Does Parliament Secure Rights?

Remember Garth Stevenson’s suggestion on this blog, January 12, 2009, that the Canadian Charter of Rights and Freedoms “has proven to be the worst thing that ever happened to our country, other than two world wars.” A bit extreme, did you think?

For an attack on constitutional bills of rights beside which Professor Stevenson’s mumblings pale, I recommend Adam Tomkins’ Our Republican Constitution (Oxford and Portland: Hart Publishing, 2005). The book came to my attention when Christopher Moore reviewed it recently in the Literary Review of Canada.

Tomkins is the John Millar Professor of Public Law at the University of Glasgow. I do not know who John Millar is or was. I do know that it’s news when a professor of law, occupying a named chair, takes to court bashing. Garth Stevenson, however esteemed in Canada, is a mere professor of political science (Brock University).

Here’s Tomkins’ claim: Politics, that is, Parliament, “is able both democratically and effectively to stop governments, to check the exercise of executive power, to hold it to account. The courts, no matter what their powers and no matter what their composition, will always find it more difficult” (page 10).

The idea that it takes the courts to check government, Tomkins calls “legal constitutionalism.” It’s a useful term. “Legal constitutionalism,” he says, is less democratic, and – note this – less effective in securing individual rights than “Parliamentary constitutionalism.”

He writes as if in the world of academe today, he is Parliament’s sole defender. He’s battling the universe. I’d like to be able to tell him that there are a few professors and students in Canada who could act as allies but Tomkins knows nothing of Canadian judicial review and parliamentary practice. There’s one reference to the Canadian Charter in Our Republican Constitution, but it is not substantive. Tomkins knows the America literature, and of course, the British. He cites Australians on occasion. But not Canadians. We’re not doing a good job of publicizing Canadian political science and legal thought.

If there is a flaw in this valuable book, it’s that Tomkins is not content with arguing that parliamentary politics secures rights. He’s convinced that a reformed Parliament would do an even better job and he has reforms to offer. Here again he proves himself a bold thinker. He has in mind nothing so prosaic as electoral reform or monkeying with the representation. He recommends first, the abolition of the monarchy. (Perhaps you saw that one coming?) Tomkins is a true, old-fashioned republican. He sees no need for a distinction between head of state, and head of government.

He also wishes to abolish political parties. I’ll have more to say in the next blog.

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