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Canada’s ‘royal prerogative’ allows it to wage war without parliamentary approval

Questions are again being raised about how the Canadian government decides to use force or participate in armed conflict, following reports that Canadian Armed Forces special forces units have been operating on the ground in Ukraine.

Although apparently deployed strictly for ‘training purposes’, such involvement can lead to more direct engagement in armed conflict.

Canadian Prime Minister Justin Trudeau and Defense Minister Anita Anand speak with Canadian troops deployed in Latvia in March 2022, shortly after Russia invaded Ukraine.
THE CANADIAN PRESS/Adrian Wyld

The decision to engage in armed conflict is one of the most important decisions a government can make. Who is involved in decision-making, and what conditions or principles govern this process? More importantly, how should these decisions be made?

As a recent report suggests, the Ukrainian deployment has revived interest in these issues on Parliament Hill. But there should be broader public discussion and debate.

Most Canadians would be surprised to learn that the Prime Minister and cabinet have much more absolute power under the so-called royal prerogative lead the country into war than most other Western democracies.

First limits of war powers

The modern idea that the power of the executive to wage war should be limited can be retraced at least until Glorious Revolution in 1688when the English parliament imposed constraints on the king’s ability to raise and maintain an army.

Portrait of a gray-haired man wearing a dark suit and white tie.
James Madison, fourth President of the United States.
(White House Historical Association), CC BY

American Founding Father James Madison and German philosopher Immanuel Kantamong others, developed these ideas in the 18th century, arguing that legislatures should be involved in any decision to engage in war.

In their view, not only were the legislatures most representative of the people who should pay and die for war, but they were less prone to self-aggrandizing adventures or capture by special interests than the executive branch. The American Constitution reflects the ideas of Madisonrequiring Congress to approve declarations of war.

After recent research on deliberation and representative democracy found that diffusing decision-making to both the executive and legislative branches, and forcing the executive to explain and defend its reasons in order to gain legislative approval, make decisions that are objectively better for the national interest than those made by the executive alone.

The process results in deeper deliberations and a broader range of perspectives, greater transparency, and fewer opportunities for undue influence by narrow interests. Moreover, such a process leads to a policy that is considered more legitimate and representative – and therefore more likely to gain public understanding and support.

speed, secrecy

Proponents of unilateral executive power to wage war to pretend that involving the legislature makes the decision-making process too cumbersome and that public debate would require the disclosure of classified information.

Such a process could make countries appear unreliable in the eyes of allies, they add. Speed ​​and secrecy are essential, so the argument goes.

But short of responding to a direct attack – for which exceptions exist in all systems – deciding to engage in armed conflict should not be easy.

Governments should be required to persuade citizens that force is necessary. The more obvious it is that force is in the national interest, the easier it will be to obtain approval; the more difficult it is to obtain approval, the more it suggests that the reasons are not convincing.

When it comes to secrecy, it’s hard to imagine what secrets should be leaked in arguments about whether to go to war.

Different war powers

The constitutional systems of most liberal democracies include constraints on which branches of government may be involved in decisions to wage war, and how those decisions should be made.

Countries like the United States, France, Italy, the Netherlands, Spain, Brazil and India explicitly require decisions to go to war to be approved by the legislature.

Some constitutional systems, such as those of Germany, Italy and Japan, include constraints on how and when the government can go to war, incorporating international law’s prohibition on the use of force. Still others, including some Nordic countries, include both types of constitutional constraints.

Certainly these constitutional war powers, both those requiring legislative intervention and those imposing conditions on when force may be used, are disputed in several of these countries, with debates on their interpretation and scope. But they operate in a way that limits and shapes government action.

Two men stand together in white shirts and suit jackets.  A wave.
David Cameron is greeted by Barack Obama during a May 2012 G8 summit reception at Camp David, Maryland.
THE CANADIAN PRESS/Paul Chiasson

For example, both barack obama in the United States and David Cameron in the UK felt compelled when they led their country to seek legislative approval for strikes against Syrian chemical weapons facilities in 2013. The failure to obtain such approval prompted both governments to seek diplomatic alternatives.

The Royal Prerogative of Canada

Canada, on the other hand, has no such constitutional constraints. The United Kingdom and its former dominions (Canada, Australia and New Zealand) are the special cases in this respect. The decision to go to war is a matter of exclusive executive power known as Royal or Crown Prerogative, giving the executive largely absolute power to decide whether to go to war.

As British Prime Minister Anthony Eden, for example, decided with only a select circle of cabinet members to conspire with the governments of France and Israel to invade Egypt to regain control of the Suez Canal in 1956, without notice to parliament or even to his entire cabinet. The resulting conflict was a disaster for the United Kingdom, accelerating its decline great power status.

A black and white photo shows a man waving to a large crowd.
In this June 1956 photo, Egyptian leader Gamal Abdel Nasser waves as he walks through Port Said, Egypt, during a ceremony in which Egypt officially took control of the Suez Canal at the Great -Brittany. Britain and France invaded five months later.
(AP Photo)

Yet even Great Britain and australia had a significant debate over war powers and the royal prerogative following their involvement in the 2003 invasion of Iraq.

In both countries, efforts have been made to enact legislation requiring parliamentary approval of decisions to engage in armed conflict. Although neither country has yet enacted such laws, the debate has been broad and significant. In the United Kingdom, it has led to the creation of a new constitutional convention which requires the government to obtain parliamentary approval before using force. This was evident in Cameron’s efforts to gain approval in 2013.

Further discussion is needed

Canada, having avoided the war in Iraq, has not experienced a similar introspection and remains the extreme exception.

Academic discussion of the issue tends to reflect general support for the royal prerogative.

But democratic and constitutional theory, as well as practice in other liberal democracies, suggest that Canada needs to engage in a deeper debate on these issues. It is strange that the federal government has to involve Parliament in establishing a new tax, but can drag the country into war without even a formal debate.

A more representative and accountable decision-making process is needed in Canada.

Rodney N.

The author Rodney N.