Dear Professor Russell,
cc Duff Conacher
Summary:1) Given the de facto lack of observance of the de jure written text of our BNA/Constitution 1867, should we not first concentrate on enforcing compliance with the spirit and letter of the Highest Law of the Land?-- Especially, as you explain, when we consider that the motivation in both New Zealand and the UK to initiate a "Cabinet Manual" was the reality/apprehension of perpetual-hung/ minority-governmentLegislative Houses. 2a) Considering what we know about Parliaments and Westminsterly things, what level of Executive, Legislative and/or Imperial "agreement" should have been required in 1940 to Authorize the re-styling and amalgamation of the Executive Power's Office of the Clerk of the Privy Council with the Legislative Power's Office of the Cabinet Secretary via Order in Council P.C.1940-1121?-- Especially in the absence of both a Clerk of the Privy Council (Lemaire had retired Jan 1/40) and a Governor General (Lord Tweedsmuir died suddenly in Feb/40)2b) Should agreement in 1940 been similar to 50%+1 or 66.7% in the 2 Houses?; or 7/50? or 100% of the provinces? - or did that magnitude of change actually require an amendment to the BNA?-- Especially, since this temporary, wartime, emergency manoeuvre was most-certainly a "change" to the Office of Governor General (de facto stripping the GG of Her/His constitutionally-entrenched, sworn-for-life, institutional memory-bank of independent advisors), and,-- particularly when we consider that this Order in Council has never been ratified/validated/approved/re-visited by a committee of our One Parliament, nor by Legislation, nor by Standing Order, nor by Royal Proclamation etc etc. -- in fact it's impossible to find this "game-changer" on the Canada or Justice websites -it's only obtainable by special request from the Archives (see att .pdf)
Sir,
I have studied your superbly easy-to-read exhortation to adopt a Cabinet Manual or "Consolidation of Guidelines" concerning the unwritten, Westminster-like traditions, customs and parliamentary conventions available for use/potential-abuse-through-
I am also cc'ing Duff Conacher - he too is advocating a "written set of rules for the PM & PMO" and I hope your paper and backgrounders from the PPF's Cabinet Manual in Canada Project can assist him.
I agree wholeheartedly with your team's project to establish a "Cabinet Manual" for Parliamentary procedure and feel it will be truly invaluable if 1) we ever/eventually adopt a proportional representation electoral system or if 2) our regionally/ ideologically, splintered opposition parties cannot coalesce into a critical mass of policies and/or personalities to balance the PMO/PCO juggernaut-of-today.
The reading prompted me to examine the New Zealand 1986 Constitution and the Letters Patent Constituting the Office of Governor-General of New Zealand 1983 (as amended) and the NZ The Treaty of Waitangi -1840 together with a quick scan of their Treaty of Waitangi Act 1975.
It appears that the Realm of New Zealand also enjoys a "similar in principle" system as sovereign nation, in a Constitutional-Monarchy format with an integral democratic element.
The many ways our foundational 1763 British Proclamation and New Zealand's 3-clause, Treaty of Waitangi of 1840 vary is also important (ceded by Chiefs vs Spoils of War) but not my focus today.
It seems to me the New Zealand governance model's "similar principles" are as different from Canada's as Canada's are from the UK - and vice versa all around.
I take it from my 2 hour study that New Zealand: is a unitary state; has been termed a Dominion in the past, but describes itself as a Realm; is a member of the Commonwealth; did not sign the Statute of Westminster 1931; does not have an Upper House and that the Maoris play a vital role in land use and development of Crown assets.
The NZ 1983 Letters Patent contain no option for their (hyphenated) G-G to withhold Royal Assent, to Reserve Assent for Signification, or for the Disallowance of Bills by the Monarch-in-Council.
The NZ Governor-General also seems to not hold the distinct right to act "as an individual" (ie without advice and/or Consent of the Queen's Privy Council for Canada) as our BNA/Const 1867 stipulates and emphasizes by differentiating the two roles our G.G. plays in s.12 vis-a-vis s.13.
Our Constitution then particularizing the restricted "Governor General in Council" role in ss.58, 67, 90(see ss.56&57), 93(3), 93(4)(three times), 103, 120, 131(twice), 143, and in Footnote (50)(four times) re: Manitoba Education.
