Still the Premier

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

The Problem with Mandate-Talk

Talk of government ‘mandates’ is damaging our politics and undermining our institutions. The concept doesn’t hold up in our system of government and it’s worsening our debates and disagreements. We should stop talking about how elections give governments mandates or that governments should hold elections to secure new mandates.

Politicians and commentators use mandates to mean the following: if a political party has a policy proposal in their electoral platform, and they get elected with a majority of seats, then then voters have endorsed this policy proposal. Put simply, the government has a ‘mandate’ from voters to pursue that policy. Conversely, if a government pursues a policy that wasn’t part of their electoral platform, then we can say they lack a popular mandate to enact it, particularly if the initiative is controversial. We can also use mandate to mean the underlying democratic legitimacy of a government. For example, if a government has been in power for a while and it needs to enact new policies or engage in difficult negotiations with provinces, other states, or some other powerful actor, then we can speak of the government seeking a new mandate from voters to do so.

What are the problems with this concept? Let’s start with our electoral system and constitutional structure.

Governments aren’t elected in Canada. They are appointed. The Crown appoints a first minister to lead a government based on their ability to hold the confidence of the elected house of the legislature. When a first minister’s party has a majority of seats in the elected house, they’re pretty much guaranteed to hold its confidence. When they hold a minority of seats, they need to negotiate with another party to hold confidence. In either situation, though, government formation and duration revolves around the first minister and the elected house. Voters don’t directly elect their governments, let alone their first ministers. They elect members of their legislature who then provide or withdraw confidence in a government.

Canadians elect members of the legislature by plurality, rather than majority. This means that the person elected to sit in the legislature needs the most votes of all the candidates, not a majority of votes. As a result, members are often elected with less than 50% of the votes in an election. Members routinely represent ridings where more than 50% of those who voted didn’t vote for them or their party’s platform. Of course, this isn’t always the case. Many members do get more than 50% of the votes in their riding. But they have no more standing or status than members who got less than 50%.

Parties, moreover, often win a majority of seats in the legislature with less than 50% of the popular vote. Roughly speaking, parties can win a majority of seats in the federal Parliament with somewhere above 37% of the popular vote. This doesn’t affect the formal power they’ll hold in government. A majority is a majority, regardless of what percentage of people voted for individual governing party members at the riding level or as a percentage of the aggregated popular vote. The key point here is that the composition of the legislature, and hence the government’s ability to hold confidence, doesn’t depend on securing the support of a majority of voters, only a plurality of voters in each riding, in a majority of ridings.

What does this tell us about mandates? Well, it tells us that majority governments can be formed without the support of a majority of voters in each riding. We can and often do have majority governments where a majority of voters have not endorsed their platform or their members. In what sense, then, can we speak of these governments having a mandate? Only in the sense of having a mandate from a plurality of voters, not a majority of them. This then raises the question: what good is the idea of a plural mandate if it necessarily implies that the mandate was not supported, and in fact rejected, by the majority? Not much, in my view.

Does this mean our governments our illegitimate? No. It simply means that it doesn’t make much sense to speak about popular mandates under an electoral system that relies on pluralities and on governments that are appointed based on their ability to hold the confidence of the legislature. Rather than speaking about mandates, we should speak about what actually matters in terms of the government’s authority: the number of seats it has in the legislature. Removing popular mandates from the discussion avoids the often erroneous conflation of a majority of seats and a majority of votes, and it focuses our attention on the tangible source of a government’s democratic legitimacy, the support of the legislature. It restores the elected house of the legislature to its proper place as our principle democratic forum and source of governing legitimacy.

Equally important, it would prevent our governments from equating their majority standing in the legislature with a majority of support from voters that that they may not actually have. Similarly, it would prevent opposition parties from pointing to the government’s lack of a majority in the popular vote as some kind of argument against the legitimacy of a ministry that holds the confidence of the elected house. In both cases, it would cool bad, distorting rhetoric.

The second problem with mandate-talk is the assumption is makes about voters.

Mandate-talk assumes that people vote rationally, coherently, and with perfect information. Specifically, it assumes that voters are aware of all the proposals in all party platforms, that in voting for one party over another the voter is endorsing all of the chosen party’s proposals, and that the absence or inclusion of a particular proposal could have a demonstrable effect on an electoral outcome.

Unfortunately, the literature doesn’t support the idea of the rational, coherent, and perfectly informed voter. People’s voting choices are driven by myriad factors, some of which aren’t rational or thought out. Some of these factors aren’t even conscious! In some cases, voters are voting against one party, rather than for another vote. They may be voting because they like only one proposal being offered by a party. They might be loyalists who will vote for their preferred party no matter what they propose in their platform. Who knows. In fact, that’s the key point: we simply don’t know why every voter voted the way they did. Nor can we say with confidence that the result would have been different if we added or subtracted a proprosal from a platform after the fact.

