Parliament will decide: An interplay of politics and principle

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 or for any group of individuals to take any step which in any way might limit the rights of parliament in a matter which is of such great importance to all the people of our country.

Prime Minister William Lyon Mackenzie King, 2 February 1923 ¹

Parliament will decide when Canada goes to war. Variations on this theme have been part of the country’s political landscape since the first decade of the twentieth century. Prime Minister King gave the words substance when Canada joined the Second World War. Instead of automatically being in a state of war when the Crown declared it on behalf of Great Britain and its empire on 3 September 1939, the Canadian government advised King George VI to declare war for Canada seven days later, after votes had been held in both houses of Canada’s Parliament. Formally, the power to declare war remained with the Crown acting on the advice of Cabinet, but the idea that Parliament should have a voice had taken root. King had been asserting “the rights of Parliament” in the ultimate matters of war and peace since shortly after he took office in 1921, and before him Sir Wilfrid Laurier and Sir Robert Borden had done the same.

Historical and contemporary debates about “Parliament will decide” are clouded by misunderstandings of the relative legal authorities of the executive and the legislature, and the mixture of political objectives and democratic obligation that inform these discussions. Much has been written about the legal aspects of this question. ² This article considers instead the issues of politics and principle, which we argue are consistently interwoven: while governments have elevated Parliament’s role for political purposes, the choice to involve the legislature also reflects the idea that it is the “right thing to do” in a democracy. The politics of “Parliament will decide”’ are admittedly more readily sorted out than the principle that animates the idea. The rhetoric of democracy that flows from Canada’s leaders is, rightly, a suspect commodity. Principles are easier to put into words than they are to put into practice, but that does not mean that they do not exist.

Westminster parliaments do not have any legal or constitutional authority to declare war or deploy armed forces. The authority to initiate war and dispatch the military are royal prerogatives, ³ legal authorities that belong to the Crown in its own right, as recognized by common law. This has not always been the case. Parliament did take hold of the Crown’s war and military prerogatives during the short-lived English republic. And there is nothing that prevents Westminster states from making the legal or constitutional changes necessary to transfer these powers from the executive to the legislature—aside from considerations of political will, effective constitutional design, and accountability concerns. ⁴

Westminster states that have given serious thought to transferring these powers from the executive to the legislature chose not to do so because of the limitations that Parliament faces as a decision-making body. The executive is clearly better placed to act during an emergency, while the legislature may be constrained by recesses, prorogations, and elections. Keeping the power to deploy armed forces with the executive, furthermore, ensures that ministers are clearly accountable for the decisions they make under this authority. Dividing authority between the executive and the legislature would blur the principle of ministerial responsibility and the focused accountability that it provides. Westminster states have thus left the power to decide matters of war and peace first with the Sovereign, and later with ministers exercising the Crown’s authority.

In her book on the subject, Rosara Joseph notes that the Crown’s authority over declarations of war and military deployments does not imply that Parliament has played no role in military affairs. ⁵ Parliament has debated and funded the Crown’s wars, and parliamentary statute has regulated the executive’s powers over the armed forces. The legislature has many other functions related to war and national defence. However, the legal authority to declare war and deploy armed forces has historically not been one of them. This still holds true today, whether in Canada, the United Kingdom, Australia, or New Zealand.

Canadians may be forgiven if they find these assertions rather strange. For more than a century, prime ministers have promoted the notion of Parliament as the decisive institution in military matters. During the 1910 debate that led to the establishment of a Canadian navy, Prime Minister Wilfrid Laurier acknowledged the hard fact that Canada was part of an indivisible British Empire: “If England is at war we are at war and liable to be attacked.” But Canada would not necessarily involve itself in all of England’s wars. “That is a matter that must be determined by circumstances, upon which the Canadian parliament will have to pronounce and will have to decide in its own best judgment.” In 1914, one of those wars came, and Canada fought from the start. Three years later, Prime Minister Borden trumpeted to Canadians that their country had entered the First World War “by the decree of her Parliament.” As the historian Charles Stacey wrote, “this was magnificent, but it was not fact.” The Canadian Cabinet committed itself to the war even before the Imperial Crown’s declaration that a state of war existed. That declaration meant that all parts of the British Empire, including Canada, were legally engaged in the conflict. On the crucial question, the Canadian Parliament had decided nothing. ⁶

It made sense for Borden to emphasize the principles of democratic obligation and the centrality of Canada’s Parliament. He was engaged in a highly charged election campaign in 1917. Laurier too embellished the legislature’s role in military decisions. In fact, he had more incentive to do so than Borden. Laurier’s demand that Parliament decide derived from his careful balancing of francophone suspicions of the British Empire with Anglo-Canada’s predilection to stand by Mother Britain. A preoccupation with national unity was the right politics for a Liberal prime minister, particularly one from Quebec. It was also the animating principle of Laurier’s long career.

