- Magna Carta (1215)
- Petition of Right (1628)
- Habeas Corpus Act (1679)
- Bill of Rights (1689)
- Act of Settlement (1701)
- Reform Act (1832)
- Various acts expanding the franchise (1867, 1884, 1928)
- Life Peerages Act (1958)
- Scotland Act (1998)
- House of Lords Act (1999)
The United Kingdom is, in fact, one of a very few polities in the world lacking a written constitution taking precedence over ordinary statutes. This has given that nation the unique status of being at once very traditional and very modern. As Walter Bagehot put it in 1867, his country is a kind of disguised republic containing dignified and efficient institutions:
The brief description of the characteristic merit of the English Constitution is that its dignified parts are very complicated and somewhat imposing, very old and rather venerable; while its efficient part, at least when in great and critical action, is decidedly simple and rather modern.This reality has made Britain's constitution fascinating to outsiders, who typically live in countries where a certain amount of political invention and reinvention has occurred within their constitutional histories. Burkean conservatives love the British constitution as it combines historical continuity with progressive development, having experienced only a brief interregnum in the 17th century during the Civil War.
Canada stands in this tradition and, up until 1982, could boast a similarly unwritten constitution. With the adoption of our Constitution Acts, 1867 and 1982, we now join the rest of the world in having entrenched documents amendable by qualified majorities, standing above mere statutes, and refereed by the courts. Yet Canada's constitution can be labelled partially written at best, because in addition to our Constitution Acts, we also have statutes, court decisions, and unwritten conventions that fill out our constitution. In short, our country's political institutions have developed in an incremental way similar to those in the UK. This appears to have made Britain's and Canada's constitutions uniquely resilient and durable.
However, there is a huge drawback to all this in that, when radical change is needed to address unanticipated issues, our constitutions appear to have a built-in reluctance to change. This presents a paradox: while an unwritten constitution can seemingly develop to meet new challenges without the time-consuming process of amending an entrenched document, the fact that it is rooted in centuries-old usages may make it impervious to certain types of changes. For example, during and immediately after the Great War, the United Kingdom lost most of the ancient Irish kingdom with which it had been formally united more than a century earlier. Because the Westminster system is based on majoritarian assumptions, it could not easily accommodate the aspirations of the Irish as a distinctive nation with long memories of English and Scottish domination and oppression. Today, with the UK's exit from the European Union, I believe there is a greater than even possibility of Scotland going it alone and rejoining Europe as an independent country. This will make the United Kingdom, or what is left of it, a misnomer at best.
There is a good reason why the United Kingdom is not usually grouped with such countries as Belgium, the Netherlands, Austria, and Lebanon as an example of consociationalism, because the entire political system is predicated on unqualified majority rule as embodied in an alternation between two principal political parties.
We have it worse here in Canada, where a party receiving less than a third of the popular vote leads a single-party minority government—something unimaginable virtually anywhere else in the western world. In most ways Canada fails most of the criteria for a consociational polity as we discussed here and here. We lack a truly federal upper parliamentary chamber that might overrepresent the less populous provinces in Ottawa. We have a single-member-plurality (SMP) electoral system that produces winners and losers, wastes huge numbers of votes, and makes the country look on the map more divided than it actually is. Moreover, our SMP system rewards separatist and regional parties while handicapping principled parties whose support is more geographically diffuse and which have a broader view of the public interest. And while Canada is more politically stable than the vast majority of countries in the world, our simmering national unity crisis never completely goes away, bringing us to brink of dissolution twice in my lifetime.
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Nevertheless, and it's taken me some time to get to this, there are certain consociational features that were adopted fairly early in our history and have continued to develop over the decades. The salient feature that has defined Canada from the outset is our division into anglophone and francophone communities coupled with a federal division of powers. Historically about three-quarters of us have English as our mother tongue while the remaining quarter have French. The French language is disproportionately concentrated in the province of Québec, although around a third of New Brunswick's population speaks French and pockets of French-speaking communities are found in eastern and northern Ontario and into the Prairies.
After Britain conquered Canada in 1759 during the Seven Years' War, she found herself with a huge territory extending from the Mississippi through the St. Lawrence River to the Atlantic Ocean, most of whose European population was Catholic and French-speaking. In 1774, 11 years after the Treaty of Paris ceded Canada to her, Britain established the Province of Québec, a sprawling entity extending from the St. Lawrence Valley through the Great Lakes to the juncture of the Mississippi and Ohio Rivers. In this huge territory, Roman Catholicism would be tolerated, as would the French language of its European inhabitants. After Britain lost the Great Lakes region to the new United States in 1783, she reorganized her Canadian possessions in 1791 into Upper and Lower Canada, the latter of which was largely French-speaking.
