The Past Speaks

That’s how distinguished Canadian historian Michael Bliss characterizes the constitutional issues raised by the deeply flawed royal succession bill passed by the Canadian parliament earlier this year.  See here.

I’m inclined to agree.

As most readers will know, Kate Middleton, the Duchess of Cambridge, recently had a child who will likely inherit the Crowns of the sixteen nations that have Queen Elizabeth as their head of state. Until now, the rules governing the royal succession have discriminated on the basis of gender: a monarch’s daughter can inherit the throne only if she has no brothers. For many years, feminists have suggested that the eldest child should, regardless of gender, inherit the throne. The marriage of Prince William and Kate Middleton in April 2011 moved the issue up the agenda, since William is second in line the throne, right after Prince Charles.

In October 2011, the leaders of the Commonwealth agreed to change the succession rules so as to eliminate the element of gender discrimination. They then had to tackle the issue of how to modify the rules. At one time, the British parliament could simply pass a law changing the rules of the royal succession that would bind the entire British Empire. That arrangement made sense in the days when Britain had the right to declare war on behalf of its colonies. Moreover, the British North America Act of 1867 said that Canada was “one dominion under the Crown of the United Kingdom of Great Britain and Ireland.”

In the early twentieth century, however, the Canadian and British Crowns became distinct. Moreover, the Canadian Crown is actually eleven Crowns– the Crown in right of Canada and the Crown in right of each province. This is a crucial point. Since the passage of the Statute of Westminster in 1931 any change to the rules of the royal succession has required the passage of legislation in the parliaments of Canada, Australia, and New Zealand as well as the United Kingdom. This procedure was followed in 1936-7, when the rules were changed after the abdication of King Edward VIII, who gave up the throne so he could marry Wallis Simpson, an American divorcée.

In early 2013, the Harper government rushed a bill on the subject of the royal succession through parliament. The issue was urgent because the Duchess of Cambridge had recently announced her pregnancy. The Harper government’s bill did not actually change Canada’s rules of succession and merely expressed approval of the British law changing the rules related to the British Crown. It appears that the authors of this poorly drafted bill overlooked both the 1931 Statute of Westminster and the patriation of the constitution in 1982.

In a recent op-ed in the Ottawa Citizen, University of Ottawa professor Philippe Lagassé  discussed some of the problems with the Harper government’s Succession to the Throne Act. Professor Lagassé complains, quite rightly, that the law symbolically reduces Canada to the status of a British colony. I agree that this move may have serious legal ramifications. When Canada sends diplomats and soldiers abroad, they do so as servants of the Canadian Crown, not the British Crown. The British Crown may be at war with a country that is at peace with the Canadian Crown: let’s remember the Falklands War of 1982. Britain is resented in parts of the world because of its history of imperialism. Canada, which lacks such baggage, is one of the most popular nations, at least according to global surveys. It is, therefore, important for the Canadian and British Crowns to be kept distinct in the eyes of the world.

The Succession to the Throne Act also has important implications for federal-provincial relations. Section 41(a) of the 1982 constitution clearly states that the consent of all ten provincial legislatures must be obtained before the “office of the Queen” is changed. Modifying the rules of succession constitutes a fundamental change to the office, so the federal government should have got the provincial legislatures to sign off on its royal succession law. Professor Lagassé notes that the constitutionality of the Succession to the Throne Act, 2013 is currently being challenged in the courts by two law professors in Quebec, although he implies that their court case will probably fail.

I feel more confident that the courts will side with the law professors, for they have an important precedent on their side: Australia, which is the Commonwealth’s other federal monarchy. Elizabeth is the Queen in Right of Canada, but she is also the Queen in Right of Ontario, Queen in Right of Manitoba, and so forth.  The Queen of Australia is also the head of state in Victoria, New South Wales, and all of the other Australian states. Australia has decided to include its state parliaments in the process for changing its royal succession law. All of Australia’s state governments have, of course, approved of the proposed changes. In Canada, the federal government adopted the view that consultation with the provinces was unnecessary.  Not involving the provinces was a gamble that risks creating a constitutional crisis for a future generation.  Law professors in Australia, who presumably have no hostility towards Stephen Harper and his government, have expressed concerns about Canada’s royal succession law.

Their worst case scenario is that this thoughtless law causes one individual to inherit the Canadian Crown, while another person acquires all of the other Crowns in the Commonwealth.  Moreover, the fact that each Canadian province and Australian state is a monarchy is an important symbol of their autonomy within their respective federations. Allowing the federal government to change the office of the Queen without the consent of the provinces sets a bad precedent that could threaten provincial autonomy, a principle the Harper government has invoked in the past.

Canada has an obligation to the other nations of the Commonwealth to ensure that the changes to the rules of the royal succession are constitutionally valid. The new Minister of Justice in Harper government should admit that his predecessor made an honest mistake in accepting some flawed advice about the constitution. It should then introduce a new royal succession bill, this time with the consent of the ten provincial legislatures.