Canadian Parliament
Some readers have invited me to comment on the constitutional crisis in Canada. In October, a minority Conservative government was returned to office. Today it was due to face a vote of no confidence. Opposition parties had agreed to support the motion, with the almost certain result that the vote would be carried. However, no vote has taken place for the simple reason that Parliament is not sitting. Last week, prime minister Stephen Harper persuaded the governor-general, Michaelle Jean, to prorogue Parliament until 26 January. This, not surprisingly, has enraged opposition parties who are crying foul.
The position is an unprecedented one. The governor-general stands in place of the Queen as Head of State but, since the Imperial Conference of 1926, it has been recognised that a governor-general is not the monarch’s representative (in terms of acting on instructions from the monarch) but serves as the equivalent of the monarch, and acts on the advice of ministers. However, as Vernon Bogdanor notes in his book, The Monarchy and the Constitution, ‘The Imperial Conference did not… lay down any guidance as to the precise circumstances in which the sovereign or the governor-general was expected to act on advice, and the cirumstances in which they enjoyed a discretion to use their reserve powers.’
On occasion, a governor-general has used the reserve powers, as with Sir John Kerr’s dismissal of the Whitlam government in Australia in 1975, but generally such powers remain – as the name indicates – in reserve. There is a constraint operating in respect of a governor-general that does not apply in respect of the monarch: a governor-general may be dismissed (on the recommendation of the government) whereas the Queen may not. Had Gough Whitlam advised the Queen to dismiss Kerr before he had a chance to exercise his reserve powers, Kerr would have been removed. In the event, he moved first and dismissed Whitlam: Whitlam then had no standing in relation to the governor-general since he was no longer prime minister.
In the Canadian case, the governor-general was essentially between a rock and a hard place. There is (as far as I am aware) no precedent and no guidelines for agreeing to a prorogation in such circumstances. Had the request been for a dissolution, then there are some guidelines adumbrated in the UK by Sir Alan Lascelles (not, though, that they would have bound the governor-general). The governor-general thus had to decide whether to act on the advice of her prime minister, as is the convention, or decline to do so because of the exceptional circumstances. Though it appeared on the face of it that the request was to avoid a vote of no confidence, the formal position is that the prime minister was operating in a situation in which he still retained the confidence of the House (or rather had not lost it). The governor-general may therefore have believed that the balance of argument favoured agreeing to the request, not least because it did not preclude the House of Commons, when it returns, voting on a motion of no confidence. There is also the presumption that the Queen’s government must be carried on. She may also have borne in mind the extent to which she differs from the Queen in terms of vulnerability. Had she declined the request, she would equally have caused a constitutional crisis.
What the case does highlight is the need to draw up guidelines to cover such cases. This applies in a Commonwealth and not just a Canadian context. What if James Callaghan in 1977, facing the prospect of losing a vote of confidence, had not quickly negotiated a pact with the Liberal parliamentary party but instead advised the Queen to prorogue Parliament to give him time to negotiate with other parties? The more there is clear guidance for cases where there is no precedent or works of authority to guide the exercise of prerogative powers, the better in order to keep the monarch or governor-general above the partisan battle.
I think the Governor-General acted correctly. As you say, Lord Norton, the government still at that point retained the official confidence of the Commons, and it had not been formally withdrawn. Closing Parliament down gives time for cooling off of passions and to try to construct a deal which helps Canada, and is not just a spiteful attack on a particular party.
Wow, great post Lord Norton! Thank you very much for writing it.
I am very interested in the idea of constitutional guidelines for the whole Commonwealth, and you’re right that the governor-general should not be drawn into partisan politics. Harper’s willingness to use her as a tool to buy time leaves a lot to be desired.
Actually Lord Norton, you’ve given me a fascinating idea for a thesis (I am doing an MSc) – the theory and practise of reserve powers in the Commonwealth Realms.
Very interesting analysis Lord Norton! Of course, there is always a much easier way to resolve this issue. It is ending dividing the prorogation and letting parliament sit continuously like is common in a lot of parliaments in mainland Europe.
Thanks for the comments.
Adrian Kidney: I think reserve powers would make an excellent topic for a thesis. If you need suggestions of who may be worth contacting, in addition to Vernon Bogdanor, do let me know.
Liam: I agree that the governor-general should not be drawn into partisan politics. Once she was asked to prorogue Parliament in such circumstances, it was impossible to make a decision that would not be contentious and seen as favouring a particular side. The onus is on a Prime Minister not to put the sovereign, or the governor-general, in such a situation. There is a value in having guidelines to cover such situations where no precedent or guidelines exist. I can think of examples where constitutional convention has not kept pace with changes in political practice and where one needs to give some thought to what the sovereign or governor-general should be advised to do in a particular situation no longer covered by convention. I may do a post on a particular example in which I have taken a particular interest.
