Author:	Noel Cox LLM (Hons), PhD Lecturer, Auckland University of Technology
Subjects:	Judicial power - Canada Political Questions and Judicial Power Canada Prerogative, royal - Canada
Issue:	Volume 9, Number 3 (September 2002)
Category:	Refereed Articles

Paper presented at the Australasian Law Teachers' Association annual conference hosted by Murdoch University School of Law, Perth, Western Australia September 29 - October 2 2002.

Contents

• Introduction
• Circumstances of the litigation
• The questions asked by Court of Appeal
• The findings of the Court
• Questions remaining
• Notes

Introduction

1. Conrad Black, a prominent publisher and businessman in both Canada and United Kingdom, submitted his name for one of the peerages to be created for the new-model House of Lords following the House of Lords Act 1999 (UK).[1] The rights and duties of peers depend entirely upon custom.[2] The principal legal distinction of British peers is - or was - their right to sit and vote in Parliament.[3] Not all peers however were Lords of Parliament (principally the Irish peers not also possessing another peerage entitling them to a seat), and some Lords of Parliament, the bishops, are not peers.[4] Essentially, Mr Black was seeking, and had been promised, a seat in the upper house of the British Parliament.[5]

2. His ennoblement received the endorsement of William Hague, then Leader of the Opposition, and obtained the necessary approvals in the United Kingdom.[6] The British Prime Minister had sought the approval of the Canadian Government for Conrad Black's honour, and this was given.[7] Tony Blair, the Prime Minister, advised The Queen to confer the title upon Mr Black. However, Jean Chrétien, Prime Minister of Canada, then intervened, and advised The Queen to not confer the peerage on Mr Black.[8] The reasons given for the subsequent adverse advice to the Queen from Chrétien included the claimed long-standing Canadian opposition to titular honours, said to have been encapsulated in the Nickle declaration of 1919.[9]

3. As a consequence Black sued the Prime Minister and the Attorney-General of Canada. Although the Ontario Court of Appeal rejected Black's case, this litigation has raised important constitutional questions. In particular, what happens when conflict occurs between Crown's advisors, and to what extent can the British and Canadian Crowns be disentangled, given the commonality of person and the historic legal continuity of the two constitutions? This paper will begin with a review of the Black litigation, and will then examine these questions.

   Circumstances of the litigation

4. The appellant Conrad Black alleged that the Canadian Prime Minister Jean Chrétien intervened with the Queen to oppose his appointment and that, but for the Prime Minister's intervention, he would have received the peerage. Mr Black sued the Prime Minister for abuse of power, misfeasance in public office and negligence. He also sued the Government of Canada, represented by the Attorney General of Canada, for negligent misrepresentation. He sought declaratory relief and damages of $25,000.[10]

5. On appeal to the Court of Appeal for Ontario, Black sought three declarations. First was a declaration that the Prime Minister and the Government of Canada had no right to advise the Queen not to confer an honour on a British citizen or a dual citizen. The second was a declaration that the Prime Minister committed an abuse of power by intervening with the Queen to prevent him from receiving a peerage. The third was a declaration that the Government of Canada negligently misrepresented to Mr. Black that he would be entitled to receive a peerage if he became a dual citizen and refrained from using his title in Canada. The respondents acknowledged that the negligent misrepresentation claim against the Government of Canada could proceed to trial. However, they moved to dismiss all other claims against the Government of Canada and all claims against the Prime Minister.[11]

   The questions asked by Court of Appeal

6. There were in essence three questions for the Court to determine. In the words of Laskin JA, giving the principle judgement of the Court, the broad question raised by Mr Black's pleading was whether it disclosed a justiciable cause of action against the Prime Minister. Was it plain and obvious that, in advising the Queen about the conferral of an honour on a Canadian citizen, the Prime Minister was exercising a prerogative power of the Crown?[12] If so, was it plain and obvious that this exercise of the prerogative is not reviewable by the courts?[13] If the Prime Minister's exercise of the prerogative was reviewable, does the Superior Court have jurisdiction to grant declaratory relief?[14]

