Another of the Crown’s reserve powers is the granting of royal assent to legislation. This authority is held by the sovereign or her vice-regents, and it cannot be delegated to, or be presumed to lie within, the power of a first minister. But can a representative of the Crown ever refuse to give royal assent to a bill? The granting of royal assent to legislation is now considered a mere formality. Most British constitutional experts assert that the granting of royal assent in Britain is obligatory. Even as early as 1867, Walter Bagehot, using dark humour that probably did not amuse Victoria, wrote “the Queen has no such veto. She must sign her own death warrant if the two Houses unanimously send it up to her.”[20]
The understanding of royal assent in Canada has always been more nuanced. The Constitution Act, 1867, gives the governor general and the lieutenant governors the power to reserve and disallow legislation, with the exercise of these powers subject to the advice of first ministers. Canadian political history offers various examples of governors using these powers. This practice, however, has faded in Canadian political life, first at the federal level in the 1880s and then within the provinces during the early decades of the twentieth century. Now, as in Britain, it is considered virtually unthinkable that the representative of the Crown would ever contemplate refusing to give royal assent to any piece of legislation presented to her or him for approval — virtually unthinkable, but not absolutely unthinkable.
Highly unusual circumstances could arise in which the representatives of the Crown would be justified in taking action at their own discretion. If a government has passed legislation that is inherently unconstitutional and a blatant attack on the democratic principles and practices of responsible government, such as abolishing the opposition or abolishing elections, the sovereign and her governors would have every right to refuse royal assent to such legislation — and would likely be applauded by the public for doing so.[21] Such hypothetical examples sound far-fetched, highlighting how well-entrenched democratic principles and practices are in these countries. Nevertheless, these hypotheticals do reveal an enduring Crown prerogative.
A similar reserve power is the right to dismiss a first minister and government, just as the sovereign and her vice-regents have the prerogative to appoint them. The Crown power of dismissal is one that is rarely exercised. In Britain, the sovereign has not dismissed a government since 1783, and in Canada no federal prime minister has ever been dismissed. Two premiers and their governments, however, were dismissed by their lieutenant governors, with these cases occurring in Quebec in 1891 and British Columbia in 1903. In both instances, the vice-regent acted following public investigations that revealed the existence of widespread corruption and illegal behaviour within these governments.[22]
The rarity of first ministerial dismissal in this country, however, does not mean that the Crown power to dismiss a prime minister and his or her government does not exist. Just because a Crown prerogative is rarely, if ever, used does not mean that it could never be used. The closest Canada ever came to a vice-regal dismissal of a federal government was in 1982. Governor General Edward Schreyer publicized that he had seriously contemplated dismissing the Liberal government of Pierre Trudeau. Schreyer stated that he was very concerned about the constitutional propriety of the federal government moving to unilaterally amend the constitution and patriate it from Britain despite opposition from eight of the ten provincial governments. He asserted that if Trudeau and most of the provincial premiers had failed to come to an agreement on constitutional reform at a final first ministers conference scheduled to discuss constitutional reform in November 1981, and if the Trudeau government had persisted in seeking to amend the constitution over provincial objection, he would have dismissed the prime minister. Immediately following this, he would have called upon the leader of the opposition, Joe Clark, to form a government on the express stipulation that he would immediately seek the dissolution of Parliament and the calling of a new election. If “there was an absolute absence of willingness [by the Trudeau government] to discuss anything any further,” said the governor general, “the only way out … would have been to cause an election to be held and the Canadian people asked to decide.”[23] As events transpired, that November meeting resulted in an agreement between the Trudeau Liberal government and nine out of ten provinces on amendment and patriation, with Quebec the lone holdout.
The exercise of the prerogative power of dismissal of a first minister is rare for the simple reason that most governments and parliaments seldom find themselves in situations where the issue of dismissal rises to the fore of Crown thinking. For all the talk of political conflict and partisan disagreement in Canada and other Commonwealth countries, most governments and parliaments in these lands function in constitutionally correct fashions such that the integrity and continued viability of governments is seldom, if ever, called into question. We are very fortunate that our political history leads to this conclusion, because the types of circumstances that could justify exercising the power of dismissal are dire and troubling, suggestive of a breakdown in good governance and the tradition of democratic political behaviour.
British and Canadian constitutional authorities agree that in certain very extraordinary and highly unlikely circumstances, the sovereign and her vice-regents retain the right of dismissal if its exercise would be necessary for the defence of the democratic constitutional order. If a first minister has just lost an election, with a single opposition party winning a majority of seats in the new parliamentary assembly, and that first minister refused to resign, the Crown would be justified in dismissing this rebellious leader and calling upon the first minister–elect to form a government. Likewise, in the above case, if the losing first minister refused to resign but rather advised the Crown to dissolve the newly elected parliamentary assembly and call a new election, the sovereign or her vice-regent would be justified in dismissing this renegade and transferring legitimate power to the first minister–elect. Likewise, if a first minister were to lose a vote of confidence in the assembly and refuse to either resign or recommend the dissolution of the assembly and the holding of new elections, the Crown would be, once again, within her or his rights to dismiss the rogue first minister and call upon the leader of the opposition to form a government. In all of these instances, the key operating principle is constant.
