Black v Chr?tien and the honours prerogative
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Black v Chr?tien
: suing a
Minister of the Crown for abuse of power, misfeasance in public
office and negligence
Noel Cox(1)
first published in (September 2002) 9(3) E-Law,
Murdoch University Electronic Journal of Law available at
<http://www.murdoch.edu.au/elaw/issues/v9n3/cox93.html>
Abstract
Tony Blair, the British Prime Minister advised The Queen to
elevate Conrad Black, a Canadian businessman, to the peerage.
However, Jean Chr?tien, Prime Minister of Canada, intervened,
and advised the Queen to not confer the peerage on Mr Black.
Acting upon this latter advice (which Mr Chr?tien was entitled
to give as chief minister to the Queen of Canada), the Queen -
now in her capacity of Queen of the United Kingdom - declined to
ennoble Mr Black. As a consequence Black sued the Prime Minister
and the Attorney-General of Canada for abuse of power,
misfeasance in public office and negligence. Although the Ontario
Court of Appeal rejected Blacks case - on the grounds that
the advice tendered to the Queen by Mr Chr?tien was
non-justiciable, this litigation has raised important
constitutional questions. In particular, what happens when
conflict occurs between Crowns 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 problem could be avoided if the respective Ministers,
British and Canadian, were to reconcile any difficulties and so
prevent the Queen from being placed in an otherwise intolerable
position. Doubtless, the British Prime Minister did not insist
upon Conrad Blacks peerage being conferred - indeed, when
the dispute first arose his spokesman cautiously observed that
"it is the practice to seek the approval of the Canadian
government when it is proposed that a Canadian citizen is
honoured". Yet, the British Prime Minister had already
advised the Queen, and he could have chosen to insist upon that
advice being followed. This could have presented a constitutional
dilemma of some difficulty for the Sovereign.
Introduction
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).(2) The rights and duties of
peers depend entirely upon custom.(3) The principal legal
distinction of British peers is or was - their right to
sit and vote in Parliament.(4) 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.(5) Essentially, Mr Black
was seeking, and had been promised, a seat in the upper house of
the British Parliament.(6)
His ennoblement received the endorsement of William Hague,
then Leader of the Opposition, and obtained the necessary
approvals in the United Kingdom.(7) The British Prime Minister
had sought the approval of the Canadian Government for Conrad
Blacks honour, and this was given.(8) Tony Blair, the Prime
Minister, advised The Queen to confer the title upon Mr Black.
However, Jean Chr?tien, Prime Minister of Canada, then
intervened, and advised The Queen to not confer the peerage on Mr
Black.(9) The reasons given for the subsequent adverse advice to
the Queen from Chr?tien included the claimed long-standing
Canadian opposition to titular honours, said to have been
encapsulated in the Nickle declaration of 1919.(10)
As a consequence Black sued the Prime Minister and the
Attorney-General of Canada. Although the Ontario Court of Appeal
rejected Blacks case, this litigation has raised important
constitutional questions. In particular, what happens when
conflict occurs between Crowns 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
The appellant Conrad Black alleged that the Canadian Prime
Minister Jean Chr?tien intervened with the Queen to oppose his
appointment and that, but for the Prime Ministers
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.(11)
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.(12)
The questions asked by Court of Appeal
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
Blacks 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?(13) If so, was it plain and
obvious that this exercise of the prerogative is not reviewable
by the courts?(14) If the Prime Ministers exercise of the
prerogative was reviewable, does the Superior Court have
jurisdiction to grant declaratory relief?(15)
There was an important question of justiciability of the royal
prerogative at stake. The royal prerogative has spread throughout
the Commonwealth.(16) It consists of those privileges and powers
of the Crown recognized or accorded by the common law.(17) 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.(18) 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.(19)
The findings of the Court
Mr Blacks submitted that in Canada, only the
Governor-General can exercise the prerogative.(20) The Court of
Appeal could find no support for this proposition in theory or in
practice.(21)
The Court noted that the 1947
Letters Patent Constituting
the Office of the Governor-General
(22)
empowers the
Governor-General "to exercise all powers and authorities
lawfully belonging to Us in respect of Canada."(23) By
convention, the Governor-General exercises her powers on the
advice of the Prime Minister or Cabinet.(24) 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.(25) This was an unexceptional
review of the constitutional position.
