Public Law Class at College House

Ever since the possibility of an election under MMP became a reality, New Zealanders have taken a particular interest in the constitutional powers of the Governor-General.  I have talked about it on a number of occasions.  I have usually done so in the context of a broader outline of the threefold role I have, constitutional, ceremonial and community, but I won't inflict all that on you.

Rather, I'll keep to my brief, and talk about the constitutional aspect, which in some ways is the most important, but which in the day-to-day world is definitely subordinate to the community role, which is certainly the most diverse and rewarding aspect of my life.

My constitutional powers are, in the particular respects I will discuss, the same as those of the Queen in the United Kingdom.  Under our Constitution Act 1986, she is the Head of State in New Zealand and the Governor-General as her representative has the delegated authority to exercise her statutory powers in this country.  The Sovereign's prerogative powers are exercisable by the Governor-General by virtue of the Letters Patent of 28 October 1983.  There has been a series of these, formally constituting the office.  It is very doubtful whether the Queen has any residual right to exercise the prerogative powers herself.

There is one significant difference between Her Majesty's terms of employment and mine, however, and it is that I can be sacked — "recalled" is the polite term, but sacked is what it means.  Just as I was appointed by Her Majesty on the advice of the Prime Minister, so can I be recalled on his advice.  My fate can be decided by a telephone call.  There is a good academic argument that the Queen is not bound to accept advice to recall, at least at once, if, for example, the Prime Minister's motive is to clear the way for unconstitutional action.  But I suspect there is little comfort in this.

You will all know that the evolution of our monarchy from absolutism to constitutionalism was achieved by the transfer of prerogative power from the Sovereign to Parliament, its members being the elected representatives of the people.  And where formal powers remained with the Sovereign, the convention grew that they would be exercised only on the advice of Ministers.  That works both ways.  The Sovereign acts in accordance with the will of Parliament (by which I mean whichever party or parties hold the majority of seats) and the responsibility for the Sovereign's acts resides with those Ministers who advised them.  The Sovereign, or in New Zealand the Governor-General, is thus removed from the political playing field.

There are however, certain sovereign powers which remain personal to the monarch or her representative, which need not be exercised in accordance with advice.  These are the reserve powers and there are five of them.  The powers are:

1  to appoint a Prime Minister;

2  to dismiss a Prime Minister;

3  to refuse to dissolve Parliament;

4  to force a dissolution of Parliament; and

5  to refuse assent to legislation.

Except in the case of the first, the exercise of these powers is rare, always controversial, and always necessary only because another participant in the constitutional order has not acted in accordance with the accepted conventions; in other words, in accordance with those clear understandings which circumscribe the exercise of all constitutional power.

The power to appoint a Prime Minister is the one of most practical importance, and I will come back to it in a moment.

The power to refuse assent to legislation may not exist at all — many constitutionalists argue that it does not.  On the other hand, there is a respectable argument that the power is there as a safeguard against unconstitutional legislation. This one hopes is a pretty remote possibility.  I have sometimes wondered what I should do if for some compelling reason I did not believe I should assent.  I think the proper course would be to make it very clear, publicly if need be, that I would resign rather than sign.  The ball would then be back in the politicians' court.  Needless to say, I doubt that I would be put in that position.

The power to dismiss a Prime Minister was of course exercised in Australia 20 years ago; when Mr Gough Whitlam, who did not believe the power existed, found that it did.  The event caused great dissension and controversy in our neighbour, still rife as was apparent when various wakes were held on the 20^th anniversary in November 1995.  The then Governor-General, Sir John Kerr, had a particularly hard time of it.  To cheer me up, the Chief Justice lent me Sir John's autobiography for light summer reading.  I consoled myself with the thought that the particular problem he faced, which arose from the Australian Constitution, could not arise here.

