In Canada, Australia, and New Zealand, the MP must take the oath of allegiance in order to take his or her seat in the House and gain the emoluments of the office. I will list the oaths and briefly enumerate some of their implications.
The Constitution Act, 1867 (formerly the British North America Act) includes the parliamentary oath in its Fifth Schedule:
“I A.B. do swear, That I will be faithful and bear true Allegiance to Her Majesty Queen Victoria.” The Commonwealth of Australia Act, 1900 includes similar language, but adds the clause on the succession and an enthusiastic flourish at the end:
“I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. SO HELP ME GOD!”
The Ministry of Justice of New Zealand lists the current parliamentary oath of allegiance as defined by the Oath and Declarations Act, 1957. Other than the name of reigning sovereign, it is identical to the Australian oath.
“I, [full name], swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her heirs and successors, according to law. So help me God.”
I haven’t yet found any record of a Canadian MP-elect who refused to take the oath of the sovereign. However, New Zealand presents at least one such example. In July 2011, the Speaker of the New Zealand House of Representatives, Lockwood Smith, ejected Maori MP Hone Harawira from the chamber because he refused to take the oath to the sovereign precisely as stated in the Oath and Declaration Act, 1957. Harawira sought to preface his parliamentary oath with an oath to the Treaty of Waitangi and the people:
“I, Hone Pani Tamati Waka Nene Harawira, swear that I will be faithful and bear true allegiance to Te Tiriti o Waitangi, that I will be honest and forthright in my efforts to advance the rights of the people of Tai Tokerau, that I will do my utmost to help all Maori people become full and proud citizens of this land, and that I will do whatever I can to reduce inequalities in this country, so that all may one day be proud to call Aotearoa home.”
Two weeks later, Hone Harawira took the standard oath, and Speaker Smith allowed him to take his seat. However, Harawira clearly took the oath in bad faith because he told the media “before the ceremony [that] he did not find it difficult to swear an oath he did not believe in, comparing the task to having to wear a suit at Parliament.” The idea of taking an oath in bad faith is a contradiction in terms: an oath presumes acting in good faith, that one will act in order to uphold that oath to the best of his ability. So how do we square this circle? How does Harawira justify his blatant hypocrisy? These circumstances pose some very difficult philosophical and political questions to which I don’t have the answers.
The Parliament of Canada has also bore witness to such blatant hypocrisy. In my project on the evolution of loyal opposition in the Westminster system, I argued that the Bloc Quebecois was prima facie a disloyal opposition because that party contradicts the definition of loyal opposition: opposition to the government’s policies but loyalty to the Crown (and therefore to the country). I then mused that the Bloc MPs must have crossed their fingers when they swore allegiance to the sovereign and the Crown of Canada in their parliamentary oaths, because someone who advocates for the secession of a province so that it can become a new, independent republic clearly never intended to uphold that oath and therefore took it in bad faith. In 1990, Gilles Duceppe himself rationalized his cognitive dissonance by dismissing the parliamentary oath to the sovereign as a mere formality: “I mean, it’s a formality, a technicality, just like Labour has been doing for years in the British Parliament, even if half of them are asking for the abolition of the monarchy.” (Hat-tip to Nick MacDonald for finding this little gem!)
“The House of Commons has the power to expel or otherwise discipline Members who contravene the oath. There do not appear to be any precedents for use of this power, however, and, given the general vagueness of the concept, considerable difficulties would seem to lie in the way of establishing the validity of allegations of contravention.”
This matter falls under parliamentary privilege.
I only used the crossing of fingers as a metaphor in order to demonstrate that the Bloc MPs had acted in bad faith. Interestingly, the New Zealand House of Representatives also offers a literal precedent: “In 1994, Tau Henare MP noted that he had crossed his fingers when he took his oath of allegiance as a member of Parliament, and that his allegiance was primarily to New Zealand as a country.” Prima facie, this MP also acted in bad faith by swearing an oath that he never intended to fulfill or uphold in any way.
The Ministry of Justice of New Zealand also reported that “in 1999, Hon Margaret Wilson, in her maiden speech, called for Members of Parliament to replace their oath of allegiance to the Queen with a pledge of loyalty to the New Zealand people.” (Margaret Wilson served as Speaker of the House of Representatives). I disagree with this argument because it misrepresents the nature of the Westminster system. Legal sovereignty lies in the Crown-in-Parliament, not in the people, even though they may act as what Dicey called “the political sovereign.” A pledge of loyalty to the people of New Zealand would conflate these two principles and obscure the source of sovereignty as the Crown of New Zealand, from which all legal and democratic authority flows. This argument applies equally to Australia and Canada.
Columnist Matt McCarten argued that “There’s something surreal when a Maori MP is thrown out for swearing allegiance to Te Tiriti O Waitangi and his electors before promising to be loyal to an English queen.” Like Canadian republicans, McMarten’s argument rests on the fundamental error that Elizabeth II is necessarily “an English queen.” (He should at least have called her a “British queen”!) Elizabeth II is the Queen of the United Kingdom of Great Britain and Northern Ireland, but she’s also the Queen of New Zealand – and MPs in the New Zealand House of Representatives pledge allegiance to Elizabeth II in her capacity as Queen of New Zealand. To be fair to McCarten, the wording of the oath should clearly acknowledge this difference.
Canada, Australia, and New Zealand should ideally amend their parliamentary oaths – but in order to emphasize that their respective crowns rather than to some anti-historical republican alternative. For instance, Canada’s oath should read:
“I, [full name], swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her heirs and successors, according to law. So help me God.”
The insertion of the constitutionally correct phrase “Queen of Canada” (and “Queen of Australia” and “Queen of New Zealand”) would serve both to emphasize that the oath refers to the Maple Crown and not to the British Crown and to educate republicans who always seem to conflate the British Crown with the Maple Crown! Unfortunately, an amendment to this oath would probably require the use of the 7/50 formula because it applies not only to the Parliament of Canada but also to all the provincial legislative assemblies. Australia’s constitution only includes one amending formula (a referendum that must receive the support of the majority of Australians from a majority of the States); given the volatility of republicanism there, this minor amendment would only stoke the fires of republican protest. New Zealand, however, being a unitary state with a unicameral parliament, could easily change its oath by amending the Oath and Declaration Act.
This analysis leaves many questions open for further study, and I will explore the implications of oath, breach of oath, and parliamentary privilege with respect to my project on loyal opposition in the Westminster system and the 35th Parliament of Canada.