The problems for mandate-talk should be evident. We don’t know if voters knew about all the proposals in a party’s platform, whether they endorsed all of them or some of them, whether they voted for the party in spite of them, or whether they still support them. Mandate-talk assumes that we can glean information about voters and their intentions that are incredibly difficult to accurately capture. When we speak about the relationship between party platforms, voting behaviour, and mandates, we’re engaging in gross simplifications in order to tell a story. It may be a good story. It may be a compelling story. It may even be a useful story. But it’s still storytelling.

Why does all this matter? It matters because mandate-talk tries to draw a direct connection between voters and governments at the expense of legislatures that have already been weakened by party discipline and an inability of caucuses to select their own party leaders. It matters because it further distorts our understanding of how our system of government works, leaving us vulnerable to manipulative rhetoric and dishonest characterizations. It matters because the logic of mandates can’t stand up to simple scrutiny. It matters because it’s not necessary.

 

 

The Sovereign Grant as a Monarchical Annuity

Unable to focus on writing owing to Ottawa’s heat wave, I spent a couple of hours debating a British journalist about whether or not the Queen is taxpayer funded in the UK. (Ok, I procrastinated.)

His argument was essentially that the Queen’s annual Sovereign Grant is paid by the Treasury, therefore the Queen is taxpayer funded. Since the Treasury uses taxes to pay for the expenses of the British state, it follows that Queen is being funded by taxpayers because she receives an annual sum of money from the Treasury.

My counterargument is that the Queen is given the Sovereign Grant in exchange for surrendering to the Treasury the profits of the Crown Estate, property owned by the Queen in her legal capacity but managed by independent trustees. This arrangement dates back to 1760, when the money the monarch accrued from Crown lands were insufficient to fulfil the Sovereign’s government responsibilities. Parliament agreed to fund the monarch through an annual Civil List payment in exchange for the revenue generated by certain Crown lands. Since that time, the British government has grown significantly, and the Sovereign is no longer directly involved in governing. Taxes and other revenue collected by the state now pay for most of the expenditures of the British state. In the mid-twentieth century, the Crown lands whose profits had been surrendered in exchange for the Civil List were reconstituted as the Crown Estate to “avoid confusion between Government property and Crown land”. Finally, in 2011, the Civil List was abandoned in favour of the Sovereign Grant, which provides the monarch with an annual disbursement from the Treasury indexed at a certain percentage of the profits the Crown Estate provides the Treasury per year. The purpose of the Sovereign Grant is to pay for expenditures related to the Queen’s remaining official duties as head of state. In 2011, the Sovereign Grant was indexed at 15% of the Crown Estate’s profits and in 2017-2018 it is indexed at 25%.

To my mind, the relationship between the Crown Estate and Sovereign Grant is reciprocal. The Queen is paid a portion of the Crown Estate profits to fulfil her duties, while the Treasury gets to keep the rest. Having the Crown Estate profits go to the Treasury and having the Sovereign Grant disbursed by the Treasury, moreover, ensures that Parliament can scrutinize both the management of the Crown Estate and the disbursement of the Sovereign Grant more effectively.

For the British journalist and those who agree with him, however, this is all a mirage. The Crown Estate has essentially been absorbed by the British state and it belongs to the monarch in name only. Indeed, saying that the Queen owns the Crown Estate in a legal capacity simply means that the property is now publicly owned, since the Queen’s legal capacity is the concept of the state in the United Kingdom. As a result, the Crown Estate’s profits are public funds, like taxes the British government collects from its citizens, and the Sovereign Grant is therefore taxpayer money that Parliament has told the Treasury to give the Queen. The fact that the money comes from the Treasury and not from the Crown Estate directly proves that the Queen is taxpayer funded, regardless of what historical arrangements surround the Estate and Grant.

In the end, this is a conceptual debate. I think the history and nature of the arrangement matter; it isn’t accidental that the Estate and Grant are almost always presented as intimately linked. The Treasury serves to make the transfer of funds more transparent, open to parliamentary scrutiny, and it simplifies the government’s ability to keep most of the Estate’s profits while paying the Queen the percentage required in a given year. My interlocutors believe that the money found in the Treasury’s consolidated fund comes from the taxpayer, broadly defined.

