Execute Order 66: The Royal Recommendation


I just stumbled upon something hilarious that combines my geeky interests in Star Wars and British parliamentarism.

In Commonwealth Realms, the government must approve of any and all money bills and confer upon it the Royal Recommendation before parliament can pass them into law. This measure preserves Responsible Government by ensuring that Ministers take responsibility for all spending that parliament grants, and it prevents pork-barrelling and log-rolling that has historically characterized the US Congress and, as Lord Durham noted in his report, the assemblies of the Canadas before the grant of Responsible Government.  Currently, section 54 of the Constitution Act, 1867 codifies the Royal Recommendation as supreme law.

For several decades, the Standing Order of the British House of Commons that mandated that all money bills receive Royal Recommendation was Standing Order 66.

So ministers could have stood up in the Commons and said, “Her Majesty’s Government has executed Order 66”, preferably in a raspy and creepy voice like that of Ian McDiarmid as Emperor Palpatine.

Posted in History of British North America, Satire | Leave a comment

The General Federal Election of 2019 Will Be First-Past-The-Post


omalley-2016-09-electoral-reform

Introduction

Kady O’Malley’s column in the Ottawa Citizen of 27 August 2016, “A Lot Would Have to Happen If There’s A Referendum on Electoral Reform,” contained some bizarre, false premises on the nature of electoral law, from the electoral system itself, to holding a referendum on altering it, to the fixed-date elections law.

While we’re speculating wildly, why assume a referendum would simply be rolled into the campaign already tentatively scheduled to bring Canadians to the polls in October 2019? A stand-alone vote [on a referendum] could be held within six months of the call – next October, let’s say – which should give the electoral agency [Elections Canada] sufficient time to adjust if necessary. If that’s not enough time — well, the fixed election date can be reset on the recommendation of the chief electoral officer, so if voters did opt for change that would require rewiring the mechanics, it could be bumped for up to a year without running afoul of the constitution.

I shall examine these premises in order.

  1. A referendum on electoral reform could be held in October 2018;
  2. That Elections Canada would only require twelve months to organize itself around a new electoral system;
  3. That the Canada Elections Act allows the Chief Electoral Officer to recommend postponing the fixed-date election by up to one year.

Three Stranger Things

First, in principle, a referendum could be held, but at this stage, I doubt that one will be held, if only because a referendum would force the Liberals to take a coherent viewpoint on electoral reform and advocate for one system over another. Thus far, the Prime Minister has signalled his support for Australian-style instant run-off balloting, but the Trudeau II government itself has refused to make a coherent argument and case for any electoral system; instead, Minister Monsef keeps banging on about the inherent virtue of incessant “consultation” — provided that “consultation” does not involve a referendum — and her website states ambiguously that “Federal electoral reform is part of the Government’s commitment to change.” But the Liberals have refused to provide a coherent rationale and argument for “change” because they regard “change” as axiomatically good in an of itself and treat it as a given that does not need to be explained. Cabinet might have to introduce a bill to amend the existing Referendum Act, but under the current legislation, it is the responsibility of Cabinet to trigger a referendum through an order-in-council.

Second, Elections Canada could prepare to administer the next scheduled general election in 2019 under a new electoral system if and only if that new system were the ranked ballot of Australian-style instant run-off balloting precisely because it would not require any constitutional amendment and would keep the boundaries of the existing electoral districts intact. In short, this is because switching to mixed-member proportional representation (which includes a mixture of seats based on larger geographic electoral districts and compensatory party seats divorced from geographic constituencies) or to single transferable vote (which is based on larger multi-member geographic electoral districts) would each require a constitutional amendment and altering the boundaries of electoral districts — a process which would take almost two years. Furthermore, the current wording of section 51(1) of the Constitution Act, 1867 means that the Decennial Census is a necessary condition for redistributing the seats and establishing the electoral boundary commissions, and this mandatory headcount will next occur in 2021. (You can read a more detailed explanation of this argument in my piece in the Macdonald-Laurier Institute’s Inside Policy, or here on Parliamentum).

Third, the Canada Elections Act most certainly does not allow the date of the next scheduled general election to be postponed up to one year on the recommendation of the Chief Electoral Officer! At most, he can recommend that the general election be postponed for two weeks — and even then, only if the original date conflicted with a religious or cultural day of some kind. This is all very obvious upon any reasonable interpretation of a plain reading of section 56.2 of the statute.

Alternate day

 (1) If the Chief Electoral Officer is of the opinion that a Monday that would otherwise be polling day under subsection 56.1(2) is not suitable for that purpose, including by reason of its being in conflict with a day of cultural or religious significance or a provincial or municipal election, the Chief Electoral Officer may choose another day in accordance with subsection (4) and shall recommend to the Governor in Council that polling day be that other day.

(2) If the Chief Electoral Officer recommends an alternate day for a general election in accordance with subsection (1), he or she shall without delay publish in the Canada Gazette notice of the day recommended.

(3) If the Governor in Council accepts the recommendation, the Governor in Council shall make an order to that effect. The order must be published without delay in the Canada Gazette.

