Friday, March 28, 2014

The Avengers, Omega Flight & Westminster style Executive Government

While rereading Avengers Vol. 5 #10 recently I noticed (remembered!) how the story took the Avengers to Canada where we had an alien force take over Regina, the capital city of the province of Saskatchewan. Canada's Department H had reluctantly called in S.H.I.E.L.D. and the US-based Avengers for help when this little gem of dialogue appeared: 

Image from Marvel's Avengers Vol. 5 #10 (June 2013) Written by Jonathan Hickman, Pencils by Mike Deodato, Colours by Frank Martin, Letters by Cory Petit.

Image from Marvel's Avengers #10.
A military department with nuclear weapons that "his government" (and by this I presume the elected politicians) doesn't know about. Could this even happen in Canada? Could there be such a disconnect between a government department and the elected leadership that, as Logan suggests an "old school" government agency could have access to nukes that nobody knows about? And if so could this thing even be legal? This piece will examine this issue using the history of both the Canadian and British parliamentary systems as well as the current law that governs the Department of National Defence to explain how this in fact could not happen. Legal issues aside, this was an enjoyable story is not an indictment of the actual writing or art in any way. 

Canada is what can be called a Westminster democracy because it is modelled after the UK’s parliament located in Westminster, London. The British parliament has been a model for many democracies around the world, not just those 16 states that share Queen Elizabeth II as their head of state. Naturally, as these different states have evolved they have made subtle changes to better reflect the realities of their geographic and political realities, but in essence Westminster systems tend to remain quite similar. Examples of such changes include Australia, which while sharing the Queen has an elected upper chamber, whereas members of their British and Canadian equivalents, the House of Lords and Senate of Canada respectively, are appointed by the Queen on the advice of their prime minister.  Since 1982 Canada has also had an entrenched constitution with a Charter of Rights and Freedoms which is a legal document that while allowing for both the federal parliament in Ottawa and the provincial legislatures to pass laws, also serves as an entrenched check against these legislatures and their laws have been found to be unconstitutional and struck down by the courts. Westminister style states can also include republican countries such as Israel or India who have presidents yet operate in a similar fashion as their monarchical cousins and have prime ministers who make the political decisions and are elected members of parliament. 

The UK's MI: 13 (The MI stands for "Military Intelligence" and dates back to WWII) would follow a similar chain of command as Canada's Department H, as Canada's system of governance was largely modelled after the UK's. Image from Marvel's Revolutionary War: Alpha (March 2014) Written by Andy Lanning & Alan Cowsill, Art by Rich Elson, Colours by Antonio Fabela.

While the history of parliamentary governance reaches back further than the Norman invasion of England in 1066, it's here where we’ll begin our discussion. It was that pivotal year that the Normandy-based duke William conquered England and took the kingship of the realm. Not knowing the country as well as he might, the new king and his descendants set about inviting England’s landowners to join in the governance of the consolidated kingdom. Over time these aristocrats grew robust in the defence of their newly acquired rights and responsibilities and by the early 1200s were in rebellion against one of William's lesser decendents, John. So it was in 1215 that John was made to sign Magna Carta, which subjected him to the law and disallowed him from raising taxes or an army without their consent. From John onwards, certain favourites or competent individuals would assume positions of power and influence and the early stages of ministerial government developed.

But it was in the seventeenth century that things came to a fore. In 1603 James VI of Scotland became the King of England upon the death of his cousin Elizabeth I and this brought a different tone to the governance of England. James was influenced by continental rhetoric that envisioned a more centralized and monarch-centred ideal and soon set out to implement this as policy. This thinking became even more pronounced when James' son Charles assumed the English throne and would culminate when parliamentary and royalist forces went to war in the English Civil War (1642 to 1651). This war ultimately led to Charles’s execution, but when the republican experiment failed, Charles's son (Charles II) was invited to become King. When he died, his brother assumed the throne but being Catholic, was unacceptable to England’s largely Protestant aristocracy. So when James II finally became unpalatable for English nobles, they invited the Dutch Prince William of Orange (who was married to James’ daughter Mary) to become co-regent with his wife. But in order to become King, William was made to sign a contract of sorts – called the Bill of Rights of 1689 – containing a number of provisions of which the king had to adhere. These included a prohibition of cruel and unusual punishment, jury trials for criminal matters and other such things.

