Parliamentary Privilege: Could/Should, Shouldn’t/Can’t

Parliamentary privilege has now become a point of contention in the SNC Lavalin controversy.

Over at Maclean’s, I’ve argued that Jody Wilson-Raybould and Jane Philpott could use parliamentary privilege to speak about matters that still remain under cabinet confidentiality, but that the issues would have to rise to the level of unconstitutional behaviour on the part of the executive to justify a violation of their privy councillors’ oath and of the deference Parliament should almost always show cabinet confidences.

James Kelly has noted that, while the privilege of free speech exists, it wouldn’t be easy for the two members to find a way to exercise their privilege without the consent of their party or flexibility from the Speaker. Over on Twitter, a few of us have argued that points of privilege, points of order, and other creative mechanisms would almost certainly allow them to speak. The counter-counterargument is that none of these mechanisms would afford Wilson-Raybould and Philpott enough time to say what needs to be said, and that the onus should still be on the Prime Minister to issue a wider waiver.

This is a healthy and important debate, but it needs a bit more clarity, since many of the contentions hinge on nuances and possibilities, rather than concrete and actual happenings.

Above all, I think it’s worth spelling out the institutional question, then outlining what it means for the various positions.

Wilson-Raybould and Philpott could use parliamentary privilege to expose cabinet confidentialities. That does not mean they should. Privilege is absolute and has to be exercised with careful consideration of other principles.

If they shouldn’t violate cabinet confidentiality, that doesn’t mean we want the parties and Speaker finding reasons to ensure they couldn’t. The privilege of free parliamentary speech is an essential constitutional safeguard that merits protection and promotion.

The best course of action would be for Wilson-Raybould to testify before a parliamentary committee with a wider waiver from the Prime Minister. That doesn’t negate the fact that privilege and procedure offer other ways of expressing herself if the wider waiver never comes and she has something absolutely essential to say.

Liberals who argue that Wilson-Raybould and Philpott can simply speak should recognize that the wider waiver and committee testimony are far, far preferable ways to for them to do so. If there’s a way for them to speak without violating their privy councillor oaths, then that’s the way to go.

Conservatives and New Democrats who argue that Wilson-Raybould and Philpott should be given the opportunity to speak under a wider waiver can nonetheless acknowledge that privilege and procedure offer a means for them to do so if the wider waiver and additional testimony aren’t on offer. In fact, the Conservatives and New Democrats could do a lot to help the two members exercise their privilege of free speech if it came to that.

Parliamentarians from all sides should acknowledge and promote the principle that they have free speech and mechanisms to use it when necessary. They do no service to themselves as parliamentarians, or to Parliament as an institution, by suggesting that members can or should be easily silenced by their parties or the Speaker.

We should acknowledge the importance of cabinet confidentiality as a core constitutional principle that should be respected in almost all cases, while noting that parliamentary privilege must be paramount over confidence in very exceptional circumstances if Parliament is to function as a self-governing body equipped to hold the government to account. The fundamental constitutional point here is that the executive does not get to decide what’s said in Parliament.

We can stress that individual oaths should almost always be respected, but that people may be faced with an equally, if not more compelling, ethical principle or obligation that pushes them to act contrary to their oath.

Finally, there should be no question that the correct course of action is to allow Wilson-Raybould and Philpott to speak without violating cabinet confidentiality. Our system works best when constitutional functions and principles are reconciled, not in conflict. As Speaker Milliken ruled in the case of the Afghan detainee documents:

The Chair must conclude that it is within the powers of the House of Commons to ask for the documents sought in the December  10 Order it adopted. Now it seems to me that the issue before us is this: Is it possible to put in place a mechanism by which these documents could be made available to the House without compromising the security and confidentiality of the information they contain? In other words, is it possible for the two sides, working together in the best interests of the Canadians they serve, to devise a means where both their concerns are met? Surely that is not too much to hope for.

Surely it is not too much to hope for here either.

Perfection or heads on pikes

How can we tell if our system of government is working? In his latest column, Andrew Coyne implies that the health of our democracy depends on the absence of problems. For Coyne, the system only ever appears to work if it runs without error. Alternatively, in an earlier column, Coyne suggests that a corrupted system must make a harsh example of wrong-doers to right itself.

Perfection or heads on pikes. Utopia or bust. These are the hallmarks of democratic vitality.

