“British Deputy Prime Minister Nick Clegg pledged Tuesday that the law on Royal succession will be changed at the “earliest opportunity” and that “whether the baby is a boy or a girl, they will have an equal claim to the throne.”
Clegg announced that the U.K. and the other 15 Commonwealth nations have now formally agreed to change their laws.
Clegg also said that a Succession to the Crown Bill would be introduced in Britain’s House of Commons as soon as the parliamentary schedule permits.”
- Royal succession laws set to be changed, The Associated Press as published by CBC.ca, Last Updated: Dec 4, 2012 3:29 PM ET
British Deputy Prime Minister Nick Clegg has confirmed that the British Government is going to change the line of succession as quickly as possible. My question is simple: when is the Canadian Government going to do the same thing?
For those who may not know, a change to the line of succession is a change to the Office of the Queen. Just think about it. The office of the Queen is not defined by Canadian Law. It is and always has been defined by tradition, common law and British Law. The powers and responsibilities of the British Monarch are set out in laws like the Bill of Rights and Coronation Oath Act of 1688, the 1701 Act of Settlement, the 1706 Act of Union with Scotland, the 1689 Bill of Rights and the Royal Marriages Act 1772. For, according to BBC and CBC, these laws are just some of the acts that have to be changed to allow the British Crown to pass to the first born child, regardless of gender.
However, these laws also form the basis for the Canadian Crown and here is where the trouble begins. For, while the Constitution Act of 1867 defines the role of the Queen, it does not describe all of her powers. In many places, the Constitution Act of 1867 simply states that the powers of the new Canadian Parliament shall not exceed the powers of the “Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland.” Or put differently, no one thought about defining the Royal Line because the Constitution Act of 1867 was not intended to give the new Dominion its own form of sovereignty. Canadians, in 1867, knew that they were loyal subjects of the British Crown. Therefore, defining the Crown was redundant.
The same thing was felt in 1982. For when the Constitution Act of 1982 was written, no one thought that it was necessary to define the Crown’s line. Instead, they added a clause to make it exceedingly difficult for future First Ministers to change the Monarchs role. Or put differently, according to the Constitution Act, 1982 section 41 (1), “An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issues by the Governor General under the Great Seal of Canada only where authorized by resolution of the Senate and House of Commons and of the legislative assembly of each province:
a) The office of the Queen, the Governor General and the Lieutenant Governor of a province;”
Without any Canadian definition of the Crown, the British definitions matter. Accordingly, it is my contention that the 1701 Act of Settlement still determines who is next in line for the office of the Queen. Furthermore, if the 1701 Act of Settlement is still the law of the land; it was given Constitutional force by the declaration of the Constitution Act, 1982. Therefore, within the Canadian Context, to change the 1701 Act of Settlement, one needs the support of every Premier and the Prime Minister. The same must be true of the Royal Marriages Act 1772. Consequently, in 1982, when Canada took on the right to amend our own Constitution, it also took on the right and responsibility of determining the line of succession of the office of the Queen. Therefore, the Queen of the Commonwealth or British Empire became the Queen of Canada.
With this all being said, it is up to the Canadian Parliament to create a new line of succession for Canada. However, very little has been done on this. I know this because one can search the bills before either Chamber of the Canadian Parliament. I could not find an amendment. So the question is when will it be presented before the House?
The Government might think they could get away with just having the Canadian Privy Council approve this change. However, if anyone should challenge that decision, it would clearly be unconstitutional. Once such a decision was found, Canada could find itself with its own unique Crown: A Crown which would be based on a male Primogeniture line.
To illustrate the problems this could cause let me give you a simple example. If the Her Royal Highness the Duchess of Cambridge were to have a girl and then have a boy and if Canada did not change its line of succession properly, it is likely that the boy would become the King of Canada. The problem is that the girl would become the Queen of the other fourteen Commonwealth countries.
Now, the truth is that Stephen Harper probably does not want to have to amend the Constitution. For, firstly, he would have to meet the provincial Premiers. Given that he does not have good relations with most of the Premiers, he probably does not want to have to deal with them. Furthermore, with two legislatures that have minority governments, one would have to guess that there would have to be some negotiation to accomplish such a simple task. All of this analysis does not even bring up the simple point that any province could use this process to highlight any issue they want.
This could explain why the Harper Government has not brought it up; but it does not explain why we have not? Why has the Liberal Party not asked the Government how they intend to allow for the Canadian Crown to be consistent with our other Commonwealth Partners? This is a governance question. This is a question of the rule of law and the accuracy of our law. This is a question of internal governance and international relations. It tells us how we treat others and what we believe in. With all of this being said, we – the Liberal Party – should be the first to ask one simple question: Are we going to amend the Constitution like the British have?