Yes. As demonstrated several times in several different colonies, the Queen could dissolve parliament if the government failed in their constitutional duty to do so. She would have to depend on the the Parliament, the People, the Army, and the Civil service agreeing with her that the government was acting unconstitutionaly
The mechanism would probably be to accept an approach from a minority party to try to get an agreement to try to get the election through parliament, then dissolve the government and accept a government from the minority party.
It would be a mess. Society would shake. The monarchy might never recover.
If it didn’t work… well, she could try calling in the army, but it’s hard to imagine Parliament accepting an unconstitutional government unless they were confident of popular support.
Why exactly are fixed terms acts being passed in the parliamentary countries anyway? Has there been some event in the UK/Canada where the old system didn’t work?
In the case of the UK it was because the Lib Dem wanted to guarantee they would get five years in a coalition and not face a snap election if the Tories thought they could get away with it.
I see no reason why the Lords would oppose any repeal.
All you are doing here is citing some plitical punditry from a “wag” forty years ago, and then attributing it to that (in your mind) nefarious Trudeau. Unless you have some indication that Trudeau himself was musing about this option, it’s just 40 year old gossip from ill-informed commentators. In other words, please provide a CITE; something more than “I heard”.
The Governor General has zero role in constitutional amendments, and thus could not refuse to grant royal assent. Constitutional amendments are proposed by resolutions of the House of Commons and the Senate, which are not Acts, and therefore royal assent is not required. So again: CITE to the suggestion that the GovGen threatened to refuse royal assent?
It’s been thought that the power to hold an election at any time gave the party in power too much of an advantage, both in political timing (snap election to take advantage of a sudden circumstance in favour of the government, for instance), and also just in logistics (the government party could line up all the contracts for air travel, buses, halls, etc. in advance, knowing the date, but the opposition parties would have to guess at it and either not be able to enter into logistic contracts until the writ was dropped, or if they booked in advance, would have to pay a premium because of the uncertainty).
All jurisdictions except Nova Scotia, Yukon and Nunavut now have fixed date election acts, but as the federal election of 2008 shows, the party in power can still call an election prior to the date set in the statute, if they’re prepared to take the political heat for it.
I thought the Commons could overrule the Lords if they blocked legislation? Parliament Act 1911, one of the few political factoids that remained lodged in my head since school. Or avons-nous changé tout cela?
As Hari commented, Parliaments have a maximum term, and once they reach that term, they cease to exist. No action is required. In the UK, this was governed by the Septennial Act of 1715, which provided that no Parliament could last more than seven years. The Act was amended in the early part of the 20th century to reduce the maximum term to five years.
In Canada, the maximum term is set by the Constitution at five years, for Parliament and the provincial legislatures. Once that deadline is passed, the Parliament / Assembly ceases to exist.
However, action is required to call an election: the Gov Gen must call the election and direct that writs of election be issued. That decision is normally made on the advice of the PM.
If the Parliament has expired and the PM declines to advise the Gov Gen to call an election, I would think that would be exactly the type of situation that the Gov Gen could consider using reserve powers. It’s not the Gov Gen’s role to take part in normal politics, and certainly not to favour one party over another. However, it is the Gov Gen’s duty to ensure the Constitution is respected and government carries on. A PM who refuses to go to the polls would be putting the Constitution in serious jeopardy, and could trigger action by the Gov Gen.
However, I would disagree with **Melbourne’s ** suggestion that there would be any need for parliamentary action. The PM serves on the appointment of the Gov Gen. If the Gov Gen asks the PM to advise him to call elections, and the PM refuses, the Gov Gen could, in theory, dismiss the PM and call on the Leader of the Opposition to form a government, on the understanding that the first action of the new government would be to advise the Gov Gen to call an election.
That is similar to what happened in the Whitlam crisis in Australia in the 70s. The PM could not pass a budget, as the Senate refused to pass the budget passed by the House of Representatives. In that type of deadlock between the houses of Parliament, the normal solution is that the PM advises the Gov Gen to call an election to let the people decide. PM Whitlam refused to give that advice. The Gov Gen fired the PM, called on the Leader of the Opposition, who formed a government and immediately advised the Gov Gen to dissolve Parliament and call an election, to let the people decide. The Gov Gen followed that advice, in accordance with the fundamental duty of the Gov Gen to keep the machinery of government moving, in accordance with law and democratic principles.
