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Published online by Cambridge University Press: 07 November 2014
One of the most fundamental of democratic rights is the right to representation in a free parliament. A legislature which is in a position to prolong its own life indefinitely can nullify that right.
That is why the United States Constitution lays it down that there must be a general election for the House of Representatives, and for one-third of the Senate, every two years. Nothing except a constitutional amendment can change this; and the process of amendment is so elaborate and difficult, and takes so long, that we can be certain that there will never be any lengthening of the term of either House of Congress unless American public opinion emphatically and overwhelmingly desires it. The same is true of the individual states. If Congress or any state legislature tried to prolong its own life, the “act” would be void, and any citizen could have it annulled by appealing to the courts.
In Canada, the Dominion Parliament can prolong its own life, but only “in time of real or apprehended war, invasion or insurrection” and only “if such continuation is not opposed by the votes of more than one-third of the members” of the House of Commons. In other words, one-third plus one of the members of the House of Commons can prevent prolongation even in the midst of war, invasion, or insurrection. Any extension “act” passed contrary to these provisions would be void, and any citizen could have it annulled by appealing to the courts.
1 Art. I, ss. II and III.
2 British North America Act, 1949, no. 2. s. 1.
3 44–4 5 Vic., c. 7; passed in the fourth session, 26 to 17; Quebec Debates, 1881, p. 955.
4 60 Vic , c. 1; passed in the third session, 19 to 7; Assembly Journals, p. 148.
5 2 Edw. VII, c. 8; passed in the fourth session, no opposition (th e maximum term is actually five years and two months); Assembly Journals, pp. 156, 159.
6 8 Edw. VII, c. 4; passed in the third session; Assembly Journals, pp. 39, 51, 105, 109–11; amendment, on third reading, to retain the four-year maximum, defeated 15 to 9.
7 9 Edw. VII, c. 2; passed in the fourth session, no opposition; Assembly Journals, pp. 50, 53–4 , 60, 63, 71.
8 6 Geo. V. c. 14; passed in the fourth session, no opposition; Assembly Journals, pp. 74, 78-9, 93, 100, 113, 143, 148, 151.
9 20 Geo. V, c. 4; passed in the first session, no opposition (five years from the fifty-fifth day after the date of the writs); Assembly Journals, pp. 89, 100, 188.
10 22 Geo. V. c. 3; passed in the first session, no opposition to this part of the bill; Assembly Journals, pp. 34–5, 106–7.
11 7–8 Edw. VII, c. 25; passed in the first session, no opposition; Assembly Journals, p. 153.
12 8 Geo. V, c. 4; Assembly Journals, pp. 85–6, 88, 167.
13 6 Geo. VI, c. 24; Assembly Journah, pp. 80, 100, 103.
14 7 Geo. VI, c. 12; Assembly Journals, pp. 198 (second reading carried, 41 to 27), 210, 225.
15 7 Geo. VI, c. 3; Assembly Journals, pp. 138–9 (second reading carried, 31 to 9), 147–8 (six months' hoist on third reading defeated, 30 to 9).
16 This principle cannot be laid down without qualification. It may easily happen, as in Britain in 1924, that 38 per cent of the electorate returns about 67 per cent of the House. This is particularly likely if there are more than two parties. Such a majority, even if elected on the specific issue of extending the life of th e existing and/or future parliaments, would scarcely be entitled to proceed if th e Opposition or Oppositions objected. Again, something would depend on the length of the existing term and the length of th e proposed extension.
There is some ground for taking up the same position in respect to an act by a legislature fresh from the people, even if the question of extending the life of the legislature did not figure prominently, or at all, in the preceding election. It may be argued that a legislature fresh from the electors enjoys a peculiar authority to do pretty much anything it sees fit, even if the; Opposition or Oppositions object.
There is even something, though not much, to be said for holding that if the two major parties coalesce, in a time of grave national emergency, the coalition majority may properly pass an extension act in spite of the protests of the remaining Opposition party or parties, as in Ne w Zealand in 1916.
17 Unanimity in the legislature may not be enough. The legislature might consist of only one party, as in Prince Edwar d Island from 1935 to 1939 (Parliamentary Guide, 1936–40). It would b e manifestly improper for such a legislature to prolong its own life if there were any serious protest from outside. A one-party legislature is, of course, rare; but a legislature in which the peculiar working of the electoral system has given a large number of Opposition voters only a small representation is by no means so rare. It is conceivable that there might b e virtual unanimity in the legislature, bu t strong opposition from perhaps a third to a half of the electorate, as in Nova Scotia after the election of 1941, wnen the Opposition parties ha d only 23 per cent of the seats but 47 per cent of the popular vote (Ibid., 1942).
