Wait, did I give the answer away? Bad headline! Bad!
It’s 2020, and of course the biggest news in Canada is that maybe the current G-G is bad. Not like evilly plotting to overthrow the government or something, just a pain in the ass, not doing the public appearances typically assumed for this officeholder, and maybe a bad boss? I don’t know. I’m not here to prosecute Julie Payette, who unlike me, has gone into space, and indeed, whatever she might be like as the day-to-day occupant of Rideau Hall, I assume she’s still upholding the actual business of the office just fine.
Yet, the question in the headline is not rhetorical. I’ve seen it posted on the Twitter by probably not-crazy people. I’ve had conversations with a clever friend, who was pretty sure the office of G-G could be replaced with a few more rules added to the Canadian constitution. Many people note the numerous countries in the world that have no similar office, and yet are not ungoverned.
I’m not going to regurgitate the Wikipedia articles on Governor-General or Head of State on you. I am going to detail why I think it’s a useful office, as a purely practical function.
First, understand that Westminster Parliaments operate on a basic idea: if you can’t pass laws, you aren’t the government. This is embodied in the principle of the confidence of the house, and in practical terms, if you can’t pass a money bill (notably the budget), you’ve lost confidence. Not all systems of governance work this way. The US is famous for having governmental gridlock, where the President and the Congress can effectively fail to pass legislation of any kind indefinitely, without a constitutional crisis (but do you want government shutdowns? Because that’s how you get government shutdowns!)
In a Westminster Parliament, if a Prime Minister loses a vote of no-confidence in the house, it generally triggers some very specific events. The Prime Minister almost always resigns as a result. The next step is either a general election, or in rare instances, someone else (most likely the leader of the opposition) will convince the G-G that they command a coalition of Members of Parliament willing and able to pass a vote of confidence, and thus should be appointed PM.
And that’s the main job of the G-G: to accept the resignation of Prime Ministers and welcome in new Prime Ministers under fairly straightforward circumstances. In practice, most PMs never let a question of confidence get to the floor of Parliament: the matter is decided in an election, or by the resignation of the current PM, without a vote of confidence.
These are functional responsibilities of the G-G (along with swearing in cabinet ministers, and other ceremonial duties that are settled on the office, but don’t have much practical effect on how Parliament works). And yes, these parts of the job are not only mostly replaceable with a few lines in the Constitution, that’s actually how they work in practice. A Governor-General doesn’t get a choice about accepting the resignation of a Prime Minister, and the matters of when to call an election or offer a chance to form government to an aspiring Prime Minister are usually set out by conventions which leave no room for debate.
Usually.
And that’s the trick. The cases when there are a dispute are cases when it’s very useful to have an office which is regarded as mostly apolitical, and which has extremely specific powers to break dicey constitutional deadlocks in very constrained ways.
The Governor-General’s power, like a lot of powers, also doesn’t need to be exercised because it is so widely accepted. A Prime Minister who tried to defy the will of the G-G would almost certainly have no credibility, partly because the G-G’s only real power is to send the question of legitimacy back to either the Parliament or the electorate.
Maybe just a better rule book? No.
One idea is having slightly more elaborate constitutional rules for succession and confidence matters, secure in the knowledge that such a thing will sort it all out. I’ll only point out that the rules are already well-detailed, elaborately discussed in academic literature, and that any G-G is exquisitely well-advised on these matters. And as a result, crises requiring the explicit intervention of the G-G (because they are denying the will of a sitting PM or ignoring another faction that claims the confidence of Parliament) are incredibly rare. But they exist! And in such cases, the immediate judgment of the G-G has been consistently respected.
Canada’s beloved King-Byng Thing is just such an example. The Liberals controlled a minority government, despite the Conservatives having the plurality of seats. A political crisis ensued, and the PM (King) asked the G-G (Byng) to call an election. Byng believed (and had advised King of such when King formed government) that in such a case the Conservatives needed to be given a chance to form government before an election.