To help make my case, I’ll conclude by offering an analogy. The Sovereign Grant is like an annuity you can buy from an insurance company. The way an annuity works is as follows: you pay an insurance company a lump sum in exchange for an annual pension. The insurance company bets that it can make more money off interest and people dying before the total of the lump sum is paid out, and you get the security of having an annual pension if you live past what your lump sum would have provided in your dying years. The thing with annuities, though, is that you can’t get your lump sum back after you pay it. Nor it is in a protected account. The insurance company uses the money to do whatever it needs to do in a given year, paying out claims, etc. Similarly, the money you get can come from whatever other sources of revenue the insurance company has, such as premiums paid by other clients. But it doesn’t matter, since the insurance company has agreed to pay you a set amount.

The question then is this: who pays for your annuity? We know it’s the insurance company. But when we ask where the money comes from, we can either say from the lump sum we paid the company or from the premiums that the company collects from other clients. Put differently, did your lump sum buy you your annuity or are you living off the premiums paid for by other clients? I’d say your annuity comes from your lump sum agreement.

In the case of the Sovereign Grant, the agreement to surrender the profits of the Crown Estate is like an annual lump sum paid by the Queen for a yearly annuity. She agrees to give the profits in exchange for a guarantee that she receives an annual disbursement to cover her official expenses. The Treasury is like the insurance company in the sense that it places the Estate profits in a consolidated fund and uses them as needed. Taxes paid by citizens are like the premiums the company’s other clients pay. The one big difference here is that the company, the Treasury, always comes out on top, since the annuity is only a percentage of the annual lump sum. But what happens if the Treasury spends more than it takes in? Does that mean that the Treasury’s other clients, the taxpayer, are on the hook for the Queen’s Grant? Only if you also think that an insurance company’s other clients are paying for your annuity with their premiums.

 

 

The Supreme Court and Constitutional Change: Veto Player or Forcing Function?

The Supreme Court’s ruling in Comeau was disappointing. When offered the chance to bring some balance between section 121 and provincial powers, the Court swung hard toward the latter. In a typically Canadian fashion, the interests of governments took precedence, and will continue to take precedence, over the interests of consumers. We shouldn’t be too surprised by this. The people are absent from the Canadian constitution. We are a country of Crowns and legislatures, regions and minorities, not a state with a sovereign, unified people. Ultimately, Comeau reflects this reality.

The interpretive problems with the Comeau ruling have been addressed by legal scholars (here and here) and a political scientist who specializes in the Court and the Constitution. I’m not qualified to comment on their analyses, but they’re fairly convincing to this lay reader.

What I can comment on is the Court’s approach to institutional change. As Craig Forcese noted yesterday, it’s hard not to notice that the SCC is encasing Canadian institutions in amber. The Court is becoming a significant status quo player when it comes to institutional change. (Dennis Baker and Mark Jarvis have a great book chapter on this issue in Macfarlane’s book.) While we might hope that the Constitution could be a living tree when it comes to how we govern ourselves, the Court is basically telling us that we have to accept that it’s a dead stump.

What’s the Court trying to accomplish here?

One answer is that the SCC has an inherent status quo inclination. I could accept this if the Court demonstrated a similar inclination when applying the Charter.

Another possibility is that the Court thinks that institutional change should come from politicians, not the judiciary. If that were the case, one would expect the Court to be more accepting of incremental changes forwarded by governments and legislatures. I don’t think we’ve seen much of that.

A third possibility is that the Court is subtly telling us that we can’t avoid constitutional negotiations forever –that these rulings are meant to serve as a forcing function. Seen in this way, the SCC is saying that it won’t make the changes that should be properly negotiated between governments. Paradoxically, the Court may be using its power as a status quo player to force Ottawa and the provinces to accept that they will need to reopen the constitution if they want to address Canada’s constitutional deficiencies.

If this is what the SCC is doing, then there’s something valuable about their approach. Allowing our institutions to drift along isn’t setting Canada up for success over the long-term. Indeed, one of the biggest threats to Canadian prosperity may be the inability/unwillingness to update our institutions to meet contemporary problems. Otherwise, as Fukuyama warns us, we face the prospect of political decay and its rather serious consequences.

I’m probably wrong about what the SCC is doing. Maybe the Court is simply being craven or pragmatic. But I hold out some hope that the justices aren’t simply being veto players for the sake of being veto players.

 

The United Kingdom’s weakened war prerogative convention

So, I was wrong: Prime Minister May didn’t feel bound to hold a parliamentary vote before ordering air strikes against the Syrian regime.

I expected that, in light of the August 2013 precedent when the UK Commons voted against air strikes against the Syrian regime (see my Parliamentary Affairs article), the scope of the British convention on consulting the lower house would have included these latest air strikes.

That’s evidently not the case.