For you may remember that Whitlam had control of the lower house, but that Malcolm Fraser — with support of a minority party — had control of the Senate.  Fraser used his majority there to block supply to the Government.  The Governor-General proposed a dissolution, complete or partial, but Whitlam would not agree.  He was determined to tough it out, hoping Fraser's support would crumble, and planning to run the country on trading bank overdrafts in the meantime, if need be.  Kerr took the view that Whitlam was acting unconstitutionally and dismissed him.  Fraser was appointed in his place, advised and was granted a dissolution, and won a landslide victory in the ensuing election.

It might not be entirely correct to say that the outcome wholly vindicated the Governor-General.  For the reserve powers should not be exercised simply on the basis of the Governor-General's assessment of where public opinion lies.  They should be exercised only as a very last resort.  And that position can only be reached where there has been a failure by others to comply with their conventional obligations.  One of the reasons for the continuing allegations about where fault lay in the Australian crisis is the interconnecting nature of these conventional obligations.  Once one convention is questioned or departed from, it is as if other faultlines emerge elsewhere in the landscape.

In Australia in 1975, several constitutional actors may be said to have been drawn into departing from their accepted roles.  Some writers look to Fraser, saying that he should never have used the Upper House to hold a financial pistol to the head of the government.  Blocking supply, they say, was an unorthodox use of the Senate.  Some look to Whitlam, saying that he should not have held onto office for so long once it was clear he could not obtain supply.  Although he still had the confidence of the Lower House, it is argued that he should have called a partial or a full election to let the people resolve the deadlock.  And some look to Kerr, saying that he acted too soon, or for the wrong motives, or too secretly.  I'm not expressing a view on the merits of the various actors in those events.  The important lesson to be learned is that individual actors in the constitutional process have a responsibility to the process as a whole, and any departure from that responsibility risks damage to the whole process.

The power to refuse a dissolution has been exercised a little more frequently, but can also be hazardous for the Governor-General, as the example of a Canadian Governor-General, Lord Byng, shows.  A Prime Minister is legally entitled to ask for a dissolution and a general election at any time, although there are some conventional restraints on that right, too.  Normally, the Governor-General will accept the Prime Minister's advice to grant a dissolution, but in certain circumstances, he is entitled to refuse.  In the first place, in the words of the Canadian constitutional expert, Senator Eugene Forsey, "if an election gave no party a clear majority and the prime minister asked for a fresh election without even allowing the new Parliament to meet, the Governor General would have to say no.  This is because, if 'parliamentary government' is to mean anything, a newly-elected Parliament must at least be allowed to meet and see whether it can transact public business".  A dissolution may also be refused if the Prime Minister has simply lost the support of his cabinet, or his party, or if an alternative government is available within the existing Parliament.  It is in the assessment of these exceptions to the general rule that the hazard lies.

In Canada in 1926, Prime Minister McKenzie King was defeated in Parliament and advised a dissolution.  Lord Byng was assured by the leader of the opposition, Meighen, that he had the support of a third party, so he could form a viable government.  The Governor-General refused King's advice to dissolve Parliament, McKenzie King then resigned as convention required, whereupon Lord Byng appointed Meighan Prime Minister.  Within a few days however, the third party reneged on its deal, and Meighan was defeated in the House.  Meighan advised a dissolution, which Byng, this time, granted, only to have McKenzie King win a large majority in the following election.

Lord Byng was recalled.  He had made two mistakes.  He had not done his homework in seeking proper evidence for the reliability of the third party.  He should have granted King a dissolution when he asked.  And, when he did not do that, because the incumbent PM is thought to have an advantage in an election, the Governor-General ought to have refused a dissolution to Meighan, re-appointed McKenzie King, and then granted him a dissolution.

In Ireland, the power to refuse a dissolution is the only reserve power left to the President under the Constitution, and only very recently, an interesting situation arose there that could, conceivably, arise here.  It is certainly the least unlikely of the scenarios.  The government led by Albert Reynolds lost its coalition partner, which proceeded to join the opposition party led by John Bruton, giving it the majority Reynolds had had.  Reynolds did not request a dissolution.  It would have been wrong for him to do so.  Instead, and properly, he resigned.  As the need for President Robinson to exercise the reserve power did not arise, Bruton was appointed Prime Minister.  The government changed, quite smoothly, without an election.