(4) The alternate day must be either the Tuesday immediately following the Monday that would otherwise be polling day or the Monday of the following week.

(5) An order under subsection (3) shall not be made after August 1 in the year in which the general election is to be held.

Normally, the election would be held on “the third Monday of October in the fourth calendar year following polling day for the last general election”. However, under section 56.2(1) if this date would otherwise conflict “with a day of cultural or religious significance or a provincial or municipal election”, then the Chief Electoral Officer can recommend that election day occur instead with the “limitation” (as the marginal note for section 56.2(4) says) that “the alternate day must be either the Tuesday immediately following the Monday that would otherwise be polling day or the Monday of the following week.” In other words, election day can only be delayed for either one day or one week. Furthermore, section 56.2(5) adds that if the Governor-in-Council accepts the Chief Electoral Officer’s recommendation, it cannot issue the proclamation permitting this delayed “after August 1 in the year in which the general election is to be held.” Therefore, a delay must be planned at least two and a half months in advance, which would in turn probably exclude, in practice, any reason not already listed in section 56(2).1, like natural disasters, since they tend not to announce themselves 10 weeks in advance. Instead, section 59  of the Canada Elections Act covers this possibility.

59 (1) The Governor in Council may order the withdrawal of a writ for any electoral district for which the Chief Electoral Officer certifies that by reason of a flood, fire or other disaster it is impracticable to carry out the provisions of this Act.
(2) If the Governor in Council orders the withdrawal of a writ, the Chief Electoral Officer shall publish a notice of the withdrawal in the Canada Gazette and issue a new writ ordering an election within three months after publication of the notice.
(3) The day named in the new writ for polling day may not be later than three months after the issue of the new writ.

Essentially, these emergency provisions allow the Governor-in-Council, on the Chief Electoral Officer’s recommendation, to delay the election of members only in the electoral districts affected by a natural disaster like a flood, since it would be unnecessary to delay the entire general election itself.

Conclusion

One of the few concrete effects of the fixed-date election laws in Canada has been to limit the maximum life of a parliament or legislature from five years to somewhere between four and five years. Therefore, section 56.1 of the Canada Elections Act acts as a hard limit for the date of the next election unless parliament decides to amend or repeal the provision and revert back to baseline established in section 50 of the Constitution Act, 1867 and re-affirmed in section 4(1) of the Constitution Act, 1982.  So while delaying the next general election and “bump[ing it] for up to a year” would indeed not  “run afoul of the constitution,” it would violate the Canada Elections Act. As that legislation currently stands, it most certainly cannot do what Kady O’Malley claims.

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Posted in Electoral Reform | Leave a comment

The House of Commons Should Not Authorize Military Deployments


maxime-bernier

On 8 September 2016, Maxime Bernier criticized the Trudeau II government on his official Facebook group for having decided not to put the deployment of the Canadian Armed Forces to UN operations in Africa to a vote in the House of Commons. This misplaced criticism springs from a false premise that holding a vote on despatching the armed forces is axiomatically “democratic” and therefore good. In fact, it contradicts the principles of Responsible Government and the fact that the Canadian Armed Forces, like the civil service, are creatures of the executive accountable to parliament only through Ministers of the Crown. (I went into more detail on this subject in a previous entry, which you can read here).

The Trudeau II government ought not to hold a vote on any military deployments because the authority to despatch troops properly resides in the executive. It is Cabinet that decides to send troops abroad through a variety of executive instruments (records of decision, orders-in-council, etc.), and it is Cabinet that takes responsibility for those policies. In general, defence and foreign affairs fall under the purview of the executive because they are authorities of the Crown. Ultimately, the House of Commons can neither force Cabinet to act militarily nor stop it from acting militarily through a simple vote on a motion. If the Commons wanted to stop Cabinet from deploying troops, it would have to withdraw its confidence from the Government altogether. The Harper government set some bad precedents in this area that should not be followed.

Bernier’s proposal is in fact a bad policy wrapped up in the auspices of democratic symbolism because it would allow the Trudeau II government to launder its responsibility over defence and foreign policy through the House of Commons and avoid taking responsibility for its own decisions. In other words, having the House of Commons vote on military deployments makes the Government less responsible and less accountable — which defeats the purpose of the House of Commons in general and Her Majesty’s Loyal Opposition in particular. Under Responsible Government, Ministers of the Crown are responsible for all acts of the Crown.[1] But when the House of Commons votes on deployments — and ostensibly authorizes them or is perceived as having made the decision or given a mandate itself –, Cabinet can later deflect any questions about its policy and decision by pointing out that the Commons itself supported it and that it does not bear sole responsibility.

