All or Nothing

I want to come back, briefly, to the crazy idea I put forward last weekend, about the Governor General starting to appoint Senators without waiting for Prime Ministerial advice if it becomes clear that such advice is not and will not be forthcoming. Actually, maybe it wasn’t such a crazy idea because, as Aniz Alani pointed out to me, it was already raised, although not advocated, by experts who testified at a Senate committee hearing regarding a bill that had been proposed ― during Stephen Harper’s previous fit of non-appointment pique ― to force the Prime Minister to appoint a Senator within six months of a vacancy arising.

My post provoked an unusual (for me) number of responses on Twitter (and elsewhere). Most of them were to the effect that my idea was not a good one, because if the Governor General thinks that the Prime Minister is acting unconstitutionally, he should simply dismiss him and appoint a different one, who will give him constitutional advice. (I am too lazy to track them down and link to them now, so you’ll have to trust me on this being the consensus, or at least the majority, view.)

My initial reaction, I confess, was surprise. I had raised this possibility in my post, but thought dismissing a Prime Minister (and his cabinet) would be a “dramatic,” an “extreme” solution to a problem which, although serious, is nothing like, say, an attempt by a ministry to cling to office despite losing Parliament’s confidence. Besides, I wonder about the practicability of this solution. If the dismissed ministry commanded a Parliamentary majority, there would likely be no majority ready to support whatever alternative the Governor General could ask to form a cabinet. The only way out would be a dissolution, following which a dismissed ministry could be re-elected (quite possibly on the strength of a populist appeal against the interference of an unelected Governor General in defence of an unelected Senate!), and we would be back to square one.

On further reflection, however, I also see the logic behind my (friendly) critics’ position. The idea is, I think, that it is so important that the Governor General always act on ministerial advice that it would be wrong for him or her to start acting autonomously even if that advice (or lack thereof) is arguably unconstitutional. The solution to the problem of unconstitutional advice is not to ignore it, but to get a different adviser. It is a powerful argument. The conventions of responsible government, which require the Governor General to follow ministerial advice, are arguably the most important rules in our constitution. To weaken them might mean going back 300 years in our constitutional development.

And as a descriptive matter, this “constitutional position” is almost certainly the generally accepted one in Canada. It explains, for instance, Governor General Michaëlle Jean’s actions during the 2008-09 prorogation crisis, when she accepted the Prime Minister’s advice to prorogue Parliament, even though it was transparently intended to stave off (successfully as it turned out) a Parliamentary vote that would have confirmed that the government had lost the confidence of the House of Commons and triggered its resignation.

Still, there is a paradox here, which makes me reluctant to accept that this constitutional position, albeit dominant, is also a normatively desirable one. At the risk of repeating myself, dismissing a ministry which enjoys the confidence of the House of Commons is a radical, spectacular step for a Governor General to take, and no viceroy in his or her right mind will embark on it without hesitation. It is also, obviously a dramatic departure from the principles of responsible government ― a bigger one, it seems to me, than ignoring that ministry’s advice on one specific point. That’s why I’m finding it strange that, in the face of unconstitutional advice a Governor General is entitled to go for the “nuclear option” of dismissal but not for a carefully circumscribed show of defiance. But this contradiction is, admittedly, more apparent than real. In reality, a Governor General will not dismiss a Ministry, except I suppose in the absolutely clearest of cases. For any constitutional transgression that does not obviously warrant dismissal, the lack of any alternative is simply the equivalent of a get-out-of-jail free card for a rogue Prime Minister, which is exactly what happened during the prorogation crisis.

