Current Publications: International affairs and defence

Contents

• Overview
• Current Practice in Canada
• The Royal Prerogative and Executive Power Over Foreign Affairs
• Treaty-making and Treaty Implementation
• A Meaningful Role for Parliament
• National Security
• The Situation in Other Countries
• Treaty-making
• Participation in Conflicts
• Parliamentary Action: Some Examples of Proposals for Reform
• Selected References

Overview

Historically, Parliament’s role in the conduct of foreign affairs has been limited, for the most part, to reviewing executive powers exercised in pursuance of foreign policy. This is largely a function of Canada’s constitutional structure inherited from Great Britain, by which the conduct of foreign affairs falls within the exercise of the “royal prerogative” by Cabinet (see the section below entitled “The Royal Prerogative and Executive Power Over Foreign Affairs”). During periods of crisis or conflict, these constitutional constraints on Parliament have become the subject of debate. In 1999, during the conflict in Yugoslavia over Kosovo, the government provided for debates in the House of Commons on the issue of Canada’s deployment of forces. It did not, however, seek a parliamentary resolution supporting Canadian participation in the NATO military action against Yugoslavia. More recently, the government permitted a “take-note” debate in the House of Commons, on 10 April 2006, on Canada’s participation in the multinational mission in Afghanistan long after Canadian forces had been committed to the operation.

Those who defend this traditional approach point to the efficiency of such an arrangement, which permits the government to deal with international developments more quickly and decisively than if Parliament had to pre-approve actions by Canada on the international stage. Firstly, Parliament is often not in session, while Cabinet can be convened much more easily and continues to exist even during a dissolution or prorogation of Parliament. Furthermore, the executive is, in any event, accountable to Parliament for its actions and decisions; and Parliament must approve any changes to Canadian law.

Those who advocate reform claim that the status quo gives the executive too much power, and that the checks currently available to Parliament are inadequate because they often come into play only after Canada has committed itself, legally, politically or even militarily. They also point to the practices of other countries, and even past Canadian practices, which provide a greater role for legislators in key decisions, such as treaty commitments and military action.

Current Practice in Canada

Activities relating to the conduct of foreign affairs – such as: receiving and sending diplomatic representatives, conducting international negotiations, concluding and approving treaties and other international agreements, and even declaring war – all fall within the royal prerogative of the Crown, which is today exercised by Cabinet.

The same is true for the related issue of deployment of Canada’s military forces, both within Canada and around the world. The Queen (read Cabinet) is the commander-in-chief of all Canadian armed forces (Constitution Act, 1867, section 15).

The Royal Prerogative and Executive Power Over Foreign Affairs

The conduct of foreign affairs has traditionally rested with the Crown, and is exercised under what is known as the royal prerogative. The various powers that remain under the royal prerogative, including the power to conduct foreign affairs, are now exercised by Cabinet. While provincial cabinets exercise some prerogative powers, only the federal Cabinet can conduct foreign affairs, by virtue of a power devolved upon it following the United Kingdom’s enactment of the Statute of Westminster in 1931 that confirmed powers over external affairs originally outlined in the 1926 Balfour Declaration. Prior to this, the federal government’s role, prescribed in section 132 of the Constitution Act, 1867, was restricted to implementing UK treaties negotiated on behalf of Canada. That section is no longer operative.

The royal prerogative once constituted the central source of executive authority in Great Britain, and enabled the Crown to exercise legislative and judicial powers as well as executive powers. Successive Parliaments, aided by court judgments, in England and in Canada, however, have gradually removed or modified these prerogatives. In Canada, there is now only a handful of areas in which the prerogative remains meaningful, including: foreign affairs and treaty-making; immunities and privileges; powers relating to the armed forces; the emergency prerogative; and some powers relating to the legislature. Even some of these powers are subject to limits as a result of various statutes enacted by Parliament and through judicial intervention.

Treaty-making and Treaty Implementation

In a number of areas, Parliament continues to play a valuable role in foreign policy. Although the executive is responsible for negotiating, concluding and ratifying treaties, Parliament has had an ad hoc involvement in the ratification process for the past 80 years. For example, between 1926 and 1966 the executive submitted important treaties to Parliament for approval before ratification. The tabling of treaties in Parliament following ratification was also relatively common until 1999.