This is not merely a theoretical academic exercise; experience bears out this claim. The Harper government put the question of extending the involvement of the Canadian Armed Forces in Afghanistan to a vote twice, once in May 2006, and again in March 2008. In each case, the Harper government sought to exploits divisions within the Liberal Party within a minority parliament and, in essence, dare the Liberal Party to vote against a motion that it could deem a matter of confidence. (Even proponents of holding votes on military deployments acknowledge this).  Phil Lagassé has shown that the Liberals made themselves a less effective official opposition on the issue of war in Afghanistan between 2006 and 2008 precisely because enough Liberal MPs had supported the aforesaid motions.[2]

Maxime Bernier keeps banging on about he “respects the Constitution“, as if libertarians held an ironic monopoly on the subject. By this phrase, he referring to the provisions that relate to the freedom of movement of labour and capital within the federation, and I believe that he’s also applied it to the division of powers between the federal and provincial orders of government laid out in sections 91 and 92 of the Constitution Act, 1867. But the Constitution of Canada includes uncodified conventions of Responsible Government and its separation of powers between the executive and legislature. To “respect the Constitution”, the executive and legislature should stop interfering in each other’s roles and functions. In contrast, the idea that the Commons should authorize military deployments is not a convention; rather, it is a cynical contrivance that governments have — dare I say? — deployed only when convenient and immediately dispensed with when inconvenient.

The Harper government, for instance, opted not to hold a vote in November 2010 because enough Liberals would have voted against it in the hung 40th Parliament to defeat the motion outright, and possibly force the government’s resignation — not because it doesn’t possess the authority to despatch troops without parliamentary approval (it does), but because of the fallout of losing the gambit of putting that decision to an unnecessary and high-profile vote. But, when in the dying days of the 40th Parliament, all parties agreed unanimously to support Canada’s participation in the NATO mission to enforce a no-fly zone in Libya, Harper agreed to hold a vote. And, when their parliamentary majority assured victories during the 41st Parliament, the Harper government opted once again to putting the Canadian Armed Forces’ continuing participation in NATO’s mission in Libya in 2011 and the US-led campaign against ISIS in 2015 to redundant votes that exposed foregone conclusions. When the Prime Minister or Cabinet decides to put its decision to a vote in the Commons only when it knows that it will obtain a majority but refuses to hold a vote when it might lose and not obtain a majority, they are not adhering to any constitutional convention but instead to their own Machiavellian caprice and cynical desire to extract a political advantage.

More fundamentally, Bernier and other proponents of this procedure have failed to explain what goal holding a vote on this decision to deploy the Canadian Armed Forces to UN peace-enforcing operations is designed to achieve and what deficit it is designed to remedy.  If this motion would amount to a vote of confidence, then the Liberal majority will undoubtedly sustain the Trudeau II government, and the vote would be redundant. Alternatively, if it is not a vote of confidence, then it remains entirely a waste of time. Logically, votes on deploying the armed forces should be matters of confidence because they pertain to the expenditure of public funds, since despatching military assets and personnel costs money. But that does not seem to be what Bernier and Ivison are advocating. From what I can gather from John Ivison’s column in The National Post, they want to hold a vote not because it would propose a specific policy outcome (despatching troops or not despatching troops), but simply because holding a vote in the Commons is supposedly democratic.

Yet the Canadian Armed Forces are already involved with the United Nations Mission in South Sudan, and, as this report from The Guardian shows, observing and reporting on this inter-ethnic conflict has become very dangerous — but the House of Commons didn’t hold a vote authorizing or concurring with the Government of Canada’s decision to commit troops there. Bernier and Ivison would probably assert that the Commons should have voted on Canada’s participation in this UN peace-enforcement operation, and I would counter with the fact that the Canadian Armed Forces have been involved in Sudan and South Sudan since 2004 without such a vote merely shows why voting on similar operations now would be entirely redundant and futile, because nothing has prevented the Commons from holding the Ministry to account over its decision to support that UN mission over the last twelve years.

The House of Commons can and should hold the government to account through Question Period, the Standing Committee on National Defence, in take-note debates, and in proceedings on the budget and Estimates. But the Commons should not eagerly infringe upon Cabinet’s legitimate executive authority and its own ability to hold the government’s policies to account. Indeed, since Bernier, Ivison, and the Globe and Mail can’t offer a compelling reason why the Commons should vote on military deployments beyond the presumption that doing so is axiomatically good and democratic, a take-note debate would be best, because the Commons could then discuss the issue without claiming to authorize the Cabinet’s decision.

Minister Sajjan quite rightly pointed out that Cabinet — not the Commons — shall make the decision to deploy the Canadian Armed Forces abroad, whether in UN-sanctioned peace-enforcement operations in Africa in an effort to distance itself from the previous government and bolster Canada’s standing for when a non-permanent seat on the UNSC becomes available, or whatever. Let’s leave that which legitimately belongs to the executive to the executive and stop disrupting the balance of the constitution.

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Notes

[1] Sir John George Bourinot, Parliamentary Procedure and Practice, 4th ed. (Montreal: Dawson Brothers Publishing, 1916): 102.
[2] Philippe Lagassé, “Accountability for National Defence: Ministerial Responsibility, Military Command, and Parliamentary Oversight,” IRPP Study no. 4 (March 2010): 16.