7. There was an important question of justiciability of the royal prerogative at stake. The royal prerogative has spread throughout the Commonwealth.[15] It consists of those privileges and powers of the Crown recognized or accorded by the common law.[16] The prerogative can be regarded as a branch of the common law because decisions of courts determine both its existence and its extent. As some parts of the prerogative remain non-justiciable, it is perhaps better to regard the prerogative as not being part of the common law as such. The common law courts have been limiting the prerogative since Coke J and the Case of Proclamations in 1611.[17] But they are reluctant to interfere with the prerogative in certain areas. These include those parts of the prerogative which concern national security, the conduct of foreign policy, and the honours prerogative. These areas are non-justiciable.[18]

   The findings of the Court

8. Mr Black's submitted that in Canada, only the Governor-General can exercise the prerogative.[19] The Court of Appeal could find no support for this proposition in theory or in practice.[20]

9. The Court noted that the 1947 Letters Patent Constituting the Office of the Governor-General[21] empowers the Governor-General "to exercise all powers and authorities lawfully belonging to Us in respect of Canada."[22] By convention, the Governor-General exercises her powers on the advice of the Prime Minister or Cabinet.[23] Although the Governor-General retains discretion to refuse to follow this advice, in Canada that discretion has been exercised only in the most exceptional circumstances.[24] This was an unexceptional review of the constitutional position.

10. The Court continued: "As members of the Privy Council, the Prime Minister and other Ministers of the Crown may also exercise the Crown prerogative."[25] This conclusion was based upon the judgement of Wilson J. in Operation Dismantle that the prerogative power may be exercised by cabinet ministers and therefore does not lie exclusively with the Governor-General.[26] This is perhaps an unfortunate choice of words. It does not mean that a minister can exercise a prerogative power, but rather the exercise of the prerogative is on the advice of these ministers.

11. In a brief analysis of the prerogative, the Court observed how in England the prerogative was gradually relocated from the Sovereign personally to their advisors or ministers. For this reason it came to be usual to refer to those powers as belonging to the Crown.[27] This gradual relocation of the prerogative is consistent with Professor Wade's general view of the Crown prerogative as an "instrument of government".[28] The conduct of foreign affairs, for example, "is an executive act of government in which neither the Queen nor Parliament has any part".[29]

12. Although this was a point on which the Court did not comment, it is suggested that this contention is not quite correct. It is true that Parliament has no inherent role in foreign affairs - in that it is ultimately the responsibility of the executive (though legislation may regulate certain aspects of foreign affairs, and Parliament has assumed some functions),[30] - but the Queen and the Governor-General do have a role, both legally and practically.[31] The Crown must be seen as a corporation, in which several parts share of the authority of the whole, with the Queen as the person at the centre of the constitutional construct.[32]

13. Statutes have tended to use the terms "Her Majesty the Queen" and "the Crown" interchangeably and apparently arbitrarily.[33] There appears to have been no intention to draw any theoretical or conceptual distinctions. This may simply be a reflection of a certain looseness of drafting, but it may have its foundation in a certain lack of certainty felt by legal draftsmen as much as by the general public.[34] This may perhaps be explained by briefly reviewing the evolution of the concept of the Crown. In essence, the difficulties highlighted by Black v Chrétien are those resulting from the evolution of the Crown, both as a post-imperial legacy, and as an abstract institution of government.

14. "The Crown" itself is a comparatively modern concept. As Maitland said, the king was merely a man, though one who does many things.[35] For historical reasons the king or queen came to be recognised in law as not merely the chief source of the executive power, but also as the sole legal representative of the State or organised community.[36]

15. Thus the role of the Crown was eminently practical. In the tradition of the common law constitutional theory was subsequently developed which rationalised and explained the existing practice. Maitland believed that the Crown, as distinct from the king, was anciently not known to the law but in modern usage had become the head of a "complex and highly organised 'corporation aggregate of many' - of very many".[37] In Adams v Naylor,[38] the House of Lords adopted Maitland's legal conception of the Crown.[39]

16. In the course of the twentieth century the concept of the Crown succeeded the king as the essential core of the corporation, which is now regarded as a corporation aggregate rather than a corporation sole.[40]

17. The Crown has always operated through a series of servants and agents, some more permanent than others. The law recognises the Crown as the body in whom the executive authority of the country is vested, and by which the business of executive government is exercised.

18. Whether we have a Crown aggregate or corporate, the government is that of the Sovereign,[41] and the Crown has the place in administration held by the State in other legal traditions. The Crown, whether or not there is a resident Sovereign, acts as the legal umbrella under which the various activities of government are conducted. Indeed, the very absence of the Sovereign has encouraged this modern tendency for the Crown to be regarded as a concept of government quite distinct from the person of the Sovereign.

