Some Discretion: On Dissolution and the Lieutenant Governor


 

Here are the general principles at play in dissolving legislatures and appointing premiers if Premier Clark’s ministry loses the confidence of the legislative assembly today.

On Responsible Government, the Governor’s Discretion, and Early Dissolution

At its core, Responsible Government is a trinity (three in one) of responsibilities: ministerial responsibility to the Crown, individual ministerial responsibility before the Commons, and collective ministerial responsibility & solidarity before the Commons.[1] In this manner, Responsible Government therefore preserves and fully incorporates the medieval principle of Royal Infallibility and reconciles it with liberal democracy and self-government: the Queen can still do no wrong because it is the ministry which takes responsibility for all acts of the Crown, for good or ill. Responsible Government means that “Ministers of the Crown take responsibility of all acts of the Crown”[2] and that the Governor General acts on and in accordance with ministerial advice, save for exceptional circumstances.[3] These acts include accepting responsibility for one’s own appointment as Prime Minister, the dismissal of one’s predecessor, and for dissolving parliament. Logically, therefore, we cannot drive a wedge between the Queen or Governor General on the one hand and the Prime Minister and Cabinet on the other; under no circumstances could the Queen or Governor General act independent of ministerial advice on matters of state,  and only under exceptional circumstances could the Queen or Governor General act contrary to ministerial advice.

The Queen or Governor General can only refuse to promulgate ministerial advice in exceptional circumstances because the consequence of exercising such discretionary authority is equally and proportionately exceptional: the Governor General thereby dismisses the Prime Minister and ministry which tendered the original constitutional advice and must appoint in their place a new Prime Minister and ministry which can then take responsibility for the Governor General’s decision to refuse advice and force the dismissal of their predecessors.[4]

The Governor General and Lieutenant Governors retain the discretion to refuse a first minister’s advice to dissolve the parliament or legislature under some circumstances, notably if a viable alternative government can be formed from within the existing parliament or legislature. The governor would then appoint this new first minister, who would take responsibility for the resignation of his predecessor and the governor’s refusal to implement his predecessor’s advice to dissolve the legislature.

In other words, this alternative government would take responsibility for the dismissal of its predecessor, and this is why the question of whether an alternative government could be formed within the existing legislature is key and determinative to whether the governor could possess the discretion to reject the first minister’s advice to dissolve the legislature. Governors do not dissolve legislatures — or indeed, do anything — unilaterally, but only on some kind of prime ministerial advice. (I wrote more on that issue here). Rejecting prime ministerial advice, and thereby forcing in incumbent first minister’s resignation or outright dismissal, is not a matter of acting unilaterally, on no advice, but instead of rejecting advice offered. Acting unilaterally on no advice whatsoever, versus rejecting one set of advice and adopting another, is a crucial distinction and cannot be dismissed as a mere semantics.

The Situation in British Columbia

Generally, a premier would face two options if the legislative assembly withdraws its confidence from the ministry:

  1. Ask the lieutenant governor to dissolve the legislature and set in train another general election; or
  2. Resign, which would allow the lieutenant governor to appoint a new premier, who would in most cases be the leader of the opposition.

Furthermore, two factors which generally favour the second option are a short-lived legislature, and the existence of a viable alternative government within the same legislature. In this case of the 41st Legislature of British Columbia, both of these factors apply: the legislature is only a few days old, and the New Democratic Party and Green Party together form a parliamentary majority and have publicly announced a supply agreement.

Therefore, the best option in this particular case, if the Clark government loses the vote on confidence on the Address in Reply to the Speech from the Throne later today, would be to resign, after which Lieutenant Governor Guichon would appoint John Horgan as Premier-designate. Frankly, if Premier Clark advised Lieutenant Governor Guichon to dissolve the 41st Legislature after losing a vote of confidence on the Address in Reply when the legislature is only a few days old and when a viable alternative government exists, Lieutenant Governor Guichon would be well within her rights to refuse this advice, which would, in turn, necessitate the resignation or dismissal of Clark (which depends upon her acquiescence or intransigence, as the case may be), and the appointment of John Horgan in her place. Typically, transitions of power between ministries in Canada last for two weeks. So if all goes well, Clark would submit her resignation and become the outgoing premier, act only under the Caretaker Convention during this time, Guichon would name Horgan as Premier-designate, and then, after the transition of power is complete, Guichon would formally appoint Horgan as Premier and swear in the rest of his cabinet at Government House.

Only if a Horgan ministry also failed to gain the confidence of the assembly — in other words, after the two viable options for Premier and government have been exhausted — should Lieutenant Governor Guichon grant Horgan a dissolution of the 41st Legislature.

On 30 May 2017, Premier Clark made a statement which supported my aforesaid description of how these constitutional events should unfold. She remarked:

Should my government not meet the test of confidence in the House — which I think is likely — then she [Lieutenant Governor Judith Guithon] would, I think, go and ask the NDP, as the party which got the second largest number of seats, whether or not they could govern. But she will make that decision. And I won’t be making that request either because the decision is solely hers. [5]

By 28 June, however, Premier Clark overplayed her hand struck a far more belligerent and presumptuous tone, declaring:

I’ve got to be honest, you’ve seen what I’ve seen this last week, it isn’t working. There is no effort on the part of either party to work together. Or to collaborate. This isn’t a working legislature. And I haven’t seen any evidence it could work.

