Our Canadian Republic

When I met a group of Australian visitors to Canada recently, they observed that Canada has long flown its own distinctive national flag. Why then, they asked, has Canada not had a national debate on becoming a republic? Australia still uses one of those variants on the Union Jack, but it held a referendum on the monarchy almost a decade ago. True, referendums being what they are, an abolitionist consensus managed to sustain the monarchy in every single Australian state, but still …

I ventured the idea that Canada has been too preoccupied with substantial constitutional wrangles—separation, federalism, an entrenched bill of rights—to become very much engaged with the fate of Elizabeth II and her progeny. But I might instead have recommended to them a recent essay on the British constitution by the young British scholar Adam Tomkins, professor of public law at the University of Glasgow. Tomkins proudly declares himself a republican, but he advises British constitutional reformers not to pay much attention to the queen. The “narrow question of who should be the head of state” is just not that important.

The good health of our constitutional order, Tomkins insists, hardly depends on “the head of state issue.” He thinks we should all be republicans by now, but he dismisses obsession with the monarchy as a “depressingly thin, diluted account of what the republican alternative has to offer.” The task he recommends, the subject of his 2005 book-length essay Our Republican Constitution, is for Britons to pursue the real and serious issues posed by a republican analysis of parliamentary democracy. Monarchy may be the least of the problems.

Britons are republicans? Not, Tomkins hastens to say, George Bush Republicans. Nor IRA republicans. Nor even division-of-powers written-constitution republicans, or even anti-monarchists, necessarily. Tomkins takes us back to the Latin root. Britain’s constitutional order, he declares, is a res publica, a public thing. Republicanism requires popular sovereignty, and popular sovereignty is achieved when the government is constantly accountable to a parliament representing the people, through which the people are able “to contest the doings of government” as Philip Petit puts it. This is not just republican, according to Tomkins. “This is beautiful,” and for two reasons: “because it is democratic” and “because it can actually work.”

Tomkins celebrates the republican principle as expressed in British-style parliamentary democracy as “more suitable and more effective” at defending and implementing popular sovereignty than either the American or European versions of republicanism, and he attacks the fashionable view that we can rely on courts to restrain governments. He is, in other words, that rare species: a passionate advocate for the parliamentary system. He admits from the start that support for British-style parliamentary democracy is a minority view, now generally associated with complacent Victorian superiority. “We just do not seem to like our constitution very much any more,” Tomkins writes. “In the past thirty years, the British constitution has taken a real beating.”

The Canadian constitution has been taking a beating too. “There was a time when the Parliament at Westminster and its Dominion progeny were celebrated … Today, Parliamentary government, in Canada and Great Britain, is scorned” is how David E. Smith, the distinguished Saskatchewan political scientist, begins The People’s House of Commons, his Donner Prize–winning essay on the state of parliamentary government in Canada. Since Adam Tomkins has almost nothing to say about the Canadian parliamentary situation and David Smith has a great deal, let’s look at Smith on parliamentary institutions in Canada before taking up the former’s case that we already have in principle the best constitution in the world and need only apply proper republican values in order to make it fulfil its promise.

Parliament is “scorned” in Canada, David Smith argues, because it has failed “to accommodate in existing constitutional structures attitudes that no longer presume Parliament’s predominance.” Anti-parliamentary attitudes come in two forms, he says: “constitutional democracy,” which means judicial review of political decision making, and “electoral democracy,” meaning initiatives, referendums, recall and all the other techniques of direct rather than representative democracy—the full Manning, in effect.

On constitutional democracy, Smith counsels calm. He concludes that we have already accommodated the courts within Canadian democracy. We have always had judicial review, he notes: the British North America Act was litigated from the start, although mostly on federal–provincial issues. The addition of the Charter in 1982 greatly extended judicial power to review and revise parliamentary acts, but Smith is not persuaded by the extensive literature that decries the pernicious influence of unelected judges. Mostly Smith is confident that the courts’ new role, given by Parliament in the first place, accommodates itself easily into traditional parliamentary democracy. Constitutional democracy “revalues rather than devalues” parliamentary democracy and “intensifies rather than depreciates parliamentary democratic government.” Writes Smith: “It is the role of the court to reinforce values already alive that are central to parliamentary democratic government.”

