On Withholding Royal Assent

No, the Lieutenant Governor won’t withhold royal assent from a bill. Even if you write them a letter or publish an op-ed. Even if you ask them nicely. Even if you cite Bagehot.

Guess what? Neither will the Governor General. Nor will the Queen. It’s not happening. Put the pen down. Step away from the keyboard. You’re embarrassing yourself.

While we’re on the topic, asking the Governor General to find a minister to advise her to exercise the royal prerogative of mercy isn’t appropriate either.

You want someone to exercise the prerogative of mercy? Write to the Prime Minister, the one who is constitutionally responsible for advising the Governor General and accountable to Parliament for all affairs of government, grants of mercy included.

Perhaps a few clarifications are in order.

The Queen and vice-regal representatives exercise their formal authorities on ministerial advice, and in the case of royal assent, arguably on the advice of the legislative house(s).

There are a few cases where the Queen or a vice-regal representative can exercise a degree of discretion when exercising their formal powers.

In the case of the Queen, she might refuse the Prime Minister’s advice to dismiss the Governor General in very extreme cases.  

The Governor General and Lieutenant Governors can refuse a first minister’s request to dissolve the legislature if there’s been an election recently and there’s another ministry that might be able to secure confidence. The Governor General and Lieutenant Governors also have the power to dismiss a first minister involved in criminality or blatantly unconstitutional behaviour. And they could be called upon to exercise some discretion when appointing a new first minister in certain specific circumstances.

A number of Canadian scholars insist that the vice-regals have the discretion to reject a first minister’s advice to prorogue the legislature. This may be more likely in light of the Miller II case in the United Kingdom, but the careful reader will note that the Lady Hale and Lord Reed didn’t say that the Queen had that discretion. The courts, not the Crown, were rightly asked to make the call about the constitutionality of the prorogation.

Ah, but the Constitution Act 1867 allows a Lieutenant Governor to reserve a bill. Lieutenant Governors have used this power before. The Lieutenant Governor of Alberta highlights the history of this power on their website. It’s on the website! What more proof do we need that a Lieutenant Governor has this authority?

The Lieutenant Governor’s formal reservation power reflects the Governor General’s authority to do the same for federal legislation, as per section 57 of the Constitution Act 1867. When you read this section, you may notice that reserved bills are given assent by the Queen-in-Council. What’s the Queen-in-Council? The British Cabinet. Anybody think the Governor General of Canada can still reserve a bill for the British Cabinet’s consideration in 2020? I dunno, seems unlikely.

Section 90 gives the Lieutenant Governor the power to reserve a bill for the Governor General’s consideration. Originally, this was meant to give the federal Cabinet the chance to withhold (or grant) assent to provincial legislation. A few Lieutenant Governors decided to use this power based on their own judgement. This hasn’t happened since 1961, though. You might be able to track down a few contrarian academics who still think the power can be used. Most would argue it’s gone the way of the dodo.

As with the federal provision, reservation at the provincial level is a spent power owing to disuse and constitutional convention. What principle would this constitutional convention be connected with? The contemporary nature of the Canadian federation, for one. Parliamentary democracy would be another. The constitutional norm of the Crown’s neutrality and non-partisanship would be a third. And the separation of powers would properly figure in there, too; again, it’s the courts’ job to rule on the constitutionality of legislation, not the Crown’s.

Leaving reservation aside, what about the Governor General or a Lieutenant Governor withholding assent on the advice of Cabinet or based on their own discretion? Opening the door to a refusal of assent on the advice of ministers would amount to giving the executive a veto over legislation. We might want to think that through, particularly in a minority context, such as the one we currently have in Parliament. The executive already dominates the legislative process. Would it serve Canadian democracy to give the executive power a raw veto over bills? Nope.  

That leaves us with the personal discretion of a Lieutenant Governor. On what ground would a Lieutenant Governor withhold assent to a bill that has been passed by the duly elected members of the legislature? What would give this appointed official the legitimate authority to act contrary to their collective will? Maybe if the members of the legislature realized there was an egregious error in the bill and that was communicated to the Crown. Maybe if a bill was so dangerous and so threatening to rights and liberties that this was the only course of action. But even then, this reasoning rests on the idea that the bill would present such a clear and present danger that the courts wouldn’t have time to intervene. That’s a high bar. Bills that we disagree with or that we have serious misgivings about don’t reach it.  

Letters to the Queen, Governor General, and Lieutenant Governors asking them to exercise powers without advice or contrary to advice seem to be increasingly common. It’s mostly performative. The writers know it’s not going to happen, but it helps draw attention to their cause. But it also feeds ignorance about our constitution and undermines our democratic principles. That doesn’t help anybody.

Stop writing these letters. Please.

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