Forgive me for my cynicism or realism, but that sets the bar fairly high –perhaps unattainably so. In my view, our system of government works when the safeguards we’ve put in place to address shortfalls and errors kick in and do their job. To use an analogy, I’d say that a human body is healthy when its immune system deals with infections. I don’t consider that infections are, in and of themselves, evidence that a body is deathly ill. I think it’s useful to see how the immune system deals with an illness before shopping for a coffin. Likewise, I wouldn’t recommend a blood-letting for every case of the sniffles.

Thus far in the JWR/SNC affair, a number of our system’s checks and protections have been triggered. We’re not just talking about the former minister’s resignation here. We’re talking about the resignation of the prime minister’s principal secretary and the President of the Treasury Board; pressure on the prime minister from his caucus; testimony before a Liberal-majority parliamentary committee that has put the government in the toughest spot it’s ever been; and sustained media and opposition critiques that are swaying public opinion. All this after, what, a month?

I guess this assessment makes me a wet or a maybe a Girondin. Then again, I have the temerity of thinking that Canada is a democracy, so what do I know.

JWR/SNC and Canadian government tropes

There are a lot of simple narratives about Canadian government out there.

Recent events highlight why things tend to be more complicated than our tropes would have it.

Here a few that came under stress in the past few weeks:

1) The Prime Minister’s Office has dictatorial authority over Cabinet and government.

A PMO that had absolute authority over Cabinet wouldn’t have had to lean on a minister to get what it wanted. Strong ministers can push back, particularly when the law gives them unique responsibilities.

Ah, but didn’t PMO shuffle the minister out? Doesn’t that prove that PMO is all powerful? Well, no. If you have to shuffle a minister out to get what you want, then you’re using raw prerogative power to compensate for a shortfall in influence and authority. Also, the PMO never did get what it wanted.

2) Majority governments can only be held to account by voters at election time.

Thanks to media reports and sustained opposition critiques, the prime minister lost one of his closest advisors, he has apologized to his former justice minister, and his deputy minister appeared before a parliamentary committee to answer various allegations of improper conduct. The governing party has also taken a hit in the polls.

This is what accountability looks like between elections.

3) Parliamentary committees are pointless partisan theatre during majority parliaments.

This past week a parliamentary committee with a majority Liberal membership saw the current Minister of Justice / Attorney General and the Clerk of the Privy Council testify. The Clerk’s testimony, in particular, shed significant light on the events in question and about the workings of the government in recent months. This coming week, the previous Attorney General will testify before the committee.

Although this is a rare occurrence prompted by a particular set of circumstances, the committee is nonetheless performing an accountability function, despite the governing party’s majority.

Parliament does what it’s supposed to do when the need arises.

4) Caucus is powerless over the party leader.

We’re unlikely to know exactly what exactly backbench Liberal MPs are telling the Prime Minister behind closed doors. But various social media posts and reports are giving us a hint that members are unhappy and pushing the government to sort things out. A few of them are probably doing this out of solidarity with the previous Attorney General. Some are probably voicing ethical concerns. And a good number of them are probably worried about re-election. Whatever their motives, it appears that the caucus is getting a response from the government.

 

Besides calling these tropes into question, what else can these recent events tell us about Canadian government?

a) Cabinet government with strong ministers can create headaches for the Centre, which can help explain why centralization is an attractive option.

b) Principled ministerial resignations can have a significant impact. Cabinet shuffles, too.

c) We need a better delineation of solicitor-client privilege as it pertains to the Attorney General and Cabinet, the relationship between the Attorney General and the prime minister’s ultimate responsibility for all affairs of government, and the conventions that surround the Attorney General’s independent functions.

d) Ministers and senior civil servants are human. They can have strong views, they clash, they can push back when they feel their well-meaning decisions are being mischaracterized or feel they’re being wronged. The study of government must necessarily take human virtues and vices into account.

What am I missing?

If you haven’t already, read Ian Brodie’s book, which reinforces most of these points: https://www.mqup.ca/at-the-centre-of-government-products-9780773552906.php

 

 

On the Crown Estate

What is the Crown Estate and who owns it? This question comes up whenever I debate how the monarchy is funded in the United Kingdom.