Smith is more alarmed about the impact of “electoral” or direct democracy. He acknowledges in his title the need for a “People’s” House of Commons, and he agrees that Canadians no longer accept a traditional understanding of parliamentary democracy, which he believes to have been rooted in deference and hierarchy. But he criticizes proposals for electoral democracy as impractical and negative. Changes along the lines of Preston Manning’s Reform Party proposals of the 1990s—which Smith argues were intended to “unite” the people and Parliament and also to separate Parliament from the government—would add uncertainty, make the House weaker, undermine the primacy of the Commons and “enervate the people’s house.”

Smith wants active representation from an empowered parliament. But at the same time he asserts that parliamentary democracy requires a deferential, hierarchical population. Canada has always had a populist tradition, but the current assault on deference and hierarchy, he says, is “qualitatively different from past experience.” For Smith, representative democracy cannot survive without deference. Canadians’ new rejection of deference, he argues, is part of a “hostility to Parliament that goes beyond mere anti-partisanism.”

The Canadian parliament imagined by David Smith turns out to be radically different from the British parliament described by Adam Tomkins. Tomkins evokes parliament as a republican forum rooted in the sovereignty of the people. Smith recognizes that Canadians today insist on the primacy of the people, but he tells us popular sovereignty is a non-starter. In The People’s House of Commons, he repeats over and over that Canadian government is not the people’s government. In Canada in the 21st century, he tells us, “authority comes from the crown … not from the people.” He declares that “sovereignty in Canada rests in the crown and not the people,” that “the heart of the constitution … is monarchy,” that we live under a “monarchical constitution that makes no provision for the people” and that “there is no base for popular constituent power.” In The People’s House of Commons, we the Canadian people seem not to exist, constitutionally speaking. Smith declares popular sovereignty incompatible with parliamentary government.

After this, what a relief for a Canadian and a democrat to return to Adam Tomkins’s republican vision. Frankly, David Smith undermines not just our motive for defending parliamentary democracy, but also our reasons for being Canadian citizens at all. Subjects of the Queen? Seriously? Hell, if that’s the case, Preston Manning wasn’t half radical enough. Canadians will not, do not and should not accept a constitutional order in which subjection to the Crown is anything more than a ritual formula devoid of significance. Canadians’ “scorn” for the kind of constitution Smith describes is no failure of “deference,” but robust healthy citizenship, the natural reaction of any politically aware Canadian.

For anyone who values both parliamentary democracy and popular sovereignty, Adam Tomkins offers reassurance. His assertion that all the “rules of the British constitution are reflective of, indeed based upon, the republican principle of popular sovereignty” applies as much to Canada as to Britain. Clearly we badly need an account of Canadian political practice rooted in this kind of understanding of popular sovereignty, but in the meantime, this examination of British constitutional practice offers clues to where Canadian democrats need to go.

What is the evidence set out by Tomkins that Britain’s parliamentary constitution, far from being some medieval holdover based on monarchical authority and deferential subjects, is a robust form of democracy? In a provocative survey of British constitutional history and philosophy, he reviews how it became established that a British monarch who subverts the will of the people as expressed by Parliament commits treason and will be held accountable, not by the courts but by Parliament. Of the last two kings to attempt such a thing, he shows, Parliament tried, convicted and executed Charles I and deposed James II. It is deeply engrained in British constitutional history that the Crown should be bound as much as any other citizen by the will of Parliament.

