Introduction
Under our system of responsible government, the Sovereign or Governor General exercises his prerogative powers on the advice of the Crown-in-Council, and his constitutional powers relating to Parliament on the advice of the Prime Minister alone. Responsible government means that “Ministers of the Crown are responsible for acts of the Crown” and responsible to the House of Commons.[1] The Sovereign or Governor General acts as a neutral figure and remains above partisan politics. The Prime Minister is the Governor General’s principle constitutional advisor, and while his government commands the confidence of the House, the Governor General must carry out the Prime Minister’s advice. Under no circumstances can the Leader of the Opposition, the leader of the third opposition party, or any other government or opposition backbencher offer legitimate, binding constitutional advice to the Governor General.
The Crown-in-Parliament (Tidridge 2011, 63)
We must also situation this constitutional relationship between the Governor General (the crown personified) and the Prime Minister and cabinet (Crown-in-Council) to the Parliament of Canada (the Crown-in-Parliament). The Crown-in-Parliament consists of three parts: the House of Commons, the Senate, and the Queen (whom the Governor General of Canada represents as per the Constitution Acts and the Letters Patent, 1947). All three parts of the Crown-in-Parliament must approve of a bill before it becomes law. The House of Commons and Senate must pass the bill, and as the final act, the Governor General must give Royal Assent so that the bill becomes law. Royal Assent represents the pro forma approval of the Queen and her acknowledgement that the bill in question has passed through the House of Commons and the Senate; the final stage of the Crown-in-Parliament thus legitimates the other two. The Crown-in-Council plays no part in this process apart from scheduling the ceremony of Royal Assent. The Prime Minister may not advise the Governor General to withhold Royal Assent.
The Prime Minister may not advise the Governor General to withhold royal assent because the Crown’s veto on legislation no longer exists. The Crown’s veto only applied in the early years of representative government, when the Sovereign’s ministers and the Prime Minister remained in power by virtue of maintaining the favour of the Sovereign rather than commanding the confidence of the House of Commons. Under responsible government, ministers of the crown are responsible for acts of the crown, but by advising the Governor General to withhold Royal Assent, the Prime Minister would call the neutrality of the Crown into question. In addition, the House of Commons would have no recourse against such an action short of withdrawing its confidence in the government, which would not prevent the veto.
A Constitutional Crisis on Royal Assent in the Making
The Federal Court recently ruled that the Harper government’s proposed legislation to abolish the monopoly of the Canadian Wheat Board violates the rule of law because Section 41.1 of the Canadian Wheat Board Act mandates that the government must hold a plebiscite before abolishing this monopoly – even though the Harper government’s legislation effectively nullifies this provision by repealing it. I hope that the Harper government appeals this ruling, because the judge has infringed upon the sovereignty of the Crown-in-Parliament. I have no doubt that the Federal Court of Appeal or the Supreme Court of Canada, if necessary, would overturn this ruling. To paraphrase the great British constitutional scholar of the late 19th century A. V. Dicey, “what parliament can pass, parliament can amend or repeal.” In other words, a past parliament cannot bind a future parliament or prevent an MP or Minister of the Crown from introducing legislation that amends or repeals an Act of Parliament. And if a past parliament intended to pass legislation that limited a future parliament’s ability to pass legislation, then the past parliament erred and attempted to violate the sovereignty of the Crown-in-Parliament.
In light of this controversy, Bob Rae asked the Prime Minister in the House of Commons on 8 December 2011:
To the Prime Minister through you, Mr. Speaker, could I ask how it is that the government’s intention is to proceed with the Wheat Board law and to ask the Governor General to give royal assent to the law when the court in question has said that the minister’s conduct is an affront to the rule of law? Would the Prime Minister not agree that the government should at the very least wait royal assent until such time as all appeals have been exhausted with respect to the ruling of Mr. Justice Campbell?[2]
Bob Rae asked the government to postpone the ceremony of Royal Assent (which the cabinet does organize). Fair enough, but the Harper government certainly will not follow Rae’s advice.
