Why Altering the Succession Requires a Constitutional Amendment

Posted on 2013/01/10 by J.W.J. Bowden

The Rules Governing Succession

Will and Kate are expecting their first child in 2013, which has made succession an important political issue in the United Kingdom, and in the 15 other Realms that recognize Elizabeth Windsor as Queen.

In the United Kingdom, succession to the Crown operates on a mixture of the common-law principle of male-preference primogeniture and on statute laws like The Act of Settlement. The Crowns of Canada and the other Realms have inherited both sets of rules.

In November 2011, the Prime Ministers of the 16 Commonwealth Realms agreed in principle that each country should change its succession in two ways. First, male primogeniture would be replaced with equal primogeniture, so that the first-born child rather than the first-born son takes precedence in the line of succession. Currently, younger brothers overtake older sisters. Second, the provision in the Act of Settlement that prohibits marriage to a Catholic would be repealed. However, the statutory requirement that the Sovereign be a Protestant would remain intact.

Unless all 16 Realms pass legislation or constitutional amendments that implement the same basic rules on succession, the Personal Union of these 16 Crowns will break sometime after William’s reign. For instance, if the Duke and Duchess of Cambridge have a daughter first followed by a son, the older daughter would become Queen of the United Kingdom, while the younger son would become King of any other Realm that kept the unreformed rules of succession.

The British Cabinet Office reports that the Governments of the 15 other Realms had transmitted their official approval in principle to these changes by 2 December 2012, and the Cameron government then tabled the Succession to the Crown Bill on 13 December 2012. The British House of Commons Library indicated the Harper government’s position as of 19 December 2012: “that section 41 is not engaged by the proposed changes” and that the Parliament of Canada alone would pass legislation that assents to the British bill, as per the preamble of the Statute of Westminster. The Privy Council Office since confirmed on 3 January 2013 that the forthcoming Canadian bill will entail “no constitutional implications” and that it would merely “signal Parliament’s agreement” to the British bill.

In that case,, the Harper government’s bill would probably be unconstitutional and would certainly weaken the Crown over the long term. Since the Patriation of the Constitution in 1982, any alteration to the succession to the Crown of Canada requires a constitution amendment under s. 41(a), the “office of Queen,” the unanimity formula. Further, the preamble of the Statute of Westminster has become defunct in principle and was never a legally binding operative provision.

Why the Corporation Sole of the Crown Incorporates Succession

As Industry Canada explains, “a corporation sole creates a corporation out of an office. Once the corporation is established, there is no distinction between the [office-holder] and the office itself.” The office and office-holder become fused in law because a corporation sole includes only one share-holder.

The Crown of Canada is a corporation sole and thus a legal person. The Crown is the office, and the Queen (or King) is the office-holder; they are inseparable in law. The Crown therefore cannot even exist without a King or Queen, which is why hereditary succession occurs automatically, as prescribed by law. As Industry Canada also shows, the automatic hereditary succession makes possible the transfer of all properties of the Crown from one Sovereign to another, and thus the continuity of the State: “The office holder holds all property of the corporation in the name of the corporation, and may pass it on to the next office holder without the need for the property to change hands.”

The law only distinguishes between the legal person, the Crown and Queen, and the natural person, Elizabeth Windsor. For instance, the Crown-Queen of the United Kingdom can hold property like Buckingham Palace, which will automatically demise to the successor to the throne, while Elizabeth Windsor may hold personal properties like Balmoral, which change hands subject to her personal will.

The Crown as corporation sole also makes the “Personal Union” of the 16 Commonwealth Realms possible: 16 legal persons are embodied by the same natural person. Elizabeth Windsor is thus, separately, the Queen of the United Kingdom, the Queen of Canada, and the Queen of 14 other Realms. In this sense, there are 16 Queen Elizabeths but only one Elizabeth Windsor. In 1867, there was only one Crown, as the preamble of the Constitution Act, 1867 indicates. But by the Statute of Westminster of 1931, the original British Crown had divided and formed the Personal Union, which originally consisted of 7 and now stands at 16.

The Crown as corporation sole directly pertains to the succession to that office. We must determine whether the rules governing the line of succession form part of the “Office of the Queen” under s.41(a) of the Constitution Act, 1982. Since the Crown is a corporation sole, succession must necessarily form part of the “office of Queen.” In corporations aggregate (more than one share-holder), the composition of the board of directors and the method of selecting or removing those directors are laid out in the constitution of the corporation. The law requires such an internal constitution as a necessary condition of incorporation.  These constitutions form the essence of the corporation and its legal personhood.  Many corporations aggregate even refer to managing the turnover of directors of the board as “succession planning”.

For the corporation sole of the Crowns of the United Kingdom and Canada, the Act of Settlement, Bill of Rights, other relevant statutes, and the common-law principles of male-preference primogeniture all serve to regulate the internal constitution of the Crown, which by definition means “Office of the Queen”, and form the rules governing the succession to that Office. This mixture of statute law and common law makes succession to the Crown and the Crown as corporation sole sui generis. However, the Parliament of Canada has explicitly made the Office of the Governor General a corporation sole through the Governor General’s Act.

