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.

 

 

Mikisew, Ministers, and the ‘Revenge of the 1867 Constitution’

The Supreme Court’s judgement in Mikisew sheds more light on the institutions of the Canadian state than we might imagine. Although the case dealt with the Crown’s duty to consult with First Nations, it also provides insights into the separation of powers, parliamentary privilege, and as I discussed yesterday, the Crown’s distinct capacities.  

One aspect of the judgement that I found especially interesting was Brown’s opinion on ministers and the legislative process. His discussion draws clear lines between law, constitutional convention, and parliamentary practice that are rarely acknowledged, but that remain significant (see the question of first ministers’ tenure, for instance.)  

The Mikisew Cree First Nation argued that ministers were exercising an executive function when developing legislation that affected them. Drawing on ministers’ statutory authority, they noted that ministers and their departments were involved in crafting the legislation that would be presented to Parliament, hence the executive was part of the law-making process. This was a vital point for their case, since as the Court would find, the duty to consult is understood to belong with the Crown in an executive capacity and the separation of powers keeps judicial review away from parliamentary deliberations. Indeed, establishing a role for ministers of the Crown in the legislative process was likely the only way to extend to duty to consult into law-making.  

By convention and practice, there is little doubt that the Mikisew Cree First Nation were correct: the executive is deeply involved in the legislative process. In fact, the executive is arguably the primary actor in crafting legislation. Departments and central agencies, purely executive bodies, develop bills that will be presented to Parliament based on direction and policies from Cabinet. Parliamentary procedure recognises the priority of bills from the executive and ministers typically present governments bills owing to the executive office they hold outside of Parliament. Party discipline ensures that government bills will pass the House of Commons if the governing party has a majority. A majority party will also face little resistance from most standing committees. For all these reasons and more, it is difficult to describe parliamentarians, and especially backbenchers, as ‘law-makers’ since they’re effectively secondary actors in the process of crafting legislation. They can scrutinise and recommend changes, but most bills are developed by the executive and get through the Commons in more or less the same shape that they arrived. The Senate may give bills a harder look, but if the government refuses to accept the upper chamber’s amendments, senators will almost always pass them. Simply put, while Parliament legislates, usually does so at the government’s behest, thanks to convention and parliamentary practice.  

Brown, however, focused on the legal formalities of the issue. Nothing in statute provides that ministers and their departments are involved in the legislative process (para 112). The Constitution Act, 1867 clearly states that Parliament is the legislative power, not the Queen as the executive power or her Privy Council (ie Cabinet). Strictly speaking, moreover, when ministers present government bills, they do so as parliamentarians, not as executive office-holders. Although they happen to also be ministers, when they are in Parliament, they are acting as parliamentarians (para 113).  

Drawing on a strict (some might say American) distinction between the executive and legislature, Brown notes that the “making of “policy choices” is a legislative function, while the implementation and administration of those choices is an executive function” (para 117.) Even though the legislative process in this instance began within the executive from a practical point of view, and purely executive actors such as public servants were evidently involved, it was constitutionally a parliamentary effort from the outset. As set out in paragraphs 120 and 121:  

As a matter of applying this Court’s jurisprudence, then, the legislative process begins with a bill’s formative stages, even where the bill is developed by ministers of the Crown. While a minister acts in an executive capacity when exercising statutory powers to advance government policy, that is not what happened here. The named Ministers took a set of policy decisions that eventually led to the drafting of a legislative proposal which was submitted to Cabinet. This ultimately led to the formulation and introduction of the omnibus bills in the House of Commons. All of the impugned actions form part of the legislative process of introducing bills in Parliament and were taken by the Ministers acting in a legislative capacity.  

  Moreover, the impugned actions in this case did not become “executive” as opposed to “legislative” simply because they were carried out by, or with the assistance of, public servants. Public servants making policy recommendations prior to the formulation and introduction of a bill are not “executing” existing legislative policy or direction. Their actions, rather, are directed to informing potential changes to legislative policy and are squarely legislative in nature. 

In this formal understanding, therefore, the Constitution Act, 1867 provides strict boundaries between executive and legislative activities, even though these lines are crossed as a matter of course owing to the conventions of responsible government.  

Brown’s analysis offers a spirited defence of the formal constitution and of the importance of not getting caught in the realities of responsible government when discussing the roles and powers of the Crown and Parliament. In particular, it should encourage us to be careful when engaging in tropish discussions of the ‘fusion’ of the executive and legislature in the Westminster tradition.  

Finally, Brown’s opinion belongs to what I see as the ‘Revenge of the 1867 Constitution’ in Canada. After 1982, the study of constitutional law became focused on the new Constitution Act, 1982, which includes the Charter of Rights and Freedoms and the amending formula. While students of federalism still paid attention to the division of powers in the 1867 act, the historic relationship between the Crown and Parliament, and the importance of delineating between the executive and legislative powers, garnered less attention. A slew of recent cases have brought the Constitution Act, 1867 back to the fore and reminded us that there’s a lot more to the constitution than the Charter. Mikisew reinforces this point, even when section 35 of the Constitution Act, 1982 is at issue.  