Note as well that there was no consideration of the Army being involved, which personally strikes me as a non-starter. The Gov Gen has all the powers he needs to remove a PM who is trying to avoid an election, simply by a stroke of the Gov Gen’s pen.
That’s correct. Under the Parliament Act, 1911, as amended by the 1949 Act, a bill can be enacted by the Commons and the monarch, if passed by the Commons in two different sessions over the course of a year, and the Lords have not passed it.
It will be interesting to note if Labour include repeal of the Fixed Term Parliaments Act in its manifesto thus indicating they may wish to protect their right to do so under the Salisbury convention.
I never suggested Trudeau would do that, or even contemplated it. (After all, whether he wanted to commit political suicide or not, at a certain point the rest of the party would intervene, a la Maggie Thatcher.) I merely point out what one political pundit - who presumably knew the laws in more detail than me - suggested the letter of the law said. In fact, in a later post, you yourself discuss the exact same situation - and it seems to me the Canadian constitution is mum on this detail; presumably because it would be suicidal for any party to let it get to that point. However, even if the parliament expires, does the “royal appointment” to minister (prime or otherwise) automatically expire too?
Perhaps you misunderstand,. perhaps you don’t remember history that far back… The constitution was a bill to amend the BNA act, passed by parliament, to be signed by the governor general, requesting the British Parliament amend the BNA law as indicated to establish a locally administered constitution. As a result, the bill would have to be signed by the governor general before being sent to London for consideration. IIRC, Governor General Ed Schreyer contemplated not signing it, since it was a unilateral move by Trudeau (in character) to provide the constitution he wanted with no agreement from anyone outside his government.
However, his was a minor voice. the opposition partied opposed it, most provinces opposed it, it went to the supreme court …which said in its typical wise split-the-baby fashion that a constitutional change needed “consensus” to be modified. Trudeau delegated this action, consensus was reached, the provinces and the opposition were on board, and the bill passed (and was signed). Then Britain did its thing, and here we are.
Also during the outcry the opposition and some provinces contemplated lobbying the British parliament not to make a unilateral change, and also petitioning the Queen if necessary not to sign it if the British parliament passed it… So there’s another good example of a situation where some thought the Queen would have moral grounds to refuse to sign a bill. The problem is that a majority government is a dictatorship until they call an election.
So during the constitution debate, the Governor general did contemplate refusing. However, the point was moot because in the end he did not sign the act:
Another point - the principle is that no parliament can bind the hands of a future parliament. So the new British law may bar an election, but a future parliament can in fact override that. As pointed out, it would likely be a majority, I can’t see the minority party supporting that repeal. (The only other scenario is if party A and B both agree they don’t want party C in opposition offered the government leadership) Also, there’s a risk of losing votes over the arrogance of changing the law.
As a Canadian ex-pat who’s too young to have a memory of all this, I got curious about this and did a little digging online.
I haven’t been able to find any reference to this online; instead, all I’ve been able to find are references to Schreyer saying he might have dissolved Parliament without the advice of the PM (!) if the PM had tried to do things unilaterally. Is this the incident you’re referring to?
This I was able to find: Patriation Reference. It’s an interesting distinction that they drew between what is legal and what is constitutional.
My recollection is that Schreyer talked about refusing to sign, but I may be wrong - I heard the reference second-hand on a talk show discussing the whole constitution question much later. And IIRC he made the comment much later, long after the dust had settled, not as a threat during the affair. The crown does not threaten.
Basically, he considered the nuclear option whether no sign or election. Schreyer had recently retired as premier of Manitoba, for the NDP; one cynical view was that the quite young Schreyer was offered the post by Liberal Trudeau to keep a strong popular possible opponent out of federal politics so he wasn’t a quiet, retired type.