The Court continued: "As members of the Privy Council,
the Prime Minister and other Ministers of the Crown may also
exercise the Crown prerogative."(26) 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.(27)
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.
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.(28) This gradual relocation of the prerogative is
consistent with Professor Wades general view of the Crown
prerogative as an "instrument of government".(29) The
conduct of foreign affairs, for example, "is an executive
act of government in which neither the Queen nor Parliament has
any part".(30)
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),(31)
- but the Queen and the Governor-General doo have a role, both
legally and practically.(32) 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.(33)
Statutes have tended to use the terms "Her Majesty the
Queen" and "the Crown" interchangeably and
apparently arbitrarily.(34) 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.(35) This may perhaps be explained by briefly reviewing
the evolution of the concept of the Crown. In essence, the
difficulties highlighted by
Black v Chr?tien
are those
resulting from the evolution of the Crown, both as a
post-imperial legacy, and as an abstract institution of
government.
"The Crown" itself is a comparatively modern
concept. As Maitland said, the king was merely a man, though one
who does many things.(36) 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.(37)
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".(38) In
Adams v Naylor
,(39) the House of Lords
adopted Maitlands legal conception of the Crown.(40) 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.(41)
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.
Whether we have a Crown aggregate or corporate, the government
is that of the Sovereign,(42) 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.
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.(43) 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.(44)
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.(45) The royal prerogative remains with the Queen and the
Governor-General, though the right to advise the Crown is
diffused.
In giving the judgment of the Court of Appeal, Laskin JA
continued: "In my view, however, whether one characterizes
the Prime Ministers actions as communicating Canadas
policy on honours to the Queen, giving her advice on Mr.
Blacks peerage, or opposing Mr. Blacks appointment,
he was exercising the prerogative power of the Crown relating to
honours".(46)
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.(47) Rather, as has
been written elsewhere, it is faithful to that test.(48)
The basis for the continued non-justiciability of the honours
prerogative appears to be founded it the absence of any
legitimate expectation. As Larkin 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. Blacks rights were
not affected, however broadly "rights" are construed.
No Canadian citizen has a right to an honour."(49)
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
,(50) 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".(51)
Questions remaining
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(52)), 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.(53)
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 Crowns 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.(54)
Monarchy concentrates legal authority and power in one person,
even where symbolic concentration alone remains.(55) 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.(56) This sovereignty was exercised on the advice of
imperial Ministers.
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.(57)
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.(58) 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".(59) Dominions might sign commercial treaties, but not
those concluding a war. Some aspects of external affairs were
still a matter for the imperial authorities.(60)
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.(61) 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.(62)
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.(63)
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 kings
only source of constitutional advice.(64) 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.(65) 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.(66)
However, the Irish government thought there was now only a
personal union of the Crown.(67) 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.
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.
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.(68) 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. Keiths feared conundrum has come to pass. The
Queen should act solely upon the advice of British ministers when
awarding a British peerage.(69) 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.
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 Blacks peerage being conferred.
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.(70)
It is probably not coincidental that the 2001 Queens
Birthday honours list in the United Kingdom included two
knighthoods for Canadians, both long resident in the United
Kingdom.(71) Perhaps it was a message to Jean Chr?tien 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(72) to address the particular situation.
Ultimately, however, the difficulty arose because of a lack of
clear understanding of the difference between the Queens
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.
Ultimately, Conrad Black did become a peer. In 2001 he was
raised to the peerage of the United Kingdom,(73) after he
renounced his Canadian citizenship.(74)
Top
(1)LLM(Hons) PhD, Barrister of the High Court of New Zealand,
and of the Supreme Courts of Tasmania, New South Wales, the
Northern Territory, and South Australia, Lecturer in Law at the
Auckland University of Technology.
(2)This United Kingdom Act excluded hereditary peers and
peeresses from the House of Lords, subject to a temporary stay
for a nominal group of representative peers; ss 1, 2 House of
Lords Act 1999 (UK).
