Brexit and Responsible Government


In This Issue:

A word from the communications director
Brexit and Responsible Government:
  1. Decision by referendum versus the oversight of Parliament
  2. How a Brexit-like conundrum was handled by the Canadian Parliament under Responsible Government
  3. How the will of Parliament is determined and implemented under Responsible Government

The constitutional balance underlying a Responsible Government  ‹PDF ›/ VIDEO
Visit to Edinburgh and Dublin
Cooperation with Irish scholars
The Institute’s Achievements in 2018 
The months ahead

A word from the communications director

At the time of writing, the United Kingdom is on course to leave the European Union on March 29. Furthermore, as things stand, there will be no deal establishing a framework for the transition or the future relationship between the U.K. and the EU. There is broad agreement that such a no-deal, “crash out” Brexit will have serious negative consequences for the U.K. Nevertheless, this is what the British political system has produced.

A core assumption behind the Institute of Responsible Government is that institutions matter, and that current institutional arrangements in most countries are not up to the task of translating “the well-understood wishes and interests of the people” into public policy. From this perspective, the way the Brexit process has unfolded is an example of institutional failure. Hence the Institute has paid close attention to Brexit, and we are devoting a significant portion of this newsletter to how Responsible Government could have changed the evolution of Brexit. See the articles by Institute President Vincent Pouliot that follow.

Vincent and Institute Organizational Director Luz-Marina Cabrera were in the U.K. and Ireland in November and December, where they had the opportunity to speak with many knowledgeable observers of the Brexit conundrum. Marina reports on what they learned on their trip.

In addition, this newsletter contains reports on the Institute’s achievements in 2018 and plans for 2019, and a video on the constitutional balance underlying a Responsible Government.

Bob Chodos
From the left, Vincent Pouliot, Thomas Pouliot, Éric Hamovitch Guedela Hamovitch, Marina Cabrera and Ashley Mills at the Institute Christmas meeting. 

Brexit and Responsible Government


1. Decision by referendum versus the oversight of Parliament

The first principle of Responsible Government approved by the Assembly of the Province of Canada in 1841 states:
That the most important, as well as the most undoubted, of political rights of the people of this province is that of having a provincial parliament for the protection of their liberties, for the exercise of a constitutional influence over the executive departments of their government, and for legislation upon all matters of internal government.
Brexit demonstrates the disadvantages of determining the will of the people by referendum. The question put to the people on June 23, 2016, was: Should the U.K. remain a member of the European Union or leave the European Union?
The people were asked to lock in their decision without an understanding of the consequences. The people cannot change their minds as these consequences become clear. They had no clue as to how this separation was to take place. At the time of the vote, the repercussions for Northern Ireland had not even been considered.
Under the British constitution the people vest the authority in their members of Parliament to exercise their political capacity on their behalf. By this same rule of law, shareholders vest the authority in the board of directors of a private corporation to run the business. Imagine trying to run a business by referendum! Even so, if a buyout offer is presented, the shareholders get to vote on the negotiated terms of the offer. And if the offer is rejected. It’s done. Life goes on.
Parliament rejected the terms of the agreement to secede from Europe. Without doubt, Parliament has the lawful right to do so. It is the duty of Parliament to protect the liberty of the people. It can’t be said that Parliament properly performed this duty under the leadership of the European Union. It can be argued that this may be the very reason for the longstanding dissatisfaction of the people with this union.
As a matter of fact, had it not been for the initiative of a private citizen, Gina Miller, in taking the government to court to insist on a meaningful parliamentary vote, Parliament would not even have been permitted to challenge the exit treaty negotiated by the U.K. government.
So, what were the people thinking when they voted to remain or leave? What was the mandate they intended to give? In Quebec’s 1980 referendum, René Lévesque asked the people for a mandate to negotiate “sovereignty-association.” This was fair. With hindsight, maybe this is what the British people intended.
Permit me to suggest, however, that whether the U.K. remains or leaves, maybe what the people really want is to strengthen the role of Parliament in their government. 