19. The separation of the Crown and its development in different countries - whilst retaining the same person as Sovereign of each - has however led to difficulties with respect to the exercise of the prerogative.[42] It is not always clear which prerogative is being exercised, or who has the right to advise the Crown on the exercise of that prerogative.[43]

20. It must be asked whether the right to advise the Crown is the same as the actual exercise of that prerogative. The Court of Appeal for Ontario has perhaps gone too far in saying, as Laskin JA did, that "I conclude that the Prime Minister and the Government of Canada can exercise the Crown prerogative as well.[44] The royal prerogative remains with the Queen and the Governor-General, though the right to advise the Crown is diffused.

21. In giving the judgment of the Court of Appeal, Laskin JA continued: "In my view, however, whether one characterizes the Prime Minister's actions as communicating Canada's policy on honours to the Queen, giving her advice on Mr. Black's peerage, or opposing Mr. Black's appointment, he was exercising the prerogative power of the Crown relating to honours".[45]

22. Strictly, the Prime Minister was advising the Crown in the exercise of the prerogative, for it is the Crown, and not the Prime Minister, to which the honours prerogative belongs. It was equally non-justiciable however. Holding that the exercise of the honours prerogative is always beyond the review of courts is not a departure from the subject matter test espoused by the House of Lords in the Civil Service Unions Case.[46] Rather, as has been written elsewhere, it is faithful to that test.[47]

23. The basis for the continued non-justiciability of the honours prerogative appears to be founded it the absence of any legitimate expectation. As Laskin JA observed,

    "The refusal to grant an honour is far removed from the refusal to grant a passport or a pardon, where important individual interests are at stake. Unlike the refusal of a peerage, the refusal of a passport or a pardon has real adverse consequences for the person affected. Here, no important individual interests are at stake. Mr. Black's rights were not affected, however broadly "rights" are construed. No Canadian citizen has a right to an honour."[48]

24. However, it would perhaps be more accurate to note that the surviving prerogatives which have been held to be non-justiciable have, in the approach adopted by the House of Lords in the Civil Service Unions Case,[49] a nature which is not amenable to judicial scrutiny. Honours are clearly of that nature, for the granting of honours involves "oral and political considerations which it is not within the province of the courts to assess".[50]

    Questions remaining

25. The foregoing discussion may be taken to show that the honours prerogative, and by extension the other "political" prerogatives of the Crown (such as treaty-making, defence, mercy, dissolution of Parliament, appointment of ministers)[51] is non-justiciable. But the royal prerogative is exercised by the Queen or Governor-General (in some instances Lieutenant-Governor) on the advice of responsible ministers, and are not the exclusive preserve of ministers - though they may sometimes appear to be.[52]

26. The major question which is raised by this case, and which was not addressed by the Court, was what happens when conflict occurs between the Crown's advisors. British honours are principally the concern of British minister, and likewise Canadian ministers can advise the Queen with respect to Canadian honours. Whether Canadian ministers can advise the Queen with respect to Canadian citizens receiving British honours raises important constitutional questions. Whilst there may be no important individual interests at stake, the identification of the proper sources of advice to the Crown is critical.[53]

27. Monarchy concentrates legal authority and power in one person, even where symbolic concentration alone remains.[54] This was the logic underpinning the belief in the eighteenth and nineteenth centuries in the unity of the Crown. The imperial Crown was one and indivisible. "The colonies formed one realm with the United Kingdom", the whole being under the sovereignty of the Crown.[55] This sovereignty was exercised on the advice of imperial Ministers.

28. In his seminal work on the royal prerogative, Herbert Evatt showed how this unity of the Crown was the very means through which separateness of the Dominions was achieved. The indivisibility of the Crown meant the existence of royal prerogatives throughout the empire. The identity of those who could give formal advice to the Crown changed from imperial to Dominion Ministers - and little or no formal legal changes were needed for countries to change from being colonies to being fully independent.[56]

29. By 1919 most of the powers of the Crown abroad were exercised on the advice of local ministries in all the Dominions and self-governing colonies.[57] That this was not yet a complete transference can be seen by the argument of the New Zealand Prime Minister, the Rt Hon William Massey, at the Imperial Conference of 1921. He maintained the principle that "when the King, the Head of State, declares war the whole of his subjects are at war".[58] Dominions might sign commercial treaties, but not those concluding a war. Some aspects of external affairs were still a matter for the imperial authorities.[59]