On the other hand, it will hardly do to say that all parties, in or out of the House, or all parties of substantial size, must consent. If we say the former, w e place the general body of the people at the mercy of any small group of cranks that chooses to call itself a party. If we say “party of substantial size,” then we are faced with the difficulty of defining our terms. For instance, the Progressive Conservatives in Saskatchewan in 1943 might have claimed to be such a party, pointing to their popular vote in the previous election (about 12 per cent: Ibid., 1939–43) . The C.C.F. might have replied that the figures of the last election were not a reliable indicator, and that since then th e Conservatives ha d lost ground to such a degree that they no longer counted at all. On th e other hand, the Ontario C.C.F. at the same date would certainly have considered itself a party of substantial size; but its opponents would have pointed to its small vote in the previous election as proof of the contrary.
Something depends also on the length of the proposed extension. Unanimous or virtually unanimous consent (however interpreted) would ordinarily justify an extension for one year, or perhaps even two, especially if the existing maximum term were very short, as in the Australian Commonwealth, New Zealand, and five of the Australian states. But not even the unanimous consent of all parties, in or out of the House, would justify an act extending the term for even as much as five years, especially when the existing maximum is already five years, as it is in all the Canadian provinces.
18 Parliamentary Debates, Fifth Series, vol. 77, pp. 67–70 Google Scholar; vol. 85, pp. 1961–2, 2163–98; vol. 92, pp. 1581–4, 1710–14, 1785–8; vol. 99, pp. 246–72, 543–4, 971–9; vol. 108 pp. 66–86, 401.
19 Ibid., Fifth Series, vol. 365, pp. 1059–94, 1171; vol. 374, pp. 867–905, 1331–7; vol. 383, pp. 810–88, 1515–61; vol. 393, pp. 109–54, 813–28; vol. 404, pp. 662–712, 1295–1303.
20 Ibid., vol. 404, p. 666.
21 Commons Debates (Canada), 1916, pp. 622–36.Google Scholar
22 Ibid., 1917, pp. 3457, 3501, 3504.
23 Assembly Debates, 1919, vol. 2, p. 1956.Google Scholar
24 Reserved; assented to March 15, 1934. See Assembly Debates, 1933, pp. 698, 739, 1006, 1010, 1015, 1018, 1446, 1466, 1613Google Scholar; 1934, p. 10.
25 Evatt, H. V., The King and His Dominion Governors (Oxford, 1936), 148, 199–200Google Scholar; Assembly Debates, 1916, pp. 2811, 2902–3, 2907–10, 2913–22.Google Scholar
26 Parliamentary Debates (New Zealand), 1916, vol. 177, p. 832.Google Scholar
27 Ibid., 1934, vol. 238. p. 646; vol. 239, p. 285; vol. 240, pp. 349, 359.
28 Ibid., vol. 260, p. 1160; vol. 261, pp. 544–69. In 1941, there was no opposition; in 1942, an amendment to the second reading was defeated, 51 to 3.
29 Assembly Journals, 1917, p. 83 Google Scholar; 1918, pp. 18 and 57; 8 Geo. V, c. 19; 8–9 Geo. V, c. 2.
30 The King and His Dominion Governors, 199.
31 Cameron, E. R., The Canadian Constitution and the Judicial Committee (Winnipeg, 1915, 1930), II, 146 ff., esp. 149.Google Scholar
32 S. 7.
33 See below, p. 613.
34 2nd ed., London, 1938, 143–4.
35 In Ontario, the election of 1902 returned 51 Liberals and 47 Conservatives ( Canadian Annual Review, 1902, p. 51 Google Scholar). In Quebec, the election of 1935 returned 47 Liberals, one Independent Liberal, and 42 Union Nationale members (Ibid., 1935 and 1936, p. 278). If the power of dissolution had not been available in these cases, the public business in two great Canadian provinces would have been at a standstill.
36 The Royal Power of Dissolution of Parliament in the British Commonwealth (Toronto, 1943), 14, 27, 41, 57, 274–8.Google Scholar
37 Ibid., 60–4, 277; MacKinnon, Frank, The Government of Prince Edward Island (Toronto, 1951), 97.Google Scholar
38 A similar proposal, by some Progressive Conservatives, in 1945 or 1946, to have a fixed date for Dominion elections every five years, subject only to the Governor General's right to dissolve if the Government were defeated in the House, would, of course, have been intra vires the Dominion Parliament. But it would have been open to the other very serious objections set forth above. If it had been in effect before 1911, Sir Wilfrid Laurier's Government would have been unable to dissolve in that year, and the Conservatives would not have been able to take office till 1913 (assuming that they could have won an election then). Laurier would have been able to carry Reciprocity through the existing Parliament, contrary to what turned out to be the wishes of the Canadian people.
