NSICOP and the reality of a minority parliament

So, it seems that the National Security and Intelligence Committee of Parliamentarians (NSICOP) has hit a bit of a snag. This is regrettable and should have been avoided. But it was also predictable and reminds us that ours is a system of political accountability (see chapter 3 here), even in matters of national security and defence.

What is NSICOP? It’s an executive review body whose members must be parliamentarians.

Despite having ‘committee’ and ‘parliamentarians’ in its name, NSICOP is not a parliamentary committee. Rather it is a committee of parliamentarians who serve in an executive capacity. Don’t think that matters or that it’s a pedantic point? Alas, it does matter, as we’re seeing these days.

Because NSICOP is not a parliamentary committee, it does not review national security affairs as a subset of a house of Parliament. It does so as a part of the executive. During a majority parliament, we might not care or notice this distinction. The governing party will control Commons committees and they won’t be inclined to demand any documents or undertake any troublesome investigations, as a result. In that context, having NSICOP around is quite useful. The Committee undertakes reviews and publishes reports that are eventually tabled in Parliament, and as a committee of parliamentarians, it involves senators and members of Parliament in monitoring national security issues.

The problem arises when we have a minority parliament and opposition parties control Commons committees. In these situations, the opposition will be able to use the powers of Parliament to call the witnesses they’d like and to demand documents from the executive, including those that touch on national security. While the executive will naturally prefer that these questions be referred to NSICOP, the opposition will have no incentive to play along. Once a matter is referred to NSICOP, it can take months, if not years, for the committee to complete its review and produce a report. By the time this process is over, the issue at hand will be dead, politically. Why should the opposition accept that when it can keep the issue alive during a minority parliament, a situation where an election is always around the corner and parties are vying to make whatever headway they can against each other?

National security experts will likely answer that national security issues should be above partisan politics. A similar argument has been made about how the opposition is using sexual misconduct in the military to attack the government: these questions are too important to be mired in the muck of partisan politics.

As much as I sympathize with this view, it’s too idealistic and runs contrary to the system of government we’ve developed in this country. Government accountability in Canada is a political affair. To keep sufficient pressure on the government to account for itself and rectify whatever wrongs are happening, we rely on opposition attacks that attract and sustain media attention. However ugly and petty it gets, this is the mechanism we have in place to get answers and action from the government.  

A core weakness NSICOP has had since it was first proposed is that it runs counter to this political reality, notably during minority parliaments. The true test of the Committee’s viability was always going to be when the opposition would control Commons committees and make full use of the privileges of Parliament. When the opposition has these at its disposal, why should it settle for NSICOP when holding the government to account for national security matters? Unfortunately, the only answers provided to that question don’t reflect the political, and yes partisan, nature of accountability in Canada.

See my follow-up post here.

Wayward Governors General and the need for a Canadian Regency Act

Canada doesn’t have a regency act. Recent talk of the Queen’s power to dismiss Canadian Governors General highlights why this is may be a problem. Specifically, Canada’s current approach to a regency rests on the idea that the Governor General would exercise all of the Sovereign’s powers, including the prerogative to appoint their own successor. Were we faced with a Governor General who needed to be dismissed when the Sovereign was incapacitated or too young to assume the throne, we’d have to ask the vice-regal representative to fire themselves by naming their own replacement. That’s not a recipe for success.

The United Kingdom has a regency law, the Regency Act 1937, along with two amendments to that statute made in 1943 and 1953. Neither of these acts were extended to into Canadian law by the British Parliament. Accordingly, if we accept that the Queen of the United Kingdom and the Queen of Canada are separate and distinct offices (which not everybody in Canada does, but the English courts do), these British regency laws would not apply to the Sovereign in a Canadian capacity or the monarch acting for Canada on the advice of Canadian ministers. 

Why were the British regency acts not incorporated into Canadian law? The detailed explanation is provided by Twomey here. The short version is that these acts were passed by the British Parliament after the Statute of Westminster 1931. Section 4 of the Statute of Westminster 1931 provides that « No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to the enactment thereof ». Since the Canadian government did not request and consent that the British regency acts be extended to Canada, they aren’t part of Canadian law. 

The Canadian government didn’t see this as a problem in 1937 for the same reason we don’t think about it today: Canada has a Governor General who can exercise the Sovereign’s powers. In 1947, moreover, new Letters Patent were issued that explicitly allow for the exercise of all the Sovereign’s powers and prerogatives by the Governor General. All powers except for maybe one, that is: the power to appoint and dismiss the Governor General. 

