The royal succession and the de-patriation of the Canadian Constitution

While royal babies largely fall within the domain of gossip magazines and ‘celebrity’-worship, the impending birth of a child to the Duke and Duchess of Cambridge has also given birth to fascinating constitutional debates in the various Realms (being the countries of which Queen Elizabeth II is Sovereign). Agreement to change the rules of succession to the throne was relatively easily reached, in principle, in Perth at CHOGM in October 2011. Implementing that agreement has proved vastly more difficult. In Australia, Queensland has objected to the Commonwealth’s proposed legislation, not because it objects to the potential outcome in relation to royal succession, but because it is concerned that such a law will subordinate the State Crown to Commonwealth control.
The Canadian Bill
Canada, too, has its own federal problems with Quebec. The way it has sought to resolve them is, to a constitutional lawyer, quite bizarre. The Canadian approach appears to be either constitutionally invalid (purporting to return Canada’s Constitution to a pre-patriation position) or completely ineffective. Instead of enacting changes to the law of succession as it applies in relation to the Crown of Canada, it has instead introduced a Bill which merely assents to the British Succession to the Crown Bill 2013, as if the British can still legislate in relation to Canadian constitutional arrangements. Not even the British would still purport to have the power to do this. The Explanatory Notes to the British Bill make clear that it only applies to the United Kingdom, British Crown Dependencies and British Overseas Territories. It does not purport to apply to any other Realm.
The Succession to the Throne Bill 2013 (Canada) has only one substantive provision, which states:

The alteration in the law touching the Succession to the Throne set out in the bill laid before the Parliament of the United Kingdom and entitled A Bill to Make succession to the Crown not depend on gender; to make provision about Royal Marriages; and for connected purposes is assented to.

Hence, all that the Canadian Bill appears to do is to agree to a change in the law of succession in relation to the British Crown that does not in any way affect, or purport to affect, the succession to the Crown of Canada. The consequence would be that if the eldest child of the Duke and Duchess of Cambridge was a girl and a later child was a boy, the girl would become Queen of the United Kingdom and the boy would become King of Canada (assuming that neither jurisdiction had become a republic by that time).
Even more strange is the fact that the Canadian Government contends that this Canadian Bill, assenting to the alteration in the law made by the UK Bill, would have the effect of changing succession to the Crown of Canada. This is despite the fact that the UK Bill does not purport to apply to Canada and that s 2 of the Canada Act 1982 (UK) expressly provides that UK legislation can no longer apply in relation to Canada.
The most plausible argument that could be made to support this outcome would be that the Canadian Constitution requires that the person who is Sovereign of the United Kingdom be the Sovereign of Canada. Such an argument might have been based upon s 2 of the British North America Act 1867 (Imp) which previously stated that the provisions of that Act referring to the Queen extended to ‘the Heirs and Successors of Her Majesty, Kings and Queens of the United Kingdom of Great Britain and Ireland’. That provision was repealed, however, in 1893. The equivalent provision remains as covering clause 2 of the Commonwealth of Australia Constitution Act 1900 (Imp). Nonetheless, three Justices of the High Court of Australia, in the case of Sue v Hill [1999] HCA 30; (1999) 199 CLR 462, [93], rejected the notion that this meant that any change in the British laws of succession would affect the succession to the Australian Crown. Chief Justice Gleeson and Justices Gummow and Hayne observed that only Australian legislation could change the rules of succession to the throne with respect to Australia and that a change to the British law could have no effect in Australia since s 1 of the Australia Acts 1986 (UK) and (Cth) came into force. Section 1 of the Australia Acts states that no Act of the Parliament of the United Kingdom shall extend, or be deemed to extend, as part of the law of Australia. Likewise, s 2 of the Canada Act 1982 provides:

No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law.