Posted in Cabinet's Powers, Crown (Powers and Office) | 2 Comments

Who Is Canada’s Longest-Serving Prime Minister? It Depends on When “Canada” Began


Parliament of Canada Youth Connection

Introduction

The Parliament of Canada — Youth Connection’s Facebook group asked on 22 June 2016, “Who is Canada’s longest-serving Prime Minister?” and asked users to submit their guesses before confirming the answer in a later post, as Mackenzie King. This question reminded me of an off-hand comment that I had included in my article in The Dorchester Review “1791: The Birth of Canada”, whereby 19th-century historian Alpheus Todd had placed the start of Sir John A. Macdonald’s premiership not in 1867 but in 1864. This in turn raises a broader question for this Canada Day (or Dominion Day, as it was once known), on which we celebrate the 149th anniversary of Confederation — not of “Canada” itself.

So I would ask the question myself: “Who is Canada’s longest-serving prime minister?” The answer depends upon when you believe that “Canada” began. ‎If you dismiss the Upper Canada and Lower Canada (1791-1841) and the United Province of Canada (1841-1867) as irrelevant, then Mackenzie King would indeed fit the bill because he served a total of 21 years as prime minister over three non-consecutive ministries between 1921 and 1947. ‎The sesquicentennial of Confederation is now only one year away. Dismissing all Canadian history that took place before 1867 brings forth other powerful misconceptions, such as the view that 2017 marks the 150th anniversary of “Canada” instead of Confederation, which amended an existing polity but did not create a new one. The historical evidence suggests that you would be wrong to dismiss the other Canadas as irrelevant colonial baggage unworthy of celebration or commemoration. The facts are clear and ought to speak for themselves; since they do not, I shall lend my voice to them in this article.

“Canada” as a Polity

“Canada” as a polity dates back to 1791, not 1867. From 1791 to 1931, first Upper and Lower Canada, then the United Province of Canada, and finally, the Dominion of Canada, were a colony of the Imperial Crown and subject to the jurisdiction of the Westminster Parliament. In other words, Upper Canada and Lower Canada, established by the Westminster Parliament through the Constitutional Act, 1791, are the direct predecessors of the United Province of Canada, which was established by the Westminster Parliament through the Act of Union, 1840 and is in turn the direct predecessor of the Dominion of Canada, which the Westminster Parliament established through the British North America Act, 1867. In contrast, the provinces of Nova Scotia and New Brunswick are the successor polities of the Crown colonies of Nova Scotia and New Brunswick, which, unlike the Canadas, were established by the prerogative authority of the Imperial Crown rather than by statutory authority through the Westminster Parliament.[1] The closest 20th-century equivalent in international law that best describes the relation between these successor Crown colonies would be the concept of “continuator” or “continuing state.”[2] And in other respects, Canada became a successor state to the United Kingdom post-1931 once the Crown of Canada emerged as a separate legal person from the Crown of the United Kingdom and gave Canada its own separate international legal personality.

How the Act of Union and the British North America Act Expressly Codify the Principle of Continuity 

Section 45 (XLV) of the Act of Union, 1840 states that the executive authority, and any instrument promulgated under it, of Upper Canada and Lower Canada shall remain in full force and effect under the United Province of Canada.

[…] all Powers, Authorities, and Functions which […] are vested in or are authorized or required to be exercised by the respective Governors or Lieutenant Governors of the said Provinces […] shall […] be vested in and may be exercised by the Governor of the Province of Canada […].

Section 46 (XLVI) states the same for legislative authority and the body of law in effect for the Canadas shall carry over to the United Province of Canada intact.

[…] all Laws, Statutes, and Ordinances, which at the Time of the Union of the Provinces of Upper Canada and Lower Canada shall be in force within the said Provinces or either of them, or any Part of the said Provinces respectively, shall remain and continue to be of the same Force, Authority, and Effect in those Parts of the Province of Canada which now constitute the said Provinces respectively as if this Act had not been made, and as if the said Two Provinces had not been united as aforesaid […]

Those two sections in the Act of Union, 1840 ensure the continuity of the institutions and authorities established under the Constitutional Act, 1791 and thus transformed Upper Canada and Lower Canada into the United Province of Canada. While the Act of Union, 1840 does not use the word “continue” where the British North America Act does with respect to executive authority, that phrase “shall be vested in” achieves the same outcome. Historian Gary Caldwell has noted, “Historians of the Assembly [of Lower Canada] maintain that it existed between 1840 and 1867 within the Union, the Union being a fusion of both legislatures rather than a new creation.”[2]

The British North America Act, 1867 states this principle of continuity more emphatically and more frequently than does the Act of Union, 1840 with respect to both executive and legislative authorities. Section 9 of the British North America Act, 1867 says, “The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen” – which means that the same executive authority carried over from the United Province of Canada and “continued” uninterrupted to the Dominion of Canada. The same principle applies to section 15 of the Act, which states, “The Command-in-Chief of the Land and Naval Militia, and of all Naval and Military Forces, of and in Canada, is hereby declared to continue and be vested in the Queen.” Sections 41 and 84 bifurcated the United Province of Canada’s existing electoral law and established them as the baseline of electoral law for both the Dominion of Canada and the newly created provinces of Ontario and Quebec, and then allowed the Parliament of Canada or legislatures of those provinces to amend it as they saw fit; in both cases, the British North America Act emphasizes the “continuance of existing election laws.” Sections 64 does for Nova Scotia and New Brunswick what section 9 did for the United Province of Canada. It states:

The Constitution of the Executive Authority in each of the Provinces of Nova Scotia and New Brunswick shall, subject to the Provisions of this Act, continue as it exists at the Union until altered under the Authority of this Act.

