My twitter friend Ben suggested that I write a blogpost explaining why the Crown matters for routine affairs of government. I’ll try to be brief….
When it comes to how we’re governed, the most important aspect of the Crown are prerogative powers. These are legal powers that belong to the Crown in its own right. Although most are now exercised on the advice of ministers, or delegated to ministers by statute, you can only really understand the scope and nature of prerogatives by appreciating their formal and historical status as Crown authorities (see my Canadian Public Administration article on prerogatives here). Indeed, if we decided to get rid of the Crown, one of the first things we’d need to do is determine which of these powers should remain with the executive, how they should be exercised, and by whom.
Why do prerogatives matter? Well, in large part because they provide the executive with a degree of discretion in important areas of government. Furthermore, the courts tend be cautious when they’re asked to review exercises of these powers. Here are a few cases involving prerogative powers that have come up of late:
The government was able to withdraw from the Kyoto Protocol, despite legislation that appeared to force the executive to adhere to the international arrangement, because international treaties fall under the foreign affairs prerogative.
The prerogative that the government used to withdraw from Kyoto also allowed the executive to decide how it wanted to address Omar Khadr’s return to Canada. Although the Supreme Court found that Khdar’s Charter rights had been compromised, the court noted that the prerogative power for foreign affairs had to be considered before imposing a remedy on the executive.
The government is able to deploy the armed forces on operations anywhere in the world, and the courts have routinely refused to review these decisions, thanks to the Crown’s prerogative authority.
The prime minister’s ability to appoint and remove ministers at will is based on prerogative authority. The courts recently ruled that these decisions can’t be reviewed because the prime minister acts via the Crown’s powers.
The executive can grant pardons with prerogative authority. If you’ve wondered how the prime minister was able to pardon farmers charged under the now defunct wheat board regulations, prerogative power is the answer.
The executive issues and revokes passports under prerogative authority. If you like your passport and the travel privileges it affords, it’s worth appreciating that your little blue booklet is on loan from the Crown.
I could go on and on about prerogatives. They also address issues such as prosecutorial discretion, signals intelligence capacities (those that can look into electronic communications), the appointment of various officials across the government, and the Crown’s status as a creditor. These are all significant for the affairs of government, and for some people who find themselves affected by a prerogative authority, their everyday lives.
Next, it’s important to understand the Crown if you want to grasp the nuances of responsible government. All too often, when we talk about responsible government, we focus solely on the relationship between the House of Commons and the governing ministry. But responsible government also involves an agreement between the Crown and the ministry. At the core of this agreement is the principle that the Crown must act on the advice of the governing ministry. If the governor general is ever forced to formally refuse the prime minister’s advice, then the normal course of action is that the prime minister resigns or is dismissed by the governor general. This doesn’t mean that the governor general can’t initially push back or ask a prime minister to reconsider the advice that’s being offered. But if a prime minister insists and formally advises the governor general to act, the consequence of rejecting that advice has typically been prime ministerial resignation or dismissal, followed by the naming of a new prime minister by the governor general.
So why should people care about this aspect of the interaction between the Crown and a ministry? Above all, it adds an extra layer to the on-going debate about if and when a governor general or lieutenant governor should refuse a first minister’s advice to prorogue or dissolve the legislature. While vice-regal officers retain the right to refuse a first minister’s formal advice, Canadian historical precedent and the literature on the Crown’s relations with its ministries indicate that the resignation or dismissal of the first minister would be the consequence of that refusal. (See Vernon Bogdanor’s The Monarchy and the Constitution for a good summary of this principle).
It’s worth bearing all this in mind if you care about the 2008 prorogation of Parliament. Had Governor General Jean refused Prime Minister Harper’s advice to prorogue, precedent and principle suggest that Mr Harper would have resigned or been dismissed (likely after trying to get the Queen to reverse the GG’s decisions, which would have been a long shot). Mme Jean would then have been compelled to appoint Stéphane Dion, the interim leader of the Liberal Party, as prime minister, since one of the GG’s first duties is ensuring that there is a ministry in place. The key point here is that Mme Jean might have forced the resignation of a prime minister who had not formally lost the confidence of the House of Commons. While prominent constitutional scholars would supported her right to do so, I suspect this decision would have dragged the governor general into the fray of partisan politics and undermined the legitimacy of a Dion-led coalition.
Simply put, if you care about responsible government and how it functions, it’s worthwhile reading up on the interaction between the Crown and prime ministers.
A third consideration is official independence. Bureaucrats and security forces follow the directions of the government of the day, and rightly so. But their ultimate loyalty does not, and should not, belong with a governing party. Instead, they formally serve and are ultimately loyal to the Crown. It is for this reason that their formal independence from the political executive flows from their service to the Crown. Yet their ultimate service to the Crown further means that these bureaucrats and security forces are not free agents who can defy the government whenever they please. As long as the prime minister and cabinet enjoy the confidence of both the House of Commons and the Crown, these officials and officers must respect their policy preferences and choices. The Crown therefore helps achieve a balance between official independence and the inherent technocratic tendencies of bureaucratic, military, or law enforcement organizations.
Fourthly, the status and rights of First Nations in Canada is wrapped up in their historic treaties and relations with the Crown. This has received a good deal of attention lately, owing to the Idle No More movement. But it’s worth reminding ourselves that Crown-First Nations relations will need to be addressed as part of any long-term reconciliation between Aboriginal groups and Canada’s federal and provincial governments. At the risk of repeating myself: if you care about Canada’s First Nations, you should share their interest in the Crown.
Lastly, taking the time to understand the Crown matters for those who want to appreciate Canada’s constitutional complexity. Although the British North America Act, 1867 arguably aimed to establish a centralized federation, the judiciary later found that the federal and provincial Crowns were relatively equal, rendering Canada a relatively decentralized federation. A number of efforts to reform Canada’s system of government, such as efforts to introduce binding referendums and enforce fixed election dates, have been diluted owing to the Crown’s powers. Canada’s emergence as a independent and sovereign state occurred as the Canadian Crown was gradually hived off from the Crown of the United Kingdom; in fact, strictly speaking, the source and foundation of Canada as a sovereign and independent state is the Crown of Canada. The Crown’s powers and privileges also help explain why the government is so dominant in Canada’s legislatures. Even if party discipline is loosened and many more free votes are held, the requirement of royal recommendations for bills involving the expenditure of money, and of royal consent for bills touching on the Crown’s powers and privileges, would grant governing ministries an ability to protect the executive from a very ambitious parliament, if they so chose.
I know this discussion probably won’t convince doubters and haters that the Crown matters. And I know that I see the Crown as being far more important than most because I spend so much time thinking, reading, and writing about it. But I hope that I’ve at least shown why it shouldn’t be easily discounted.
(Apologies, as always, for the typos and imperfect grammar.)