Today most authorities would probably agree that the Letters Patent allow the Governor General to appoint their own successor, though this could be considered bad constitutional form and an affront to the Queen unless she was consulted beforehand or was incapacitated. According to the prevailing view, the Queen continues to appoint the Governor General ‘by agreement’ and this prerogative should only be exercised by the Governor General if the Sovereign ‘agrees’ to give it up, or necessity demands that it be exercised by the vice-regal representative. 

As importantly, it’s not hard to see why the Canadian government wouldn’t have seen this, and still doesn’t see this, as a big issue. In the event that the Sovereign was incapacitated, the Governor General could simply stay in office until the monarch recovered, died, or a successor came of age. Unlike provincial Lieutenant-Governors, furthermore, the Chief Justice of the Supreme Court can exercise the Governor General’s powers under the Letters Patent 1947 if the Governor General dies in office. And if the Chief Justice also died, then the next Chief Justice could do the same. This is all laid out in the federal government internal 1968 procedure and practice manual. So, our system has built-in resiliency here, unlike the provinces who must wait for the federal Cabinet to appoint a new Lieutenant-Governor if their vice-regal representatives dies, preventing them from having orders-in-council signed and royal assent granted.  

There’s one problem here, though. With the power to appoint the Governor General comes the authority to dismiss the Governor General. They’re twined prerogatives. Our regency workaround is fine when it comes to waiting for a new Governor General to be appointed or making due for a while. But what if we need to get rid of a Governor General while the Sovereign can’t exercise their powers? Basically, we need to ask the Governor General to resign by appointing their own successor. 

Now, according to constitutional convention, if the Prime Minister advised the Governor General to appoint their own successor, they would have to do it, unless the Prime Minister was advising it because the vice-regal representative was blocking them for acting unconstitutionally. (Think of a Canadian version of the Saturday Night Massacre.) 

Yet, if the Prime Minister is trying to forcibly get rid of the Governor General, it’s probably because the vice-regal has refused to voluntarily resign. In that context, said Governor General might also refuse to effectively dismiss themselves. In the absence of an existing regency act, the Prime Minister would have two options. First, they could rush a regency bill, or a constitutionally-dubious bill dismissing the Governor General, through Parliament. Alternatively, they could refer the matter to the Supreme Court in hopes that the justices would pull a Miller II, circumventing constitutional convention to solve the problem. Given that the Governor General also has the power to dismiss the Prime Minister, though, this sounds like a game of constitutional chicken we’d want to avoid, even if it all worked out in the end. Seriously, who needs the stress and aggravation?

Since we are likely facing decades of geriatric monarchs, and given that talk of dismissing a Governor General doesn’t seem that outlandish these days, perhaps we could get ahead of the curve. Indeed, addressing this lacuna would also address another ‘what if’ scenario: appointing additional senators under section 26 of the Constitution Act 1867, as happened in 1990 to pass the GST. Section 26 requires the involvement of both the Governor General and the Queen. A plain reading of the section suggests that the Governor General shouldn’t be able to act for the Queen. Simply assuming that the Letters Patent 1947 allows the Governor General to act for the Queen under section 26 seems risky, to say the least. 

A regency act could be passed by Parliament as a regular statute or a section 44 constitutional amendment, if need be. It could be as basic as New Zealand’s regency provision, which says that the British regent is also the regent for the Crown of New Zealand. It would take a couple of lines. Let’s get on it.  

Disciplining and Dismissing Governors General

What can be done with a Governor General who has been accused of acting inappropriately, but not unconstitutionally? As with most things Crown, it’s complicated. To understand why, we need to look how the Governor General relates to the Queen and the Prime Minister.

The Governor General is the Queen’s representative and is appointed (and if necessary dismissed) by the Sovereign on the advice of the Prime Minister. In almost all cases, the Queen is unlikely to raise objections about the person selected. The Queen and Buckingham Palace will assume that the Canada’s Prime Minister has selected a Canadian of proper standing and honour, and that the Prime Minister’s Office and Privy Council Office have performed due diligence regarding the individual’s suitability for the role and what it entails.