The Sovereign’s Final Prerogative: Dismissing a Governor General
In Canada, all the Crown reserve powers that we have looked at so far are exercised by the governor general or lieutenant governors acting in the name of the sovereign, with this delegation of royal authority sanctioned by the Letters Patent Act, 1947. One prerogative power, however, remains in the hands of the Queen to this day. Just as the sovereign has the legal right to appoint the governor general, so too does she have the right to dismiss this official prior to the conclusion of his or her usual five-year term of office.
No Canadian governor general actually has ever been dismissed, though advisers to Prime Minister Harper contemplated the possibility during the prorogation crisis of 2008. It has happened, however, on rare occasions in other Commonwealth countries: Ireland in 1932, Saint Christopher and Nevis in 1969, and Saint Lucia in 1982. In these instances, the prime minister of each country advised the sovereign to dismiss the vice-regent, and in each case the king or queen followed such prime ministerial advice.
While the principles of responsible government strongly direct the sovereign to exercise the power of the governor’s dismissal subject to the advice of the responsible prime minister and his or her government, this practice does not mean that the Queen loses all discretion in dealing with complex cases. Just as a vice-regent may be called upon to exercise independent judgment in dealing with the possible dismissal of a first minister, so too does the sovereign retain the independent right to exercise her or his own sense of prudence and wisdom in determining whether or not to assent to a prime ministerial request for the removal of a governor.
Suppose Governor General Schreyer’s nightmare scenario had come true, and Prime Minister Trudeau had felt compelled to proceed with the unilateral amendment and patriation of the constitution. And suppose the governor general had warned the prime minister that he was violating the spirit of the constitution and would be dismissed if he continued with his plans. What if Trudeau had then contacted Buckingham Palace and advised the Queen to dismiss the governor general prior to the governor general dismissing him? And what if, at the same time, the governor general notified the Queen that he was prepared to dismiss the prime minister for breaching the constitution? Would the Queen be obligated to immediately follow the advice of the prime minister, or could she uphold the decision of the governor general? In such a complex but potentially real-life case, the Queen would have the discretion to make her own judgment call, assessing the merits of the arguments presented by both sides while seeking to find the best way to promote constitutional and responsible government.
Similarly, what if Prime Minister Harper had advised the Queen to dismiss Governor General Jean solely because she had refused his request for prorogation on December 4, 2008? Would the Queen be required to follow the advice of a prime minister whose own ability to command the confidence of the House of Commons was in doubt? The answer is no. The sovereign would be in the position to bring her own judgment to bear on how best to resolve the crisis. In thinking about these types of “what if” scenarios, Andrew Heard reminds us that the Queen is only obligated to act upon constitutionally proper advice. “The Queen might be justified in refusing advice to remove a governor general,” Heard notes, “if the dismissal were an attempt to overturn a decision taken with all constitutional propriety by the Governor, such as refusing a dissolution.”[24] These scenarios portray a simple yet profound reality. Although rarely needed or used, the sovereign retains a final prerogative power to control the fate of his or her governors general in the Commonwealth realms.
Power and Legitimacy?
The reserve powers of the Crown, deriving from a pedigree dating back over a millennium, continue to exist, regularly exercised by governors general and lieutenant governors and only eliciting much public notice on rare occasions. But when they do make news, they make big news. They highlight periods of constitutional crises when the vice-regent, and perhaps even the monarch, may be called upon to make a political decision of enormous importance. Such is the ultimate job description of the head of state and her or his vice-regents, suggesting the high level of political, constitutional, and historical knowledge that these officials should possess if they are to be worthy of the trust they hold. The independent exercise of such powers, however, is thankfully infrequent, highlighting the ability of Canadian parliamentary democracy to function well most of the time. The general purpose of the sovereign and her Canadian governors general and lieutenant governors is to play the role of the head of state, to be the ceremonial leader of the country, and to serve as symbols of national and provincial unity, while promoting Canadian nationalism, culture, heritage, social and economic achievements, the ethos of public service, and philanthropy. But do the reserve powers and these ceremonial roles provide a sufficient basis for the continuation of the monarchy in this country? In this modern day and age, does the monarchy deserve to continue?
Chapter 6
we the people: republicanism and democracy
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
— James Madison, 1778.
