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For what it's worth, Canada somehow managed the trick. That is to say, through an act of the British Parliament, the Canadian legislature became a sovereign le

by retrac 6y ago

For what it's worth, Canada somehow managed the trick. That is to say, through an act of the British Parliament, the Canadian legislature became a sovereign legislature, bound by a written constitution. Basically, the UK Parliament passed a law delegating all of its powers to the Canadian legislature and declared it would never debate or pass a law again on the Canada question. Nothing actually stops them from doing so. But after 150 years of holding to this convention, it may as well be written in stone. One can imagine the UK Parliament delegating its powers to successor entities and then essentially abolishing itself to a purely ceremonial function. Give it some time, and everyone gets used to it and that's the new system. Just ramp up devolution, basically. For what it's worth, Parliamentary sovereignty is also an idea in the Canadian constitutional system, where it's taken to mean that the legislatures have absolute authority within their areas of jurisdiction, and that collectively the legislatures also have the authority to rewrite the constitution. (As an aside, "What would happen if the British Parliament did repeal the British North America Act 1867 or Canada Act 1982?" is a rather fun hypothetical from the Canadian side.)

Silhouette 6y ago
The legal situation might be somewhat different for other Commonwealth or former Commonwealth states anyway, because you don't necessarily have the same historical arguments about the supremacy of the UK parliament within those jurisdictions. But yes, if we did want a new written constitution to become superior to any other legal authority except for a popular decision to change that constitution, one strategy that might be compatible with our current legal order would be to establish and empower whatever new order was intended and then render the historical Parliament functionally impotent so that no mechanism remained for it to pass any new legislation that would undermine the new order. I wonder what Dicey would have made of such issues today. I suspect he might have argued that any claimed authority under any system of government is relevant only if that system has popular consent, so regardless of historical precedent, if the will of the people is clearly to change to a new system of government then the old system no longer enjoys any moral authority anyway. As a practical matter, if the public view is clear and most of those in positions of power within the new order, such as political representatives and judges, support that view, then arguments about preserving the historical order become moot points anyway. And if the public ever felt strongly enough about our constitution that this kind of change was a realistic prospect, I wouldn't expect anyone in a position of power to keep that position under the new order if they didn't support it.
jsmith45 6y ago
> (As an aside, "What would happen if the British Parliament did repeal the British North America Act 1867 or Canada Act 1982?" is a rather fun hypothetical from the Canadian side.) The Queen would likely (rightly) refuse Royal Assent if parliament tried that, given that as she is also Queen of Canada, she could never legitimately allow the UK Parliament to do that. And if so some reason she did not, it would have no real impact on Canada anyway. Practically speaking Canada is in no way bound by the UK at this point. While legal theory may claim otherwise, it does not really matter. Legal theory would also claim the US constitution is illegitimate, because it was not passed in the way considered correct by its predecessor document (Articles of Confederation). Nobody cares. The UK trying to change Canada's constitutional situation would be no more effective than the US passed a law claiming to amend Canada's constitution. The Government of Canada would laugh at it, and otherwise move on with their day. In the UK case they might debate changing to no longer be a Monarchy, since their Queen had failed them here.
- retrac 6y ago
  Yes. It's just a silly thought experiment, of course. I mentioned it, if anything, to highlight how, what the law says on paper, may not be the real law. Canada would, of course, simply ignore any such act. Even if there were a strong legal argument made in our own courts that it somehow abolished our sovereignty, we'd all agree to simply pretend otherwise.
  - jsmith45 6y ago
    Right. The difficult thing is determining the difference between the written law, the actual law, and mere custom. For example, the custom is that the Queen will appoint whoever she believes to be most likely to hold the confidence of parliament as the prime minister. Obviously the best candidate is usually the leader of the majority party or a collation that has a majority. De Jure, however, she may appoint anyone (besides herself?) at any time for any reason. She would be stupid to do anything other than what is customary, but if she did, I am pretty certain the consensus would be that doing was was legal if unwise. After all, this has already happened in a form by way of the Governor General in Australia infamously dismissing the prime minister to enable Supply to be passed, and new elections held, which clearly violates the custom. The selecting prime minister case is also interesting as it is one of the few where the custom is not based on the advice of Her Majesty's Government because of the obvious conflict of interest there. On the other hand, while all Royal Prerogatives are de jure the Queen's, many of them arguably can only be exercised by the State/Government, which is clearly a distinct entity from the Queen, despite the laws constantly identifying the two as one and the same (the laws identify both the hereditary office of the Monarchy and the executive organ of the state as the Crown, despite those obviously being distinct things in reality). For example, If the Queen tried to seize control of the Armed Forces away from her Government/MoD, this might be deemed unlawful despite control of the the armed forces being a reserve power, and her being the nominal commander in chief. One of the nice things about a good written constitution is that it helps to differentiate what is merely custom vs what is the actual law. Of course, the actual law and the written law can still differ, but it does help to avoid assuming what is merely a custom is the de jure law.