David: You are quite right and there is indeed a question as to the continued relevance of prorogation. The only point I would make – which may seem unduly cynical – is that if, prorogation did not exist, then politicians would probably find some other means of achieving the same result.
Thank you Lord Norton for that reply. I do not believe it is very cynical to point out that politicians would find another way of achieving the same ends. That is why they are politicians. Procedures are, more than I think is generally thought, as important as the substantive debates, because it are those procedures that set the playing fields upon which the substantive debate is to be held. Especially here in The Netherlands, where I am a citizen and a student of comparative constitutional law, discussing procedure is often frowned upon.
Apart from this situation in Canada, there are more situations where prorogation has an important effect. For example, a lot of Private Members’ Bills are dropped at prorogation, while they might have become law when they could be acted upon during the whole session. The same is true for some government legislation, although the carry-over motions have softened that effect. Of course the gracious speech could still be held, despite dispensing with prorogation. There are examples of that in the world, for instance The Netherlands were there is a Queen’s Speech every 3rd Tuesday of September.
The reserve powers have been used every few years in Australia, which is a federation with a powerful upper house, the Senate, and bicameral legislatures in all states but one. Most states have moved to four year partially fixed terms on the argument that this will improve the quality of government. Of course it hasn’t. The reserve powers concerning the formation of governments when this is not obvious, and early elections remain.
I would argue against Lord Norton’s proposal for the codification of the reserve powers. This was attempted in the campaign to make Australia a republic, but in our context, then Prime Minister Keating and the Attorney-General came to the conclusion it was impossible. He meant impossible politically, in that the people would have had to agree.
The proper exercise of the reserve powers requires speedy judgement by The Queen or the viceroy. Writing them down – codification -risks making them justiciable, and thus subject to lengthy review by the courts.
The bill to make Australia a republic tried to do the impossible –to preserve the reserve powers, and to allow the conventions applying to them to develop but simultaneously keep the judges out by making them non- justiciable.
Given we have had some considerable and spectacular experience with the exercise of the reserve powers, you may be interested in an antipodean view of the Canadian political, and certainly not constitutional crisis at
http://www.norepublic.com.au/index.php?option=com_content&task=view&id=1632&Itemid=4
We have argued that the reserve power to dismiss a prime minister persistently behaving illegally or unconstitutionally tends to be a wasting asset.
This is because the politicians then blame the Crown for the crisis they had created. In Australia the most disgraceful example of this was when the beneficiaries of 1975, the Liberal Malcolm Fraser and National Doug Anthony campaigned for a republic in 1999, alleging that it was the Crown which caused the problem. Fraser even appeared in a TV campaign with the man he brought down and had dismissed, Gough Whitlam.
Hence the proposal in an ACM publication that recall elections be introduced: http://www.norepublic.com.au/images/stories/HerMajestyAt80.pdf
Had recall elections as in California and British Columbia been available in 1975, the Opposition would have concentrated on gaining signatures on petitions to trigger the process, rather than withholding supply.
Perhaps while you are looking at Canada and what is taking place there at present, you might also look at The Australia Bill and the debates when it was being put forward through this Parliament and the effect it had on our Queen (Crown).
David Palmer: Thanks for your comments. However, generating guidance, or letting a clear convention develop, would not have the consequences you mention. Conventions and codification are separate concepts. The whole point of conventions is that they are non-justiciable. A convention is a rule that is followed by those at whom it is directed without being enforceable in the courts or by the presiding officer in a legislative chamber. Conventions are developed in order to relate the formal constitutional position to the political reality. They work because of the willingness of those involved to make them work; without that willingness, a convention ceases to be a convention.
Though courts in Commonwealth countries have sometimes drawn on conventions as an aid in interpreting law they have not applied them as law. The point was made by the Canadian Supreme Court in Reference re Amendment of the Constitution of Canada (Nos. 1, 2 and 3) (1982) when it declared: ‘The proposition was advanced… that a convention may crystallise into law. In our view this is not so. No instance of an explicit recognition of a convention as having matured into a rule of law was produced. The very nature of a convention as political in inception and as depending on a consistent course of political recognition… is inconsistent with its legal enforcement.’
Codification is an entirely different matter, involving the formalisation of constitutional provisions that would be justiciable. I would not advocate that, since it would remove the option – in effect, a nuclear option – available to the Crown to utilise formal, or reserve, powers in the face of a convention, where a greater principle justifies such action.
David: Your point about prorogation is well made. As you say, prorogation has important consequences, not least as a result of the sessional cut-off. Even with the carry-over of Bills (I was very much involved in the campaign to provide for carry-over), the start of a session still has relevance. (Very few Bills are actually carried over, rather reducing the value of the provision.) I very much agree with you in respect of the Queen’s Speech. Even if carry-over was the rule and not the exception, there would still be value in having the Queen’s Speech to announce which Bills will be introduced in the new session.