On Withholding Royal Assent

No, the Lieutenant Governor won’t withhold royal assent from a bill. Even if you write them a letter or publish an op-ed. Even if you ask them nicely. Even if you cite Bagehot.

Guess what? Neither will the Governor General. Nor will the Queen. It’s not happening. Put the pen down. Step away from the keyboard. You’re embarrassing yourself.

While we’re on the topic, asking the Governor General to find a minister to advise her to exercise the royal prerogative of mercy isn’t appropriate either.

You want someone to exercise the prerogative of mercy? Write to the Prime Minister, the one who is constitutionally responsible for advising the Governor General and accountable to Parliament for all affairs of government, grants of mercy included.

Perhaps a few clarifications are in order.

The Queen and vice-regal representatives exercise their formal authorities on ministerial advice, and in the case of royal assent, arguably on the advice of the legislative house(s).

There are a few cases where the Queen or a vice-regal representative can exercise a degree of discretion when exercising their formal powers.

In the case of the Queen, she might refuse the Prime Minister’s advice to dismiss the Governor General in very extreme cases.  

The Governor General and Lieutenant Governors can refuse a first minister’s request to dissolve the legislature if there’s been an election recently and there’s another ministry that might be able to secure confidence. The Governor General and Lieutenant Governors also have the power to dismiss a first minister involved in criminality or blatantly unconstitutional behaviour. And they could be called upon to exercise some discretion when appointing a new first minister in certain specific circumstances.

A number of Canadian scholars insist that the vice-regals have the discretion to reject a first minister’s advice to prorogue the legislature. This may be more likely in light of the Miller II case in the United Kingdom, but the careful reader will note that the Lady Hale and Lord Reed didn’t say that the Queen had that discretion. The courts, not the Crown, were rightly asked to make the call about the constitutionality of the prorogation.

Ah, but the Constitution Act 1867 allows a Lieutenant Governor to reserve a bill. Lieutenant Governors have used this power before. The Lieutenant Governor of Alberta highlights the history of this power on their website. It’s on the website! What more proof do we need that a Lieutenant Governor has this authority?

The Lieutenant Governor’s formal reservation power reflects the Governor General’s authority to do the same for federal legislation, as per section 57 of the Constitution Act 1867. When you read this section, you may notice that reserved bills are given assent by the Queen-in-Council. What’s the Queen-in-Council? The British Cabinet. Anybody think the Governor General of Canada can still reserve a bill for the British Cabinet’s consideration in 2020? I dunno, seems unlikely.

Section 90 gives the Lieutenant Governor the power to reserve a bill for the Governor General’s consideration. Originally, this was meant to give the federal Cabinet the chance to withhold (or grant) assent to provincial legislation. A few Lieutenant Governors decided to use this power based on their own judgement. This hasn’t happened since 1961, though. You might be able to track down a few contrarian academics who still think the power can be used. Most would argue it’s gone the way of the dodo.

As with the federal provision, reservation at the provincial level is a spent power owing to disuse and constitutional convention. What principle would this constitutional convention be connected with? The contemporary nature of the Canadian federation, for one. Parliamentary democracy would be another. The constitutional norm of the Crown’s neutrality and non-partisanship would be a third. And the separation of powers would properly figure in there, too; again, it’s the courts’ job to rule on the constitutionality of legislation, not the Crown’s.

Leaving reservation aside, what about the Governor General or a Lieutenant Governor withholding assent on the advice of Cabinet or based on their own discretion? Opening the door to a refusal of assent on the advice of ministers would amount to giving the executive a veto over legislation. We might want to think that through, particularly in a minority context, such as the one we currently have in Parliament. The executive already dominates the legislative process. Would it serve Canadian democracy to give the executive power a raw veto over bills? Nope.  

That leaves us with the personal discretion of a Lieutenant Governor. On what ground would a Lieutenant Governor withhold assent to a bill that has been passed by the duly elected members of the legislature? What would give this appointed official the legitimate authority to act contrary to their collective will? Maybe if the members of the legislature realized there was an egregious error in the bill and that was communicated to the Crown. Maybe if a bill was so dangerous and so threatening to rights and liberties that this was the only course of action. But even then, this reasoning rests on the idea that the bill would present such a clear and present danger that the courts wouldn’t have time to intervene. That’s a high bar. Bills that we disagree with or that we have serious misgivings about don’t reach it.  

Letters to the Queen, Governor General, and Lieutenant Governors asking them to exercise powers without advice or contrary to advice seem to be increasingly common. It’s mostly performative. The writers know it’s not going to happen, but it helps draw attention to their cause. But it also feeds ignorance about our constitution and undermines our democratic principles. That doesn’t help anybody.

Stop writing these letters. Please.

Politics, the pandemic, and the professional class

Here’s a piece I wrote as part of the Policy for Pandemics series:


COVID-19 is highlighting the importance of evidence and expertise in policymaking and democratic government. The pandemic has brought experts to the centre of decision-making and government communications in Canada. Public trust in these experts is high and has helped flatten the curve. Canadian governments of all stripes have embraced public health officials, and few have questioned the wisdom of following their prescriptions. Those few politicians who have critiqued these experts, or engaged in crass partisanship in these exceptional times, have been roundly disparaged.

