Constitutional Scholarship or Political Activism? The Role of the Academy Following the Coalition-Prorogation Crisis of 2008

Posted on 2011/11/28 by J.W.J. Bowden

Introduction

The line between academia and scholarship on the one hand and punditry and activism on the other has become increasingly blurred in Canada, especially in the wake of the coalition-prorogation crisis of December 2008. Recent works like Democratizing the Constitution: Reforming Responsible Government are emblematic of the attempt, as well as the failure, to reconcile the mutually exclusive concepts of political activism and constitutional scholarship.

A spin off of that book, Lori Turnbull’s column “A three-peat for prorogation? Bring on reform” in the Globe and Mailalso effectively underscores this problem: sometimes the correct academic argument becomes an obstacle to effective activism. The article makes at least two factual errors and, more broadly, purports a serious conceptual error of interpretation about the nature of crown prerogative and the role of unwritten convention in Canada’s constitution.

Problems with Turnbull’s Column and Democratizing the Constitution: Reforming Responsible Government

On Prorogation and Crown Prerogative

Turnbull argued:

Technically, the power to prorogue belongs to the Crown and can be exercised “officially” by the governor-general alone, but this would never happen without the advice of the prime minister. No Canadian governor-general has refused a prime minister’s advice to prorogue. So history would suggest that the prime minister, not the governor-general, calls the tune, regardless of where the power lies constitutionally. This is not the case in other Westminster jurisdictions.

The Dignified and the Efficient Parts of the Crown

The Supreme Court of Canada recognized in the Patriation Reference that “constitutional conventions plus constitutional law equal the total constitution of the country.” Therefore,  constitutional conventions and the written constitution form equally important parts of Canada’s constitution. The Supreme Court cannot use one part of the constitution (like the Charter) the strike down another part of the constitution (like crown prerogative or parliamentary privilege). The Constitution Act, 1982 mentions that the governor general dissolves parliament, but the Letters Patent, 1947 provide the only complete written instruction that the governor general summons, prorogues, and dissolves parliament. By convention, the governor general cannot exercise any of those powers independently and does so only on the advice of the prime minister. According to the Manual of Official Procedure of the Government of Canada, the governor general’s reserve powers may allow him to reject the prime minister’s advice to dissolve, but not to prorogue or summon, parliament. The rejection of the prime minister’s advice does not equal independent gubernatorial action. Strictly speaking, “the Crown” consists of two parts, what Bagehot called the “dignified” and “efficient” functions, respectively: the Sovereign and governor general, and the prime minister and cabinet. Thus, “crown prerogative” follows this division; the sovereign or governor general possesses “reserve powers” (what I call “royal prerogative”), and prime minister and cabinet control the Governor-in-Council’s crown prerogative.

Given the role of convention in Canada’s constitution, I disagree with Turnbull’s assertion that the governor general can “officially” summon, prorogue, or dissolve parliament independently. Turnbull states correctly that no governor general has ever rejected the prime minister’s advice to prorogue. Based on my analysis above, I find the next statement problematic: “So history would suggest that the prime minister, not the governor-general, calls the tune, regardless of where the power lies constitutionally.” (Isn’t the idiom ‘to call the shots’?) The “power lies constitutionally” in both the governor general and the prime minister, who in effect jointly exercise this crown prerogative.

This over-simplification of crown prerogative and the role of convention in Canada’s constitution probably resulted from the constraints of the newspaper column. In any case, I would have attempted to re-phrase the nature of crown prerogative more effectively, perhaps as:
The crown’s prerogative powers to summon, prorogue, and dissolve in fact rest with both the governor general and the prime minister because the former only acts on the advice of the latter. Any attempt to alter formally and substantively this relationship between the governor general and the prime minister – the crown as a whole – would require an amendment to Section 41 (a) of the Constitution Act, 1982 (“the Office of the Queen, Governor General, and Lieutenant Governor of a province”), which requires the unanimity of the Parliament of Canada and all 10 provincial legislatures.

But more fundamentally, I disagree that the crown prerogative on prorogation should be eliminated and the power vested in the legislature, and ironically, this system would detract from the House’s”basic functions, including holding the government to account.” The government introduces most legislation, for which the opposition holds the government to account. The Prime Minister normally advises prorogation upon the completion of his government’s legislative program; the House’s basic function of holding the crown to account for its expenditures does not include the determination of the end of the government’s legislative agenda.

Jarvis and Turnbull acknowledge in the conclusion of Democratizing the Constitution that their plan to eliminate the crown prerogative of prorogation and vest it in parliament via a two-thirds supermajority would require a formal constitutional amendment, but I think that they have greatly underestimated the difficulty in achieving unanimity under Section 41 (a) of the Constitution Act, 1982.

Nevertheless, in her individual column, Turnbull argues that the Standing Orders of the House of Commons could formally constrain or eliminate the crown prerogative on prorogation.

A political prorogation is a blatant abuse of a prime minister’s access to the Crown’s prerogative powers. As citizens of an elected democracy, we should not tolerate it and, with a few basic changes to the House rules, we wouldn’t have to [emphasis added].      

I guess that Turnbull forgot about the arguments and political activism contained in her own book? Maybe Turnbull should have talked to Jarvis before submitting this column, and then he could have reminded her about the book that they wrote together, and how it was more accurate about this particular subject…

“Other Westminster Jurisdictions”. Which Ones? Please Elaborate!

