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 (The problem is that this section was repealed in 1893, and its existence calls into question the idea that the preamble and section 9 provide a ‘rule of recognition’, i.e. why would the preamble and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.

Lagassé’s rules for academic commentary in popular media

A few years ago Glen McGregor caused a row among Canadian political scientists on Twitter.

McGregor was laying out a few rules for political reporters and he included this one:

No more quoting political scientists:  It’s lazy and signals the reporter couldn’t find any other apparently neutral or objective source to talk. These people work in academics, not politics, so I’m not interested in their opinions on anything but their own research.

We got defensive, but as Andrew Potter and Paul Boothe pointed out, he was making an important point: Both journalists and academics are better off when professors only comment on what they know or what they can show.

This advice has become all the more important in light of the Potter Affair.

Potter’s ‘resignation’ from the McGill Institute for the Study of Canada has raised questions about academic freedom, the link between academic freedom and tenure, and the threat that McGill’s actions represent to women and minority academics.

But the Potter Affair has now given rise to another notion: that his op-ed represents the dangers universities run when they encourage professors to be visible in the media, write op-eds, and share their views with audiences outside the academy.

I think this presents a false dichotomy and turns our attention away from the real problem: the responsibilities of university administrators and the relationship between universities and powerful donors.

Nonetheless, I fear that the Potter Affair will be used by professors who never bought into public outreach, social media, etc., to cloister academics back into the safe, comfortable world of the ivory tower.

(Columnists who don’t like sharing the op-ed pages with academics may not mind that either. We can’t ignore the tensions that Potter pointed out between journalists and academics.)

As an academic who thinks wider engagement is important, and that professors make a valuable contribution to public debates through op-eds and media interviews, I’m determined to resist efforts to drag scholars back into a monastic model, where we only speak to one another or only blog about our latest peer reviewed articles.

But I also recognize that these critics aren’t totally off base. They’re right that we hurt the reputation of academics when we opine about things that fall outside of our areas of expertise.

Unless we avoid that damage, we may fuel efforts to cloister us.

So, in the sprit of McGregor’s Dogme95 of political reporting, I offer my rules for academic media engagement:

1) Only do interviews or write op-eds on subjects that fall under your area of expertise.

This is pretty simple. Don’t comment on American politics if you work on Canadian politics. Don’t write about international political economy if you study international security. I’m not saying you can’t have an opinion about subjects that you don’t research, but you shouldn’t use your professorial status to give your lay opinions more clout than they’re worth.

2) If you’re asked to do an interview or op-ed on a subject that you don’t research, recommend a professor who does work on the area, especially if you know qualified women or visible minorities.

Journalists need people to give informed takes and opinion page editors need content. If you are respecting rule 1 and can’t comment, direct them to people who can. And while you’re at it, help women and visible minority professors get more recognition. Again, pretty simple stuff.

3) Be provocative and exploratory in op-eds or blogs, but acknowledge that’s what you’re doing.

Op-eds and blogs are a great way of offering an informed, but provocative perspective. If there’s a topic in your area of expertise in the news, you should write about it and use your knowledge to offer a novel perspective, particularly if you expect most columnists to stick with rote points. You can also use op-eds and blogs to put new ideas out there. If you’ve got a hunch about something based on your expertise, then you can use these venues to test the waters. In both cases, however, it’s imperative that you tell the reader that you’re being exploratory or that you’re making an educated analysis, not representing the findings of a research project.

4) Finally, use op-eds and blogs to present analyses and arguments that wouldn’t be novel enough (or long enough) to publish in an academic journal or book, or when academic publishing would take too much time to get it out there.

I’m sure you’ve all been there. You see something in the news and want to offer an expert analysis of what’s happening. Or you see politicians deliberately misleading the public on an issue that falls under your area of research. You want to offer a corrective, but you know you aren’t saying something sufficiently novel for a peer reviewed journal article or book. Or you know that the issue will be long forgotten if you do go that route. In these cases, write an op-ed or a blog.

In closing, none of these rules are meant to silence academics. On the contrary, they’re meant to get us better prepared for the push to shut us up that seems to be brewing post-Potter.

I suspect most of us already follow them. But putting them out there offers a helpful counterbalance against the false dichotomy of academic research versus public engagement.