An example of a refusal of a dissolution to a Prime Minister who has simply lost personal support comes from South Africa in 1939.  The Prime Minister, General Herzog, wished South Africa to remain neutral through the Second World War, while General Smuts believed South Africa should ally herself with Britain and fight Nazi Germany.  Smuts forced and won a parliamentary vote, but Herzog nonetheless sought a dissolution.  It was refused.  Herzog resigned and Smuts took over.

A forced dissolution is such a rarity that I cannot give you an example of it.  The reason or justification for the power is to prevent constitutional illegality.  But the same end can be achieved in other ways — the dismissal of the Prime Minister for instance, and the appointment of another who advises a dissolution.  Alternatively, there is the refusal of assent to legislation — a course, which, I suspect, and would hope, would lead to the Prime Minister resigning or advising a dissolution.  In either of these ways, the proper result could be achieved:  that result being that the parties are put to the electoral test.

The purpose of the reserve powers may thus be said to be to give the Governor-General a protective constitutional role, to ensure that the last word is with the electorate.  But no sensible politician wishes to antagonise the electorate.  Hence, the Governor-General should be able to sleep soundly in the knowledge that the politicians will observe the constitutional proprieties and the last resort, the reserve powers, will not be called upon.

The very existence of the reserve powers is itself a powerful incentive to constitutional propriety.  They are rather like the razor strop some of our fathers and grandfathers kept in the back cupboard, its presence usually sufficing to ensure that it was not brought out and used.

So, to re-state the constitutional bottom line, as it were, unless something wildly unlikely occurs, it is equally unlikely that I will ever be called upon to employ any of the rarer of the reserve powers.  Government is a process of, and for, political decision-making.  It is not in general the role of the Governor-General to bear anything other than silent witness, to the legitimacy of the government.

Now let me return to the appointment of a Prime Minister.

This was the constitutional matter that was of prime importance to me when I was preparing to take up office as Governor-General in early 1996.  Of course I swotted up on the reserve powers.  But it also seemed prudent to adopt a comparative approach, and obtain a practical understanding of how governments are formed in other countries, particularly those with somewhat similar constitutional arrangements which routinely experience hung Parliaments, because that was a situation which could quite readily have occurred here.  Therefore, immediately before I took up office, I travelled to Ireland and Denmark to examine the operation of relevant powers in those countries.  Others had also been looking to overseas examples to gather information on how these and other matters were handled in countries with proportional representation systems and the results of those efforts were starting to become available.

In Denmark, governments are formed within a few weeks of a general election.  The tradition seems to be of minority governments, which are often coalitions as well.  Apparently the polls close at 8pm, and the results are known by about 11pm.  The process of government formation begins that night, as party leaders debate on television.  The next morning, the Prime Minister sees the Queen.  If the election outcome is unclear, the Prime Minister will advise the Queen to meet with the leaders of all of the parties represented in the new Parliament, in a process known as "the Queen's round".  The Queen meets each of the leaders for about 10 minutes, in order of the size of the party in the House.  The party leaders bring written advice to the Queen on their view of what should now happen.  The advice is simple, even direct.  The typical example, I was told, was along the lines of "We advise the Queen to choose X to form a government".  The advice is also made public immediately after the meeting.

Drawing on the advice, the Queen will then appoint a Royal Investigator, to lead political discussions on the formation of the next government.  This person is usually a leading politician who could well become the next Prime Minister.  The Investigator reports back on the results of the negotiations and provides advice on the next step.  If all is going smoothly, that advice is likely to be to appoint a particular person as Prime Minister.  If not, the advice may be to begin "the Queen's round" again, so that further discussions can be held.