Turnbull argues : “So history would suggest that the prime minister, not the governor-general, calls the tune [sic (‘Calls the shots’, perhaps?)] , regardless of where the power lies constitutionally. This is not the case in other Westminster jurisdictions.” In which other Westminster jurisdictions has the crown prerogative on prorogation been eliminated? As I explained in the entry on Alex Salmond’s vision of an independent Scotland, the Scottish Parliament has eliminated the crown prerogatives on the summoning and dissolution of parliament by codifying the fixed elections to and automated summoning of parliament in the Scotland Act, 1998. However, the Scotland Act makes no mention whatsoever of the words “prorogue” and “prorogation”, which means that rather than eliminating the crown prerogative on prorogation, it eliminated prorogation itself. I explained in my entries on fixed-elections in the Commonwealth that the Westminster Parliament has devised the Fixed-Term Parliaments Act, which eliminates the crown prerogative on dissolution. The Act also says in Section 6, Paragraph 1 that “This Act does not affect Her Majesty’s power to prorogue Parliament.” The Fixed-Term Parliaments Act, 2011 does not affect prorogation at all. The New Zealand Cabinet Manual and the website of the Governor-General of New Zealand indicate that the Governor-General summons, prorogues, and dissolves parliament on the advice of the Prime Minister. The website of the Governor-General of Australia shows that the Australian viceroy carries precisely the same functions. None of the Canadian provinces have eliminated crown prerogative on prorogation either. I’m quite certain that all six Australian states also preserved the traditional standard.

So what other Westminster jurisdiction operates on the Jarvis-Turnbull principle that only a supermajority of two-thirds of the MPs in the lower house can sanction prorogation? I’ve only looked to the core Commonwealth, but I really wanted to know! Maybe Tuvalu or Jamaica do? And what does Turnbull mean by “Westminster jurisdiction”? I suspect that the phrase would only include legislatures within the 16 Commonwealth Realms that recognize Queen Elizabeth II as their Sovereign, but the vague term could also conceivably include any parliament within one of the 54 member-states (this figure includes the 16 Realms) of the Commonwealth of Nations, since they were all once part of the British Empire. Surely, the editors of the Globe and Mail could have accommodated a few extra words that elaborate on this argument.

Prime Minister Harper Has Thus Far Advised THREE Prorogations, Not Two.

Compared to the aforementioned significant conceptual errors, this statement seems minor. The Parliament of Canada provides an excellent repository of information on all of Canada’s 41 Parliaments, called ParlInfo. It compiles all statistics on the life of all 41 Parliaments, including every summoning, adjournment, prorogation, intersession, and dissolution in the history of the institution.

Turnbull argued: “If the rumours are true, this would be the third time that Mr. Harper has prorogued Parliament. The first occurred in December, 2008 […].” This is incorrect. According to ParlInfo’s statistics on the 39th Parliament, Prime Minister Harper advised that his first prorogation occur on 14 September 2007, and the 2nd session of the 39th Parliament then convened on 16 October 2007 with a Speech from the Throne. Harper subsequently advised prorogation twice in the 40th Parliament. The first prorogation of the 41st Parliament will be the Harper government’s FOURTH, not third. Perhaps Turnbull meant, “the first prorogation of the 41st Parliament will be the Harper government’s third controversial prorogation.”

More fundamentally, now that the PM Harper leads a majority government, why would he advise a prorogation before the completion of his legislative agenda? Turnbull’s column never adequately responds to this point. The Prime Minister will not advise a prorogation until his current legislation program has passed both Houses of Parliament and received Royal Assent. Turnbull herself acknowledges that “[Routine prorogations] occur when the government has fully implemented its current agenda.” Perhaps Turnbull fears that the intersession of the prorogation would become too long. But in a majority parliament, the Harper government would never employ what she terms a “political prorogation” in order “to muzzle opposition criticism, to escape parliamentary scrutiny.” Her argument breaks down at this stage, because the Prime Minister clearly would not request a prorogation in a majority parliament until his legislation program has received Royal Assent, and because the opposition cannot truly threaten the viability of the government; only the Conservative backbenchers can in this majority parliament.

Turnbull continues:

The 2012 prorogation would be substantively different. First, there is no obvious political land mine to avoid. Second, the Conservatives have demonstrated how majority status confers an immunity of sorts from even the most scathing criticism from the opposition benches. These factors make a potential upcoming prorogation less necessary from a political standpoint, but the fact remains: We live in a country where a prime minister can shut down the House, the pre-eminent institution of our parliamentary democracy, on a whim, for no particular reason.

Conclusion

Essentially, the last quoted paragraph says, “I don’t like Stephen Harper, and therefore the rules by which prorogation is carried out should be changed.” This is what I mean by political activism as opposed to constitutional scholarship. The political activists use emotive words and phrases with negative connotations like “abuse”, “acting in bad faith”, “shutting down parliament”, etc. in order to justify their arguments and, more importantly, in order to portray anyone who disagrees with them as enablers of this “abuse.” This method therefore assigns a negative moral judgement to all those who disagree with the political activist’s arguments and attempts to portray those opposed as deceptive at best and evil at worst. This political activist’s tactic subtlety attempts to limit the parameters of acceptable discourse from the outset; in contrast, a true constitutional scholar would “follow the logos”, acknowledge the fair points of opposing arguments, and draw conclusions after examining all available evidence. The political activist defines his position and dismisses competing views as not only factually incorrect or conceptually flawed, but as morally wrong. In so doing, the political activist attempts to frame the debate and market his ideas in the media and to anyone who will listen.