At issue is the Sovereign Grant, the annual disbursement the Queen gets from the Treasury to conduct her official business and maintain her official residences. The Queen receives the Sovereign Grant in exchange for surrendering the profits of the Crown Estate to the Treasury, and the amount of the Sovereign Grant is set as a percentage of the Crown Estate’s profits. Having the profits of the Crown Estate go to the Treasury serves several purposes. It allows for parliamentary control of what percent of the profits go to the Queen. It also allows for greater transparency and parliamentary scrutiny of the Crown Estate’s operations and of spending undertaken by the Queen under the Sovereign Grant. Equally important, it allows the Treasury to keep the bulk of the Crown Estate’s profits for other purposes.

The relationship between the Crown Estate, the Treasury, and the Sovereign Grant is at the heart of the debate over whether the Queen is ‘taxpayer’ funded. I’ve gone over this debate at length in an earlier post, but the underlying tension is this: to make the case that the Queen is taxpayer funded, it helps to claim that the Crown Estate is publicly owned, and that its profits therefore belong to the taxpayer, as evidenced by the Treasury controlling them. Those of us who reject the taxpayer funded argument point out that the Crown Estate belongs to the Queen in her official capacity and that the profits have to be surrendered by each new monarch, so the monarchy is basically funding itself (and then some) through the Estate’s profits.

A related question is whether the Crown Estate would inevitably become public property if the United Kingdom became a republic. Those on the taxpayer funded side think the expropriation of the Crown Estate would be part of a republican transition. Once Parliament ended the monarchy, it would take possession of all lands and goods that previously belonged to the monarch in an official capacity. Everything that belonged to the Crown would be absorbed by the new British republic.

While there’s no doubt that Parliament would have the power to expropriate the Crown Estate if it wanted, I think the Windsors could try to negotiate a better deal, with those portions of the Estate that are vital to assert sovereignty going to the state and those that generate profits being returned to their family as private property. The Windsors are far from the only wealthy landowners in the United Kingdom, after all, and they might wonder why they should have to surrender hereditary lands that other aristocrats get to keep, especially since their family lived under specific laws and were expected perform official functions that prevented them from living ‘normal’, private lives. This isn’t to say that they have been hard done by, of course, but they might still feel that they should get back what was once theirs if their family’s bargain with the British state comes to an end.

To help decided where you, dear reader, might fall on this question, it’s useful to expand on what the Crown Estate is, both today and in the past.

The first place to look is the Crown Estate website. It tells us the following:

Since 1760, the net income of The Crown Estate has been surrendered to the Exchequer by the Monarch under successive Civil List Acts, passed at the beginning of each reign.

The Crown Estate is though owned by the Monarch in right of the Crown. This means that the Queen owns it by virtue of holding the position of reigning Monarch, for as long as she is on the throne, as will her successor. Responsibility for managing The Crown Estate is trusted to us, under the Crown Estate Act, and the Queen is not involved in management decisions.

By contrast, the Queen also has private assets, which include Balmoral and Sandringham, and are hers to deal with as she chooses. But by no means all of what is commonly called Crown Land or Crown Property forms part of The Crown Estate.

In the UK “the Crown” is used not only to describe the Monarch, but also the Executive and the Judiciary. Thus properties owned and managed by Government departments are also Crown Property; these have nothing to do with the funding of the Monarchy or The Crown Estate.

What can we glean from this? First, the Crown Estate doesn’t include all Crown land or Crown property. There’s something unique about the Crown Estate. Second, the Crown Estate is owned by the monarch in right of the Crown, the Queen in her monarchical (i.e. official) capacity. This further ensures that the Crown Estate will automatically be owned by her successor. But this wasn’t always the case. Originally, the monarch simply owned the lands that make up the Estate as a natural person. When we’re told that “the Queen also has private assets, which include Balmoral and Sandringham,” this is further indicating that the monarch also owns private property that’s separate from the Estate.

To make sense of all this, we need to understand how the monarchy evolved in the United Kingdom. Originally, the monarch was simply a person like you and me (Ma’am, if you’re reading this, I don’t mean you, of course.) Their authority belonged to their person and there was no need to distinguish between who they were and the position they held. As the English state developed, it became necessary to make a conceptual distinction between the monarch as a living person and the monarch as an immortal office, as detailed in the classic study, The King’s Two Bodies. This was done for a variety of reasons, notably to place the monarch as the sovereign authority on a firmer legal footing, to ensure automatic royal succession, and to ease the continuity of laws, decisions, and contracts. Essentially, in a legal capacity, the monarch endured and remained, no matter who was the living embodiment of the Crown at the time. Yet, because the monarch still needed to exercise authority and make decisions, these two capacities also had to be tightly connected. Accordingly, the monarch as a natural person and a legal person were fused into a corporation sole, meaning that the two capacities could be treated as a single entity when necessary. Among other things, this corporate status gives the Queen a bunch of privileges and powers, such as not having to travel with a passport and being immune from criminal prosecution.

