The Succession to the Crown Bill moved from Westminster to Canada yesterday, which prompted much huffing and puffing on Twitterverse about the expedient approach the government is taking in pushing through fundamental changes that arguably affect the "office of the Queen" by statute alone, instead of by way of constitutional amendment.
When Colby Cosh, a journalist from Alberta, asked the Minister of Heritage, James Moore (the Minister leading the bill in the House of Commons) on Twitter: "Let me put the question this way: could the Dominion Parliament make ME head of state by ordinary statute? To this I replied to Mr. Cosh and the Minister: "Yes it could, but only if the other 15 realms agree that King Colby should reign. Crown entirely subordinate to Parliament," which is a direct consequence of the Williamite dispensation that happened back in 1688. To boos and hisses the Minister responded back to the both of us that "King Colby would not be deemed a friendly amendment to the legislation. Fyi"
All joking aside, the intriguing thing is that the government's legal position seems to be no different from Prime Minister Louis St. Laurent's recognition of the absolute indivisibility of the Crown in the early 1950s when the Queen first ascended the throne.
Her Majesty is now Queen of Canada, but she is the Queen of Canada because she is the Queen of the United Kingdom and because the people of Canada are happy to recognize as their Sovereign the person who is Sovereign of the United Kingdom. It is not a separate office...it is the Sovereign who is recognized as the Sovereign of the United Kingdom who is our Sovereign.And just yesterday, the government stated quite incredibly that the laws governing succession are UK law and are not part of Canada's constitution:
The changes to the laws of succession do not require a constitutional amendment. The laws governing succession are UK law and are not part of Canada’s constitution. Specifically, they are not enumerated in the schedule to our Constitution Act, 1982 as part of the Constitution of Canada. Furthermore, the changes to the laws of succession do not constitute a change to the “office of The Queen”, as contemplated in theConstitution Act, 1982. The “office of The Queen” includes the Sovereign’s constitutional status, powers and rights in Canada. Neither the ban on the marriages of heirs to Roman Catholics, nor the common law governing male preference primogeniture, can properly be said to be royal powers or prerogatives in Canada. As the line of succession is therefore determined by UK law and not by the Sovereign, The Queen’s powers and rights have not been altered by the changes to the laws governing succession in Canada.In an effort to avoid amending the constitution, which requires the unanimous consent of all ten provincial legislatures, the government is arguing that no amendment is required because we are only talking about UK law, not Canadian law. But this asserts that the Queen of Canada is only decided by UK law, which the commentariat has taken to mean that the country is still a colony of Britain. If the country doesn't even have ownership over who its head of state is, how is it a sovereign independent country?
Because we are giving sovereign consent to it in Parliament, that's how. Get it together people - the Queen is a living symbol of a majestic whole, not merely some paraochial national legalistic construct. If we really wanted to, we could make King Colby our sovereign chief of state. But that would be silly, and not in keeping with the glory of our kingdom, which is but one part of a larger organic union under the headship of the First Lady of the World.
The government's view that the line of succession to the Canadian throne is governed by British laws is just silly and the idea that our parliament need only "consent" to Britain's succession act ignores Canada's repeal of S.4 of the Statute of Westminster and the enactment of Section 2 of the Canada Act all as part of the patriation of the constitution.
ReplyDeleteNowhere does it say in law that the monarch of Canada must be the same person as the monarch of the United Kingdom. We may therefore legislatively give Britain our "consent" to the enactment of their succession bill; but, the Canada Act is crystal clear: "No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law." Simply put, should the Canadian parliament not pass and have proclaimed its own amendment to the succession laws for this country at the same time the British law is proclaimed in effect, there will be a split in the lines of succession and the "absolute indivisibility of the Crown" will be no more.
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ReplyDeleteNoted James with full merit to the legality of that position, though I don't agree with your contention that "Nowhere does it say in law that the monarch of Canada must be the same person as the monarch of the United Kingdom."
ReplyDeleteIn fact, as Anne Twomey writes in October 2011 in her paper, "Changing the Rules of Succcession to the Throne" there "continues to be a reference in the preamble to the Constitution Act 1867 (as it is now known) to the Provinces of Canada being united into 'One Dominion under the Crown of the United Kingdom of Great Britain and Ireland'. A question therefore still arises as to whether the Queen of Canada must also be the person who is Queen of the United Kingdom. The royal style and titles in Canada also refer to Her Majesty as 'by the Grace of God of the United Kingdom, Canada and Her Other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith'."