Ultimately, academics must choose: will they engage in true constitutional scholarship, or will they descend into punditry and political activism? In addition, once they have chosen, will they masquerade thinly veiled political activism as having produced true constitutional scholarship? As I described in the “about” section of this blog, the Coalition-Prorogation Crisis of 2008 galvanized me and motivated me to learn more about Canada’s constitution. At the time, the Conservatives made incorrect and inaccurate statements about the legality of coalition governments in the Westminster system; and the Liberal-New Democratic coalition that the Bloc supported made incorrect and inaccurate statements about prorogation, crown prerogative, and what constitutes a loss of confidence in the government. I reserve criticism for both sides. In “No Discretion”, Nick MacDonald and I offered a novel interpretation of prorogation and the nature of the reserve powers of the crown, which I hope has enriched the overall scholarship and academic literature. However, in the conclusion, we acknowledged the normative nature of some of the arguments and that they contradict how some of the events unfolded in reality– because that piece intended to offer novel constitutional scholarship that challenged the prevailing orthodoxy through an historical analysis, rather thinly-veiled political activism designed as a call to reform the system.

While researching for my individual paper that contributed to “No Discretion”, a wise historian told me that in the wake of the Coalition-Prorogation Crisis of 2008, many scholars have conflated the political with the constitutional (in other words, used their political views in order to make an interpretations of the constitution) and thus failed to maintain the distinctions between the two. I could not agree more, and I would extend the distinction to one of constitutional scholarship vs. political activism.

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The Origins of Centralizing Executive Authority in the Prime Minister

Posted on 2011/11/27 by J.W.J. Bowden

PC 1935-3374.jpg-large

Introduction

The scholarly consensus on cabinet government in Canada argues that from Prime Minister Trudeau’s first government (1968 to 1979, the 20th Ministry) onward, the powers of the prime minister have become more centralized relative to both those of cabinet and parliament. Fed largely by Donald Savoie’s magnum opus Governing from the Centre: The Concentration of Power in Canadian Politics, the mythology of cabinet government in Canada also asserts that the Pearson government (the 19th Ministry, 1963 to 1968) was the last to practise the principle of cabinet government that the prime minister acted as primus inter pares (“first among equals”), and that from Prime Ministers Trudeau to Harper, cabinet government has suffered from an inexorable decline into irrelevancy. The scholarly consensus thus sanctifies Pearson as the last non-centralizing prime minister and friend of the classical model of cabinet government, and respectful of parliament. I finally located some primary historical documents that contradict this narrative and show that, in fact, William Lyon Mackenzie King started the trend of centralizing the prerogative of the Crown-in-Council (the cabinet) in the office of the prime minister, and that Lester B. Pearson further entrenched prime ministerial centralization. This evidence also exposes the federal Liberals’ current exaggerated or fabricated claims on priding themselves as the party that respects parliament.

Mackenzie King and Order-in-Council P.C. 3374, 25 October 1935: “Memorandum Regarding Certain of the Functions of the Prime Minister”

Mackenzie King

Professor Bruce Hicks of Concordia University demonstrated in “The Crown’s ‘Democratic’ Reserve Powers” that Prime Ministers Mackenzie King and Lester Pearson succeeded in centralizing key aspects of the crown prerogative of the Governor-in-Council into the office of the prime minister. He cited two primary historical documents that I have finally tracked down and uploaded to Parliamentum. Professor Hicks explained to me that through an Order-in-Council, King succeeded in effectively vesting the powers to advise the governor general to summon, prorogue, and dissolve parliament in the prime minister alone; however, his method still generated a meeting minute in Cabinet’s office record, which gave other Ministers of the Crown the opportunity to protest the decision, or worse still, leak it to the press.

A friend asked me if I had heard of a document called “Memorandum regarding certain of the functions of the Prime Minister.” I knew of the existence of an Order-in-Council to that effect, based on Professor Hicks’s article, but I had not known its specific title. I started researching and found a reference to this Order-in-Council in O’Brien and Bosc’s Parliamentary Procedure and Practice, listed footnote 108 as P.C. 3374, enacted on 25 October 1935. This reference in turn provided me with all the necessary information in order to locate this Order-in-Council on microfilm in the Library and Archives. After struggling with a finicky microfilm reader for about 30 minutes, I finally found P.C. 3374 at the very end of the reel (of course) and saved a digital copy of both pages of the Order-in-Council. (I really hate microfilm, though I recognize its utility in the pre-digital era).

You can view the “Memorandum regarding certain functions of the Prime Minister” here.

I soon discovered that the Memorandum contained more than Professor Hicks had indicated. It pertains to “certain of the functions of the Prime Minister”; the first three points relate to the conduct of cabinet meetings. Point 1 states that the Prime Minister calls cabinet meetings, and point 2 defines quorum as 4 Ministers of the Crown. Point 3 augments the Prime Minister’s position as the head of cabinet by clarifying one of the lines separating individual and collective ministerial responsibilities; the Prime Minister alone must act “affecting the discipline of the Department of another Minister”, such that the other individual Ministers of the Crown will concern themselves only with their departments. Finally, Point 4 transfers some of the Crown-in-Council’s prerogative to the Prime Minister alone. Most of these provisions still apply today, which makes this Order-in-Council historically significant.