After the rebellions of 1837, Lord Durham's Report recommended, among other things, that the two Canada's be reunited into a single Province of Canada, encompassing what are today the southern portions of Ontario and Québec. Durham's hope was that the francophone population would eventually be assimilated into the anglophone population. This, of course, did not happen. But it did lead to power-sharing between the two groups in the parliament, which met in several Canadian cities successively during the 26 years of its existence. The Act of Union of 1840, which created the new political entity, was an experiment in co-operation between the two solitudes separated by language and religion. But it definitely handicapped the francophone population.
At Confederation in 1867, Canada was once again divided into the new provinces of Ontario and Québec, joining with New Brunswick and Nova Scotia in forming the Dominion of Canada, whose name was now applied to the entire federation. This represented an admission by Canadians that the experiment in legislative union begun in 1841 was a failure, suggesting that a federal system would allow the francophone population, which showed no signs of fading away, its own governing institutions in Québec. Unlike the English-speaking provinces, which followed the Common Law principles inherited from England, Québec would have its own civil code based on the ancient Roman law as mediated by the Napoleonic Code. The new arrangement enabled local control and federal unity under the constitutional principle of responsible government. Nevertheless, the continued imperial connection exacerbated French-English tensions, especially during the two world wars, when conscription proved especially divisive.
Despite the majoritarian character of Canada's political system, certain conventions developed to bridge the gap between francophones and anglophones. First, after the governor general's office effectively became Canadian with the appointment of Vincent Massey in 1952, a convention developed whereby an anglophone would alternate with a francophone in the office, thereby underscoring the unifying principle of the monarchy. We have continued this practice for nearly seven decades. Second, the Liberal Party has alternated between francophone and anglophone leaders since 1896, thereby undertaking to unify the two linguistic groups in the country. The Conservatives have been much less effective in this and have often governed in Ottawa with minimal, if any, representation in Québec. However, the Liberals have been far less effective than the Conservatives in bridging the chasm between central Canada and the resource-rich western provinces, whose smaller population has given them less influence in Ottawa. Only Brian Mulroney's Conservatives in 1984 were able to put together the equivalent of a grand coalition government with representatives from Québec, Ontario, and the west, a feat they were unable to repeat four years later.
As a self-conscious nation within Canada, Québec has long sought a veto on constitutional change, which it believes is only fair given its minority status in a sea of anglophones. Yet whenever Québec demands this, the other nine provinces queue up behind it to demand the same thing. This makes most constitutional changes difficult to pull off, because so many issues are locked behind a unanimity requirement in the Constitution Act, 1982. If the UK were to alter the status of the monarchy, it could do so with a simple parliamentary majority. We could not follow suit, because here it would require, in addition to Ottawa, every province to come onside of the proposed amendment. The monarchy is more securely established here than it is in Great Britain, due primarily to its status in a largely inflexible constitutional document.
During his first election campaign in 2015, Justin Trudeau promised to adopt proportional representation for future federal elections. If so, this would be a huge step away from our majoritarian heritage and towards a consociational arrangement more suitable to our diverse and sprawling country. As I had predicted at the time, however, Trudeau ended up retracting his promise, with the result that we continue to be saddled with a system that rewards the Liberals and Conservatives and unfairly handicaps the smaller parties. It is easy to get the New Democratic Party and the Greens to agree with proportional representation, because it would benefit them. Liberals and Conservatives are unenthusiastic because they would stand to lose power in a parliament that distributed it according to the parties' respective proportion of the vote.
Suffice it as well to say that we have never entirely resolved the aboriginal issue, which continues as a stain on our history but which consociational measures might help to ease.
In my last instalment I noted that there are similarities and differences between Belgium and Canada which make them worth comparing for our purposes:
- Both countries experienced massive secularization, which led to a precipitous decline in church attendance. In Canada this was especially the case in Québec, which underwent a Révolution Tranquille, or Quiet Revolution, in 1960s.
- This factor led to a shift in social/cultural cleavages from religious faith to language. Prior to 1960s the Ottawa River formed boundary between Catholic Québec and Protestant Ontario. Following the secularization of both provinces, it merely formed the boundary between French-speakers and English-speakers.
- Belgium and Canada adopted opposite approaches to this change. Canada adopted official bilingualism from coast to coast under Pierre Trudeau, at least within the federal public service. Belgium adopted official unilingualism in the two linguistic regions of Flanders and Wallonia, with Brussels remaining the exception.
- Belgium has adopted a consociational approach to enabling the communities to coexist, while Canada retains a majoritarian system with some consociational features.
- And finally both countries are at risk of breaking up.
It is almost a joke to treat Canada under the broad rubric of consociationalism, because, except in a very few respects, we are almost precisely the opposite. Our system routinely creates artificial majorities out of dominant minorities, failing to represent the full spectrum of political opinion in the House of Commons. This puts Canada's long-term future in doubt.