Crown-in-Parliament: Bridging the Divide Between Parliamentary Sovereignty and Federalism

Elazar Cramer, JD Candidate (2028), University of Toronto

I.              Introduction

In Canada, there is an apparent contradiction between the constitutional principles of federalism and parliamentary sovereignty.[1] When power is shared between different levels of government, as in a federal system, how can the national legislature be sovereign in the sense of being the “supreme legal authority?”[2] On its face, the reservation of powers to provincial legislatures would seem to negate the possibility of parliamentary sovereignty at the outset.

There are two main approaches to this question, both of which hinge on the precise definition of parliamentary sovereignty. The first, what I term the “absolutist” approach, is most notably associated with A.V. Dicey. Dicey’s conception of parliamentary sovereignty allows for little nuance, so he accepts the contradiction between it and federalism on its face. The second approach to my question is fuzzier and more fragmented, with different formulations by different scholars and in different countries. Still, it broadly seeks to reconcile the two constitutional ideas by painting parliamentary sovereignty in a more nuanced light. Accordingly, I call this way of addressing the contradiction the “conciliatory” approach, which has largely displaced the initially more popular absolutism in Canada and the United Kingdom.

Both approaches face conceptual problems. While attractive on its face due to its clarity and simplicity, Dicey’s model of parliamentary sovereignty appears too rigid to be workable even in unitary states. At the same time, the alternatives are hard to pin down. Parliamentary sovereignty must admit some complexity, as even Dicey’s conception does. Yet it must also show us where and how Parliament is meaningfully sovereign, as many versions of the “conciliatory approach” are too vague to do.

To reconcile federalism and parliamentary sovereignty, I reformulate Dicey’s definition of the latter. My definition of parliamentary sovereignty ultimately provides the basis for understanding the conciliatory approach as well. In my view, the central institution of the Crown, however its powers are delegated and divided, remains the ultimate source of parliamentary sovereignty, whether that sovereignty is exercised by a province or by Parliament. Parliamentary sovereignty can be distributed between different entities within a federal structure. This is what Canadian legal scholars in Dicey’s time effectively argued. My thesis adopts these arguments and explicates them with reference to the principle of the Crown-in-Parliament. My goal is to pinpoint a theory of parliamentary sovereignty that is both normatively sound and practicable in the real world, such that it can be compatible with federalism. Failure to ensure that a formulation of the principle satisfies both the conditions of normativity and practicability will leave it as a merely descriptive tool that tells us little more than that Parliament is sovereign by default, leaving the rest to chance or to other factors with little legal or theoretical currency.

Caveats

It should be noted that while I have invoked Dicey in my analysis of parliamentary sovereignty, he would not agree with my approach. He explicitly says the Canadian Parliament is not sovereign, a contention that Canadian legal scholars have long contested.[3] Since Parliament was bound by a Constitution that it could not change before 1982 without the intervention of the Imperial Parliament in Westminster, the constitution, not Parliament, is sovereign, according to Dicey. To a certain extent, it is possible that Dicey’s view of Canadian constitutional law was coloured by the Judicial Committee of the Privy Council’s decisions in the early decades of Confederation, which tended to emphasize provincial sovereignty rather than federal centralization, despite the latter being the simpler reading of the Constitution Act, 1867.[4] In any event, I begin with Dicey’s literal definition of parliamentary sovereignty and analyze it, taking it to its logical conclusion. None of my discussion that invokes Dicey should be construed as presenting his own views, except where stated otherwise. For James Bryce, on the other hand, my framework is entirely consistent with his views on Home Rule. That said, I am not aware of any statements attributed to him that would explicitly support my argument.

Another important caveat is that my analysis does not apply to republican regimes, which are commonly said to operate on the principle of parliamentary sovereignty, since there is no Crown. While the effect that Parliament can “make or unmake any law” is the same, the foundation is very different. Similarly, the concept of “President-in-Parliament,” which some republican countries with historical ties to the United Kingdom have in their constitutional law vocabularies,[5] is not analogous to the term “Crown-in-Parliament,” since the President does not have any formal legislative power. At most, the head of state in a parliamentary republic may be considered a component of Parliament insofar as their assent is required for certain laws to take effect, as in Malta and Singapore.[6] Nonetheless, it will be worthwhile to consider the implications that my thesis has for such regimes, although such an analysis is beyond the scope of this article.