4.The following recommendations are the special prerogative of the Prime Minister:
Dissolution and Convocation of Parliament:

Appointment of –

 Privy Councillers;
Cabinet Ministers;
Lieutenant Governors;
(including leave of absence of the same);
Provincial Administrators;
Speaker of the Senate;
Chief Justices of all Courts;
Senators;
Sub-Committees of Council;
Treasury Board;
Committee of Internal Economy, House of Commons;
Deputy Heads of Departments;
Librarians of Parliament;
Crown Appointments in both Houses of Parliament;
Governor General’s Secretary’s Staff;

Recommendations in any Department.

Whether this Order-in-Council PC 3374 officialised a drastic shift in the exercise of the Governor-in-Council’s crown or merely acknowledged the current practice of the era in writing for the first time, this primary historical document provides a fascinating insight into the third King government and the first written origins of prime ministerial centralization.

The Manual of Official Procedure of the Government of Canada and Lester Pearson’s “Instrument of Advice for Issue of Proclamation Dissolving Parliament

Hicks also mentioned Pearson’s reform, or “innovation”, as it were, and I located a primary source corroborating his journal article. The Manual of Official Procedure of the Government of Canada indicates on page 408 that “The advice to dissolve Parliament is a prerogative of the Prime Minister”, and the Appendices on page 634 provide an example of Prime Minister Pearson’s “Instrument of Advice for Issue of Proclamation Dissolving Parliament.”  Prime Minister Pearson, building upon King’s Order-in-Council, succeeded in cutting out the cabinet entirely from the decision-making process on advising dissolution by sending a written request directing to the Governor General in order to avoid generating a cabinet meeting minute. Pearson wrote in this “Instrument of Advice.”

Your Excellency,

The undersigned has the honour to advise that Your Excellency may be pleased, in the Queen’s name, by Instrument under the Great Seal of Canada, to dissolve the present Parliament of Canada as of the 8th day of September, 1965.

Respectfully submitted,

L.B. PEARSON
Prime Minister

Approved
GEORGES P. VANIER
7th September, 1965[1]

Despite the coded diplomatic language so emblematic of constitutional monarchies, this letter effectively commands the Governor General to carry out the Prime Minister’s advice. The Manual of Official Procedures states elsewhere that the Governor General possesses no discretion to refuse the Prime Minister’s advice to summon or prorogue parliament[2] and that the Governor General may only reject the Prime Minister’s advice to dissolve “in those rare and almost indefinable circumstances when it is necessary for the protection of the constitution.”[3] The “Instrument of Advice” and the above passage suggest that the Governor General possesses only the most limited authority to reject the Prime Minister’s advice to dissolve.

Conclusion

Lester Pearson

King’s Order-in-Council and Pearson’s “Instrument of Advice” also vest a clear advantage into the Prime Minister vis-a-vis cabinet by cutting all other Ministers of the Crown out of the constitutional loop. Therefore, I would argue that King’s and Pearson’s interpretations of crown prerogative set the stage for Trudeau’s subsequent reorganization of the cabinet committee structure, the Privy Council Office, and the Prime Minister’s Office by eroding the principle of primus inter pares well before the dates that bulk of the academic literature cites. The majority of scholars already agree that Mackenzie King presented centralizing tendencies (if only because of his long tenure in office), but scholars have largely overlooked Pearson’s. We remember Pearson as the consummate diplomat who won the Nobel Peace Prize and created modern peace-keeping in the Suez Crisis of 1956, the visionary nationalist who replaced the Canadian Red Ensign with the Maple Leaf in 1965, and the compassionate leader who fought for the Canada Health Act and established universal healthcare – the latter two while leading a minority government. I remember Pearson as the Prime Minister who commissioned the Manual of Official Procedure of the Government of Canada. Historians and political scientists should take note of Pearson’s latent centralizing tendencies and acknowledge that if Pearson’s gamble of advising early dissolution in 1965 had paid off and if he had won a majority government, he may have governed quite differently indeed. However, such an acknowledgement would require a re-evaluation of the Great Liberal Myth.

[1] 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): 634.
[2] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar.(Ottawa, Government of Canada, 1968): 150.
[3] Ibid., 409.

Posted in Crown (Powers and Office), Governor's Discretion, Officialization of Convention, Prime Minister's Powers, Prorogation | Tagged , , , , , | 17 Comments

The Liberal Party’s “Roadmap to Renewal” Leads To Closed Primaries

Posted on 2011/11/21 by J.W.J. Bowden

The Liberal Party of Canada has elaborated on its plans to hold something akin to an open primary in the selection of its next leader in the Roadmap to Renewal. I mentioned the proposal in an earlier entry before the Liberals had formally released this document. The Liberals made the leadership primary the centerpiece of their Roadmap, but they’ve also devised the basis of a plan for the democratization of the nomination process at the local level. The local level will ultimately provide the most fertile ground for new party activists, so the Liberals should really concentrate their efforts on their constituency associations and only then proceed to the level of national leadership – if they seek a genuine bottom-up, democratic renewal. In other words, the Liberals need to cultivate their grass roots and a powerbase before making any pretence of forming government again.