In the aftermath of the First World War, Mackenzie King took up and amplified Laurier’s declarations about Parliament’s decision-making role. The occasion was the Chanak Crisis of 1922, when London asked for a contingent of Canadian soldiers to come to the aid of British troops pinned down on the banks of the Dardanelles by Turkish nationalist forces under the leadership of Mustafa Kemal. King’s instinctive response, recorded in his diary, was not to “commit myself one way or the other, but keep the responsibility for prlt.—the executive regarding itself as the committee of prlt.—I do not believe prlt. would sanction the sending of a contingent.” Members of Parliament (MPs) from French Canada would be against it, as would many English-speaking MPs, and the Progressives, holding second place among the groups in Parliament, would “be opposed almost to a man.” The prime minister and his Cabinet recognized their responsibility in the setting of policy, but all were agreed that the public would demand parliamentary authorization to dispatch the army abroad. ⁷

Fortunately for Mackenzie King, Parliament was not sitting when the Chanak Crisis erupted, and it passed quietly away. The prime minister did not speak about the issue in the House of Commons until months later. On 2 February 1923, in the speech quoted at the beginning of this article, the prime minister effectively denied that the Crown could declare war for Canada without parliamentary involvement in the decision. Indeed, his address implied that the decision was Parliament’s, not the Crown’s. Yet Canada remained under the sovereign authority of the Imperial Crown. Canada’s Parliament had no authority to legally affect the Imperial Crown’s royal prerogative over war declarations, nor did the legislature attempt to do so by statute.

Constitutional and political developments in the later 1920s and 1930s reinforced King’s claim that Parliament should decide Canada’s status as a belligerent. At the 1926 Imperial Conference, the autonomy of Canada and the other British Dominions was recognized, as was their “equality of status” with the United Kingdom in an emerging and decentralized British Commonwealth. The 1931 Statute of Westminster granted Canada legislative independence from the British Parliament except in those areas where the former colony chose otherwise, notably the amendment of the British North America Act. Canada meanwhile had established diplomatic missions in Washington, Paris, and Tokyo, and begun to build up the Department of External Affairs as a serious policymaking institution.

Canada maintained close links to the United Kingdom thereafter. As another European war threatened in early 1939, Mackenzie King told Parliament that Laurier’s assertion that “when Britain is at war, Canada is at war” was still valid. King quickly added what Laurier had added—that Parliament would make “its own best judgment” about a war when it came and decide whether and how much Canada wished to contribute to the cause. ⁸ That was as far as King would go. He refused to give in to a small band of public servants, academics, and MPs who wished Parliament to make it clear, as Cooperative Commonwealth Federation leader J.S. Woodsworth put it to the House of Commons, “that the power to make a declaration of war binding upon Canada is vested solely in the Crown on the advice of its Canadian ministers.” Otherwise, his chief foreign policy adviser told King, the meaning of the government’s “letting Parliament decide” policy would remain ambiguous: “Decide what? Whether we are to be at war at all, or merely how deep we’re in?” Ambiguity, of course, was exactly what King had in mind. ⁹

War between the United Kingdom and Germany was declared by King George VI on 3 September 1939. On 7 September, the Canadian Parliament was recalled for a special session to debate the war. The session opened with a Speech from the Throne, during which the Governor General stated that

You have been summoned at the earliest moment in order that the government may seek authority for the measures necessary for the defence of Canada, and for cooperation in the determined effort which is being made to resist further aggression, and to prevent appeal to force instead of pacific means in the settlement of international disputes.

The following day, King intimated that adoption of the address in reply to the throne speech would serve to indicate Parliament’s support of his government’s decision to enter into war with Germany. Just before midnight on 9 September, the House approved the King government’s motion, the Senate already having done so. Cabinet then advised King George to sign a proclamation declaring that a state of war existed between Canada and the German Reich, which he immediately did, effective on 10 September. ¹⁰

The method that Mackenzie King used to secure Parliament’s approval casts doubt on the idea that a constitutional convention ¹¹ was established. Parliamentarians approved not a declaration of war, but the government’s intent to pursue measures to defend Canada and engage in hostilities overseas. The events of September 1939 did not change the legal status of the Crown’s war prerogative or Cabinet’s constitutional power to decide on war or peace. There was no attempt to reorder the relationship between the executive and legislature regarding the exercise of Canada’s war powers. However, the Legal Division of the Department of External Affairs was by 1941 advising the government that war could only be commenced or terminated by the King acting on the advice of his Canadian ministers—and that, before such advice was tendered, the consent of the Canadian people, expressed through Parliament, should be secured. ¹² Coupled with King’s statements that the seeking of authorization by Parliament was a means of consulting Canadians, it now appeared that that principle demanded that Parliament grant the executive approval before the country was committed to war.

