leader, a choice the public promptly rejected in a general election.

Party politics today has removed much of the Queen’s discretion over the choice of prime minister and has led to the emergence of cabinet government and collective accountability to the Commons. At the same time, it has reduced the obligation of the Crown, the PM and the ministry to negotiate and compromise with individual members of Parliament to obtain support for government legislation, policies and programs – a principle which originally defined responsible parliamentary government.

Concern over how party politics might affect the model of responsible parliamentary government was raised by the Governor General of the United Province of Canada shortly before it was granted in 1848. Lord Elgin, in a letter to the British Secretary of State for the Colonies, Earl Grey, noted that party interests had overweening importance for Canadians, which he thought was due to the health of the local economy and relatively high standard of living that led to “the selfishness of public men and their indifference to the higher aims of statesmanship.”2 Nevertheless, he was confident that under his direction and that of his successors, these politicians would come to advance the interests of Canada before their own. Hence, he recommended responsible government: that decision-making authority be entrusted to those who enjoyed the support of the majority of the legislature, even if they behaved recklessly at the outset. He also reported to Britain that he had informed the pro-British Tory politicians that he was committed to “working cordially with their opponents if they are forced upon me.”

This is what transpired soon afterwards, in events that have some ironic similarities to the situation in 2008. Following the 1848 legislative election, Louis-Hippolyte LaFontaine was able to cobble together the support of the majority of MPs in the legislature in support of a proposed economic program to unify the country after the rebellions and stimulate the economy through large public works projects. Tory politicians, upset by the prospect of losing positions and influence over the Governor and outraged that LaFontaine’s plan would benefit separatists and “traitors,” encouraged their supporters to take to the streets and march on the Governor General’s residence.3 The Tories demanded that Lord Elgin use his royal prerogative to sustain them in power, over the wishes of the legislature. Elgin did not acquiesce.

Unbound by precedent and thus able to operate on first principles, Lord Elgin implemented an idealized conception of responsible government, a conception advanced in the writings of local politicians such as LaFontaine and Robert Baldwin in Canada and Joseph Howe in Nova Scotia. Since Elgin was a British aristocrat, paternalism came naturally to him and he was comfortable with the role of governor as independent arbiter. He would appoint to government office those who had the support of the legislature after an election. He would advise them in their work, and at the end of the day he would let them make the final decision, keeping in reserve only those royal prerogatives needed to ensure that the government remained accountable to the legislature and members of the legislature were periodically elected.

While the period leading to Confederation was not without abuses, and certainly no model of democracy, it was a unique model of responsible government distinct from that emerging in England. This occurred in part because the low cost of land and extensive land grants to settlers in Canada created a broader electoral franchise than in the motherland. In addition, Britain was constrained by more than a millennium of historical precedent and practices – in short, by convention.

Still, the Constitution Act, 1867, gave Canada “a Constitution similar in Principle to that of the United Kingdom.” Thus, the Confederation exercise extended the Westminster model of responsible parliamentary government under a constitutional monarchy that existed in the U.K. on July 1, 1867, to the new Dominion, and applied to Canada the British precedents as they had developed. It also created a unique disconnect between common law and convention on one side and a written constitution on the other. The constitution specified that there would be an executive branch headed by the Queen (s. 9) and advised by a Privy Council (s. 11). In the Queen’s stead, there would be a Governor General with all of the Crown’s powers, authorities and functions as existed at the time of Confederation to be exercised on the advice of the Cabinet or a Minister, or alone (s. 12). The constitution also set out the tripartite design for the legislative branch, with “one Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons” (s. 17). Federalism was a complicating dimension, but as far as royal prerogative and the permanent tension between the executive and legislative branches, with the Governor General as both actor and fulcrum, the U.K. model was fully imported.