These three paragraphs describe the Liberals’ conception of primaries. This kind of primary sounds more like what our American friends call “closed primaries”, in which only the party membership vote; in contrast, all registered electors can vote in an open primary. But the introduction of two tiers of involvement (members and “supporters”) could complicate matters.

7.  That the Constitution be amended to extend the right to participate in the  selection of the next permanent Leader of LPC to all Members and Supporters as defined in section 5, permitting electronic, online and mail-in voting, utilizing either a preferential or run-off ballot system, in the context of an appropriately secured, national voting process that:
(i)  is staged and phased regionally over a period of no less than 10 and no more than 16 weeks between March 1, 2013 and June 30, 2013;
(ii) is weighted equally by electoral district;
(iii)  is confirmed by a vote of the Council of Presidents (“CoP”) at an in-person meeting of the CoP in the manner of an electoral college vote; 

8.  That the Constitution be amended to extend the right to participate in the nomination of LPC candidates for the House of Commons in any election or by-election to all Members and Supporters living in the electoral district, permitting electronic, online and mail-in voting, using a preferential system and a single-vote selection process that is appropriately secured;

9.  That the Convention affirm the principle of requiring all LPC candidates for the House of Commons in any election or by-election to face an open nomination contest in their electoral districts in order to stand  for election as an LPC Candidate in any election or by-election, subject to the Board’s right to approve specified exceptions to the rule at the request of and on the recommendation of the Leader.

The Liberals would introduce a preferential ballot to both the national and local levels and aim to attract new members and “supporters” in the hope of creating a new electoral base of support. But if the Liberals weigh each electoral district equally, then they’ll entrench the same mistake as the Conservatives and punish the more populous and active riding associations. So what is their incentive to recruit new members and supporters? As I speculated in the earlier post, the Liberals aim to hold their primary contest in phases “regionally” (which presumably means Atlantic, Quebec, Ontario, West, though alternatively, it could also involve dividing the larger provinces into regions like GTA, Northern Ontario, etc. We’ll have to wait and see). Then the third point adds another bizarre layer of bureaucracy and codifies precisely the internal party’s power struggles that caused the Liberals to become so detached from their base and lose electoral support: the presidents of all the Liberal riding associations would gather and “confirm” the votes of the Liberal members and supporters “in the manner of an electoral college vote.” What exactly does this process entail? I can only presume that the document is alluding to the American electoral college used in presidential elections – but under that system, a state’s population ultimately determines its number of votes in the electoral college. But if the Liberals intend to weigh all riding associations equally, then the “Council of Presidents” would not really function like the electoral college; rather, it would function as some kind of aristocratic counter-weight to the popular election of the leader. In turn, this process of confirmation implies that the candidates win electoral districts as a whole in a winner-takes-all format, rather than a proportional division of votes within each electoral district added for a country-wide score. In short, a leader elected under such a system would be beholden both to Liberal activists and the internal machination of the Liberal Party – but not to the parliamentary party, the Liberal caucus. This “Leader” could easily become an omnipotent figure that caucus cannot remove and against whom the parliamentary party would be virtually powerless.

The third paragraphs sets out a procedure whereby any Liberal MP would face an open nomination in the manner of the closed primary described above – but “subject to the Board’s right to approve specified exceptions to the rule at the request of and on the recommendation of the Leader.” This caveat means that the “Leader” (notice the unnecessary capitalization?) could ultimately determine which MPs face challenges and those who don’t. This system practically begs for some corruption and nepotism.

The contradictions between the good democratic proposals and the entrenchment of the powerful anti-democratic power of the party executive may undermine this new process in the long term. I do, however, welcome the prospect of any political party implementing closed primaries.

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The Royal Line of Succession: Coordinating Amendments to the Act of Settlement in the 16 Commonwealth Realms

Posted on 2011/11/20 by J.W.J. Bowden

Introduction

Queen Elizabeth II Opens CHOGM 2011 in Perth.

The Commonwealth Heads of Government Meeting (CHOGM, pronounced “Chog-m”) convened in Perth, Western Australia at the end of October. The Commonwealth Heads of Government discussed, among other issues, the Cameron government’s legislation to amend the Act of Settlement, 1700. Among other things, the Act establishes the rules that determine the succession to the Crown of the United Kingdom of Great Britain and Northern Ireland; Prime Minister Cameron wants to repeal male primogeniture through an amendment that would take into account the first-born child rather than the first-born son and repeal the penalty on marrying Catholics (or “Papists” as the current wording says!), which currently causes a royal to lose his or her place in the line of succession. However, these reforms would still maintain the established Church of England and the overall Protestant succession: the Sovereign, being the Head of the Church of England, and royals in the line of succession who still harbour any desire toward the possibility of becoming King or Queen, still must adhere to the Anglican faith.