2. How a Brexit-like conundrum was handled by the Canadian Parliament under Responsible Government

Parliament’s vote to reject Theresa May’s secession agreement was a massive vote of non-confidence in her administration of the whole affair. That Parliament subsequently voted to maintain her administration of it is less a vote of confidence than an admission of Parliament’s incapacity to determine the people’s ambition and to pursue it powerfully.
The model of Responsible Government, established for the Province of Canada, was structured to ensure the rule of government in accordance with the well-understood wishes and interests of the people. The result was the conciliation of the people’s interests through the public institutions of the state and the people’s full support of the government in the pursuit of the direction determined by Parliament.
The Union Act of 1840, uniting Upper and Lower Canada to form the Province of Canada, was defective in that it caused an injustice “in the view of one section as to justify any resort to enforce a remedy.“ In simple terms, though Upper and Lower Canada governed themselves separately, the cost of their government was pooled. The French took advantage of this defect to force the British to pay three quarters of the cost.
The constitutional reform required to repair this injustice was a conundrum that took Parliament eight years to resolve. In the two years preceding the breakthrough, the province suffered four different ministries and two elections in its search for a solution. The solution finally enthusiastically approved was to separate Upper and Lower Canada and reunite them as provinces (Ontario and Quebec) in a federal union wherein the provinces would be represented in the upper house and the central government would be entrusted with jurisdiction only in affairs in which they had a common interest.
The division of the Province of Canada and the union of the provinces of British North America to form the second largest country on Earth caused no sudden disruption, no hardship. It was built up using the existing foundation.
If we were to imagine the U.K. Parliament’s deliberations over Brexit having a similar dynamic and powerful outcome, maybe the solution would have been to reform the European Union so that the members can protect their exclusive jurisdiction over their local affairs and ensure that the central government is responsible to them for the conduct of their common affairs.
It was the people’s dissatisfaction with the Canadian union in the 1860s that drove their representatives in the Canadian Parliament and on the hustings to find the solution of Confederation.
The people of the U.K. have long been dissatisfied with their union with Europe, but their representatives have not had the will or the capacity to act on their behalf through Parliament to find redress. They are still waiting for government to settle the will of the people in this matter.
Clearly, the fault lies not with personalities, but rather with the political process.

3. How the will of Parliament is determined and implemented under Responsible Government

Parliament embodies the political capacity of the people. The political process is a mechanism which enables Parliament, firstly, to think through what course of action, given the circumstances, would best serve the interests of the people; and secondly, to oversee the administration of this direction in the executive departments of the State.

Clearly today, the U.K. Parliament is dysfunctional. History teaches us a different political process that might have led to a better outcome.

The political process initially established for the Responsible Government of the Province of Canada is predicated on the separation of the power from the authority to govern. Power is the potential to act. Authority is the will to act.

In the model of Responsible Government conceived for Canada, the House of Commons represents and protects the will of the people to govern themselves in common, while the Senate represents and protects the will of the people to govern themselves locally.

The Governor General is legally vested with all the powers of the State. She must exercise these powers, however, by and with the advice of the leaders of each House who are equally possessed of the authority to advocate respect for the will of the people in the exercise of the powers of the State. The role and position of the Governor General enable her to ensure that the government remains constitutional, respectful of the law and in the service of the people.

The wishes and interests of the people are reconciled to distill the will of Parliament as follows. The Governor General chooses a leader whom she believes can command a majority of Parliament. This leader, in turn, chooses a leader from the other side to negotiate a common political program and the representative composition of their coalition ministry. The Governor General, through the Speech from the Throne, then presents to Parliament the priorities, the policies and the measures the coalition ministry will implement upon its approval.

This political process not only determines the jurisdiction of the central government, but also charges the coalition ministry with the responsibility to account for the implementation of this program to both Houses of Parliament.