As Canada was a colony in 1867, provisions that were routinely inserted into governing legislation for colonies found their way into Canada’s founding documents. The Constitution Act, 1867, allowed for legislation to be held in reserve for approval (s. 55) or disallowed after assent (s. 56), since the governor general was equally the representative of the head of state and of the British government. The British never asked the governor general to interfere with legislation at the federal level, though provincial lieutenant governors have used these powers at the behest of the federal government – a separate though related issue concerning the undefined use, and thus potential for misuse, of constitutional conventions.

New constitutional conventions could have developed independently in Canada. But for most of Canada’s 142-year history, the governor general has never been asked to make a difficult decision. The cabinet, and more recently prime ministers, would recommend that Parliament be dissolved when it became clearly dysfunctional and that it be prorogued when the business set out in the Speech from the Throne had been completed. Lack of local innovation reinforced the British precedents, such as allowing a PM to continue in office after an election, regardless of the outcome, until defeated in the Commons on a vote of confidence – a practice not necessarily in conformity with Elgin’s pre-Confederation Canadian vision.

The Fathers of Confederation also adopted the British electoral system, traditionally known to deliver majorities at the expense of fairness to minor parties, for the Canadian House of Commons. A clear majority won in an election makes the choice of new prime minister evident to the Crown, politicians and public alike. Confronted by such a majority won by the opposition, the leader of the defeated party has the good sense to resign gracefully in what is now a well publicized speech on election night. Problems arise only when the election outcome is not clear or a first minister won’t gracefully bow out. In those instances, the monarch or governor (general or lieutenant) is turned to with the popular expectation that democratic principles will govern the impartial application of precedent.

The King Byng Thing

Group portrait of the Prime Ministers of the British Empire at Lancaster House,
at the Imperial Conference in London, England, in 1926.
Canada’s Prime Minister King is in front row, third from the left.

Prior to 2008, the one and only time in Canada that a PM has refused to bow out gracefully was in 1926. Known at the time as the “King Byng Thing,” this instance has become a much cited point of constitutional debate because the Governor General chose to use his own discretion and ignore the PM’s recommendation.

Liberal Prime Minister Mackenzie King had lost seats in the 1925 election, down from 118 to 100 (King himself and eight of his ministers were among those who lost their seats), while the Conservatives went up from only 49 to 115, giving them the most seats, though not a majority, in the 245-seat House of Commons. Governor General Lord Byng met with the PM and recommended that he respect the election results and resign. This was in keeping with the Governor General’s undisputed rights to (a) be consulted, (b) encourage and (c) warn.4 Mackenzie King decided to meet the new Parliament anyway, and with the support of the minor parties and independent MPs was able to survive through a number of votes. But a scandal in the customs department was eroding support for the King government and, facing defeat on a motion of censure less than eight months after the election, King asked the Governor General to dissolve Parliament and call another election. Lord Byng refused, holding his ground when the cabinet issued a minute “advising” the Governor General to dissolve Parliament. Prime Minister King even argued that Byng should not make such an important decision on his own but rather get instructions from the British government.

Lord Byng, confident that dissolution was a personal prerogative and bolstered by his British aristocratic sense of paternalism, took it upon himself to approach Opposition Leader Arthur Meighen to see if he was prepared to form a government. While Meighen had the most seats, the practice at the time was for new ministers to resign their seats and stand in a byelection to ensure that constituents were prepared to accept them being on the government’s payroll while representing the local community’s interests (this rule has since been eliminated). Meighen attempted the clever sleight of hand of claiming that the cabinet was only interim, but this undermined his credibility, and he failed by one vote to get the confidence of the Commons. This time the Governor General agreed when Prime Minister Meighen recommended that Parliament be dissolved and an election called.

Mackenzie King ran his campaign not on the principle that the governor should always follow the PM’s instructions, but that the Canadian governor general should not be a British government representative (which was ironic since King had earlier requested that Byng obtain instructions from London). Reinstalled as Prime Minister, King later took this mandate to the Imperial Conference and was able to lay the groundwork for the 1931 Statute of Westminster, which effectively ended British control over the dominions and their governors. Lord Byng was rewarded for his service to the Crown with an elevation within the peerage.