That sense of democratic obligation did not persist. In the summer of 1950, the government of Prime Minister Louis St Laurent summoned Parliament to consider Canada’s involvement in the Korean conflict and to provide the executive with exceptional defence appropriations. When asked if his government would seek parliamentary authorization to send the military to Korea, St Laurent replied, “No, sir: that would be something that has never been done. The government announces to parliament what its policy is, and asks parliament for the ways and means to carry it out.” ¹³

Notably absent from the Korean discussion were grand pronouncements about a parliamentary decision on Canada’s role. Instead, the St Laurent government framed the issue in terms of the respective roles of the executive and legislature. A reading of the debate at the time sheds light on why the government adopted this more conservative tone. Ministers regularly mentioned that the Korea deployment was authorized by the United Nations Security Council (UNSC) and was consistent with Canada’s commitment to international peace and security. ¹⁴ Behind this rhetoric was a not-so-thinly-veiled salute to Canada’s duty to confront communist expansion and stand alongside its allies, the United States and the United Kingdom, in that struggle. The burgeoning Cold War and its politics demanded a decisive affirmation of executive discretion in military affairs.

Parliament was granted a role in the three major peacekeeping endeavours of the 1950s and 1960s. In late November 1956, the government reassembled Parliament to receive its approval of the deployment of Canadian elements of the United Nations Emergency Force (UNEF) to the Middle East. The Conservative opposition produced an unwelcome (and easily defeated) motion condemning the government’s Suez Crisis management but not the dispatch of a UN force. A different government, that of John Diefenbaker with a mass of MPs behind him, asked Parliament to support its decision to participate in the 1960 mission to the Congo. Parliament was not sitting in 1964 when Prime Minister Lester B. Pearson committed himself to join a UN force for Cyprus, but he pledged that government action was contingent on parliamentary approbation. He sought and received the backing of both the House of Commons and the Senate, although, as Kim Richard Nossal points out, Canadian troops were already on their way before Parliament had talked out the issue. ¹⁵ In each case, the choice to seek Parliament’s approval could be upheld as a positive constitutional development, one that lived up to the idea that parliamentarians should decide military interventions. In each case, however, the decision had already been taken by the executive, as it was in other Cold War peacekeeping expeditions, explicitly supported by Parliament or not.

Parliament was given a role in Canada’s first major military deployment following the end of the Cold War. On 6 August 1990, the UNSC authorized a collective security operation to expel Iraqi forces from Kuwait. The government of Prime Minister Brian Mulroney dispatched Canadian Forces (CF) units to the international mission a few days later, using the Crown’s prerogative power over military deployments. Parliament was not sitting, prompting the opposition to accuse the government of ignoring the legislature and denying parliamentarians the right to express themselves on the matter. When Parliament reconvened, the government asked the House of Commons to vote on a motion endorsing the UNSC’s decision to use force against Iraq. ¹⁶ The House was not asked to approve the Canadian military deployment, nor did the Commons vote additional appropriations for the mission. Although the Mulroney government was careful to shield itself from opposition critiques by tabling a motion, its actions reaffirmed the executive’s discretionary authority over military operations.

The Liberal government of Prime Minister Jean Chrétien felt no need to hold votes when deploying the armed forces. Chrétien’s government held debates on CF missions, but military deployments were a strictly executive decision during his premiership. Indeed, the Chrétien government demonstrated that a parliamentary vote was not needed even when the military was dispatched on combat operations that were not sanctioned by the UNSC. Canada’s contribution to the bombing campaign during the Kosovo War of 1999 was not subject to a vote in the House of Commons. In addition, no vote was held when the CF were deployed to fight alongside the United States military in Afghanistan in 2001–2002. Nor did Chrétien’s successor, Paul Martin, seek the House’s approval when committing the CF to a combat mission in Kandahar, Afghanistan, in 2005. Under the Chrétien and Martin governments, the executive’s military prerogatives were exercised without apology or a nod to the idea of “Parliament will decide.” ¹⁷

