Parliamentary Decorum and How Canadians Perceive Britons

Posted on 2022/07/15 by J.W.J. Bowden

Earlier this year, I noted that the current Speaker of the British House of Commons, Lindsay Hoyle, does not enforce the Standing Orders properly and allows members to address one another in the second person unchecked, with entire flocks of “yous” flying around the chamber. Sir Keir Starmer and other Labour shadow ministers often address Boris Johnson in the vocative sense as “Prime Minister,” – second-person-adjacent, let’s say – instead of referring to “the Prime Minister” firmly in the third person. Hoyle needs to start enforcing the proper rules after the Commons returns from its summer recess in September.

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Posted in Decorum, Parliament | Leave a comment

My Latest Article in the Journal of Parliamentary and Political Law: How Governor General Lord Aberdeen Reinforced the Caretaker Convention and Dismissed Prime Minister Tupper from Office

Posted on 2022/07/14 by J.W.J. Bowden

I first uncovered the correspondence in which Governor General Lord Aberdeen dismissed Prime Minister Sir Charles Tupper from office in July 1896 all the way back in 2012 while conducting research on something else. The documents have proven more fruitful and given me more ideas than I could ever have imagined at the time. But the material does not end with the correspondence between Aberdeen and Tupper. The Debates in the House of Commons between Tupper, then in opposition, and the new Prime Minister Sir Wilfrid Laurier, provided another fascinating take on these questions.

This latest article draws together all my analyses on this crucial precedent from 1896 with respect to the Caretaker Convention, when Governors General can dismiss Prime Ministers, the manner in which Governors General appoint Prime Ministers, whether Prime Ministers should resign so that the Governor General can appoint the new Prime Minister before a new parliament meets or not, and, more broadly, the nature of constitutional conventions themselves.

Bowden, J.W.J. “The Origins of the Caretaker Convention: When Governor General Lord Aberdeen Dismissed Prime Minister Tupper in 1896.” Journal of Parliamentary and Political Law 16, no. 2 (2022): 391-444.

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Posted in Appointment of PM, Caretaker Convention & Government Formation, Confidence Convention, Constitutional Conventions, Crown (Powers and Office), Governor General, Governor's Discretion | 2 Comments

The Canada Day Specials

Posted on 2022/07/01 by J.W.J. Bowden

I’ve compiled a list of my articles and blogposts pertaining to the history of British North America, which you might find of interest this long weekend.

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Posted in Dominion Day, History of British North America | 1 Comment

Who Decides What the Constitution Is and Says? Quebec Modifies the Text of the Constitution Act, 1867

Posted on 2022/06/29 by J.W.J. Bowden

Introduction

Law 96 has generated controversy and opposition amongst English-speakers in Quebec and, to a lesser extent, in the rest of Canada when the Legislature of Quebec enacted it last week for its provisions on language.

But it contains one other significant innovation which most of English Canada has overlooked. Through Law 96, the Legislature of Quebec enacted a constitutional amendment under the Section 45 Amending Procedure, which allows provincial legislatures to alter their provincial constitutions, and added two new sections directly to the text of the Constitution Act, 1867 as sections 90.1 and 90.2. Section 90 falls under Part V of the Constitution Act, 1867, the section on “Provincial Constitutions.”

As far as I know, provinces have thus far only impliedly repealed or amended provisions in Part V of the Constitution Act, 1867 through organic statutes without necessarily invoking the Section 45 Amending Procedure by name. But Quebec’s legislature for the first time used the Section 45 Procedure to add provisions directly. Furthermore, the Government of Quebec has already updated its consolidation of the Constitution Acts, 1867-1982 to include these new provisions. The federal Department of Justice produced its most recent consolidation of the Constitution Acts, 1867-1982 in 2021. So it will be very interesting to see whether the federal Department of Justice recognises the legitimacy of these amendments when it produces its next consolidation in a few years.

We might no longer even be able to agree on what the Constitution Act, 1867 says.

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Posted in Amending Formulas, Constitution (Written), Indirect Amendment | 2 Comments

The Strange Taboo Against Constitutional Amendment in Canada

Posted on 2022/05/17 by J.W.J. Bowden

Reputedly Unamendable Yet Frequently Amended

The Constitution of Canada has gained a reputation for having become unamendable and ossified since 1992 when Canadians rejected the proposed Charlottetown Accord in a country-wide referendum and brought the era mega-constitutional amendment to a grinding halt. This question consumed Canada from the early 1970s to the early 1990s and scared the generations that went through this trauma. They have ever since resigned themselves to accepting this constitutional paralysis and dare not break this uneasy truce. They often speak of amending the constitution as “Opening the Constitution” with audible capital letters yet in hushed tones, with the obvious allusion to opening Pandora’s Box and unleashing havoc hanging over any such reluctant conversation like the Sword of Damocles. This has become of the most toxic and bizarre taboo of Canadian political culture over the last thirty years, not least because it presents a false narrative which limits the concept of “constitutional amendment” — or the obscene blasphemy of “opening the constitution” — to two of the five amending procedures, as if the other three procedures and the constitutional amendments proimulgated under them didn’t exist and didn’t count for anything. This false, or at least exaggerated, narrative also stifles legitimate debate and makes Canada seem like a less serious country that can’t even pass uncontroversial housekeeping amendments.

While we have thus far fallen short of Unanimity with the failures of the Meech Lake Accord in 1990 and the Charlottetown Accord in 1992, we nevertheless amended the Constitution of Canada under General Amending Procedure once, in 1983,[1] and we have amended it many times under the three other amending procedures contained in Sections 43, 44, and 45 of the Constitution Act, 1982.

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Posted in Amending Formulas, Constitution (Written) | 3 Comments