The Constitution Act, 1982 imposed an external amending formula on future amendments to the internal constitution of the Office of the Queen. By explicitly providing that the “Office of the Queen” could only be altered under the unanimity formula of s.41(a), the Constitution mandates that any changes to the Crown, including its constitutionalized powers and succession, obtain the consent of each of the ten provincial legislative assemblies, the House of Commons, and the Senate.

The British Succession to the Crown Bill would supersede the common-law principle of male-preference primogeniture and replace it with a new statutory provision on equal primogeniture. The reformed law will thus recognize the first-born child rather than the first-born son. It also amends the Treason Act, 1351, the Bill of Rights, 1689, the Act of Settlement, 1701, the Royal Marriages Act, 1772, and the Regency Act, 1937. In order to maintain the Personal Union, the other 15 Realms would have to pass legislation or constitutional amendments to the same effect as the British bill.

Why the Precedent from the Abdication Crisis of 1936 No Longer Applies

The Abdication Crisis of 1936 provides the closest precedent to the current situation, but not one that Canada could follow today. In December 1936, the King government asked that the Westminster Parliament legislate for Canada in the bill that confirmed Edward VIII’s abdication and George VI’s accession to the throne. The Parliament of Canada gave its assent retroactively through a law passed in March 1937, because it had been adjourned the previous December. The King government therefore violated the preamble of the Statute of Westminster, which calls for the assent of the Dominion’s Parliament, but conformed to the operative provision of section 4, which only called for the assent of the Dominion in general.

The Harper government’s plan that the Parliament of Canada “signals its agreement” to the British bill mimics the procedure of 1936 and implies that the British parliament can still legislate for Canada. But this method would only have worked between 1931 and 1982. It also relies on a defunct and inoperative clause in the preamble of the Statute of Westminster: “any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom.” (Even in 1936, the King government did not follow it). This clause helped interpret section 4 of the Statute of Westminster, and only made sense in conjunction with that section, which allowed the British Parliament to legislate for a Dominion upon its request and with its consent.

The Patriation of our Constitution in 1982 abolished this old arrangement by establishing the exhaustive set of five constitutional amending formulas in Part V of the Constitution Act, 1982. The Constitution Acts incorporated an amended version of the Statute of Westminster that saw the repeal of section 4 and section 7(1). Since 1982, only the Parliament of Canada has been able to legislate for Canada, so the Parliament of Canada no longer merely “signals its agreement” to a British bill. In 2013, Canada must alter the rules governing the succession to the Crown of Canada pursuant to its own Constitution.

How The Harper Government’s Bill Would Threaten the Crown of Canada

The Harper government probably wants to avoid creating controversy over these technical amendments to the rules that govern succession to the throne. In the short term, a bill passed by the Parliament of Canada alone seems desirable because it would prevent one provincial assembly from vetoing a constitutional amendment under the unanimity formula of s.41(a).

But whether such an amendment passed or failed, the Crown of Canada would retain its position in the Constitution. Canada is an independent, sovereign country and could break with the Personal Union. If the amendment failed, the status quo would prevail, and the Personal Union would not risk breaking apart until after the reign of William. If the amendment passed, the Crown of Canada would remain part of the Personal Union and retain its overall centrality within the Constitution.

Over the long term, the Harper government’s approach would pose an existential threat to the Crown of Canada in at least two ways. First, if succession to the throne does not fall under the Constitution of Canada, then the rules governing succession immediately become subject to the Charter, which exposes the Protestant succession, or even the hereditary principle itself, to litigation. Second, it will only lend legislative credibility to the republican motif that Canada is a “colony ruled by a British monarch” and that the British can dictate our legislation.

In 2003, the Superior Court of Justice of Ontario dealt precisely with this issue in the O’Donohue case. Justice Rouleau noted that Ontario had incorporated the Act of Settlement, and therefore the succession, into its provincial law by 1897; he also ruled that the Act of Settlement forms part of the Constitution of Canada. His ruling suggests that the Harper government’s plan would be unconstitutional.

The Government should follow a constitutionally consistent approach to altering succession, even though it will take more time, in order to protect the Crown’s central place in the Constitution.

James W.J. Bowden is an M.A. Candidate at the University of Ottawa. He blogs regularly at www.parliamentum.org.

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Posted in Corporation Sole, Crown (Powers and Office), Succession (Sovereign) | Tagged , , | 28 Comments

A Law Can Be Repealed When Parliament Is Prorogued? Delegated Legislation and The Separation of Powers in Ontario

Posted on 2013/01/04 by J.W.J. Bowden

UPDATE: This post now forms the basis of an article in the Journal of Parliamentary and Political Law, “A Statute Can Be Repealed When Parliament Is Prorogued?”

Introduction

For a brief few minutes on January 3rd, I thought that the Minister of Education of Ontario, Laurel Broten, had inadvertently revealed that Premier McGuinty would advise the Lieutenant Governor to recall the legislature by the end of January 2013 in order to secure the repeal of the Putting Students First Act. After all, the Premier would have to advise the Lieutenant Governor to summon the 2nd session of the 40th Legislature (thus terminating the intersession of this prorogation) in order to repeal the Act. And only Parliament itself can repeal a law (or so I thought).