Chrétien’s refusal to hold parliamentary votes did not go unnoticed. Both the Bloc Québécois and the Reform Party sought to make the House’s approval mandatory for military deployments during the Chrétien era. The new Conservative Party, founded when Reform’s successor, the Canadian Alliance, and the Progressive Conservatives merged in 2003, also took up the idea that the Commons deserved a say in such decisions. The holding of military deployment votes joined fixed-election dates and the tabling of treaties prior to ratification as the Conservatives’ electoral platform pledges for reforming the Crown’s prerogatives and reducing the power of the prime minister. ¹⁸

Prime Minister Stephen Harper held a first such vote in May 2006, shortly after his newly formed Conservative government met its first minority Parliament. The prime minister tabled a motion requesting that the House of Commons support an extension of the CF mission in Kandahar to 2009. Benefiting from a divided Liberal caucus, the motion passed 149 to 145. Harper’s government would go on to hold votes that sought Commons approval for an extension of the Kandahar mission to 2011, consent for operations in Libya in 2011, and support for the CF combat mission in Iraq in 2014 and 2015. Votes were taken when the missions involved combat operations. Missions that were not meant to include combat were not voted on, but subject to a debate. ¹⁹ In explaining his reasoning behind the 2006 vote, Harper noted that when soldiers are sent on “dangerous missions abroad, it is important to be able to tell them that Canada’s parliamentarians believe in their objectives and support what they are doing.” ²⁰

Democratic considerations aside, political concerns also drove the Harper government’s approach to Parliament and military deployments. In fact, politics were surely paramount. During the 2006 debate on the Kandahar extension, Harper made it clear that he would extend the mission for a year, however the Commons voted. His intention was not to give the House the power to decide, but to increase the perceived legitimacy of his government’s decision. By bringing the extensions to a vote, moreover, the Harper government blurred understandings of which body—the executive or the legislature—was responsible for the decision. The votes allowed the executive to launder controversial policies through the Commons, giving the impression that MPs were making the decisions, rather than the government alone. This in turn meant that the House could be made to share the blame, or be used to deflect criticisms of the government, as the popularity of the mission fell. This strategy was especially effective because a portion of Liberal MPs voted for the extension in 2006 and the entire Liberal caucus voted with the government in 2008.

The Libya and Iraq votes served the government’s interests, too. Both the Liberals and the New Democrats supported Canada’s initial contribution to the 2011 intervention in Libya. This further enhanced the laundering effect of the vote on the eve of an election. The 2014 Iraq vote forced Liberal MPs to take a clear position on an issue that divided the wider party faithful and highlighted the lack of experience of their new leader, Justin Trudeau. Following the debate and vote, the Liberals slid in opinion polls. ²¹ While the Conservatives may have seen their numbers fall had the mission been unpopular, compelling the opposition to vote against an operation that Canadians largely supported was a temporary boon to the Harper government.

Political gamesmanship may not be enough to sustain the practice of holding military deployment votes. There will surely be instances where governments in a minority parliament risk losing these votes and being forced to choose between defying and surrendering to the will of the Commons. This leaves open the possibility that a future government will reaffirm the executive’s full discretion over military deployments, as St Laurent and Chrétien did. Simply put, political considerations may one day caution governments against holding these votes, rather than encouraging them to do so.

Yet there is reason to think that the democratic norm of Parliament having a say regarding military deployments, and combat operations in particular, will be observed from now on. After a decade of holding these votes, the practice has arguably become more entrenched than ever before. Other Westminster states have been giving parliamentarians the right to vote on combat operations, with the United Kingdom effectively giving the Commons the power to veto these missions. ²² Canada may find itself as an outlier within the Westminster tradition if it again abandons the practice. All three major political parties now endorse the idea that the House of Commons should vote on combat operations, and there were six combat mission votes between 2006 and 2015. Coupled with the political advantages that these votes give the executive, the notion that there is a democratic imperative to secure the Commons’ support for combat missions is stronger than in the past. Indeed, leading up to the 2014 Iraq vote, the opposition parties demanded to know why the Harper government did not consult the House prior to sending military advisors to the country in a non-combat role. This suggests that the expectation to hold votes may eventually extend beyond combat missions to include controversial or potentially dangerous deployments. Of note, in February 2016, Liberal Prime Minister Justin Trudeau declared that a vote would be held to expand Canada’s training and assistance mission in Iraq. In announcing the vote, Trudeau stated that “While we recognize the exclusive role of the executive in military matters, we will bring this mission to a Parliamentary debate when the House returns next week.” ²³

Mackenzie King’s declaration that “Parliament will decide” has returned to fashion. Politics habitually has the upper hand over principle in making it so, but the belief that consulting the Commons prior to sending the military to war is also the “right thing to do” may finally have become too strong for governments to ignore. ²⁴