PROROGUING PARLIAMENT: A MATTER OF CONVENTION Bradley W.

Miller* (2009) 20 Public Law Review 100

Constitutional conventions have not been of much concern in Canada since the conventions surrounding the patriation of the Constitution were debated in 1981-82.1 One would have to reach back much further in Canadian constitutional history to find an episode in which the conventions surrounding the office of the governor general aroused any concern. One factor contributing to the current low profile of the conventions concerning the powers of the governor general is that from 1979 until very recently Canadians have had successive majority governments.2 Changes of government have been orderly and straightforward, with dissolutions sought when advantageous to the government and granted as a matter of course. Throughout this period, the office of governor general played a minimal and largely ceremonial role, presiding over the necessary ceremonies, reading the speech from the throne, granting royal assent, and acting as a goodwill ambassador domestically and abroad. After three successive

minority governments, however, and a recent attempt by opposition parties to replace the Conservative government with a coalition, Canadians are required once again to think about the convention of responsible government and the role of the governor general in supervising the transfer of power from one government to the next.

The events of December 2008

An election held on October 14, 2008 returned the Conservative government with a slightly enhanced minority. Stphane Dion, the Leader of the Official Opposition, had resigned, following the lowest recorded vote in Liberal Party history. Only the

performance of the Qubec regional party, the Bloc Qubcois, which won a majority of
* Assistant Professor, Faculty of Law, University of Western Ontario. I would like to thank Grant Huscroft for his comments. 1 At that time, the federal governments plan to seek patriation unilaterally (that is, over the objections of the provinces) required parliaments in Canada and the UK (as well as the Supreme Court of Canada, culminating in Re Resolution to Amend the Constitution (Patriation Reference) [1981] 1 S.C.R. 753) to identify the conventions governing the amendment of constitutions. 2 There have, in this period, been minority provincial governments, but these have been rare.

Electronic copy available at: http://ssrn.com/abstract=1457130

Qubec seats, prevented a Conservative majority government. Confidence votes on the throne speech were passed in the last week of November. Yet a week later the opposition parties were calling for the resignation of the government, with Dion to preside over a coalition government. What transpired in the interim? Two narratives have been offered. The first (and the official line of the opposition parties) is that the opposition lost confidence in the government when it presented its economic and fiscal update (a prelude to its first budget). On this account, the fiscal update revealed that the government did not have an adequate response to the Canadian economic situation, and it moved the opposition parties to resolve to defeat the government. On the second narrative, the opposition parties only discovered their loss of confidence when the government indicated that it would eliminate federal funding for political parties. For the opposition parties, who unlike the Conservatives relied on this funding for the vast majority of their operating budgets, the financial consequences would have been catastrophic. Whatever the motivation, with an opposition day scheduled in the House of Commons the opposition had a chance to introduce a no-confidence motion, which it expected would pass, thus defeating the minority government. With an election having been held just weeks previously (and with no reason to believe that the electoral result would be any different from the last time) the Liberal Party and the New Democratic Party signed a written accord to govern as a coalition, with the formal support of the Bloc Qubcois. The Liberals and NDP each wrote to the Governor General, Michal Jean, advising her of their loss of confidence in the government, of their intention to defeat the government in a confidence vote, and requesting that if Prime Minister Stephen Harper sought to dissolve Parliament and seek a general election, that she instead call on the opposition parties to form a new government.3 The Prime Minister countered by rescheduling the opposition day, delaying it for a week, and let it be known that he would seek prorogation (an adjournment) of Parliament. In response, Dion wrote to the Governor General attaching a petition signed by a majority of the members of Parliament in the House of Commons, stating that it was their intention to vote in favour of a non-confidence motion. Dion requested that the

Letter from Stphane Dion to Michal Jean (1 December 2008) http://www.liberal.ca/pdf/docs/081201_GG_Dion_en.pdf viewed 19 May 2009.

Electronic copy available at: http://ssrn.com/abstract=1457130

Governor General respond to any request for prorogation by advising the Prime Minister that he cannot call for the prorogation of Parliament until he has demonstrated to you that he still commands the confidence of the House of Commons.4 That is, Dion asked the governor general to send the Prime Minister back to face Parliament. That did not happen. Instead, Harper met with the governor general on December 4 and, following Harpers advice, the governor general agreed to prorogue Parliament until January 26, 2009. There are several questions raised by this course of events (that is, the Prime Ministers request to prorogue Parliament and the Governor Generals decision to grant the request). Does a governor general have the constitutional authority to deny such a

request? Assuming she has the authority to refuse, should the Governor General have exercised her discretion to refuse in this instance?