(3)
Berkeley Peerage Case
(1861) 8 HL Cas 21; 11 ER 333.
(4)
Norfolk Earldom Case
[1907] AC 10, 17, per Lord
Davey.
(5)Ecclesiastical dignitaries have formed part of the House of
Lords from the earliest times, though they were excluded from
1640 to 1661: Clergy Act 1640 (Eng) (16 Chas II c 27); Clergy Act
1661
(Eng) (13 Chas 2 c 2).
(6)Life peers are appointed by letters patent of the
Sovereign, sealed with the Great Seal, under the authority of the
Appellate Jurisdiction Acts 1876-1947 (UK). Despite the Life
Peerages Act 1958 (6 & 7 Eliz II c 21)
(UK), the Crown
of the United Kingdom still does not have the power to confer
peerages for life. Creations must be in accordance with one or
other of the statutory measures:
Wensleydale Peerage Case
(1856) 5 HLC 958; 10 ER 1181. See also the
Report as to the
Dignity of a Peer of the Realm
(London: HMSO, 1829 Reprint)
vol 5 at p. 81.
(7)Sandra Barwick, "Canadian Prime Minister blocks
Blacks life peerage", Daily Telegraph (London), 19 June
1991. The standard procedure for the creation of
"working" peers to perform regular parliamentary duties
rather than as an honour - calls for the creation to be
endorsed by the leader of one of the three principal political
parties. It will not, however, proceed unless and until it
receives the approval of the Political Honours Scrutiny
Committee, and of the Prime Minister, who advises The Queen to
confer the title; House of Lords Briefing Paper, "The
Membership of the House of Lords"
<http://www.publications.parliament.uk/pa/ld/hlmems.pdf> at
2 July 2002. There is now a House of Lords Appointments
Commission, responsible for advising The Queen on the appointment
of non-political members of the House of Lords, and for
scrutinizing all nominations;
<http://www.houseoflordsappointmentscommission.gov.uk/members.htm>
at 2 July 2002.
(8)By letter dated 9 June 1999; cited in
Black v Chr?tien
,
unreported, Court of Appeal for Ontario, Laskin, Goudge and
Feldman JJA, 18 May 2001, C33887, para 9 per Laskin JA.
(9)Sandra Barwick, "Canadian Prime Minister blocks
Blacks life peerage", Daily Telegraph (London), 19 June
1991. It was the standard practice to seek the approval of the
Canadian government when it is proposed that a Canadian citizen
was to be honoured.
(10)House of Commons Debates, 22 May 1919. As a resolution of
the House of Commons it was not binding on the Crown or
Parliament, nor was it actually followed by all successive
Canadian governments. For one example of many, Richard Bennett,
Prime Minister of Canada 1930-35, was created a viscount in 1941.
There are numerous examples of lesser honours both before and
since then.
(11)
Black v Chr?tien
,
unreported, Court of
Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001,
C33887, para 1 per Laskin JA.
(12)
Black v Chr?tien
,
unreported, Court of
Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001,
C33887, para 16 per Laskin JA.
(13)
Black v Chr?tien
,
unreported, Court of
Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001,
C33887, para 4 per Laskin JA.
(14)
Black v Chr?tien
,
unreported, Court of
Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001,
C33887, para 4 per Laskin JA.
(15)
Black v Chr?tien
,
unreported, Court of
Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001,
C33887, para 4 per Laskin JA.
(16)N. Cox,
The Dichotomy of Legal Theory and Political
Reality: The Honours Prerogative and Imperial Unit
y, 14
Australian Journal of Law and Society (1998-99) 15 at 19.
(17)Peter Hogg,
Constitutional Law in Canada
Loose-Leaf
Edition (Toronto: Carswell, 1995) at 1.9. See also
Case of
Proclamations
(1611), 77 E.R. 1352 (K.B.).
(18)12 Co Rep 74; 77 E.R. 1352 (K.B.).