The contrast between Cameron’s failed August 2013 vote and May’s decision not to hold a vote is quite striking. Cameron proceeded with significant caution, and he backed down immediately when the Commons voted against his motion. May is accepting notable political risk by circumventing the Commons, but there’s also a good chance she won’t face any consequences.

Come Monday, May will likely argue that she’s still acting within the parameters of the convention that gelled from 2003 to 2013-2014. There’s very little the opposition can do to punish her if they disagree, so her interpretation will stand.

(Update: May argues that her actions fell within the convention, given that the operation consisted of an emergency.)

But that doesn’t mean the convention has been left unchanged.

Looking back at Cameron’s statements from 2014, this one stands out: “it is important that a Prime Minister and a Government reserve the right to act swiftly without consulting the Commons in advance in some specific circumstances—for instance, if we had to prevent an immediate humanitarian catastrophe or, indeed, secure a really important, unique British interest.”

In explaining her decision, May echoes the exceptions Cameron highlighted:

“The speed with which we are acting is essential in co-operating with our partners to alleviate further humanitarian suffering”

“I have done so because I judge this action to be in Britain’s national interest.”

May is framing her action as a response to chemical weapon use, a humanitarian catastrophe, a British national interest, and an emergency. In that sense, she might be said to be acting within the narrow limits that Cameron outlined in 2014.

Yes, the convention will still apply to the deployment of ground forces on combat operations or long-term air/sea combat missions. But its hard to see how future governments could not use this precedent to avoid a vote on limited air strikes or strikes from the sea.

Canadian Government: A Pedantic Style Guide

Governments don’t have mandates, they hold confidence.

Governments aren’t directly elected in Canada, they’re formed or continue governing based on their ability to hold the confidence of the elected house of the legislature.

Talking of a government’s ‘mandate’ to enact a platform, policy, or law, moreover, rarely makes sense.

Governments don’t have terms, they have parliaments/legislatures and length of ministries.

The life of governments is determined by their ability to hold or regain the confidence of the elected house of the legislature. A government can thus span multiple parliaments and a single parliament can have more than one government. First ministers can also dissolve the legislature pretty much at will. Equally important, governments only end when the first minister resigns or is dismissed by the Crown. So, an election doesn’t begin a governmental ‘term’, nor does a dissolution of the legislature end it.

When speaking of how long a first minister led the government, we should speak about the duration of their ministry, or if they’ve headed more than one government, ministries. The ‘tenure’ of a prime minister also works.

 

Prime Ministers and Ministers don’t sit (i.e. sitting Prime Minister), they serve.

Ministers are servants of the Crown. This is a capacity distinct from the seat they hold in the legislature. Conversely, as members of Parliament, they sit, rather than serve.

Before using serving/sitting, however, we should ask if it’s necessary for what we’re trying to convey. If not, don’t use it.

 

There are no interim Prime Ministers, only interim party leaders.

Interim implies that someone who is temporarily holding an elected position and that they themselves were not elected to that position. They’re holding it in anticipation of an election. Prime Ministers are appointed.

 

There is no Prime Minister-elect or Premier-elect. The technical term is Prime Minister-designate or Premier-designate

Since first ministers are not elected, but appointed by the Crown, we use designate to mean that the Crown has commissioned them to form a government but that they have not yet been sworn to office (h/t Richard Berthelsen).

 

Ministers are accountable to Parliament for their responsibilities, they are not responsible to Parliament.

Ministers are responsible for the exercise of executive powers and are accountable to Parliament for decisions and actions that fall under their responsibilities.

 

The Governor General is not the head of state, the Queen is the head of state (if you absolutely must use that term.)

The Queen personifies the state in law. She is the legal personality of Canada. In that sense, she holds the highest office of the Canadian state, what we would call the head of state, or more simply ‘the Sovereign’. As the Queen’s representative, the Governor General is always one rank below the Queen and thus not the head of state.

 

Parliament is not synonymous with the House of Commons. 

Parliament comprises the House of Commons, the Senate, and the Queen. The House of Commons, the elected lower house, is one part of Parliament.

 

The Crown does not dissolve a legislature without advice. 

Although the Crown’s power is required to dissolve a legislature the Governor General or a Lieutenant Governor will not do so without the advice of a first minister. As a result, it is incorrect to imply that the Crown will force a new election if no party can hold confidence or parties can’t get along, etc. The Crown must wait for a first minister to advise dissolution.

 

Supreme Court justices are appointed, not nominated. (h/t Emmett Macfarlane)

Supreme Court justices are appointed by the Governor General on the advice of the Prime Minister. While they may go before a committee of parliamentarians before their appointment is formalized, this is not akin to the legislative nomination process where the committee can exercise a formal veto on the Prime Minister’s choice.