If she [Lieutenant Governor Guichon] asks me about that [whether the NDP can govern with the support of the Greens], that’s the advice I have to give her [that they cannot] because it has to be an honest conversation.[6]

This about-face makes no sense because the New Democratic-Green supply agreement still stands. And it makes even less sense given that the 41st Legislature elected a Liberal MLA as speaker, which reduces the Liberals to 42 MLAs versus 44 New Democrats and Greens. This question of which party will form government for the duration of the 41st Legislature became a foregone conclusion as soon as the assembly elected a Liberal MLA as speaker. Since the legislature succeeded in electing a speaker, the precedent from Newfoundland in 1908-09 showing that the inability to elect a speaker justifies an immediate dissolution, obviously, no longer applies.[7]

Lieutenant Governor Guichon could ask Premier Clark such a question, if she wanted to do so though Clark’s response, as a self-interested politician, is a foregone conclusion. Of course, Clark would denigrate the NDP-Green supply agreement. But even if she does pose such a question, Lieutenant Governor Guichon would also not be bound to accept any statement that Clark offers on the prospective NDP government as constitutionally binding advice — such speculation would be merely informal. Instead, if Guichon were considering refusing Clark’s advice to dissolve, she would ask Horgan himself if he could form a government, and Horgan’s response would factor into her decision whether to reject Clark’s advice.

Frankly, it is not up to Clark to make that determination as to whether a viable alternative government exists within this 41st Legislature; instead, it is up to Lieutenant Governor Guichon herself, at her own discretion. Lieutenant-Governor Guichon alone will decide whether to grant a dissolution under these circumstances, or to refuse Clark’s advice and appoint Horgan in her place. She could choose either option, but the precedents — especially the nearly identical circumstances in Ontario in 1985 — and principles would probably better support appointing Horgan as Premier.[8]

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Endnotes

[1] Robert Macgregor Dawson, “The Constitutional Question,” Dalhousie Review VI, no. 3 (October 1926): 332-337; Eugene Forsey and Graham C. Eglington, The Question of Confidence in Responsible Government (Ottawa: Parliament of Canada, 1985), 16-17.

[2] Sir John George Bourinot, Parliamentary Procedure and Practice, 4th ed. (Montreal: Dawson Brothers Publishing, 1916): 102.

[3] R. Macgregor Dawson, The Government of Canada. 5th ed. (1970), revised by Norman Ward (Toronto: University of Toronto Press, 1947): 175.

[4] Sir John George Bourinot, Parliamentary Procedure and Practice. 1st ed. (Montreal: Dawson Brothers Publishing, 1884): 58.

[5] Justin McElroy, “Christie Clark to Stay On As Premier — For Now,” CBC News, 30 May 2017.

[6] Rob Shaw, “Clark to Tell Lieutenant-Governor That NDP-Green Alliance Cannot Offer Stable Government,” Vancouver Sun, 29 June 2017.

[7] Arthur Berriedale Keith, Responsible Government in the Dominions, Volume 1 (Oxford: Clarendon Press, 1912), 209-211.

[8] In the election of 1985, Premier Frank Millar’s Progressive Conservatives won only a plurality of seats, but Millar chose — as was his right — to meet the new legislature. Meanwhile, David Peterson’s Liberals and Bob Rae’s New Democrats had struck supply agreement, in which the New Democrats agreed to support the Liberals on confidence votes for two years, and the Liberals agreed not to go for an early election for at least two years. The Liberals and New Democrats combined defeated the Conservatives on the Address in Reply to the Speech from the Throne, and Frank Millar resigned as premier. The Lieutenant Governor then appointed David Peterson as Premier. He governed as Premier of a single-party minority government for two years before calling a snap election in 1987, in which his Liberals won a parliamentary majority.

 

 

 

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One Response to Some Discretion: On Dissolution and the Lieutenant Governor

  1. Marie-Maude Tremblay says:

    With due respect, I totally disagree. According to the constitutional convention of responsible government, all royal prerogatives must be exercised under the advice of the provincial or federal prime minister. None can be exercised differently depending on the outcome of some factors like time or the existence of a viable alternative government. Those factors are irrelevant in the application of the convention. They have been cited by some political scholars trying to pervert the fundamental reason of the convention.

    Also the article does not distinguish between the exercise of a royal prerogative (i.e. dissolution) when a government has already obtained the confidence from the elected legislative assembly and when it has not.

    In the case of the Christy Clark’s government, it has not obtained the confidence of the BC legislative assembly yet. If it failed to do so tonight, the prime minister will only have one option and that will be to recommend the appointment of the leader of the party most likely capable to form a viable government.

    This option or this way to proceed is actually identical to what happens when a governing party loses the general election. Few weeks after the general election, the then prime minister resigns and recommends the appointment of the leader of the party most likely capable to form a viable government. In fact, (s)he could in theory convene the provincial parliament but (s)he does not because (s)he is sure of the issue. In the case of Christy Clark, it was reasonable for her to think that the outcome was not decisive. Therefore, if she loses tonight, she will have to act exactly has she would have done before convening the provincial parliament.

I invite reasonable questions and comments; all others will be prorogued or dissolved.

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