The marker denoting the site in Westminster Hall where Charles Stuart, King of England was sentenced to death. Photo by Blogger.

Westminster Hall. This is the oldest party of the Palace of Westminster. The above shown plaque is on the stairs. Photo by Blogger.
Giving the crown to William and Mary under such conditions represented a seismic shift in the constitutional status of England. By setting conditions, the nobles and the representative body of parliament ascended into an arrangement with the King that changed the legal landscape. Henceforth, it was the "King-In-Parliament" that had sovereign power in England and not only could the King not act unilaterally (as per Magna Carta), if a law was passed in parliament it was indisputably the law of the land and the only thing parliament could not do is pass a law that bound itself. The Crown's prerogative powers which was the body of customary authority, privilege, and immunity, that was the sole prerogative of the sovereign and included defence, foreign affairs and keeping the peace – were largely maintained and would remain considerable until gradually chipped away by parliamentary statute. But the legal Rubicon had been crossed and parliament was now a sovereign body that could make laws as it decided. Mary died in 1693 and William in 1702 and eventually the crown passed to Anne, Mary’s sister. But when Anne died without an heir, the closest protestant candidate was George, Elector of Hanover, a German who could not speak English. Because of these linguistic issues by the end of George’s reign, much of the responsibilities for the governance of the realm were on the shoulders of a parliamentarian named Sir Robert Walpole and he is largely considered Britain’s (and therefore the Commonwealth’s) first Prime Minister. 

A century and a half later in 1867, when the three colonies of British North America came together to form Canada, its establishing act from the British parliament called the British North America Act stated in its preamble that the newly formed Canada was to be a federal union of "One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom." 

Ministerial Government

Which brings us back to the question at hand: could a Canadian Prime Minister or Minister of Defence not know that the department which he or she ultimately controls has access nuclear weapons? Currently, the Prime Minister of Canada is selected by the Governor-General of Canada (the Queen's representative in Canada) to become PM. This is usually done after an election in which the party he or she leads wins the most seats in parliament. Once this happens, the Prime Minister-elect sets about deciding on who will join him or her to form the Canadian Ministry, which over time by constitutional convention (these are not laws but conventions that have evolved) has taken the prerogative powers of the Crown and become their sole exerciser. These are typically other Members of Parliament and are chosen not just for their competence but other politically calculated considerations which include but are not limited to province of origin, ethnicity, city or constituency.  

All of these Canadian government resources are ultimately under the control of a minister who must answer to the House of Commons. Image from Marvel's Avengers #10.
Once a minister is chosen, he or she is sworn into the Queen’s Privy Council for Canada. The Privy Council's active component are those individuals who are responsible for running or assisting with the operations of government departments such as the Ministry of Finance, Justice Canada or the Department of National Defence. Leaders of the Opposition are also sworn into the Privy Council so they can have access to secret information, but they do not head a government department and actively oppose the government in the House of Commons where each minister is held to account. Because of this, it is ultimately the minister who is responsible for its bureaucrats and employees. So if Department H were to acquire nuclear weapons without the Minister of National Defence knowing, this would be counter the National Defence Act, 1985 which reads in Section 4:
The Minister holds office during pleasure, has the management and direction of the Canadian Forces and of all matters relating to national defence and is responsible for
  • (a) the construction and maintenance of all defence establishments and works for the defence of Canada; and
  • (b) research relating to the defence of Canada and to the development of and improvements in materiel.

Remember this law was passed by the heir of the sovereign parliament of 1689 and is very clear: the Minister of Defence is responsible for all matters relating to national defence. So even if Department H was created by a separate statute by the Canadian parliament (to my knowledge Marvel has never stated which statute created Department H) it would most likely be governed by similar language as the NDA and would ultimately have a minister responsible for it. Because of this, Logan's "old school" friends with their secret arsenal are clearly operating outside of the law and counter to centuries of both historical negotiation and constitutional and legal development.

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