Perhaps I’m succumbing to typical grad-student phraseology again, but the sheer historical and legal complexity of this issue of the Protestant succession combined with the overlay of the Doctrine of Reception in the former colonies and current Commonwealth realms does not lend itself to a succinct, concise blog entry. I may devote a few more entries to this subject. In this case, I will describe the historical significance of both parliament’s control of the line of succession, in the forms of the Bill of Rights, 1688and the Act of Settlement, 1700, and the Cameron government’s amendments to the Act of Settlement. I will also discuss the implications of the British government’s amendments and how they relate to the Statute of Westminster and the other 15 Commonwealth realms that vest their crowns in the same person, Queen Elizabeth II. The parliaments of the other 15 realms will likely pass legislation of identical effect because all the Prime Ministers of the Commonwealth realms have agreed in principle at the latest CHoGM on the elimination of male primogeniture and the penalty for marrying Catholics. Australian constitutional scholar and Professor of Law at the University of Sydney, Anne Twomey, has suggested that Australia and Canada, as the only two federations among these 16 Commonwealth realms, may face some legal-constitutional obstacles in reforming their version of the Act of Settlement.

I support the two proposed changes. I only wish that Prime Minister Cameron in particular were willing to acknowledge that the Act of Settlement contains far more than simply the codification of male primogeniture and the penalty applied to royal marriages to Catholics. In fact, the Act of Settlement and the Bill of Rights represent the triumph of parliamentary sovereignty by vesting power in the crown-in-parliament rather than simply in the Sovereign’s person.

The Bill of Rights and the Act of Settlement

The Act of Settlement, “William III By the Grace of God”

The Constitutional Settlement of 1688 established that under a constitutional monarchy, Parliament controls the royal line of succession. The Bill of Rights, 1688 and the Act of Settlement, 1700 served to secure and solidify the progress of parliament and the supremacy of the Crown-in-Parliament. Thus far, Parliament has twice exercised this power in order to install a new royal house of the Protestant faith: in the 17th and 18th centuries, Parliament saw Catholic kingship, associated with Continental absolutism abroad and intense civil strife at home, as a fundamental threat to English liberty and England’s independence. Coincidentally, The Bill of Rights reads like the Declaration of Independence and lists a whole series of offences that James II committed as King. It clearly equates Protestantism to liberty and proclaims (in an era before standardized English spelling): “Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome.”

As David Starkey explains in Monarchy, the accession of the overtly Catholic James II (brother and first legitimate heir of Charles II) in 1685 caused significant consternation and strife and raised serious constitutional difficulties from the outset because all monarchs after Henry VIII had been the Supreme Governor of the Church of England and Anglican. “James drew up a Declaration of Indulgence, which offered universal religions toleration to all Anglicans, Catholics, and Protestant dissenters.” James II invoked his crown prerogative on enforcing religious toleration in an attempt to impose an absolute monarchy on Great Britain.

By 1688, the birth of James II’s son, who would eventually have secured a re-Catholization of Britain, alienated key segments of Parliament and the Church of England – Tory and Whig alike. Parliament then took the “revolutionary and treasonable step” on 30 June 1688 of inviting William of Orange, who had married Mary Stuart (daughter of James II), to invade Britain and become King. William III landed on 5 November 1688 (“another auspicious day for Protestants”). James II underwent a “psychosomatic crisis” after losing faith and convincing himself that God was in fact on William’s Protestant side. His daughters Mary and Anne supported William, and James fled to France in exile later that year. Parliament deemed James II to have abdicated both his own kingship as well as those of his Catholic heirs and successors in the House of Stuart. The Bill of Rights, William of Orange and Queen Mary as co-monarchs. Queen Anne succeeded his sister Mary after William & Mary died without issue. “England had in effect elected a King and Queen. England and the monarchy would never be the same.” Thus the “Glorious Revolution” and the Bill of Rights secured the Protestant succession and Parliament’s authority to determine that line of succession through “an armed yet bloodless invasion”.

The Bill of Rights equates Protestantism with England’s liberty and independence and codified the first ban on marrying Catholics:

“And whereas it hath beene found by Experience that it is inconsistent with the Safety and Welfaire of this Protestant Kingdome to be governed by a Popish Prince or by any King or Queene marrying a Papist the said Lords Spirituall and Temporall and Commons doe further pray that it may be enacted That all and every person and persons that is are or shall be reconciled to or shall hold Communion with the See or Church of Rome or shall professe the Popish Religion or shall marry a Papist shall be excluded and be for ever uncapeable to inherit possesse or enjoy the Crowne and Government of this Realme […].”

But the Bill of Rights also contains other significant provisions that provided the basis for our modern liberties. It codified parliamentary privilege: “That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.” The Bill of Rights also codified the supremacy of the Crown-in-Parliament: “That the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall.”

In 1707, Parliament passed the Act of Settlement, which provided that after the demise of Queen Anne, who had no royal issue, the crown would pass on to her closest Protestant successor, Princess Sophia of Hanover and her descendents. The Act entered into force in 1714, and the House of Hanover established itself with George I:

“His Majesty had recommended from the Throne a further Provision for the Succession of the Crown in the Protestant Line. The Princess Sophia, Electress and Duchess Dowager of Hanover, Daughter of the late Queen of Bohemia, Daughter of King James the First, to inherit after the King and the Princess Anne, in Default of Issue of the said Princess and His Majesty, respectively and the Heirs of her Body, being Protestants.”

David Cameron dismissed the penalty for marrying Catholics as “an historical anomaly” and betrayed the legacy of liberty that the Bill of Rights and Act of Settlement secured. If anything, this provision is an anachronism, not an anomaly: the penalty for marrying Catholics used to serve a valid and necessary function, but in the 21st century, it no longer performs any legitimate function, and Parliament should therefore repeal it.