CTV News quoted Minister Broten and added that the repeal would come before the end of this month:

Given that the Putting Students First Act was only ever intended as a one-time measure by this government, it is important as a sign of good faith and our commitment to future negations that the act be repealed.

Rather than stumbling upon the latest development in the McGuinty Prorogation of 2012, I had in fact discovered a peculiar (and perhaps unconstitutional) form of delegated legislation.

On January 2nd, the McGuinty Government made Ontario Regulation 2/13, which imposed a contract on the teachers’ unions under the authority of the Putting Students First Act and made it retroactive to September 1st, 2012. One January 3rd, Minister Brotel announced that the McGuinty Government intended to repeal the Act. On January 23rd, the McGuinty Government repealed the Putting Students First Act.

Under the principles of statute law, the repeal of an Act of Parliament automatically nullifies all the regulations, the “secondary legislation,” made pursuant to that Act, the “primary legislation.” Therefore, I can only presume that the principles of contract law ensure that the contract with the teachers’ unions itself still stands despite the repeal of the law, and that the law would treat the regulation promulgating the contract into force separate from the legal validity of the contract itself. In this entry, I will thus highlight two constitutional problems with the Putting Students First Act and its repeal by Cabinet.

Two Major Problems With the Putting Students First Act

The Putting Students First Act presents two problems, and is probably unconstitutional.

The Limits of Legislative Sovereignty within the Constitution of Canada

First, the Act surrenders an essential component of parliament’s law-making authority to the executive and thus probably violates the Supreme Court of Canada’s doctrine of the separation of powers across our “four branches” of government.

In other words, the Constitution of Canada can protect Parliament from itself in some cases. Unlike in the United Kingdom or New Zealand, the written constitutions in Canada and Australia ensure that their parliaments do not enjoy unfettered supremacy to legislate in all matters. In the United Kingdom and New Zealand, the constitution is, rather tautologically, what Parliament says it is. And Parliament can always repeal or amend previous statues, and thus change the uncodified constitution. But in Canada and Australia, all components of the system of government must obey the constitution.

In 1993, Chief Justice McLaughlin first articulated the Supreme Court’s new doctrine on the “four branches of government” under the Constitution of Canada: the Crown (Queen and Governors), the Cabinet, the legislature, and the courts.[1] McLaughlin added, “It is fundamental to the working of government as a whole that all these parts play their proper role.  It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.”

In principle, Parliament should not delegate to Cabinet the power to repeal legislation; in practice, it certainly cannot delegate such an inherent and fundamental legislative power through ambiguous and imprecise wording.

When Delegated Legislation Becomes Abdicating Legislation

Second, even if section 20 did conform to the Constitution of Canada, section 22 presents a significant problem of manner and form because it does not delegate parliament’s authority to Cabinet precisely. This ambiguous and imprecise wording caused the McGuinty government to exceed the confines of this section through the proclamation of 12 September 2012. The Supreme Court stated in 1918 that, “the Parliament of Canada can validly delegate but cannot abandon its Legislative powers.”[2] The Chief Justice of the era ruled in the same case:

Parliament cannot, indeed, abdicate its functions, but within reasonable limits at any rate it can delegate its powers to the executive government. Such powers must necessarily be subject to determination at any time by Parliament, and needless to say the acts of the executive, under its delegated authority, must fall within the ambit of the legislative pronouncement by which its authority is measured.[3]

Through delegated legislation, Parliament grants Cabinet (formally rendered as the Governor or Governor-in-Council in most Acts) the authority to pass statutory instruments pursuant to the Act. Cabinet passes such regulations by Order-in-Council or proclamation in order to enforce or clarify provisions of the Act. Many bills also contain a provision that allows the Governor-in-Council to promulgate an Act into force of law on some date after Royal Assent. (If the bill does not include such a provision, then it enters into force as soon as the Governor gives it Royal Assent). Occasionally, Parliament incorporates a “sun-set clause” into an Act, which specifies that certain provisions of the Act will automatically cease to exist on a given date, without any intervention on the part of the Governor-in-Council.

But the Putting Students First Act contains an innovation distinct from the above three. In this case, the legislature delegated the Governor-in-Council not only the routine authority to promulgate legislation into force upon a date of its choice, but also the extraordinary authority to repeal the entire Act itself! In other words, the legislature made this law, and has allowed Cabinet to unmake it at its discretion.

Section 20 of the Putting Students First Act declares, “This Act is repealed,” while section 22 states that “This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.” These two provisions contradict one another, but the proclamation published in the Ontario Gazette reveals how the McGuinty Government interpreted this extraordinary provision. On 12 September 2012, the Lieutenant Governor promulgated sections 1 to 19 and 21 into force but left section 20 inactive, on and in accordance with the advice of Cabinet. (The Lieutenant Governor had given the bill Royal Assent on 11 September 2012). As Minister Brotel indicated, Cabinet may now repeal the entirety of the Putting Students First Act by issuing a proclamation that promulgates section 20 into force.