For all the death and economic devastation, the pandemic has made room for an elusive ideal of democracy, one where ideas, not factions, compete to shape government policy and evidence adjudicates between them. Expertise and data rule, unburdened by the shallowness of the communications strategies, wedge issues, fearmongering, muckraking, and partisan theatrics, including those in Parliament.

This ideal holds particular sway among members of the professional class: academics, lawyers, economists, doctors, pundits, and civil servants of a centrist, small-l liberal persuasion. This is perhaps not surprising, since they’re heavily represented among those who have policy-relevant expertise. Yet this is more than self-promotion; the ideal rests on the possibility of achieving objectively defined public goods, and of finding an equilibrium between competing interests and demands. Often tagged as ‘elitist’ by the populist right, and ‘neoliberal’ by the critical left, the pandemic has temporarily silenced most skeptics of this rationalistic vision of democratic government.

An important characteristic of this way of thinking, however, is that it’s a shade more technocratic than democratic. The emphasis is less on government by the people than by the knowledgeable. Indeed, we find within this worldview an echo of the ancients’ worries about the demos and demagogues. This, in turn, leads to a strong emphasis on the liberal in liberal democracy, and a counterbalancing of democratic excesses by technocratic expertise. Hence, there is an emphasis on the wisdom of the judiciary over the whims of elected representatives, on the professional public service not only advising and implementing but speaking truth to power, and on the importance of merit over loyalty in public appointments.

In normal times, of course, precedence is still given to popular democracy and the baser forms of politics that animate it. The consent of the people is primordial, even if it has to be secured through electoral campaigns that are light on policy and heavy on rhetoric, meatheaded partisan attacks, and gotcha media coverage. Similarly, the essentiality of Parliament isn’t in normal times called into question, though the vacuity of question period and many committee hearings are always lamented. And despite the centrality of expertise and evidence for adherents of this ideal, the principle that politicians have a right to be wrong is grudgingly accepted.

COVID-19, however, has exhausted the patience certain members of the professional class have with politicking, partisanship, and the parliamentary settings that allow them to flourish. Although the governing party only has a plurality of seats, and ministerial accountability relies on a partisan government-opposition dynamic, a fair number of voices insist that this is not the time for Parliament to sit or for political parties to play their usual role. To suggest otherwise is to be tone deaf, unserious, or irresponsible. Until the pandemic is over, we are told, base politics needs to be put on hold, lest it distract us from the crisis at hand and the expert advice we need to get through it.

There is a lot going for this view, but it should make us a bit uncomfortable, especially those of us who belong to the professional class and subscribe to the rationalistic vision of government many of its members champion. The speed with which popular politics and Parliament can be silenced should give us pause. Partisan politics and representative institutions remain the bedrock of Canadian democracy. Although it’s tempting to think that the ideal of democracy as exchange of expertise and evidence is a sufficient substitute, this betrays a certain vanity and hubris of the sort that has felled technocrats in the past. Unless there is an absolutely compelling reason to exclude them, popular politics and representative democracy must be given their due. (PL)

Who Gets to be Prime Minister and Why

I recently published an article in Constitutional Forum that analyses the rules of government formation in Canada. You can find the article here (click where it says pdf):


To address the current debate about who governs after the 21 October election, I’ve updated my tables:

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Taming the Crown in Court: Cherry/Miller 2 and Waning Executive Dominance in the United Kingdom (Long Version)

Here is a longer version of a post on the Judicial Power Project symposium on Miller 2:

Executive dominance has been weakened in the United Kingdom over the past decade and a half. While debate will continue about how the Supreme Court found that the prorogation of Parliament was justiciable and unlawful, Cherry/Miller 2 is arguably less remarkable when put in the context of the executive’s waning dominance in Britain’s constitutional order. Put simply, the prorogation judgement reflects a larger parliamentary and judicial effort to dampen the strength of the executive in constitution. This does not take away from the constitutional evolution that the judgement has helped advance, but it does raise questions about how much discretion should be left with the executive in this new equilibrium.

Westminster states are typically known for their dominant executives and relatively weak legislatures –though this may only still apply to one member of the Westminster family, Canada.  Thanks to cabinet solidarity, party discipline, a majoritarian electoral system, and parliamentary procedures prioritizing government business, the British executive was once thought to exert significant control over the legislature. The prerogatives of the Crown, moreover, gave ministers discretion over matters of state, such as foreign and military affairs, and the life and cycle of Parliament, through the powers of dissolution and prorogation. The government was held to account in Parliament for the exercise of executive power, and if the House of Commons felt that the ministry was no longer fit to hold its confidence, an election could be held to give voters a chance to express themselves. With the responsibility of governing came an equal measure of accountability to Parliament and the people, though the executive was the dominant actor between elections owing to the advantages and prerogatives it enjoyed.

