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within one month after his resignation does not vacate his seat, unless the ministry to which he belonged has resigned and a new administration has been formed.
It is now the rule that, on a change of ministry, all Resignoutgoing ministers should resign their seats or be removed, as it is not deemed expedient that retiring ministers should retain a seat in the Council as in England, but ex-ministers have a special precedence within the Dominion and are styled "Honourable" for life'.
FUNCTIONS OF THE COUNCIL.
The functions of the Privy Council as regards the GovernorGeneral are governed by two leading ideas.
First: In all prerogative matters and matters in which Imperial interests are concerned, the Governor-General, though bound to pay every consideration to the advice of his Ministers, is not bound to follow it.
Secondly: In all other matters the Governor-General is expected to follow and adopt their advice.
1. As regards Legislation.
(1) Initiation of Legislation. Two classes of legislation Legisla require to be distinguished, (a) Money bills, (b) Ordinary Powers. legislation.
(a) Bills, involving the imposition of a tax or the Money appropriation of the revenues, require to be recommended to the House of Commons by the Governor-General', and in exercising that statutory power the Governor-General adopts the constitutional practice of consulting his ministry.
1 Todd, pp. 42, 231.
(b) Though any bill, except a money bill, may be intro- Other duced into either House by any member, in Canada, as in England, the Executive controls legislation. By the standing
2 B. N. A. Act 1867, s. 54.
orders, Government measures take precedence on certain days and when necessary the Government take the whole time of the House for their own bills. The result is that Government bills have a much better chance of becoming law than have bills of private members. For all Government bills the Ministry is responsible.
(2) Summoning, proroguing, and dissolving Parliament. ing Parlia- The Dominion Parliament is required to meet every year'; in appointing the time of meeting the Governor-General is guided by the advice of his Ministers. The prorogation or dissolution of Parliament being an exercise of prerogative power, the Governor-General is not bound to follow their advice. In discharging the responsibility of deciding in a particular case whether a dissolution should be granted, the Governor of a Colony "will of course pay the greatest attention to any representations that may be made to him by those who at the time are his constitutional advisers: but if he should feel himself bound to take the responsibility of not following his ministers' recommendation there can, I apprehend, be no doubt that both law and practice empower him to do so"."
Previous to the Confederation in 1858 the Governor of the Province of Canada declined to grant a dissolution at the request of the ministry on the grounds that a new election had lately taken place, that some measures of great importance required to be passed, and that an election would be a great inconvenience to the Province. Lord Mulgrave, Governor of Nova Scotia, refused a dissolution in 1860, as he thought it was neither expedient nor for the public convenience that a dissolution should take place the year after a general election*.
1 B. N. A. Act, s. 20.
2 Despatch of Sir M. Hicks Beach to Governor of New Zealand, quoted
in Todd, p. 547.
Ib. p. 537.
3 Todd, p. 528.
(3) Assent to Bills. The position of the Ministry in regard Assent to to the Governor-General's assent to bills has been already referred to. The Governor-General is bound, as representing the Crown, to exercise his own discretion unfettered by any advice he may receive from his Ministers, though in practice he follows such advice.
As regards the Administration.
The Ministry, as we have pointed out, is, unlike the Eng- Adminis lish Cabinet, known to the law. The duty of the Council is Powers. stated in the Act of Union to be to "aid and advise in the government of Canada." It "aids" in the government by each member taking charge of the administration of a department, and it "advises" by suggesting to the GovernorGeneral the course he should pursue under given circum
The Union Act and Instructions specify certain matters Powers of that are to be transacted by the Governor-General in Council General in or after receiving the advice of the Council, viz :—
1. The appointment of Lieutenant-Governors of Provinces1.
2. The exercise of the prerogative of pardon.
3. The exercise of all powers which at the Union were vested in the Governors of the Provinces with the advice of the respective Executive Councils thereof3.
4. The hearing of any Appeal under section 93 regarding the rights and privileges of the Protestant or Roman Catholic minority of the Queen's Subjects in a Province in relation to Education.
1 B. N. A. Act, s. 58.
3 B. N. A. Act, s. 12.
The administrative powers conferred on the Governor in Council by Canadian statutes are very numerous. Such powers are exercised by Orders in Council published in the Canadian Gazette and printed as a rule with the statutes for the year.
2 See ante, p. 170.
In all matters relating to administration, such as routine business, the appointment of officials or the superintendence of state departments, the Governor-General when his concurrence is desired is expected to act on the advice of his Ministers.
3. As regards the Provinces.
The relation of the Privy Council to the Provinces is of and the importance as regards
(1) the appointment and removal of Provincial Governor, and
(2) the disallowance of Provincial bills.
By the B. N. A. Act, s. 58 the Lieutenant-Governors of the Provinces are to be appointed by the Governor-General in Council, but as regards their tenure of office the 59th section states that "a Lieutenant-Governor shall hold office during the pleasure of the Governor-General" without making any reference to the Council, though the cause of his removal is to be communicated to the Senate and House of Commons. The Letellier case, as has been stated, decided that the Governor-General is bound to follow the advice of his ministers as to the removal of a Lieutenant-Governor.
As regards the disallowance of Provincial Acts the effect of sections 56 and 90 is to vest the power of disallowance in the Governor-General in Council. Though in practice the Governor-General invariably decides the allowance or disallowance on the advice of his ministers, the right of acting independently has been claimed for him by at least two Colonial Secretaries. In 1873 the Earl of Kimberley in a despatch referring to the proposed disallowance of certain New Brunswick Acts, said "this is a matter in which you must act on your own individual discretion and on which you cannot be guided by the advice of your responsible ministers." The Earl of Carnarvon, who succeeded Lord Kimberley as Colonial Secretary, took a similar view. The Canadian ministry, on the
other hand, strongly maintained that the power in question was vested in the "Governor-General in Council," and that his ministers were responsible to the Dominion Parliament for the exercise of the power1.
MEETINGS OF THE COUNCIL.
In the early days of responsible government in Canada Meetings the Governor used to debate with his ministers in Council, but this irregular proceeding was soon abandoned and the ministers now discuss all questions of policy in private'. 'The practice in Canada," says Mr Todd3, “for a number of years has been that the business in Council is done in the absence of the Governor. On very exceptional occasions the Governor may preside: but these would occur only at intervals of years and would probably be for the purpose of taking a formal decision on some extraordinary matter and not for deliberation thereon. The mode in which business is done is by report to the Governor of the recommendations of the Council sitting as a Committee, sent to the Governor for his consideration, discussed when necessary between the Governor and the premier and made operative by being marked 'approved' by the Governor."
Ministers are responsible to the Crown and to the Canadian ResponsiParliament to the same extent and in the same manner Council. bility of as English ministers are to the Crown and to the English Parliament. "The responsibility of the administration for all Acts of Government is absolute and unqualified. But it is essentially a responsibility to the legislature and especially to the popular chamber"."
1 For a summary of discussion, see Todd, 335.
2 Todd, p. 37.
4 Todd, p. 39.