30. The right to advise the Crown in the exercise of the war prerogative was kept in the hands of British Ministers, and the right to advise the Crown excluded imperial concerns such as nationality, shipping, and defence.[60] This was to change however, as the Dominions had been given membership of the League of Nations after the First World War, and came to be regarded in international law as independent countries.[61]

31. The problem of the remaining limitations on Dominion independence was examined at the Imperial Conference in 1926. The Report of the Inter-Imperial Relations Committee to the Conference included the famous declaration that the Dominions:

    are autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.[62]

32. There had been uncertainty as to what precisely had been agreed in 1926, though initially most commentators simply assumed that British Ministers would continue to provide the king's only source of constitutional advice.[63] The former Australian Prime Minister, the Rt Hon William Hughes, distinguished between sources of formal and informal advice, with the British government providing the former, the Dominion governments the latter.[64] Arthur Berridale Keith thought however that

    the suggestion that the King can act directly on the advice of Dominion Ministers is a constitutional monstrosity, which would be fatal to the security of the position of the Crown.[65]

33. However, the Irish government thought there was now only a personal union of the Crown.[66] It this were so, then imperial Ministers could have no role in advising the king with respect to any matter internal to a Dominion. The Irish may not have reflected the majority view, but theirs made much more logical sense than that, for example, of Hughes.

34. Once the principle was established that the Dominions were equal with the United Kingdom, it was inevitable that the Dominions should acquire the exclusive right to advise the Crown on matters which related exclusively to those Dominions. This was to be gained in the course of the 1920s and 1930s, and finally settled in the 1940s. As a logical consequence of the doctrine of equality, this was the only possible outcome.

35. It was the Second World War which finally settled the question of whether there was a complete transfer to Dominion Ministers of the right to advise the Crown on matters which concerned the Dominions, and therefore complete executive or political independence.[67] It would follow that in all matters with respect to British honours and British subjects the Queen relies upon the advice of British ministers, and similarly upon the advice of Canadian ministers for Canadian subjects and Canadian honours. Keith's feared conundrum has come to pass. The Queen should act solely upon the advice of British ministers when awarding a British peerage.[68] If her Canadian Prime Minister offers her advice, it is to her as Queen of Canada. As Queen of Canada she is powerless to prevent the conferring of a British title, though she could consult with herself, wearing her other hat, as it were.

36. In reality, the Queen would not be placed in the intolerable position which was narrowly avoided, if her respective Ministers, Canadian and British, were always able to reconcile their differences. Doubtless, the British Prime Minister did not insist upon Conrad Black's peerage being conferred.

37. But it may not always be possible to reconcile potential differences. Had Mr Blair insisted upon advising the Queen to confer a peerage upon Mr Black, the Queen would have had little choice but to accede to his wishes. The peerage was in effect a British office, and as such wholly within the field of the British prerogative, exercisable on the advice of the British Prime Minister. Had a foreign Sovereign sought to appoint Mr Black to an office, the Canadian Prime Minister would have been equally unable to intervene. The Queen of Canada has no role in the creation of United Kingdom peers, and so could not prevent Mr Black from being ennobled on the advice of Mr Blair. Unfortunately, it also partook of the nature of a titular honour, and as such subject to the rules which govern the acceptance of Commonwealth and foreign honours.[69]

38. It is probably not coincidental that the 2001 Queen's Birthday honours list in the United Kingdom included two knighthoods for Canadians, both long resident in the United Kingdom.[70] Perhaps it was a message to Jean Chrétien that he ought not to interfere with the British honours system. Perhaps it would be desirable to rewrite the Canadian policy and regulations on the acceptance of Commonwealth and foreign orders, decorations and medals[71] to address the particular situation.

39. Ultimately, however, the difficulty arose because of a lack of clear understanding of the difference between the Queen's position as Queen of Canada and Queen of the United Kingdom. It would be as inappropriate for the Prime Minister of Canada to advise the Queen of the United Kingdom (on any matter), as it would be for the Prime Minister of the United Kingdom to advise the Queen of Canada.

40. In the end, Conrad Black did become a peer. In 2001 he was raised to the peerage of the United Kingdom,[72] after he renounced his Canadian citizenship.[73]