British and Canadian Experience

with the Royal Prerogative

2010 CanLIIDocs 269

by Bruce M. Hicks

This article looks at the Royal prerogative to prorogue Parliament. It, first,
looks at the British experience and places the personal prerogatives that govern
Parliament in their historical context and, within that context, identifies the
legislative precedents for Parliament placing limits on these prerogatives.
Second, it looks at the Canadian experience, where prime ministers have deviated
from their British colleagues in being adversarial with the head of state over the
use of these powers. It suggests that the difference in political behaviour is the
result of a combination of temporal, cultural and political factors, which have
also resulted in the Canadian Parliament being disinclined to legislate remedies
in the manner the British Parliament did when these powers were abused by the
Crown centuries years ago.

T
he 40th Parliament of Canada was summoned British Historical and Legal Precedent
by Governor General Michaëlle Jean for
The Constitution Act, 1867 authorized that there be
November  18, 2008. Just two weeks after she
“One Parliament for Canada, consisting of the Queen,
opened the first session, facing imminent defeat on a
an Upper House styled the Senate, and the House
motion of non-confidence, the Prime Minister asked
of Commons” thereby establishing a Westminster-
that she prorogue Parliament. This request was
model of executive governance within Parliamentary
granted and defeat on a motion of non-confidence was
supremacy, similar to the then parent apparatus which
avoided.
existed in the United Kingdom.
One year later, on December 30, 2009, the
The preamble to this Constitution also identified its
Prime Minister asked the Governor General to
purpose as the establishment of a “Constitution similar
prorogue Parliament, and again she accepted his
in Principle to that of the United Kingdom”. In other
recommendation. This time the government was not
words, a Constitution based for the most part on Royal
facing a confidence vote, but was facing Parliamentary
prerogative bounded by constitutional convention,
hearings on whether Afghan citizens captured as
statute and common law.
part of the NATO-led mission had been turned over
to local officials with knowledge that they might be Parliament, while structured by a written
tortured. The government argued in this instance ‘constitution’ in Canada, exists, as in the United
that prorogation was necessary to reset the legislative Kingdom, because of the Royal prerogative. It is to
agenda, in general, and Senate committee membership, the Crown’s prerogative to summon Senators that
in particular, since recent retirements had shifted the members of that chamber owe their appointment;
balance of party membership in the Upper Chamber. it is to the Crown’s writ that the Commons owes its
election; and it is by act of the Crown alone that each
Parliament is assembled.
Bruce M. Hicks, an associate with the Canada Research Chair
in Electoral Studies at the Université de Montréal, is currently
In England, the prerogatives that govern Parliament
teaching Canadian politics at Concordia University. emerged as a mechanism for the King to control dissent

18 CANADIAN PARLIAMENTARY REVIEW/SUMMER 2010

among other wielders of military and political power into session when he needed it again, with the same
who, following the invasion of William the Conqueror, members as had met the previous ‘year’. Here again we
quickly emerged as challengers to monarchical see that prorogation, like summoning and dissolution,
claims of imperium, first among the nobility and then was nothing more than a mechanism for the Crown to
from within the church. The decision to convene an avoid accountability and to restrain the legislative and
assembly of barons, prelates and ministers, which in governing impulses of competing political interests.
the 13th Century was dubbed ‘parliament’, was nothing
Henry’s breaking with the Catholic Church and his
more than a political mechanism to mollify challengers
need to establish succession among his children from
to the Crown’s authority.
different spouses laid the foundation for Parliamentary