(19)
Council of Civil Service Unions v Minister for the
Civil Service
[1985] AC 374, 418 per Lord Roskill
(generally);
R v Secretary of State for Foreign and
Commonwealth Affairs, ex parte Everett
[1989] 1 All ER 655,
660 per Taylor LJ (foreign affairs).
(20)
Black v Chr?tien
,
unreported, Court of
Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001,
C33887, paras 24, 31 per Laskin JA.
(21)
Black v Chr?tien
,
unreported, Court of
Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001,
C33887, paras 31-33 per Laskin JA.
(22)Letters Patent constituting the Office of Governor-General
of Canada, effective 1 October 1947 (Canada Gazette, Part I, vol
81, p 3104).
(23)Letters Patent constituting the Office of Governor-General
of Canada, effective 1 October 1947 (Canada Gazette, Part I, vol
81, p 3104).
(24)See, for example, N. Cox,
The control of advice to the
Crown and the development of executive independence in New
Zealand
, 13(1) Bond Law Review (2001) 166.
(25)Relying on Paul Lordon,
Crown Law
(Toronto:
Butterworths, 1991) at p. 70;
Black v Chr?tien
,
unreported,
Court of Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18
May 2001, C33887, para 31 per Laskin JA.
(26)
Black v Chr?tien
,
unreported, Court of
Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001,
C33887, para 32 per Laskin JA.
(27)
Operation Dismantle Inc v The Queen
[1985] 1SCR 411
(SC Canada).
(28)Bridgid Hadfield,
Judicial Review and the Prerogative
Power
in M. Sunkin and S. Payne,
The Nature of the Crown
(Oxford:
Oxford University Press, 1999) at p. 199.
(29)Commentary on Diceys
Introduction to the Study of
the Law of the Constitution
9 th ed. (London: Macmillan,
1950).
(30)F.A. Mann,
Foreign Affairs in English Courts
(Oxford:
Clarendon Press, 1986) at p. 2. See also
Barton v.
Commonwealth of Australia
(1974) A.L.J.R. 161 at 172. Cited
in
Black v Chr?tien
,
unreported, Court of Appeal
for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001, C33887,
para 32 per Laskin JA.
(31)Department of Foreign Affairs and International Trade Act,
R.S.C. 1985 c. E-22.
(32)The legal role of the Sovereign and Governor-General
includes approving the appointment of diplomatic envoys, and (in
rare cases) the signing of treaties and the proclamation of war.
The conduct of foreign affairs is in the name of the Sovereign;
R
v Hampden
(1637) 3 State Tr 826. A practical consequence of
this latter role can be seen in Sir Paul Hasluck,
The
Government and the People, 1942-1945
(Canberra: Australian
War Memorial, 1970) at pp. 4-12.
The practical role of both include receiving State visitors
and embarking upon State and official visits, and exercising the
usual functions of a head of State in international law and
practise; Ministry of Foreign Affairs and Trade,
Presentation
of Credentials in New Zealand
(Wellington: Ministry of
Foreign Affairs and Trade, 1997); Vernon Bogdanor,
The
Monarchy and the Constitution
(Oxford: Clarendon Press,
1995).
(33)For which see N. Cox,
The Theory of Sovereignty and the
Importance of the Crown in the Realms of The Queen
, 2(2)
Oxford University Commonwealth Law Journal (2002).
(34)For example, the word "Sovereign" appears in New
Zealand statutes only in the Sovereigns Birthday Observance
Act 1952. In the Constitution Act 1986 s 2 "Crown" is
defined as "Her Majesty the Queen in right of New Zealand;
and includes all Ministers of the Crown and all
departments".
(35)For this conceptual uncertainty, see Hayward, Janine,
"In search of a treaty partner" (1995) Victoria
University of Wellington PhD thesis; Interview with Sir Douglas
Graham, 24 November 1999.
(36)
The Crown as a Corporation
, 17 Law Quarterly Review
(1901) 131.