In January 2008, the federal government announced a policy to enhance parliamentary involvement in the ratification process: it said that all treaties between Canada and other states or entities would be tabled in the House of Commons before ratification. The Clerk of the House of Commons is to distribute the full text of the agreement accompanied by a memorandum explaining the primary issues at stake, including primary obligations, national interests, federal–provincial/territorial considerations, implementation issues, a description of any intended reservations or declarations, and a description of consultations undertaken. The executive is to give the House of Commons 21 sitting days to consider the treaty before the executive takes action to bring the treaty into effect through ratification or other preliminary measures, such as introducing legislation. The House has the power to debate the treaty and to pass a motion recommending action, including ratification.

However, it is important to note that passing treaties through the House of Commons remains a courtesy on the part of the executive, which retains full authority to decide whether to ratify the treaty after the parliamentary review. The policy states clearly that in exceptional cases the executive may have to ratify treaties before they can be tabled in Parliament. To do this, the executive will seek approval from the Prime Minister for an exemption and inform the House of Commons of the treaty as soon as possible upon ratification.

Perhaps the most crucial role for Parliament in the treaty-making process is in the implementation of treaties. Despite the executive’s authority over negotiation, signature and ratification, treaties have no domestic effect and cannot be enforced until they are incorporated into domestic law. This requirement flows from a domestic constitutional norm that maintains a fundamental separation of powers between the executive and the legislative branches of government.

The practical effect of this constitutional arrangement is that the executive is competent to conclude treaties that bind Canada as a matter of international law in the international context. From a domestic legal perspective, however, these treaties do not, on their own, modify existing domestic law or have any legal effect domestically. If it were otherwise, the executive could circumvent the constitutional principle that the executive cannot make domestic law.

Treaties can be incorporated into domestic law in two ways. In some cases it is abundantly clear that legislation must be put in place in order to implement the terms of a treaty. If so, an implementation bill is drafted and tabled in Parliament. However, many treaties, particularly international human rights conventions, do not necessarily require specific legislation for implementation. In such cases, government officials will conduct a review of existing legislation to determine whether any amendments or new legislation are needed to comply with the treaty. If none are needed, ratification can proceed without specific implementing legislation; however, the executive will not ratify the treaty until all Canadian jurisdictions have indicated that they support ratification.

One complication for implementation arising out of Canada’s constitutional arrangement is that Parliament does not enjoy exclusive authority for treaty implementation. This authority is shared with the provinces. Both levels of government are competent to implement treaties, when the subject matter falls within their respective areas of legislative jurisdiction, pursuant to sections 91 and 92 of the Constitution Act, 1867. No discrete “treaty implementation” power is assigned to either level. While the federal executive may ratify treaties for all of Canada, if the subject matter of the treaties touches on any of the legislative powers listed in section 92 of the Constitution Act, provincial legislative approval is required to implement the treaty and give it effect domestically.

The difficulties created by this arrangement are typically overcome by the various federal–provincial mechanisms that have evolved under the unique nature of Canadian federalism. Arrangements for consultation and cooperation with provinces prior to concluding treaties are typically put in place to avoid the difficulties of implementing treaties that touch on provincial jurisdiction. The other means available to the federal executive, when faced with uncertainty over whether provincial cooperation can be secured, is to negotiate so-called “federal state” clauses which commit a federal state to perform only those commitments coming within its sphere of legislative competence. Additionally, a federal state may negotiate a “best efforts” clause by which it undertakes to secure provincial adherence to a treaty.

A Meaningful Role for Parliament

Meaningful opportunities exist for parliamentarians to participate in foreign policy through the parliamentary review process. Since the government is directly accountable to Parliament, Ministers responsible for foreign policy, as well as their officials, can be called upon to address important issues relating to treaties. Parliament’s foreign affairs committees have wide mandates to inquire into all aspects of foreign policy, to examine legislation referred to them as well as the expenditure estimates of departments and agencies implementing foreign policy. Those issues include their implications for Canada, Canada’s capacity to fulfil its international obligations, and whether the treaties are consistent with broader public policy. This is not an insignificant role, and various parliamentary committees have used these opportunities to expound on Canada’s foreign policy and provide input to the executive in respect of treaty and other foreign policy initiatives. Moreover, any changes to Canadian law that may be necessary to implement Canada’s treaty commitments must be approved by Parliament in legislation. Of course, these opportunities exist only where Parliament is called upon to implement treaties through specific legislation. Finally, Parliament can ultimately grant or withhold funds and confidence from the government.