Canadians should have the same confidence about our own constitution. Canadians have not put a crowned head on a spike, but as long ago as 1849 a thoroughly undeferential Canadian parliament told a governor general that no matter how much he might dislike the Rebellion Losses Bill (which provided property-loss compensation to rebels as well as to loyalists), it was too damned bad, he had to sign it. Loyalists rioted in the streets and burned the legislative building in Montreal, but the governor general acknowledged legislative sovereignty and signed. Since well before Confederation, in other words, the Canadian head of state has been accountable to the Canadian parliament. The right of the Canadian people to determine their own constitution was then and remains now the basis of our constitutional order. Monarchical formulas survive in both countries, but what Tomkins identifies as the republican order is as secure here as in Britain.

Adam Tomkins is not out merely to defend the constitutional status quo by the ancient orthodoxies of Whig history. A constitution can simultaneously hold republican and monarchical elements, he says, and most of the anti-democratic failings he finds in British government today come from the lingering influence of monarchical principles. The urgent republican agenda, Tomkins argues, is to remove those lingering monarchical and anti-democratic elements that have survived to the detriment of full parliamentary accountability.

Tomkins recommends several steps to reform parliamentary democracy in Britain. One is, yes, abolition of the monarchy. Others include the abolition of all forms of Crown prerogative and a radical commitment to open government and freedom of information. None involve rights charters or judicial review. (“To move away from a political constitution and towards a legal one is a mistake.”) But from the Canadian perspective, his most interesting target for “republican” scrutiny is party discipline, or what he calls “the problem of party.”

David Smith too is vividly aware that the impotence of backbenchers and the four-year dictatorships of majority prime ministers have undermined Canadians’ faith in the parliamentary system. But Smith defends party discipline as “the essence of parliamentary democracy,” indispensable to the functioning of Parliament. He implies that Canadian proposals to reduce party discipline are rooted in our inability to understand how parliamentary democracy really works. Members of Parliament with independent authority are “unimaginable.”

Tomkins can imagine them. Parliamentarians, he declares, must not “allow loyalty to party to obscure or even to obstruct loyalty to Parliament’s constitutional function of holding the government to account.” He therefore proposes, not some mealy-mouthed nostrums about party leaders allowing more “free” votes on insignificant matters, but “the removal of party and of party loyalty from the workings of Parliament.”

Tomkins employs both principles and examples to build his bold case for the pernicious impact of political parties. The principles of parliamentary democracy, he argues, require members of parliament to be able to wield independent authority. When MPs allow parliament to be reduced to monolithic blocs, it is parliamentary accountability itself that they destroy, because a real parliament has two historic functions. One is to put together a government sustained by a coherent majority—and for that party solidarity is useful and important. But the other vital obligation upon Parliament is that it hold government to account. The familiar confrontation between government and opposition, Tomkins urges, cannot be allowed to obscure the other essential dynamic, the one “between Crown and Parliament, between front bench and back, or between minister and parliamentarian.”

For observers steeped in Canadian parliamentary practice, where party leaders summarily eject from influence and probably from the House of Commons itself any MPs who show any hint of disloyalty by either voice or vote, the image painted by Adam Tomkins of a dynamic relationship between ministers and backbenchers must be almost incomprehensible. Yet Tomkins is at pains to demonstrate that dynamic at work in contemporary Britain. This law professor, scathingly sarcastic about the repeated and almost inevitable failures of British courts and British laws to restrain unconstitutional actions by British governments, offers vivid accounts of British MPs who regularly put their parliamentary authority ahead of their party loyalties to negotiate important changes to laws proposed by headstrong governments.