It would therefore seem to be abundantly clear that a Canadian law that simply ‘assents’ to a British law that changes succession to the British throne, does not and cannot affect succession to the throne of Canada.
Canada and the role of the Provinces in constitutional amendment
So why have the Canadians taken this course and on what conceivable basis could it be argued to be effective? The ‘why’ is pretty easy to identify – fear of dealing with the Provinces. Section 41 of the Constitution Act 1982 (Can) states that an amendment to the Constitution of Canada in relation to ‘the office of the Queen’ can only be made by the proclamation of the Governor-General where authorized by resolutions of the Canadian Senate, the Canadian House of Commons and the legislative assembly of each Province. If s 41 applied to any Canadian legislation changing the rules of succession to the Canadian throne, resolutions of the legislative assembly in each Province, including Quebec, would therefore be required. While in Australia, it is currently proposed that each State Parliament will pass legislation requesting the enactment of Commonwealth legislation concerning succession to the Australian throne, the Canadian Government has balked at this prospect.
It is not overwhelmingly clear that s 41 would apply to Canadian legislation concerning succession to the Canadian throne. This is because it is not clear whether (a) such legislation would be an amendment to the ‘Constitution’; and (b) whether such legislation relates to the ‘office of the Queen’. [For a more detailed discussion in an article from which this blog is drawn, see: A Twomey, ‘Changing the rules of succession to the throne’ [2011] Public Law 378.]
The only judicial authority on the subject is that of the Ontario Superior Court of Justice in O’Donohue v Canada (2003) 109 CRR (2d) 1, which concerned a challenge to the law of succession to the throne on Charter grounds. Justice Rouleau decided that the matter was not justiciable because although the rules of succession were not part of the written Constitution of Canada, they were ‘part of the unwritten or unexpressed constitution’ and were therefore not subject to the Charter. Justice Rouleau also suggested at [33] that if the rules of succession with respect to the Queen of Canada were to be changed in Canada (by a court or Parliament) this would ‘bring about a fundamental change in the office of the Queen without securing the authorizations required pursuant to s 41 of the Constitution Act 1982.’ While these statements were merely obiter dicta, they are enough to suggest that it is plausible that s 41 might require the agreement of all Provinces to changes to the law of succession to the Crown of Canada, although there are also good arguments for the opposite view.
Canada and the Statute of Westminster
In order to avoid facing that federal problem, the Canadian Government has instead reverted to the position prior to the patriation of the Canadian Constitution when the United Kingdom could still legislate for Canada.
Prior to the enactment of the Statute of Westminster in 1931, the United Kingdom Parliament had full power to legislate in a manner that bound its Dominions (including Australia and Canada) by laws of paramount force. Section 2 of the Statute of Westminster removed the ‘paramount force’ of such laws by permitting their local amendment or repeal and s 4 limited the future extension of British laws to the Dominions to cases where the Dominion had requested and consented to such an enactment. Section 4 provided:

No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof.

While sections 2 and 4 immediately applied to Canada when the Statute of Westminster came into force, they did not apply to Australia, New Zealand or Newfoundland until adopted by the Parliament of the relevant Dominion. Because of this disparity in application, the recitals in the preamble to the Statute also provided in paragraphs 2 and 3 that:

it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom.

…it is in accord with the established constitutional position that no law hereafter made by the Parliament of the United Kingdom shall extend to any of the said Dominions as part of the law of that Dominion otherwise than at the request and with the consent of that Dominion.

As Wheare has noted, these recitals and provisions declare three conventions and a legal requirement. These are as follows:
1. Dominion legislation that alters the law touching succession to the throne requires the assent of the Parliaments of the United Kingdom and other Dominions (preamble, paragraph 2 – convention);
2. United Kingdom legislation that alters the law touching succession to the throne, whether or not it is intended to extend as part of the law of the Dominions, requires the assent of the Parliaments of the other Dominions (preamble, paragraph 2 – convention);
3. United Kingdom legislation that alters the law touching succession to the throne and which is intended to extend to any Dominion, as part of its law, requires the request and consent of that Dominion (preamble paragraph 3 – convention); and
4. United Kingdom legislation that alters the law touching succession to the throne shall not extend, or be deemed to extend, to a Dominion as part of its law, unless it is expressly declared in that Act that the Dominion has requested, and consented to, its enactment (section 4 – legal requirement).
Underlying these interconnected provisions is the assumption that a Dominion may itself change the rules of succession to its own throne (because it could now legislate in a manner that was contrary to British laws, such as the Act of Settlement, that had previously applied by paramount force). If so, the Dominion should, by convention (but not as a legal requirement), seek the assent of the UK Parliament and other Dominion Parliaments. Equally, the UK Parliament could seek to change the law of succession with respect to the British throne only, in which case it should seek the assent of the Dominion Parliament. However, the UK Parliament could also change the law of succession so that it also applied to all the other Dominions as well as the United Kingdom. In those cases where s 4 of the Statute of Westminster had not yet been adopted, the third paragraph of the preamble set out a convention that it would only do so at the request and with the consent of each relevant Dominion. Where s 4 did apply, there was a legal requirement that such an Act not be deemed to extend to a Dominion as part of its law unless it was expressly declared in the Act that the Dominion has requested and consented to its enactment.
The abdication of Edward VIII in 1936 and the need to exclude him and any children he might have had from the line of succession, meant that these conventions and laws had to be put in practice. Canada, New Zealand and Australia sought to have the British law extend to them as part of their own laws. The Statute of Westminster applied in full to Canada, so conventions 2 and 3 and legal requirement 4 applied in its case. The consent and request of Canada to the enactment of His Majesty’s Declaration of Abdication Act 1936 was given by way of executive order in council on 10 December 1936 and recorded in the preamble to that Act (satisfying convention 3 and legal requirement 4). In order to meet the parliamentary assent requirement of convention 2, the Canadian Parliament later enacted the Succession to the Throne Act 1937 (Canada). It provided that:

The alteration in the law touching the Succession to the Throne set forth in the Act of the Parliament of the United Kingdom intituled “His Majesty’s Declaration of Abdication Act, 1936” is hereby assented to.

