When I first embarked on this constitutional odyssey in 2011, I encountered scholars who propagated a novel constitutional interpretation with no basis in history, nor in the principles of Responsible Government itself, which I call “Reserve Powers Without Consequence”: the notion that the Governor General can reject a prime minister’s constitutional advice and that this extraordinary and rare vice-regal intervention, in turn, entails no consequences and allows the prime minister to carry on in office as if nothing happened until the House of Commons might say otherwise. This is false. And numerous historical precedents — along with the recent case from British Columbia in 2017 — demonstrate the falsity of this notion. I have written on one such case study in my latest piece in The Dorchester Review.
In my other article in this issue of The Dorchester Review, I examined some remarkable primary sources – something which too few political scientists now bother to do – in the form of the written correspondence between Governor General Lord Aberdeen and Prime Minister Sir Charles Tupper in July 1896, shortly after Sir Wilfrid Laurier led the Liberals to win a parliamentary majority. Their correspondence demonstrates a remarkable dialectic on the constitutional conventions of Responsible Government, particularly on when an incumbent prime minister should resign and on what we would now call the Caretaker Convention, and also illustrates how strengthening party discipline after the 1870s in both Canada and the United Kingdom had rendered old practices obsolete. Tupper also writes in his own words — thus putting the principle beyond the doubt of even the most obtuse contemporary political scientists who try to argue the contrary — that the prime minister must offer his resignation when the Governor General refuses to implement his constitutional advice. More remarkable still, both men agreed in September 1896 that their official correspondence be made public and tabled and debated in the House of Commons.
I have uploaded their correspondence as it appears in the Sessional Papers of the House of Commons here, so that you can read what I read.
For example, if, on 4 December 2008, Governor General Michaelle Jean had rejected Prime Minister Stephen Harper’s constitutional advice to prorogue the 1st session of the 40th Parliament, he would have to have tendered his resignation and, in turn, Her Excellency would have needed to appoint a new prime minister – in that case, Stephen Dion as head of a coalition of losing parties. Harper himself must have known and calculated that Jean would have summarily rejected advice to dissolve the 40th Parliament so soon after the election, and quite rightly so; he also knew that no Governor General has ever rejected prime ministerial advice to prorogue parliament in Canadian history.
Recent Canadian precedents have only reinforced this principle. In 2017, Premier Clark in British Columbia advised Lieutenant Governor Guichon to dissolve the new legislature after the new assembly had only sat for a few days and had withdrawn its confidence from the government; the Lieutenant Governor refused to carry out Clark’s constitutional advice and thus forced Clark’s resignation. Tupper’s dismissal in 1896 remains relevant today because the basic principles of Responsible Government and the established constitutional positions of the Governor and First Minister have remained intact, as recent events in the provinces have shown. There are other interesting casestudies which illustrate this point as well, about which I shall devote further articles.
Aberdeen’s dismissal of Tupper in 1896 not only reveals the nature of the constitutional relationship between the Governor General and Prime Minister, but the circumstances surrounding Aberdeen’s refusal to sign off on Tupper’s appointments also show how a Principle of Restraint or Caretaker Convention had already evolved into being by the end of the 19th century. Governor General Lord Aberdeen quashed Tupper’s attempt to stack the Senate in language strikingly similar to how the Privy Council Office defined the Caretaker Convention in 2019. My article also delves into detail on all this.
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