This constitutional structure and democratic process naturally harness the fears and ambitions of these three political actors to drive them to provide peace, order and good government in the service of the people.

The Governor General cannot act if the will of Parliament is divided. She cannot act unless both prime ministers proffer the same advice. If the leaders of Parliament want to exercise power, they are driven to determine a political program that both sections of Parliament will approve.

Justice and jealousy oblige each of these political actors to guard their legitimate jurisdictions. All will agree that disputes over jurisdiction are fairly and simply resolved by decision of Parliament. The will of the people represented in Parliament thus becomes the natural pivot determining the exercise of the powers of the State. They thus truly depend upon the will of Parliament to support their ambitions.

It belongs to the Governor General to ensure that her advisers do speak the well-understood wishes and interests of the people. If she is not convinced of this, or if she believes the matter has not been fully fleshed out, she may ask them to submit the question to Parliament for further debate and confirmation.

If the advice that the prime ministers wish to advocate does not reflect the will of Parliament, it may revoke their authority to speak on its behalf and confide this authority in others whose advice better reflects its sentiment. The authority confided in Cabinet to implement the will of Parliament in the various executive departments of the State may also be revoked if it proves unable or unwilling to do so.

Furthermore, if these political actors cannot reconcile their differences and cannot agree to disagree, the people may be called upon to decide who tells true and who abuses through a general election on the question. The risk of losing the election and suffering the consequences is so dire that it forces the political actors to temper their ambitions to those they truly believe uphold the legitimate constitutional interests of the people.

Of course, in the case of Brexit, there is no way of knowing what outcome such a system would have produced. But we do know that it would have enhanced the role of Parliament, encouraged conciliation and compromise, and made it impossible for the government to proceed as far as it did without parliamentary input.
Vincent Pouliot.

The constitutional balance underlying a Responsible Government


Visit to Edinburgh and Dublin

Together with Vincent Pouliot, president of the Institute, I visited Edinburgh, London and Dublin last December to meet political science colleagues working on the issue of federalism as an alternative to conflicts of territorial governance.
Vincent was invited to give a talk at the “Canada as a Union” event organized by the Centre on Constitutional Change, based at the University of Edinburgh. At this gathering, Canadian and Scottish academics gave presentations on various aspects of Canada as a federation, linking the Canadian experience to comparative matters involving Scotland’s position in the United Kingdom.
In his lecture, Vincent began with the question “Canada as a Federal Union?” drawn from his written presentation “A Federal Model? Federalism through Parliament in accordance with the Constitution Act, 1867.” He laid out a comparative framework of the main features, drawing upon his research into the Canadian model of Responsible Government and the current system of government.
As an intervener in the Supreme Court of Canada reference on the secession of Quebec in 1998, Vincent was the guest of honour at a seminar “to mark the 20th anniversary of the Quebec Secession Reference.” This event was held by the Edinburgh Centre for Constitutional Law and the Centre of Canadian Studies.
Our journey continued in London and Dublin. We noted a keen and rising interest in the academic political science community with regard to Brexit and its many impacts on relations between Northern Ireland and the Irish Republic, resulting in a particular situation with characteristics similar to what existed in Upper and Lower Canada prior to the creation of the Province of Canada in 1841.
Vincent attended meetings with professors and researchers connected to the Brexit Institute at Dublin City University and the Institute for British-Irish Studies at University College Dublin. The academic figures he met there included Professors Ian Cooper, Jennifer Todd, Ben Tonra and David Farrell.
This enriching visit brought out the mutual interest in research into the Canadian model of Responsible Government as a viable alternative to political and territorial conflicts. We all showed a firm desire to hold a joint event in the near future to discuss what lies ahead for Northern Ireland in the swirl surrounding Brexit.

Luz Marina Cabrera Suarez

Cooperation With Irish Scholars

After the meetings in Dublin, Vincent wrote to Professor Jennifer Todd of the Institute for British-Irish Studies to outline what could be achieved through further collaboration. What follows is a slightly edited version of his letter to Professor Todd, including a highly pertinent quote from George Brown at the time of the Confederation debates.