 

Parliament does not ratify treaties. 

The power to sign and ratify treaties belongs with the executive. The House of Commons may be asked to express its support for a treaty through a vote and Parliament is often required to legislate to give effect to a treaty. But it is the executive that ratifies the treaty.

 

Refer to parliamentarians as parliamentarians or legislators, rather than lawmakers. 

Crafting legislation is only small part of what parliamentarians do. And for the most part, parliamentarians have limited influence over government bills. Private member’s bills, moreover, account for small portion of Parliament’s legislative agenda. Legislation is crafted by the executive, with parliamentarians scrutinizing bill tabled by the government. Describing parliamentarians as lawmakers distort who is crafting most laws.

 

Should we refer to a government, administration, or ministry?

Technically, first ministers lead Her Majesty’s government. In the United Kingdom, in fact, it’s not uncommon to refer to the executive as Her Majesty’s Government. The vast majority of the executive, moreover, is comprised of public servants who are non-partisan employees of the Crown. During the Harper years, this led to consternation about the term ‘the Harper government’.

Since the first minister heads the government as the Crown’s highest ranking servant, it is acceptable to say ‘Harper government’ or ‘Trudeau government’. While public servants are non-partisan, they are expected to loyally implement the policies and directives of the Crown’s ministers.

What about administration? During the colonial era, one could speak about the ‘local administration’ to differentiate colonial officials from the government in London. In the United Kingdom, when there is a change of prime ministers from the same party, they are said to be forming a new administration, instead of a new government (which is odd, but I digress.) In Canada, though, administration is more likely used because that’s how we refer to American presidencies. (Also, in the United States, the government does not refer to the executive alone, but to Congress and the courts, too.) Accordingly, administration should be avoided.

Another reason to avoid administration is that there is a better term: ministry. A ministry is the group of ministers led by the first minister that advises the Crown. If one is looking to avoid using government, then ministry is the correct term, and preferable to administration. Oddly enough, ministry is considered antiquated in the UK, which is seems to be why they’ve adopted administration.

 

Will the Commons vote on Mali?

Canada is sending helicopters to assist the UN mission in Mali.

After the Trudeau government announced the mission, members of the Conservative opposition demanded that the operation be put to a vote in the House of Commons.

I’ve written about why holding military deployment votes is a bad idea here. I’ve also shown that, in Canada, the practice of holding these votes largely benefits the executive. And, in an article comparing Canada and Germany, Patrick Mello and I have shown that the votes do lead to less debate and deliberation in Parliament, particularly in Canada.

Leaving all that aside, though, there is the question of whether holding a vote on Mali would be in keeping with the practice followed by the Harper government.

Based on the Harper record, and the Trudeau government’s record thus far, it would not be breaking with the practice since 2006 to deploy the armed forces to Mali without a vote. From 2006 on, the Canadian practice has been to hold vote on combat missions. Although the Canadian helicopters that will be deployed to Mali will include armed Griffons, this does not seem to meet the criteria of a combat mission. Indeed, this helicopter deployment is far less likely to involve combat than the deployment of Special Operations forces to Iraq in August 2014 on advisory and assistance mission, which was not voted on by the Commons. (For those with short memories: the Harper government deployed the SOF in August 2014, then held a vote when fighter aircraft where deployed to the conflict in a role that explicitly involved a combat role.)

So, if the issue is respect the practice that has been followed since 2006, the deployment of helicopters to the UN mission in Mali shouldn’t require a vote.

 

Section 44 and royal succession in Canada

What was I getting at with this tweet yesterday?

“N.B. According to the federal government’s interpretation of royal succession in Canada, we could arguably make Harry the King of Canada with a simple parliamentary statute or a section 44 (ie unilateral) constitutional amendment.”

My understanding of the federal government’s logic when it comes to royal succession in Canada is as follows:

a) Matters of royal succession are determined by British law; there is no Canadian law of royal succession.

b) Instead of Canadian laws of royal succession, we have a ‘rule of recognition’ or ‘principle of symmetry’ that simply states that whoever is the monarch in the UK is the monarch of Canada.

c) This means that changes to the law of succession do not engage the ‘office of the Queen’ mentioned in paragraph 41(a) of the Constitution Act, 1982; the ‘office of the Queen’ only deals with the powers of the office, and Canada’s status as a monarchy, rather than the rules that determine who holds the office of Sovereign.

d) The ‘rule of recognition’ means that Canada does not need to change any laws or amend the Canadian constitution when the British laws of royal succession are altered.