There are several consequences of this approach.  The Queen is seen to be separated from active participation in the political discussions which must take place to form a new government.  And the Queen is seen to be receiving information directly from all of the parties in the House.  The Queen is therefore publicly distanced from the political process, but also — publicly — informed about the outcomes of that process.

In Ireland the situation is different again.  The Constitution gives the President the power to appoint the Prime Minister, "on the nomination of the Dail" (Parliament).  The House meets within a month of the election:  once a Speaker is elected, its first task is to vote on whom to nominate to the President as Prime Minister.  Thus the formal power of appointment still rests with the head of state.  But again the head of state is explicitly distanced from the political negotiation and receives very public and unequivocal advice on its conclusion.  In Ireland however, the advice on whom to appoint is channelled through the Parliament, rather than received directly from the political parties, the Prime Minister, or some appointed intermediary.

There are many other examples.  Whatever the process C and they are all roughly similar C the purpose is to provide unequivocal information on which the head of state or other relevant officer may act, in what may otherwise be volatile and confusing political circumstances.

In all of the countries examined, it is very clear that the real responsibility for forming a government rests with the political parties.  That political parties provide this vital link between the democratic election process and the formation of a government, has long been the case in New Zealand.  MMP has made their importance more apparent.  It is political parties which, through negotiation, must find a viable government in the Parliament.  No-one else can arrive at the solution for them, or impose an outcome on them.

While I was doing my research into these matters, the level of public and media interest in them was growing as the election loomed.  There was much speculation, both informed and uninformed, about the role of the Governor-General in the process, and indeed about what process there might be after the election.

Governors-General do not usually give advance notice of their actions.  But we were in an extraordinary period of change.  As the attention given to the educational role of the Electoral Commission showed, public education was vital if confidence in the electoral and political system was to be maintained.  The participants in the political process would also be assisted if there was at least some common understanding of the basis on which I intended to act.  And of course, there was the perennial refrain of the need for the money markets to be informed and reassured about how this leap into the new era would be resolved.

Therefore, in April last year I gave a speech which was widely reported, in which I outlined in general terms how I saw my role.  I also gave a series of interviews over the following months repeating and clarifying these key points, culminating in my participation in a television documentary which screened very shortly before the date of the election.  The aim was to ensure, so far as possible, that the principles and processes for moving from the election to the formation and appointment of a new government were clear and understood by a sufficient number, so that the focus of public attention could be where it belonged — on the political actors who would be required to negotiate and work together to reach a political resolution.

Overall, my personal assessment is that this aspect of the process went well.  In the period following the election, all the participants demonstrated a clear understanding of their respective roles and the relevant processes.  The media in particular were very clear on election night and over the following weeks on what needed to happen.  There was no media entourage camped outside Government House, waiting for me to emerge and proclaim some magic resolution.  Rather the country witnessed the media day after day camped in the corridors of Parliament, swarming around the politicians when they periodically emerged from their coalition talks.

Through this public speaking and writing I tried, in essence, to make clear a few simple points:

P  The formation of a government is a political decision and must be arrived at by politicians.

P  My task as Governor-General is to ascertain where the support of the House lies.  In an unclear situation, that might require me to communicate with the leaders of all of the parties represented in Parliament.

P  Once political parties have reached an adequate accommodation, and a government is able to be formed or confirmed, the parties could be expected to make that clear by appropriate public announcements of their intentions.  At that point it might be necessary for me to talk with some party leaders.  I would then expect to have sufficient information to be able to appoint a new Prime Minister, if that were required.

P  Throughout this period of negotiation, the incumbent Prime Minister remains in office, governing in accordance with the caretaker convention.  That convention is simply that an outgoing administration acts on the advice of the incoming administration; and where the position is unclear, it takes no major policy decisions without obtaining a clear consensus. 