Section 88 then codifies the same principle of continuity for the legislatures of Nova Scotia and New Brunswick:

The Constitution of the Legislature of each of the Provinces of Nova Scotia and New Brunswick shall, subject to the Provisions of this Act, continue as it exists at the Union until altered under the Authority of this Act.

The British North America Act then codifies the principle of continuity in several other areas. Section 122 states: “The Customs and Excise Laws of each Province shall, subject to the Provisions of this Act, continue in force until altered by the Parliament of Canada.” Section 129 provides for the “continuance of existing laws, courts, officers, etc.” in Ontario, Quebec, Nova Scotia, and New Brunswick.

Except as otherwise provided by this Act, all Laws in force in Canada, Nova Scotia, or New Brunswick at the Union, and all Courts of Civil and Criminal Jurisdiction, and all legal Commissions, Powers, and Authorities, and all Officers, Judicial, Administrative, and Ministerial, existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made […].

Section 130 pertains to “the transfer of officers to Canada” and meant that any public officer-holder in New Brunswick or Nova Scotia whose duties would, after Confederation, fall under the jurisdiction of the Dominion of Canada, pursuant to section 91, be transferred from the provincial civil service to the Dominion civil service.

Until the Parliament of Canada otherwise provides, all Officers of the several Provinces having Duties to discharge in relation to Matters other than those coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces shall be Officers of Canada, and shall continue to discharge the Duties of their respective Offices under the same Liabilities, Responsibilities, and Penalties as if the Union had not been made.

Section 139 mandated that any proclamation made under the Great Seal of the Province of Canada that was scheduled to enter into force after 1 July 1867 would still enter into force but would apply instead to either the Dominion of Canada (“that Province”), the new Province of Ontario (“Upper Canada”) or to the new Province of Quebec (“Lower Canada”).

Any Proclamation under the Great Seal of the Province of Canada issued before the Union to take effect at a Time which is subsequent to the Union, whether relating to that Province, or to Upper Canada, or to Lower Canada, and the several Matters and Things therein proclaimed, shall be and continue of like Force and Effect as if the Union had not been made. 

Section 139 thus bifurcated executive authority and distributed it to both the Dominion and to new provinces based on the division of powers established under sections 91 and 92. Finally, section 141 states, “The Penitentiary of the Province of Canada shall, until the Parliament of Canada otherwise provides, be and continue the Penitentiary of Ontario and of Quebec.”

The Continuity of the Executive and the Legislature in Practice

The executive and legislative institutions of the United Province of Canada carried over into the Dominion of Canada: the Governor General, Prime Minister, civil service, militia, parliament buildings, and Legislative Council of the United Province of Canada became the Governor General, Prime Minister, civil service, militia, parliament buildings, and Senate of the Dominion of Canada on 1 July 1867.

In practice, this direct continuation of executive authority meant that Governor General Monck and Prime Minister Macdonald transitioned seamlessly from the United Province of Canada to the Dominion of Canada. Macdonald became prime minister of the Dominion of Canada on 1 July 1867, but the first general federal election did not take place until September 1867. Since the United Province of Canada and the Dominion of Canada were a colony of the Imperial Crown, the ultimate source of executive authority — Queen Victoria — remained intact, which in turn allowed the authority delegated to the Governor General, exercised on the advice of the Prime Minister and Cabinet, to remain intact.

The militia and the civil service themselves also carried over. For example, the Geological Survey of Canada was established in 1842 and, as its website says, is celebrating its 175th anniversary in 2017 just as we mark the sesquicentennial of Confederation that same year. The Decennial Census prescribed under section 51(1) of the Constitution Act, 1867 first occurred in 1871 for the Dominion of Canada as a whole because the last decennial census for the United Province of Canada had taken place in 1861. Furthermore, the Canada Gazette‘s — the official publisher of the Government of Canada — extends back not to 1867, but rather to 1841.

The capital of the Province of Canada simply became the capital of the Dominion of Canada, and the edifices on Parliament Hill themselves similarly made the switch, as did the Library of Parliament. The Legislative Councillors from Ontario and Quebec also became the first batch of Senators for Ontario and Quebec. According to ParlInfo, several of the Legislative Councillors from the United Province of Canada were appointed en masse, by proclamation, as the first Senators representing Ontario and Ontario in the 1st Parliament – which is ironic, given that many of them were originally elected as Legislative Councillors representing Canada West and Canada East!