e) When the UK makes changes to their laws of royal succession, all Canada needs to do is express its assent, as per the preamble to the Statute of Westminster, 1931.

f) We know that this ‘rule of recognition’ exists by virtue of either the preamble to the Constitution Act, 1867, which states that Canada was confederated under the “Crown of the United Kingdom of Great Britain and Ireland,” or thanks to section 9 of that same Act, which provides that “The Executive Government and Authority of and over Canada is hereby declared to continue to be vested in the Queen,”

g) Proponents of the ‘rule of recognition’ also point to section 2 of the Constitution Act, 1867 that used to state: “The Provisions of this Act referring to Her Majesty the Queen extend also to the Heirs and Successors of Her Majesty, Kings and Queens of the United Kingdom of Great Britain and Ireland.” (The problem is that this section was repealed in 1893, and its existence calls into question the idea that the preamble and section 9 provide a ‘rule of recognition’, i.e. why would the preamble and section 9 provide a rule that section 2 provided? If anything, section 2 demonstrates that the preamble and section 9 were never meant to provide such a rule, but I digress.)

h) So, my understanding is that the ‘rule of recognition’ is tied to the preamble and/or section 9 of the Constitution Act, 1867, with the repealed section 2 telling us that rule says. I may be wrong, but I haven’t seen an argument linking the ‘rule of recognition’ to the ‘office of the Queen’ precisely because the office is said to not include the rules that determine who holds the office.

i) This then raises the question: what would Canada need to do to end the ‘rule of recognition’ and craft its own laws of royal succession?

j) If we accept that the ‘office of the Queen’ does not deal with the rules that determine who holds the office, then we would not need to follow the unanimous amending formula identified in section 41.

k) If the preamble to the Constitution Act, 1867 is what protects the ‘rule of recognition’, then perhaps the general amending formula would be sufficient.

l) But if the rule is actually provided by section 9 alone, then one could make the case that the amending formula found in section 44, which allows Parliament to act alone, could be sufficient. Specifically, since section 9 deals with the Queen as the executive power and section 44 allows for amendments to the federal executive power, it might follow that section 44 would suffice.

m) Indeed, even proponents of the ‘rule of recognition’ have suggested that, if Canada does need an actual constitutional amendment to give effect to the changes enacted by the UK in 2013, then a section 44 amendment would be sufficient, since Parliament would merely be keeping Canada aligned with the UK laws, as per the convention of the Statute of Westminster.

n) We could also think of hypothetical scenarios that would favour a section 44 approach. If the UK suddenly became a republic, how would Canada ensure the continuity of its system of government? To avoid having to completely overhaul the monarchy under section 41, the case would probably be made that section 44 would allow Parliament to establish Canadian laws of royal succession in the absence of a British monarch to mirror as our own.

o) If we accept all this, though, we could also then make the case that a section 44 amendment could provide new Canadian laws of royal succession right now, hence the hypothetical ability for Parliament to make Harry the King of Canada without involving the provinces.

p) As for a regular parliamentary statute, you could further argue that nothing prevents Parliament from legislating for royal succession today, save for the convention outlined in the Statute of Westminster. That convention, however, isn’t a law. Moreover, the convention has been disregarded by Australia and New Zealand, so its continued existence is doubtful. Specifically, Australia and New Zealand didn’t assent to anything to change their laws of succession; they simply altered their relevant laws.

q) In fact, as long as Parliament passed laws of royal succession that accorded with the ‘rule of recognition’ they wouldn’t be unconstitutional. Parliament could also pass a law of royal succession that broke from the ‘rule of recognition’, but it would only last until a court struck it down as being unconstitutional.

r) A section 44 amendment is the only viable option at this stage, though, given that the lower courts have ruled that the ‘rule of recognition’ is part of the Constitution of Canada.

So that’s the point I was making with my tongue in cheek tweet.

What’s the counterargument?

One could argue that the ‘rule of recognition’ is protected by the ‘office of the Queen’, and that any move away from the ‘principle of symmetry’ would require a unanimous constitutional amendment.

To get there, however, one needs to admit that the ‘office of the Queen’ does deal with the rules that determine who holds the office. Frankly, this should be obvious to anyone who looks seriously at the issue. And I suspect defenders of the ‘rule of recognition’ will admit as much privately.