The Crown and its capacities

The Supreme Court of Canada touched on one of my favourite topics today: the various capacities of the Crown. Brown J., in particular, offered a strong defence and explanation of the Crown’s distinct capacities and how the courts must differentiate them.

The Crown serves many functions in the Westminster system. The Crown serves as the concept of the state. It can mean the Sovereign or the monarch. The Crown can also refer to the executive generally and sometimes Cabinet. In other cases, the Crown can refer to one part of Parliament. And the Crown has a role in the courts, too. Many of these functions seem to overlap and appreciating their differences can be especially difficult because the Crown is personified by a single person, the Queen. But understanding how they are differ is vital to grasping how Westminster states operate.

Take the Crown as the state. Since the both the United Kingdom and Canada have Queen Elizabeth II as their Sovereign, we might conclude that they are under the same Crown and are part of the same state. The Crown’s distinct capacities avoids this confusion. The Queen has many different capacities. One of those capacities is as the Queen of the United Kingdom. Another is as the Queen of Canada. These are distinct capacities. The Crown as the state mirrors these capacities as well. Thus, we have the Crown of the United Kingdom as the concept of the British state and the Crown of Canada as the concept of the Canadian state.

Within Canada, the Crown has distinct capacities as the personification of the federal government and the provincial governments. The Crown also has distinct capacities with respect to the organs of the state. The Crown as the executive power acts in a governing capacity. The Crown-in-Parliament is the Crown acting in a legislative capacity. And the Crown in the courts is the Crown acting in a judicial capacity.

One of the questions before the SCC in Mikisew Cree First Nation v. Canada was whether the duty to consult First Nations under the honour of the Crown applies to the Crown writ large or to the Crown in a specific capacity. A majority of the court found that the duty to consult First Nations is attached to the Crown in an executive capacity, rather than the Crown in a legislative capacity as part of Parliament. The honour of the Crown toward First Nations belongs to the Crown as the executive power, not the Crown-in-Parliament. The majority further found that the separation of powers and parliamentary sovereignty meant that the courts should not review the legislative process to ensure that the honour of the Crown had been respected. The duty to consult and the honour of the Crown are tied to executive actions and actors, not legislative ones.

Brown J. adopted a particularly strong view of these distinctions in his opinion. He notes, for instance, that the duty to consult binds ministers of the Crown in their executive capacity. It does not bind them in their legislative capacity:

“While Cabinet ministers are members of the executive, they participate in this process –for example by presenting a government bill– not in an executive capacity, but in a legislative capacity.” (113)

Brown further clarifies that, under the separation of powers and parliamentary privilege, the constitutional duty to consult First Nations must be “understood as excluding the parliamentary (and, indeed judicial) functions of the Canadian state” (128). This, in turn, implies that the honour of the Crown does not pertain to the Crown’s legislative functions and capacities as one part of Parliament, alongside the Senate and House of Commons. When the Crown acts in a legislative capacity, granting assent or consent to legislation, and recommending bills, the Crown is not involved in conduct that is bound by the duty to consult:

“This description of the various and distinct aspect of Crown authority (and also, it follows, Crown conduct) affirms that the exercise of Crown authority in enacting legislation (“assenting, refusing to assent to, or reserving legislative or parliamentary bills”) is legislative. It is not an instance of ” Crown conduct” –that is, executive conduct– which can trigger the duty to consult.” (133)

One take-away from today’s ruling is the importance of being specific about which capacities are in play when discussing institutions and actors who have more than one. An individual may be both an MP and a minister, but they can fulfill distinct functions and exercise unique powers in their separate capacities. Similarly, the Crown as the executive power is not the same thing as the Crown-in-Parliament. While we often speak of the ‘fusion’ of the executive and legislature in the Westminster system, that link is primarily one based on constitutional convention and parliamentary practices, rather than law.

Finally, if we follow Brown’s reasoning, we may have an answer to a lingering question about the Crown in Canada: does the Crown act on the advice of ministers or the houses of Parliament when granting royal assent? If we focus solely on the conventions of responsible government as they pertain to the executive, we might argue that ministers could advise the Crown to withhold assent, effective giving ministers a veto over legislation. If, as Brown argues, however, the Crown grants royal assent in a legislative capacity, then assent it granted on the advice of the house of Parliament, meaning that there is no ministerial veto in Canada.

(Ok, one last thought: Maitland was wrong.)

 

 

Still the Premier

The recent election in New Brunswick highlighted a rare and poorly understood aspect of government formation in Canada: a first minister (FM) can remain in office and test the confidence of the legislature first, regardless of the election results.

New Brunswick Premier Brian Gallant has chosen to remain in office, despite the fact that the Liberals were elected with 21 seats, compared with 22 seats for the Progressive Conservatives. Gallant is hoping to secure an agreement with either the Green Party or People’s Alliance, each of which won three seats, in order to secure the confidence of the legislature and stay in power. In addition to reminding us that governments are formed and not elected in Canada, Gallant’s decision provides us a new precedent of a FM bucking the Canadian tendency to resign if their party does not carry most ridings.

