Discretion and the Reserve Powers of the Crown
Russell, Peter H., Canadian Parliamentary Review
The decision of Governor General Michaelle Jean to grant prorogation when requested by Prime Minister Harper in 2008 and 2009 led to considerable debate among students of Parliament as to the discretionary power of a governor general to reject advice of a prime minister. This article agrees with those who believe that Mme Jean did not err in acting on those specific requests but rejects the idea that it would violate constitutional convention for a governor general to ever refuse such a request from a prime minister. It further argues that in the Westminster system the monarch or her representative, in exercising any of the Crown's legal powers in relation to Parliament, retains the right to reject a prime minister's advice if following that advice would be highly detrimental to parliamentary democracy. That rationale applies equally to prorogation and to dissolution.
A recent article by Nicholas MacDonald and James Bowden (1) quite rightly stressed that in the democratic age the reserve powers of the Crown should be rarely used. They say that "most scholars" agree that it is only under the "most exceptional circumstances" that the governor general may reject the prime minister's advice. I entirely agree with that statement, and would go further and say that virtually all scholars agree on that general proposition. That indeed is the constitutional convention that enabled a parliamentary system dominated by the Crown to evolve into a parliamentary democracy. But that convention clearly implies a corollary convention about the exceptional circumstances when the Crown might exercise discretion and say "no" to a prime minister. If there is a convention that governors general normally accept the advice of prime ministers in exercising their legal powers in relation to parliament, there must be a convention or principle that enables us to identify those "most exceptional circumstance" when the governor general would be constitutionally correct to reject the prime minister's advice.
On that question, it is my view, and it is a view that I believe is shared by a great many constitutional scholars, that "in this democratic age, the head of state or her representative should reject a prime minister's advice only when doing so is necessary to protect parliamentary democracy." Those words of mine are quoted, with what I take to be approval, by MacDonald and Bowden in their article. The justification for the convention is to ensure that parliamentary government is democratic and not controlled by an hereditary head of state or her representative. It follows that if a prime minister's advice seems seriously adverse to the functioning of parliamentary democracy, it should not be followed. An authoritarian prime minister might be as much a threat to parliamentary democracy as an authoritarian sovereign. In each case we rely on conventions, a body of constitutional or legal ethics", as A.V. Dicey explained, for guidance on the proper use of legal powers. (2)
Now let me apply the general theory set out above to prorogation. First, we should be clear that the power to prorogue parliament legally rests with the Crown. King Henry VIII invented it as a device for ending a session of parliament without dissolving parliament. In the democratic age when prime ministers rather than monarchs take the initiative in deciding when to prorogue, the practice is to prorogue when the main business of the session is done so that, after a break, a new session can be opened with a Speech from the Throne setting out a new agenda. Throughout this democratic evolution the legal power to prorogue has remained with the Crown. In Canada, since Confederation, Royal Letters Patent setting out the Commission of Canada's governor general, most recently King George VI's 1947 Letters Patent, have made it clear that the power to prorogue the Parliament of Canada is to be exercised by the governor general. …