39 Evatt, , The King and His Dominion Governors, 200, 287–8, 306.Google Scholar
40 Rex ex rel. Tolfree v. Clark et al., [1943] O.W.R. 328.
41 MacKinnon, , The Government of Prince Edward Island, 155.Google Scholar For the earlier cases see: Forsey, Eugene, “Disallowance of Provincial Acts, Reservation of Provincial Bills, and Refusal of Assent by Lieutenant-Governors,” this Journal, IV, no. 1, 02., 1938, 55–6Google Scholar, and XIV, no. 1, Feb., 1948, 94–7; Milligan, Frank, “Reservation of Manitoba Bills and Refusal of Assent by Lieutenant-Governor Cauchon, 1877–82,” this Journal, XIV, no. 2, 05, 1948, 247–8Google Scholar; MacKinnon, Frank, “The Royal Assent in Prince Edward Island,” this Journal, XV, no. 2, 05, 1949, 216–17Google Scholar; and Beck, J. M., The Government of Nova Scotia (Toronto, 1957), 181–2.CrossRefGoogle Scholar
42 Law of the Constitution (8th ed.), 428–32.Google Scholar
43 The Times, Sept. 10, 1913.
44 The British Cabinet System, 1830–1938 (London, 1939), 368–91Google Scholar, and The Constitution of England from Victoria to George VI (London, 1940), I, 87–95.Google Scholar
45 The King and His Dominion Governors, 70–107.
46 Commons Debates (Canada), 1879, pp. 329, 1783.Google Scholar
47 Ibid., pp. 365–7; he quotes Brougham and Gladstone.
48 Forsey, , Royal Power of Dissolution of Parliament, 234.Google Scholar
49 Quebec, 1878 and 1891; British Columbia, 1898, 1900, and 1903.
50 British North America Act, 1867, ss. 55, 57, 90.
51 La Forest, G. V., Disallowance and Reservation of Provincial Legislation (Ottawa, 1955), 102–15.Google Scholar
52 Ss. 56, 90.
53 Forest, La, Disallowance and Reservation of Provincial Legislation, 83–101.Google Scholar
54 Confederation Debates, 1865, pp. 102, 108, 123, 407–8, 502.Google Scholar
55 Gisborne, F. H. and Fraser, A. A., Provincial Legislation, 1896–1920 (Ottawa, 1922), 81 Google Scholar; Commons Debates (Canada), 1909, pp. 1753–6.Google Scholar
56 Quoted in Memorandum on Dominion Power of Disallowance of Provincial Legislation (Ottawa: Dept. of Justice, 1938), 7.Google Scholar It should not be overlooked that Todd was writing while many of the Fathers of Confederation were still alive.
57 Ibid., 8. Dicey adds that “In any case, no variation of the policy adopted by different Ministries can affect the fact that the power of disallowance is … quite general and unrestricted.” This last sentence is important, in view of the attempts which have been made, and will doubtless be made again, to show that, since such dicta as Aylesworth's, the power to disallow on grounds of unconstitutionality (in the British sense) or repugnance to natural justice is constitutionally obsolete. Failure to exercise a power for a purpose for which it was given does not render that power obsolete or incapable of use for that purpose, at any rate until the disuse has lasted a very long time. The courts, it may be noted, have held that disallowance operates “in the plane of political expediency as well as that of jural capacity”; that it may be used to annul “any law contrary to reason or to natural justice and equity,” for example, a law involving “the deprivation of innocent parties of actual or even possible interests by retroactive legislation”; that it may be used “to prevent any practical inconvenience or mischief arising from the abuse of provincial legislative powers or from hasty or unwise legislation”; and that it is “the true check for the abuse of powers as distinguished from an unlawful exercise of them” (Ibid., 53–61).
58 Hodgins, W. E., Dominion and Provincial Legislation, 1867–1895 (Ottawa, 1896), passim.Google Scholar
59 Ibid.; and Gisborne and Fraser, Provincial Legislation, passim; and La Forest, Disallowance and Reservation of Provincial Legislation, passim.
60 Art. IV, s. 4.
61 Munro, W. B., American Influences on Canadian Government (Toronto, 1929), 18–23, 35–7.Google Scholar
62 Montreal Star, Aug. 18, 1937.