II.            The Two Approaches

Absolute Parliamentary Sovereignty

Dicey’s argument is straightforward: supreme legal authority, if shared, is simply not supreme. Theoretically speaking, nothing is stopping Parliament from delegating its legislative power, but the power-sharing reality this creates erodes Parliament’s sovereignty even if Parliament could theoretically claw back the powers it had delegated.[7] Unsurprisingly, therefore, Dicey was a vigorous opponent of Home Rule in Ireland for precisely these reasons, and he would certainly have been dismayed by the creation of devolved legislatures in Scotland, Wales, and Northern Ireland in the 1990s.[8] Vernon Bogdanor’s increasingly popular view that the UK is a “union state” rather than a “unitary state,” even if the former is not fully equivalent to federalism, is a significant realization of Dicey’s fear of federalist creep through delegation and devolution.[9]

The absolutist approach to parliamentary sovereignty, which is compelling in that it gives a clear answer to my question, is more complicated than it appears at first glance. In short, the absolutist approach cannot be absolutely absolute, which is how it would have to be to put the question of parliamentary sovereignty and federalism to bed for good. Dicey himself recognized that Parliament could not actually make any law, because although a written constitution does not constitute it, it is still situated within an unwritten constitutional framework that limits its powers. For example, Mark Walters understands that, according to Dicey, Parliament’s power to make any law only extends to “general rules” rather than “individuated orders.”[10] Walters also notes that, while Dicey originally denied the existence of administrative law in the UK, he came to admit towards the end of his life that “Parliament could grant quasi-judicial power to administrative bodies.”[11] The unmistakable conclusion is that parliamentary sovereignty must have its limits. Once this is clear, it becomes hard to see why parliamentary sovereignty cannot be further qualified in a way that accommodates federalism.

Qualified Parliamentary Sovereignty: The “Conciliatory” Approach

This brings us to the ascendant “conciliatory” approach, whose proponents are more comfortable viewing Parliament’s sovereignty as compatible with the delegation and even separation of legislative powers. In Dicey’s time, one of the main theorists in this school of thought was James Bryce. He advocated for what Jordan de Campos-Rudinsky calls a “‘soft’ federalism resting not on a codified constitution enforced by courts but on an understanding of Parliament’s de facto sovereignty as constrained by moral commitments.”[12] If Parliament’s sovereignty can be effectively constrained even according to Dicey, Bryce’s “soft federalism” is not all that much of a departure. Bogdanor has applied this argument to the UK Parliament’s moral commitment to recognize the historical right of Scotland, Wales, and Northern Ireland to some measure of self-determination.[13] Some have even argued that the British state, as it has been constituted since the Acts of Union of 1707 and 1800, has never been unitary at all.[14]

Canada: Cooperative or Dualist Federation?

With Canada’s political roots in the Westminster system, it is not surprising to find much of the Canadian version of this debate along similar lines. The Supreme Court itself has adopted an absolutist approach, emphasizing that there is an “internal contradiction in speaking of federalism in the light of the invariable principle of British parliamentary supremacy.”[15] Douglas Verney carries this assumption forward, noting that Parliament is constrained by the Canadian Constitution in ways that the UK Parliament is not.[16] As in the UK, and perhaps ironically given the assumption that Canada is to use British constitutional law as a model rather than a blueprint, Dicey’s approach has loomed large even if other parts of Dicey’s jurisprudence are not applicable to the Canadian context.

Yet even the absolutists recognize that parliamentary sovereignty exists in Canada in some form, and they believe that it should exist to the extent possible. For many Canadian scholars, such as Jesse Hartery and Noura Karavizan, the absolutist approach aligns with “dualist” federalism, where power is strictly divided between the federal government and the provinces.[17] Although this approach has been largely eclipsed, it remains influential in some corners.[18] It persists in the narrowly applied doctrine of interjurisdictional immunity.[19] While the federal Parliament cannot be sovereign in absolute terms where it shares power with the provinces, a dualist form of federation allows it to at least be practically sovereign in those areas within its sole jurisdiction.

This desire to maintain parliamentary sovereignty, even if its practical application is narrow, stands in opposition to “cooperative federalism,” where jurisdictional lines are less clear-cut and different levels of government must actively work together. Once the lines are blurred, according to the absolutist approach, parliamentary sovereignty becomes so murky as not to exist at all. Indeed, Hartery’s main point is that the Supreme Court in a recent decision “ignored calls to protect parliamentary sovereignty and accountability, and ultimately upheld attempts to bypass these principles in the name of its conception of ‘cooperative’ federalism.”[20] For Hartery, Canadian federalism must be dualist to preserve some semblance of absolute parliamentary sovereignty.