The governor general and conventions

The conventions governing the use of the governor generals powers are well known (if not always a matter of unanimous opinion).5 The general rule is that a governor general is to act on the advice of a prime minister (or cabinet) who has the confidence of parliament.6 There is, of course, the much debated exception of the

governor generals reserve powers, but putting this matter aside for the time being, it might be asked whether Prime Minister Harper had the confidence of Parliament when he sought permission to prorogue. It is argued that he did. Confidence is a matter for the House of Commons, and at its last opportunity the House had indicated its confidence in the government. Harper had won votes of confidence on the throne speech weeks earlier,

Letter from Stphane Dion to Michal Jean (4 December 2008) http://www.liberal.ca/pdf/docs/081204_petition_letter_en.pdf viewed 19 May 2009. 5 In particular, there is a long running debate over the scope of the governor generals reserve powers, particularly with respect to the refusal of requests to dissolve parliament. In Canada, see PW Hoggs engagement with Eugene Forsey (Eugene Forsey, The Royal Power of Dissolution in the British Commonwealth (OUP 1943) 146-62; PW Hogg, Constitutional Law of Canada (5th ed) (Thompson Carswell 2007) 9.7 (d).) 6 Geoffrey Marshall, Constitutional Conventions: the Rules and Forms of Political Accountability (Oxford: Clarendon Press 1984) 19-44; Andrew Heard, Canadian Constitutional Conventions: the Marriage of Law and Politics (OUP 1991) 34-40.

and nothing had happened subsequently in the House of Commons to negate that.7 The letters and petition from the opposition members were simply statements about how they would vote if they had the opportunity to do so. The most that could be said was that Harper was likely to lose the confidence of Parliament should a vote be held in the immediate future. There is no mechanism for Parliament to express its confidence or lack of confidence outside of the House of Commons. The individual members, when speaking outside of the House of Commons (whether individually or collectively (as with the petition)) simply have no authority to speak for parliament. In these circumstances the governor general was not entitled to act as though the prime minister had lost the confidence of the House of Commons. Harpers political authority may well have been weakened by the formation of the coalition and the petition. But none of this had crystallized as the loss of confidence of the House and the Governor General was obliged to act on the advice of the Prime Minister unless the situation fell within some exception to, or qualification of the general rule.

The reserve powers The broadest exception to the general rule that the governor general must act on the advice of the prime minister is the governor generals personal prerogatives or reserve powers.8 These are the powers that the governor general may exercise without (or even contrary to) the advice of her ministers. The most prominent example of the exercise of reserve powers is the refusal of requests for a dissolution of Parliament and a subsequent election. There is ample precedent for governors general to refuse such requests,9

although debate continues about the circumstances in which such refusals are justified exercises of the reserve powers.10
7

Although note that Andrew Heard argues to the contrary: (t)he fact that the government had won its vote of confidence on the speech from the throne did not establish an unquestionable right to govern, especially since the governments motion on the address in reply was successfully amended with very important caveats. Hear A, The Governor Generals Decision to Prorogue Parliament: A Chronology and Assessment (2009) 18 Constitutional Forum 1 at 6. See also Heard A, The Governor Generals Decision to Prorogue Parliament: A Dangerous Precedent, December 8, 2008, http://www.law.ualberta.ca/centres/ccs/issues/heard.php 8 See Hogg, n 5 at 9.7 (a). 9 In Canada, the most notorious being the King-Byng affair (see Hoggs discussion, n 5 at 9.7(d)). 10 See Heard, n 6 34-40; Marhsall, n 6, p 8; Forsey, n 5 pp 146-62; Hogg, n 5 at 9.7 (d).

Prime Minister Harper, of course, was not seeking a dissolution, but a prorogation. That is, he was not seeking to have parliament dissolved and an election called, but rather to have a session of parliament ended. During the period of prorogation all government bills cease to exist and all committee work stops, but all ministers remain in office and all members retain their rights and privileges. Prorogation is a regular event in the parliamentary cycle, but until this occasion had always come at the end of a legislative session that is, when the government decided that its legislative agenda was complete. There is no Canadian precedent establishing that the governor general has the power to refuse to grant prorogation in these circumstances. The request itself was entirely unprecedented. It is, however, arguable that the power to refuse dissolution ought to extend to the power to refuse prorogation. It is argued that one of the rationales for the power to refuse to grant a dissolution to provide a check on the power of the prime minister11 would also apply in the case of prorogation. The immediate threat to responsible government posed by prorogation is essentially the same as that posed by dissolution: the government is no longer answerable to parliament in the House of Commons and is therefore, in the short term, immunized from accountability. With as much at stake (from the perspective of preserving responsible government) with a prorogation as with a dissolution, it seems reasonable that a governor general should have the power to refuse requests to prorogue in some circumstances.

Unconstitutional advice

There is a further qualification to the general rule that governors general must act on the advice given by the prime minister, one that has been pursued forcefully in the current context by Heard: that the governor general is not obligated to act on unconstitutional advice.12

11 12

Heard, n 6 p 35. Heard, n 7.