(37)According to Maitland, the crumbling of the feudal State
threatened to break down the identification of the king and
State, and as a consequence Coke recast the king as the legal
representative of the State. It was Coke who first attributed
legal personality to the Crown; F. Maitland,
The Crown as a
Corporation
, 17 Law Quarterly Review 131 (1901). He recast
the king as a corporation sole, permanent and metaphysical. The
kings corporate identity also drew support from the
doctrine of succession that the king never dies; W. Stubbs,
The
Constitutional History of England
(Oxford: Clarendon Press,
1906) vol ii, at p. 107
(38)F. Maitland,
The Crown as a Corporation
, 17 Law
Quarterly Review 131 (1901).
(39)[1946] AC 543, 555 (HL).
(40)It has also been accepted by the Supreme Court of Canada:
Verreault
v Attorney-General of Quebec
[1977] 1 SCR 41, 47;
Attorney-General
of Quebec v Labrecque
[1980] 2 SCR 1057, 1082.
(41)Philip Joseph,
Suspending Statutes Without
Parliaments Consent
, 14 New Zealand Universities Law
Review 282 (1991), 287.
(42)A concept which is alive today, in part as a substitute
for a more advanced concept of the constitution; Interview with
Sir Douglas Graham, 24 November 1999.
(43)N. Cox,
The Dichotomy of Legal Theory and Political
Reality: The Honours Prerogative and Imperial Unit
y, 14
Australian Journal of Law and Society (1998-99) 15 at 19.
(44)N. Cox,
The control of advice to the Crown and the
development of executive independence in New Zealand
, 13(1)
Bond Law Review (2001) 166.
(45)
Black v Chr?tien
,
unreported, Court of
Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001,
C33887, para 33 per Laskin JA.
(46)
Black v Chr?tien
,
unreported, Court of
Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001,
C33887, para 35 per Laskin JA.
(47)
Council of Civil Service Unions v Minister for the
Civil Service
[1985] AC 374.
(48)N. Cox,
The Dichotomy of Legal Theory and Political
Reality: The Honours Prerogative and Imperial Unity
, 14
Australian Journal of Law and Society 15 at 19 (1998-99), cited
with approval in
Black v Chr?tien
,
unreported,
Court of Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18
May 2001, C33887, para 58 per Laskin JA.
(49)
Black v Chr?tien
,
unreported, Court of
Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001,
C33887, para 60 per Laskin JA.
(50)
Council of Civil Service Unions v Minister for the
Civil Service
[1985] AC 374.
(51)
Operation Dismantle Inc v The Queen
[1985] 1SCR
411, 465 per Dickson J (SC Canada), approved
Black v Chr?tien
,
unreported, Court of Appeal for Ontario, Laskin, Goudge and
Feldman JJA, 18 May 2001, C33887, para 62 per Laskin JA.
(52)
Council of Civil Service Unions v Minister for the
Civil Service
[1985] AC 374, 418 per Lord Roskill.
(53)As when a Prime Minister call as election, he or she is
advising the Governor-General to call an election, not doing so
himself.
(54)N. Cox,
The control of advice to the Crown and the
development of executive independence in New Zealand
, 13(1)
Bond Law Review (2001) 166.
(55)"The attraction of monarchy for the Fathers of
Confederation lay in the powerful counterweight it posed to the
potential for federalism to fracture"; David Smith,
The
First Principle of Canadian Government
(Toronto: University
of Toronto Press, 1995) 8 relying on WL Morton. Provincial powers
grew as the provincial ministries were accepted as responsible
advisers of the Crown in their own right.
(56)
R v Secretary of State for Foreign and Commonwealth
Affairs
[1982] QB 892, 911 per Lord Denning MR.
(57)Herbert Evatt,
The Royal Prerogative
commentary by
Zines (Sydney: The Law Book Co, 1987) c1-3.
(58)See the Borden Memorandum 1919, in A.B. Keith,
Speeches
and Documents on the British Dominions 1918-1931
(London:
Oxford University Press, 1932) 13. The position was firmly
established by the late nineteenth century that a Canadian
Lieutenant-Governor was as much a representative of Her Majesty
as the Governor-General was;
Maritime Bank of Canada v
Receiver-General of British Columbia
[1892] AC 437, 443.
(59)Rt Hon William Massey, 20 June 1921, in A.B. Keith,
Speeches
and Documents on the British Dominions
(London: Oxford
University Press, 1932) 59-62.
