From: grayt@Software.Mitel.COM (Tom Gray)
Newsgroups: can.politics
Subject: Re: god save your queen
Date: 11 Aug 92 14:48:39 GMT
Distribution: can
Organization: Mitel. Kanata (Ontario). Canada.

In article <1992Aug9.085048.7533@uunet.ca> smd@uunet.ca (Sean Doran) writes:
:
:In the timeline of events in 81-82, it is worth remembering Jan. 30,
:1981, when the Select Committee of the House of Commons in Britain
:(the Kershaw Committee) reported that "Westminister cannot act as a
:mere rubberstamp on all requests coming from the Parliament of Canada
:[...] the Queen cannot agree to every request made by the Government
:of Canada [...]  conflicts must be resolved in [the British]
:Parliament", and only if it was satisfied that the request is seen to
:convey "the clearly expressed wishes of Canada as a federally
:structured whole".

Does or did the ruling of the Kershaw committee have any effect in
Canada. The event which scuttled Trudeau's attempt to unilaterally
patriate the constitution was the decision of the Supreme Court
of Canada. Trudeau had told the UK parliament that their only
choice in the matter was a Hobson's choice. They could pass
the patriation bill or they could hold their noses and
pass the patriation bill.

:
:This was pretty much the beginning of the Nouveau Republique movement
:in the Liberal Party of Canada.  Trudeau likened the report of the
:Kershaw Committee to _The Empire Strikes Back_, and there is a neat
:cartoon in the LPC archives showing Sir Anthony Kershaw as Darth Vader
:choking the life out of Responsible Government.
:

Kershaw's opinions became moot with the decision of the Supreme Court.
They are now very moot since the constitution is patriated.

An incidental aside is the fact that the UK government retained
juridiction over the Canadian constitution at the request of thwe
Canadian government. With the passage of the Statute of Westminster
the UK recognized the independence of the self-governing states
of the Empire.  However since the politicians in Canada could not
decide on an amending process (more things change), they requested that
the UK retain the right to amend the Canadian constitution until
such a process was defined (Victoria formula and all that).

:I am waiting with bated breath for the correspondence about the recent
:swamping of the Senate that has been asked for by Senators Eymard
:Corbin and Royce Frith.  Rumour has it that there are documents which
:indicate that despite the fact that Ramon Hnatyshyn (our erstwhile
:Governor-General) went to London, it took six days to reverse a "No,
:the Queen will not appoint the Senators" that the law officer at
:Buckingham Palace and another politician (identity unclear) offered
:as a reply.  The Senators want to see all the correspondence between
:the governments of Canada and the U.K., and between Messrs Mulroney
:and Hnatyshyn and Hnatyshyn and the Queen.  So far, brick walls and
:delays, although no doubt we'll know what happened soon enough.
:

Now that it has been accepted that the PM has the right to
appoint these Senators, why does this show that the Queen
can ignore the advice of her Canadian ministers. If the
events occurred as you describe them, it only emphasizes
that the Queen is bound by this advice.


:Note that these are all Constitutional issues, and that this is really
:the only time that the Queen has ever really been involved on a
:political basis.  However, given the foot-dragging in the past, and
:the occasional "No", it would not surprise me to see the Queen resolve
:a conflict between the Canadian and British governments by siding with
:the Brits, even if that provoked another public disagreement in Canada.
:

Indeed! How would she do this?

:The Queen does have very real powers, and while she does generally use
:them only when told to by the Canadian Parliament or through the
:Governor in Council, I have little faith that the traditions are
:safeguards enough to protect Canadians from the advice of British
:politicians and lawyers should we ever face a serious Constitutional
:crisis.
:
:Given the way things are going Constitutionally now, this bears much
:thought.  Is it safe to have a monarch who may have a conflict of
:interest such that she or he does not follow the advice of the
:Government or Parliament of Canada?
:

The monarch is bound by the advice of her Canadian ministers who
are responsible only to the Canadian electorate.

-- 
i.sinature
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