The Amendment of the Canadian Act of Settlement

The legal Doctrine of Reception means that Canada, and the other Commonwealth realms, have at various times “received” English statutory and common law to the extent that those laws proved relevant in the colonies. (See Peter Hogg’s Constitutional Law of Canada for detailed information on reception). This reception undoubtedly included the Bill of Rights, 1688 and the Act of Settlement, 1707. The Parliament of Canada can therefore amend the Canadian version of this act, subject to the written constitution.

Anne Twomey, Professor of Law at the University of Sydney, delivered a presentation to the Constitution Unit “Changing the Rules of Succession and the Problem of the Realms.” She concluded that the Statute of Westminster does not empower the Commonwealth realms with a veto over the sovereignty to the British Parliament to amend the Act of Settlement, 1700; however, it is certainly in the best interest of all 16 realms to coordinate their respective legislation in order to avoid bifurcating the 16 crowns.

Changing the Rules of Succession and the Problem of the Realms from Department of Political Science on Vimeo.

Twomey suggested that s. 41(a) of the Constitution Act, 1982 might require the use of the unanimity amending formula in order to change the rules of succession to the Crown of Canada, depending upon the interpretation of “Office of the Queen, Governor General or Lieutenant-Governor of a Province.” Twomey suggested that that “Office” refers to the powers and functions and not to the rules by which the succession to the Crown of Canada is determined. I concur with this interpretation and hope that the Government of Canada will argue that Section 41 (a) “Office of the Queen, Governor General, and Lieutenant-Governor of a Province” refers to the crown prerogative, or the powers, functions, and existence of the office – not the rules by which the line the succession is determined. If this interpretation stands, then the Parliament of Canada could probably amend the legislation unilaterally, though the Government of Canada may choose to consult the provincial governments.

O’Donohue v Canada

So far, only Tony O’Donohue v Her Majesty the Queen in Right of Canada, Her Majesty the Queen in Right of Ontario offers any kind of interpretation of the Act of Settlement in Canada. However, I found some parts of the ruling contradictory, and because it came from a lower court, the Ontario Superior Court of Justice, a higher court could well overturn it. Tony O’Donohue alleges that the “certain provisions of the Act of Settlement are of no force or effect as they discriminate against Roman Catholics in violation of the equality provisions of the Canadian Charter of Rights and Freedoms.” The ruling correctly states that by the doctrine of reception and because of the importance of the law, the Act of Settlement has become part of Canada’s unwritten constitution. As such, the Charter cannot be invoked in order to strike down any part of the Act of Settlement, because logically every part of the constitution, written or unwritten, is inherently constitutional (even if certain points come into conflict). The courts therefore cannot use one part of the constitution to strike down another. In addition, the Court acknowledges that even if the Canadian Act of Settlement were successfully challenged, the Canadian ruling would have no force and effect in the United Kingdom. This conclusion conforms to the Doctrine of Reception and recognizes the separation of the British and Canadian versions of the statute.

The Status of the Crown of Canada

Tidridge shows that the Statute of Westminster, 1931 formally created the independent crowns of the Commonwealth Realms.

Then the ruling starts to become inconsistent. At paragraph 17, it says that “the impugned portions of the Act of Settlement are a key element of the rules governing succession to the British Crown.” But if they already established that the Canadian version of the Act has no bearing on British succession, then logically it cannot effect the “British Crown”, but only the Crown of Canada. This phrase is also problematic because it implies that the Crown of Canada and the Crown of the United Kingdom are one and the same entity, even though they are constitutionally separate because of the Dominion Conferences of 1926 and the Statute of Westminster, 1931. But at paragraph 34, they say that only an act of the Parliament of Canada made Edward VIII’s abdication of the “Crown of Canada” effective. Then at paragraph 36, the ruling argues that “Canada is united under the Crown of Great Britain, ” and paragraph 27 asserts that “we […] share the Crown with the United Kingdom.” In reality, we don’t share the Crown with the United Kingdom: our two crowns are just held by the same individual, Queen Elizabeth II. Second, paragraphs 34 and 36 seem to contradict one another on the constitutional distinction and uniqueness of the Crown of Canada relative to the Crown of the United Kingdom.

The “Office of the Queen”, the Statute of Westminster as Treaty, and Succession in Canada

The ruling argues that the Statute of Westminster acts as a treaty and that “the rules by which succession is determined” act as “the core of how the monarchy functions” (para, 38); therefore, amendment to the Canadian Act of Settlement would “bring about a fundamental change in the office of the Queen” and require the use of s. 41 (a) of the Constitution Act, 1982 (para 33).

The judges based that assertion on the interpretation of the Statute of Westminster as “a treaty among the Commonwealth countries to share the monarchy under the existing rules and not to change the rules without the agreement of all signatories” (para 33). This argument does not make sense for several reasons. First, the term “Commonwealth countries” cannot be used interchangeably with “Commonwealth realms” because of the 54 member-states of the Commonwealth of Nations, only 16 are constitutional monarchies that recognize Elizabeth II as their head of state.  Second and most fundamentally, Professor Twomey presents a thorough and convincing case why the Statute of Westminster should not be considered a binding treaty. It is an act of the British Parliament, the last piece of legislation that the Imperial Parliament passed that truly affects the Dominions by formally ensuring that “the United Kingdom would no longer impose British statutes on the various dominions without their accord.” Perhaps more importantly, its “signatories” only included the six self-governing Dominions of 1931 (Australia, Canada, the Irish Free State, New Zealand, Newfoundland, and South Africa); Ireland and South Africa have since become republics, and Newfoundland has since became part of Canada. A treaty would necessarily need to be updated in order to take into account all these significant changes and that there are 16 Commonwealth Realms today.