The text of the British North America Act, 1867 leaves no doubt that the Dominion of Canada is the successor state or continuator of the United Province of Canada, just as the text of the Act of Union, 1840 states plainly that the United Province of Canada is the continuator of Upper Canada and Lower Canada. It is an incontrovertible fact.

Some of the constitutional conventions that defined the United Province of Canada merit further explanation here, because, unlike the legal framework and executive and legislative authorities of the polity, they did not survive the transition to the Dominion of Canada. A political culture of consociationalism and elite accommodation between equivalent English- and French-speaking political parties developed in the United Province of Canada and even went so far as to produce a de facto co-premiership, with one English-speaker and one French-speaker heading each Ministry; however, only one of the two formally headed each Ministry as Premier, with the other serving as Deputy Premier.[4] It seems that the tenure of the premier – not the deputy premier, and not the premier and deputy premier jointly – determined the life of the ministry. This virtual co-premiership emerged as the executive counterpart of the legislative Double Majority Convention, whereby the assembly could pass bills only with majorities of MPs from Canada West and Canada East. The Double Majority Convention itself derived from the sectional equality of representation between Canada West and Canada East,  irrespective of population. Between 1841 and 1854, Canada West and Canada East each returned 42 MPs, for an Assembly of 84 MPs; from 1854 to 1867, the Assembly expanded to a total of 130 MPs, with 65 each from Canada West and Canada East.[5] Confederation, federalism, and the principle of representation by population replaced consociationalism and sectional equality and thus rendered both the Double Majority Convention and the co-premiership moot. Both died out immediately upon Confederation.

Conclusion: Macdonald Holds the Record for the Longest Tenure as Prime Minister of “Canada”

Sir John A. Macdonald edges out Mackenzie King as the longest-serving prime minister because what 20th-century historians have defined as his last term as prime minister of the United Province of Canada (1864-1867) blends in seamlessly with his first term as prime minister of the Dominion of Canada (1867-1873). Alpheus Todd – the renowned 19th-century parliamentary scholar who is, crucially, a contemporary of all of these events – also defines Macdonald’s term in office as 1864-1873, not 1867-1873. Macdonald of course went on to serve another term from 1878-1891.

Upon the confederation of the British North American provinces in 1867, Sir John A. Macdonald was appointed Premier (his ministry having already been in existence in the Province of Canada for three years); and he continued as prime minister until November 5, 1873, when the Mackenzie administration was formed. […] In 1878 Sir John A. Macdonald returned to power, bringing with him most of his former colleagues, and remained in office until death removed him on June 6, 1891, having but one change of ministry in twenty-seven years. [6]

In this account, Todd wasn’t even counting Macdonald’s two earlier terms as prime minister before 1864; he also served in this capacity from 1857 to 1862, apart from 4 hilarious days in August 1858 that surrounded the Double Shuffle Incident.

Macdonald King
26 November 1857 to 2 August 1858[7] 29 December 1921 to 28 June 1926
6 August 1858 to 24 May 1862 25 September 1926 to 7 August 1930
30 May 1864 to 5 November 1873 23 October 1935 to 15 November 1948
17 October 1878 to 6 June 1891

Sir John A. Macdonald is the longest-serving first minister of the Crown in Canadian history, having served in that capacity for 22 non-consecutive years (with the 1864 baseline) and nearly 27 years with the 1857 baseline, either of which surpasses Mackenzie King’s non-consecutive tenure of 21 years.

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Endnotes

[1] Janet Ajzenstat, “Celebrating 1791: Two Hundred Years of Representative Government,” Canadian Parliamentary Review (Spring 1991): 26.
[2] Gary Caldwell, “The Quebec Assembly,” The Dorchester Review 6, no.1 (Spring-Summer 2016): 44.
[3] James Crawford, The Creation of States in International Law (Oxford: Clarendon Press, 2006), 667-672.
[4] Christopher Moore, 1867: How the Fathers Made a Deal (Christopher Moore Editorial Limited, 1997).
[5] Suzanne Langevin (ed), La Procédure parlementaire du Québec, 3e édition (Québec: Assemblé national, 2012), 25.
[6] Alpheus Todd, Parliamentary Government in the British Colonies, 2nd Edition (London: Longmans, Green, and Co., 1894), 62-63. In that case, Todd used 1864, and not 1867, as his point of reference, since 1891 minus 27 years is 1864.
[7] Macdonald served as Deputy Premier from 24 May 1856 to 26 November 1857.

Posted in Constitution (Written), History of British North America | Leave a comment

How the Fixed-Term Parliaments Act Complicates Brexit and An Early General Election


In the midst of my presentation to the CSPG's seminar on "the implications of fixed-date elections." Photo credit: Nick MacDonald

In the midst of my presentation to the CSPG’s seminar on “the implications of fixed-date elections.”
Photo credit: Nick MacDonald

Introduction

Various British MPs like Jacob Rees-Mogg and journalists like Peter Hitchens have called for an early general election in the wake of Leave’s victory in the Brexit referendum and Prime Minister Cameron’s announcement that he will resign the premiership by October. But as I shall demonstrate below, holding an early general election is no longer a routine matter because the Prime Minister can no longer make and take responsibility for the decision to dissolve parliament because of the Fixed-Term Parliaments Act, 2011. This new state of affairs in British politics and the implications of this radical and under-appreciated piece of legislation from 2011 will therefore only further complicate the fallout of the Brexit Referendum. 