It must be admitted that there is some risk in authorizing a governor general to evaluate the constitutionality of a request to prorogue. The governor general is, after all, bound by convention to interfere as little as possible in the governing process. An invitation to the governor general to engage in constitutional reasoning, even in these narrowly prescribed circumstances, would seem to be an invitation to second guess the governments own constitutional assessment of the situation. Knowing how another unelected branch of government the courts have been under sustained criticism for their invalidation of government decisions,13 it would be understandable for a governor general to choose not to follow suit. Nevertheless, the governor general has a

responsibility to ensure that government remains accountable to parliament. There must be cases in which a request to prorogue would be an abuse of power and thus be unconstitutional. Few would disagree that the governor general who is asked to prorogue parliament indefinitely, or who is approached repeatedly by a serial proroguer, would be entitled to refuse on constitutional grounds. The principle of

responsible government cannot be maintained if ministers are not required to face parliament. The ball must be kept in play, and there is only one political institution that has been given the responsibility of ensuring that it is. Returning to the events of December 2008, the Prime Ministers request was arguably sought for just such an improper purpose to avoid the scrutiny of the House of Commons in order to remain in power. What of the rationale offered in defence of the decision: ie that prorogation was justified in the result? On this account, parliaments brief cooling off period was proven to be justified by the almost immediate collapse of the coalition, a coup replacing Dion with Michael Ignatieff, and the return of a government and parliament now able to deal productively with each other. Stability was maintained at a time when a response to an economic crisis was needed, and the distraction of an election was avoided. There is, of course, another way to view the events: by adjourning Parliament, the Prime Minister disciplined and tamed it.
13

By allowing prorogation in these

See, for a Canadian example, Grant Huscroft, Rationalizing Judicial Power: the Mischief of Dialogue Theory in Kelley JB and Manfredi CP (eds) Contested Constitutionalism: Reflections on the Charter of Rights and Freedoms (UBC Press, 2009), also available at http://ssrn.com/abstract=1083685 viewed 18 May 2009.

circumstances, the governor general has enhanced the powers of the prime minister against parliament. It is not obvious that political stability should automatically trump other interests at play. By allowing the Prime Minister to wield this power when

stability is threatened (ie whenever there is the spectre of a change of government) a governor general will be required to determine how much of a loss of parliamentary power and concentration of executive power is justified by gains in stability. contemporary governors general well suited for such a task? Are

The role of the contemporary governor general

Such political skills as may have been required of governors general in times past became largely superfluous in the post-war period of political stability. The ceremonial role of the governor general became the whole of the job. It was realized that if the real job of governor general is to be patient and kind and otherwise embody the Canadian national myth, then Canada needed a different kind of governor general. No longer would prime ministers recommend former statesmen for the post. For this new kind of governor general, political experience was considered a liability rather than an asset, and public profile and media-savvy were the sine qua non. To be a governor general in the new millennium is to be a celebrity. And the two appointments that have been made in this new vein (Adrienne Clarkson and Michal Jean) have been striking: both women were refugee immigrants, both are visible minorities, and both have overcome extraordinary adversity in their early lives to become celebrity television journalists with the Canadian Broadcasting Corporation. The ascendance of this new style of governor general has been coincidental with the return of minority governments to Canada. Three successive minority governments have been returned, largely as a consequence of the collapse of the Liberal party in Qubec and a resurgence of a regional party, the Bloc Qubcois. It is likely that minority governments will be the rule in Canada as long as neither of the major national parties is able to achieve electoral success in Qubec. This retooling of the office of governor general has thus come at a time when the job, for the first time in a generation, 7

can be expected to carry with it the responsibility for overseeing transitions from one government to the next. The return of minority government as a feature of Canadian political life requires that the qualifications for the governor general be rethought. A predominant purpose of the office must once again be to police the conventions of responsible government. The governor general must enjoy the political legitimacy that allows her to confront a prime minister in defence of parliament, and to exercise independent judgment of the constitutionality of some of the advice she receives. It may well be that changes to the appointment process would be necessary for such a political legitimacy to develop. It is significant that former Governor General Adrienne Clarkson has, in the aftermath of December 2008, suggested greater transparency and parliamentary input in the appointment process. Clarkson recommended that that candidates be subject to a confirmation hearing in parliament and be approved by parliament.14 There is of course the danger that with greater democratic bona fides, a governor general might feel emboldened as a political actor to step beyond the role of merely keeping the political ball in play. But if minority governments are to remain a feature of the Canadian landscape, it is a risk that must be taken.

14

Valpy M, Let MPs vet G-G candidates, and show hearings, Clarkson says, Globe and Mail, (17 April 2009).