O’Donohue incorrectly applies the rules by which succession is determined to section 41 (a) based on the faulty interpretation of the Statute of Westminster as treaty. Since this premise is incorrect and some of the other premises contradict one another, I can only conclude that the overall conclusion that succession falls under “office of the Queen” is therefore also wrong and deeply flawed.

Conclusion

The Constitutional Settlement of 1688-89 constituted what American historian Steven Pincus has dubbed “The First Modern Revolution”: in this case, Parliament asserted its power to determine the royal line of succession and destroyed the notion of the Divine Right of Kings and monarchical absolutism. Parliament selects the monarch, not God. England sowed the seeds of this Glorious Revolution in the 1640s and 1650s during the brutal civil wars between the Royalists and the Parliamentarians (the Roundheads and the Cavaliers) and the Cromwellian Protectorate; without significant bloodshed, Parliament had revolutionized England and laid the foundation for parliamentary limitations of the royal prerogative, constitutional monarchy, and representative government. Parliament deemed the Protestant succession a necessary condition for the preservation of parliamentary sovereignty and English liberty and so enforced that principle in the Bill of Rights, 1688 and the Act of Settlement, 1700.

The penalty for marrying Catholics has long since become an anachronism, and the Westminster Parliament certainly possesses the power to repeal this measure. Theoretically, a member of the Royal Family could marry any “dissenting [non-Anglican] Protestant”, a Jew, a Muslim, a Hindi, or whatever and still retain his or her place in the line of succession; only marriage to a “Papist” would forever bar them from the throne. The Statute of Westminster does not empower the 15 other Commonwealth realms that also recognize Queen Elizabeth II as their head of state with a veto over the sovereignty of the Westminster Parliament: a) because the Doctrine of Reception means they have all received the Bill of Rights and Act of Settlement into their bodies of law, and that they would therefore separately and independently amend their received Acts of Settlement and b) because the Statute of Westminster recognized the legal and constitutional independence of the self-governing colonies. If the British Parliament can no longer legislate for the Commonwealth realms, then logically the parliaments of the Commonwealth realms cannot legislate for the United Kingdom – because each country’s parliament exercises its sovereignty only within the confines of its territory. However, it is in the best interest of the Commonwealth Realms to coordinate this effort if they all want to vest their separate crowns into the same person, as has been the historic practice. Again, I would argue that such “bifurcation” is possible. Each country has received the Act of Settlement and incorporated it, implicitly or explicitly, into its body of law and can amend its legislation accordingly as long as the crown remains with a descendent of Princess Sophia of Hanover. The corollary of this principle might mean that the parliament of a Commonwealth realm could abolish the crown altogether – except those like Australia and Canada, whose parliaments are subject to written constitutions and amending formulas. Any such amendments would not affect the first two royals in the line of succession (Charles Prince of Wales and the William Duke of Cambridge) because they are both first-born children married to Protestants; the new rules would first directly apply to the children of Will and Kate. If the repeal of male primogeniture is enacted, then the first-born child, rather than first-born son, of Will and Kate will follow William in the line of succession.

British Prime Minister David Cameron delivered a speech to the most recent CHoGM and declared that each of the 16 realms will strive to implement the necessary measures at the same time. A press release confirms that “The Prime Ministers have agreed in principle that they will each work within their respective administrations to bring forward the necessary measures to enable all the realms to give effect to these changes simultaneously.”  

I expect that the Harper government will introduce the necessary legislation in the 2nd session of the 41st Parliament and devote a significant portion of the next Speech from the Throne to these historic amendments. The Prime Minister’s Office issued this press release on during the CHoGM but so far hasn’t made any new announcements. I’ll keep an eye on key developments and write about them as the information becomes available.

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The Cameron Government Will Adopt a Clarity Act for Salmond’s Referendum on Scottish Independence

Posted on 2011/11/15 by J.W.J. Bowden

The Independent has reported that the Cameron government will put forward legislation that will either preempt or set the ground rules for Alex Salmond’s referendum on Scottish independence. The Cameron government would even call it “The Clarity Act”, like our law here in Canada, which stipulates that in order for a province to secede, its provincial government must submit a clear question that a clear majority of the people of that province support; the House of Commons (and not the Senate) would determine after the referendum whether it had constituted a clear majority on a clear question. Such legislation in the UK would allow the Westminster Parliament to exercise its legitimate authority over Scotland’s constitutional status, as per the terms of the Scotland Act, 1998.

The Westminster Parliament would force the Scottish Parliament to submit one clear question on whether Scotland should separate and effectively dissolve the United Kingdom rather than Alex Salmond’s current plan to offer two options: full independence (even though Scotland would keep the Pound Sterling and effectively contain a monetary union with England), and maximum devolution (“devo max”), which would transfer all powers but defence and foreign affairs to Scotland. In any case, a referendum would only empower the Scottish government to negotiate a settlement with the British government and would not (or at least shouldn’t) entail obligatory constitutional reforms on the part of the Westminster Parliament.

I’ll keep a close eye on these constitutional developments relating to the Scottish referendum.

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