As a conservative voter I would have loved for the Govenor General to refuse the request from the former Priminister to prorogue the Canadian Parliament.
It was a tool that was at his disposal and he used it. That rule is part of our government.
My question is should we alter the rules to prorogue parliment. Why should we change or modify the rules. And who would benefit from the changes in this rule.
Putting aside genuine extraordinary uses of the Governor General's reserve powers, I think the heuristic should be that by convention the Governor General should not act independently and should take the advice of her Prime Minister, except in cases of dissolution where the Governor General should first look to the House.
Cribbing extensively from MacDonald and Bowen's "No Discretion: On Prorogation and the Governor General" https://www.canlii.org/en/commentary/doc/2011CanLIIDocs298 - The takeaway from Dufferin, Jean and Simon is that even where there is an imminent lack of confidence, if the Prime Minister still has the formal confidence of the House the Governor General must follow the advice of the Prime Minister, including regarding prorogation.
Dissolution, in my view, is different (aside from the fact it is a power formally vested in the Governor General by the written constitution unlike prorogation). As prorogation does not end Parliament, the House still has an opportunity to vote no confidence in the government when the next session begins. Dissolution denies the House that opportunity permanently. As the Prime Minister must only serve with the confidence of the House, if there is an imminent lack of confidence, the Governor General should not grant a dissolution and should instead let the House vote. That's the precedent of Byng and of Guichon. Conceptually, instead of viewing this as discretionary it should be erring on the side of allowing the House to test confidence.
Accordingly, Simon should not grant Carney's request to dissolve Parliament. Parliament should reconvene and the House's confidence in Carney tested.
"Dissolution, in my view, is different (aside from the fact it is a power formally vested in the Governor General by the written constitution unlike prorogation). "
Actually, the Governor General ---- and the Administrator of the Government of Canada, or a Deputy of the Governor General ---- is the only person "authorized and empowered" to exercise the Royal Prerogative of summoning, proroguing or dissolving Parliament pursuant to the Letters Patent Constituting The Office of the Governor General of Canada 1947:
"VI. And We do further authorize and empower Our Governor General to exercise all powers lawfully belonging to Us in respect of summoning, proroguing or dissolving the Parliament of Canada."
I’m not disputing that prorogation is a prerogative power… but noting that it is not expressly in the BNA Act/Constitution Act, 1867 while dissolution is.
The role of the Governor General is prescribed by the Constitution, and the Letters Patent Constituting The Office of Governor General of Canada.
The Constitution Act 1867, Part III --- Executive Power prescribes the following:
"Declaration of Executive Power in the Queen
9 The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.
Application of Provisions referring to Governor General
10 The Provisions of this Act referring to the Governor General extend and apply to the Governor General for the Time being of Canada, or other the Chief Executive Officer or Administrator for the Time being carrying on the Government of Canada on behalf and in the Name of the Queen, by whatever Title he is designated."
His Majesty King George The Sixth and the Prime Minister William (Lyon Mackenzie) King of Canada further defined the role of the Governor General in 1947 through the Letters Patent Constituting The Office of the Governor General and Commander-in-Chief In and Over Canada":
"I. We do hereby constitute, order, and declare that there shall be a Governor General and Commander-in-Chief in and over Canada, and appointments to the Office of Governor General and Commander-in-Chief in and over Canada shall be made by Commission under Our Great Seal of Canada.
"His Powers and Authorities
II. And We do hereby authorize and empower Our Governor General, with the advice of Our Privy Council for Canada or of any members thereof or individually, as the case requires, to exercise all powers and authorities lawfully belonging to Us in respect of Canada, and for greater certainty but not so as to restrict the generality of the foregoing to do and execute, in the manner aforesaid, all things that may belong to his office and to the trust We have reposed in him according to the several powers and authorities granted or appointed him by virtue of the British North America Acts, 1867 to 1946 and the powers and authorities hereinafter conferred in these Letters Patent and in such Commission as may be issued to him under Our Great Seal of Canada and under such laws as are or may hereinafter be in force in Canada. (1)
VI. And We do further authorize and empower Our Governor General to exercise all powers lawfully belonging to Us in respect of summoning, proroguing or dissolving the Parliament of Canada."
As a conservative voter I would have loved for the Govenor General to refuse the request from the former Priminister to prorogue the Canadian Parliament.
It was a tool that was at his disposal and he used it. That rule is part of our government.
