National Post (National Edition)
Could Quebecers give royal baby THE BUMP?
Law to extend succession rights to female may need constitutional amendment
On Friday, an unexpected hitch struck the Commonwealth-wide legal effort to reform the rules of royal succession and allow a daughter of Prince William and Catherine to become Queen. A pair of Laval University professors argued in a Quebec Superior Court that Canada’s recent rubber-stamping of U.K. changes to the line of succession is illegitimate, since it should require the support of the provinces as a full constitutional amendment.
Although the attempt is being derided as “merely another republican publicity stunt,” monarchists and legal scholars are starting to admit they may have a point: Unless Canada is willing to undergo the painful process of possibly cracking open the Constitution, the next royal baby may well be ineligible to rule Canada.
Instead, the monarchy would be put in the uncomfortable position of having a woman ruling Australia, New Zealand and Tuvalu while her little brother wears the crown of Canada.
“Barring some unexpected tragedy, it’s not going to happen for 50 years … but that would be the situation in law,” said Gary Toffoli, executive director of the Canadian Royal Heritage Trust.
Last year, the U.K. House of Commons introduced an act to undo the age-old practice of giving males first crack at the throne ahead of their elder sisters.
At the same time, U.K. Prime Minister David Cameron called on the Queen’s Realms (the 15 other countries where Queen Elizabeth II is head of state) to make laws of their own.
New Zealanders, for instance, carefully updated their laws to incorporate the reform as part of a uniquely New Zealand succession regime. Australians did the same, even if it meant ironing out some regional sabre-rattling from a northeastern state that threatened to draft its own, separate, succession law.
But Canada simply rushed through a 400-word Succession to the Throne Act giving a nod to the U.K. changes.
Rather than tackle the legal challenges of an Australian-style succession law, Canada decided that “the best way around that is to say, ‘Well, we’ ll just assent to British law,’ ” said Philippe Lagassé, an associate professor of international affairs at the University of Ottawa.
The last time the issue of royal succession came up was in 1936, when Canada needed to give the go-ahead for King George VI to succeed his abdicated brother. At the time, the Canadian government simply asked the U.K. to legislate the affair for them, and then ran the final document (the Succession to the Throne Act 1937) by the House of Commons for final assent.
The snag this time around is that ever since the 1982 repatriation of the Constitution, U.K. laws cannot apply in Canada, even if they do get parliamentary assent.
Thus, contend critics, unless Canada introduces the U.K.’s changes as part of its own unique succession regime, the country is effectively still under the old “males first” succession rules.
“At the very least, we should be following the Australian and New Zealand examples,” said Prof. Lagassé.
The risk of that approach, of course, is that any explicit succession law could trigger calls for a constitutional amend- ment, which would require the assent of all 10 provinces, one of which just elected a separatist government not known for its support of the Crown.
It is partly why the official Canadian view has been quite simple: The king or queen of Canada will be a successor of George VI and it is up to Britain to figure who that successor is.
“The Canadian government’s view (and mine) is that … whoever is the sovereign in the U.K. acts as the sovereign in Canada,” wrote Andrew Heard, a professor of political science at Simon Fraser University, in an email to the Post.
The stance was echoed by the Monarchist League of Canada. “The league’s position is that the legislation as passed is adequate and successfully gives Canada’s assent to the British succession laws,” wrote league chairman Robert Finch in an email to the Post.
But if the Quebec court challenge is successful, the federal government could be caught in a nightmare scenario in which it is forced to campaign for a constitutional amendment on an issue that almost nobody cares about — and will most likely not even be relevant for another five decades.
Adding to the mess is the idea, now making headlines in the U.K., that Canada’s failure to OK a succession change could derail the U.K.’s own efforts since, under the 1931 Statute of Westminster (the document that establishes the U.K.’s relationship with its overseas dominions), succession changes cannot be enacted without the blanket support of “all the dominions.”
Of course, possibly anticipating some unrest in the former empire, British politicians made sure to emphasize that they did not intend to honour any inconvenient delays in the process.
As British MP Tom Brake explained to the House of Commons last January, the 72-year-old measure is “politically rather than legally binding.”