Bob Chodos

Dear Jennifer,
. . . I believe I can paint a picture of the constitutional evolution and operation of the model of Responsible Government in the Province of Canada in the mid-nineteenth century that could disconnect constitutional considerations from the grounds of identity politics to re-centre them on the fundamentals: on the constitutional structure and mechanisms that ensure that the powers of the State are exercised by authority of the people—that is, with the consent of the governed.
The constitutional evolution of this model of Responsible Government was accomplished by the full and honest application of British constitutional principles to the Union Act of 1840, which entitled both French Lower Canada and British Upper Canada to the same number of representatives in the House of Assembly of the newly formed Province of Canada.
Mutual respect of identities and parity of esteem were not legislated in the Province of Canada. They were the result of a dual political structure and a political mechanism conceived to ensure that the rule of government shall be the well-understood wishes and interests of the people, it being finally accepted that both the French and the British were entitled to this same constitutional right.
In the context of the time, this was no easy task. Tensions remaining from the armed rebellions of 1837 had not been resolved, both between Canada and Westminster and between the French and British components of the Canadian population.
The constitutional moment was made possible by Lord Durham’s Report on the Affairs of British North America, considered Canada’s Magna Carta, which grounded the efforts of the moderate reformers. This report should enable you to understand the tensions existing then and compare them to those in Northern Ireland as well as the depth of the achievement of this form of government*. . .
Another element which may help conciliate the parties to a federal union is the role of the Governor General in this form of government.
The Governor General is legally vested with all the powers of the State, but it belongs to the people to govern themselves as they will. In the Province of Canada, though the Governor General was an officer of the Queen, he had to exercise the powers of the State by and with the advice of the leaders of Upper and Lower Canada in accordance with the well-understood wishes and interests of the people. Because the Governor General held the balance of power, Her Majesty’s officer was able to help the leaders in their constitutional difficulties and influence the course of government with the consent of the governed.
If I were invited to a seminar on the subject, I would then turn the discussion over to the possibility of applying these lessons to the situation in Northern Ireland.
Vincent Pouliot
*I cannot help but quote George Brown, leader of the Reform Party, in the debates on Confederation of the Legislative Assembly of the Province of Canada (p. 85) regarding the scheme to legitimately and peacefully create a Canadian federation to resolve the injustice that arose between the French and the British in the Province of Canada as a result of a constitutional defect in the Union Act of 1840:

“Here is a people composed of two distinct races, speaking different languages, with religious and social and municipal and educational institutions totally different; with sectional hostilities of such a character as to render government for many years well-nigh impossible; with a Constitution so unjust in the view of one section as to justify any resort to enforce a remedy. And yet, sir, here we sit, patiently and temperately discussing how these great evils and hostilities may justly and amicably be swept away forever. (Hear, hear.) We are endeavouring to adjust harmoniously greater difficulties than have plunged other countries into all the horrors of civil war. 

