The Queen's Smile

Few will recognise anyone but Elizabeth II in this photograph. It was taken in Canada in 1982. In the photograph, the queen is signing the Canada Act, Canada's patriated constitution, unencumbered by the Westminster Parliament. (Until the 1980s the constitution of Canada was an act of a foreign sovereign parliament. Patriation meant removing the power of that parliament to change Canada's basic law. Australia and New Zealand also patriated their constitutions, shortly after Canada did.)

As there was no amending formula, the Supreme Court of Canada was asked to clarify what could--legally--and should--conventionally--be done to introduce a mechanism for amendment in the future. The judges accorded Canada's federal parliament the power to unilaterally patriate the constitution, without resort to a referendum or a process of ratification by Canada's provinces. Yet they also stated that according to convention, the federal government should consult, and seek to secure the consent of, the provinces before proceeding. The judges distinguished what was strictly and narrowly legal from what was politic and in accord with unwritten principles of Canada's constitutional arrangements. Consent to patriation, to the amending formula, and to a charter or rights and freedoms was secured from nine provinces, but not from Québec. The Government of Québec is circumscribed by Canada's constitution without having assented to it, as it stands today. Thus, it seems, the queen's awkward smile:

What was done could be done, but should it have been done? What could be done was two parliamentary votes, one in each house of the Canadian parliament. That sufficed to change the constitution. But the legally sufficient was not the wisest course of action. The greater the consensus, the stronger the constitution as basic law: and constitutional arrangements made without Québec might as well have been made against Québec.

All of this, by way of a parallel: the new text of Article 135 of the Spanish Constitution, an amendment limiting the power of the state or of any subsidiary public administrations to take on debt, has been approved by parliamentary vote in the two chambers of Spain's parliament and signed into law by the king. Over 90% of members of each chamber approved the amendment, obviating the need for a referendum: the amendment will become part of basic law without any process of ratification. In only one of the chambers are seats distributed as a direct function of a public electorial process (some Spanish senators are appointed rather than elected). Neither party voting to pass the amendment made any mention of it in the 2008 general election campaign; nor did the two parties together command a qualified majority of support of the Spanish electorate. (Turnout was 73% in 2008: the PSOE's support, in terms of the number of potential voters, was 32.4%, and the PP's 29.5%.) In good conscience, some of Mr Zapatero's or Mr Rajoy's deputies should have abstained and forced a referendum. That they did not should give the king of Spain the same awkward smile of discomfort when he signs the amendment into law.