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Parliament had an undefined membership in its supremacy ironically in the very era when the King is
early incarnations, but in the 14th Century, Edward seen as the closest the British ever had to an absolute
III decided to respond to the weaknesses in his monarchy. While the Tudors had discovered that the
father’s reign and ‘summoned’ specific nobles and Crown in Parliament could be more powerful and
church leaders to the Parliament, thus defining the more legitimate than the Crown acting alone, these
‘aristocracy’. He also added knights of the shire and longer Parliaments, in spite of periodic prorogation,
burgesses to the Parliament, breaking the body into were becoming self-aware. Demands emerged that
two chambers in the process – the bicameral model of they be permitted to deal with matters outside of the
Lords and Commons which exits in the U.K. today. things laid before Parliament by the Queen, including
So the Royal prerogative to ‘summon’ individuals to grievances on behalf of the people.2
Parliament emerged out of the King’s desire to limit and
The most dramatic changes occurred under Charles
control the powerful interests within the country while
I, who tried to rule for 11 years without convening a
still obtaining sufficient support for his governing the
Parliament, and when he finally did summon a Parlia-
kingdom, and in Edward’s case, this specifically meant
ment, he dissolved it within three weeks. Still needing
the raising of arms and money needed to fight the
money, he was forced to summon another Parliament,
Hundred Years War.
and this one forced him to assent to the Dissolution Act
Wanting to keep an eye on the King and the money 1641.3 This Act allowed for the Lord Chancellor or, in
being given to him, Parliaments under Edward III, first his absence, the House of Lords to issue writs of elec-
in 1330 and then again in 1332, enacted legislation that tion for the Commons if the King failed or refused to
required the King to summon a Parliament annually. summon Parliament for at least one session every three
In practice, Parliament was not summoned every years (the session had to last a minimum of 50 days).
year, at least prior to the British civil war, but this This Act also placed a limit on the Royal prerogative to
was nevertheless a statutory requirement enacted by give or withhold Royal assent.4
Parliament that legally bound the Royal prerogatives
Three weeks later, the two Houses of Parliament put
of summoning and dissolution until the 19th century.1
before the King An Act against Dissolving the Long Par-
There were no sessions within these early liament without its own Consent 1641, which did exactly
Parliaments, and thus prorogation did not exist as a what the title states. This provided the legal legitim-
Royal prerogative. Parliament was summoned, dealt acy for the ‘Long Parliament’, which continued to sit
with the business placed before it – primarily the through the civil war, the King’s execution, and was
raising of arms and money – and then was dissolved reconvened at the end of the interregnum so as to main-
by the King, who would summon a new Parliament tain the constitutional continuity needed to restore the
when he next needed ‘supply’. ‘unbroken’ monarchy.5
It was Henry VIII who came up with the clever Upon restoration, Parliament repealed all laws from
innovation of keeping a Parliament whose membership this period in a wave of anti-republican sentiment.
largely agreed with him as a more permanent body, And while Parliament repealed the Dissolution Act,
instead of summoning a new Parliament each ‘year’. Of it subsequently enacted the Triennial Parliaments Act
course keeping a Parliament in session continuously, 16646 to maintain the requirement that Parliament be
even if the membership was positively predisposed convened at least once every three years. Since this
towards the Monarch, was a risky undertaking. law did not have a mechanism by which Parliament
Invariably members would want to propose legislation could summon itself, the restored monarch, Charles II,
of their own. So, around 1530, Henry invented was able to ignore this law to which he had assented
‘prorogation’, whereby he would send the Parliament and govern for the last four years of his reign without
away without dissolving it and then simply call it back a Parliament.

CANADIAN PARLIAMENTARY REVIEW/SUMMER 2010 19

 The Bill of Rights 1688 states that parliaments ought it is noteworthy that in the modern democratic era,
to be held frequently, though this vague wording has British prime ministers and cabinets have been largely
proven unenforceable, and this Act along with the Act respectful of both (i) parliamentary supremacy and
of Settlement 1700 and the Succession to the Crown Act (ii) the independence of the monarch in the exercise
1707 firmly established Parliamentary supremacy by of her personal prerogatives. Even Stanley Baldwin,
the end of the reign of the Stuart line. who presided over the largest single power grab
by any British prime minister, limited his designs
Even though Parliamentary supremacy had been
on the personal prerogatives to simply the right to
established, the continued use by the monarch of
make a personal recommendation to the monarch
Royal prerogative to summon, dissolve and prorogue
on the use of these powers.9 But, as Prime Minister