Jacob Rees-Mogg, Conservative MP and “member for the 18th century”, and Philip Norton, a Conservative lifepeer and Professor of Government at the University of Hull, are amongst the few British parliamentarians who seem to have understood the true ramifications of the Fixed-Term Parliaments Act, 2011. They both voted against the bill in the last parliament and mounted a spirited defence of parliament’s liberties and the proper roles of the legislature and executive. Norton also explained on his blog that an early general election is no longer straight-forward and that the Prime Minister no longer makes that decision.

The Executive No Longer Controls Dissolution At All

I shall state from the outset the most radical and significant attribute of the Fixed-Term Parliaments Act, 2011: it has put the Crown’s prerogative authority over dissolution into abeyance.

The Prime Minister no longer plays any role whatsoever in dissolution, and the Queen no longer promulgates dissolution into force on and in accordance with the Prime Minister’s advice. The Prime Minister of the United Kingdom can no longer call a snap election. The Queen could no longer refuse a Prime Minister’s advice to dissolve parliament under exceptional circumstances because the Prime Minister no longer gives any advice pertaining to dissolution.

In short, the Fixed-Term Parliaments Act, 2011 achieves in the United Kingdom what the proponents of fixed-date election laws in Canada want and mistakenly believe has happened in Canada, at the federal level, and in the provinces that have passed similar laws (all except Nova Scotia).

I have presented twice on the Fixed-Term Parliaments Act, 2011, most recently at the Canadian Study of Parliament Group’s seminar in January 2016. On both occasions, I got the impression that no one in my Canadian audiences had heard of the law and therefore did not appreciate its radicalism and its profound effects on the conduct of Responsible Government.

During that second presentation, I was so tempted to invoke Monty Python’s Dead Parrot Sketch in order to illustrate how executive authority over dissolution is dead. It is no more. It has ceased to be. It is bereft of life. It rests in peace. It has met its maker. This is an ex-prerogative authority of the British Crown! I almost spontaneously walked into that impression during my presentation, and definitely should have run with it, too, but I pulled back from that at the last second because I had already code-swtiched into RP inadvertently elsewhere in my presentation. (Two of my close friends in the audience that day noted how I code-switched a couple of times into an RP accent but thought that few others had noticed it).

Regular Dissolution Pursuant to the Fixed-Term Parliaments Act 

Under the Fixed-Term Parliaments Act, general elections now take place every five years on the first Thursday in May.  The first scheduled election occurred on 7 May 2015, in which the British Conservatives won – much to everyone’s surprise – a parliamentary majority.

While the Queen used to dissolve parliament sometime within its constitutional limit of five years on the advice of the Prime Minister, this new law now ensures that parliament dissolves automatically by efflux of time, without any intervening royal proclamation. However, the law allows for some flexibility in setting the voting day; the Prime Minister may issue a statutory instrument to delay the polling day by not more than two months – but only if the Commons and Lords each pass a resolution approving of the draft of the statutory instrument beforehand.[1]

Curiously, the Act contains a non-derogation clause that preserves the Queen’s power to prorogue on the advice of the prime minister: “This Act does not affect Her Majesty’s power to prorogue Parliament.” The Act also preserves the conventional (rather than statutory) limits on the prerogative of summoning parliament. After the automatic, statutory dissolution of Parliament, Her Majesty-in-Council must issue a proclamation for the summoning of the new parliament, which would convene, by convention, within twelve days after voting day.[2]

Two Procedures for Early Dissolution Pursuant to the Fixed-Term Parliaments Act

In order to preserve the fixed term of the parliament, the law has also radically altered the Confidence Convention. If there was ever any doubt over the veracity of Jonathan Malloy has called “The Responsible Government Approach,” , the Fixed-Term Parliament Act, 2011 shows that when you consciously prune or uproot one part of an organic whole like Responsible Government, which was never designed but which instead evolved practically over time,  you do in fact have to reform or destroy the system root and branch. In an organic system like Responsible Government, all components are, by definition, intertwined with one another and cannot be separated into discrete units.

There is now only one method by which the British House of Commons can withdraw its confidence from the government: it must pass an explicit motion of non-confidence. This means that if the House of Commons votes against an Address in Reply to the Queen’s Speech, a major government bill, or a supply bill, it no longer automatically withdraws its confidence from the government. There is no longer any such concept in the British House of Commons. In addition, the government can no longer declare its bills matters of confidence. Furthermore, the government can no longer interpret losing a vote or losing the ability to control the conduct of business an automatic withdrawal of confidence. In the Westminster Parliament, it is no longer possible for the Commons to withdraw its confidence from the government automatically by voting against key legislation – that’s how radical the Fixed-Term Parliaments Act, 2011 truly is. 