Fusing the natural and legal capacities of the Queen also allows the monarch to protect the Crown’s interest in British law. British constitutional practice holds that the Queen’s and Prince of Wales’ consent is required to allow a bill that affects their prerogatives or interests to become law. This consent is usually given on ministerial advice, though there are some areas where the Queen or Prince would arguably have a right to exercise their discretion or engage in tactful obstruction, notably where the bill touches on their “hereditary revenues, the Duchy of Lancaster or the Duchy of Cornwall, and personal property or personal interests of the Crown.” As a matter of constitutional principle, the Queen could withhold her consent if she felt that a bill undermined her ability to perform her constitutional duties by threatening her with financial duress.

The British government’s report (PDF) on the Queen’s and Prince’s Consent provides us with greater detail about which assets falls under these categories. Hereditary revenues include the following:

Hereditary revenues

2.11 The hereditary revenues of the Crown come principally from land or other property which is, or becomes, vested in the monarch in right of the Crown (i.e. as monarch). It does not include revenue from the land and property of government departments.

2.12 In particular, the hereditary revenues come from

  • the Crown Estate
  • the Osborne estate
  • treasure vesting in the Crown under section 6(1) of the Treasure Act 1996.

2.13 It is not entirely clear whether revenues from the Duchy of Lancaster also form part of the hereditary revenues of the Crown. Nothing turns on this point as far as Queen’s consent is concerned for the reason given in paragraph 2.18.

2.14 The Crown Estate is worth £13 billion. In relation to England, Wales and Northern Ireland it consists of the land and other property, rights and interests of the Crown which are under the management of the Crown Estate Commissioners (as established under the Crown Estate Act 1956 and managed in accordance with the Crown Estate Act 1961). In relation to Scotland the Crown Estate consists of the land and other property, rights and interests of the Crown which are under the management of Crown Estate Scotland (following the transfer in 2017 of the Commissioners’ functions in relation to Scotland to the Scottish Ministers under section 90B of the Scotland Act 1998).

The report also provides us with a succinct summary of what’s included in the Crown Estate:

2.15 The Crown Estate includes:

  • the rural estate, consisting of about 140,000 hectares of agricultural land and forest;
  • the urban estate, including property on historic estates in London and elsewhere such as estates at Regent’s Street and St James’s (but excluding the Royal palaces)
  • the Windsor estate (including the Great Park and Ascot racecourse but excluding Windsor Castle);
  • the marine estate consisting of just under half of the UK’s foreshore, tidal riverbeds and almost all of the sea-bed within the 12 nautical miles limit (including rights to all minerals excluding hydrocarbons);
  • rights to all naturally occurring gold or silver (the Mines Royal);
  • rights to all minerals (excluding hydrocarbons) from the UK’s continental shelf.

As well, the report identifies what counts as the Queen’s personal property and how it was determined as distinct from the hereditary revenues:

Personal property

2.20 The private estates of the Queen are an example of the personal property of the Crown. Section 1 of the Crown Private Estates Act 1862 defines them for the purposes of that Act as:

  • land or other real or heritable property or estate purchased at any time by Queen Victoria or her heirs or successors out of money issued and applied for the use of the Privy Purse or out of any other money not appropriated to a public service,
  • land or other real or heritable property or estate which came to Queen Victoria or her heirs or successors (whether by gift, inheritance or otherwise) from any other person (unless not intended to be transferred as private estate),
  • land or other real or heritable property or estate which belonged to, or was in trust for, Queen Victoria or her heirs or successors at the time of their accession and which was, before their accession, capable of alienation.

2.21 Balmoral and Sandringham are private estates of the Queen.

2.22 The private estates differ from the Crown Estate in that they can be freely disposed of and are not subject to the Sovereign Grant Act 2011.

This description of the Queen’s consent tells us a few things. Although the Queen is not involved in the management of the Crown Estate, she retains a right to be consulted about how bills might affect it, unlike other assets that the Crown owns through government departments; she has a stake in the Crown Estate that she does not have regarding other Crown lands. This suggests that the Crown Estate cannot simply be understood as public properties like any other.