2010 CanLIIDocs 269

Parliaments he was dissatisfied with made it necessary
Harold Macmillan noted with respect to the power
to occasionally pass legislation to circumscribe these
of dissolution, the Royal prerogatives that manage
personal prerogatives. For example, the Meeting of
Parliament must remain singularly in the hands of Her
Parliament Act 1694 set a maximum duration for a
Majesty and a prime minister should never go beyond
Parliament at three years, as well as restating the
making a recommendation to giving Her Majesty
requirement that a Parliament must be summoned at
‘advice’. “This, the last great prerogative of the Crown,
least once every three years.
must be preserved. It might be of vital importance at
It is noteworthy that during this period, 200 a time of crisis”.10
years after Henry VIII had invented prorogation,
The lesson from British history that Canada should
there continued to be public debate over whether
have taken when it imported the Westminster model
prorogation should be ended and a return to the
and its constitution conventions in 1867 was that the
legislative requirement that the King summon a new
Royal prerogatives that manage Parliament can be
Parliament every year. This debate became even
used to advantage the Crown and, thus, in the spirit
more fevered when the Hanoverian George I, and his
of democracy the access of the PM to them should be
Whig supporters in Parliament, claimed that elections
circumspect for, when they are misused, Parliament
every three years were too costly and introduced the
can legislate limits.
Septennial Act 1715, thereby increasing the length of a
single Parliament to seven years to deny Tories who The Canadian Responsible Government Model
supported the Stuarts electoral opportunities. For their
The Canadian experience has been much different
part, the Chartists argued that these longer Parliaments
than the British experience. Where England went
enabled the Crown to manipulating elections using
through the early battles between the Crown and
money, something they felt would not be as easy to do
Parliament over the personal prerogatives, in Canada
with annual elections.7
these powers have been a battle between prime
More recently, the Meeting of Parliament Act 1797 ministers and governors general. This reason for this
ordered that 14 days needed to elapse from the difference can best be understood as a combination of
proclamation of a new Parliament until it meets so that temporal, cultural and political factors.
the Crown could not quickly convene a Parliament
From a temporal perspective, Canada’s much shorter
before all the results could be certified and the members
history has meant that the struggle for democracy has
could travel to London. This law also allowed for
been about governance and not about representation.
Parliament to meet in the event of the demise of the
This defines all aspects of its constitution. As noted
Crown (otherwise Parliament would dissolve upon the
in the previous section, the British experienced battles
death of the monarch who summed it). Prorogation
between the Crown and Parliament and it learned from
was also altered to ensure members had adequate time
these battles. The historical memory that most defines
to learn of any change to the start date of a session
their democracy is the product of a civil war, a glorious
via the Prorogation Act 1867 and the Representation of
revolution and the establishment of Parliamentary
the People Act 1918. The Parliament Act 1911 split the
supremacy. This principle, in turn, informs every
difference between triennial and septennial and set
aspect of its constitution.
the maximum lengths for a Parliament at five years,
whereupon it is automatically dissolved without the What was occurring at the time of Canada’s
need for any Royal action.8 formation was the devolution of Royal prerogatives
in favour of ministers who would be responsible for
While the British experience has been one
them before Parliament, i.e. responsible government.
of necessary Parliamentary limits on the Royal
In the colonies of British North America, the settlers
prerogatives in response to heavy handed monarchs,

20 CANADIAN PARLIAMENTARY REVIEW/SUMMER 2010

had brought with them a British constitutional right he noted that Canadian politics was more partisan
to an elected assembly. Not only was a struggle for and Canadian politicians more self-serving than their
representation not central to the colonial experience, British cousins, a defect he was optimistic he and
the electoral franchise in colonized and conquered future governors would correct. What would become
Canada had made its assemblies more ‘democratic’ a culture of prime ministerial and gubernatorial
than those in free and democratic imperial England conflict was evident in the very manner responsible
due to the abundance of land in the new territories government was proposed for the colony from the
and the property requirement that was believed to be outset.
necessary for voting. So the struggle for democracy
Canada’s first prime minister, John A. Macdonald,
in Canada was taking decision making away from