So although I understand why this is the case, I am not at all sure that a rule that vice-regal interventions against a Prime Minister or cabinet who act unconstitutionally must be all-or-nothing propositions is a good thing. It seems, however, to be the generally accepted understanding of the conventions of responsible government in Canada, and I wanted to highlight the fact that my critics were right about that.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

4 thoughts on “All or Nothing”

  1. The Governor General is granted the substantial, if almost never used Reserve Powers, precisely because there may be moments, hopefully of exceeding infrequency, where some sort of constitutional impasse occurs. The 1975 Australian Constitutional Crisis is probably the clearest example of a Governor General invoking those powers and defeating a government that enjoyed the confidence of the lower house. Now I realize that in part this is because of Australia’s “Washminster” variant, but the fact remains that the reason the Reserve Powers have been left intact in most of the descendants of Westminster is precisely because the Viceroy may have to preserve the system, even from itself.

    Kerr’s action is still pretty hotly debated, but the fact is that there is a precedent of sorts for a Governor General dismissing a government that retained confidence, and indeed had an absolute majority in the lower house.

    But I suspect that most Governor Generals would avoid the nuclear option of dismissing a government outright at all costs. It is to be kept in the back pocket only for the most extreme of circumstances; say where the Senate had fallen to such low levels that the legitimacy of Parliament itself were at stake. For example, where there were only a couple of dozen Senators left, or the Senate ceased in any real way to represent the regions of Canada. In that case, the Constitutional order itself would be put in jeopardy.

    A more likely scenario in my view might be gleamed from the way Michaelle Jean handled the Tories’ 2008 prorogation request. Obviously she was in no position to refuse the Prime Minister’s advice, but, if the stories are true, she did attach conditions; most importantly that Parliament must recalled at the earliest opportunity.

    With that in mind, I can imagine a future Governor General, faced with a dangerously depleted Senate (which is some years from today), and mindful of his or her’s constitutional responsibility to fill Senate vacancies, making it very clear to a future Prime Minister that if they do not submit new Senators, that their government will be dismissed, and a caretaker government, even if its only purpose is to fill the Senate vacancies, will be appointed.

    I wonder if even an NDP government, despite its clear opposition to the Red Chamber’s existence at all, would want to be dismissed merely because of some populist proclamation.

    1. It is an important point about the GG’s power of persuasion… or threat. I wonder though whether Michaëlle Jean was really “in no position” to refuse the prorogation in 2008. But I might again be exaggerating the GG’s scope for independent action.

      1. The problem to some extent is that nobody is really sure what the scope of the Queen or Her Viceroys’ powers are. That in many respects is the entire point of the unwritten Reserve Powers. Since one cannot hope to imagine all the possible ways that the constitutional order could be put in jeopardy, it is useful to have vaguely defined upper limits.

        Probably a better example in respects to just how far a Governor General’s discretionary powers can be pushed is the King-Byng Affair. While the principle has stood since early in the 19th century that dissolution only occurs on the advice of the Government, Byng felt quite capable of placing a clear restriction on Mackenzie King, allowing him to form government despite his shaky hold on Parliament after the 1925 election, but attaching the condition that he would not permit King to request another dissolution before the Opposition had been given a chance to form a government.

        The reason I bring the King-Byng Affair up is because it demonstrates that the Governor General is not simply a bank of switches that the Prime Minister pulls whenever he feels like. Yes, the Governor General is bound by the principles of Responsible Government to act in almost all situations on the advice of the Government, but the Governor General’s fundamental responsibility is not to the Government at all, but rather to the principles of good government and responsible government. Michaelle Jean, I’m sure, gave as much thought to the King-Byng Affair as she did to 1873 prorogation that temporarily saved Macdonald from censure and defeat.

        So, taking this fact into account, that there are recognized situations, rare as they may be, in which a Governor General has far greater latitude of action, I think it is reasonable to say that if, in the long run, the Senate were allowed to wither to a point where it ceased to be able to fulfill its constitutional function, the Governor General most certainly would have the power to, if not outright appoint Senators himself, then to inform the Prime Minister that nominations must be forthcoming, or his government will be dismissed and a new one appointed, on condition that the new government must provide a list to fill the vacancies.

        Even if we go with the straight line; which is the Governor General, following a literal reading of the BNA Act, appointing new Senators solely on his own discretion, I tend to believe that acting against the advice (or, in this case, lack of advice) of the Government would necessitate that Government resigning.

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