Not surprisingly, scholars are divided on the significance of these events in terms of the precedent they set. Eugene Forsey, who often idealized the role of the Crown as the protector of the constitution and the public interest, argues that this precedent makes it clear that if “a government asks for dissolution whilst a motion of censure is under debate it is clearly the Crown’s duty to refuse.”5 Berriedale Keith, on the other hand, thought Lord Byng’s refusal of the request for dissolution improper,6 and Sir Alan Lacelles, personal secretary to the King, subsequently expressed the opinion that the Crown should never refuse a request for dissolution unless there was clearly a viable alternative government (in 2008, the Liberal-NDP coalition clearly satisfied this stipulation by entering into a written agreement with the Bloc Québécois and forwarding it to the Governor General).

In Britain, where the single-member plurality electoral system still regularly returns majorities, there have been a few indecisive elections where PMs have tried to stay in office. Invariably, after they met the Commons and found they did not have sufficient support (e.g. Lord Salisbury in 1886 and 1892 and Stanley Baldwin in 1924), they resigned, sparing the monarch the awkward position of having to go against the advice of the PM or dismiss a ministry. In Australia, the governor general has refused the advice of a prime minister to dissolve Parliament after a defeat in the lower house on three occasions: Chris Watson in 1904, George Reid in 1905 and Andrew Fisher in 1909, not to mention the more controversial example of 1975 when Gough Whitlam’s government was dismissed after defeat in the Senate and not the lower house.

There are four reasons for the differences between Britain and its former colonies in the use of the head of state’s personal prerogatives. The first, already noted, is that the conceptualization of responsible government in the former colonies is more tied to first principles and less cluttered with historical baggage. Citizens in newfound democratic countries have an expectation of impartial application of constitutional principles, rather than old, distant practices, and so are genuinely surprised when conventions trigger unpredictable outcomes.

The second reason is that the Queen has a different relationship with the British than a governor general does with a Commonwealth country. British politicians seem reluctant to put their Queen in the awkward position of having to use personal prerogatives and are always respectful of her office. In former colonies there is no hesitation in politicizing the governor’s office, and no psychological bond between this office and the people to dissuade them.

Third, in Britain the Queen takes her role of encouraging, advising and warning seriously and, given her popularity with the people relative to most politicians, her advice is taken seriously. Yet this function for governors has fallen by the wayside in commonwealth countries. Loyalty to the monarchy is, not surprisingly, lower in former colonies than in the original Kingdom, though ironically, the decision to use local figures rather than members of the British aristocracy as governors seems to have resulted in the office being less involved in local governance. Homegrown governors (since 1952 the governor general has been a Canadian), who are sometimes public celebrities with no experience in government, are not consulted regularly as they have little to offer by way of experience and knowledge.

Finally, and most importantly, the electoral system in a country like Canada operates differently than in Britain. In Canada, regional divisions interact with single-member plurality voting to advantage regional political parties like Reform and the Bloc Québécois. Minority Parliaments with multiple political parties represented in the Commons have become the norm, and are likely to continue into the future.

Making conventions explicit

Political institutions reflect shared values, so there is an implicit element of consensus over the principles behind the personal prerogatives After all, if their continued existence is rooted in the pre-Confederation model espoused by Elgin, Lafontaine, Baldwin and Howe and the idealized model of Forsey, then it will be expected that they will be exercised in a certain way. When they are not, to paraphrase Lacelles, support for the political system will be compromised. A proper understanding of conventions is essential to prevent the principles of responsible parliamentary government from being undermined. Such an understanding is especially important as all the evidence suggests that Canadian governors general will be asked to arbitrate more frequently in the future, not less.

