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The 2008 prorogation stirred an interesting academic debate: can a Governor General refuse a Prime Minister’s advice to prorogue?
On the ‘no discretion’ to refuse, we had MacDonald and @JWJBowden, who drew on precedents and internal government guidance: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2282759
This is also the view of Brun and Tremblay from Laval.
This is also the view of Brun and Tremblay from Laval.
On the ‘discretion to refuse side’ we had the folks in the Russell and Sossin edited volume, « Parliamentary Democracy in Crisis »: https://utorontopress.com/ca/parliamentary-democracy-in-crisis-4
The discretion side relies on the GG’s discretion to refuse a dissolution and the wider notion of the vice-regal as a guarantor of parliamentary democracy.
My own view is that you can never rule of vice-regal discretion, but that the refusal of advice comes with a consequences, namely the effective dismissal of the first minister.
A widely held view out there is that, except for dissolutions shortly after an election, the Crown won’t refuse advice unless the first minister has lost confidence.
If we extrapolate from that position, I’d argue that refusing advice when confidence hasn’t been lost is tantamount to the Crown saying that the ministry no longer enjoys its confidence or that the Crown suspect the confidence of the legislature has de facto been lost.
Interestingly, the UKSC didn’t question the Queen’s acceptance of advice for a prorogation the court deemed unconstitutional.
Perhaps now that we’ve have governments of both stripes engaging in hardball prorogations, we can have a less passionate academic debate about the matter. *cough*
Someone let me know if they see an editorial cartoon of the PM as a king. This is a key piece in any game of prorogation bingo.
Interestingly, post-Miller 2, perhaps the courts rather than the Crown will be seen as the recourse for objectionable prorogations.
But @pauldalyesq offers us caution here in a Canadian context: https://www.administrativelawmatters.com/blog/2020/08/19/prorogation-constitutional-principles-and-judicial-review/
But @pauldalyesq offers us caution here in a Canadian context: https://www.administrativelawmatters.com/blog/2020/08/19/prorogation-constitutional-principles-and-judicial-review/
To my mind, the best course of action given the amending formula is to build up a practice around short, purposeful prorogations and against long, tactical ones. Over time, that practice could gel into a veritable convention.