On the other hand, there are clearly aspects of the Crown Estate that a republican Parliament would probably not allow a private person to own, notably the marine estate, mines, and minerals.  Yet it is unclear why the British state would necessarily need to expropriate the rural, urban, and Windsor estates under a republic. This aspect of the Estate would resemble holdings of other aristocratic families, such as the Grosvenor Estate held by the Duke of Westminster. It would be unclear, to me at least, why a British republic would be justified in expropriating these parts of the Crown Estate while leaving those of the Duke of Westminster and others untouched. (Yes, yes, off with all their heads, you Jacobins. Very original.)

The counter-counterargument would be to point to the personal properties the Queen has inherited from Queen Victoria. Surely that should be enough to keep the Windsors in a lifestyle to which they are accustomed. (Whether the lucrative Duchies of Lancaster and Cornwall would become personal property if there was no Crown is still another debate.)

It is worth noting, though, that there are quite a few ‘working royals’ and that the Queen’s personal wealth stands at around £370 million, far from the estimated £13 billion that the Crown Estate is worth. The likelihood that the Windsors would simply settle for that smaller amount without a fight strikes me as unlikely. And if they were to make a case for ownership of a part of the Crown Estate, the formal procedures that still surround it –the surrendering of the profits by each new monarch, the distinction made with land held by government departments, the Queen’s consent– could be used to highlight why these are not merely public lands owned by the ‘taxpayer’. They could argue, as I would, that the estates found in the Crown Estate are only held in trust as part of a longstanding agreement between Parliament and the monarch that is predicated on Britain being a constitutional monarchy. Ownership of parts of the Estate might therefore be retained by the original inheritors were that arrangement terminated as part of a republican transition.

Debating on Twitter: A guide for academics

I’ve been in more than a few Twitter debates over the years. Sometimes it’s worth it, usually it’s not. It’s worth it when it serves an educative function, but it’s not if it gets personal, nasty, or time consuming.

I still fall into the trap of worthless debates on occasion, yet I’m trying to get better about holding back from those.

If you find yourself before a potentially worthwhile Twitter debate, here are a few principles I’ve tried to hone over the years (again, with varying degrees of success.) I’ve found they’ve helped me make my point and have a positive impact.

1)  Only engage in debates where you truly have expertise.

It’s not worth bloviating about things you merely have an opinion or hunch about. If you don’t research it, let someone else who does chime in.

2) Don’t pull the credential card or use arguments from authority.

Yes, it’s frustrating when a rando argues with you about your area of expertise and refuses to recognize that maybe, just maybe, someone who researches a topic for a living might know more about it than the average person, a Wikipedia reference, or a Google search.

Regardless, you still shouldn’t use your doctorate or professorship as an argument or a put down. Not only are arguments from authority logical fallacies, but they look petty and weak.

If you’re tempted to pull out your credentials, you’re probably in a debate that isn’t worth having. If you’re still convinced that the debate is one worth having, then stick to the facts, sources, and research. Trolls have a harder time when you do and you leave with your professional dignity unscathed.

3) Tease, don’t mock.

It’s easy to make fun of people’s ignorance, especially when you study a topic and they don’t. The desire to dunk on someone becomes particularly strong if your interlocutor is being smug, obtuse, aggressive, or uses mockery themselves. Once you engage in mockery, though, you’re probably being a bit of a jerk, too.

So, instead of mocking, go for teasing, which is more playful and well-intentioned. It can also be disarming. This a subtle distinction and the line between the two is thin. But it can make a big difference. Aim to nudge someone away from their error with humour, rather than make fun of their person.

4) Know when to stop.

This is the toughest one. Lord knows how quickly one can get pulled into the rabbit hole of a Twitter debate. To guard against this time suck, be aware of how many times you’ve repeated yourself or made the same point. If you’re saying the same thing more than twice, walk away.

Patronage Work and Governors General

The office of Governor General has attracted a fair bit of attention recently –at least as compared with how often it’s usually discussed. In the past few months, we’ve heard that Rideau Hall is undertaking a review the Governor General’s non-official commitments, seen the government withdraw support for a former Governor General seeking to renew her appointment as head of the Francophonie, and had controversy over the expenses of a retired vice-regal representative. To my mind, these stories highlight a couple of the sticky issues that surround the office, including the expectations placed on Governors General, what comes after a governor generalship, and the public funds available to former vice-regals. In particular, these stories highlight ambiguity about the patronage work performed by Governors General.