K.C. Wheare’s classic definition of a convention is “a binding rule, a rule of behaviour accepted as obligatory by those concerned in the working of the constitution.” According to Ivor Jennings, the existence of such a convention can be ascertained by asking three questions: Are there precedents? Is there a reason for these precedents? Do the constitutional actors believe that they are bound by these precedents which combined constitute a rule? The Supreme Court of Canada adopted this approach in the patriation decision.7

Identifying precedents for reserve powers is particularly challenging, and the historical record has a natural ambiguity. However, the system could benefit greatly by as simple a change as having the governor general issue a written decision when asked to exercise these reserve powers. The courts and speakers of the House of Commons routinely issue written decisions. Had Michaëlle Jean taken this route in late 2008, while the outcome would likely have been the same, the drama surrounding the event would certainly have been lessened. A written decision would identify the specific precedent being set, thereby satisfying Jennings’s first test of a convention. It would also allow political actors and other interested parties (like the citizens of Canada!) to better understand the rules of the game.

With respect to Jennings’s second test, a written decision would oblige the governor to explain the reasons behind the precedent being followed or set. Many of the practices and thus precedents for the exercise of prerogative were established at a time of political conflict between branches of government. While many were recast in the 20th century as democratic mechanisms for accountability, the enunciation of basic principles would ensure that the social contract that Canadians believe they are party to is in fact driven by their shared set of values, even as these values continue to evolve.

In the most recent case, there could be any number of reasons for the Governor General’s prorogation decision. The Governor General might have been trying to follow an “apolitical decision rule” like the ones used by speakers of the Commons so as to leave the matter before Parliament with the greatest number of options still in play; she might have chosen to follow Stephen Harper’s advice because he had received a recent electoral mandate greater than that of any other party leader; she might have felt bound to follow the advice of the current Prime Minister in the exercise of any and all personal prerogatives; or she might have felt that the principle of prorogation was to force Parliament to take a pause and reflect. Each of these would have led to the same final decision and each has a democratic principle behind it, but the principles are markedly different from case to case and point to different conventions.

The issuance of a written decision forces the governor to examine whether the reasons are appropriate for modern Canada. And if Canadians, and their elected representatives, feel that the reasons offered are no longer compatible with their understanding of how democracy is supposed to work, then Parliament – even a divided Parliament – has the capacity to respond. This is Jennings’s third test: that political actors agree to be bound by a rule. If they do not feel so bound, then Parliament can legislate to alter the convention – but to do so it must know the reasons for the decision.

Knowledge of the underlying democratic principles that are driving the constitutional convention could bolster acceptance of that convention. Alternatively, it could provide an opportunity for Parliament and the Canadian people to reexamine the convention on the basis of first principles instead of blindly conforming to historical practices. That is, after all, what made the Canadian experiment with responsible government in 1848 so admirable.

Notes

1 CTV Newsnet, December 2, 2008.

2 Letter of Lord Elgin to Earl Grey dated July 13, 1847, published in W.P.M. Kennedy, ed., Statutes, Treaties and Documents of the Canadian Constitution 1713–1929, 2nd ed. (Oxford, UK: Oxford University Press, 1930), p. 500.

3 Monkland, where Lord Elgin resided, was too far for the marchers and they never made it. However, they did burn down the Parliament buildings in Montreal.

4 This is the original formulation found in Walter Bagehot, The English Constitution (New York: Cambridge University Press, 2001). The more modern characterization is to “encourage, advise and warn,” which is the line delivered by actress Helen Mirren in the movie The Queen (2006).

5 Eugene Alfred Forsey, The Royal Power of Dissolution in the British Commonwealth (Toronto: Oxford University Press, 1943), p. 269.

6 Arthur Berriedale Keith, Letters on Imperial Relations, Indian Reform, Constitutional Law and International Law 1916–1935 (London: Oxford University Press, 1935), pp. 56–58.

7 Kenneth Clinton Wheare, Modern Constitutions (Oxford, UK: Oxford University Press, 1951), p. 179; Ivor Jennings, The Law and the Constitution, 5th ed. (London: University of London Press, 1960), c. 3; Reference re: Amendment of the Constitution of Canada 1 S.C.R. 753, also known as the patriation reference, at p. 888 (see also pp. 852, 857 and 883; and Re: Objection by Quebec to a Resolution to amend the Constitution 2 S.C.R. 793, pp. 803–18).