The Royal Appeal of a Vice-Regal Decision

Cross-posted from Until Philosophers are Kings…

By: Kevin Gillespie

In December 2009, Prime Minister Stephen Harper—attempting to postpone a confidence vote in the House of Commons—formally requested that the Governor General prorogue Parliament.  After much speculation in the media as to what the GG would decide to do, Michaëlle Jean granted the PM’s request for prorogation.  It has come to light however, that—had the GG refused the prorogation request—Stephen Harper was ready to appeal directly to the Queen.  In a Globe and Mail article from 2010, Harper’s then-director of communications is quoted discussing this possibility: “When… asked what other avenues the Prime Minister was exploring in case the decision had gone against them, he responded: ‘Well, among them, the Queen’” (Ibbitson, 2010).  As it happened, such an outcome was averted when the GG granted the prorogation request; nevertheless, the possibility of the Queen becoming directly involved in Canadian politics had been raised, leading to some interesting constitutional questions. 

This paper will attempt to shed some light on one of these uncertainties in particular: whether or not it is constitutional for the PM to appeal an unfavourable vice-regal decision to the Queen.  There are those who seem to argue—constitutional scholars and former-GGs among them—that the Queen no longer has the constitutional authority to override a vice-regal decision, asserting that any powers that the monarch might have previously held (apart from appointing the GG) have been either transferred to the GG via the Letters Patent of 1947, or subsequently lost through a convention of disuse.  This paper will argue however, that the Letters Patent do not so much transfer, as they do authorize the GG to exercise the Queen’s powers—powers which the Queen still possesses regardless of a tradition of disuse.  This argument is supported by several modern instances in which the Queen has used some of her long-dormant, or never used, powers in the Canadian context (i.e. the opening of Parliament in 1957 & 1977; the appointment of additional senators in 1990; the signing of the Constitution Act, 1982; and, the approval of the Queen Elizabeth II Diamond Jubilee Medal in 2011).  Consequently, this paper concludes that—while it would certainly create new constitutional precedent—it would be constitutionally legitimate for the PM to appeal an unfavourable vice-regal decision directly to the Queen.

Published in the Journal of Canadian Studies, Bruce Hicks writes that “[constitutional] scholars spend a great deal of time hypothesizing democratic justification for powers that they themselves argue have fallen into disuse” (2010).  As a result of a tradition of disuse and encouraged by the Letters Patent of 1947, it has been argued that the Queen has ceded most of her powers to the GG.  In her autobiography,former-GG Adrienne Clarkson makes the claim that “[even] many politicians don’t seem to know that the final authority of the state was transferred from the monarch to the Governor General in the Letters Patent of 1947” (2006, 189-90).  This claim suggests that it would be unconstitutional for the Queen to override a vice-regal decision, and appears to be supported by Andrew Heard—a prominent constitutional scholar.  In his book on constitutional conventions Heard claims that, “[although] the Queen remains Canada’s legal head of state, the only area on which she plays any ongoing role lies in the appointment of the Governor General” (1991, 16).  Here, Heard seems to be suggesting that a constitutional convention of disuse has arisen around the use of the Queen’s powers—a position which falls in line with Clarkson’s own interpretation.

While coming from a former-GG, Clarkson’s interpretation of the Letters Patent is itself questionable for one important reason: nowhere in the document does is say that the powers of the Crown have been transferred to the GG; what it actually says is this:

“And We do hereby authorize and empower Our Governor General, with the advice of Our Privy Council for Canada or of any members thereof or individually, as the case requires, to exercise all powers and authorities lawfully belonging to Us in respect of Canada”;

and referring specifically to the case of prorogation:

“And We do further authorize and empower Our Governor General to exercise all powers lawfully belonging to Us in respect of summoning, proroguing or dissolving the Parliament of Canada.”

It would seem that the GG is simply authorised to exercise most of the Queen’s constitutional powers.  In other words, the Letters Patent do not transfer the Crown’s power to the GG, it just permits the GG to exercise them in the Queen’s name.  For this reason, I find it hard to believe that the Letters Patent prevent the Queen from overturning a decision by the GG—especially if it comes at the request of Her PM.

Similarly, the argument that the Queen’s powers have been lost through a tradition of disuse is debatable.  Bruce Hicks gives one example in which the celebrated constitutional expert Eugene Forsey mistakenly comes to the conclusion that “a convention had emerged preventing the use of… the clause [in the Constitution Act, 1867] that allows the Queen to authorize the appointment of additional senators to break a deadlock between the two chambers of the Canadian Parliament” (2010).  This however turned out not to be the case, when in 1990 Brian Mulroney used this very provision to appoint 8 new senators in order to ensure the passage of his GST bill in the Senate (Plett: 2009).  There have also been several other modern instances in which the Queen has carried out some of her rarely used powers in the Canadian context: In 1957 & 1977 the Queen officially opened Parliament, becoming the first reigning Canadian monarch to read the Speech from the Throne (The Royal Houshold: 2013); in 1982, the Queen proclaimed the newly-patriated Constitution (Historica); and more recently, the Queen has approved the creation of new honours for her Diamond Jubilee (The Governor General of Canada: 2011).  While many of these duties are rarely used, or have traditionally been exercised by the GG, this has clearly not prevented the Queen from their performance.

When combined with the actual text of the Letters Patent, what these examples suggest is that—regardless of a tradition of disuse or performance by the GG—the Queen is still in possession of her constitutional powers and may use them upon the advice of her Canadian PM.  Consequently—while the decision to overturn an unfavourable vice-regal decision would certainly shake up our constitutional system—it seems perfectly reasonable to assume that the PM has the constitutional right to appeal an unfavourable vice-regal decision directly to the Queen.  What the Queen would do in such a situation however, is another matter entirely…

Bibliography

Clarkson, Adrienne. Heart Matters. Toronto: Viking Canada (AHC).  2006. Print.

“Creation of the Diamond Jubilee Medal.” The Governor General of Canada. 2011. Web. 4 Mar. 2011.

Heard, Andrew. Canadian Constitutional Conventions: The Marriage of Law and Politics. Toronto: Oxford University Press, 1991. Print.

Hicks, Bruce M. “The Crown’s ‘Democratic’ Reserve Powers.” Journal of Canadian Studies. 2010. Web. 26 May. 2013.

Ibbitson, John. “Stephen Harper pondered appeal to Queen over prorogation.” The Globe and Mail. 30 Sept. 2010. Web. 26 May. 2013.

Letters Patent Constituting the Office of the Governor General of Canada. 1947. Web. 26 May, 2013.

Plett, Donald N. “About the Senate – Senators”. Donald Neil Plett. 2009. Web. 26 May, 2013.

“The Patriation of the Constitution.” Historica. Web. 27 May, 2013.

The Royal Household. “Queen in Canada.” The Official Website of th British Monarchy. 2013. Web. 26 May, 2013.