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.