The second of these points is the nub of the matter.  In a parliamentary democracy, the exercise of my powers must always be governed by the question of where the support of the House lies.  It is this simple principle which provides the answer to those who sometimes suggest that in situations like that encountered by New Zealand after the last election, the head of state should just call on the leader of the largest party to form a government.  Size alone provides no reason to prefer a party if its leader does not appear to have the support of a majority of the House.  It is better to wait for negotiation among the parties to produce a majority.

This principle is also the answer to those who regularly write to Government House suggesting that the Governor-General dismiss the government and call another election, based on perceived public sentiment, dissatisfaction with particular actions, or opinion polls.  To repeat:  in a parliamentary democracy such as ours, the exercise of the powers of my office must always be governed by the question of where the support of the House lies.  If that is unclear, I am dependent on the political parties represented in the House to clarify that support, through political discussion and accommodation.

We all know the outcome.

There are a couple of points about the transition process which may be worth comment. The passage of eight to nine weeks between the election and the conclusion of coalition talks surprised many.  I do not wish to be seen to be offering comment on whether that was necessary or unnecessary.  I had certainly made the point in my public statements that we should not be afraid of some time passing before a new government was formed, and that it was better to take the time to hold considered discussions.  It may be that the novelty of the process for all concerned meant that the process took longer than, or was approached differently from, what might happen in the future.  One should not assume that a New Zealand standard has now been set.  Only time and greater experience will tell us what an "average" period of and process for negotiations in New Zealand will be.

I had also commented on the fact that the requirement for Parliament to meet within approximately eight weeks of the election could act as some sort of incentive for the politicians to reach a resolution.  In the end, it was clear that the meeting of Parliament did operate as an informal deadline for the process.  The Constitution Act 1986 required Parliament to meet no later than Friday 13 December.  As already mentioned, coalition talks concluded on 10 December, and an agreement was signed on 11 December.  The formal Commission Opening of Parliament took place on Thursday 12 December, with the State Opening and the Speech from the Throne the following day.

The timing at the end of the year was unquestionably tight.  This created some practical difficulties.  From my position, the obvious illustration of the awkwardness was the Speech from the Throne, which I am required to deliver on the day of the State Opening.  At a general level, its historical purpose has been to explain the reasons for the calling of Parliament.  But it has traditionally been seen as a vehicle for the government to outline its legislative programme to the Parliament.  The ceremonies which surround the Speech make it clear that it is a government statement, delivered by the Governor-General on the advice of the Prime Minister.

In 1996, it was clear who the new government would be — the coalition agreement had been signed and released on the Wednesday — but it had not assumed office by the time of the State Opening on the Friday.  The content of the Speech was therefore slightly awkward.  But again a practical approach provided the answer.  The incumbent Prime Minister, who was after all to continue in that office, provided the necessary advice to me.  Hansard records that the speech was brief, and described the current political situation and the transition process.  The speech briefly reflected the principles for the incoming government which had been outlined in the coalition agreement.

I make no comment as to whether our recent experiences on these and other points were good or bad.  I merely note that the change to the electoral system has raised and will continue to raise further questions such as these for examination.  These consequential issues are both large and small, practical and symbolic, ranging from the reserve powers, the procedures for opening Parliament, to the minutiae of parliamentary procedures and the budget cycle.  Attention has now been drawn to these various points.  There is also greater awareness of the fact that others organise the same matters quite differently.  Information on overseas systems has become easily accessible.  Debate does not suddenly end, once it has been awoken.  We can expect the process of constitutional debate and change, of which the move to MMP has been a part, to continue for some time yet.

To recall the words of J C Beaglehole, writing more than fifty years ago, the constitution should not be "some silk-wrapped mystery, laid in an Ark of the Covenant round which alone the sleepless priests of the Crown Law Office tread with superstitious awe."  The advent of MMP has dusted off and unwrapped for public inspection some central aspects of our constitution, which in times past have tended to be the preserve of an honoured few.  I hope that I have been able to shed some light on the approach taken to the practical operation of these issues in last year's election, and so remove some of the superstition and awe.