Those who advocate a more enhanced role for Parliament in key foreign policy decisions – such as whether to participate in foreign conflicts (either as peacekeeper or belligerent) or incur new treaty obligations – point out, with justification, that Parliament’s role in such matters was at one time quite significant.

The high point of Parliament’s role in foreign policy decision-making seems to have occurred during the governments of William Lyon Mackenzie King (1921–1926; 1926–1930; and 1935–1948). During these years, as Canada forged its own foreign policy independent of Great Britain, Prime Minister King placed considerable emphasis on Parliament as the primary forum for debating and deciding on Canada’s external relations.

On the issue of overseas military involvement, King declared:

It is for Parliament to decide whether or not we should participate in wars in different parts of the world, and it is neither right nor proper for any individual nor for any groups of individuals to take any step which in any way might limit the rights of Parliament in a matter which is of such great concern to all the people of our country (House of Commons, Debates, 1 February 1923).

Moreover, when the time came, King put this principle into effect: before officially declaring war on Germany in September 1939, King sought and obtained a joint resolution of Parliament in favour of Canadian entry into the war, even though this was not a legal requirement.

National Security

More direct and specific roles for Parliament in respect of national emergencies are set out in legislation. Part VI of the Emergencies Act, for example, requires parliamentary confirmation of any declaration of emergency by the Governor in Council, including a war emergency, an international emergency, a public welfare emergency or a public order emergency. The Act also requires the establishment of a parliamentary review committee (a special joint committee of Parliament) to review Cabinet’s exercise of any emergency powers.

Other statutes concerned with national security and other emergencies require parliamentary oversight, including the Anti-Terrorism Act, 2001, which required that a comprehensive review of the operation of the Act be undertaken by the Senate, the House of Commons, or both, within three years of the Act receiving Royal Assent.

The Situation in Other Countries

Treaty-making

Most other major industrialized democracies seem to provide for greater involvement by their national legislatures in the approval of treaties than does Canada. For example, several countries – France, Germany, Denmark, Italy and the United States – have constitutional requirements for legislative approval of at least certain categories of international agreements prior to ratification. However, it should be noted that in these countries, unlike Canada, ratified treaties generally become part of national law without the need for further implementing legislation.

Other countries that share constitutional traditions with Canada have also sought to entrench a role for Parliament in scrutinizing proposed treaty commitments.

In the United Kingdom, a convention established in the 1920s, known as the Ponsonby rule, requires that international agreements be placed before both Houses of Parliament at least 21 days prior to ratification. Conventions of this type are rules of practice which are recognized as politically, rather than legally, binding on governments (see TIPS-1E, Constitutional Conventions, by Mollie Dunsmuir). In July 2007, however, the UK government issued a Green Paper entitled The Governance of Britain, which sets out proposals for substantial constitutional reform, including reform of the royal prerogative with respect to the ratification of treaties. The Green Paper suggested replacing the Ponsonby rule with a more formal arrangement, or even statutory provisions. A 2008 White Paper on Constitutional Renewal stated, and the Joint Committee on the Draft Constitution Renewal Bill later confirmed, that the Ponsonby rule should be placed on a statutory footing, and the Joint Committee also recommended a new Joint Committee on Treaties. This change has yet to be implemented.

In 1996, Australia also implemented reforms to its treaty-making process which require:

• the tabling of treaties in Parliament at least 15 sitting days before binding action is taken by the executive;
• the preparation and tabling in Parliament of a “National Interest Analysis” for each treaty which includes information on the foreseeable impact of the obligations to be incurred under the treaty; and
• the establishment of a Joint Standing Committee on Treaties to review and report on proposed treaty actions.

Participation in Conflicts

In many countries which do not have a Westminster-style parliamentary system, the legislature has a formal, legal role in declaring war. This is the case, for example, under the U.S. Constitution. However, the issuance of declarations of war seems to have fallen into disuse for many states since the end of World War II.

In order to re-assert some control over foreign military involvement in an age of undeclared wars, the U.S. Congress passed the War Powers Act in 1973. Under this law, Congress must pass an affirmative resolution approving U.S. military action abroad, either initially or within 60 to 90 days. This does not apply where the U.S. is attacked or is the subject of a declaration of war.