This being the Crown, there are of course exceptions. The Queen might refuse to appoint a new vice-regal representative if the Prime Minister is trying to replace the Governor General for dubious reasons. For example, the Sovereign would have the discretion to keep her vice-regal representative in place if the Prime Minister had lost the confidence of the House and the Governor General was refusing to dissolve Parliament in lieu of allowing someone else to form government. Likewise, the Queen would have the right to refuse if the Governor General was preparing to dismiss a Prime Minister who is engaging in criminality or who is acting unconstitutionally. In these instances, the Queen would be preventing the Prime Minister from interfering with the Crown’s place and powers in the Canadian constitution.

Aside from these extreme cases, though, the Queen would normally dismiss and replace the Governor General on the Prime Minister’s advice. The Queen retains this power to ensure that we have a mechanism to deal with Governors General who are unfit for office or who have misused their powers.

But does this mean that advising the Queen to dismiss a Governor General is the obvious solution when faced with a Governor General who is accused of wrongdoings? Not exactly.

Unless the Governor General has gone rogue or is acting in a flagrantly unconstitutional or criminal manner, the preferred course of action is for the Prime Minister and/or the Clerk of the Privy Council to work with the Governor General and Rideau Hall to remedy whatever the problem has arisen. If the issue can’t be readily resolved, or if it keeps recurring, the Prime Minister might request that the Governor General resign voluntarily. A conversation behind closed doors that allows everyone to save face, and to preserve the dignity of their respective offices, is the way to go.  

This would surely be Buckingham Palace’s preference as well: far better to keep the Queen out of it, if at all possible (though the Queen’s Private Secretary might also recommend that the Governor General resign, for the sake of the Crown’s wider reputation.)

So just to be clear: Advising the Queen to dismiss the Governor General should be the last option, when all others have been exhausted or time is of the essence.

Of course, having the Prime Minister visibly leaning on the Governor General to do better or resign would be awkward and expose constitutional fault lines we tend to ignore.

Formally, as the Queen’s representative, the Governor General holds the second highest office of the Canadian state. The Governor General is entrusted with reserve powers that are meant to ensure that vital aspects of the Canadian constitution, notably those surrounding the life of Parliaments and ministries, are respected. As discussed, this means that the Governor General may have to refuse a Prime Minister’s request to dissolve Parliament, and the Governor General may be required to dismiss a Prime Minister who is violating the constitution or who is otherwise unfit to be first minister. When we think of who has the power to dismiss who, we usually think of it in terms of the Governor General’s authority over the Prime Minister. And, frankly, when our system is operating normally, that’s the way it should be. 

When it’s the Governor General’s conduct that’s at issue, however, the responsibility to act belongs with the Prime Minister. When Canada was a colony, this duty to act would have rested with the British government, since the Governor General was effectively their agent. Today, the Prime Minister’s responsibility stems from the fact that, under the conventions of responsible government, Prime Ministers advise the Queen on the appointment and dismissal of Governors General, and Prime Ministers are responsible for, and accountable for, all acts and affairs of the Canadian Crown, i.e. the Queen when she is acting in her Canadian capacity and the Governor General.

The Governor General, moreover, can’t be dragged in front of a parliamentary committee to account for their actions, nor would it be appropriate to even invite them. Governors General are supposed to be above the partisan fray and exposing them to opposition questions and critiques, or governing party deflections, would be contrary to constitutional propriety and the dignity of the office.

When the Prime Minister has to answer for the Governor General’s behaviour, though, it should be seen as a warning sign. If the issue goes away in short order, then the situation might be righted. But if the problem becomes a controversy or scandal, things will quickly become untenable. The Governor General’s authority over the Prime Minister will unravel if the first minister is having to reprimand the vice-regal representative. Conversely, the power and legitimacy of the Governor General will take a significant hit if the vice-regal representative is seen to be acting with impunity. Indeed, the standing of the office and institution could take significant damage if a Governor General appeared dismissive or unaccountable. A Prime Minister who couldn’t or wouldn’t do anything would also be abdicating their constitutional responsibilities.  

If questions about a Governor General’s suitability for office mount and persist, the matter should be dealt with discreetly, but decisively. If that doesn’t work, it may be necessary to address the issue more openly, to expose the goings on to public scrutiny and pressure. And if that still doesn’t solve the problem, then the Prime Minister should intimate that they’ll call the Queen, and ultimately call her and request a dismissal of the Governor General if there’s no other option.  

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:

Screen Shot 2019-10-17 at 11.22.43 AM

Screen Shot 2019-10-17 at 11.23.18 AM



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.

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.