“Common sense, therefore, is as much outraged by the idea of royalty as common right is. Still, it is more than an absurdity; it is a plague, because a nation that prostrates itself in the presences of absurdity is degraded.”
— Thomas Paine, 1776.
When Harry Truman was a boy, his hero was the ancient Roman aristocrat Lucius Quinctius Cincinnatus. According to legend, Cincinnatus returned to his farm after his service as consul ended in 460 BCE, but came out of retirement in 458 BCE when the Roman republic was threatened with invasion. The Roman leaders had approached him with the request that he become “dictator.” In so doing, they gave him unbridled power to command Rome’s military forces so as to vanquish her enemies. As supreme leader, Cincinnatus led the Roman army against its foes, defeating them in a single day. Having defended Rome and restored order to its shaken government, Cincinnatus voluntarily relinquished his powers as dictator, having served in this role for less than two weeks. Once again he retired to his life as a gentleman farmer.
Truman always admired the mythic virtue of Cincinnatus as the heroic citizen, selflessly serving the Roman government and her people, saving the Roman republic from certain defeat, and then relinquishing vast powers in order to return to being a common citizen. “Who knows,” a young Harry Truman, then a farmer in pre–First World War Missouri, wrote to his sweetheart, Bess Wallace, “maybe I’ll be like Cincinnatus and be elected constable someday.”[1]
Instead, Truman became the thirty-third president of the United States in 1945. Eight years later, on January 15, 1953, Truman was called upon to give his farewell presidential address to the nation. He concluded his speech with the following words: “Next Tuesday, General Eisenhower will be inaugurated as President of the United States. A short time after the new President takes office, I will be on the train going back home to Independence, Missouri. I will once again be a plain, private citizen of this great Republic. That is as it should be.”[2] Cincinnatus continued to make an impression.
Just as monarchism has an ancient pedigree, so too does republicanism. Monarchism is amongst the oldest forms of government, but republicanism has arisen to become the prime alternative to the rule of kings and queens. Republicanism in world history has scored major victories over certain monarchies. Two of its greatest triumphs are rooted in bloodshed — the American and French revolutions. The former witnessed the termination of British Crown authority in the American Thirteen Colonies and the founding of the American republic. The latter came close on its heels. Beginning in 1789, the French Revolution shook that country to the core, resulting in the establishment of the French republic, the promulgation of the Declaration of the Rights of Man and the Citizen in 1789 and the execution of King Louis XVI and Queen Marie Antoinette in 1793.
Throughout the nineteenth and twentieth centuries, republicanism trumped monarchism in the constitutional development of Britain and Canada. Herein lies a deep irony that even ardent monarchists who know their history must admit. According to Michael Valpy, a staunch defender of the monarchy, Canada is very much a “crowned republic.”[3] Although we are officially a monarchy, with Elizabeth II standing as our hereditary head of state, the way the country is actually run, the way government really works, reveals a constitutional system of government far more attuned to the principles of republicanism than monarchism. And even more ironic for monarchists, the accommodation of monarchical form to republican substance has been the key to preserving the monarchy in this country. Modern monarchists need republicanism. But do modern republicans need or want monarchism? If not, is monarchy doomed?
Republicanism: Government of the People
The American revolutionary Thomas Paine damned monarchy in 1776:
But it is not so much the absurdity as the evil of hereditary succession which concerns mankind. Did it ensure a race of good and wise men, it would have the seal of divine authority; but as it opens a door to the foolish, the wicked and the improper, it has in it the nature of oppression. Men who look upon themselves born to reign and others to obey soon grow insolent. Selected from the rest of mankind, their minds are early poisoned by importance; and the world they act in differs so materially from the world at large that they have little opportunity of knowing its true interests and, when they succeed to the government, are frequ
ently the most ignorant and unfit of any throughout the dominions.[4]
Republican thought was well known to Paine and his ideological allies such as Thomas Jefferson, John Adams, and Benjamin Franklin. Republicanism had its roots in the ancient world, where it came to stand as a form of government opposed to monarchism. Whereas a monarchy is a top-down system of government based on the rule of a hereditary king or queen, with all power and authority — state sovereignty — vested in the hands of the monarch, a republic has as its head of state a ruler selected for a specified and limited period of time by the citizens of the state, with the ruler accountable to those citizens for the performance of his or her duties. In its classical meaning, republicanism is rooted to the idea that power should flow from the bottom up, from the citizens to their ruler and select lawmakers. But there is much more to republicanism than just this power flow direction. In a monarchy, the king or queen is sovereign, with everyone “beneath” him or her being “subjects” of the monarch, obliged to be obediently loyal to his or her “majesty.” In a republic, sovereignty resides not in any transient ruler or group of legislators, and certainly never in a king or queen. Instead, it dwells in the people. In a republic the citizens — the people — rule the state, with all public sector power and authority flowing from them.[5]
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