Reining in the Crown's Power on Dissolution: The Fixed-Term Parliaments Act of the United Kingdom Versus the Fixed-Election Laws in Canada

Abstract

This paper analyzes the key differences between the powers of the British Crown versus those of the Crown of Canada in order to compares and contrasts the fixed-elections laws in Canada (at the federal and provincial levels) with the Fixed-Term Parliaments Act, 2011 of the United Kingdom. The United Kingdom operates on parliamentary supremacy and an uncodified constitution, and the powers of the British Crown come either from statute or prerogative. The British Parliament can therefore invoke its sovereign right to limit or put into abeyance any prerogative power of the British Crown at will. In contrast, Canada has always operated on a system of constitutional supremacy. Currently, the powers of the Crown of Canada derive from three sources: the provisions of the Constitution Act. 1867, the constitutionalized powers entrenched under the Constitution Act, 1982, and statute. The first two types of powers enjoy the protection from statutory encroachment under the unanimity formula.

This is precisely why the Canadian fixed-elections laws have deliberately preserved the Crown’s power of dissolution and the Prime Minister’s (or Premier’s) power to advise and receive early dissolution, in contrast to the Fixed-Term Parliaments Act, 2011, which put the prerogative of dissolution of the British Crown into abeyance, removed the Queen and Prime Minister from dissolution, and thus truly eliminates the possibility of "snap elections." It concludes that Canadian jurists and scholars have long misapplied the British concept of "prerogative" powers to the Constitution of Canada, that the power of dissolution is not a "prerogative" in Canada, and that only a proper constitutional amendment under section 41(a) of the Constitution Act, 1982 could eliminate the Crown’s power on dissolution (at either the federal level or in a province) as the Fixed-Term Parliaments Act, 2011 has put the prerogative of dissolution into abeyance in the United Kingdom.

Keywords: dissolution, codification, constitutional conventions, responsible government, prerogative, crown, parliamentary sovereignty