Can the U.K Still Change Our Constitution?

Despite Canada’s former status as a British colony, we do not have to adopt the election reforms proposed by the Cameron-Clegg coalition.

For the first 115 years of Canada’s existence, only the Parliament of the United Kingdom could lawfully amend the Canadian Constitution. That makes sense. After all, the 1867 British North America Act was a mere statute passed by our former colonial master.

But in 1982, Canada took full legal possession of the Canadian Constitution when the new Constitution Act finally brought it home to Ottawa from London. The Constitution Act’s signature features include the Charter of Rights and Freedoms, the Notwithstanding Clause, and carefully worded constitutional amendment provisions.

We therefore now hold the complete and exclusive right to amend our Constitution. Or do we?

Earlier this year, voters in the U.K. cast their ballots in what became the most unpredictable election in decades. Election night was a nail-biter, the vote was unexpectedly close, and the outcome proved historic as Conservative Party leader David Cameron became the youngest U.K. prime minister in nearly 200 years.

The result was historic for another reason: voters awoke to their first minority Parliament in two generations. Cameron and his Liberal Democrat counterpart, Nick Clegg, agreed to form a coalition government intended to last until the next general election. Cameron and Clegg joined forces on the strength of a detailed agreement that commits their coalition to deficit and spending reductions, tax and banking reform, immigration, and environmental initiatives, among other items.

What has triggered the greatest controversy is the coalition agreement’s commitment to electoral reform. Cameron and Clegg have agreed to hold a referendum on a form of proportional representation that would modify the long-standing first-past-the-post system, and they have also pledged to explore the possibility of electing the House of Lords. The referendum on proportional representation is scheduled for May 5, 2011.

Do these electoral reforms carry any consequences for Canada?

For years, the movement for proportional representation in Canada has gained momentum in more and more corners of the country. Ontario, British Columbia, and Prince Edward Island have held referenda on the question, New Brunswick has recently seen a resurgence of voter interest on the subject, and movements are afoot in Quebec and Alberta to press for electoral changes.

The same is true of Senate elections. The current prime minister and his Conservative Party colleagues are vocal advocates for electing Canadians to the Upper Chamber. So too are many opposition Members of Parliament, provincial politicians, and Canadian voters themselves.

But dispersed popular support is not sufficient to make these changes to the Canadian electoral system. Entrenching these reforms would require a constitutional amendment supported by the House of Commons, the Senate, and seven provincial legislatures representing at least half of the Canadian population. (To be fair, some have argued that Senate reform is possible with a parliamentary law alone.)

Despite their increasing support for proportional representation and an elected Senate, Canadians have not yet reached a sustainably high level of the agreement that could justify an attempt at constitutional renewal. Amending the Canadian Constitution is a steep hill to climb. And given the hard lessons and lasting memories of the failed Meech Lake and Charlottetown Accords, this route appears to be a dead end for now.

But Canada could arguably get proportional representation and an elected Senate even without a constitutional amendment – and whether we want it or not.

Consider the matter of proportional representation. In its preamble, the 1867 Canadian Constitution declares that Canada is to have “a constitution similar in principle to that of the United Kingdom.” According to the Canadian Supreme Court, this phrase folds within itself historical continuities in constitutional principles such as the rule of law, responsible government, Crown prerogatives and immunities, and democratic institutions and traditions.

One of Canada’s democratic traditions is our first-past-the-post electoral system, which is an enduring democratic institution we inherited from the U.K. It is our tradition only because it is the U.K.’s tradition.

Had the U.K. operated under a different electoral system in 1867, that system would have been ours then and would perhaps still be today. Our 1982 Constitution Act has not obviated this reality, nor has it undermined our founding framework. Quite the contrary – our 1982 Constitution Act reiterates and reinforces many of the institutional principles upon which Canada was first founded.

Return now to the Cameron-Clegg coalition agreement’s commitment to holding a referendum on electoral reform.

If the U.K. adopts proportional representation in next May’s referendum, the vote will trigger far-reaching changes to the country’s entire electoral system. The result will be to amend the United Kingdom’s unwritten Constitution, in the process transforming the democratic institutions and traditions that underpin it.

One could argue that another consequence will concurrently to transform Canada’s own democratic institutions and traditions. The argument is that our commitment to “a constitution similar in principle to that of the United Kingdom” will require us to move to proportional representation.

But the stronger argument is that the Canadian Constitution’s textual commitment is only a relic of an earlier time.

The 1982 Constitution Act severed Canada’s umbilical cord to the United Kingdom. Both as a matter of constitutional law and constitutional politics, Canada gained the power to act untethered to the U.K, for the first time in its history – which means that Canadians, and Canadians alone, may change our constitutional documents and traditions.

The 1982 Constitution Act transformed our prior commitment to constitutional continuity with the U.K. into a purely historical artefact that no longer carries any binding force.

Much like the monarchy. Nominally, the Queen is our commander-in-chief and retains the power to refuse her assent to legislation. But these are only ceremonial powers that have virtually vanished from her portfolio of privileges. Just as the Queen may no longer tie our hands like she once could, neither can the preamble in Canada’s 1867 Constitution Act.

Back to proportional representation. The U.K. cannot force it upon us. Although the text of our 1867 Constitution may very well suggest otherwise, the legal and political reality of Canada’s independence forecloses the possibility of a constitutional amendment imposed from abroad by anyone but Canadians.

What happens in the U.K. can therefore have neither political nor legal consequences for Canada, unless we choose on our own and for our own reasons to follow suit.

Whether Canada adopts proportional representation is our own decision to make, for better or worse, and only after debating for ourselves whether it is right for us.