(60)Report of the Inter-Imperial Relations Committee,
Imperial
Conference
(1926) Parliamentary Papers, vol xi 1926 cmd 2768.
(61)See the Report of the Inter-Imperial Relations Committee,
Imperial
Conference
(1926) Parliamentary Papers, vol xi 1926 cmd 2768.
(62)At the Peace Conference after the end of the First World
War, the dominions (and India) were represented by delegates;
Rules of Representation at the Peace Conference of Paris, 1919,
cited in A.B. Keith,
Speeches and Documents on the British
Dominions 1918-1931
(London: Oxford University Press, 1932)
p. 13. The Annex to the Covenant of the League of Nations, 1919,
listed the British Empire as an Original Member of the League of
Nations. This was described as including Canada, Australia, South
Africa, New Zealand, and India (A.B. Keith,
Speeches and
Documents on the British Dominions 1918-1931
(London: Oxford
University Press, 1932) p. 30). Both of these indicated a
transitional status for the dominions. By 1928, and the signing
of the Treaty for the Renunciation of War (the Paris Pact), the
independence of the dominions was clearer, as separate
plenipotentiaries signed on behalf of the dominions (A.B. Keith,
Speeches
and Documents on the British Dominions 1918-1931
(London:
Oxford University Press, 1932) at p. 407).
(63)
Imperial Conference
(1926) Parliamentary Papers,
vol 11 1926 cmd 2768.
(64)E. Jenks,
Imperial Conference and the Constitution
,
3 Commonwealth Law Journal 13, 21 (1927); A.B. Keith,
Responsible
Government in the Dominions
2
nd
ed (Oxford:
Clarendon Press, 1928) vol 1 at p. xviii.
(65)Commonwealth Parliamentary Debates (House of
Representatives, 22 March 1927) vol 115 p 863. cf Edward Jenks,
Imperial
Conference and the Constitution
, 3 Cambridge Law Journal 13
(1927), 21.
(66)
Responsible Government in the Dominions
2
nd
ed (Oxford: Clarendon Press, 1928) vol 1 at p. xviii.
(67)Some support for this view can be found in remarks in
Roach
v Canada
[1992] 2 FC 173, 177.
(68)Canada and South Africa chose to make separate
proclamations of war. Both were able to do so because in those
Dominions there had clearly been a delegation by the king to the
Governor-General of the prerogative to declare war and make
peace, in Canada under the Seals Act 1939, and in South Africa,
under the Royal Executive Functions and Seals Act 1934 and the
Status of the Union Act 1934. After some uncertainty, both
Australia and New Zealand followed these precedents; Sir Paul
Hasluck,
The Government and the People, 1939-1941
(Canberra: Australian War Memorial, 1952) at pp. 149-151; New
Zealand Gazette 9 December 1941 p 3877.
(69)As indeed, she did when creating the distinguished New
Zealand judge Sir Robin Cooke a peer in 1996; N. Cox,
Lord
Cooke of Thorndon
, New Zealand Law Journal 123 (1996).
(70)1988 Policy of the Clerk of the Privy Council (Respecting
the Awarding of an Order, Decoration and Medal by a Commonwealth
or a Foreign Government); 1968 Regulation of the Secretary of
State (Respecting the Acceptance and Wearing by Canadians of
Commonwealth and Foreign Orders, Decorations and Medals).
(71)Professor George Bain, Vice-Chancellor of The Queens
University Belfast, and Terence Matthews, for services to
industry and to Wales; London Gazette, no. 56237, Supplement No
1, 16 June 2001.
(72)1988 Policy of the Clerk of the Privy Council (Respecting
the Awarding of an Order, Decoration and Medal by a Commonwealth
or a Foreign Government); 1968 Regulation of the Secretary of
State (Respecting the Acceptance and Wearing by Canadians of
Commonwealth and Foreign Orders, Decorations and Medals).
(73)George Jones, "Conrad Black finally made a life
peer", Daily Telegraph (London), 12 September 2001.
(74)"Conrad Black to give up Canadian citizenship",
Daily Telegraph (London), 19 May 2001.
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