Vice-regal discretion after MacKinnon

Governors General have less leeway than we like to imagine

Earlier this month, the Federal Court dismissed a challenge to Prime Minister Trudeau’s prorogation of Parliament in MacKinnon. I gave my opinion on the judgement here. Vanessa MacDonnell, Emmett Macfarlane, Paul Daly, and Leonid Sirota have provided more careful analyses. In this post, I’ll look at what the ruling might tell us about the Governor General’s role today. Essentially, I’ll argue that the Governor General has far more limited discretion in the exercise of her ‘reserve powers’ than commentators and the existing scholarship often suggest.

Questions about the Governor General’s discretion are nothing new. Nearly one hundred years ago, in June 1926, Governor General Byng’s refusal of Prime Minister Mackenzie King’s request to dissolve Parliament (prior to a likely vote of no confidence) sparked a fierce debate about the vice-regal role. On one side of the debate were those who felt that Byng had overstepped. Byng had been miffed by Mackenzie King’s decision to stay on as prime minister despite not winning the most seats during the October 1925 general election. Byng thought it was only fair that Arthur Meighen, whose Conservative party had won a plurality of seats, should have had the first shot at governing. Byng’s refusal to dissolve Parliament was arguably shaped by his sense that Meighen should have been prime minister to begin with. By refusing Mackenzie King’s request and inviting Meighen to form a government, Byng may have been trying to right what he saw as a wrong. Regardless of Byng’s motives, Meighen’s government fell on a vote of no confidence in July 1926, leading to a general election that saw Mackenzie King’s Liberals return to power with a majority of seats in the House of Commons.

For Byng’s supporters, the refusal of Mackenzie King’s dissolution request was a proper exercise of vice-regal discretion. The Liberals did not have the most seats, a general election had only recently been held, and the Conservatives appeared to be well-placed to form an alternative government. The fact that the Conservatives failed to hold confidence for very long is notable but had no bearing on the soundness of Byng’s decision. The Governor General made the best choice he could, based on the information that he had. His refusal of Mackenzie King’s request set a notable precedent: while the Governor General almost always acts on the prime minister’s advice, the Crown retains the discretionary authority to refuse in limited, but important, circumstances.

The debate over the Governor General’s discretionary powers was reignited by the 2008 prorogation crisis. In that instance, Governor General Jean accepted Prime Minister Harper’s advice to prorogue Parliament for six weeks in December 2008, even though the opposition parties had agreed to vote no confidence regarding Harper’s Conservatives and govern as a coalition. The 2008 debate was pretty one sided. Most Anglophone scholars argued that Jean either could have or should have refused Harper’s advice. A contrary view was offered by a Université Laval law professor, Guy Tremblay, and two younger scholars, Nicholas MacDonald and James Bowden. They held that the Governor General had no discretion to refuse a prime minister’s advice to prorogue as long as confidence had not been formally lost. Since Jean had consulted two experts, Peter Hogg and Peter Russell, and made Harper wait a couple of hours before accepting his advice, however, this view was widely discounted. If Jean had no discretion, why would she have acted in ways that suggested she did?

A few years before this controversy unfolded in Canada, a British constitutional scholar, Robert Blackburn, published a provocative article in Public Law arguing that the Queen’s “reserve powers” were essentially defunct. Rather than presenting these “reserve powers” as personal prerogatives involving monarchical discretion, Blackburn argued that these authorities had become ceremonial. Those scholars and commentators who insisted that the Queen retained real discretion in the exercise of these ceremonial powers had failed to keep pace with the evolution of the British constitution. Monarchical discretion, Blackburn held, has long since fallen away.

Both sides of the vice-regal discretion debate can point to recent events that back up their claims.

In 2017, the Lieutenant Governor of British Columbia refused Premier Clark’s request to dissolve the legislature after her government failed to secure confidence following a general election. Clark’s Liberals had won a couple more seats than the opposition NDP and Greens, but these two parties signed a confidence and supply agreement that allowed them to present a viable alternative government. Hence, this instance of vice-regal discretion around dissolution checked all the boxes for an exceptional case: the first minister had lost confidence, a general election had just been held, and there was another government that could hold confidence. This case reinforced that vice-regal discretion remains a reality.

The prorogation of the British Parliament in 2019 at the height of Brexit, and its subsequent invalidation by the United Kingdom Supreme Court (UKSC) in Miller II, offered a different lesson. In this instance, the Queen accepted the government’s advice to prorogue. When the UKSC ruled on the matter, the Queen’s actions were not questioned; her acquiescence to the government’s advice was taken as a given. Instead of finding fault with the Queen, which would have been highly inappropriate, the UKSC found that the government had erred, advising a prorogation contrary to the constitutional principle. Miller II not only rendered prorogation justiciable, despite it purportedly being a ‘reserve power’ of the Queen, but the Court’s findings relied on the presupposition that the power to prorogue was effectively exercised by the government.