What do we expect Governors General to do? In answering this question, it strikes me that the constitutional and head of state functions of the office are paramount. Here we’re talking about the dissolution of Parliament, appointing and possibly dismissing the prime minister, giving the throne speech, swearing in Cabinet, signing orders-in-council, and so forth. The honours function is also important, since we want to keep politicians away from it to the extent that we can. So, the Governor General should bestow the Order of Canada, Order of Military Merit, and other honours.

What about the head of nation role? As with honours, we want to Governor General to represent Canadians to themselves, rather than having a partisan politician. Similarly, as Commander-in-Chief we want the Governor General honouring the military and being the symbol of the armed forces’ loyalty to the state as the Queen’s representative. Accordingly, the Governor General should be present at commemorations, major military celebrations and events, and other occasions when we require a non-partisan personification of Canada.

Governments occasionally send Governors General on state visits overseas. The purpose of these trip is soft diplomacy and relationship building. Although it’s hard to measure, I suspect that these visits bear fruit, either by building networks for the Canadian businesspeople and academics who travel with the Governor General, or by demonstrating Canada’s interest in building ties with the countries that are on the itinerary.

What about patronage? To my mind, there’s more flexible here. Some Governors General will want to commit themselves to numerous charitable events and maintain ties with all sorts of organizations. Others will be less inclined, and that’s okay. Not every Governor General will be as enthusiastic about this part of the job and we might turn away good appointees if we insist on it, or at least if we insist that every Governor General approach this aspect of the role with the same gusto. If there are opportunity costs between the Governor General’s constitutional, honours, head of nation, international duties and these patronage roles, I’d give far greater weight to the first four.

When Governors General leave office, their role in Canadian society becomes murkier. There’s a program in place to help former Governors General establish an organization that spearheads a cause of their choosing. This program gives former Governors General a chance to use their profile and statute for the public good. Former Governors General can also choose to find some other high-profile office or role. Governors General who leave office at a relatively young age may be especially drawn to these new opportunities. As we saw with Michaelle Jean’s efforts to remain at the head of the Francophonie, though, this is a tricky path for former Governors General, since there are few positions out there that properly balance the prestigious, but largely ceremonial, role of the Queen’s representative in Canada.

Indeed, this is one reason that the office of Governor General is better suited to older appointees who are nearing or are at the age of retirement. They can retire quietly if they so choose, rather than crafting a second, third, or fourth career after holding the second highest office of the Canadian state. At the very least, younger appointees should have a clear answer to the question: “so what do you do after being GG?”

Aside from the personal organization they found, or any other office they hold, however, most of the public activities of former Governors General fall squarely in the patronage category. While they may have some involvement with the government as Privy Councillors, or hold honourary positions with the military, retired vice-regals will have little involvement with their previous constitutional, honours, head of nation, or international functions. As a result, the patronage duties that are arguably the least essential to the vice-regal role become the primary ‘official’ function of former Governors General.

Controversy surrounding the publicly funded expenses of former Governors General, in turn, are tied to ambiguity that surrounds the patronage function. Most critics have rightly pointed out that the lack of transparency surrounding the expenses of retired Governors General is problematic and will have to change. I’m fairly certain that these expense accounts will soon be reported in detail. Once they are, though, questions will be raised about how much former Governors General should be able to charge for patronage work after they’ve left office. Both Adrienne Clarkson and her critics, for instance, have made this to focus of their responses to the recent controversy. Clarkson points out that she is invited to give hundreds of speeches, sit on boards, write forwards to books, etc., and therefore requires staff and resources to fulfil her continuing public service. Christie Blatchford thinks that just part of being a public figure and “In fact, this is life, period.”

From my perspective, deciding who’s right about these expenses, or how much retired vice-regals should be allowed to charge, will require a discussion about the importance we place on the Governor General’s patronage function overall. If we expect Governors General to be fully engaged with patronage work and to make it a central part of their role, then we should probably be willing to help them do that kind of work after they leave office. If, on the other hand, we think that patronage should be a smaller part of the Governor General’s workload and that they should focus on their primary duties above all, then there’s a strong case for limiting their official expenses in retirement to a narrow set of activities that pertain to their former head of state functions.