However, Bob Rae raised the stakes in his constitutional brinksmanship earlier today, 12 December 2011. Bob Rae has overstepped his bounds simply by forwarding this presumptuous open letter to the Governor General – because only the Prime Minister offers legitimate, binding constitutional advice to the Governor General. Worse still, Rae has requested that the Governor General withhold Royal Assent in an unprecedented repudiation of 300 years of Westminster parliamentarism and of responsible government:
As Leader of the Liberal Party, I would ask most respectfully that full consideration be given to awaiting final disposition of this matter before the courts before legislation receives Royal Assent.3]
Why The Royal Prerogative of Veto (Withholding Royal Assent) No Longer Exists
Modern Justification
The website of the British monarchy explains on the page “Queen-in-Parliament”:
The role of the Sovereign in the enactment of legislation is today purely formal, although The Queen has the right to be consulted, to encourage and to warn through regular audiences with her ministers. As a constitutional monarch, the Sovereign is required to assent to all Bills passed by Parliament, on the advice of Government ministers. The Royal Assent (consenting to a measure becoming law) has not been refused since 1707. […][4]
That phrase that the Queen gives Royal Assent “on the advice of her Ministers” means that the government organizes the scheduling of the ceremony of Royal Assent (just as the Canadian sources show) and advises the Queen when to grant Royal Assent – not whether to grant Royal Assent.
Historical Justification
The webpage on the Queen-in-Council has merely restated the conclusions that several British scholars drew in the 19th century.
In his famous The English Constitution, Walter Bagehot wrote in 1867 that “the Crown has lost its veto.”[5] Bagehot continued in his characteristic English wit:
The popular theory of the English Constitution involves two errors as to the sovereign. First, in its oldest form at least, it considers him as an “Estate of the Realm,” a separate co-ordinate authority with the House of Lords and the House of Commons. This and much else the sovereign once was, but this he is no longer. What authority could only be exercised by a monarch with a legislative veto. He should be able to reject bills, if not as the House of Commons rejects them, at least as the House of Peers rejects them. But the Queen has no such veto. She must sign her own death-warrant if the two Houses unanimously send it up to her. It is a fiction of the past to ascribe to her legislative power. She has long ceased to have any.[6]
The Manual of Official Procedure of the Government of Canada and its Appendices provide an excellent primary source that supports the claim that the royal prerogative (reserve powers) to withhold Royal Assent no longer exists because no Sovereign has invoked it since Queen Anne in 1707, in the era of representative government and about 130 years before responsible government told hold. Not even Mad King George ever vetoed legislation. The Hanoverians implicitly accepted the constitutional limitations on their powers – including the destruction of the veto on Royal Assent. In other words, the reserve powers of the Sovereign become obsolete over time as the royal prerogative yields to the crown-in-council prerogative or to the crown-in-parliament. I would argue that the reserve powers on Royal Assent became obsolete some time in the 18th century (though we can never pinpoint an exact date). Certainly, by the time that responsible government had begun to establish itself under William IV in the 1830s, the veto on Royal Assent no longer existed.
Governor General David Johnston Gives Royal Assent, as Prime MInister Harper Looks On
Royal Assent occurs automatically. The Prime Minister advises the Governor General neither to give nor withhold Royal Assent; the Prime Minister only determines the scheduling of the ceremony at which the Governor General gives Royal Assent. According to the Manual of Official Procedure of the Government of Canada, “The Government Leader in the House, in consultation with the Prime Minister and Leader of the Government in the Senate, initiates the decision to give Royal Assent to bills.”[7] Next, “when a decision has been taken [the Leader of the House] informs the Prime Minister and the responsible Assistant Secretary to the Cabinet of the date and time.”[8] The Manual treats Royal Assent as an automatic royal certification that the bill has passed both Houses of Parliament; the Prime Minister does not advise the Governor General to grant or withhold Royal Assent, but merely helps organize the ceremony. If the Prime Minister could advise the Governor General on Royal Assent, our system of responsible government would collapse.
On 29 November1882, an Order-in-Council argued the right of responsible government of 1848 empowered the Ministers of the Crown of the Dominion of Canada to advise the Governor General on all matters where the British Cabinet advises the Queen:
Now it is clear that since the concession of Responsible Government to the Colonies, the Advisors of the Governor General hold the same position with regard to him, as the Imperial Ministry does with respect to Her Majesty. They have the same powers and duties and responsibilities. They ought not to have and of right have not any great authority with respect to the Legislation of the Canadian Parliament than the Queen’s Ministers have over the Legislative action of the Imperial Legislature. […]
Should however any Bill be passed notwithstanding their opposition or adverse opinion, they cannot advise its rejection by the Sovereign.
