December 8

Royal solution to the Canadian political mess: an Antipodean view

The current session of the Canadian Parliament has come to an end. The session was prorogued by a Royal Proclamation, in both the English and French languages, made under the authority of the Canadian Crown on 4 December.  A new session will begin soon, on 26 January, 2009.

The Proclamation was made not under a specific provision of the Canadian written constitution, the Constitution Act of 1867, nor under an act of parliament. It was made under the Royal Prerogative, which is briefly discussed below.

By way of background, the minority government of the Prime Minister, the Rt. Hon. Stephen Harper PC MP, has been threatened with a vote of no confidence on the floor of the House of Commons.

The opposition Liberal and New Democratic Parties have signed an agreement to form a coalition government, and the Bloc Québécois has agreed to support the coalition on confidence issues.

…fundamental points …

 

There are four fundamental points which should be made.

First, if this is a crisis it is political, and certainly not constitutional. Indeed, rather than a crisis, it is more of a mess made by politicians acting instinctively as they do all around the world, attracted to the scent of and addicted to power. Second, the Canadian Crown will play the key role  in ensuring a constitutional solution to this crisis among the politicians.

Third, the powers of the Canadian Crown will be exercised by the Governor General ( no hyphen is used in Canada in contrast to the Australian Governor-General).

Fourth, the Governor General is above politics because of the crucial fact that she is appointed by, and owes her allegiance to the Sovereign – and through Her as a trustee for the  people.  She does not owe any allegiance to the politicians who may have recommended her appointment, or to the particular party to which the politician belongs.  Nor is she a politican seeking her own reelction or obsessed by the ideas of mandate or political agenda. 

In brief, Governors General cannot have a mandate or a political agenda.

 

The Crown will ensure the continuing peace order and good government of Canada according to fundamental constitutional principles in a way few systems can ensure.  And any necessary transition of power will be remarkably smooth.

If the opposition coalition and Bloc Québécois support hold together until 26 January – and there is some doubt about that –  the government will be defeated in a vote of no confidence.

Mr. Harper is then bound to offer his resignation to the Governor General.

He could be expected to advise Her Excellency to call on the Hon. Stéphane Maurice Dion PC MP, the leader of the Liberal Party of Canada and Leader of Her Majesty's Loyal Opposition in the Canadian House of Commons, to form a government.

Alternatively, Mr. Harper could advise Her Excellency to dissolve the House of Commons and order a general election. This is unlikely to be accepted; the last general election was only held on 14 October, 2008.

The decision will be the Governor General’s and Her Excellency is entitled to seek other advice.

It is unlikely that she would seek to involve The Queen; indeed Governors General in Canada and Australia have long avoided involving the Sovereign in such matters.

…The Royal Proclamation…

The decision to prorogue Parliament was taken by the Governor General in a two hour audience with the Prime Minister at Rideau Hall in Ottawa.

The Royal Proclamation, ( a copy follows)  was formally made in The Queen’s Privy Council for Canada and on the advice of the Prime Minister. It is countersigned by the first law officer of the Crown, the Attorney-General.

 

The Royal Proclamation was issued under the authority of the Canadian Crown, and in the name of The Queen.

Readers may note that The Queen’s Canadian title on the document differs in two significant respects from the Australian, once agin reflecting the indepndence of both countries. The first is in the Canadian reference to the United Kingdom, on which the Australian title is silent and the preservation in Canada of the title “Defender of the Faith “.

The Royal Proclamation is addressed to “our Beloved and Faithful Senators of Canada, and the Members elected to serve in the House of Commons of Canada, and to all to whom these Presents may in any way concern.”

It recites the advice on which it was made in these terms:

“Whereas We have thought fit, by and with the advice of Our Prime Minister of Canada, to prorogue the present Parliament of Canada…”

Then the substantive decision is recorded in these terms:

“Now know you that, We do for that end publish this Our Royal Proclamation and do hereby prorogue the said Parliament to Monday the twenty-sixth day of January, 2009.”

Then certain important facts follow, which, especially in the former times of indifferent  communications,  demonstrate to all and sundry the authenticity of the document.

