Article 4 / 11 , Vol 34 No 2 (Summer)

Discretion and the Reserve Powers of the Crown

A recent article by Nicholas MacDonald and James Bowden¹ 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

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Article 3 / 12 , Vol 33 No 2 (Summer)

Minority Government and Constitutional Convention

Four years of minority government have introduced serious strains on Canada’s parliamentary institutions. This article suggests what needs to be done to strengthen parliamentary institutions whether the electorate returns a minority or a majority parliament.

In January 2010 the United Kingdom’s Institute for Government issued a report entitled, Making Minority Government Work. The report aims at preparing the United Kingdom for a minority government that may well result from an election due later this year. The research team who wrote the report visited Westminster parliamentary jurisdictions that have had experience with minority government in recent years: namely Canada, New Zealand and Scotland. Its chapter on Canada is headed “Canada’s Dysfunctional Minority Parliament.” Its message to British parliamentarians is that if you want to learn how not to operate a minority parliament take a good look at Canada.¹

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