It is this provision upon which the 2013 Canadian Bill is modeled, despite it only forming a negligible part of Canada’s response to the 1936 abdication and despite subsequent constitutional changes, including the 1982 repatriation of the Canadian Constitution.
Section 4 of the Statute of Westminster had not yet been adopted by Australia or New Zealand in 1936, so it was not necessary to gain and record their request and consent for the UK law to extend to them. It extended to Australia and New Zealand of its own force without any further legal steps. Assent, under convention 2, and its mention in the preamble to His Majesty’s Declaration of Abdication Act 1936 (UK), was regarded by R T E Latham as a ‘matter of courtesy’. Australia’s Parliament was the only Dominion Parliament to indicate its assent prior to the enactment of His Majesty’s Declaration of Abdication Act. It did so, however, by way of resolutions of each House, rather than legislation, because of doubts as to whether there was a constitutional head of power that would support the enactment of legislation. New Zealand indicated its assent in advance by way of executive act, but later passed a parliamentary resolution in each House which ‘ratified and confirmed’ that assent for the purposes of convention 2. It appears that neither Dominion formally requested and consented to the enactment of the British Act, in accordance with convention 3 (although this might be implied from its assent).
As His Majesty’s Declaration of Abdication Act 1936 (UK) extended as part of the law of Canada, Australia and New Zealand as well as the United Kingdom, the effective date of the abdication in those four countries was the date of commencement of that Act, 11 December 1936, rather than 10 December, which was the day on which Edward VIII signed his declaration of abdication. The other Dominions of South Africa and the Irish Free State did not wish the British Act to apply to them. South Africa gave an initial executive ‘assent’ prior to the enactment of the British law, but then later enacted its own law, His Majesty Edward VIII’s Declaration of Abdication Act 1937. It gave parliamentary assent to the British law (in accordance with convention 2), but then enacted the changes itself as part of South African law and dated the abdication back to 10 December, being the day on which Edward VIII signed the instrument of abdication. The Irish Free State did not assent to the British Act at all. It enacted its own law, the Executive Authority (External Relations) Act 1936, implementing the abdication and changing the laws of succession to the throne on 12 December 1936. The abdication therefore took effect in the Irish Free State on 12 December 1936.
The consequence was that there were different Kings in different Dominions during the period 10-12 December 1936 marking the divisibility of the Crown in the personal, as well as the political, sense. As Wheare described it, the Commonwealth was ‘partly dismembered’ during this period.
The relevance of the Statute of Westminster today and the effectiveness of the Canadian Bill
The important lesson for the purposes of the current Canadian exercise is that the parliamentary assent, given pursuant to convention 2, only had the effect of making the change in royal succession applicable to a Dominion where that Dominion was still subject to the paramount legislative power of the Westminster Parliament (because it had not yet adopted s 4 of the Statute of Westminster). In the case of South Africa, to which the Statute of Westminster fully applied, assent under paragraph 2 of the preamble did not apply the British law to South Africa or in any way affect succession to the Crown of South Africa. It was simply a matter of courtesy. South Africa had to enact its own law to apply the change to South Africa (as it did). Alternatively, it could have taken the Canadian path of requesting and consenting to the application of the British law to it, as Canada did by way of executive order-in council. This was possible because of the application of s 4 of the Statute of Westminster.
The history of the Statute of Westminster and its application clearly shows that the proposed 2013 approach by the Canadian Parliament of simply assenting to the British Bill will not have the effect of applying the relevant change to the Crown of Canada.
Moreover, s 4 of the Statute of Westminster has now been repealed with respect to Canada (Constitution Act 1982 (Canada), s 53 and Schedule, item 17) and the United Kingdom can no longer legislate for Canada (Canada Act 1982, s 2). It is therefore extremely difficult to see how the UK changes to the rules of succession can apply with respect to the Canadian Crown and how the Succession to the Throne Act 2013 (Can) could achieve that outcome, unless Canada was to revert to its pre-patriation and pre-Statute of Westminster position of being subject to British laws of paramount force.
Conclusion
It is likely that the Canadian Government took the gamble of this approach in order to avoid the hassle of obtaining the agreement of the Provinces while banking upon the likelihood that no one would have the standing or motive to challenge it. Moreover, if the Duchess of Cambridge has a first-born son, it will avoid the problem of having a female monarch of the United Kingdom and a younger brother who becomes the monarch of Canada. Hence, the chances of getting by with such a constitutionally shoddy arrangement are reasonable.
Nonetheless, it shows a disappointing lack of understanding of the Crown and its divisible nature and a willingness on the part of Canadian politicians to sacrifice Canadian independence to avoid having to engage with the Provinces.

Author Anne TwomeyPosted on February 4, 2013