However, section 22 means that the Lieutenant Governor can only promulgate the entire Act into force by proclamation; it does not give the Lieutenant Governor the authority to promulgate only specific sections of the Act into force through separate proclamations. The proper interpretation and implementation of section 22 would also include section 20, and thus promulgating the entire Act into force would simultaneously and paradoxically result in its repeal. This is what the McGuinty Government tried so assiduously to avoid.

The proclamation of 12 September 2012 thus exceeded the authority that Parliament delegated the Governor-in-Council through the Putting Students First Act, which did not allow the executive to promulgate only certain sections of the Act into force through separate proclamations on different dates. At the very least, section 22 should have delegated Cabinet the power to promulgate section 20 through a separate Order-in-Council.

Proper Format for Primary Legislation and Proclamations

The Parliament of Canada often passes acts that contain specific and precise provisions allowing the Governor-in-Council to promulgate identified sections through various separate proclamations. The Jobs, Growth and Prosperity Act of 2012 includes several sections on “coming into force.”

Section 115 of the Act says:

(1) Sections 68 to 85, 89, 90, 92 to 97 and 99 to 114 come into force on a day to be fixed by order of the Governor in Council.
(2) Sections 86 to 88, 91 and 98 come into force on a day or days to be fixed by order of the Governor in Council.

The Governor-in-Council may issue various proclamations that promulgate different sets of specific sections of the Act into force at separate times pursuant to Parliament’s clear intention to delegate these narrow functions to Cabinet. But the Parliament of Ontario delegated no such specific authority to Cabinet through the Putting Students First Act.

Conclusion

As regular readers of Parliamentum know, I vigorously defend the common-law prerogative powers inherent to the Crown; however, this statutory conferral of power onto the Crown presents a different matter. The idea that parliament can delegate its law-making power of repeal to Cabinet subverts the Constitution. When Parliament seeks to repeal a law, the repeal bill must follow the same standard legislative process as the original bill. In contrast, the delegation of the power of repeal to Cabinet allows the executive to extinguish laws arbitrarily at its own discretion.

According to the Legislative Research Service of Queen’s Park, the Putting Students First Act has followed a procedure not unknown to Ontario, though the procedure itself may still be unconstitutional.

There is no requirement that all sections of an Act be proclaimed in force at the same time. The Legislation Act, 2006 indeed says that if an Act provides that it is to come into force on a day to be named by proclamation, proclamations may be issued at different times for different parts, portions or sections of the Act.

Although an infrequent occurrence, a proclamation may not only bring an Act or part of an Act into force, but also be authorized to do the reverse. The Fairness is a Two-Way Street Act (Construction Labour Mobility), 1999, for instance, came into force by proclamation and was repealed the same way. [4]

Curiously, the Legislation Act, 2006 has allowed for improper delegations of authority to Cabinet and probably thereby exceeds its constitutional bounds by attempting to authorize Parliament to abdicate its supreme law-making power to repeal laws through what one expert has called “Sleeper-Cell Clauses,” which lie in wait until Cabinet decides to push the detonator and proclaim the law destroyed!

Sections 20 and 22 do not meet the standard of a “valid delegation” set out the in the Grey decision. First, section 20 means that Parliament has indeed “abdicated its function” of repealing laws. Second, section 20 is not “subject to determination at any time by Parliament”; if the Cabinet invokes this section, then the Parliament can no longer amend the Putting Students First Act — because it would no longer exist! Third, the proclamation that the Lieutenant-Governor issued on and in accordance with the advice of Cabinet does not “fall within the ambit of the legislative pronouncement by which its authority is measured” because section 22 only makes provision that the entire Act enter into force as one unit; it does not delegate to Cabinet the authority to promulgate only certain sections through separate orders-in-council.

Through the Bill of Rights, 1689, the English Parliament abolished “the pretended prerogatives of dispensing with and suspending of laws.” These defunct prerogative powers of the Crown allowed the King to enforce laws only at his discretion and repeal laws altogether – and thus usurp Parliament’s supreme law-making authority to legislate in all matters.

The McGuinty Government’s Order-in-Council exceeded the authority that Parliament had delegated to Cabinet. At the very least, the relevant parliamentary committee should have clarified this ambiguous, imprecise wording because Parliament did not “validly delegate” the authority that the McGuinty Government assumed.  More fundamentally, however, the Parliament of Ontario has codified a variant of that defunct prerogative of “dispensing with laws” through the Putting Students First Act. In so doing, the Parliament of Ontario may have violated the separation of powers that the Supreme Court of Canada has assigned to the Constitution of Canada, as well as the principle that Parliament cannot surrender its law-making power.

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[1] New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 SCR 319
[2] In Re George Edwin Gray, [1918] S.C.R. 150
[3] Ibid.
[4] Ontario. Legislative Assembly of Ontario. When Do Ontario Acts and Regulations Come Into Force? Research Paper B31, by Philip Kaye. Toronto: Parliamentary Copyright, November 2011.