MacKinnon is an interesting judgment in light of these debates and developments. The case centered on two questions: whether prorogation was justiciable, and if so, whether the exercise of this power exceeded its constitutional and legal limits. It’s the first of these questions that gets at the discretionary powers of the Governor General.

Chief Justice Crampton’s finding that the prorogation was justiciable rested on the reality that the power was, for all intents and purposes, exercised by the prime minister. Now, this decision may seem straightforward, but it goes to the heart of whether prorogation is a “reserve power” that the Governor General has the discretion to refuse. While Crampton acknowledges that the Governor General might refuse a prorogation, he appears to have concluded that this is unlikely when the government has not lost confidence. Indeed, Crampton rightly intimates that the federal government was trying to have it both ways when it came to how prorogation works. On the one hand, the government argued that prorogation should not be justiciable since the Governor General legally exercises the power. On the other hand, a Privy Council Office official admitted that the prime minister decides prorogation as per constitutional convention. Crampton was unwilling to let the government duck and weave between law and convention here. Since a government official admitted that the prime minister determined the timing and length of the prorogation, that’s where the authority actually resides, regardless of the formal exercise of the power by the Governor General.

This finding deals two blows to the view that the Governor General has the latitude to refuse prorogation when the prime minister has not lost confidence.

First, it suggests that Tremblay, MacDonald, and Bowden were more right than wrong about the 2008 prorogation. While we can’t rule out the possibility that a Governor General would deny a prime minister prorogation, that doesn’t seem to be how the Privy Council Office sees things when confidence hasn’t been lost, and the Federal Court appears to agree. To my mind, this shifts the burden of proof onto those arguing that the Governor General has the discretion to refuse prime ministerial advice to prorogue. As it stands, the empirical evidence supports the very narrow discretion side, and there are good theoretical reasons to believe that Blackburn is right that those who uphold a higher degree of Crown discretion are basing themselves on dated constitutional constructs.

Second, as a practical matter, MacKinnon arguably makes it far less likely that a Governor General will refuse a prorogation in the future. All else being equal, the Crown will not act contrary to prime ministerial advice if another institution is able to act as a check on the prime minister. Hence, the Governor General will rely on how the Commons has voted when determining whether or not a prime minister enjoys the confidence of the house. Far better to let the Commons express itself, even if it takes a few months, than have the Crown make that call. Now that MacKinnon has found that prorogations are justiciable and that exercises of this power could exceed constitutional or legal limits, Governors General may very well decide that controversial prorogations should be left to the courts to sort out. Put differently, if the courts are willing to block an abusive prorogation, why would a Governor General risk their political neutrality by refusing the prime minister’s advice? Just as refusals of royal assent no longer make sense when the courts can invalidate unconstitutional laws, refusing prorogation may no longer be in the offing if a judge will sort it out in the end.

A similar logic could extend to abusive dissolutions. Imagine a scenario where a first minister demands a very early dissolution for some evidently partisan reason. Would the Crown have the discretion to refuse the request if the first minister still had confidence? Prior to MacKinnon, a good case could be made that the Crown could refuse a request for an obnoxiously early dissolution. That seems less likely after MacKinnon. The reason is the same. If the timing of a dissolution is under the first minister’s control, the exercise of the power may be justiciable and subject to limits. If that’s the case, why not let the courts, rather than the Crown, sort it out?

Now, let me be clear: I don’t think that the courts should review dissolutions. If a first minister decides to call an election much too early, it’s up to the voters to punish them. And the Crown should certainly try to convince a first minister not to call needless elections. But we also need to be realistic. If vice-regal representatives think that the courts will deal with an issue, allowing them to stay above the political fray, that’ll be mighty attractive. Vice-regals will still refuse dissolutions when a first minister has lost confidence and there’s an alternative government waiting in the wings, but this circumstance reinforces what I’ve been hinting at: vice-regal discretion appears confined to cases where a first minister has formally lost confidence.

I’ll end with a significant caveat: personality matters. Some Governors General are determined to defend their role and prerogatives. Think of how Clarkson and Jean approached the job. Others tend to prefer a less forceful approach. Johnson and Simon fit that bill. Still others are unpredictable and capable of going rogue. Payette is a case in point. We see this with monarchs, too. Queen Elizabeth II’s serene and steady approach is often held up as a model, but it was also exceptional as compared with most Sovereigns who preceded her. All this to say, we can never predict how an individual Governor General might interpret their role and discretion.

Yet personality can only go so far. I suspect that Governors General will increasingly be told by their Secretaries and the Privy Council Office that their discretion is quite narrow and that their job is mostly ceremonial. They may not say it bluntly, but the message will be clear. If that’s the case, we’d need a strong-willed Governor General to push back and claim a more discretionary role. Absent this personal determination, we should be far more skeptical of claims that the Governor General can or will act as a check on prime ministers who haven’t formally lost confidence.