Canadian Politics: The Principle of Parliamentary Supremacy Within the Canadian Constitutional System
Canada’s Constitution is the supreme law in Canada, and it’s a combination of codified laws and uncodified customs and conventions. Canada’s Constitution is what actually defines the entire system of government in Canada, as well as the civil rights of all Canadian citizens. Canada’s constitutional system has a long and complex history, and in reality Canada’s colony obtained its first full constitution in the Constitutional Act in 1791, much of the actual structure of the government in general was created by this. Of course, with the introduction of the Canada Act and the accompanying Charter, much of the constitutional law in Canada has changed, as the Charter has shifted the focus of the Charter on Individual and Collective Rights by Canadians. There are many things which are of great importance and relevance within and in relation to this framework. The principle of parliamentary supremacy within the Canadian constitutional system, for instance, is one of these matters, and is in fact considered as being one of the most major and relevant of all. The aim of this paper is to discuss the actual principle of parliamentary supremacy within the Canadian constitutional system, the basic history of the constitutional system itself, as well as with every other main and related problem. By doing so, we will be able to gain a far more informed and knowledgeable overall understanding of this subject. In the following, this is what will be disserted on.
A country’s constitution is what defines the powers and the limits of powers that can be exercised by the different levels and branches of government, and although there is actually no single constitution in Canadian law, the Constitution Act – a part of the Canada Act of 1982 – finally ‘patriated’ or brought home from Great Britain that of Canada’s constitution as created by the BNA Act. “The Constitution Act declares Canada’s Constitution to be Canada’s supreme law, and contains some 30 acts and orders that form part of it. This reaffirms the dual system of law in Canada by specifying that provinces have exclusive control over land and civil rights. It also concerns Indigenous rights, issues relating to the colonial occupation and use of the land by Aboriginal peoples, treaty rights, Crown agreements and specific groups of Aboriginal people Aboriginal people” (Department of Justice Canada, 2007). The Canadian Constitution sets out the basic and most definable principles of democratic government in the country when it explains the powers of the three different branches of government, which are: executive, judicial and legislative. “The Queen retains the executive power in Canada … The legislative branch is in Parliament, consisting of the House of Commons, the Senate and the Monarch or her representative, Governor General … and … The role of the judiciary is to interpret and apply the law and the Constitution and, in all cases, to provide objective decisions, if they involve the public Policy, such as criminal proceedings, or private (civil) policy, such as a contract dispute “(Justice Canada, 2007).
Parliamentary Supremacy is a principle which is used largely within the Canadian constitutional system, and it is one of great importance and significance not only in regards to Canada, but in fact the entire world. Basically Parliamentary Supremacy is considered as being “Parliament’s right to make whatever laws it chooses. It is derived from the popular election of MPs (according to the concept’s originator, Dicey). Therefore, whether Europe should usurp it may be challenged “(Grant, 2000). Furthermore, the principle itself has its origins in the Bill of Rights, and the modern view on the subject of Parliamentary Supremacy has quite largely been shaped by the writings of author John Austin, who considered that “Parliament was the supreme rule-giver, with no legal limitations on its authority” (Grant, 2000). The actual origins of the principle of parliamentary supremacy are rather controversial, as some claim that it was in England where it first originated, in the early 16th century, when the Parliament asserted the supremacy of statute over the church, while others argue that it instead originated in the 17th and 18th centuries when Parliament asserted the right to name and dispose of a monarch. The actual doctrine of Parliamentary Supremacy can in fact be generally summarized in three points, which are as follows: “Parliament can make law concerning anything; no Parliament can bind its replacement (that is, it can not pass a law that can not be altered or repealed by a future Parliament); and no body can amend or reverse a law except for Parliament law passed by Parliament” (Wikipedia, 2007).
One of the most central and major components of Canada’s government all in all is that of its Parliamentary system, and it is this system which truly frames the overall relationship between Canadian citizens and their political leaders, as well as the way in which the laws are passed, and the organization and the authority of key government positions and institutions. The Parliament of Canada is the legislative branch of Canada and, according to Section 17 of the 1867 Constitution Act, Parliament is composed of three components: the King, the Senate, and the House of Commons. The lower house, which is the House of Commons, is the most dominant branch of the Canadian Parliament overall and the upper house, which is the Senate, rarely opposes the will of the other Chamber. In regards to the composition of the Parliament of Canada, the Queen of Canada (presently Queen Elizabeth II) is one of the three component’s of Parliament. “The duties of the sovereign are generally entrusted to the Governor General (present-day Michaelle Jean), who is appointed by the Sovereign on the advice of the Prime Minister of Canada. Governors General serve at the pleasure of the Queen, but usually for an average period of five years. Though in principle the Queen and Governor General have enormous powers, in practice they seldom exercise them. Alternatively, both perform ceremonial duties, most often exercising political powers only on the recommendation of the Prime Minister and the Cabinet “(Brooks, 2006).