Yes, eventually the Canadian supreme court decided as the link says, that there was a convention that changes to powers of the provinces needed “consensus” from the provinces (i.e. legally the feds could do it unilaterally but the really shouldn’t). They cleverly did not explain what consensus was. The problem was a large group of provinces (7?) agreed to stick together and stick to their demands. One was Quebec, with a separatist premier (hence the reason for the constitution - the first referendum demonstrated a Quebec unhappiness with the constitution, Trudeau decided to make it his legacy to give them a “better deal”. The provinces wanted unanimity. Quebec would never sign anything. The SC gave Trudeau an out - he (or rather, one of his ministers did the negotiating) gave the other 9 provinces what they wanted and got a deal, which also made the opposition MPs happy. It went from being the nastiest fight in politics in decades to become a huge love-fest for all but the separatists.
A good definition of “consensus” that I recall was kicking around at the time, was that there had to be a significant majority (in this case 9 out of 10) in agreement, and that the ones in agreement also had to agree that the dissenting side were being unreasonable and obstructionist- they wouldn’t agree to anything reasonable anyway (which describes separatist Quebec).
No. The appointment as Prime Minister and as Cabinet ministers is done by the monarch and does not depend on the existence of a Parliament. That is why the incumbent Prime Minister remains as Prime Minister during the election, when Parliament is dissolved, and remains in office for some time, even if defeated at the polls, until a transition has been worked out with the incoming Prime Minister.
I would suggest you not be patronising.
No. The method to amend the Constitution at that time was by joint resolutions of the House of Commons and the Senate, addressed to the Queen, asking her to place a measure before the British Parliament to amend the Canadian Constitution. The resolution would contain the text of the proposed constitutional amendment, but resolutions of the Commons and the Senate are not bills, and do not need the royal assent from the Governor General.
Because resolutions are not bills and do not become law, royal assent was not needed and therefore the Governor General did not have any role to play in the passage of the resolutions. He could not have refused assent, as his assent was not needed.
Note as well that the formal title of the Patriation Reference mentioned by MikeS is Re: Resolution to Amend the Constitution, not Re: Act to Amend the Constitution.
You don’t say where you are getting this quotation from, but it is wrong. The Constitution Act, 1982 was not passed by the Canadian Parliament as a separate Act. Rather, the text of both the Canada Act 1982 and the Constitution Act, 1982 were included in the joint resolution of the Commons and the Senate to the Queen, which I linked to above.
The English version of the Canada Act 1982 was then passed by the British Parliament, with two schedules: Schedule A was the French version of the Canada Act 1982, which has equal force in Canada as the English version. Schedule B is the Constitution Act, 1982.
Nor did Her Majesty give Royal Assent to either bill on the lawn of the Canadian Parliament. She gave Royal Assent to the Canada Act 1982 in Britain, since it was an Act of the British Parliament.
No separate Royal Assent was needed for the Constitution Act, 1982, since it was part of the Canada Act 1982. Rather, s. 1 of the Canada Act 1982 provided that the Constitution Act, 1982 would come into force as provided by that Act. Section 58 of the Constitution Act, 1982 provided that that Act came into force by proclamation by either the Queen or the Governor General, under the Great Seal of Canada.
That Proclamation, bringing the Act into force, is what Her Majesty signed on April 17, 1982. Here’s an image of the Proclamation; and here’s the text of the Proclamation. It was not the Constitution Act, 1982 itself which she signed.
This is important, also, in terms of the command and control of British nuclear forces in the modern era. A nuclear attack might come with just a few minutes of warning. Someone has to be in charge, and known to be in charge; the Queen remains commander-in-chief, but de facto civilian control of the military is exercised by the PM. See Peter Hennessey’s excellent The Secret State for a discussion of this.
That’s a very handsome document… but is the red ink smeared in the upper-left corner (from the words “United” and “whom,” in particular, it looks like)?
Yes. The original was hand-done calligraphy, by ink and pen. It was raining a bit in Ottawa on April 17, and the signing ceremony was held on the lawn of Parliament Hill. The Proclamation got spattered a bit, and I remember reading that one word got smeared.
It’s history. More interesting than a laser print.
Which means, as some pundit once upon a time suggested, that without an activist monarch a Prime Minister could have held on like a rump parliament without a parliament for an indefinite period.
(Isn’t this what Indira Gandhi did, using a “state of emergency” decree to postpone elections, and the result was when she called elections she was defeated.)
IIRC, the quote was from Wikipedia. Imagine that, Wikipedia inaccurate. I stand corrected. Apologies. Thank you.
I stand corrected. Apologies. Thank you.