Dawson v. Forsey on the Reserve Powers of the Crown

I had a very intellectually stimulating discussion on Twitter last night with Dr. Johannes Wheeldon regarding the Prorogation-Coalition Crisis of 2008, the nature of Crown prerogative, the different implications of prorogation vs dissolution, and the respective roles of the Governor General, Prime Minister, and Parliament. For a fuller debate, I would direct the reader to the Canadian Parliamentary Review, spring and summer 2011; Nick MacDonald and I wrote “No Discretion: Prorogation and the Governor General,” Dr. Wheeldon critiqued our article with a letter entitled “Prorogation as Constitutional Harm”, and Nick and I issued a short response. Peter H. Russell also devoted an entire article, “Discretion and the Reserve Powers of the Crown”, as a rebuttal to “No Discretion.”

Where Robert MacGregor Dawson and Eugene Forsey (in the Pantheon of Canadian Constitutional Scholars) clashed on the King-Byng Affair of 1926, Johannes Wheeldon and I lock rhetorical sabres on the Prorogation-Coalition Crisis of 2008. I’m writing my Master’s thesis on the evolution of Crown prerogative in the United Kingdom and Canada, with particular emphasis on the evolution of the reserve powers of the Sovereign and of the Governor General versus the Crown-in-Council prerogatives, and the Crown-in-Parliament. One of my goals is to show that the constitutional scholarship on the reserve powers in Canada underwent a marked shift in the 1960s from a doctrine of vice-regal restraint to one of vice-regal intervention; Dawson and Forsey took the opposing viewpoints – but Forsey outlived Dawson by about 30 years and influenced a new generation of scholars in Canada and throughout the core Commonwealth. I first alluded to these differences in “‘Confederation Day’: I Agree With Eugene Forsey on Something!”

Dawson’s position that the governor general may reject the prime minister’s advice only under a strict interpretation of “the most exceptional circumstances”[1] contrasts with Forsey’s broader interpretation of the appropriate application of the viceregal reserve power, “the last bulwark against prime ministerial absolutism.”[2] Where Dawson considered the intervention of the Sovereign or Governor General as the threat to responsible government because he or she could assume Parliament’s responsibility to ensure the political enforceability of the conventional constitution, Forsey argued that the Prime Minister posed the latent threat to responsible government because he could in effect become the Sovereign. (I would argue that in many respects, responsible government did necessarily imply such a shift in Crown prerogative, but more on that later).

With respect to the King-Byng Affair, Dawson argued that Prime Minister King presented “bad advice that should have been accepted” because he saw higher constitutional issues at stake than merely the quality of the advice. He explained in the fall of 1926:

[Lord Byng] had the privilege of advising, cautioning and warning Mr. King […]. The Governor-General was justified in pointing out all these objections and many more; but if Mr. King remained adamant, Lord Byng should have shrugged his shoulders and granted the dissolution.[3]

Mr. King gave bad advice, which under the old regime would have been justly rejected. But according to the modern interpretation of parliamentary government […] the Governor-General was bound to accept and give effect to the advice thus tendered, if the Prime Minister remained steadfast in offering it. The question whether the advice was good or bad should not have influenced its acceptance or refusal. The Prime Minister should be the sole judge of the appropriateness of the policy, and its subsequent rejection or endorsement could safely be left to the people at the polls.[4]  

Dawson did, however, see a role for the reserve powers, though truly in the most “exceptional circumstances” and not as a matter of vice-regal intervention against an unscrupulous or audacious Prime Minister or bad advice that did not truly threaten the overall integrity of the system. In The Government of Canada, he defined such exceptional circumstances: if a Prime Minister’s ministry lost its majority in the House, and he then advised dissolution before parliament had been summoned, the Governor General would need to dismiss him and refuse dissolution under such conditions.[5] This situation occurred in 1971 (after Dawson’s hypothetical), when Premier Smallwood advised dissolution before the House of Assembly had been given the opportunity to pronounce its confidence on the government, and the Lieutenant-Governor forced his resignation.[6] Nick MacDonald and I argued in “No Discretion” why prorogation can never meet the threshold of these exceptional circumstances; we also explored the consequences of such vice-regal interventions on our system of responsible government in greater depth.