Denmark’s Constitution also contains a requirement that its Parliament approve foreign military action except for self-defence.

In the United Kingdom, the government’s 2007 Green Paper set out proposals for reform of the royal prerogative with respect to the deployment of armed forces abroad. The paper proposed that the government should seek the approval of the House of Commons for significant non-routine deployments of the armed forces into conflict, to the greatest extent possible, without prejudicing the government’s ability to act to protect national security, or undermining operational security or effectiveness. The 2008 White Paper on Constitutional Renewal and the Joint Committee on the Draft Constitution Renewal Bill called for this change to be implemented by way of a detailed resolution, rather than legislation. However, the change has yet to be implemented.

Parliamentary Action: Some Examples of Proposals for Reform

Calls for a more active role for Parliament in foreign affairs have come from a number of sources. A number of Private Members’ initiatives have sought to give Parliament a more explicit role in approving key acts of foreign policy.

With respect to requiring prior parliamentary approval of external military involvement, a Private Member’s Bill, Bill C-295 (1^st Session, 35^th Parliament), proposed by Mr. Strahl (Fraser Valley), was defeated in June 1995, as were later resolutions proposed by Mr. Mills (Red Deer) and Mr. Duceppe (Laurier-Ste-Marie).

The Standing Senate Committee on Foreign Affairs, in its April 2000 report on the changed role of NATO and the evolution of peacekeeping, recommended that Parliament should have a greater role in reviewing new international agreements and in approving Canadian participation in external conflict situations.

The Standing Senate Committee on Human Rights, in its December 2001 report Promises to Keep: Implementing Canada’s Human Rights Obligations and its April 2007 report Children: The Silenced Citizens, similarly called for an enhanced role for Parliament with respect to Canada’s international human rights obligations.

Selected References

• Canadian Study of Parliament Group and Canadian Institute of International Affairs. Parliament and Foreign Affairs. Joint Seminar in Ottawa. 30 April – 2 May 1984.
• Cassese, Antonio, ed. Parliamentary Control Over Foreign Policy. Sijthoff & Noordhoff, Alphen aan den Rijn, Netherlands. 1980 (a series of essays describing the role of national legislatures in foreign policy decision-making in the United States and various European countries).
• Currie, John, Public International Law, Toronto, Irwin Law, 2008.
• Hogg, Peter and P. Monahan, Liability of the Crown. Toronto, Carswell, 2000.
• Jacomy-Millette, A. Treaty Law in Canada. Ottawa: University of Ottawa Press, 1975.
• Lordon, Paul. Crown Law. Toronto: Butterworths, 1991. See Chapter 3: “Crown Prerogatives,” pp. 75-82.
• Nossal, Kim Richard.
• The Politics of Canadian Foreign Policy, 3^rd ed. Toronto: Prentice Hall Canada, 1997. See Chapter 10: “The Influence of Parliament.”
• “The Democratization of Canadian Foreign Policy?” PDF (1.15 MB, 11 pages) Canadian Foreign Policy, Vol. 1, No. 3. Fall 1993, pp. 95-105.
• Senate. Standing Committee on Foreign Affairs. Seventh Report. The New NATO and the Evolution of Peacekeeping: Implications for Canada. 2^nd Session, 36^th Parliament. April 2000. See Chapter VIII: “Parliament and Canada’s External Security Commitments.”
• Senate. Standing Committee on Foreign Affairs. Evidence of Proceedings. 1st Session, 36th Parliament. Specifically with respect to the role of Parliament and external military deployments, see the evidence given by Professor Stephen A. Scott (see Issue 39, 1 June 1999), Faculty of Law, McGill University and Professor Kim Richard Nossal (see Issue 41, 8 June 1999), Department of Political Science, McMaster University.
• Government of Canada, "Policy on Tabling of Treaties in Parliament," January 2008
• Joanna Harrington, "Scrutiny and Approval: The Role for Westminster-style Parliaments in Treaty-Making," International Comparative Law Quarterly, vol. 55, January 2006, p. 121.

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†  Papers in the Library of Parliament’s In Brief series are short briefings on current issues. At times, they may serve as overviews, referring readers to more substantive sources published on the same topic. They are prepared by the Parliamentary Information and Research Service, which carries out research for and provides information and analysis to parliamentarians and Senate and House of Commons committees and parliamentary associations in an objective, impartial manner. [ Return to text ]

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