The power of veto by the Crown is now admitted to be obsolete and practically non-existent. The expression ‘Le Roi’ or ‘La Reine s’avisera’ has not been heard in the British Parliament since 1707, in the reign of Queen Anne, and will in all probability never be heard again. The Ministers [of the Crown] in such cases if they decline to accept the responsibility of submitting the Bill for royal assent must resign and leave to others the duty of doing so.[9]
Section 55 of the Constitution Act, 1867Has Become a Dead Letter In the Wake of The Statute of Westminster, 1931 and the Letters Patent, 1947
“The Constitution Act, 1867 […] expressly confers upon the Queen or the Governor General the power to withhold the royal assent from a bill that has been enacted by the two Houses of Parliament (s. 55), but a convention stipulates that the royal assent shall never be withheld.”[10]
55. Where a Bill passed by the Houses of the Parliament is presented to the Governor General for the Queen’s Assent, he shall declare, according to his Discretion, but subject to the Provisions of this Act and to Her Majesty’s Instructions, either that he assents thereto in the Queen’s Name, or that he withholds the Queen’s Assent, or that he reserves the Bill for the Signification of the Queen’s Pleasure.[11]
Statute of Westminster (Tidridge 2011, 47)
Section 55 has become a dead letter in the wake of the Statute of Westminster, 1931 and the Letters Patent, 1947. First, this section originally existed in order to allow the British cabinet to advise the British Sovereign to disallow legislation that the Dominion of Canada passed contrary to the interests of the British Empire. In the 19th century, the United Kingdom still controlled the foreign affairs and defence policies of the Dominion of Canada. Second, the Statute of Westminster, 1931 formally recognized the equality and independence of all the Dominions and declared the Crowns of Canada, etc. legal entities independent of and separate from the Crown of the United Kingdom. Thereafter, the Prime Minister of Canada could advise the King or Queen of Canada on Canadian constitutional matters, just as the British Prime Minister advises the King or Queen on British constitutional matters. Third, this analysis has established that by 1867, the reserve power to veto legislation had already become obsolete. And given that Canada inherited a “constitution similar in principle to that of the United Kingdom” in 1867 upon the passage of the British North America Act, 1867, I argue that the Statute of Westminster, 1931 formally freed up the convention inherent in the Constitution Act, 1867 that the Governor General may never withhold Royal Assent. Fourth, the Letters Patent, 1947 provide a further rationale in support of this argument: section 55 of the Constitution Act, 1867 says that a Governor General assents to or “reserves” a bill “subject to […] Her Majesty’s Instructions.” The Letters Patent, 1947 are such an example of “Her Majesty’s Instructions” and delegated all the constitutional powers and authorities of the King or Queen of Canada to the Governor General of Canada. Since the King of Queen of Canada no longer possessed the reserve power to veto Royal Assent, neither then does the Governor General.
If the Sovereign no longer possessed the power of veto in 1867 and 1882, then the Sovereign and the Governor General most certainly do not possess that power today in 2011. The Crown has been bound by precedent and convention for centuries to give Royal Assent to all legislation that passes both Houses of Parliament. British constitutional scholar Sir Ivor Jennings proposed that a custom or practice exists as a convention if it satisfies three questions: What are the precedents? Did the actors believe they were bound by a rule? Is there a reason for the rule?[12] First, the precedents form 300 years of constitutional history. Second, based on all available evidence from the mid-19th century to the present, all Sovereigns and Governors General have considered themselves bound to recognize that the reserve power to withhold Royal Assent no longer exists. Third, the rule exists in order to preserve the principle of responsible government and our entire constitutional system as we know it!
Hogg states that
There is undoubtedly a convention that the Queen or Governor General or Lieutenant-Governor will not withhold the royal assent from bills which have been passed by the appropriate legislative chambers, but I am not aware of that any Queen or King or Governor General or Lieutenant Governor has ever explicitly acknowledged the obligation. The convention is well understood although tacit.[13]
In all reality, the website of the British monarchy cited above shows that the Queen has publicly acknowledged that she does not possess the authority to withhold Royal Assent.
Conclusion
Queen Anne, The Last Sovereign To Refuse Royal Assent.