Why is Gallant able to remain FM? A common explanation is that this is a constitutional convention, an unwritten political rule that guides how powers are exercised and decisions made in Westminster systems. While this explanation is quite common, it’s not quite right. Although there are constitutional conventions at play in a FM’s ability to test confidence first, it isn’t a convention that they can. Rather, the FM can test confidence first because of the office they hold and the rules that govern how they hold that office.

How do we identify constitutional conventions? In Canada, the Supreme Court has endorsed the ‘Jennings test’. The test tells us that rules must meet three conditions to count as constitutional conventions. First, there must be precedents; second, political actors must believe that there is a binding rule; and, third, there must be a reason for the rule.

The ability of a FM to test confidence first only meets one of these conditions: there are precedents. Perhaps the best known of these is William Lyon Mackenzie King’s decision to remain Prime Minister following the 1925 federal election, where his Liberal party won 100 seats compared with the 115 seats won by the Conservatives.

What about the second condition? There’s no longer a general agreement on the fairness or legitimacy of a FM testing the legislature first. In fact, the leader of the party that wins the most seats usually disagrees with this notion quite viscerally. Equally important, it’s unclear how we can say that this is a binding rule. The FM isn’t bound to test confidence first; it’s their choice. The other members of the legislature are bound to accept it, but those from other parties are prone to questioning the decision. This further suggests that that there isn’t a convention at play here, but something else.

Turning to the third condition, it is difficult to see what rationale would underpin a convention here. The democratic logic of having the FM test confidence first, regardless of the election results, is hard to discern. Proponents of direct democracy want to link the selection of the FM to the voter’s choice (see, for instance, those who declare that elections are actually about who the voters want as FM), while advocates of parliamentary democracy would probably want the legislature to vote for the FM, as happens in Scotland. In addition, other Westminster-inspired states have done away with the FM’s right to stay on, since it seems to run contrary to democratic proprietary.

Stability of government might be another rationale, but this doesn’t hold either. When a FM stays on, and their ability to secure confidence is unclear, the government is constrained by caretaker conventions that weigh against non-routine decisions by ministers. Instead of bringing stability to government, allowing the FM to stay on before to test confidence, sometimes for months before the legislature sits, fosters uncertainty. Simply put, there is no reason for this rule, at least not one that that would meet the standards of a constitutional convention.

So, if it isn’t a convention that the FM gets to test confidence first, then what is it? The answer lies in the nature of responsible government in Westminster constitutional monarchies.

The office is First Minister is bestowed by the Crown. It’s legally independent of the legislature and the electoral process. The first principle of responsible government is that ministers advise and take responsibility for the Crown and all affairs of government. Since the 18th Century, this principle has evolved such that a FM advises the Crown and takes responsibility for all acts of the Crown and all affairs of government. Consequently, the appointment of a FM cannot be directly tied to electoral outcomes or the make-up of the legislature at a given time. The Crown needs to ensure that there’s a FM, even during elections, and during the period between election day and when the legislature is recalled. Over time, the necessity of always having a FM has developed to ensure that FMs remain in office until they resign or are dismissed.

Resignations are fairly common. FMs often indicate their intent to resign if their party fails to win the most seats on election night or if their opponents win a majority of seats. FMs can also resign if they lose a confidence vote, though they’ll usually do so after a request to dissolve the legislature is refused by the Crown. The dismissal of a FM, by contrast, is very rare –so rare that it hasn’t happened in some time in Canada. Dismissal is effectively an emergency power. The Crown should only exercise it if a FM is refusing to recall the legislature, acting in an unconstitutional manner, under criminal investigation, or no longer has the mental capacities to serve. In most normal circumstances, the FM will remain FM until they resign, usually following an election that has been unfavourable to their party, after the Crown has refused their request for dissolution, if they have lost a confidence vote, or if they are making way for a new leader from their party.

Accordingly, FMs can test confidence first because the Crown must have a FM at all times and the Crown will not dismiss the FM unless they are involved in unconstitutional or criminal activity. Put differently, the FM can test confidence first because they remain in office until they resign or are dismissed. Convention dictates that they resign if they lose a confidence vote and cannot secure a dissolution from the Crown. But they are not required to resign before that confidence vote is held, and the Crown will not dismiss them if they are planning to recall the legislature to test confidence. In extreme circumstances, the Crown could dismiss a FM who is refusing to recall the legislature to avoid a confidence vote. But in nearly all cases, the Crown should allow the legislature to sit and express itself before acting, especially if the issue is the dismissal of a FM who might not hold confidence and the appointment of an alternative FM who might not hold confidence, either. Whenever possible, the Crown should allow the legislature to express itself first.

The ability of an FM to test confidence first, therefore, is a function of the office they legally hold by virtue of the Crown’s appointment and of the conventions that surround the duty of the Crown to have a first minister, and the grounds for the resignation or dismissal of a first minister. Constitutional convention is involved here, but it isn’t a convention that says that the FM gets to test confidence first. Rather, what’s at play is that the FM is FM until they resign or are dismissed, as per constitutional convention.

In conclusion, it’s worth asking why this privilege of Canadian FMs seems so strange. Basically, it strikes us as odd because it reflects the monarchical origins of our system of government, rather than our contemporary democratic mores.