We are striving to do peacefully and satisfactorily what Holland and Belgium, after years of strife, were unable to accomplish. We are seeking by calm discussion to settle questions that Austria and Hungary, that Denmark and Germany, that Russia and Poland, could only crush by the iron heel of armed force. We are seeking to do without foreign intervention that which deluged in blood the sunny plains of Italy. We are striving to settle forever issues hardly less momentous than those that have rent the neighbouring republic (the USA) and are now exposing it to all the horrors of civil war. (Hear, hear.)
Have we not then, Mr. Speaker, great cause of thankfulness that we have found a better way for the solution of our troubles than that which has entailed on other countries such deplorable results? And should not every one of us endeavour to rise to the magnitude of the occasion, and earnestly seek to deal with this question to the end in the same candid and conciliatory spirit in which, so far, it has been discussed? (Loud cries of hear, hear.)
The scene presented by this chamber at this moment, I venture to affirm, has few parallels in history. One hundred years have passed away since these provinces became by conquest part of the British Empire. … I recall those olden times merely to mark the fact that here sits today the descendants of the victors and the vanquished in the fight of 1759, with all the differences of language, religion, civil law, and social habit, nearly as distinctly marked as they were a century ago. (Hear, hear.) Here we sit today seeking amicably to find a remedy for constitutional evils and injustice complained of—by the vanquished? No, sir—but complained of by the conquerors (Cheers by the French Canadians). Here sit the representatives of the British population claiming justice—only justice; and here sit the representatives of the French population, discussing in the French tongue whether we shall have it.
One hundred years have passed away since the conquest of Quebec, but here sit the children of the victor and the vanquished, all avowing hearty attachment to the British Crown—all earnestly deliberating how we shall best extend the blessings of British institutions—how a great people may be established on this continent in close and hearty connection with Great Britain. (Cheers.) Where, sir, in the page of history, shall we find a parallel to this? Will it not stand as an imperishable monument to the generosity of British rule?”

The Institute’s Achievements in 2018

The Institute was represented at two major conferences in 2018, both of which provided opportunities to meet with scholars in relevant fields as well as to deliver papers. The first was the Congress of the Humanities and Social Sciences in Regina in June, where Institute President Vincent Pouliot spoke on “Federalism Through Parliament in Accordance with the Constitution Act (1867).”

The second conference, on “Canada as a Union,” took place in Edinburgh, Scotland, in November. Vincent’s contribution was a seminar on “Canada as a Federal Union: The Potential, Operation and Uncertainties of the Federal Model Conceived for the Responsible Government of Canada.”

Both of these conferences provided opportunities to engage with people who are interested in the Institute’s work. On the way to and from Regina, Vince and Institute Organizational Director Marina Cabrera stopped in university cities in Ontario and on the prairies and met with chairs and professors in political science departments. After the Edinburgh Conference, Vincent and Marina went to Ireland and met with the directors of the Institute for British-Irish Studies (IBIS) at University College Dublin. Vincent has since been in correspondence with one of IBIS’s leading scholars, Professor Jennifer Todd, regarding possible future collaboration on the subject of Northern Ireland after Brexit.

The institute also made progress on several projects that will bear fruit in 2019 and beyond:

  • developing an online course on the evolution of the model of Responsible Government creating a game that would simulate a model parliament based on principles of Responsible Government
  • working towards completion of Vincent’s book The Struggle for Responsible Government
  • making known the potential of the model of Responsible Government in working out a resolution of the Israeli-Palestinian conflict.
Bob Chodos et Vincent Pouliot, at the Institute meeting for Christmas.

The Months Ahead

Europe features prominently on the agenda for the coming months. The Institute is planning to share the Canadian experience in the design of federal structures and the practice of Responsible Government with partners in two distinct geographic areas. We are expecting an invitation from the Institute of British-Irish studies to participate in a conference on possible futures for Northern Ireland as the Brexit process continues on its unsteady course. And we plan to meet with organizations in Barcelona this summer to discuss federalism and Responsible Government as they apply to relations between Catalonia, Spain and the European Union.
We will also be active on the Canadian scene, networking with other researchers who share an interest in federalism at the 2019 annual conference of the Canadian Political Science Association set for Vancouver in early June.
Educational initiatives remain the Institute’s top long-term goal. We are moving forward in development of a course on the constitutional evolution of Responsible Government between 1838 and 1848, followed by a course of the constitutional theory and practices of Responsible Government. This is to be complemented by building a simulator of the parliamentary operation of this model of Responsible Government.
Also on the agenda are a reorganization of the Institute’s website to facilitate debate on questions of theory and practice that were not fully conceptualized by the Fathers of Confederation, along with continued work on a detailed paper aimed at achieving a better understanding of the constitutional theory and practices underlying Responsible Government.
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Bob Chodos

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