Todd's Generalizations as to the Reserve Powers of Dismissal and Dissolution

THE historical importance of Todd’s conclusions as to the constitutional position of a Colonial Governor is great. His work has played an important role in the development of colonial self-government. From the particular instances which he cites, it is not easy to make any very definite generalizations. But Todd boldly generalized as to the constitutional practice, and his propositions require some attention. They may be stated as follows:

Although Ministers possess the confidence of the popular Chamber, the Governor may decline to act upon their advice

‘if at any time he should see fit to doubt the wisdom or the legality of advice tendered to him, or should, question the motives which have actuated his advisers on any particular occasion—so as to lead him to the conviction that their advice has been prompted by corrupt, partisan, or other unworthy motives, and not by a regard to the honour of the Crown or the welfare and advancement of the community at large.’ ¹

It will be observed that this rule, if acted upon, would almost completely destroy the reality of self-government in a Dominion or Colony. For it would enable the Governor to decline to act upon advice merely because, inter alia, he attributes unworthy motives to those Ministers who hold office. It is clear that no self-respecting Ministers could accept office if such a condition of affairs were to obtain.

If Ministers do not modify or abandon the policy or proceeding disapproved by the Governor, the Governor may dismiss them from office. This

‘reserved right of dismissing a ministry must be determined by himself, with due regard to the gravity of the proceeding, and to the responsibility it would entail upon him to the Crown.’ ²

This proposition is clearly unsound to-day because its validity is bound up with Todd’s first proposition.

The reasons for the Governor’s action should be capable of being explained and justified by an incoming administration to the local Assembly, ¹ such administration being

‘willing to accept entire responsibility to the local parliament for any acts of the governor which have been instrumental in occasioning the resignation or effecting the dismissal of the outgoing Ministry.’ ²

The Governor may insist upon the dissolution of an existing Parliament contrary to the advice of Ministers, if he can procure other Ministers to accept responsibility, and if ‘he has reasonable grounds for believing’ that the appeal to the electorate will result in ‘an approval by the new Assembly of the policy which, in his [i.e. the Governor’s] judgment, rendered it necessary that a dissolution of Parliament should take place’. ³

There is a good deal in the precedents collected by Todd to warrant this statement; but the constitutional position which results is unsatisfactory unless more adequate safeguards attend the Governor’s action.

A Governor has a ‘constitutional discretion’ to decide as to the expediency or otherwise, upon grounds of public policy, of granting a dissolution to a Ministry, but it is not a legitimate use of the power to resort to it when there is no important political question directly in issue, and merely in order to maintain existing Ministers in office. ⁴

Here, again, too much is left to the Governor’s decision upon what are really questions of fact and opinion. What is ‘expedient’? What grounds of ‘public policy’ are to be recognized? Who is to determine the sufficiency of the ‘political question’? Who is to decide the motives of Ministers?

Todd also included in the discretionary powers of the Governor a right to refuse assent to Bills passed by the Legislature. He was of opinion that, even in Britain, ‘it is a fundamental error to suppose that the power of the Crown to reject laws has … ceased to exist’, ¹ merely because the practice of veto has fallen into disuse. And he asserted that the power of a constitutional Governor in a Colony ‘is greater practically than that of the Sovereign’ in England, and that

‘every statesman conversant with colonial politics is aware that in a colony very many occasions will arise where the prerogative of the Crown would need to be exercised under circumstances which would not necessitate, and perhaps would not justify, a similar procedure in England.’ ²