Forsey countered, and argued that rather than allowing parliament (potentially in the case of prorogation) or the electorate (in the case of dissolution) to ensure the political enforceability of the conventional constitution, the Governor General should intervene in order to ensure that Cabinet upheld some standards of “constitutional decency” – a broad and potentially arbitrary term.

It should hardly be necessary to add that ‘reserve power’ means what it says: a power held in reserve, to be used only on extraordinary occasions to prevent a flagrant breach of constitutional right. As long as Cabinets observe ordinary constitutional decency, restraint, and decorum in the advice they tender, reserve powers remain in reserve; it is only on the occasions, fortunately rare, when Cabinets forget themselves, that the reserve powers come into play.[7]

Dawson and I would argue that postponing a vote of confidence by prorogation does not constitute “a flagrant breach of constitutional right.” The debate rages on.

Helen Forsey published some notes that her father had originally written in 1984, where he argued: “The only protection against such conduct is the reserve power of the Crown, the Governor General, to refuse such prorogation or dissolution, and, if necessary, to dismiss the Government which advised such prorogation or dissolution.”[8]

Prorogation vs Dissolution and Formal Votes of Confidence

Prorogation postpones votes of confidence until after the intersession, in response to the Address in Reply to the Speech from the Throne. Prorogation and votes of confidence therefore involve only parliamentarians and the House of Commons. Dissolution, however, certainly does “avoid” a vote of confidence – and also in effect transfers it from parliament to the electorate.

Russell argues that the prorogation of 2008 “enabled the Harper government to avoid a scheduled vote of non-confidence, which there was ever reason to believe would carry.”[9] This statement ignores three important considerations. First, the government exercises a prerogative to schedule “Opposition Days” (supply days) in the House of Commons, when the opposition can introduce motions of non-confidence. Here Russell conflates the descriptive and normative; perhaps the government should not be able to exercise this prerogative, but the government does. Second, prorogation does not “avoid” a vote on non-confidence any more than changing the parliamentary calendar because the prorogation of parliament preserves its membership and composition; therefore, after the intersession, the same members of parliament and the same House of Commons can therefore withdraw its confidence upon the Address in Reply to the Speech from the Throne, or in the case of the 2^nd session of the 40^th Parliament, the budget of January 2009. Third, Russell can only conjecture than the House and the Opposition Coalition would have defeated the Harper government on 8 December 2012. He could absolutely conclude that the Harper government itself suspected that it would face defeat and therefore have to resign – that’s precisely why Prime Minister Harper advised prorogation instead of dissolution. However, past experience suggests that both Harper and Russell could just as easily been wrong. This is why Nick MacDonald and I argued in “No Discretion” that only formal votes of confidence in the House of Commons itself matter in ascertaining whether the government commands the confidence of the House: political circumstances can change quickly. In May 2005, for instance, the Martin government faced a vote of confidence on the budget; the final outcome hinged upon Speaker Milliken, who broke the tie in favour of the government in order “to allow the debate to continue. No one could have predicted that Conservative MP Belinda Stronach would cross the floor and become a Liberal Cabinet minister, and no one could have predicted that Speaker Milliken would need to cast the deciding, tie-breaking vote on the budget. All these uncertainties and vagaries of backroom politics underscore why only formal votes of confidence matter and why only they should matter. Perhaps on 8 December 2008 (overridden by the prorogation of 4 December 2008), some Liberals uneasy about the “cooperative government” with the New Democrats might have continued the Liberal practice of the 39^th Parliament of abstaining on or not showing up for key votes of confidence. Brian Topp’s memoir on How We Almost Gave the Tories the Boot: The Inside Story on the Coalition shows that the New Democrats had to negotiate with three separate Liberal camps – those of Dion, Ignatieff, and Rae – in order to secure the coalition agreement between the Liberals and New Democrats and the pledge of support between the Liberals, New Democrats, and Bloquistes.[10] We only had a few reasons to believe – not every reason – that the Harper government would have lost the confidence of the House.