Section 2 of the Fixed-Term Parliaments Act, 2011 also sets out two procedures by which Parliament may dissolve itself before the scheduled elections. The first procedure, set out in section 2(1), does not touch upon whether the Government still commands the confidence of the Commons, and the second procedure, contained in section 2(3), sets out a form of constructive non-confidence.

First, Parliament could pass a motion with a two-thirds super-majority in the form, “That there shall be an early parliamentary general election.” While the dissolution itself would occur pursuant to the vote and without the involvement of the Crown, the Prime Minister would then have to advise the Queen to issue proclamations for the return of writs and the summoning of the next parliament.

Second, the Commons could withdraw its confidence from the Government through a simple majority and properly worded motion, “That this House has no confidence in Her Majesty’s Government.” If an alternative Government cannot gain the support of the Commons within fourteen days through a confirmation vote on the motion, “That this House has confidence in Her Majesty’s Government,” then the Parliament dissolves automatically in order to break the impasse.[3] The defeated government would remain in office but exercise restraint under the caretaker convention during the writ.[4]

Conclusion: Succession Crisis in the Premiership? 

Prime Minister Cameron spoke outside of Number 10 a few hours after Leave won the referendum. Since Cameron had supported the United Kingdom’s Remaining in the European Union, he decided that he could no longer, in good conscience, remain as Prime Minister and carry out a policy that he opposes.

I will do everything I can as Prime Minister to steady the ship over the coming weeks and months, but I do not think it would be right for me to try to be the captain that steers our country to its next destination. This is not a decision I’ve taken lightly. But I do believe it’s in the national interest to have a period of stability, and then the new leadership required.

There is no need for a precise timetable today, but in my view we should aim to have a new prime minister in place by the start of the Conservative Party conference in October. Delivering stability will be important, and I will continue in the post as Prime Minister with my Cabinet for the next three months. 

Thus far, section 2 of the Fixed-Term Parliaments Act has never been put the test, but it almost certainly will be after Cameron resigns the premiership later this year and gives way to a successor – perhaps Boris Johnson – who campaigned for Leave. This new prime minister could then invoke Article 50 of the Treaty of Lisbon and table any necessary legislation before parliament in order to promulgate the United Kingdom’s withdrawal from the European Union into force, since the referendum itself does not promulgate anything into force but merely highlights the popular will.

The procedure under section 2(3) of the Fixed-Term Parliaments Act institutes European-style confirmation voting for mid-parliamentary transitions of power between one prime minister and ministry to another. It also raises significant questions that have thus far gone untested and derogates from the prerogative authority of the Crown to appoint a Prime Minister. The confirmation vote, “That this House has confidence in Her Majesty’s Government” applies after the Commons has already withdrawn its confidence from the previous government under the precisely worded motion stated above – which in turn means that the Queen would have to appoint a prime minister on and in accordance with the advice of the House of Commons. In this manner, the Fixed-Term Parliaments Act’s radicalism extends to regulating the Sovereign’s authority to appoint a Prime Minister, in addition to putting the prerogative authority over dissolution into abeyance and to codifying the old Confidence Convention out of existence.

This in turn raises more questions about prime ministerial succession. Once Cameron resigns and the Conservative Party has elected a new party leader, the Queen would probably appoint that person Prime Minister and Cameron’s successor as First Lord of the Treasury. Since Cameron would not resign because of a vote of non-confidence in the Commons, but instead in effect because of a vote of non-confidence from the British people, the Queen could probably appoint his successor without reference to the Fixed-Term Parliaments Act. However, even if the Fixed-Term Parliaments Act would not, strictly speaking, affect the prime ministerial succession when a prime minister chooses to resign without having first lost a vote of confidence, parliament could then very easily call the Queen’s appointment of the new Conservative Party’s leader into question by invoking the procedure under section 2(1) of the Fixed-Term Parliaments Act and passing a motion on a simple majority “That his House has no confidence in Her Majesty’s government.”

In short, whoever succeeds David Cameron – whether Boris Johnson or someone else – will not be able to hold an early general election at will, because the Fixed-Term Parliaments Act guarantees that only the House of Commons can make that decision.

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[1] United Kingdom. Parliament of the United Kingdom, Fixed-Term Parliaments Act, 2011 (London: Parliamentary Copyright, 2011), 1-4. British statues normally delegate authority to an individual minister rather than to Her Majesty-in-Council, which in practice means the Cabinet acting collectively. In contrast, the Parliament of Canada normally delegates authority to the Governor-in-Council.
[2] United Kingdom. Cabinet Office, The Cabinet Manual: A Guide to Laws, Conventions and the Rules on the Operations of Government. 1st Ed. (London: Crown Copyright, October 2011): 13.
[3] United Kingdom. Parliament of the United Kingdom, Fixed-Term Parliaments Act (London: Parliamentary Copyright, 2011), 1-4.
[4] United Kingdom. Cabinet Office, The Cabinet Manual: A Guide to Laws, Conventions and the Rules on the Operations of Government. 1st Edition. (London: Crown Copyright, October 2011): 17.

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