The Canadian Parliament remains as being a ‘paradoxical’ actor because the Canadian constitutional mythology of ‘parliamentary supremacy’ seems truly belied by that of the ongoing disappointments of a much lesser ability to exert control or to effect policy change, and this is especially so in regards to more traditionally executive-dominated areas. It is a known fact that Canadian governments, or at least those that have been involved with the usual state of affairs, continue to exercise an at least relatively free hand when it comes to deciding how they see fit and as well to ignore parliamentary advice whenever they choose to. Most governments from time to time will tend to find it useful to seek parliamentary support for their international policy positions. “But on its own, parliamentary participation and advocacy in relation to international issues and objectives may ultimately count for little in determining state actions and budget allocations, notwithstanding substantial evidence of public support for a more engaged internationalism combined with serial episodes of enthusiasm for ‘democratizing’ reforms. Parliamentary and public inputs have generally not had much impact on the organizational means and other instruments of foreign policy implementation” (Grant, 2000).
Furthermore, Canada’s parliament in particular has often times been overlooked as being a foreign policy actor, and this is largely because, while its frailties are frequently noted, there is still the fact that its actual work has typically and basically failed to receive much substantive media, or academic, attention. It is now considered, as occurrences have taken place in this regards over time, that not only should we be more careful as to what it is that we wish for, but as well “some also decry what they see as a tendency to substitute increasingly wishful projections of Canadian ideals for genuine debates around the real choices facing policymakers in advancing Canadian interests abroad” (Grant, 2000). This truly goes to show the actual and overall importance of the Parliamentary Supremacy ideal in Canada, as well as how it has been one of the most positive aspects and components within the Canadian constitutional system overall.
However one might ask how it is that the theory of democratic accountability through a parliamentary system of government can so easily be discounted when it really comes down to that of the serious business of the state’s official formulation of foreign policy. There are, of course, many faults that lie within the term Parliamentary Supremacy, and for all of these faults, “foreign affairs had entered into parliamentary discussions to a greater and more organized extent than was the case during the supposedly ‘golden age’ of Pearsonian diplomacy. Even so, the verdict of some on this period remains dismissive” (Brooks, 2006).
There are many possible effects of this principle which are posed by federalism and the Charter of Rights for instance, and in particular regards to the Charter of Rights, there are many connections which need to be discussed here, and for one, Supremacy of Parliament was actually one of the most main and major characteristics of the British constitution applicable to Canada, and nothing was beyond its capacity to legislate on, as Parliament was legally deemed to have sovereign and uncontrollable authority in regards to the making, amending, and repealing of laws. The Canadian Charter of Rights is a bill of rights which is “entrenched in the Constitution of Canada. This is the first part of the Constitution Act of 1982. By the policies and actions of all levels of government, the Charter protects the political and civil rights to Canadian citizens. This aims at unifying Canadians around a set of principles embodying certain rights “(Wikipedia, 2007). One of the most notable effects of all of the adoption of the Charter was to greatly expand the overall scope of judicial review, as the Charter is much more explicit and detailed in regards to the respect which it guarantees to the rights and the role of judges in enforcing them than was the Bill of Rights, which preceded it. “Faced with violations of Charter rights, the courts have broken down statutory federal and provincial legislation and regulations or portions of the laws and regulations, as they did when Canadian jurisprudence focused primarily on federalism issues. However, the Charter granted new powers to the courts to reinforce remedies that are more creative and to exclude more evidence in trials. Such powers are greater than what was normal under common law and a government system focused on the mother country of Canada, the United Kingdom upon nothing else but – Parliamentary Supremacy.
Looking back on it all, one can quite easily see that there are many pluses that were often not sustained or were rather offset by certain factors which diminished its long-term effect, and ‘ the first step of the Summer 1985 study, for example, on whether Canada should support the Reagan Strategic Defense Initiative (SDI), the original ‘Star Wars’), and on whether Canada should enter into bilateral free-trade negotiations with the U.S. (following on the affirmative recommendation of the Macdonald Commission within the Trudeau government had created) – did attract high media/public interest and engagement. Sadly, this then dropped off for the ensuing general review as the most important issues on which pending government decisions had already been taken “(Grant, 2000). Responsible government in Canada, under which the executive must have the support of the legislature on major policy matters, appears to have been flushed. The House of Commons, soon to be followed by the Senate, has passed a bill requiring that Canada meet its obligations under the Kyoto Protocol. Unless the government, i.e. the prime minister, advises the Governor General not to sign the bill she will do so and it will become law (there is a digression here–see after the break). It needs to be known by all that as a country, Canada is in the presence of an absurdity under the Westminster system. Parliament (legally the House, the Senate and the Governor General) will have approved a bill that the executive (the Cabinet or, more accurate in current circumstances, the prime minister) will refuse to implement. In other words the executive government will have chosen not to be responsible to the legislature. That will be the de facto end of our constitution, based in this case on the convention of precedent. As I see things the government had no choice but to consider this vote as one of no confidence. It has now lost the confidence of the House on an important issue of policy, without which it has no constitutional ground for remaining in office. Prime Minister Harper should immediately ask the Governor General to dissolve Parliament and call an election. This is not a simple matter of partisan politics; it is a matter of the fundaments of our political reality. So basically, if the prime minister does not act as suggested above he is a renegade in power. Our constitution will have been irrevocably changed. Parliament, as with the Cabinet, will become little but a focus group.