The prorogations of 1873 and 2008 both saw heightened political brinksmanship of high stakes. In classic game theory, the Cabinet and Parliament careen toward each other at a high velocity: if both veer off course to avoid a collision, then neither branch “wins” and both avert a crisis, and both probably emerge with credibility slightly damaged. In both 1873 and 2009, the Prime Ministers showed audacity toward their Parliaments and risked their premierships on the prorogations. In 1873, Parliament asserted itself after the intersession, forced Prime Minister Macdonald to resign, and installed a new Liberal Ministry led by Alexander Mackenzie – all without an election; in 2008-2009, Parliament retreated after the intersession and allowed Prime Minister Harper to remain in office. No one can deny the obvious parallels between these the Macdonald-Dufferin prorogation of 1873 and the Harper-Jean prorogation of 2008: they both involved audacious prime ministers who advised prorogation in order to postpone votes of confidence, and as the newspapers of each period show, both prorogations solicited strong public backlash and controversy, both for and against. The difference lies in Parliament’s response to each case after the respective intersessions: in 1873, Parliament asserted its right to withdraw confidence and support a new Ministry, but in 2009, Parliament acquiesced to the Harper government and support it in votes on confidence on the Address in Reply and on the budget. Therefore, I contend that the Forsey School ought to focus on the responsibilities of the House of Commons within our system of responsible government instead of portraying the prime minister as villain, parliament as victim, and the governor general as saviour.

Peter Russell, assuming the mantle of Eugene Forsey on prime ministerial absolutism, argued that “a prime minister who can shut down Parliament at any time would be a modern version of an absolute monarch.”[11] Russell also argued, ironically using Dawson’s vocabulary:

[I]n certain exceptional circumstances, the Governor-General, as the representative of the Crown [Queen], must hold in reserve a discretionary power to refuse a prime minister’s advice. […] The reserve power […] is necessary to prevent the undermining of responsible parliamentary government.[12]

In addition, and again contrary to academic belief in Canada, Prime Minister Harper is not the first to use prorogation for such reasons. By happenstance, I uncovered an interesting British case from 1997, where Conservative Prime Minister Major arranged what Liberal-Democrat Simon Hughes called “an unprecedented gap between prorogation and dissolution” in order to prevent a committee from tabling a report that would have embarrassed his government. (In the UK, Parliament is normally prorogued first and dissolved about one week later. But in any case, Major’s ploy didn’t help the Conservatives: Tony Blair’s Labour party won the election by a landslide). Furthermore, Prime Minister Jean Chretien also used prorogation as a delaying tactic at least once: in November 2003, he advised a necessary prorogation that allowed for the transition between his government and the incoming Martin government. However, not so coincidentally, this prorogation also delayed the tabling of Auditor General Shelia Fraser’s first report on what became known as the Sponsorship Scandal. Both of these examples are legitimate delay tactics and acts of prime ministerial prerogative.

Therefore – as Dawson argued – in a system of responsible government where the Ministry takes responsibility for acts of the Crown and is responsible before the House of Commons, the Cabinet and Prime Minister in particular – not the Governor General – must take responsibility for all government policy and decisions, whether they be good or bad. The Sovereign or Governor General must not implicate himself in politics (such as by rejecting the prime minister’s advice, which in effect dismisses him) except in the most “exceptional circumstances.” As Dr. Paul Benoit explains, responsible government amounts to a “doctrine of royal infallibility” because the Prime Minister and Cabinet face either the House or the electorate and take responsibility for their policies, good and bad alike; the Sovereign or Governor General remains neutral and above the partisan fray – infallible, if you will.[13] The Forseyite doctrine jeopardizes the neutrality of the Governor General by involving him in petty politics instead of reserving the reserve powers for the truly intolerable and the true threats to responsible government. Ironically, the suggestion that Governor General Jean should have dismissed Prime Minister Harper would actually have robbed Parliament, and the electorate, of its opportunity to hold the Harper Ministry to account.

