Canada, Succession to the Throne – and an oddity

Anne Twomey has pointed out on the University of Sydney’s excellent Constitutional Critique that the Canadian Government,

“instead of enacting changes to the law of succession as it applies in relation to the Crown of Canada, has … 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”.

She notes that s 2 of the Canada Act 1982 provides that

“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”

and contends that it is “abundantly clear” that a simple assent to a UK law that changes succession to the Throne of the United Kingdom “does not and cannot affect succession to the Throne of Canada”. The reason for this rather strange approach to the problem, she suggests, is “fear of dealing with the Provinces” and getting embroiled in the mechanism provided by s  41 of the (Canadian) Constitution Act 1982, under which 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.

In short, what would happen if, in the hope of provoking a constitutional crisis, the Assemblée Nationale de Québec said “Non“? In Anne Twomey’s view,

“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’.”

Evidently, however, the Government of Canada does not wish to push its luck on the point.

But is the mechanism that the Government has adopted totally foolproof? Bill C-53 as introduced into the Canadian House of Commons is very short: shorn of its Preamble the English text goes like this:

“An Act to assent to alterations in the law touching the Succession to the Throne

1. This Act may be cited as the Succession to the Throne Act, 2013.

2. 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.

3. This Act comes into force on a day to be fixed by order of the Governor in Council.”

Which is a slightly odd piece of drafting, given that the Bill as introduced into the House of Commons in Westminster has already been subjected to an (admittedly tiny) amendment – in clause 3, page 1, line 20 of the Bill as introduced, after “descendants” to insert “from the marriage” – which is why an “as amended in committee” version was printed by the Commons.

So if the Parliament of Canada passes Bill C-53 in the form in which it has been introduced, to precisely what alteration of the law will it have assented? The “bill laid before the Parliament of the United Kingdom” – which has now been superseded by the reprinted bill as amended – or the Succession to the Crown Act 2013 when it finally hits the statute book? Or would Canadian constitutional lawyers simply argue that “The alteration in the law touching the Succession to the Throne” had not been affected by the amendment and that the point was irrelevant? Alternatively, does the Canadian Government propose to rewrite the only effective clause of Bill C-53 to take account of the final form of the Westminster legislation once it receives Royal Assent?

Very likely daft laddie questions (and questions that don’t have a whole lot to do with “law and religion” anyway): but these are exceedingly sensitive matters – and on an issue with such complex ramifications you can’t be too careful.