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David Johnston on the Constitutional Relationship Between the Governor General and the Prime Minister

Posted on 2012/12/27 by J.W.J. Bowden

Governor General Johnston’s Remarks

On 11 December 2012, Sandie Rinaldo interviewed Governor General David Johnston, who provided some good insights on the proper constitutional relationship between the Governor and Prime Minister under our system of Responsible Government.[1]

Governor General Johnston talks to Sandie Rinaldo of CTV News

Governor General Johnston talks to Sandie Rinaldo of CTV News

Governor General David Johnston affirmed that he represents Canada abroad only on and in accordance with the advice of the Prime Minister. Johnston also explained that he meets the Prime Minister “quite regularly,” which is “appropriate to the Office [of Governor General].” At this point, Sandie Rinaldo pressed him and asked the Governor General to divulge the contents of those confidential meetings. Johnston maintained the proper confidentiality of the vice-regal – prime ministerial relationship by refusing to divulge confidences and instead offered a broader description. Johnston explained that he and Prime Minister discuss “the parliamentary agenda”, which probably refers to the Speech from the Throne, scheduling Royal Assent where required, and to the bills that the Government intends to introduce. He and Prime Minister also cover “the affairs of the nation and often matters with a little more long-term approach.” He concluded that he finds the conversations helpful and hopes that the Prime Minister does as well.

When Sandie Rinaldo pressed him again, Johnston made clear that “it would be inappropriate for [him] to go into specific details,” though he did disclose that their discussions pertain to “Canada’s global position,” which implies a strategic, long-term view, and that “some of the conversations relate to where we see Canada in the globe today and what the aspirations are, looking a few years out, and what are some of the policies that contribute to that.” Johnston then artfully pivoted the interview back to his original statement and elaborated on his “working visits abroad,” which “fit into a foreign affairs strategy.” In this case, he noted that the Harper government has emphasized Latin America in its foreign and trade policies since 2007.

The Governor General then praised Canada’s system of Responsible Government and showed a deep appreciation for the history that underpins Westminster parliamentarism: “We’re very blessed with the parliamentary democracy, constitutional monarchy, [and] representative government that we’ve evolved through many years, and I would want to ensure that Canadians understand it well and treasure it.”

The Importance of “Bagehot’s Rights of the Sovereign” In Responsible Government

Overall, the constitutional relationship between Governor General Johnston and Prime Minister Harper seems to adhere to the principles of Responsible Government. The Governor exercises his three rights under Walter Bagehot’s ideal-type : “to be consulted, to advise, and to warn.” This formula reinforces Responsible Government, the system under which “Ministers of the Crown take responsibility for all acts of the Crown,” as Sir John George Bourinot described it.

The Canadian procedures on these meetings between the Prime Minister and Governor General mirror the weekly meeting between the British Prime Minister and the Queen of the United Kingdom. They normally meet for 60 to 90 minutes each week when the Queen is in London, and the Queen generally invites the Prime Minister to her personal summer retreat in Balmoral, Scotland for a few days every August. Various former British Prime Ministers — particularly John Major and Tony Blair — have enthusiastically described these weekly meetings as highly productive and helpful because of the Queen’s 60 years of institutional memory. They always take care to preserve the absolute confidence with the Sovereign that they and all Prime Ministers have enjoyed, and emphasize this point strongly in media interviews.[2]

At 24 minutes, Andrew Marr described the Queen’s weekly audience with her Prime Minister as “one of her most important duties as a constitutional monarch.” Interspersed with old footage from the documentary Elizabeth R (1992) showing him and the Queen in consultation at Balmoral, Sir John Major of 2012 explained to Andrew Marr the importance and purpose of the weekly consultation between the Queen and her Prime Minister:

It’s simply two people sitting down talking in an entirely relaxed and informal way. But [the consultations] cover everything. The Queen, as head of state, has a right to know what is happening and has a right to know what her Prime Minister has in mind to do.

Former Prime Minister Tony Blair recounted his similar experience and affirmed the utility of being able to confide in the Queen:

I certainly found that I could discuss anything with her, in total confidence, and that included, by the way, all sorts of cabinet ruptures and difficulties.

Contrary to media reporting at the time, Andrew Marr has found evidence that the Queen and Prime Minister Margaret Thatcher got along, though they may each have regarded one another as strange. (Thatcher was the Queen’s only female Prime Minister, and the only Prime Minister of the same age as the Queen. I will expand upon the fallout of this report from 1986 in a subsequent blog post on Responsible Government). In 1991, Thatcher described her weekly consultation with the Queen in a more matter-of-fact way, though her respect for the Sovereign still showed.  “As the Queen’s chief minister, I would report to her, usually once per week.” When Brian Lamb asked the former Prime Minister to divulge the content of the discussions, Thatcher replied,

Well, we don’t talk about [the weekly audience], but it would last about one hour, and one would tell her about the things which had gone on and the things which were going to come up. We would probably both have seen some overseas visitors – heads of state and heads of government – and just [engaged in] a general discussion of anything that was right at the forefront of people’s minds at a given moment. So it was what was going to come up, what was being dealt with, and how it was being dealt with.

