The Past Speaks

The British parliament recently passed a law to amend the rules of the royal succession to permit Kate and William’s eldest child to inherit the throne, regardless of gender. The old succession rules stated that a woman could become monarch only if she had no brothers. Such a rule clearly flies in the face of the principle of gender equality, so it was certainly time to amend the parts of the constitution that govern the succession.

The complicating factor is how we to get to there from here. Changing the UK constitution is easy– you can do it through a majority vote in parliament. However, Elizabeth isn’t simply the Queen of the UK, she is the Queen of a 15 other Commonwealth Realms. Concurrent legislation therefore needs to be passed in all of the other states that have Queen Elizabeth as their head of state. Back in February and March, Canada’s parliament passed the requisite legislation with little fuss. At the time, I thought it was odd that the provinces were not asked to passed equivalent bills, as the Queen in right of Canada is also the Queen in right of Ontario, Queen in right of Manitoba, and so forth. Moreover,  Australia is not only passing federal legislation but having each of its state governments approve of the change in the succession rules. (Queensland, which is jealous of its autonomy from the central government, passed its own bill, whereas the other states simply signified their consent through executive action). Section 41 of the Constitution Act 1982 requires the consent of all ten provincial legislatures and parliament before any change is made to “the office of the Queen, the Governor General and the Lieutenant Governor of a province.” In contrast, most other amendments to the constitution require simply a)  “resolutions of the Senate and House of Commons” and (b) “resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent. of the population of all the provinces.”

However, no provincial government objected to this housekeeping matter at the time, so I concluded that the issue was settled, at least insofar as Canada was concerned.  Personally, I thought the failure of any of the provinces to object was unfortunate, because allowing the federal government to alter the constitution unilaterally, even in this benign way, sets a dangerous precedent.

To those who believe that the change to the succession rules are an entirely sub-constitutional change and therefore the consent of the provinces is not required, I would refer you to the British government lawyers who do indeed view this reform as a change to the constitution.

It now appears that a group of activists and academics in Quebec are launching a court case to challenge what they regard as a unilateral change to the constitution.

It will be very interesting to see how this case develops. I think that a very strong case be made for the position that amending Canada’s succession rules does require legislation in each province’s legislature. The wording of the Constitution Act, 1982 is pretty unambiguous. Moreover, Australia’s states are, nowadays, much less powerful entities than Canada’s provinces and have less sovereignty, or at least they have sovereignty over fewer areas of jurisdiction.  Australia is perhaps the most centralized of all existing federations. Canada is at the other extreme of the spectrum. See here. [Ironically, the Canadian constitution of 1867 envisioned weak provinces and the Australian constitution of 1901 envisioned relatively strong sub-national units.] If the consent of the state governments in Australia was required to change the Australian constitution in this regard, surely the consent of Canada’s provinces must also be given.