Mikisew, Ministers, and the ‘Revenge of the 1867 Constitution’

The Supreme Court’s judgement in Mikisew sheds more light on the institutions of the Canadian state than we might imagine. Although the case dealt with the Crown’s duty to consult with First Nations, it also provides insights into the separation of powers, parliamentary privilege, and as I discussed yesterday, the Crown’s distinct capacities.  

One aspect of the judgement that I found especially interesting was Brown’s opinion on ministers and the legislative process. His discussion draws clear lines between law, constitutional convention, and parliamentary practice that are rarely acknowledged, but that remain significant (see the question of first ministers’ tenure, for instance.)  

The Mikisew Cree First Nation argued that ministers were exercising an executive function when developing legislation that affected them. Drawing on ministers’ statutory authority, they noted that ministers and their departments were involved in crafting the legislation that would be presented to Parliament, hence the executive was part of the law-making process. This was a vital point for their case, since as the Court would find, the duty to consult is understood to belong with the Crown in an executive capacity and the separation of powers keeps judicial review away from parliamentary deliberations. Indeed, establishing a role for ministers of the Crown in the legislative process was likely the only way to extend to duty to consult into law-making.  

By convention and practice, there is little doubt that the Mikisew Cree First Nation were correct: the executive is deeply involved in the legislative process. In fact, the executive is arguably the primary actor in crafting legislation. Departments and central agencies, purely executive bodies, develop bills that will be presented to Parliament based on direction and policies from Cabinet. Parliamentary procedure recognises the priority of bills from the executive and ministers typically present governments bills owing to the executive office they hold outside of Parliament. Party discipline ensures that government bills will pass the House of Commons if the governing party has a majority. A majority party will also face little resistance from most standing committees. For all these reasons and more, it is difficult to describe parliamentarians, and especially backbenchers, as ‘law-makers’ since they’re effectively secondary actors in the process of crafting legislation. They can scrutinise and recommend changes, but most bills are developed by the executive and get through the Commons in more or less the same shape that they arrived. The Senate may give bills a harder look, but if the government refuses to accept the upper chamber’s amendments, senators will almost always pass them. Simply put, while Parliament legislates, usually does so at the government’s behest, thanks to convention and parliamentary practice.  

Brown, however, focused on the legal formalities of the issue. Nothing in statute provides that ministers and their departments are involved in the legislative process (para 112). The Constitution Act, 1867 clearly states that Parliament is the legislative power, not the Queen as the executive power or her Privy Council (ie Cabinet). Strictly speaking, moreover, when ministers present government bills, they do so as parliamentarians, not as executive office-holders. Although they happen to also be ministers, when they are in Parliament, they are acting as parliamentarians (para 113).  

Drawing on a strict (some might say American) distinction between the executive and legislature, Brown notes that the “making of “policy choices” is a legislative function, while the implementation and administration of those choices is an executive function” (para 117.) Even though the legislative process in this instance began within the executive from a practical point of view, and purely executive actors such as public servants were evidently involved, it was constitutionally a parliamentary effort from the outset. As set out in paragraphs 120 and 121:  

As a matter of applying this Court’s jurisprudence, then, the legislative process begins with a bill’s formative stages, even where the bill is developed by ministers of the Crown. While a minister acts in an executive capacity when exercising statutory powers to advance government policy, that is not what happened here. The named Ministers took a set of policy decisions that eventually led to the drafting of a legislative proposal which was submitted to Cabinet. This ultimately led to the formulation and introduction of the omnibus bills in the House of Commons. All of the impugned actions form part of the legislative process of introducing bills in Parliament and were taken by the Ministers acting in a legislative capacity.  

  Moreover, the impugned actions in this case did not become “executive” as opposed to “legislative” simply because they were carried out by, or with the assistance of, public servants. Public servants making policy recommendations prior to the formulation and introduction of a bill are not “executing” existing legislative policy or direction. Their actions, rather, are directed to informing potential changes to legislative policy and are squarely legislative in nature. 

In this formal understanding, therefore, the Constitution Act, 1867 provides strict boundaries between executive and legislative activities, even though these lines are crossed as a matter of course owing to the conventions of responsible government.  

Brown’s analysis offers a spirited defence of the formal constitution and of the importance of not getting caught in the realities of responsible government when discussing the roles and powers of the Crown and Parliament. In particular, it should encourage us to be careful when engaging in tropish discussions of the ‘fusion’ of the executive and legislature in the Westminster tradition.  