The Queen and her Prime Minister probably discuss Cabinet business, the parliamentary calendar, and upcoming foreign travel, in addition to any of the specifics that these three former Prime Ministers cited.

Conclusion

Ultimately, the Sovereign or Governor must act on and in accordance with the advice of the Prime Minister, save for those exceptional circumstances where the he would be prepared to reject or act contrary to ministerial advice and thus dismiss the Prime Minister and Ministry from office. However, the Sovereign or Governor may persuade the Prime Minister, through wise counsel, to shift course or reconsider a policy, which could preclude the use of a constitutional instruments as blunt as the reserve powers.[3]

Rather than being institutionalized, as in the United Kingdom, the schedule of meetings between the various Prime Ministers and Governors General of Canada has varied considerably and depended mostly upon the rapport between the persons occupying those two offices.[4] As the Manual of Official Procedure of the Government of Canada indicates,

In practice, [the consultation] will vary in extent, depth, or frequency according to the nature of the personal relationship between the Prime Minister and Governor General.

I would welcome any formal institutionalization of this constitutional relationship in Canada, because the Sovereign or Governor can best exercise the “Bagehot’s Rights” during this discussions. Good Governors General like Johnston may indeed have a lot to offer to any Prime Minister who wants to hear such advice. That said, no Governor General in any Realm would ever match the depth and breadth of knowledge and experience of Her Majesty Queen Elizabeth II.

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[1] Governor General David Johnston, interview with Sandie Rinaldo, “For Queen & Country: In Conversation with the Governor General,” CTV News, 11 December 2012. [accessed 27 December 2012].
[2] John Major, interview with Andrew Marr in The Diamond Queen, 6 February 2012; Margaret Thatcher, interview by Brian Lamb, CSPAN, 9 March 1991.
[3] Robert Macgregor Dawson. “The Constitutional Question.” Dalhousie Review VI, no. 3 (October 1926): 332-337.
[4] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar. (Ottawa, Government of Canada, 1968): 151.

Posted in Consultations, Crown (Powers and Office), Responsible Government | Tagged , , , , , , | 1 Comment

The Queen’s Annual Christmas Message

Posted on 2012/12/25 by J.W.J. Bowden

Introduction

I wish you all a very happy Christmas and hope that this blog entry finds you well.

Last year in “A Parliamentarist’s Christmas,” I explored the influences of ecclesiastical architecture on the neo-Gothic style of the Centre Bloc of the Parliament of Canada, the more fundamental medieval, and therefore Christian, origins of the parliamentarism itself, and the biblical basis of our national motto Ad mari usque ad mare.

This year, I would like to highlight Her Majesty Queen Elizabeth II’s annual Christmas message itself, and – if you can humour my scholarly pedantry during the holidays – some of the interesting constitutional aspects that the speech raises, namely, the Personal Union, succession, and the Crown as corporation sole.

Significance of the Christmas Message

The Queen delivers Her annual Christmas Address

The Queen delivers Her annual Christmas Address

The Queen’s annual Christmas message stands out as one of the Sovereign’s non-constitutional or extra-constitutional functions; as such, the Queen and her staff develop these addresses independent of any ministerial advice. In this case, the Queen acts as representative of the nation and cultural leader, or what one scholar deems “the liturgical function”, rather than in her legal-constitutional capacity as head of state.[1] In the first half of her address, the Queen acknowledged the Diamond Jubilee celebrations that took place throughout the Commonwealth in her honour and highlighted the Personal Union, and thus her roles as Queen of the 16 Commonwealth Realms. In the second half, the Queen emphasized her role as Supreme Governor of the Church of England and her Command-in-Chief of the British Armed Forces. However, the Queen delivered a generic Christian commemoration of the Christ child rather than an explicitly Protestant rendition.

The Queen of the United Kingdom performs an unambiguous, sectarian liturgical function; the British Sovereign also acts as the Supreme Governor of the Church of England and must therefore be in communion with the same. However, neither the Queens nor the Governors General of Canada, Australia, and New Zealand take on an equivalent religious function because none of these countries maintain established churches (which, frankly, is a favourable development and an example of how the Realms have improved upon the British model). The natural person of Elizabeth Windsor is vested with 16 separate juristic persons and is therefore simultaneously but separately the Queen of the United Kingdom, Queen of Canada, Queen of Australia, and Queen of New Zealand and Queen of the 12 other Commonwealth Realms. These 16 juristic persons – these 16 Crowns – thus form the “Personal Union” because they are all vested by law in the same natural person. (They are also 16 separate corporations sole).