That was it, that was the crisis. Arthur Meighen became Prime Minister only long enough to fail to pass a confidence motion, and then there was an election anyway, and King won more seats and became PM again.
This is the system working as designed. The remarkable thing is, Byng arguably made the wrong decision: Meighen was not able to win confidence, and King’s request for an election was rapidly vindicated, both in the calling and in the result at the ballot box, where the Liberals gained seats.
Indeed, King is often cited as having “run against Byng” in that election, and so be it. Byng wasn’t exactly run out of town, but he packed up and headed back to the UK shortly afterward.
Australia’s remake in 1975, The Dismissal, was more complicated, but featured a similar difference of opinion between PM and G-G. In that case, the result was also an election, and in that case the PM also ran against the G-G, but in that case the PM went down in electoral flames.
In both of these cases, there was an election, and in both cases, the actions of the G-G were a major election issue. Indeed, in both cases the G-G involved left the office in an orderly fashion shortly after, and then left the country. It’s not clear that having a disposable G-G is an asset (the Queen, for example, serves the equivalent function in the UK, but is not disposable), but it doesn’t hurt.
There’s also a third case I can think of, the prorogation crisis of 2008-2009. This time, instead of an election or a change of government, the G-G (Michaëlle Jean) granted the prorogation of Parliament to PM Harper, in a case where he was likely to face a vote of No Confidence if Parliament continued to sit.
The what-ifs in that case are hard to sort out. the PM probably had the right to request prorogation, the opposition coalition was probably on the verge of forming government but…when the Parliament reconvened two months later, the opposition coalition was nonexistent, and the PM passed a budget.
Once again, there was a dicey situation, and while the specific actions of the G-G are debatable, the resolution was a functioning government that commanded the confidence of the House.
Maybe Just Let A Judge Do It? No.
If you were primarily concerned that the G-G is a totally ceremonial role that costs a lot and delivers little value, you could suggest giving the reserve powers to the Chief Justice of the Supreme Court of Canada. Indeed, the CJ is the default substitute G-G, when for whatever reason the G-G is indisposed, or when we’re between G-G appointments.
This is tempting. G-Gs are hardly free. I’ve seen Rideau Hall, it’s quite large, the upkeep is not trivial. On the other hand, I’d suggest the G-G’s office is a rounding error on the total bill for Parliament, never mind the entire federal budget.
Could a judge do this job? I’d rather not find out. I’m not sure SCC judges are under-worked. I’m also acutely aware that our system is predicated on judges having authority to rule on the constitutionality of laws, and the G-G is separately authorized to rule on the constitutionality of specific parliamentary procedures. Rather than dig into the way powers are separated in a Westminster Parliament, I’ll simply say I’m very cautious about upsetting this equilibrium, given the historic precedent that the present system works, and that it doesn’t cost that much.
I also feel like the end game with uniting the Chief Justice and the Governor-General is that the CJ suggests it would be nice to have an official residence at which to receive State visitors, and then suggests they really should have a retinue appropriate to a Head of State, and I think we just invented the Chief Justice moving into Rideau Hall.
Could someone other than the Chief Justice do the job? Yes, that’s the current system. The last four appointees were a CBC personality, another CBC personality, a respectable lawyer, and an astronaut (before that, Elizabeth’s reign saw an uninterrupted sequence of G-Gs who were politicians, diplomats, or both). Even the dubious ones have managed to fulfill the obligations, and because we have a Canadian tradition of swapping G-Gs about every five years, there’s not much temptation for officeholders to regard it as a lifetime job.
Final Thoughts
I would suggest to you that just because the office’s powers are rarely used, doesn’t mean they aren’t important. G-Gs are steeped in tradition, have an honorable history, are crucial in certain types of crises, are not actually seen at their key job very often, and maybe occupied with ceremonial duties more often than their notional real job.
In other words, G-Gs are a lot like fire fighters. And like fire fighters, they don’t spend a lot of time fighting fires, but boy howdy do you want them around if there’s a fire.