In Canada the declaration of war, or its functional equivalent, is still
a prerogative power. It should not be.
A.V. Dicey, in his Law of the Constitution described the prerogative power
as the residue of discretionary authority which at any given time is left
in the hands of the Crown. This means in effect that whatever ancient power
the monarch once uniquely possessed, and was not taken away by Parliament,
is still intact.
As a government power, the prerogative is both substantial and inconsequential.
The large and sprawling field of foreign policy, which involves matters
like making treaties, declaring war, deploying the armed services in international
conflicts, appointing ambassadors, recognizing states, accrediting diplomats
and so forth, is largely governed by the prerogative power. Then there
are more mundane areas like issuing passports, granting honours, appointing
Queen's Counsel, and clemency.
There are discretionary prerogative powers which rest with the monarch,
such as appointing the Prime Minister and his or her ministers, royal assent,
dissolution of Parliament, and the emergency power and then there are
those which have devolved from the monarch to ministers of the Crown, who
act in the name of the Crown such as those foreign policy powers described
above. Ministers enjoy the exercise of the power without necessarily having
to involve Parliament. In fact, throughout history, Parliament was bypassed
in the decisions to allocate this ministerial prerogative power.
It is the latter use of the prerogative that devolved one that Canadians
must watch, especially as concerns commitment of our armed services. Parliament
has been consulted but it has never expressly claimed the right to declare
war (or its equivalent), or to say when it has ended, or how it shall be
conducted. It should.
Canada has not declared war for close to seventy years. However, war has
clear functional equivalents. Involvement in armed conflicts, collective
police actions, and actions undertaken under instruments for collective
defence: all of these have placed the Canadian Forces on active service
and in harm's way.
For the most part Canada has entered international wars and conflicts on
the basis of the domestic prerogative power. One exception in the 20th
century was World War I. Canada was at war on August 4, 1914 because the
Imperial Government had declared war and, as such, according to the practice
of the day, "the Dominions, Colonies and Dependencies of the Empire" were
automatically at war. However, there were a number of Canadian Orders
in Council that implemented Canada's going to war.
In 1939 Britain declared war on September 3, but Canada waited, to emphasize
its autonomy. Parliamentary debate (September 9) preceded the order in
council declaring war (September 10). A similar procedure was followed
when Canada declared war on Italy in 1940. The point is that only an order
in council made the declaration of war formal. This was brought into stark
relief in 1942 when war was declared on Japan, Romania, Hungary and Finland
by simple proclamation, and no parliamentary debate or approval of an Address.
At the beginning of the Korean conflict, Parliament did not issue a resolution
authorizing the sending of troops to Korea. A newly amended National Defence
Act provided that Parliament be recalled within 10 days after a proclamation
placing the forces on active service, but Prime Minister St. Laurent on
September 8, 1950 noted that: "My understanding of the constitutional position
is that there is no specific action required by parliament in the form
of an affirmative decision."
And so it continued with NATO and UN missions (Suez, 1956, Congo, 1960,
Cyprus, 1964, Namibia, 1989, Persian Gulf, 1990): Parliament had to convene
within 10 days, but what it had to do was unspecified. Parliament simply
reviewed the Government's decision. Canada's recent mission in Afghanistan
has seen similar procedures, with the exception that the involvement of
Parliament has been styled a take notice debate. Take notice of what the
executive is up to, that is.
So what is the issue? Has not the executive acquitted itself appropriately
and judiciously to date? Arguably. But the past is not a reliable guide
for the future. Are there alternatives?
The prerogative has interesting characteristics. The most important for
our purposes is that the prerogative power can be displaced by statute.
Not only can statute law abolish or limit the prerogative, but the Crown
can no longer act under the prerogative in areas where a statute has spoken.
There is no going back.
This does not mean senseless obliteration, however. Statute can also safeguard
prerogatives, or partially and selectively affect prerogative, leaving
some areas still in the hands of the executive while others fall under
However, the legislature has been relatively quiescent about its potential
power. This is especially the case regarding war and conflicts. It does
not have to be this way.
Consider the United States Constitution. Congress in Article I, Section
8 expressly claims the power to declare war. The President is the Commander
in Chief (Article II, Section 2). When the President continued to ignore
the role of Congress decades ago, Congress bolstered it with the War Powers
Resolution of 1973. Major foreign conflicts or police actions involving
American troops since then Lebanon (1983), Operation Desert Storm (1991),
Somalia (1993-4), Bosnia (1995), Afghanistan (2001), Iraq (2002) have involved
Failing Congressional approval for military action, US troops must be withdrawn
within 60 days (after the 48 hour window the President has to report the
commitment of US forces), or withdrawn at any time in the face of concurrent
resolutions in the two Chambers. The limit can also be extended. Of course
Presidents have tried to sidestep these requirements in other contexts,
or challenge their constitutionality, but that is another story. There
are other, supplemental Congressional tools as well, but these are not
necessary to discuss here.
Canada should have its own War Powers Act. All Parliament has to do is
pass legislation and the democratic deficit in deciding war and involvement
in armed conflict is history. The participation of the military in armed
conflict should be subject to Parliamentary consent, either before commitment
of troops, or within a specified time. Common sense limits like the country's
right of self-defence or dealing with emergencies could be built in.
The need for limits on the executive has never been clearer. Consider the
involvement of Canadian troops in Afghanistan. Before the discussion of
the February 2009 deadline, we were told that it was until the end of 2006;
then for two years; and then the government hinted at other scenarios.
This is not good enough.
What kind of limits do we need? The Democratic Audit unit of the Human
Rights Centre at the University of Essex has suggested some. Parliament
can set meaningful and not open-ended mandates for the armed services regarding
conflicts. It can specify the need to honour international agreements and
international law. It can require the executive to report on a regular
and meaningful basis. It can require that military actions previously hidden
be made public. It can build up its overview, analytic and legal instruments
to monitor conflict situations. It can specify thresholds above and below
which legislative approval is and is not necessary. It could exercise the
power to recall Parliament in a war emergency, and the exercise of plenary
power by specialized or joint committees in similar circumstances. It could
change its mandates to mirror a new configuration of public opinion.
Parliament had an opportunity to move in the direction of a War Powers
Act in June 2007 when Prime Minister Harper announced that he was looking
for an all-party agreement among the Commons parties in order to extend
the Afghanistan mission beyond its February 2009 deadline. While there
appears to be no such consensus, the parties could be demanding more including
a role for Parliament in the declaration of war by any future government.
The prerogative power is a power whose time is plainly marked. When lives
are at stake, take notice debates and mere advisory commentaries pale as
alternatives in this most profound of decisions. A War Powers Act would
eliminate the future possibility of Parliament sleepwalking to war.