This is part 2 of a short series comparing the Canadian sytem of government to the US system.
The Canadian system of government differs from the US system in several important ways. The Canadian system is more derived from the British system than is the US system. The British system does not have a single written constitution. Instead is a collection of laws, establishing documents and conventions. While there is a Constitution for Canada (and has been since 1867), unwritten conventions play an important role in how government is conducted. In fact, these conventions are recognized as law by the Canadian court system – despite the conventions having never been written down as law. While the US common law system can be equated to this system, there remains an important distinction in that the structures of government (the Presidency, the Congress, the Supreme Court) are clearly defined. But in Canada, the entire Executive function, through the office of Prime Minister and Cabinet, is almost entirely derived from unwritten convention – and not written law.
That the entire Executive office is defined through convention lacks any strong parallel in US government. For example, the office of the Prime Minister is not well defined in writing. In fact, the Prime Minister and Cabinet is actually a committee of the Privy Council, which in theory serves under the Queen (through the Queen’s representative – the Governor General). It is the Governor General and the Privy Council that get official mention in the Constitution Act, not the Prime Minister and Cabinet.
While in theory the Prime Minister is merely the “chair” of a committee that serves under the Governor General, reality is, in fact, the opposite. The Prime Minister tells the Queen who to add to the council (in Canada, all of the past Prime Ministers and cabinet members are members of the Privy Council for life). The Prime Minister tells the Queen who to appoint to the Cabinet. And the Prime Minister, in almost all cases, tells the Governor General what to do on all occasions. Of course, all of this “telling” is actually called (in theory) “advisement.” And it is merely convention that requires the Queen or Governor General to do as “advised.”
In both the British (to perhaps the greatest extent in the world) and (to a lesser extent) the Canadian system, Parliament reigns supreme – unchecked (in theory, and often in practice — in Canada the limits on the Parliament are due to its written Constitution and the fact that powers are divided between the federal and the provincial governments). In theory the Parliament is the Governor General (the Queen) and the two Houses of Parliament. In fact, the Queen is a figurehead only. But the powers of Parliament are derived from the Queen’s power (unlike in the US, where the powers are derived by the “consent of the people”). Additionally, since the Queen has handed over her Executive (or Government) powers to the Prime Minister and Cabinet, and her Parliamentary powers to the Prime Minster, Cabinet and Parliament, the Houses of Parliament alone is the government. It can do as it so pleases – so long as it makes what it pleases into law first.
This is called Parliamentary Sovereignty, and it is as much a bedrock of the parliamentary system as is checks and balances a bedrock of the US system. Related, the concept of responsible government makes up the bedrock as well. Responsible government is the principle that the Queen’s government is responsible to the people. This is accomplished by having the people’s representatives to the Queen – the Parliament – select the government. And this is done through the selection of a Prime Minister – who in turn forms a cabinet. Of course, the theory is that the Queen selects the Prime Minister and the Cabinet – but the fact is that the people’s representatives do.
The principles of Parliamentary Sovereignty and Responsible government are totally different from the principles of checks and balances and republican government. Basically the difference stems from the fact that in a system of government with its claim to power being derived from a non-legitimate basis (for example, from a royal line and historical precedence) the government must make itself legitimate in order to govern. So, the Queen is “officially” the government, but she turns to the people’s representatives to tell her what to do. And she does what they tell her.
At first, this system was a check on the Queen – whose absolute authority was slowly diminished. Now, it is more a check on the Parliament than it is on the Queen. And that’s because just as the Queen has no real basis for governing, neither does her Parliament – unless the Parliament is both elected by and responsive to the people. Both the Queen and the Parliament must reclaim their legitimacy by serving the common interest. Additionally, since the power of the Parliament is officially in the Queen – if there were a crisis of governance, the Queen could step in and claim her right to govern. Just the possibility of this serves as a stabilizing force in governing.
The system’s real strength is in how it places accountability on one body – the Parliament. In the United States, all branches are both responsible and not responsible for everything they do and don’t do. In the United States, it’s possible for the Republicans to make abortion an issue – year in and year out. Even when they control all of the government, they can rally against abortion. Even though their position on abortion is not popular, and even though they are stringing along their radical right base with the issue – they can keep pushing the issue knowing that it will go nowhere. That’s because no one branch is responsible for the final outcome. But in Canada, almost all issues (some, such provisions to do with language rights and the role of the Queen in government, are restricted by the Constitution) are totally open matters. If the Parliament wishes to make a law law, it has that power. So if the opposition party made abortion an issue, and then got into power – it would be hard pressed to explain why it didn’t act on its (unpopular) promise to end safe and legal abortions.
Central to this premise is the notwithstanding clause of the constitution. The Parliament can enact any legislation within its jurisdiction (either federal or provincial), even if the courts say it violates the Charter of Rights and Freedoms. In the US, a change to the Constitution is required for such to occur. This gives a lot power, and responsibility, and accountability to the Parliament. In the United States, this accountability is missing. No one can be blamed for the failure of the government to serve the common interest, since it either the other house or the other branch that is holding things up.
While the Canadian system places great power in the Parliament (and, in reality this power is almost entirely held by the Cabinet), this power has the counter intuitive effect of restraint and responsiveness. The legitimacy of the government is derived only from its being responsive to the people’s wishes. If a government falls, and new one is formed out of Parliamentary elections – the new Parliament could revoke the acts of the last Parliament with the passage of just a few new laws.
The ironic thing is that the US system lacks this accountability – but does not lack this restraint. While in theory checks and balances restrains government, in fact it does not. It only makes government less accountable and less responsive to the people. Change of government in the US requires changing many levels, many layers, and many indirect moves. Additionally, since the legitimacy of the US government is based on it being “Of the People” and liberal democratic ideology, it claims legitimacy regardless if it is serving the common good of not. There is no Queen who must make it clear that her government is for the people – since the government has “always been for the people.”
NEXT: Why an unelected Canadian Senate is a good thing for democracy.