The ‘office of the Queen’ came about in reaction to Bill C-60, the legislation the P.E. Trudeau government introduced in 1978 to amend the constitution. Section 30 of Bill C-60 provided that “The sovereign head of Canada, Her Majesty the Queen, who shall be styled the Queen of Canada and who sovereignty as such shall pass to heirs and successors in accordance with law.” The reference to succession according to law must have meant Canadian law, not British law, given the aim of Bill C-60 was to provide a wholly Canadian monarch and constitution. The laws in question were likely those that would have previously applied to Canada by paramount force, such as the Act of Settlement and the Royal Marriages Act, and the His Majesty’s Abdication Act, 1936 which was explicitly extended into Canadian law by the British Parliament in December 1936. Under section 30 of Bill C-60, Canada would have had the authority to alter those laws to set the rules of succession for the Queen of Canada, just as Australia and New Zealand do for the Queen of Australia and Queen of New Zealand today.

Bill C-60 was opposed by those who saw it as potentially severing the link between the British and Canadian Crown. Their counterproposal was the language of the ‘office of the Queen’ that ended up in the Constitution Act, 1982. A key motivation for introducing the ‘office of the Queen’ was to ensure that Parliament couldn’t change the monarchy, including the rules of royal succession, without provincial consent.

Up until 2013, furthermore, authorities such as Peter Hogg and advocates such as the Monarchist League took it for granted that the ‘office of the Queen’ dealt with the identification of who held the office. They only changed their tune when they had to defended the federal government’s argument that the ‘office of the Queen’ did not touch on the identity of the office-holder.

Now that the ‘rule of recognition’ has been held up by courts in Ontario and Quebec, I remain puzzled as to why defenders of this ‘rule’ don’t simply say that it’s shielded by the ‘office of the Queen’.

The only reason I can come up with is that they want to protect Parliament’s ability to alter the ‘rule of recognition’ via section 44. Indeed, the courts may force them to do just that as the succession case makes its way through the Quebec Court of Appeal and perhaps the Supreme Court of Canada.

Put differently, if the courts do find that a constitutional amendment is needed to give effect to the changes in the laws of royal succession undertaken by the UK in 2013, the federal government will surely argue that it can use section 44. This precisely the power I was suggesting Parliament has with my tweet.

 

 

 

Top five myths about the Queen and the UK constitution

The 2017 British election is over. Either out of ignorance or an effort to make things more dramatic, reports have played up the Queen’s role in government formation. Although we might expect the UK to have a better grasp of the Queen’s role in the constitution, that’s not always the case.

So, just for fun and to vent, here are what I see as the top five myths about the Queen’s role in the British constitution:

1) The Queen continues to have a significant role in government formation and the life of a Parliament. 

As laid out in the UK’s Cabinet Manual, the process of government formation in the UK keeps the Queen out of the fray. Political parties are expected to work out who can carry the Commons’ confidence themselves. In addition, the Fixed-term Parliaments Act, 2011 removed the Queen’s power to dissolve Parliament and gave it to the House of Commons.

2) The Queen is a pure figurehead and has no influence / the Queen continues to exercise outsized influence over  government policy.

I put these together since they both make the mistake of going too far, but at opposite extremes.

The Queen doesn’t have substantial influence over the affairs of government, but she does have powers of persuasion and her views have mattered quite a bit in the past. However, it’s overstated to say that the Queen or Prince Charles are involved in directing ministers over policy matters.

3) The Queen and the Prince of Wales personally veto bills.

The Guardian likes to talk about the supposed ‘secret’ veto powers that the Queen and Prince of Wales have over legislation in the UK. In reality, they’re not secret and they don’t exercise the veto themselves. Legislation that touches on the powers or property of the Queen and Prince of Wales is subject to what’s known as Crown consent. Although it’s true that withholding Crown consent can prevent a bill from become a law, that decision belongs with ministers, not the royals.

4) The Queen is paid and subsidized by the British taxpayer. 

This is a pretty pervasive myth and even ardent monarchists fall for it. The Queen’s official residences and activities are funded via the Sovereign Grant and the amount is ultimately determined by Parliament. Because the Sovereign Grant is paid by the Treasury, it’s argued that the Queen is therefore getting money from taxpayers.

This is wrong for a few reasons. First, not all money that goes into the Treasury comes from taxes or taxpayers. Among other sources are the profits of the Crown Estate. The Crown Estate are holdings that the Queen owns in her official capacity. As part of an agreement that dates to the 18th Century, every new monarch agrees to surrender the profits of the Crown Estate to the Treasury in exchange for a set amount of funding. When this deal was originally struck, the monarchy needed additional money from Parliament because the revenues of the Crown Estate were insufficient. Today, the Crown Estate makes a good deal of money (£304.1 million in 2015-2016), far more than the Queen requires to run her official households and affairs (£76.1 million for 2017-2018). As a result, Parliament initially indexed the Sovereign Grant to 15% of the Crown Estate’s profits, though that can be adjusted as required.