In that sense, I’d argue that this summer’s controversy about the Governor General’s schedule, and this fall’s controversy about the expenses of former Governors General, touch on the lack of clarity around patronage duties that developed over time and that are difficult to attach to the essential role of the vice-regal representative.

 

 

 

Mikisew and the evolution of the Westminster System

Jamais deux sans trois, as they say. Here’s a third post on Mikisew, focusing on how it reflects the evolution of the Westminster system in the UK and Canada.

The 17th Century was a critical time in the evolution of the relationship between the Crown and Parliament. We tend to focus on the Civil War, but let’s leave that aside and focus on where the struggle landed: the Bill of Rights 1688.

The Bill of Rights settled a number of issues that lingered after the Civil War and into the Restoration. Among these were parliament’s authority over the Crown’s prerogative and the Crown’s efforts to invalidate statutes.

As well, the Bill of Rights addressed the Crown’s efforts to use the courts to go after parliamentarians and mess with Parliament’s affairs.

So, what do we find in the Bill: the Crown can no longer dispense and suspend laws of Parliament; the Court of the King’s bench can’t prosecute “Matters and Causes cognizable onely in Parlyament and by diverse other Arbitrary and Illegall Courses.”

What else? “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.”

What matters for our purposes is that the Crown can’t nix parliamentary laws and the courts can’t be used to muck around in parliamentary debates and procedures. 

In the context of Mikisew, the heritage of the Bill of Rights matters because: a) the Crown can’t invalidate laws of Parliament, even if it has duties that will be affected by those laws; b) the courts shouldn’t involve themselves in parliamentary affairs.

Fast forward to the 18th Century. The British Crown conquers French Canada. As a result of military conquest and now a British colony, the Canadas are under the sovereignty of the Crown. We see this with the Royal Proclamation of 1763. This derived from royal authority.

Why does this matter? The Royal Proclamation would enshrine the honour of the Crown and duty to consult First Nations. But it is not a *parliamentary statute*. It is a declaration of royal authority, of Crown power.

The treaties that were later negotiated with First Nations in Canada were also with the Crown, not Parliament.

Why does this matter for Mikisew? From the outset, the honour of the Crown is tied to the royal authority of the Crown as a conquering power with sovereignty over these lands, not the legislative authority of Parliament.

Stated differently, the honour of the Crown belong to the imperial, conquering Crown, not the legislating Parliament.

Fast forward to 1867. The British North America Act states that Canada has a constitution similar in principle to the UK. That alludes to the Bill of Rights, etc. The Act also make a clear distinction between the Crown as the executive power and the Parliament as the legislative power.

This matters because the distinct executive and legislative capacities of the Crown are found in the Act. Similarly the distinction between the Privy Council (Cabinet) and parliamentarians is found here, even though by convention the former is tied to the latter.

Courts in the UK and Canada would increasingly treat the Crown as the executive alone. It’s lazy, it’s wrong, but it’s practical.

Narrowing the Crown to the executive means that when the Crown acts as the sovereign authority, the state, it is largely understood to do so in its executive capacity.

So the Crown acts on the advice of the executive council when declaring war, deploying troops, ratifying treaties, issuing pardons, conducting foreign affairs, and other matters of state, etc.

It even gets to the point where the argument is made that the Crown acts on the advice of the executive council when granting royal assent to legislation.

In Haida, moreover, the SCC ties the duty to consult and honour of the Crown to the government, the executive.

In 1981, furthermore, the English Court of Appeal made clear that we can break the Crown apart into different capacities to specify *which* Crown bears the honour. They determined it was the Crown in right of Canada, not the Crown in right of the UK.

To bring it all together: the SCC is Mikisew ends up adhering to the relationship between the Crown, Parliaments, and courts as exemplified by the Bill of Rights 1688. They stick with the Crown’s sovereignty and duty acting through the executive.

Brown, however, breathes new life into the legislative capacities of the Crown, notably in terms of royal recommendation, assent, and consent. That’s a canny move, since it acknowledges the Crown in Parliament, but also cuts it off from historic notions of duty as executive.

Finally, Mikisew doesn’t weaken the executive’s duty to consult when engaging in governing conduct. And it seems clear to me that the duty would still apply to crafting regulations by the executive. All it does it build a wall around legislation until it becomes law.