Discretion and the reserve powers of the crown.

• Author: Russell, Peter H.
• Position: Report

The decision of Governor General Michaelle Jean to grant prorogation when requested by Prime Minister Harper in 2008 and 2009 led to considerable debate among students of Parliament as to the discretionary power of a governor general to reject advice of a prime minister. This article agrees with those who believe that Mme Jean did not err in acting on those specific requests but rejects the idea that it would violate constitutional convention for a governor general to ever refuse such a request from a prime minister. It further argues that in the Westminster system the monarch or her representative, in exercising any of the Crown's legal powers in relation to Parliament, retains the right to reject a prime minister's advice if following that advice would be highly detrimental to parliamentary democracy. That rationale applies equally to prorogation and to dissolution.

**********

A recent article by Nicholas MacDonald and James Bowden (1) quite rightly stressed that in the democratic age the reserve powers of the Crown should be rarely used. They say that "most scholars" agree that it is only under the "most exceptional circumstances" that the governor general may reject the prime minister's advice. I entirely agree with that statement, and would go further and say that virtually all scholars agree on that general proposition. That indeed is the constitutional convention that enabled a parliamentary system dominated by the Crown to evolve into a parliamentary democracy. But that convention clearly implies a corollary convention about the exceptional circumstances when the Crown might exercise discretion and say "no" to a prime minister. If there is a convention that governors general normally accept the advice of prime ministers in exercising their legal powers in relation to parliament, there must be a convention or principle that enables us to identify those "most exceptional circumstance" when the governor general would be constitutionally correct to reject the prime minister's advice.

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. In each case we rely on conventions, a body of constitutional or legal ethics", as A.V. Dicey explained, for guidance on the proper use of legal powers. (2)

Prorogation

Now let me apply the general theory set out above to prorogation. First, we should be clear that the power to prorogue parliament legally rests with the Crown. King Henry VIII invented it as a device for ending a session of parliament without dissolving parliament. In the democratic age when prime ministers rather than monarchs take the initiative in deciding when to prorogue, the practice is to prorogue when the main business of the session is done so that, after a break, a new session can be opened with a Speech from the Throne setting out a new agenda. Throughout this democratic evolution the legal power to prorogue has remained with the Crown. In Canada, since Confederation, Royal Letters Patent setting out the Commission of Canada's governor general, most recently King George VI's 1947 Letters Patent, have made it clear that the power to prorogue the Parliament of Canada is to be exercised by the governor general. (3) MacDonald and Bowden seem to think that some significance should attach to the fact that the governor general's power to prorogue, unlike the Crown's powers to summon and dissolve Parliament, is not specifically mentioned in the Constitution Act, 1867. But they are wrong to attach any significance to that difference. The governor general's power to prorogue is no less a legal power than the Crown's powers specifically referred to in the Constitution. With whom else could it legally rest?

As with all the legal powers of the Crown, we look to constitutional conventions for guidance on their proper use. What is the proper test for determining the requirements of constitutional conventions? MacDonald and Bowden do not address this question directly. We can only infer that for them the test is primarily precedents. But constitutional conventions have both normative and dynamic dimensions that go beyond the mere recitation of precedents. Sir Ivor Jennings is the best guide. In his The Law and the Constitution, Jennings wrote as follows about precedents:

We have to ask ourselves three questions: first, what are the precedents? Secondly, did the actors in the precedents believe that they were bound by a rule? And thirdly, is there a good reason for the rule? A single precedent with a good reason may be enough to establish a rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it. (4) It was the Jennings' test that that the Supreme Court of Canada used in 1981 when it was called upon to determine whether there was a constitutional convention requirement that requests by the Parliament of Canada to have the United Kingdom Parliament amend the Constitution of Canada in areas affecting the provinces' powers and rights required provincial consent. (5) The importance of " a good reason" in the Jennings test captures well the normative aspect of conventions: they must be based on securing something that is greatly valued in our political system. And his requirement that "the persons concerned" feel bound by the rule picks up the dynamic quality of conventions. The persons involved in operating this part of our constitutional system must feel morally bound by the rule.

Let me now apply the Jennings' test to the question of what are the constitutional conventions governing the governor general's use of the power to prorogue Parliament. First, it is clear, that according to convention the governor general should not prorogue on her or his own. The governor general should prorogue only on the advice of the prime minister. But then comes the difficult question: should the governor general always comply with prime ministerial requests to prorogue? Or could there be any circumstances in which the governor general would be correct in refusing such advice? The one circumstance in which even MacDonald and Bowden would agree that the governor general should not feel bound by a prime minister's advice is when the prime minister has lost the formal confidence of the House of Commons. But aside from that they believe that "on the available evidence ... the governor general's reserve power ought not to apply to prorogation."

First, what are the precedents? There have been three...