2010 CanLIIDocs 269

had his recommendation that Parliament be
the representative of the imperial government, the
prorogued challenged by the governor general in
governor, and vesting it in the hands of Canadian
1873. As Macdonald was trying to avoid facing a
politicians.
Parliament that was upset about the Pacific Railway
It is no coincidence that the milestone achievement Scandal, Lord Dufferin insisted that Parliament only
of responsible government in 1848 continues to this be prorogued for 10 weeks during which time a Royal
day to be acknowledged in Canada the way that Commission would inquire into the scandal and report
Parliamentary supremacy is honoured in England. upon Parliament’s return, which it did, resulting in
These two separate, and sometimes contradictory, Macdonald’s resignation. When Macdonald returned
ideals in turn inform each of the political systems. to power, we see the first order-in-council passed by a
Canadian Cabinet, in 1896 (well before Baldwin had
a similar idea in England), proposing that the prime
Put simply, formative historical minister provide recommendations to the Governor
events manifest themselves in the General on a large number of His Excellency’s
institutions they create and thus constitutional prerogatives, including the dissolution
in the political culture that these or convocation of Parliament.
institutions constrain, shape and The third dimension that explains the difference
create. between the way Canadian prime ministers and British
prime ministers have behaved with respect to the
person prerogatives is political. With the emergence
Turning specifically to the cultural dimension, of the Progressives by the 1920s, Canada has become
that British politicians and the British people have a country of effective regional third parties, and thus
a different relationship with their monarch than began a long history of divided parliaments. Shortly
Canadian politicians and people have with their after becoming Prime Minister, realizing that election
governors, and that this would colour the use of Royal timing would be necessary to stave off the loss of his
prerogative, should not be surprising. For millennia, Parliamentary majority, William Lyon Mackenzie King
monarchs have strategically cloaked themselves had the Cabinet pass an order-in-council specifically
in quasi-religious symbols of authority in order to authorizing the prime minister to recommend when
transform themselves into the personification of their Parliament should be dissolved and an election held.
people’s national identity. British politicians of most The election he recommended be called the following
stripes have learned the benefits of cloaking public year kept the Progressives and the Conservatives out of
authority in this same mantle. Prime ministers come power.11 By the following Parliament, Mackenzie King
and go as temporary custodians of deputed power was 23 seats short of a majority. It was this Parliament
while the monarch stays. But this culture of deference which, facing a motion of censure, Mackenzie King
to the symbol of authority does not exist in a colony. tried to get Lord Byng to dissolve, a request that was
denied by the Governor General. The PM even tried
Early colonial governors in Canada were charged
to use an order-in-council passed by the Cabinet, a
with overseeing day-to-day governance. As members
mechanism he had himself tried to eliminate with
of the British aristocracy, they brought both experience
respect to dissolution, to bring added pressure on
and a paternal attitude to the new country along with
Byng; and he tried to convince the Governor General
proconsul powers. For example, in the letter Lord Elgin
to wait for instructions from the British government.
wrote to the British Secretary of State for the Colonies
Byng did not give in, King was forced to resign, and
recommending that the British government grant
Conservative Leader Arthur Meighen became PM.
responsible government to the province of Canada

CANADIAN PARLIAMENTARY REVIEW/SUMMER 2010 21

 As one of Canada’s leading constitutional experts, Over the protest of a number of politicians and
the late Senator Eugene Forsey, points out, the constitutional scholars at the time, provision was
honourable thing – the British thing – for the Canadian placed in the Canadian Charter of Rights and Freedoms
prime minister to have done in these circumstances to set the minimum requirements that no Canadian
would have been to ‘recommend’ immediately Parliament is allowed to run longer than five years,
following the election that Meighen be given an and that Parliament must sit at least once every twelve
opportunity to try to form a government.12 Mackenzie months (s.5).16 The Parliament of Canada Act allows for
King subsequently used the issue to vilify Byng, an Parliament to meet in the event of the demise of the
otherwise popular Governor General, in the next Crown, though it does so while protecting the powers
election and, once re-elected, leverage this issue to of the governor general to prorogue or dissolve

