CONSTITUTIONAL LAW – THE DEMOCRATIC FAILURE OF THE BRITISH AND CANADIAN PARLIAMENTARY FORM OF GOVERNMENT

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom

Preamble to the British North America Act 1867

1. Introduction

   In 1867 the British government gave Canada its Constitution by way of a British statute called the British North America Act.
   This posting argues that the Constitution no longer meets the needs of Canadians. It should be abandoned and replaced by a modern Constitution acceptable to the majority of Canadians.
I start with the circumstances that existed in Britain from about 1832 to the late 1800s and how they played a part in the development of Canada’s governmental institutions.  At the end, I mention recent remarks by British commentators about the failures of the British Parliamentary system of government.

2. Historical review

   Britain’s unwritten Constitution developed over many centuries through trial and a good deal of error. Until the 1830s, British Monarchs controlled the executive branch of government – the Privy Council. Under the authority of Parliament, it collected taxes and spent the taxpayer’s money as allowed.
   At that time William IV was King. Through his mistakes, in 1835 Parliament gained control of the executive branch. Parliament then went about experimenting with various techniques in governing the country. 
   For example, William IV was the last Monarch to appoint a Prime Minister in opposition to the wishes of Parliament. Eventually, the leader of the political party that had the majority of seats in Parliament automatically became the Prime Minister.
   To get majority support in favour of legislation, Prime Ministers often depended upon opposition votes. Even members of Prime Ministers’ parties would vote against his legislation from time to time. It wasn’t until the late 1800s that the idea of party loyalty came into effect.
   During this period, MPs of all parties voted for or against those whom Prime Ministers wanted in Cabinet. If elected, the new Cabinet Members had to resign their seats in Parliament and run again in a bi-election. These and other peculiarities unknown to modern Canadian politics existed at that time. Some still exist today. This, in spite of the fact that our Constitution declares Canada’s Constitution should be “similar in principle” to that of Britain.

3. Responsible government

   There are three branches of government; legislative, executive and judicial. In Canada, responsible government means that the executive branches of federal and provincial governments are responsible to their respective legislative branches. Confusingly, others describe the executive branch as; “the civil service”, “the government”, “the Cabinet” or “the Privy Council.”
   The words “executive branch” seem a more accurate definition since they define more precisely its day to day activities of executing and administering laws passed by the legislative branch. Like British Monarchs before the 1830s, Prime Ministers have the unwritten constitutional right to hire and fire Cabinet Ministers.

4. Canada’s partly written and partly unwritten Constitution

   The written part of our Constitution is the 1867 BNA Act. Actions taken by federal or provincial governments concerning its provisions are subject to judicial review in Canadian courts. Until the addition of our Charter of Rights and Freedoms in 1982, the main contests were over jurisdictional disputes between federal and provincial government. Since 1982 most disputes involved contests between individuals and the federal government. These are subject to judicial review.
   The unwritten part of the Constitution consists of policies called conventions or customs. Many are copycats of the British unwritten Constitution. Canadian Prime Ministers and Premiers invent and apply these conventions for the purpose of solidifying and expanding their powers. That includes the right to call an election at the most convenient time, the right to appoint judges, the right to hire and fire Cabinet Ministers, the right to control the work of legislative committees, the right to compel party loyalty, etc.
   Since they are unwritten and political in nature, they are not subject to judicial review. Consequently, Canada is not a democracy because Prime Ministers and Premiers possess almost absolute power during their terms of office. There are few checks and balances to restrain them.

5. The probable collapse of the British parliamentary system 

   Recent events in Britain arising from expenses claimed by members of the House of Commons invited calls for reform of its Parliamentary system. Some argued that Prime Ministers and Cabinet Ministers act as if they were in power for their own benefit rather then for the benefit of the nation. They say that these Ministers prefer the “baubles of power” over service to their country.
   Others remark that Ministers lose their independence and must take the side of the Prime Minister rather than that of Parliament and the nation. They complain that Prime Ministers have become Monarchs with almost absolute powers.
   Another commentator wrote that 80% of British laws are now written in Brussels and with the Treaty of Lisbon that will rise to 90%: all of them written by unelected European bureaucrats.
   Either through political indifference or European influence, the British Parliamentary system may soon pass into history. Is this a system that Canada should continue copying?

Bottom line:
1.  Canada is not a democracy governed by the rule of law since important features called political conventions cannot be challenged in a court of law.
2.  The British Parliamentary system is long past its best before date. It may soon disappear unless it develops a much better model. Canada should not wait for this to happen.
3.  The next posting will recommend new principles for Canada’s new Constitution.
22 June 2009

Comments

[Chri Budgell]

Like most people I have no academic background in political science (or law) but I find this is a very interesting topic because of some of the reading I have done to assist me in litigation against the government. In that regard there is one very basic point I'd appreciate having clarified. Am I correct in concluding that when a legal document refers to "Her Majesty the Queen in Right of ..." that term in fact means the executive branch of government?

Also, what is the origin of this convention? Is it unique to Canada, and what is the equivalent terminology used in the U.S.?

Reply. Thanks for your inquiry. Yes a criminal indictment usually abbreviates the name to R. v. (name of defendant charged.). Civil documents will be different. It depends upon whether the plaintiff is the Federal executive or the Provincial executive.
Unwritten conventions are mostly peculiar to the U.K. Canada and perhaps New Zealand and Australia. I don't know of any in the U.S. except the practice of the Presidents appointing White House "advisors" since they do not appear to need Senate approval.
Hope this helps.