"UNCHARTERED WATERS" FOR THE GOVERNOR GENERAL

UNCLAS OTTAWA 001511 SIPDIS SENSITIVE E.O. 12958: N/A TAGS: PGOV CA SUBJECT: "UNCHARTERED WATERS" FOR THE GOVERNOR GENERAL REF: OTTAWA 1507 ¶1. (SBU) Summary: The usual ceremonial role of a Governor General may slip into a grey constitutional zone as she faces an imminent decision on a possible new federal election, prorogation of Parliament, or even formation of a new coalition government. While Governors General in Canada have almost always followed the advice of their prime ministers, theoretically the Governor General could exercise unwritten vice-regal "reserve powers" and make an independent decision that flies in the face of what Prime Minister Stephen Harper requests. Constitutional experts are divided, but agree that the Crown in Canada is possibly entering "unchartered waters." End Summary. BROAD POWERS, THEORETICALLY -------------- ¶2. (SBU) The Canadian Governor General plays primarily a ceremonial role. However, in this constitutional monarchy, the Crown retains the right to be consulted, to advise, and to warn. As Queen Elizabeth II's representative, the Governor General theoretically possesses rarely used but possibly significant "reserve" or prerogative powers. These vice-regal powers, called the "conventions of the Constitution," derive from the Constitution Act of 1867, which gave Canada a "constitution similar to that of the United Kingdom." The conventions evolved from unwritten British parliamentary custom and precedent; experts have described them as "the residue of discretionary or arbitrary authority, which at any given time is left in the hands of the Crown" and which potentially include a significant degree of subjectivity. ¶3. (U) There are three main reserve powers: to summon, prorogue, and dissolve Parliament; to dismiss a Prime Minister; and, to delay or refuse royal assent to legislation. No Canadian governor general has ever dismissed a prime minister, however. Royal assent has only been withheld once before in Canadian history, but only regarding provincial legislation in Alberta in the 1930s. ¶4. (U) The Governor General's primary duties are to ensure that Canada has a stable and functioning government at all times and to act in the best interests of Canada. In a minority government like that of the Conservatives under Prime Minister Harper, how to achieve this is governed more by guidelines than by hard rules. By custom, the Governor General is expected to follow the advice of a sitting Prime Minister. If the Governor General refuses that advice, a prime minister theoretically has no alternative but to resign. Guidelines set down in 1950 by Sir Alan Lascelles, then-secretary to King George VI, advise that no "wise Sovereign" [or vice-regal representative] would deny a prime minister's request to dissolve Parliament unless "(1) the existing Parliament was still vital, viable and capable of doing its job; (2) a General Election would be detrimental to the national economy; (and) (3) he [the King] could rely on finding another Prime Minister who could carry on his Government, for a reasonable period, with a working majority in the House of Commons." The advice potentially leaves considerable degree of discretion to the sovereign or his or her representative. ¶5. (SBU) Similar discretion applies to the prerogative to prorogue Parliament. Usually a routine request to allow a government to refresh its legislative agenda, prorogation so soon after a federal election would be without precedent in Canada, especially when the second Harper government has not yet even presented any legislation. In the present context, prorogation could effectively be a parliamentary "time-out" to defuse political tension and to delay or Qparliamentary "time-out" to defuse political tension and to delay or avoid a vote of non-confidence. Some experts have argued that this would be undemocratic and an unprecedented mis-use of procedure. Others argued that the Governor General could use this discretion and match such a request with an also unprecedented "qualified prorogation" that would limit the PM's ability to govern until he faced the opposition in the House of Commons. Some have suggested that limits could be similar to a caretaker government during an election campaign, which can conduct only routine business, without the ability to implement new policy. PRECEDENTS -------------- ¶6. (U) The "King-Byng" affair in 1926 helped define vice-regal authority. Then-Governor General Lord Byng denied Liberal then-PM Mackenzie King's request to dissolve Parliament in the face of PM King's likely defeat on a non-confidence vote in the Commons shortly after the September 1925 federal election. Lord Byng invited the leader of the opposition to form a government, which lasted only a few months. King, who won the ensuing election, campaigned on the basis that a governor general must always accept the advice of the prime minister. Subsequent Canadian governors general have allowed elections after short-lived minority governments in 1958 (nine months),1963 (10 months),and 1979 (nine months.) However, to call an election barely two months after a previous election would be unprecedented. COMMENT -------------- ¶7. (SBU) Governor General Michaelle Jean, who returned to Ottawa on December 3, will likely be guided by custom in the present situation, although the complexities of the current impasse (reftel and previous) mean that she may also end up establishing a new precedent for vice-regal authority. Her primary challenge must be to act in the best interest of Canada, while preserving the non-partisan character of her office. WILKINS