Over time, a form of the “conciliatory” approach that embraces “cooperative federalism” has come to be accepted in Canada; as Monahan, Shaw, and Ryan put it, the “watertight compartments” have come to “spring leaks.”[21] Arthur Benz notes that while the sovereignty of the legislature in a parliamentary democracy conflicts on its face with a federalist structure, the “loose coupling” of both in the Canadian constitutional structure plays an important role in facilitating “a dynamic system which allows policy-makers to avoid the traps of joint decision-making or divided government.”[22] Benz’s argument is rooted more in political science than political theory, but his emphasis on intergovernmental cooperation is reminiscent of the “moral commitments” that Bryce envisioned the UK Parliament making. While the provinces are obviously constituted differently from the devolved regional parliaments of the UK, what matters most, according to this approach, is the way Parliament’s de facto sovereignty is preserved through a balancing of regional interests.

What Sovereignty?

Having examined the conciliatory approach as it is applied in various contexts, I return to the question of which approach is more compelling. With the veneer of absolutism stripped from Dicey’s approach, the conciliatory path certainly appears more plausible. Yet the latter approach has many problems of its own, not least that it has difficulty explaining exactly what parliamentary sovereignty is in the first place. Hartery’s criticism of cooperative federalism does hit home: if Parliament must negotiate with other levels of government to achieve its objectives in practice, where is its supremacy?

Both approaches have the same deficiency in that they fail to sufficiently delineate the boundaries of parliamentary supremacy. The only fundamental difference between the two, it seems, is how many exceptions they allow. If a supremacy subject to exceptions is not supremacy at all, we reach a non-Diceyan conclusion by Diceyan reasoning: if Parliament is not absolutely sovereign such that it can “make or unmake any law whatever,” as even Dicey admits in some areas, there is no such thing as parliamentary sovereignty in legal fact.[23]

III.          Crown-in-Parliament as the Basis for Parliamentary Sovereignty

To establish its theoretical coherence, the principle of parliamentary sovereignty, as articulated both by the absolutist and conciliatory schools, requires further clarification, particularly in terms of its limiting principle. Any conception of parliamentary sovereignty must contain a principled way to ascertain its boundaries. To do so, we must back out of the contradiction in which we have found ourselves and return to parliamentary sovereignty’s theoretical foundation.

The debate, as I have presented it, assumes that Parliament is formally sovereign, and the only question is how real that sovereignty is in practice, but this is not really true. Parliament’s authority is not inherent; rather, it is derived from the Crown, an institution which is not only central to the state but also an embodiment of it. All authority—judicial, executive, and legislative—is vested formally in the Crown.[24] Nonetheless, the conventions of responsible government dictate that the Crown must defer to the recommendations of Parliament and the Cabinet.[25] Accordingly, it is most accurate to say that the Crown-in-Parliament exercises legislative power in Canada.[26] While it is colloquially said that Parliament is the legislative branch, it technically plays only an advisory role to the Crown, notwithstanding the fact that its advice is binding. At most, it may be said that while Parliament is not sovereign, it exercises the Crown’s legislative sovereignty.

With this in mind, we can bring Dicey’s definition of parliamentary sovereignty into further focus. When he says that “the principle of parliamentary sovereignty means…that Parliament has the right to make or unmake any law whatever,”[27] he cannot mean that Parliament has the inherent right to exercise legislative power. Consider the standard enacting clauses for British and Canadian legislation, as well as those of the parliaments of various Commonwealth realms, Canadian provinces, and British overseas territories and Crown dependencies. Those clauses state that the monarch (or their representative), “with the advice and consent” of Parliament, has enacted the act in question.[28] What Dicey must be saying, then, is that thanks to the principle of responsible government, Parliament effectively exercises the Crown’s legislative power, which is characterized by the “right to make or unmake any law whatever.”[29] What Dicey is stressing is that Parliament is solely responsible for advising the Crown on how to exercise its legislative power. Indeed, he continues by saying that “no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”[30] Legislative sovereignty, and thus supremacy, is delegated directly by the Crown to Parliament alone.

It must be conceded that Parliament is not a unitary body. Both the UK and Canadian Parliaments are bicameral, and before 1911, the UK House of Lords had effective veto power over all legislation. Even after those reforms, Dicey suggested that “sovereignty still resides in Parliament, i.e. in the King and the two Houses acting together, but that the Parliament Act has greatly increased the share of sovereignty possessed by the House of Commons and has greatly diminished the share thereof belonging to the House of Lords.”[31] While parliamentary sovereignty dictates that the Crown’s legislative power must be directly delegated to or exercised by the advice of a parliamentary body, there is no need for that body to be unitary. What matters, rather, is the tight connection between Parliament and the Crown, where authority flows directly from the latter to the former, and no other law-making power is legally empowered to override or ignore acts of the Crown-in-Parliament.