Conclusion

In his last major work, “Reserve Powers of the Crown” in 1990, Forsey accused Dawson of being “one of Mr. King’s apologists.”[14] Forsey’s subtle ad hominem, dripping with condescension and moral self-righteousness,serves as an attempt to discredit Dawson’s school of thought and perpetuate the most pernicious myth of the Constitution of Canada: that only one legitimate interpretation of Crown prerogative exists. This argument in turn implies a false dichotomy between either an activist Governor General, or a descent into presidentalism. Russell declares, incorrectly, as a universal proposition that “Constitutional experts agree that the governor general reserves the power to reject a prime minister’s advice to prorogue Parliament”[15] – thus denying the possibility that an opposing of interpretation of Crown prerogative could ever present itself in serious academic scholarship and inherently denigrating anyone who so argues. In reality, two legitimate interpretations of Crown prerogative exist, and I side with Dawson and prime ministerial prerogative. I’ve been accused on more than one occasion of being “Harper’s apologist,” which implies that I favour right-wing ideology over the conventional constitution. As Parliamentum has always indicated at the top of the page, I consider myself a classical liberal (therefore on the center-right), but my view on the constitution trumps my ideology. I tend to support the prime ministerial prerogative (the Governor-in-Council) over the discretionary vice-regal reserve powers – irrespective of the ideology of the prime minister. I supported Liberal Prime Minister King over Governor General Lord Byng, Labor Prime Minister Gough Whitlam over Governor-General Sir John Kerr in the Australian Dismissal of 1975, and Prime Minister Chretien’s early dissolutions in 1997 and 2000 (even though I would not have voted Liberal in either election). Contrary to common academic belief, there is a substantial body of evidence to support the Bowden-MacDonald doctrine on the reserve powers – if you know where to look, and if you talk to the right people. The Manual of Official Procedure of the Government of Canada, which Nick MacDonald and I uncovered in 2011, provides a wealth of information on Crown prerogative.

In 1935, Prime Minister Mackenzie King made advising the Governor General on summoning, prorogation, and dissolution of Parliament the prerogative of the prime minister alone, as opposed to the Governor-in-Council prerogative.[16] In 1965, Prime Minister Pearson built upon King’s innovation and devised a system where the prime minister would issue virtually binding written instructions on the summoning, prorogation, and dissolution of Parliament through the “Instrument of Advice.”[17] As a result of the official practices of the Government of Canada, the Governor General possesses no discretion to refuse the Prime Minister’s advice to summon or prorogue parliament[18] and that the Governor General may only reject the Prime Minister’s advice to dissolve “in those rare and almost indefinable circumstances when it is necessary for the protection of the constitution.”[19] My work and the Bowden-MacDonald collaboration lead to one inexorable conclusion: our interpretations (and those of Dawson) on prime ministerial prerogative vs. the discretionary vice-regal prerogative provide apt descriptions of the true practice of the Government of Canada; in contrast, the Forseysite scholars who favour a more interventionist Governor General – like Russell, Heard, and Wheeldon– make normative claims on how the Government of Canada and the Prime Minister of Canada should act.

Similar Posts:

• Centralization of the Crown-in-Council Prerogative in the Prime Minister
• Prorogation as a Prime Minsterial Delay Tactic, Not “Abuse” of Crown Prerogative
• I Agree With Eugene Forsey on Something!
• Documents on Constitutional Practice in Canada
• The Manual of Official Procedure of the Government of Canada
• Guidelines on the Conduct of Ministers, Secretaries of State, Exempt Staff, and Public Servants During an Election