Tomkins cites the British anti-terrorism law passed in the wake of September 11, 2001. He thinks it is terrible legislation, brutal and nasty and rushed through by a majority government in a climate of panic. But he notes that, even under those circumstances, Parliament sought independent testimony on the matter, formed independent judgements and imposed significant changes on the bill the government wanted. He then describes how Prime Minister Tony Blair’s decision to involve Britain in the Iraq war in 2003 was opposed in Parliament by scores of his own backbenchers, who forced a parliamentary vote on the decision and voted against it. Labour backbenchers also secured changes to fundamental aspects of Blair’s health and education policies by threatening to withdraw their support. (Even after that, the bills got barely enough Labour votes to scrape through the House, despite a Labour majority of more than 160 seats.) Tomkins argues that such displays of parliamentary independence show that even though Britain’s parliament is hardly what he would want it to be, it can still provide the “political accountability and contestatory democracy” that republican democracy requires.

If British backbenchers and parliamentary committees can negotiate with governments, why can it not happen here? Tomkins, who would like the independence of British MPs to increase radically, has nothing to say about their ineffectual Canadian counterparts. Smith acknowledges the difference in British practice, but explains it away by noting that the British house is larger and its MPs have safer seats and longer careers. These hardly seem like compelling explanations for the frequent mass defections of British MPs, not on trivial matters but on crucial issues.

In fact, there is one profound structural difference in the situations of British and Canadian MPs. In Britain, as in almost every parliamentary democracy in the world except Canada, MPs hire and fire their party leaders. Party leaders are caucus members, subject to caucus pressures rather like any other member and constantly under threat of removal if substantial factions of MPs lose faith in their leadership or reject their policies. In recent years British parties have started to drift toward the Canadian example, but it is that underlying power over the survival of the leader (and the naming of a new one) that has given British MPs, and particularly blocs of MPs, the authority to negotiate the terms of their support for their own party’s actions and to maintain the dynamic tension between government and backbench.

In Canada, party leaders have no such accountability. Stephen Harper and Stéphane Dion are party leaders not because any MP or bloc of MPs supports them, but because their supporters across the country purchased more votes (“memberships”) than those of rival candidates in extra-parliamentary leadership contests. In Canada we take it as given that a leadership process based on the buying and selling of thousands of party memberships is “democratic.” But as long as our party leaders are selected by extra-parliamentary processes, they are not accountable to their own caucuses, and it will be impossible for MPs to hold them to account—or for government backbenchers to bargain with ministers over legislation and policy. A key mechanism underlying the accountability of government to parliament is lost.

The constitutional implications of leadership processes and their role in undermining parliament never come up in David Smith’s synthesis of current Canadian thought about parliamentary government, and it seems safe to say they simply are not on the agenda of political thought in Canada. But if Adam Tomkins is right that political accountability is vital and parliament is the forum that must provide it, a process that allows parliament to be held hostage to extra-parliamentary forces is not just undemocratic but anti-democratic. If elected representatives cannot influence their own leaders, the whole edifice of popular sovereignty crumbles.

Tomkins declares that political control of government, achieved through parliamentary democracy on the republican, popular-sovereignty model, is beautiful. How urgently do we need such a republican reimagining of Canadian constitutional practice? When the October 2008 federal election was called, sober, sensible commentators argued that Governor General Michaëlle Jean should, on her own initiative, refuse to grant the dissolution Prime Minister Harper sought. (Tomkins would not be surprised that a law intended to put a bridle on government once again proved ineffectual.) One can sympathize with their desperate wish for something to thwart a prime minister’s manipulation of Crown prerogative for partisan advantage. But 400 years of experience should have established that the Crown cannot be permitted to take independent measures, ever. A republican understanding of the Canadian constitution would suggest that the decision rested squarely with Parliament. If Parliament did not want an election, all it needed to do was withdraw confidence from the government and indicate there was an alternate government that it was prepared to support. But Canadian MPs are unlikely to act unless Canadians tell them we expect them to. David Smith’s study does not give much hope that that day is coming soon.

Books Consulted

The People’s House of Commons: Theories of Democracy in Contention
David E. Smith
University of Toronto Press
192 pages
9780802092557, hardcover
9780802094650, softcover

Our Republican Constitution
Adam Tomkins
Hart Publishing
156 pages, softcover
ISBN 1841135224