These are that it was made under the Great Seal of Canada, that this was witnessed, where and when this took place and that it was published in the Canada Gazette.

It is interesting to read the actual words recording this:
 

“IN TESTIMONY WHEREOF, We have caused this Our Proclamation to be published and the Great Seal of Canada to be hereunto affixed.

" WITNESS: Our Right Trusty and Well-beloved Michaëlle Jean, Chancellor and Principal Companion of Our Order of Canada, Chancellor and Commander of Our Order of Military Merit, Chancellor and Commander of Our Order of Merit of the Police Forces, Governor General and Commander-in-Chief of Canada.

"AT OUR GOVERNMENT HOUSE, in Our City of Ottawa, this fourth day of December in the year of Our Lord two thousand and eight and in the fifty-seventh year of Our Reign.”

…the Royal Prerogative…

A special issue of The Canada Gazette, EXTRA Vol. 142, No. 6 of 5 December , 2008 categorises the Royal Proclamation (SI/2008-144 December 5, 2008) as issued “ other than (under) statutory authority.”
 

This indicates that it was not made under an act of parliament or indeed the written constitution of 1867.

The proclamation is issued under the Royal Prerogative, which the splendid jurist  AV Dicey described as “.. the remaining portion of the Crown's original authority,”  that is, such part as that authority which has not been removed by the King-in- Parliament, a principle finally settled in the Glorious Revolution of 1688.

Today the Royal Prerogative is, as Dicey puts it, “… the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the King himself or by his Ministers.”

Perhaps the best example is the power to declare war. The extent of the Royal Prerogative varies from Realm to Realm, that is it will not be precisely the same in, say, the UK as in Canada.

 The power to prorogue is normally a matter where the Crown acts on lawfully tendered advice – not any advice as is sometimes suggested.

On this occasion, it had probably fallen into one of those areas where the decision is the Crown’s. This was because it was associated with a profoundly constitutional issue, whether the government had the confidence of the House.  

I think the Governor-General acted correctly. It would have been premature to reject the advice to prorogue as this could have resulted in the Prime Minister’s resignation. This would have been premature; there is no urgency for Parliament to consider any motion of no confidence.

The reserve powers are exercised in accordance with convention or custom– they are not codified and are not justiciable, that is their exercise cannot be examined, questioned or reviewed in the courts.  Nor, in my view, should they be. That is the strength of the Westminster system.

To repeat: this is a political crisis, one which the Westminster system is best in resolving smoothly and effectively.

The Crown will provide the solution to the Canadian political mess.

..the text…

EXTRA Vol. 142, No. 6 — December 5, 2008

 Registration SI/2008-144 December 5, 2008

 OTHER THAN STATUTORY AUTHORITY

 Proclamation Proroguing Parliament to January 26, 2009

MICHAËLLE JEAN [L.S.] Canada 

ELIZABETH THE SECOND, 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. To our Beloved and Faithful Senators of Canada, and the Members elected to serve in the House of Commons of Canada, and to all to whom these Presents may in any way concern, 

Greeting: JOHN H. SIMS Deputy Attorney General  

A PROCLAMATION Whereas We have thought fit, by and with the advice of Our Prime Minister of Canada, to prorogue the present Parliament of Canada; Now know you that, We do for that end publish this Our Royal Proclamation and do hereby prorogue the said Parliament to Monday the twenty-sixth day of January, 2009. 

IN TESTIMONY WHEREOF, We have caused this Our Proclamation to be published and the Great Seal of Canada to be hereunto affixed.

WITNESS: Our Right Trusty and Well-beloved Michaëlle Jean, Chancellor and Principal Companion of Our Order of Canada, Chancellor and Commander of Our Order of Military Merit, Chancellor and Commander of Our Order of Merit of the Police Forces, Governor General and Commander-in-Chief of Canada. 

AT OUR GOVERNMENT HOUSE, in Our City of Ottawa, this fourth day of December in the year of Our Lord two thousand and eight and in the fifty-seventh year of Our Reign.

 By Command,RICHARD DICERNIDeputy Registrar General of Canada     


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