There are many different recent developments which have taken place with the issue of Parliamentary Supremacy within Canada, and one of the first things that should be known in this regards is that of how Parliamentary Supremacy is able to prevent judicial review of primary legislation passed by Parliament. However, in the late 20th and 21st centuries, the actual and overall idea of Parliamentary Supremacy underwent an incredible erosion in practice in four directions in particular, which are: “First, the devolution of power to regional assemblies in Scotland (Scottish Parliament), Wales (Welsh Assembly) and Northern Ireland (Northern Ireland Assembly)…Secondly, the institutions of the European Union, in particular the The European Court of Justice (ECJ) states that it has the right to exercise judicial review over British legislation. In this case, since the 1972 European Communities Act, an adverse finding by the ECJ that a UK law is incompatible with the EC Treaties immediately annualises the law ‘ECA’ provides that European Community law is supreme in the United Kingdom…Thirdly, the European Convention on Human Rights and the incorporation by the Human Rights Act 1998 of the European Convention a finding of a breach of Convention rights by the ECHR does not automatically annul the law: in practice, the Government is bound to implement the ECHR’s decisions…Finally, the increasing use of referendums. In fact, a referendum means that the electorate determines whether to pass law, not Parliament. In the final analysis, Parliament could still reverse a decision made by referendum, but this seems unlikely to ever happen” (Lefroy, 2006).
As we have seen from the information and statistics that have been shown here, there is factual proof which can be used to back these opinions, particularly in regards to the sovereignty of Parliamentary Supremacy in Canada. After all, in its constitutional application in Canada, the actual concept of sovereignty is addressed, first, to the specific relations between the different institutions of government, and, in Canadian constitutional law today, the concept of sovereignty instead presents two very distinct and different problems. The first problem is one which relates to that of the actual federal character of the Canadian constitution, as well as the division, and, for these purposes in particular, of constitutional law making competence between the central, federal, and regional government. Then, the second problem is in regards to how there is a continued legal applicability and relevance of the ‘received’ English notion of the sovereignty of Parliament “in an era when, with the enactment of the Canadian Charter of Rights and Freedoms in 1982, the constitutional charter now entrenches certain fundamental, ‘higher law’, principles that are supposed to limit all law-makers” (Lefroy, 2006).
From this review we can conclude many things, several which are of particular importance, namely the fact that Parliamentary Supremacy is a principle within the Canadian constitutional system which is absolutely essential and significant, and that the results that are caused from this principle are positive and beneficiary to the constitutional system overall. As well we have been able to see that there are many different effects on this principle that have been posed by different factors, such as federalism, the inclusion of the Charter of Rights, and the inclusion of the Notwithstanding Clause in the Charter of Rights document. The term Parliamentary Supremacy is one of great complexity and it is one which is also quite widespread, however it is certainly becoming much more of an acknowledged issue in Canada, as well as in the rest of the world for that matter. Parliamentary Supremacy is made different in each separate location, and in regards to Canada, as we have seen there are many unique and outstanding differences that lie within the matter. The principle of Parliamentary Supremacy is one which is truly complex and dynamic, and, as has been thoroughly addressed and discussed here, one of great efficiency and effectiveness overall. It is truly one of the most major and significant principles of all within the Canadian constitutional system, and the differences that have been made in regards to it are elaborate and incredible.
- Brooks, Stephen. Canadian Democracy: An Introduction. Toronto: Oxford University Press, 2006.
- Department of Justice Canada. The Canadian Constitution. 2007. 5 April 2007 https://www.justice.gc.ca/en/dept/pub/just/05.html
- Grant, George. Lament for a Nation: The Defeat of Canadian Nationalism. Montreal: McGill-Queens University Press, 2000.
- Lefroy, A. H. F. Canada’s Federal System Being Treatise on Canadian Constitutional Law Under the British North America Act. New York: Lawbook Exchange.
- Wikipedia. Parliamentary Sovereignty. 2007. 5 April 2007 https://en.wikipedia.org/wiki/Parliamentary_sovereignty