Now, the retort I often get is: but the money comes out of the Treasury, so it’s still taxpayer money. But the reason that it comes out of the Treasury is simple. The Treasury is a consolidated fund: all money goes into a big pot and gets distributed after. That’s how a consolidated fund works.

5) The Queen is a British citizen. 

The Queen isn’t a citizen of the UK; hers is the authority that confers citizenship.

Wait, what? Back before the idea modern state and citizenship, people were a monarch’s subjects and the Crown was the concept of the state. This remains formally true in the UK. The Crown is the formal concept of the state, the Crown and the Queen are fused in law, and therefore the Queen is the authority that grants citizenship.

By the way, this is also why the Queen isn’t a Canadian citizen, despite being Canada’s head of state. She doesn’t need Canadian citizenship because she’s the personification of the Canadian state and the authority that grants Canadian citizenship.

 

More on the awkwardness of Charles and the Canadian Constitution

I have a piece up today at Policy Options looking at Prince Charles’ awkward constitutional status in Canada.

The article mentions the divisibility of the Crown and Canada’s previous position on royal succession.

For those who are interested, here’s an elaboration of that part of the argument:

Canada was under the sovereignty of the Imperial Crown of the United Kingdom when the Dominion was confederated in 1867. There was no notion of a separate Canadian Crown at the time, nor of a distinct Queen of Canada. Following the Statute of Westminster, 1931, however, the Imperial Crown was gradually divided, such that there were separate and distinct Crowns and Queens for the United Kingdom, Canada, and the other Dominions. This was reflected in the Sovereign only taking advice from the ministers of the Dominions for matters that affect their state alone, the updating of Royal Styles and Titles, and the seminal finding of the English Court of Appeal in the 1982 Alberta Indians case, where Lord Justice May noted that “In matters of law of government the Queen of the United Kingdom is entirely independent and distinct from the Queen of Canada.” If the British and Canadian Crowns are now separate and distinct, the Prince can only have a constitutional status in Canada by virtue of Canadian law.

This brings us to the second option: that references to the Queen in the constitution implicitly give her successors a Canadian status. Historical developments up to 1982 reinforce this interpretation. When Canada was a Dominion of the British Empire under the sovereignty of the Imperial Parliament, British laws related to royal succession applied to the colonies and self-governing Dominions by paramount force. This meant that the Act of Settlement, 1701, the main law dealing with royal succession, applied in Canada. Following the Statute of Westminster, 1931 the British Parliament was prevented from legislating for Canada without the request and consent of the Canadian government. Hence, an alteration to the British law of royal succession would no longer apply automatically to Canada through paramount force. The Canadian government would need to request and consent that the British law apply to Canada. This is what occurred in 1936 when Edward VIII abdicated. Since his abdication required a changes to the law of royal succession, the Canadian government requested and consent that the British Parliament’s His Majesty’s Declaration of Abdication Act, 1936 extend to Canada.

Further evidence that Canadian law included matters of royal succession came in 1978, when the Trudeau government introduced Bill C-60, An Act amending the Constitution. Section 30 of C-60 would have styled and titled the Queen as the “Queen of Canada” alone and held that her “her sovereignty as such shall pass to her heirs and successors in accordance with law.” This reference to law must have meant Canadian law for two reasons. First, the purpose of the Bill was to sever Canada’s legal and constitutional ties with the United Kingdom, as well as clarify that the Queen of Canada was uniquely Canadian. Second, the explanatory notes accompanying the Bill make no mention of the statement surrounding succession. If the intent had been to break with the precedent set in 1936, then one would expect it to at least be mentioned.

Bill C-60 was later abandoned and a new constitutional framework was negotiated between the federal and provincial government. When completed, the draft of what would become the Constitution Act, 1982 only included a provision that that “office of the Queen” would require the unanimous consent of Parliament and provincial legislatures to amend. When asked in 1981 why laws related to royal succession were not included in the schedule of the new constitutional document, then attorney general Jean Chrétien assured a parliamentary committee that the schedule was not exclusive; those laws were part of the Canadian constitution, despite not being explicitly mentioned.

After the Constitution Act, 1982 came into force, the Canadian government changed its mind. After the Commonwealth heads of government agreed to update the laws of royal succession in 2011, Queen Elizabeth II’s realms began updating their respective rules. Australia and New Zealand passed their own act updating the rules of royal succession in Australian and New Zealand law, as did the United Kingdom. Canada chose a different course. The Canadian government merely asked Parliament to assent to Britain’s new royal succession bill.

In effect, the Canadian government reverted to its pre-1931 position, effectively arguing that the British law of royal succession automatically applies to Canada, no longer by paramount force, but owing to an uncodified principle.