On the Crown’s relevance

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.

Thoughts, Ben?

(Apologies, as always, for the typos and imperfect grammar.)

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20 Comments

  1. So many conceptual abstractions that mean as much as MPs 3 miles beyond Ottawa, not much. Then the orginal unitary British crown has been subdivided into federal and provincial sections to suit us in Canada. That’s not the way it was in the UK. Our constitution is very loosely based on the UK’s, it has evolved in an entirely different direction.

    The GG doesnt even sign anything anymore. All these crown abstractions are fascinating to the chattering classes, but they really add up to very little because the PM, parliament and MPs get their mandate from elections from the people.

    All the technicalities of government may be getting more scrutiny with the absolute uselessness of the Senate coming to the fore. Paying $100 million year for party bagmen seems very unproductive to taxpayers these days. One billion over a decade. Sounds like real money to me. They are supposed to represent provinces but they actually represent parties now, so let parties handle the cost. That is political corruption of the first degree and Canadians are getting tired of it.

    It must be so dull for so many of these Senators to live in the sticks where few people care about politics. They want to be in Ottawa where the action is because they are political junkies-some of them are anyway. Living in rural Quebec or PEI must feel like a prison.

    I think most Canadians think that political parties need the Senate far more than they do. As for those who say its only a couple of bucks per year per Canadian, send me a cheque for $150,000 a year for 20 years and I’ll clam up, maybe even support it. It’s not in my interest at present to support the Senate.

    The crown in Canada like the Senate has become a bagatelle. Few would notice if they disappeared. Everyone in Canada would obey the law if the crown vanished just like they do now. Canada is a highly insured and safe place, no one wants radical change, but it might come if it keeps getting delayed. There might be some political power plays, but they would be homegrown. We might even get more democracy, although that’s a long shot, but worth a try.

    1. If you can convince all of the members of the SCC to commit treason by denying their allegiance to the Crown, you may be able to get ride of the royals in Canada. But I seriously doubt that will ever happen. The Constitution rules us all and it is ironclad.

  2. I tweeted you yesterday concerning some questions I had about ministerial prerogative and the power of the Crown.
    The first question went away after thinking about your writing on ministerial prerogatives but the last one still remains and in some sense it may be connected to the first question.
    The impetus of my question come about as a result of Green Party MP Elizabeth May’s petitioned to the Governor General and Her Majesty to open a Royal Commission on robo calls and election fraud. Additionally, my observance of social and main stream media comments sections demanding the same thing.
    So my question relating to the power of the Governor General is: does the he have the power to call a Royal Commission. As an after thought I would like your opinion on whether he is legally responsible to respect the calls from the majority of the electorate for an enquiry into election fraud. Notwithstanding the facts that he is being improperly petitioned and that the government has a majority in the house.
    With regard to the GGs power to act on behalf of he electorate. I have not found any document which indicates that the power of the Crown has been ceded to a second party. In fact if anything the power has been reinforced over the years, not once but several times.
    British North America Act, 1867 ; 1892 Judicial Committee of the Privy Council, in the
    case of The Liquidators of the Maritime Bank of Canada v The Receiver General of New
    Brunswick; Statute of Westminster of 1931; Letters Patent, 1947(Article II and Article V specifically);and all the aforementioned are in fact re-enforced by Section 41 of the Constitution Act, 1982.
    In my opinion these constitutionally enshrined pieces of legislation not only reaffirmed the importance of the Governors in Canada, they also guaranteed their structure and powers from the threat of tampering by cabinet. In short he is the supreme power in Canada answerable to no one.
    With regard to past uses of power by the Governors there is some historic precedence suggesting what those ultimate powers can do and have done. The most striking of these over the years has been the removal from office of five Prime Ministers. Of course as you are undoubtedly aware there are dozens and dozens more examples, some famous and some not.
    So what has happened over the past 20 years? Have the conventional rules of the constitution, which have no legal standing (Supreme Court ruling, Reference re Resolution to Amend the Constitution, [1981] 1S.C.R. 753) taken over our country? Or are we looking at a question of lack of knowledge in the highest office in the land as Adrian Clarkson has implied?

    1. No, the GG could not appointment a royal commission alone. That would be a prerogative that requires ministerial advice. It might even be argued that the Inquires Act has displaced that prerogative, though I would dispute that view.

      It’s hard to explain precisely why governors have been less assertive in recent decades. Part of it may be the character and background of those who were named. The other part may be that we aren’t yet aware of situations when governors pushed backed against questionable advice and first ministers decided not to insist. I’ve heard a few rumours to that effect, but we’ll only really know once memoirs are published, etc.

      1. Could it also be that principle and precedent are being lost across all of the parts of the crown?

        Prof. Savoie wrote “Breaking the Bargain” talking about the breakdown of the “bargain” between the public service and politicians. In “Court Government” he describes the decline of the cabinet from a decision-making body to a sounding board.