Calls to curtail the executive’s dominance have been heard for decades in the United Kingdom, but the 2003 Iraq War galvanized reformers. In the years since the war, the British constitution has underdone notable constitutional change aiming to rebalance the relationship between the executive and the legislature in Parliament’s favour. As the title of a 2003-2004 Commons Public Administration Committee report revealed, there has been a movement to ‘tame the Crown’. Facilitated by an increase in backbench rebelliousness and a coalition government, significant reforms were achieved within a decade: placing the civil service and the navy on a statutory footing, subjecting treaties to greater parliamentary scrutiny prior to ratification, a practice of seeking parliamentary approval for combat operations overseas, the election of select committee chairs by secret ballot, the establishment of a backbench business committee, the publication of a cabinet manual, and most importantly, the transfer of the Queen’s power to dissolve Parliament on the advice of the Prime Minister to the House of Commons.

The Supreme Court also contributed to this taming. In Evans, the Supreme Court ruled against the Attorney General’s decision to protect Prince Charles’ ‘spider memos’ from disclosure. Defenders of the government noted that the Court arrived at this outcome through a rather creative interpretation of statute. In Miller 1, the Court denied that prerogative power could be used to trigger article 50 of the Lisbon Treaty and that an Act of Parliament was required to do so. While champions of parliamentary sovereignty applauded the decision, commentators did observe that the Court’s treatment of the prerogative was surprising.

With Prime Minister Johnson’s commitment to withdraw from the European Union by 31 October 2019, efforts to submit the executive to Commons control took on greater urgency. House of Commons standing order 24 was thus used to take control of the agenda and pass legislation to prevent a ‘no deal’ Brexit. While he may yet manage to force through ‘no deal’, at this stage it appears that the Prime Minister is boxed in: unable to meaningfully hold confidence, checked by parliamentary control of a Brexit agreement, and dependent on his opponents to hold an election. Whether an election is held in the coming months or not, it is not unlikely that standing order 24 will be used to further constrain the executive when the Commons sees fit, while the Prime Minister is left without their previous ability to dissolve Parliament in response. Whatever else this may be, it is not a dominant executive.

In the lead up to Johnson’s premiership is it perhaps not surprising that defenders of the previous constitutional order began musing about how the Crown’s remaining prerogatives might be used to push back against Parliament. Suggestions that the Queen might be advised to withhold royal assent and to prorogue Parliament to ensure an exit from the European Union were two proposal that were floated. For advocates of parliamentary primacy, these ideas represented an abuse of power and evidence that executive discretion required further curtailing. For defenders of the executive, on the other hand, novel uses of the prerogative were justified in light of the Commons’ stifling of the government’s freedom of action.

Ultimately, advice to withhold royal assent was not proffered (yet), but the Queen was advised to prorogue Parliament for an extended period of time. In this symposium, Nick Barber has described this move as a form of constitutional hardball. To use Alison Young’s terminology, we might also see the prorogation as a kind of constitutional counter-counterbalancing. Either way, the executive deployed one of its remaining prerogative authorities to counter parliamentary opposition to Brexit.

In the past, advice to prorogue Parliament would likely have been deemed non-justiciable, as the Divisional Court found. The Supreme Court, however, ensured that its ruling reflected and advanced the rebalancing of power between the executive and Parliament. In so doing, the Court has opened the possibility of further judicial constraints on executive discretion. As Stephen Tierney has argued as part of this symposium, the Court deployed a novel understanding of the judiciary’s role in determining the scope and extent of a prerogative to rule that the prorogation was unlawful. It also elevated the convention of the executive’s accountability to Parliament to the status of a constitutional principle, allowing it to be judicially enforced.

Although the judges held that the ruling was a ‘one off’, it is certainly plausible that other exercises of prerogative authority could be subject to these wider standards of judicial review. A military deployment, for instance, could conceivably be found unlawful if the courts find that its stated purposes were illegitimate, or if a failure to first secure the approval of the House of Commons is found to be contrary to the constitutional principal of executive accountability. In theory, many decisions that might have been considered political questions or matters of ‘high policy’ are now open to judicial override. That said, the judges did not question the existence or legitimacy of the prerogative itself, only how it was used in this instance.

Where does this leave the executive? Certainly, the prorogation has reinforced the sense that the royal prerogative is open to abuse and that efforts to ‘tame the Crown’ should continue. Prorogation’s days as a prerogative exercised on the advice of ministers may be numbered, as a result. Yet the past decade and a half of reform, the troubles of the Johnson government, and Cherry/Miller 2 suggests that efforts to constrain the executive have essentially succeeded. Perhaps the issue now is what discretionary powers and prerogatives the executive should be preserved, not how many more must be curtailed.

Granted, this is not a discussion that is likely to be dispassionate in the context of Brexit. But once Brexit is settled, it may be worth asking what kind of powers and discretion should properly belong with the executive in the British constitution. As the Supreme Court itself emphasized, the British constitution operates with a separation of powers and according to the principle of responsible government. This then leads one to ponder: what powers and responsibilities should belong with the executive as a separate, if submissive, organ of the state?



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.

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.