Finally, Brown’s opinion belongs to what I see as the ‘Revenge of the 1867 Constitution’ in Canada. After 1982, the study of constitutional law became focused on the new Constitution Act, 1982, which includes the Charter of Rights and Freedoms and the amending formula. While students of federalism still paid attention to the division of powers in the 1867 act, the historic relationship between the Crown and Parliament, and the importance of delineating between the executive and legislative powers, garnered less attention. A slew of recent cases have brought the Constitution Act, 1867 back to the fore and reminded us that there’s a lot more to the constitution than the Charter. Mikisew reinforces this point, even when section 35 of the Constitution Act, 1982 is at issue.  

The Crown and its capacities

The Supreme Court of Canada touched on one of my favourite topics today: the various capacities of the Crown. Brown J., in particular, offered a strong defence and explanation of the Crown’s distinct capacities and how the courts must differentiate them.

The Crown serves many functions in the Westminster system. The Crown serves as the concept of the state. It can mean the Sovereign or the monarch. The Crown can also refer to the executive generally and sometimes Cabinet. In other cases, the Crown can refer to one part of Parliament. And the Crown has a role in the courts, too. Many of these functions seem to overlap and appreciating their differences can be especially difficult because the Crown is personified by a single person, the Queen. But understanding how they are differ is vital to grasping how Westminster states operate.

Take the Crown as the state. Since the both the United Kingdom and Canada have Queen Elizabeth II as their Sovereign, we might conclude that they are under the same Crown and are part of the same state. The Crown’s distinct capacities avoids this confusion. The Queen has many different capacities. One of those capacities is as the Queen of the United Kingdom. Another is as the Queen of Canada. These are distinct capacities. The Crown as the state mirrors these capacities as well. Thus, we have the Crown of the United Kingdom as the concept of the British state and the Crown of Canada as the concept of the Canadian state.

Within Canada, the Crown has distinct capacities as the personification of the federal government and the provincial governments. The Crown also has distinct capacities with respect to the organs of the state. The Crown as the executive power acts in a governing capacity. The Crown-in-Parliament is the Crown acting in a legislative capacity. And the Crown in the courts is the Crown acting in a judicial capacity.

One of the questions before the SCC in Mikisew Cree First Nation v. Canada was whether the duty to consult First Nations under the honour of the Crown applies to the Crown writ large or to the Crown in a specific capacity. A majority of the court found that the duty to consult First Nations is attached to the Crown in an executive capacity, rather than the Crown in a legislative capacity as part of Parliament. The honour of the Crown toward First Nations belongs to the Crown as the executive power, not the Crown-in-Parliament. The majority further found that the separation of powers and parliamentary sovereignty meant that the courts should not review the legislative process to ensure that the honour of the Crown had been respected. The duty to consult and the honour of the Crown are tied to executive actions and actors, not legislative ones.

Brown J. adopted a particularly strong view of these distinctions in his opinion. He notes, for instance, that the duty to consult binds ministers of the Crown in their executive capacity. It does not bind them in their legislative capacity:

“While Cabinet ministers are members of the executive, they participate in this process –for example by presenting a government bill– not in an executive capacity, but in a legislative capacity.” (113)

Brown further clarifies that, under the separation of powers and parliamentary privilege, the constitutional duty to consult First Nations must be “understood as excluding the parliamentary (and, indeed judicial) functions of the Canadian state” (128). This, in turn, implies that the honour of the Crown does not pertain to the Crown’s legislative functions and capacities as one part of Parliament, alongside the Senate and House of Commons. When the Crown acts in a legislative capacity, granting assent or consent to legislation, and recommending bills, the Crown is not involved in conduct that is bound by the duty to consult:

“This description of the various and distinct aspect of Crown authority (and also, it follows, Crown conduct) affirms that the exercise of Crown authority in enacting legislation (“assenting, refusing to assent to, or reserving legislative or parliamentary bills”) is legislative. It is not an instance of ” Crown conduct” –that is, executive conduct– which can trigger the duty to consult.” (133)

One take-away from today’s ruling is the importance of being specific about which capacities are in play when discussing institutions and actors who have more than one. An individual may be both an MP and a minister, but they can fulfill distinct functions and exercise unique powers in their separate capacities. Similarly, the Crown as the executive power is not the same thing as the Crown-in-Parliament. While we often speak of the ‘fusion’ of the executive and legislature in the Westminster system, that link is primarily one based on constitutional convention and parliamentary practices, rather than law.

Finally, if we follow Brown’s reasoning, we may have an answer to a lingering question about the Crown in Canada: does the Crown act on the advice of ministers or the houses of Parliament when granting royal assent? If we focus solely on the conventions of responsible government as they pertain to the executive, we might argue that ministers could advise the Crown to withhold assent, effective giving ministers a veto over legislation. If, as Brown argues, however, the Crown grants royal assent in a legislative capacity, then assent it granted on the advice of the house of Parliament, meaning that there is no ministerial veto in Canada.

(Ok, one last thought: Maitland was wrong.)

 

 

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.