This difference flows naturally into changing the rules that govern succession to the throne, which I have discussed in previous blog entries and in a column that I co-authored with Professor Phil Lagassé. The Prime Ministers of the 16 Commonwealth Realms agreed in November 2011 that the common-law principle of male-preference cognatic primogeniture should be replaced with equal primogeniture and that the Act of Settlement’s penalty of marriage to a Catholic should be repealed. Each of the 16 Realms would have to enact its own legislation in order to change the rules of succession to its Crown.[2] In December 2012, the Cameron government tabled the Succession to the Crown Bill, which would eliminate the provision in the Act of Settlement that removes any person from the line of succession for marriage to a Catholic, but it retains the other statutory requirements that the Sovereign be a Protestant and be head of the Church of England.  Currently, any member of the Royal Family could marry a Jew, Muslim, Hindu, atheist, etc. and retain his or her place in the line of succession; only marriage to a Catholic would automatically remove him or her from the line of succession altogether, as prescribed by law. This provision induced a Canadian woman, Autumn Kelly, to convert to Anglicanism before marrying Peter Philips (son of Anne, the Princess Royal) in 2008. If the Succession to the Crown Bill, 2012 had been statute law in 2008, she would not have needed to convert to Anglicanism to prevent Peter Philips, and their issue, from losing their places in the line of succession.

Thanks to the feedback from one of my correspondents, I have amended this section and drew the proper distinction between two distinct factors. The British Succession to the Crown Bill, 2012 omits entirely two other separate components of succession: 1. that the Sovereign be a Protestant, and 2. that the Sovereign also be the Supreme Governor of the Church of England. The Bill of Rights, 1689 and the Act of Settlement, 1701 established the Protestant succession and affirmed the Sovereign’s role as Supreme Governor of the Church of England. (The Act of Supremacy, 1534 first established the latter). The first requirement that the Sovereign be a Protestant now extends to the Crowns of all 16 Realms. However, the second requirement that the British Sovereign be the Supreme Governor of the Church of England pertains only to the Crown of the United Kingdom because the other 15 Realms do not maintain established Churches.

As such, if the British Parliament wanted to eliminate the Sovereign’s role as the Supreme Governor of the Church of England and/or disestablish the Church of England, the British Government would not need to consult the Realms before repealing either or both because the Sovereign fulfills no formal religious function in any of the other 15 Realms. However, the British would again consult the other Realms before repealing the requirement that the Sovereign be a Protestant in order to keep the Personal Union intact. Each of the 16 Realms would then have to repeal, through legislation or constitutional amendment, the requirement that the Sovereign must be a Protestant.

Conclusion

Republicans sometimes assert, incorrectly, that there is no difference between the Queen of the United Kingdom and the Queen of Canada, but the formal and informal religious roles of the Queen of the United Kingdom versus the absence of any such role in Canada (among various other points) proves them wrong. While the Sovereigns of both Canada and the United Kingdom must be Protestants, neither the Queen of Canada nor her vice-regal representatives perform any official religious role as Supreme Governor of any church, because Canada does not maintain an established church.

In conclusion, I found Her Majesty’s portrayal of the Personal Union of 16 Crowns incomplete. The Queen acknowledged only the British athletes who competed in the Olympics, not the athletes from all 16 Realms of which she is head of state, and only the personnel in the British Armed Forces who are currently serving overseas. I suspect that the Palace hesitates to emphasize the Queen’s constitutional duties in the other Realms as the Governors General have gained more prominence as her representatives. In Canada, section 15 of the Constitution Act, 1867 vests the command in chief of the Canadian Armed Forces in the Queen, though the Letters Patent have since delegated (not “transferred”) that authority to the Governor General. Formally and constitutionally, the Queen retains the command-in-chief, but in practice the Governor General assumes this role as the Queen’s representative, both in Canada and abroad.[3] In fact, Governor General David Johnston has spent this Christmas abroad boasting the morale of Canadian troops serving overseas.[4]

Lord Philip Norton, Professor of Government at the University of Hull and a Conservative Life Peer, wrote of the Queen’s civic and liturgical duties to “set standards of citizenship and family life,” to command the “allegiance of the armed forces,” to “maintain the continuity of British traditions,” and to “preserve a Christian morality.”[5] The Queen of the United Kingdom exemplified all these duties in her Christmas Address. However, I can only conclude that while the Queen of the United Kingdom emphasizes the full civic-liturgical duty and legal-constitutional authority in the Christmas Address, the Queens of Canada, Australia, New Zealand, and the other 12 Realms do not figure prominently therein and appear only peripherally, or even as afterthoughts. Perhaps the Palace does not feel comfortable emphasizing the Crowns of the other Realms independent of the advice of the responsible ministers of those Realms. Sadly, these practices only reinforce republican assertions that the Queen of Canada is a “foreign monarch” and irrelevant to Canada and to Canadians.