        I don’t think you can argue that with the cabinet that “[p]art of it may be the character and background of those who were named.”

        We have a constitutional form of government based on respect for often-unwritten rules. It seems those in control have stopped showing respect for those rules.

        Mr Martin threw then GG HE Adrienne Clarkson under the bus over expenses for a tour of northern countries that had been requested by his government.

        In Quebec, under the PQ, the Lieutenant Governor is not allowed to be seen swearing in the cabinet in public. Recently, it was done behind closed doors with the new PM “presenting” her cabinet afterwards.

        And if Mr Harper gets any closer in public to HE Mr Johnston, he’ll push him of the dais to take the royal salute himself.

        If we want a better understanding of the importance of the Crown maybe Heritage Canada could run a few less ads about the War of 1812, and a few more about our current crown representatives.

      2. I agree that we need a better understanding of the conventions. The key players aren’t always aware of how the conventions are interpreted. Also, we need to bear in mind that both politicians and governors have bent them in odd ways. And there’s always the question of whether we should allow them to be static. Certainly a good deal of the discussions we have around conventions are highly normative, ie people arguing for what they want them to be rather than trying to figure out what they are.

        Yet we should also appreciate that this is nothing new. Conventions developed as a result of political battles and considerations and they’ll continue to do so. I don’t think there was ever a golden age where everyone agreed on the rules and accepted them without question.

      3. Philippe

        I have tried to reply in your blogs comments section and even though I am logged in it rejects my posts and requests I fill in the required fields. In any case this is one of the most interesting sites, if not the most, I have ever visited.

        Cheers

        Michael.

      4. Hi Philippe Were you trying to comment to connect with my blog Education and Ideas? I’m not sure. But I made a change on it how a person doesn’t need to make a previous comment to comment, which makes little sense. Maybe ticking one box will make a difference. Ben

        From: bengriffin85@hotmail.com To: Subject: RE: [New comment] On the Crown’s relevance Date: Tue, 13 Aug 2013 11:16:12 -0700

        Hi PhilippeI can’t say why you’re comments were rejected, I’ll have to check it out. I’m glad you find it very interesting, thanks. Ben

        Date: Sat, 10 Aug 2013 13:59:04 +0000 To: bengriffin85@hotmail.com

  3. I’m going to go out on a limb here and guess that Ben – from somewhere in Barnaby – wasn’t the friend you were hoping to here from.

    1. “Although they are now exercised on the advice of ministers… “

    I would suggest, “mostly exercised”. If I understand correctly there are still parts of the honours system that remain a personal “gift” of the monarch (even in Canada). General Jean de Chastelain is a Companion of Honour, as was the recently deceased Anthony Pawson; and, Jean Chretien is a member of the Order of Merit.

    As well, there are the little-understood, aberrant powers, such as the University Visitor.

    The Act of Supremacy added the right of visitation to Henry VIII’s list of new prerogatives:

    “And that our said Sovereign Lord, his heirs and successors kings of this realm, shall have full power and authority from time to time to visit, repress, redress, reform, order, correct, restrain, and amend all such errors, heresies, abuses, offences, contempts, and enormities, whatsoever they be, which by any manner spiritual authority or jurisdiction ought or may be lawfully be reformed, repressed…”

    The SCC has agreed when asked, on at least two occasions, that the law was received in Canada.

    As Prof. Ouellette wrote (Yves Ouellette, “Le contrôle judiciaire sur l’université” (1970) 48:4 Can Bar Rev. 631 at 636) :

    « Il ne fait pas de doute que le droit corporatif anglais et du même coup la jurisprudence sur le statut et les pouvoirs du visiteur ont été reçus au Canada et au Québec et s’appliquent aux universités du pays. »

    2. “Mme Jean would then have been compelled to appoint Stéphane Dion, …”

    She could also have called an election. The use of the verb compel suggests there was only one choice, regardless of which might have been the better.

    3. “efforts to introduce binding referenda…”

    A really petty quibble: (as a Quebecer I’ve lived through two of them, as well as the debate about the correct term in English). The plural of referendum is referendums. Unlike memorandum, which means the same thing in Latin and English and we therefore use the same plural; in Latin, referendum is not the process of putting a question to the electorate, it’s the question (so closer to the U.S.’s proposition).

    I have to track down and read your Cdn Public Adm article that you referenced before adding more.

    1. Thanks very much for the comments.

      You’re right about the honours. I was thinking about executive prerogatives specifically, but that’s no excuse. I’ve edited it accordingly. I’ve changed it to referendums, too.

      I have to disagree about Mme Jean being compelled. It would not have been appropriate to call an election on her own. She would first have need to appoint a PM who would formally advise a dissolution. It’s a small detail, but an important one, I think.