by retrac 6y ago

Silhouette 6y ago

The legal situation might be somewhat different for other Commonwealth or former Commonwealth states anyway, because you don't necessarily have the same historical arguments about the supremacy of the UK parliament within those jurisdictions. But yes, if we did want a new written constitution to become superior to any other legal authority except for a popular decision to change that constitution, one strategy that might be compatible with our current legal order would be to establish and empower whatever new order was intended and then render the historical Parliament functionally impotent so that no mechanism remained for it to pass any new legislation that would undermine the new order. I wonder what Dicey would have made of such issues today. I suspect he might have argued that any claimed authority under any system of government is relevant only if that system has popular consent, so regardless of historical precedent, if the will of the people is clearly to change to a new system of government then the old system no longer enjoys any moral authority anyway. As a practical matter, if the public view is clear and most of those in positions of power within the new order, such as political representatives and judges, support that view, then arguments about preserving the historical order become moot points anyway. And if the public ever felt strongly enough about our constitution that this kind of change was a realistic prospect, I wouldn't expect anyone in a position of power to keep that position under the new order if they didn't support it.

jsmith45 6y ago

> (As an aside, "What would happen if the British Parliament did repeal the British North America Act 1867 or Canada Act 1982?" is a rather fun hypothetical from the Canadian side.) The Queen would likely (rightly) refuse Royal Assent if parliament tried that, given that as she is also Queen of Canada, she could never legitimately allow the UK Parliament to do that. And if so some reason she did not, it would have no real impact on Canada anyway. Practically speaking Canada is in no way bound by the UK at this point. While legal theory may claim otherwise, it does not really matter. Legal theory would also claim the US constitution is illegitimate, because it was not passed in the way considered correct by its predecessor document (Articles of Confederation). Nobody cares. The UK trying to change Canada's constitutional situation would be no more effective than the US passed a law claiming to amend Canada's constitution. The Government of Canada would laugh at it, and otherwise move on with their day. In the UK case they might debate changing to no longer be a Monarchy, since their Queen had failed them here.

retrac 6y ago
Yes. It's just a silly thought experiment, of course. I mentioned it, if anything, to highlight how, what the law says on paper, may not be the real law. Canada would, of course, simply ignore any such act. Even if there were a strong legal argument made in our own courts that it somehow abolished our sovereignty, we'd all agree to simply pretend otherwise.
- jsmith45 6y ago
  Right. The difficult thing is determining the difference between the written law, the actual law, and mere custom. For example, the custom is that the Queen will appoint whoever she believes to be most likely to hold the confidence of parliament as the prime minister. Obviously the best candidate is usually the leader of the majority party or a collation that has a majority. De Jure, however, she may appoint anyone (besides herself?) at any time for any reason. She would be stupid to do anything other than what is customary, but if she did, I am pretty certain the consensus would be that doing was was legal if unwise. After all, this has already happened in a form by way of the Governor General in Australia infamously dismissing the prime minister to enable Supply to be passed, and new elections held, which clearly violates the custom. The selecting prime minister case is also interesting as it is one of the few where the custom is not based on the advice of Her Majesty's Government because of the obvious conflict of interest there. On the other hand, while all Royal Prerogatives are de jure the Queen's, many of them arguably can only be exercised by the State/Government, which is clearly a distinct entity from the Queen, despite the laws constantly identifying the two as one and the same (the laws identify both the hereditary office of the Monarchy and the executive organ of the state as the Crown, despite those obviously being distinct things in reality). For example, If the Queen tried to seize control of the Armed Forces away from her Government/MoD, this might be deemed unlawful despite control of the the armed forces being a reserve power, and her being the nominal commander in chief. One of the nice things about a good written constitution is that it helps to differentiate what is merely custom vs what is the actual law. Of course, the actual law and the written law can still differ, but it does help to avoid assuming what is merely a custom is the de jure law.