My question is should we alter the rules to prorogue parliment. Why should we change or modify the rules. And who would benefit from the changes in this rule.
Putting aside genuine extraordinary uses of the Governor General's reserve powers, I think the heuristic should be that by convention the Governor General should not act independently and should take the advice of her Prime Minister, except in cases of dissolution where the Governor General should first look to the House.
Cribbing extensively from MacDonald and Bowen's "No Discretion: On Prorogation and the Governor General" https://www.canlii.org/en/commentary/doc/2011CanLIIDocs298 - The takeaway from Dufferin, Jean and Simon is that even where there is an imminent lack of confidence, if the Prime Minister still has the formal confidence of the House the Governor General must follow the advice of the Prime Minister, including regarding prorogation.
Dissolution, in my view, is different (aside from the fact it is a power formally vested in the Governor General by the written constitution unlike prorogation). As prorogation does not end Parliament, the House still has an opportunity to vote no confidence in the government when the next session begins. Dissolution denies the House that opportunity permanently. As the Prime Minister must only serve with the confidence of the House, if there is an imminent lack of confidence, the Governor General should not grant a dissolution and should instead let the House vote. That's the precedent of Byng and of Guichon. Conceptually, instead of viewing this as discretionary it should be erring on the side of allowing the House to test confidence.
Accordingly, Simon should not grant Carney's request to dissolve Parliament. Parliament should reconvene and the House's confidence in Carney tested.
Jacob,
"Dissolution, in my view, is different (aside from the fact it is a power formally vested in the Governor General by the written constitution unlike prorogation). "
Actually, the Governor General ---- and the Administrator of the Government of Canada, or a Deputy of the Governor General ---- is the only person "authorized and empowered" to exercise the Royal Prerogative of summoning, proroguing or dissolving Parliament pursuant to the Letters Patent Constituting The Office of the Governor General of Canada 1947:
"VI. And We do further authorize and empower Our Governor General to exercise all powers lawfully belonging to Us in respect of summoning, proroguing or dissolving the Parliament of Canada."
Source: https://www.solon.org/Constitutions/Canada/English/LettersPatent.html
I’m not disputing that prorogation is a prerogative power… but noting that it is not expressly in the BNA Act/Constitution Act, 1867 while dissolution is.
Who decides the role of the GG?
The role of the Governor General is prescribed by the Constitution, and the Letters Patent Constituting The Office of Governor General of Canada.
The Constitution Act 1867, Part III --- Executive Power prescribes the following:
"Declaration of Executive Power in the Queen
9 The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.
Application of Provisions referring to Governor General
10 The Provisions of this Act referring to the Governor General extend and apply to the Governor General for the Time being of Canada, or other the Chief Executive Officer or Administrator for the Time being carrying on the Government of Canada on behalf and in the Name of the Queen, by whatever Title he is designated."
Source:
THE CONSTITUTION ACTS 1867 to 1982: https://laws-lois.justice.gc.ca/eng/const/
His Majesty King George The Sixth and the Prime Minister William (Lyon Mackenzie) King of Canada further defined the role of the Governor General in 1947 through the Letters Patent Constituting The Office of the Governor General and Commander-in-Chief In and Over Canada":
"I. We do hereby constitute, order, and declare that there shall be a Governor General and Commander-in-Chief in and over Canada, and appointments to the Office of Governor General and Commander-in-Chief in and over Canada shall be made by Commission under Our Great Seal of Canada.
"His Powers and Authorities
II. And We do hereby authorize and empower Our Governor General, with the advice of Our Privy Council for Canada or of any members thereof or individually, as the case requires, to exercise all powers and authorities lawfully belonging to Us in respect of Canada, and for greater certainty but not so as to restrict the generality of the foregoing to do and execute, in the manner aforesaid, all things that may belong to his office and to the trust We have reposed in him according to the several powers and authorities granted or appointed him by virtue of the British North America Acts, 1867 to 1946 and the powers and authorities hereinafter conferred in these Letters Patent and in such Commission as may be issued to him under Our Great Seal of Canada and under such laws as are or may hereinafter be in force in Canada. (1)
VI. And We do further authorize and empower Our Governor General to exercise all powers lawfully belonging to Us in respect of summoning, proroguing or dissolving the Parliament of Canada."
Source: https://www.solon.org/Constitutions/Canada/English/LettersPatent.html