IV.          Applying the Framework: The Crown in Right of Canada

In Canada, the application of this framework is clear. Sections 91 and 92 of the Constitution Act, 1867 empower the Queen (the Crown) to legislate with respect to certain matters by the “advice and consent” of the “Parliament of Canada” and with respect to others through the provincial legislatures. Although the language of “advice and consent” is not used when referring to provinces in section 92, the Crown is understood to be the source of legislative power at that level as well, represented by a Lieutenant Governor in each province.[32] While the heads of power are hardly exhaustive, the legislative power is.[33] Canadian legal scholars made this point as early as the 1880s. A.H.F. Lefroy perhaps put it best when he wrote that all legislative power was distributed between the provinces and Parliament and that each is sovereign in its own domain.[34] While there may be disputes regarding whether a particular matter falls under federal or provincial jurisdiction, the legislative power in a particular subject or geographic area must ultimately be located at one of the two levels. Furthermore, the Canadian Crown is a unitary one that is shared among the provinces.[35] The Crown-in-Parliament ultimately exercises legislative power at all levels; the only question is which legislature is the proper one for any given matter. Significantly, this is true in both the cooperative and dualist understandings of Canadian federalism; even if provinces and the federal government must cooperate, the Crown’s legislative power is still being exercised, albeit in a more convoluted way.

One could argue that the shared parliamentary sovereignty of the British House of Commons and House of Lords, at least before 1911, is not analogous to the status of the Canadian provinces vis-à-vis the federal government. After all, the UK Parliament has the power to alter, unilaterally, its own constitution, and the powers of its bodies are not divided according to subject matter. None of this has ever been true about Canadian legislatures, perhaps suggesting that Canada has never had parliamentary sovereignty in the way the UK has.

Neither of these points, however, refute my argument. Since 1982, Parliament and the provinces have had the power to amend the Canadian Constitution collectively. Although there are different amending formulas for different types of amendments, even the most sweeping amendments can be made with the unanimous consent of all legislatures. Since Canadian constitutional amendments require the consent of eleven bodies, they are obviously harder to pass. But the difference here between the UK and Canada is only quantitative, since the ability to pass constitutional amendments ultimately rests with the Crown-in-Parliament in both cases. Although parliamentary sovereignty may be harder to exercise in Canada by virtue of the number of bodies in which it is vested, and notwithstanding the separate question of the Charter of Rights and Freedoms, the constitutional existence of parliamentary sovereignty is just as real as it is in the UK.

V.            Conclusion

The fact that there is a unitary crown and that parliamentary sovereignty exists in Canada does not mean that there is no conflict in practice between different levels or branches of government. Such conflict is inevitable in a federal system where Parliament and the provinces each jealously guard their powers, and Canadian constitutional law, having largely rejected the “watertight compartments” approach to federalism, recognizes that the lines between them cannot be drawn with certainty.[36] Nonetheless, the approach advanced here is important in that it presents a way of viewing a federal constitutional monarchy not as a set of individual governments confederated together into one country, but as a unified whole. On the theoretical level, such a view may have important implications for issues such as the secession of individual provinces, given the difficulty of disentangling provincial power from Canada’s constitutional structure. There may also be other ways of reconciling federalism and parliamentary sovereignty; this approach is not meant to be conclusive but is simply one understanding of how these two foundational constitutional principles fit together.

[1] I use the term “parliamentary sovereignty” interchangeably with “parliamentary supremacy,” “legislative sovereignty,” and “legislative supremacy.”

[2] UK Parliament, “Parliament’s Authority” (last visited 21 March 2024), online: <https://www.parliament.uk/about/how/role/sovereignty/>.

[3] AV Dicey, Introduction to the Study of the Law of the Constitution, 8th ed (London: Macmillan, 1915) at 117.

[4] Patrick Monahan, Byron Shaw & Padraic Ryan, Constitutional Law, 7th ed (Toronto: Irwin Law, 2017) at 243–47. While the Supreme Court of Canada has moved away from many of the JCPC’s precedents since appeals to the JCPC were abolished in 1949, the amplification of provincial power has had an enduring effect on Canadian constitutional law. For example, in describing the Constitution Act, 1867’s framework for jurisdiction over “works and undertakings,” a category which includes communications and transportation projects, Rothstein J said inConsolidated Fastfrate Inc v Western Canada Council of Teamsters that “local regulation is the rule; federal regulation, the exception” (2009 SCC 53 at para 31).

[5] Constitution of Ireland, art 15(1)(2).

[6] Constitution of Malta, ss 51, 72(1); Constitution of the Republic of Singapore, ss 22H, 38.