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Endnotes

[1] Paul Benoit, presentation to the Monarchist League on “The Three Threats to Canada’s Constitution,” 4 October 2012; Paul Benoit. “State Ceremonial: The Constitutional Monarch’s Liturgical Authority,” in The Evolving Canadian Crown, edited by Jennifer Smith and D. Michael Jackson, 119-137. (Kingston: Institute of Intergovernmental Relations, School of Policy Studies, Queen’s University, 2012).
[2] I will argue in an upcoming article that the British government obtained the “consent” of the Prime Ministers at CHoGM last year through a mere custom, rather than through a constitutional convention, and that none of the 16 Realms could veto the British decision or derogate from the authority of the British Parliament to legislate for the Crown of the United Kingdom. As such, one or more of the 16 Realms could – intentionally or unintentionally – break the Personal Union by refusing or failing to pass the necessary statutory or constitutional amendment.
[3] Phil Lagassé, forthcoming article on the Crown as Commander-in-Chief; Christopher McCreery, “Myth and Misunderstanding: The Origins and Meaning of the Letters Patent Constituting the Office of the Governor General, 1947,” in The Evolving Canadian Crown, edited by Jennifer Smith and D. Michael Jackson, 31-54. (Kingston: Institute of Intergovernmental Relations, School of Policy Studies, Queen’s University, 2012).
[4] Canada, Government House. “Governor General and Commander-in-Chief of Canada Visited Canadian Troops and Civilians Deployed Abroad for the Holidays,” (Ottawa: Crown Copyright, 25 December 2012). [accessed 25 December 2012].
[5] Philip Norton, “The Crown,” in Politics UK. 5th Ed., edited by Bill Jones et al., 362-387. (Essex, England: Pearson Education Ltd., 2004).

Posted in Corporation Sole, Crown (Powers and Office), Succession (Sovereign), The Personal Union | Tagged , , , , , , , , | 7 Comments

Succeeding to the Australian Throne

Posted on 2012/12/05 by J.W.J. Bowden

Succession in Australia

Anne Twomey, a Professor of Law at the University of Sydney, has written extensively on the Crown of Australia and other issues of government. I consider her the foremost expert on constitutionalism and Westminster parliamentarism in our sister Realm down under!

Most recently, Professor Twomey has written an op-ed to the Sydney Morning Herald which I regard as the direct Australian equivalent of the op-ed that Professor Lagassé and I just submitted to the Ottawa Citizen. In “Archaic and Sexist Law Overshadows Pending Arrival of New Royal,” Twomey explains why altering the laws of succession to the Crown of Australia also involves a constitutional amending procedure that requires the concurrence of the parliaments of the 6 Australian States and of federal Parliament of Australia:

In Australia, the issue is complicated by the federal system. It is most likely that the Federal Parliament does not have unilateral power to change the rules of succession. It has no specific power to do so and as the Queen is also a part of state constitutions and state parliaments, it is likely that any Commonwealth attempt to interfere with state constitutions would be invalid. The most appropriate approach is to use a section of the constitution that permits the states and the Commonwealth to co-operate to enact laws that only the Westminster Parliament could have enacted at the time of Federation. This would entail each state parliament passing a law that requests the Commonwealth to enact the changes to the Australian law of succession.

The Australian and Canadian Amending Formulas Compared

Under s. 51(xxxviii) of the Australian Constitution, the Commonwealth Parliament may legislate on behalf of the states after each state parliament has given its consent through enabling legislation. The Commonwealth Parliament would amend the rules that govern the line of succession to the Crown of Australia by an act of parliament, though it would probably be regarded as an organic statute of constitutional importance. As Twomey alluded in her column, s.51(xxxviii) of the Australian Constitution acts as the equivalent to s.4 of the Statute of Westminster, which Canada repealed in 1982 and which Australia repealed in 1986. Before its repeal, s.4 allowed the Westminster Parliament to legislate on behalf of the Dominions after obtaining their approval. Today, however, the Westminster Parliament may only legislature for the United Kingdom itself, which is why each of the 16 Realms must change its succession pursuant to its own laws or constitution.

s. 51 The Parliament shall, subject to this Constitution, have power* to make laws for the peace, order, and good government of the Commonwealth with respect to:

(xxxviii) The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia

Under s. 41(a), the 10 provincial legislatures, the House of Commons, and the Senate would pass concurring resolutions (not bills), which the Governor General would then proclaim into force. (As with Royal Assent, the Governor General would promulgate the constitutional amendment by and with the advice and consent of the legislative assemblies, and not on and in accordance with the advice of the federal and provincial governments). This amendment to the Constitution of Canada would codify and amend the hitherto unwritten constitutional principles that govern succession. It would be the first amendment to codify an unwritten constitutional principle (UCP) and the first pursuant to s. 41.

s. 41. An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province:
(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province

Conclusion

Twomey’s comparative scholarship on succession in Australia and Canada has has highlighted the importance of federalism and written constitutions, and how federalism affects the Crown. Both countries have always benefited from Constitution Acts (which, however, only form part of a overall hybrid written-conventional constitution) that set up a division of powers between the federal and state/provincial levels. In both countries, the Crown also guarantees federalism, and both federal Realms have provided for mechanisms whereby the federal and state/provincial levels must act in concert in order to change their respective Crowns. These issues simply do not apply to unitary states like New Zealand, which is precisely why Australia and Canada should be set apart in this discussion and compared to one another.

In “Changing the Realms of Succession: The Problem of the Realms,” Twomey also argues that succession to the Crown of Canada falls under s.41(a). (You can download the video at that link). Succession in Australia helps show why succession in Canada must be subject to s.41(a).

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Posted in Crown (Powers and Office), Succession (Sovereign), The Personal Union | Tagged , , , | 10 Comments