2010 CanLIIDocs 269

force the British to surrender political authority over Parliament.
colonial governors and get the British Parliament to
In 2007, the Canada Elections Act had a requirement
pass the Statute of Westminster effectively granting
for a fixed election date added to it, though it equally
Canada independence.13 Running against a symbol
had a clause saving the personal prerogative over
of colonization had strategic merit. Sir Alan Lacelles,
dissolution, which permitted the PM to by-pass his
personal secretary to the King George VI, would later
own legislative initiative on September 7, 2008 by
bemoan the damage this incident did to the monarchy
recommending that the governor general dissolve the
in Canada and suggest that His Majesty and His
very Parliament that adopted the fixed election date.17
governors general should never refuse a request for
Even in response to the recent prorogations, Parliament
dissolution unless there was clearly a viable alternative
opted not to legislate with respect to the personal
government, in effect reducing the Crown’s discretion
prerogatives, choosing instead to pass a non-binding
over the personal prerogatives.14
resolution on March 17, 2010 that suggests that the
In 1957, as Liberal fortunes were waning after 22 Prime Minister should not ‘advise’(sic) the governor
years of unbroken rule, a Canadian prime minister general to prorogue Parliament for longer than seven
again attempted to increase his personal influence days without a motion from the House. The prime
over the personal prerogatives. Beginning that year, minister should not be advising the governor general
the prime minister’s recommendations to the governor with respect to any of the personal prerogatives,
general began to be submitted outside of even a minute irrespective of the number of days involved.
in the Cabinet record and instead were delivered via
Unlike the British, the Canadian experience has been
a letter which has been given the lofty and entirely
of Canadian prime ministers being confrontational
inappropriate label of an ‘instrument of advice’. As
with governors general in a seemingly increasingly
British Prime Minister Macmillan noted, a prime
successful play for the personal prerogatives, while
minister has “no right to advise a dissolution” as this
the Canadian Parliament remains silent even as these
is a personal prerogative of the monarch.
powers have been used against it.
This change resulted in only one question being
Conclusion
raised by the opposition in the House of Commons,
a question which got the unchallenged response that British scholars have long debated how
Cabinet minutes were not the appropriate ways to constitutional convention might inform and restrain
make recommendations to the Governor General. the personal prerogatives with respect to government
There was no explanation as to why a private letter formation were the British people to begin returning
that would exclude input from other ministers and divided Parliaments.18 In anticipation of the May 6th
which was clearly intentionally mislabelled as ‘advice’ British election, public opinion polls were suggesting
was a superior mechanism. And in 2009, when it was that no political party could win a majority of seats. In
reported in the press that the prime minister had simply Canada this has been the norm in many elections, but
telephoned the governor general to get Parliament in England this is the exception and had not occurred
prorogued not a single question as to process was since 1974, so the pre-election discourse centred on
raised in the House. the potential for a ‘hung’ parliament. How the British
prime minister responded to public and Parliamentary
In fact, in spite of a long history of disagreements
concern is illustrative of the differences between Britain
between prime ministers and governors general, and
and Canada.
a clear and ongoing power grab by the former, the
Canadian Parliament appears to have consciously In advance of the election, Prime Minister Gordon
avoided legislating on the personal prerogative.15 Brown asked the Cabinet Secretary to codify the

