No discretion: on prorogation and the governor general.

• Author: MacDonald, Nicholas A.
• Position: Essay

This paper examines the often-ignored prorogation of 1873, the evolution of the governor general's reserve power over time, and the fundamental differences between dissolution and prorogation. It concludes that the Macdonald-Dufferin prorogation of 1873 serves as the relevant case for the Harper-Jean prorogation of 2008, rather than the off-cited King-Byng Affair of 1926, and that the governor general's reserve power does not apply to prorogation.

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The prorogation of parliament in 2008 left Canadians--politicians, academics, and the electorate alike--scrambling to figure out the constitutional role of the governor general. Across the country many questions were posed, but they were answered without a thorough historical examination of the practice of prorogation or an analysis of the development of responsible government in the Westminster system. The answers tended to analyze the quality of the prime minister's advice--an issue entirely separate from the constitutional role of the governor general in Canada.

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 Michaelle Jean should have rejected Prime Minister Stephen Harper's advice to prorogue in 2008. (1) 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." (2) 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. (3) 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. (4) 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. (5) Guy Tremblay agrees with Professor Brun and believes that "the governor general must accede to a request of prorogation or dissolution.," (6) 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. (7) 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.

Scholars who support a broader interpretation of the governor general's powers have overlooked two crucial points. First, that prorogation differs significantly from dissolution both in its historical origins and procedural consequences and is therefore not comparable to dissolution in relation to the ability of the governor general to refuse a prime minister's advice. Second, that the constitutional conventions that govern our Westminster system of responsible government have, via the United Kingdom, developed over the course of nearly 800 years by wresting power from the monarch and vesting it in cabinet and parliament.

Prorogation vs. Dissolution

Originally developed during the Tudor period as an economical alternative to dissolution, various monarchs and prime ministers have used prorogationas a political tactic. (8) Today, prorogation is a tool that the prime minister may employ in order to call a new session of Parliament. Normally, a prime minister requests a prorogation after achieving all of the legislative goals set out in the Speech from the Throne. The prorogation of a parliamentary session effectively clears the Order Paper of parliamentary business: all government legislation and most proceedings cease. (9) It "resets" most aspects of parliament, whereas a dissolution ends the parliament altogether. Prorogation denotes a suspension of parliamentary procedures for a determined period of time by convention: the prime minister and governor general agree upon the duration of the intersession, which usually lasts no more than ten weeks. Following the intersession, the parliament reconvenes for a new session, which the government opens with a Speech from the Throne; this outlines the government's legislative priorities, and the subsequent debate on it constitutes the first vote of confidence of the new parliamentary session. No general election occurs, and the composition of the House of Commons and the government remain intact. Most importantly, the proclamation of prorogation denotes when parliament will resume.

In contrast, dissolution formally ends not only a parliamentary session but the parliament itself and precipitates a general election. A dissolution of parliament normally occurs in one of three ways: (a) the prime minister asks the governor general to dissolve parliament because his or her five-year constitutional term in office has expired; (10) (b) the prime minister feels that the government has completed the mandate on which it was elected (typically after about four years); or (c) the prime minister informs the governor general that he or she has lost the confidence of the House of Commons. Members of Parliament cease to hold office; however, ministers and the Speaker of the House of Commons continue to hold office until they are replaced following the election. The prime minister cannot request prorogation after losing the formal confidence of the House of Commons; at that point, he could only resign or request dissolution.

Any analysis of the prorogation of parliament of December 4, 2008 must differentiate between the formal loss of confidence and an imminent loss of confidence. A formal loss of confidence occurs when a majority of the Members of Parliament of the House of Commons vote against the government's Speech from the Throne, budget, estimates, or other piece of key legislation that the government considers a matter of confidence, or when they carry a motion of non-confidence. Public statements or written declarations signed outside the House of Commons would constitute an imminent or perceived loss of confidence in the government. The principle of parliamentary sovereignty means that only the will of the House as an institution prevails. This does not include the opinions of a group of Members of Parliament speaking outside of the House of Commons. Confidence can only be withdrawn on a formal vote, not in an extra-parliamentary fashion or forum. An imminent or perceived loss of confidence differs substantively from a formal loss of confidence; therefore, the idea that the governor general should ever treat an imminent loss of confidence as a formal loss must be rejected. Finally, an imminent loss of confidence does not free the monarch or his or her representative from the principle that he or she must regard the government's advice as binding.

The Macdonald-Dufferin Prorogation of 1873

Prime Minister Sir John A. Macdonald requested that Governor General Lord Dufferin prorogue parliament on August 13, 1873. He did so in order to prevent a committee examining allegations of conflict of interest and corruption in relation to the proposed Pacific Railway from tabling its report, because it would have implicated him in wrongdoing. (11) Despite public outcry, questions on the role of the governor general, and a signed letter of protest from dozens of Members of Parliament, the governor general granted the prime minister's request and issued the proclamation of prorogation. (12) The prorogation of August 13, 1873 brings up the same basic question as that of December 4, 2008: does an imminent or anticipated loss of confidence undermine the constitutionality of a prime minister's advice to prorogue and thus allow the governor general to invoke the Crown's reserve power?

According to Edward Blake, a prominent Liberal Member of Parliament and former Liberal leader, ninety-three Members of Parliament--mostly Liberals, but even some Conservative backbenchers--signed a formal letter of protest and presented it to His Excellency the Governor General. After Lord Dufferin formally issued the proclamation of prorogation, they held an "Indignation Meeting" to express their disapproval and

protest the constitutionality of his decision. In a manner again so reminiscent of the Harper-Jean prorogation of 2008, the Liberals condemned Lord Dufferin's decision for having allowed the government to evade the will of parliament, even though after the intersession, the same parliament applied pressure to Macdonald and forced both his resignation and that of his government. In a lengthy and detailed letter to the Colonial Secretary, dated August 15, 1873, Lord Dufferin elaborated on his interpretation of the role of the governor general within the framework of responsible government. He considered himself obliged to follow all of the advice that his ministers tendered to him while they still held the formal confidence of the House of Commons. Lord Dufferin also argued that "the suggestion that my refusal to take their advice on prorogation would not have been tantamount to a dismissal of them, is too untenable to need refutation." (13) In other words, Dufferin believed that his refusal to follow his ministers' advice when they had not lost the formal confidence of the House would have breached the principles of responsible government.

Perhaps because the world today seems so far removed from the centuries of bitter and bloody struggles that Canada's British ancestors...