      1. You argue: I have to disagree about Mme Jean being compelled. It would not have been appropriate to call an election on her own. She would first have needed to appoint a PM who would formally advise a dissolution. It’s a small detail, but an important one, I think.

        It took me quite a while to catch on to why I didn’t agree with you.

        I thought if King had resigned, and Meighen had declined Byng’s offer (rather than accepting), would Byng have been required to keep offering it to someone until he could get someone to accept and recommend dissolution.

        Then it clicked, we probably both agree on the law.

        It’s your fact pattern that threw me.

        You state: “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…”

        I prefer to believe that “precedent and principle” would suggest that a PM facing a vote of confidence in the House of Commons would not have sought prorogation. He would have faced the House, and if loosing the vote, decided what to do next.

        Precedent and principle are, I believe, one of the cores of your arguments about the need for us to understand the centrality of the crown to our system of government.

        In dealing with Parliament, or its’ officers, I haven’t often seen respect for precedent or principle from the current PM; and I can’t see a reason to believe that Mr Harper would not have asked for dissolution had he been denied prorogation.

      2. I have difficulty with your premises. We know that the PM advised and got the prorogation, despite the threat of a non-confidence vote. Once the GG accepted that advice, there was no need for him to ask for a dissolution at that point.

        Now, had Mme Jean refused a prorogation, why would we think that she would accept a dissolution? In fact, by convention, she would have been on more solid ground to reject a dissolution than a prorogation. And if she flat out rejected the dissolution, we’d be back that the resignation question.

        So that leaves the issue of whether Mr Harper would have withdrawn his advice Mme Jean warned that she would reject it or if he would have refused to resign once she did reject it.

        This is purely speculative, but politically, my sense is that it would have been far more advantageous to resign in both cases. Threatening resignation would have signalled the seriousness of a rejection to Mme Jean. It would also mean that Mr Harper would not have lost a vote of non-confidence, and been in a much stronger position to attack both the GG’s decision and the Dion coalition thereafter.

        Not resigning would also be consequential from the point of view of the constitution. It would create a precedent such that a GG could refuse the formal advice of a PM who hasn’t get lost a confidence vote. This could certainly have happened, but it would have brought about a significant shift in how we have traditionally understood the relationship between a governor and first minister since the first decades of responsible government in the Canadian colonies.

      3. A few more points to clarify.

        Even in the Byng case, I’d argue that he would have found someone to serve as PM and advise dissolution if need be. Byng was assertive, yes, but I question whether he would have been so bold as to dissolve Parliament without advice. We need to keep in mind that Bynd did what he did knowing that Meighen was likely to accept the position.

        As for Harper returning to the House, being defeated, then asking for a dissolution, we need to bear in mind that the previous election was quite recent and Dion had signalled a willingness to form a government. It would have been very odd to refuse a short prorogation based on a possible non confidence vote, only to accept a dissolution following that vote.

      4. OK, you really are loosing me here.
        Your article and what Mme jean would have been compelled to do was based on what would have happened if Mme Jean had declined. You wrote: “Had Governor General Jean refused Prime Minister Harper’s advice to prorogue”. I din’t establish the premise, I thought you did.

      5. Ah, sorry. You were saying that Harper should never have advised a prorogation in the first place. Had he then lost confidence, he could have advised a dissolution.

        That could have happened. I suspect Mme Jean would have refused and named Dion PM, but she might have decided to go with a dissolution instead.

  4. “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.”

    This would be prudent, but would it really be necessary? As I understand it, when South Africa first became a republic, the constitution simply declared that the new State President would assume the prerogative powers of the Queen (and that the same conventions would apply to their use). South Africa’s republican transition obviously isn’t a precedent that Canadian republicans would like to invoke. But if it became necessary to abandon the monarchy in a hurry or there was simply no interest in redistributing the powers of the Crown, wouldn’t it be possible for Canada to do as South Africa did?

    1. Like Ireland, South Africa opted to give its President the head of state functions that previously belonged with the Queen. However, they had to enumerate them in a written constitution. I suspect we’d do the same for the head of state functions.

      South Africa also declared that all the Queen’s prerogatives became presidential powers, as you say (the 1961 constitution, not the 1996 version.) If we did that, we’d be constitutionalizing a number of powers that might still be considered common law authority. To my mind, that would be a fairly bold statement and significant decision about how these powers should be understood and how they should relate to the legislative authority. That said, if we were willing to be that bold, so be it!

      Equally important, though, given our recent history and critiques of our current system, I suspect there would be a good deal of debate about whether the head of state and executive prerogatives should be kept as is. My sense is that more than a few people would want greater parliamentary control over those powers. As you point out, it might be a solution if we’re in a rush, but it would still be quite consequential and arguably lead to an even stronger executive.

      Thanks for the great comment!

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