22 CANADIAN PARLIAMENTARY REVIEW/SUMMER 2010

unwritten constitutional ‘conventions’ – i.e. the rules of Notes
behaviour accepted as obligatory by all those concerned 1. The act of 1362 was repealed in 1863, and the act of 1330
in the working of the constitution19 – into the Cabinet was repealed in 1881 (44 and 45 Vic, c.59).
Office manual that would then govern the operations
2. See my paper on pro forma bills in vol. 4, issue no.4 (2009)
of the public service. A draft of the relevant section of this Journal.
concerning elections, which includes discussion of
a possible process by which the political parties in 3. These ancient acts did not have a short title, which is
a recent development, so the labels applied are those
the Commons could explore alternative government of popular usage or those granted by Parliament ex
configurations within a ‘hung’ parliament with the post facto. This act is also sometimes referred to as the
help of public servants, was submitted to a select

2010 CanLIIDocs 269

Triennial Act 1641. Until 1962, British Acts of Parliament
committee of Parliament.20 The committee provided are referenced by the year of the reign, monarch and
its recommended changes.21 All political parties made chapter number in the statute book.
public commitments to ensuring that the Queen not 4. The Act required the King to give assent to this
be forced to take sides or be seen in the public’s eyes legislation before Parliament could be dissolved; a
as supporting either the current government or any provision which ensured the law would come into force.
Prior to this point, British monarchs chose whether or
one political party, and to ensuring that Parliament be not to give assent to legislation after Parliament had
given an opportunity to fulfil its role as the ‘electoral been dissolved, free of any Parliamentary oversight,
college’ for the country. including the only real threat that Parliament has over
the executive branch, the withholding of supply
The process offered by both the draft Cabinet Office
manual and the Parliamentary response was about 5. While these laws are often derided by constitutional
scholars for setting the stage for Parliament to wage war
ensuring that Parliament would have sufficient time against the King, they vindicate themselves simply by
to choose a government, that opposition parties would allowing Parliament to restore the monarchy under the
get the necessary support of senior public servants English constitution after the war. It is these laws that
to explore government formation options, including preserved Royal prerogative, rather than extinguished
the possibility of forming a ‘coalition’ government to it. In France, for example, when the King used his
prerogatives of prorogation and dissolution excessively
replace the Brown government, and of ensuring that to try to control the legislature, it simply announced in
the Brown government would remain limited by the 1789 that it was no longer a parliament but a ‘national
‘caretaker’ government limits and therefore not bind assembly’ with joint responsibility to govern and
future governments not just during the election but could not be dissolved without its consent. This led to
until Parliament had an opportunity to express its revolution and the end of the monarchy.
confidence in either that government or in another. 6. It was repealed by 50 & 51 Vic, c.59 as being unnecessary,
due to the subsequent Meeting of Parliament Act 1694.
Not only can one not imagine any Canadian prime
minister committing, in advance of an election, to such 7. See, for example, the speech of Mr. Hutcheson to the
House of Commons during the debate to repeal the
open engagement with the other political parties in Triennial Act [The History and Proceedings of the House of
the hopes of fine tuning constitutional conventions Commons: Volume 9: 1734-1737 (British History Online:
that govern the transition of power out of his hands, www.british-history.ac.uk, 1742, accessed on January
but the Canadian experience is a chronology of prime 29, 2010), p.1-32].
ministers doing the opposite – of PMs, behind closed 8. While a proclamation is not required to dissolve
doors, using the tools of the executive branch to try Parliament at the five year point (the point being five
to exploit ambiguity in constitutional conventions in years to the day of its first meeting after a general
order to hold onto power in the face of not having or election), a proclamation is still required to summon a
new Parliament.
likely being able to win a majority of seats in the House
of Commons. 9. See, for e.g., A. Berriedale Keith, The King, the Constitution
the Empire and Foreign Affairs: Letters and Essays 1936-
Put simply, while Canada and Britain share the 7 (London: Oxford University Press, 1938), p.41. In
same Westminster model of responsible parliamentary addition to a power grab, this change was made due
government, temporal, cultural and political to a misreading of the expert opinion solicited from
the King’s legal advisors concerning the right of an as
circumstances have led to the system being operated yet un-appointed PM to make recommendations or
in Canada as though it is singularly about government, give ‘advice’ to the monarch [Geoffrey Marshall, 986.
whereas in Britain, it remains first and foremost about Constitutional Conventions: The Rules and Forms of Political
parliament. Accountability (Oxford: Clarendon Press, 1986), p.49-51].
10. Harold Macmillan, Riding the Storm 1956-1959 (London:
Macmillan, 1971), p.750.