[7] Vernor Bogdanor, “Devolution: Decentralisation or Disintegration?” (1999) 70:2 Pol Q 187–88.

[8] Ibid at 185.

[9] Vernon Bogdanor, Devolution in the United Kingdom (New York: Oxford University Press, 2001) at 14–15 [Bogdanor, Devolution in the United Kingdom].

[10] Mark D Walters, “Sovereignty and the Spirit of Legality” in Mark D Walters, AV Dicey and the Common Law Constitutional Tradition: A Legal Turn of Mind (Cambridge: Cambridge University Press, 2020) 271.

[11] Mark D Walters, “Dicey’s Administrative Law Blind Spot” in Mark D Walters, AV Dicey and the Common Law Constitutional Tradition: A Legal Turn of Mind (Cambridge: Cambridge University Press, 2020) 314.

[12] Jordan de Campos-Rudinsky, “James Bryce and Parliamentary Sovereignty” (2022) 19:3 Mod Intell Hist 734 at 737.

[13] Bogdanor, Devolution in the United Kingdom, supra note 9 at 14–15.

[14] Iain McLean & Alistair McMillan, State of the Union (New York: Oxford University Press, 2005) at 6.

[15] Reference Re: Resolution to amend the Constitution, 1981 CanLII 25 (SCC) at 806.

[16] Douglas V Verney, “The ‘Reconciliation’ of Parliamentary Supremacy and Federalism in Canada” (1983) 21:1 J Commonwealth & Comp Pol 22.

[17] Noura Karavizan, “Cooperative Federalism vs Parliamentary Sovereignty: Revisiting the Role of Courts, Parliaments, and Governments” in Alain‑G Gagnon & Johanne Poirier, eds, Canadian Federalism and Its Future: Actors and Institutions (Montreal: McGill‑Queen’s University Press, 2020) 291.

[18] Monahan, Shaw & Ryan, supra note 4 at 260–62.

[19] Canadian Western Bank v Alberta, 2007 SCC 22.

[20] Jesse Hartery, “Protecting Parliamentary Sovereignty and Accountability in a Dualist Federation” (2020) 58:1 Alta L Rev 187.

[21] Monahan, Shaw & Ryan, supra note 4 at 258.

[22] Arthur Benz, “Reconciling Federalism and Parliamentary Democracy: Political Competition and Negotiated Policy-Making in Canadian Federalism” in Alain‑G Gagnon & Johanne Poirier, eds, Canadian Federalism and Its Future: Actors and Institutions (Montreal: McGill‑Queen’s University Press, 2020) 208.

[23] Dicey, supra note 3 at 38.

[24] Carolyn Harris & Andrew McIntosh, “Crown”, The Canadian Encyclopedia (last modified 30 March 2023), online: <https://thecanadianencyclopedia.ca/en/article/crown>.

[25] Monahan, Shaw & Ryan, supra note 4 at 12.

[26] Warren J Newman, “Some Observations on the Queen, the Crown, the Constitution, and the Courts” (2017) 22:1 Rev Const Stud 55 at 67.

[27] Dicey, supra note 3 at 37–38.

[28] Mark Hutton et al, Erskine May: Parliamentary Practice, 25th ed (London: LexisNexis UK, 2019) at § 26.9, online: <https://erskinemay.parliament.uk/section/4978/enacting formula>. See Interpretation Act, Statutes of Canada 1985, c I-21, s 4(1); Legislation Act, Statutes of Ontario 2006, c 21, Sch F, s 6; Interpretation Act, Statutes of Alberta 2000, c I-8, s 11; Interpretation Act, Statutes of British Columbia 1996, c 238, s 10; Interpretation Act, Statutes of New Brunswick 1973, c I-13, s 2; The Legislation Act, Statutes of Saskatchewan 2019, c L-10.2, s 3-1(1)(b); The Interpretation Act, Statutes of Manitoba 1987, c I80, s 3(1); The Montserrat Constitution Order, UK Statutory Instruments 2010 No 2474, s 75; Southern Rhodesia Constitution, s 35(3); The Jamaica (Constitution) Order in Council 1962, s 61; Bermuda Constitution Order 1968, s 35(4), (5).

[29] Dicey, supra note 3 at 37–38.

[30] Ibid.

[31] Ibid at xxiv.

[32] Monahan, Shaw & Ryan, supra note 4 at 81.

[33] Ibid at 86.

[34] Peter Oliver, Patrick Macklem & Nathalie Des Rosiers, eds, The Oxford Handbook of the Canadian Constitution (New York: Oxford University Press, 2017) at 191–92.

[35] Newman, supra note 26 at 60–61.

[36] Monahan, Shaw & Ryan, supra note 4.