Only a Prime Minister leading a single-party minority government in a minority parliament would conceivably want to advise the Governor General to veto a bill that passed both Houses of Parliament. But a Prime Minister leading a single-party majority government would probably never feel compelled to offer such advice, notwithstanding its constitutional impropriety. The current situation presents an even more bizarre constitutional quandary because the Leader of the Liberal Party – the third party – has advised the Governor General to withhold Royal Assent and in effect veto Bill C-18, An Act to Reorganize the Canadian Wheat Board and to Make Consequential and Related Amendments to Certain Acts. If the Governor General were to veto this legislation, he would not only repudiate 300 years of Westminster parliamentarism, but the principle of responsible government itself: he would veto this legislation based on his discretionary authority (the reserve powers) against the wishes of the government and against the will of Parliament and on the advice of the Leader of the Liberal Party! The Governor General’s veto on the basis of a reserve power that has been used since the reign of Queen Anne in 1707 and no longer exists; the anti-constitutional use of veto today would precipitate the most serious constitutional crisis since the Glorious Revolution of 1688 and make the Byng-King Affair of 1926, the Dismissal of 1975, and the Coalition-Prorogation Controversy of 2008 look routine. If the Governor General vetoed a government bill on the basis of a reserve power of veto that no longer exists, he would essentially dismiss the Prime Minister and therefore the entire 28th Ministry and leave the country without a government. The Prime Minister of Canada advises the Queen of Canada on the appointment of the Governor General, so he also possess the authority, in exceptional circumstances, to advise the Queen of Canada directly to dismiss the Governor General of Canada; the Queen would likely be bound to follow such advice.[14] Clearly, whatever the ultimate outcome, a gubernatorial veto would leave our entire constitutional system in ruin and chaos.
Last week, Pat Martin suggested in the House of Commons that
It is possible that the Governor General, at least, will refuse to grant royal assent to a bill that the courts have struck down.”[15] However, Mr. Martin acknowledged in an unexpected reply to my tweet that “[The New Democratic Party’s] research shows [refusal to grant Royal Assent] is not an option.[16]
I can only hope that Bob Rae will also recognize that his letter repudiates 300 years of Westminster parliamentarism and offers illegitimate, non-binding and unsolicited advice to the Governor General, and that he is essentially asking the Governor General to precipitate what would become the most disastrous constitutional crisis in Canada’s history.
Related Posts:
[1] Sir John George Bourinot, Parliamentary Procedure and Practice, 4th ed. (Montreal: Dawson Brothers Publishing, 1916): 102; James W.J. Bowden and Nicholas A. MacDonald, “Writing the Unwritten: The Codification of Constitutional Conventions in Canada, the United Kingdom, Australia, and New Zealand.” Journal of Parliamentary and Political Law (forthcoming).
[7] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar.(Ottawa, Government of Canada, 1968): 417.
[8] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar.(Ottawa, Government of Canada, 1968): 419.
[9] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada: Appendices, Henry F. Davis and André Millar.(Ottawa, Government of Canada, 1968): 469-470 [emphasis added].
[10] Peter W. Hogg, The Constitutional Law, 2011 Student Edition (Toronto: Thomas-Reuters Canada Ltd., 2011): 1-21 to 1-22.
[13] Peter W. Hogg, The Constitutional Law, 2011 Student Edition (Toronto: Thomas-Reuters Canada Ltd., 2011): 1-27.
[14] Adam Dodek, “Crisis in Canada: Coalition Governments and Beyond,” Conference by the University of Ottawa’s Faculty of Common Law (Ottawa, Ontario, 4 December 2008); Andrew Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics (Toronto: Oxford University Press Canada, 1991): 41; Peter J. Boyce, The Queen’s Other Realms: The Crown and Its Legacy in Australia, Canada, and New Zealand. (Annandale, NSW: The Federation Press, 2008): 60. Dodek and Heard discussed the fact that the prime minister of a Commonwealth realm can advise the British monarch to dismissal the governor general. Boyce argued in favour of “the monarch’s duty to dismiss a governor-general on the advice of her prime minister.” Conversely, the governor general dismissed the prime minister in the Australian Constitutional Crisis of 1975.
[16] Pat Martin, MP. Discussion with Author, 12 December 2011.