CANADIAN PARLIAMENTARY REVIEW/SUMMER 2010 23

11. Party loyalties fluctuated in this Parliament, so the 17. Bill C-16, introduced early into Stephen Harper’s first
Liberal claim to have had a majority of seats in the House term as PM, on May 30, 2009, during the 1st Session
of Commons is disputable, but as the Progressives had of the 39th Parliament, entitled An Act to Amend the
no interest in governing, there was no doubt that the Canada Elections Act was intended to illustrate the
King Government had obtained the electoral mandate government’s commitment to democratic reform [it was
to continue in power. given Royal assent on May 3, 2007, and is now SC 2007,
c.10]. At the provincial level, the provinces of British
12. Eugene Forsey, The Royal Power of Dissolution in the Columbia, Ontario and Newfoundland and Labrador
British Commonwealth (Toronto: Oxford University Press, each have fixed election laws that equally save the
1943). lieutenant governors’ power to prorogue and dissolve
13. Ironically, it was Prime Minister Mackenzie King who the legislature, though these have been effective in

2010 CanLIIDocs 269

had recommended the Governor General wait for achieving fixed election dates.
instructions from Britain. Lord Byng’s actions were 18. See, for e.g., Vernon Bogdanor, Multi-Party Politics and
solely as the representative of the Crown and thus they the Constitution (Cambridge: Cambridge University
remain unchanged by the Balfour Decloration or the Press, 1982), ch.5-8; David Butler, Governing Without
Statute of Westminster. a Majority: Dilemmas for Hung Parliaments in Britain
14. John Wheeler-Bennett, George VI: His Life and Reign (London: Collins, 1983); Rodney Brazier, “Choosing a
(London: Macmillan.Wheeler-Bennett 1958), p.774. Prime Minister”, Public Law 395 (1982); and Geoffrey
Marshall, Constitutional Conventions: The Rules and Forms
15. That the Canadian Parliament could legislate with of Political Accountability (Oxford: Oxford University
respect to the personal prerogatives is without Press), pp.33-35.
question. It has legislated with respect to many Royal
prerogatives, particularly those which govern the 19. This is the most accepted definition of a convention,
operations of the executive branch. It has also legislated, authored by Kenneth Clinton Wheare, Modern
albeit marginally, with respect to the Queen by allowing Constitutions (Oxford: Oxford University Press, 1951),
for the abdication of King Edward VIII through the p.179.
Succession to the Throne Act 1937 (1 Geo VI, c.16) and, 20. The chapter, number 6 in the manual, is entitled
in 1952, assigning separate titles for the Queen to use “Elections and Government Formations” and was
in Canada via the Royal Styles and Titles Act (RSC 1985, provided to the ‘Justice Select Committee on the
R-12). While it could not abolish the monarchy or the constitutional processes following a general election’
office of governor general pursuant to s.41(a) of the on February 24, 2010 and is available at http://www.
Constitution Act, 1982, and some might argue it could not cabinetoffice.gov.uk/newsroom/news_stories/100224-
fully extinguish a personal prerogatives pursuant to the election.aspx (accessed on March 29, 2010).
Judicial Committee of the Privy Council decision in Re the
Initiative and Referendum Act, it has the clear authority to 21. The report of the Select Committee on the constitutional
reverse successive Canadian prime ministers’ attempts processes following a general election can be found at
to co-opt these powers and in the process regulate the http://www.parliament.the-stationery-office.co.uk/pa/
circumstances surrounding their operation. cm200910/cmselect/cmjust/396/39604.htm (accessed on
March 29, 2010).
16. Except in a time of war and insurrection as provided for
in s.4.2.

24 CANADIAN PARLIAMENTARY REVIEW/SUMMER 2010