The government is being expedient when it says that the laws of succession are UK laws and not Canadian laws, which is being used as an argument to circumvent possible constitutional amendment. Although technically correct that the Act of Settlement et al are not Canadian laws per se, there still exists a common law of succession that applies to all the separate countries of the Crown Commonwealth, and which binds the British monarch to the Canadian Crown.
Anne Twomey also writes that the only countries where the Statute of Westminster still applies, in part, are the UK, Australia and Canada. I would encourage you to read her paper. The result appears to be not as full proof as you indicate.
Yes, I rather thought the preamble to the Constitution Act 1867 would be raised as possible proof that Canada's monarch must be the same person as Britain's. But, that argument doesn't take into account the constitutional evolution that has taken place since 1867 to the point where the literal interpretation of the wording of the preamble no longer matches modern reality. The "division" of the formerly all British Crown and the creation of a distinctly Canadian Crown by the Statute of Westminster is one such change. However, there is also no "Crown of the United Kingdom of Great Britain and Ireland" anymore. So, if the "preamble argument" is to be maintained, its root logic says also that Canada is united under a no longer extant crown.
ReplyDeleteOf course, clauses and phrases in older laws can come to be interpreted to mean something else later on. There's a legal term for that, I'm almost certain, but I cannot now remember what it is.
Her Majesty's Canadian title doesn't seem to be much relevant. Canada leaves the rules of succession to its throne in the hands of another country because the name of that country is in the Queen's title, so Australia is free set for itself the succession to its throne because it dropped the United Kingdom from the Queen of Australia's title back in the 70s? Mmmm... I don't find that terribly convincing.
If the United Kingdom simply cannot legislate for Canada--and the Canada Act, a part of the constitution is absolutely clear it cannot--then a law passed by the UK parliament altering succession will have no bearing on Canada. If Canadian law simply outsources the whole matter of who Canada’s head of state is to the UK, then the UK could, by no more than an act of parliament, make Colby Kosh king. In such a scenario, a last tether to full sovereignty is maintained by S.4 of Britain’s Statute of Westminster (repealed in Canada), which requires the consent of Canada before Britain can legislate for it. But, that takes us back to that pesky S.2 of the Canada Act. Plus, what's to stop the UK from simply repealing S.4 of the Statute of Westminster, as Canada did?
I only hope these matters will be brought up in parliament as the bill makes its way through. That or a province or more challenges the bill's constitutionality.
You make a convincing constitutional argument, and I am simply unqualified to challenge it. I assume though that you would prefer a split in the personal union such that Canada no longer follows the monarchy in some shadowy, semi-detached way. I fear there is a possibility that could happen if the government's position ever gets challenged in court, but it's a long shot if Parliament supports the government's position, and the Provinces stay silent on the issue.
ReplyDeleteThe opposition just doesn't seem to care all that much about the Crown, and doesn't want to be seen opposing gender equality or even religious freedom. The "Harper government" also gives the impression that it doesn't want to be seen devoting even ten minutes to the issue, and have largely treated it as a forgone conclusion. It may also be deliberate that the Minister of Heritage would be leading such a bill, instead of the Attorney General. It gives the impression that it has nothing to with the constitution and everything to do with the Royals.
I of course think it completely inane that we would continue to blandly tuck away the central essence of Canada into some governmental department. Having our own monarchy would be hugely inconvenient for the political class, even for those who staunchly support it from afar. Much easier too engineer a GG dismissal, than be subordinate to a resident sovereign.
No, I have no preference for an end to the personal union between Canada and the other Commonwealth Realms. This is partly why I fear the bill that has just passed the House of Commons will, by being totally ineffectual at changing the line of succession to the Canadian throne, will cause just such a split. I also fear it will lead people to believe the UK parliament can legislate for Canada and no split ever took place. That and the republicans will be virtually ecstatic that two of their arguments--monarchical Canada is subordinate to a foreign power and the laws of succession are now subject to Charter scrutiny--will have been "proven" true, or at least appear to have been.
ReplyDeleteI was going to raise Anne Twomey's recent remarks on this subject. But, I see from the most recent post on this blog, I've been beaten to it.