If you'll allow me a digression that I feel is related to our topic -- your references to NZ's fundamental laws led me to a wonderful surprise and, notwithstanding all the above-mentioned exclusions/differences-of-
V. Every person appointed to fill the office of Governor-General shall, before entering on any of the duties of the office, cause the Commission appointing him to be Governor-General to be publicly read, in the presence of the Chief Justice, or some other Judge of the High Court of New Zealand, and of Members of the Executive Council thereof (emphasis added)VI. Our Governor-General shall, immediately after the public reading of the Commissionappointing him, take—(a) The Oath of Allegiance in the form for the time being prescribed by the law of New Zealand; and(b) The Oath for the due execution of the Office of Governor-General in the form following:I, [name], swear that, as Governor-General and Commander-in-Chief of the Realm of New Zealand, comprising New Zealand; the self-governing states of the Cook Islands and Niue; Tokelau; and the Ross Dependency, I will faithfully and impartially serve Her [or His] Majesty [specify the name of the reigning Sovereign, as thus: Queen Elizabeth the Second], Queen of New Zealand [or King of New Zealand], Her [or His] heirs and successors, and the people of the Realm of New Zealand, in accordance with their respective laws and customs. So help me God. (emphasis added)which Oaths the Chief Justice or other Judge in whose presence the Commission is read is hereby required to administer.
Two points on this tidbit of new-to-me information:
1) the G-G of New Zealand is "responsible for" (although not truly "accountable to") the people of the Realm (not in Canada - Pity) and,
2) the Rules of the Game concerning the NZ G-G's mandate, authority and powers are "proclaimed" regularly - not hidden away and ignored as we do here (another Pity).
My guess is that after a public reading of our GG's 1947 Letters Patent, more than just one small child would shout from the sidelines "But Mommy, we don't do it that way in practice - How Come?"
Perhaps this is fundamentally-why the BNA/Constitution 1867 is not studied in schools in much depth (nor Parliamentary process in Law Schools, as you mention) and pragmatically-why the Letters Patent 1947 (nor the Executive Powers- Part III ss. 9-16) are never read aloud as a PM or GG are sworn into Office.... I mean practically, why ask for trouble, when no one's paying attention to THE RULES anyway?
Digression over, back to the Cabinet Manual.
While NZ's online Cabinet Manual is an excellent base for a public Guideline for Canadian Government operations/procedure (as is the UK version) the differences in the three "Similar in Principle" constitutions will dictate that our "rule book" is uniquely Canadian too.
My biggest concern (my bias/my passion) is that given the de facto lack of observance of the de jure written text of our BNA/Constitution 1867, should we not first concentrate on enforcing compliance with the spirit and letter of the Highest Law of the Land?
-- Especially, as you explain, when we consider that the motivation in both New Zealand and the UK to initiate a "Cabinet Manual" was the reality/apprehension of perpetual-hung/ minority-government
Specifically, considering what we know about Parliaments and Westminsterly things, what level of Executive, Legislative and/or Imperial "agreement" should have been required in 1940 to Authorize the (re-styling and) amalgamation of the Executive Power's Office of the Clerk of the Privy Council with the Legislative Power's Office of the Cabinet Secretary via Order in Council P.C.1940-1121?
-- Especially in the absence of both a Clerk of the Privy Council (Lemaire had retired Jan 1/40) and a Governor General (Lord Tweedsmuir died suddenly in Feb/40)
Should agreement in 1940 been similar to 50%+1 or 66.7% in the 2 Houses?; or 7/50? or 100% of the provinces? - or did that magnitude of change actually require an amendment to the BNA?
-- Especially, since this temporary, wartime, emergency manoeuvre was most-certainly a "change" to the Office of Governor General (de facto stripping the GG of Her/His constitutionally-entrenched, sworn-for-life, institutional memory-bank of independent advisors), and, particularly when we consider that this Order in Council has never been ratified/validated/approved/
Yours truly,
rce
Quite promptly, the good professor replies:
Dear Robert
Good to hear that you support the proposal to consolidate in a publicly accessible and politically consensual manner the principles of Canada's system of parliamentary government. That is my main focus these days. I dont think your argument that the text of the Constitutional Act, 1867 was violated by the 1940 o-i-c is very strong.
Peter Russell
Good to hear that you support the proposal to consolidate in a publicly accessible and politically consensual manner the principles of Canada's system of parliamentary government. That is my main focus these days. I dont think your argument that the text of the Constitutional Act, 1867 was violated by the 1940 o-i-c is very strong.
Peter Russell
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