The Powers of the Crown – Satisfactory?

The so-called crisis in Her Britannic Majesty's Kingdom of Canada has been described as a situation where the choice was between two evils. Either the Governor General had to do as advised – block the popular will as expressed through Parliament, by prorogation – or refuse to do as advised by an elected official.


I'll leave the specifics of this situation to others, making more general comments here on the two main issues of principle; whether advice should be automatically heeded or not and whether a parliament should be suspended or not.

Let us have a look at the assertion that advice given must be followed. This is largely based on Walter Bagehot's three rights; the rights to warn, to encourage, and to be consulted. In addition, the case is made for so-called reserve rights, rights only exercised in emergencies, from time to time.

We will examine the assumption that the Crown must remain above politics. There is first of all a difference between being above politics and being above party politics. Also, there is a difference between being above politics and being above day-to-day politics. And perhaps above all, there is a difference between being above and ejected to irrelevance. We need to remember what the preposition above means. It says something about who or what is above whom or what. Being above and being totally sidelined are two very different things. One cannot be above and sidelined at the same time.

We so often hear that the Crown should remain politically neutral. However, there is also the issue of having a check on Parliament, and even on the popular majority. Any balancing act against the will of Parliament or the will of the popular majority will necessarily not be politically neutral. It may be political party neutral, but it will never be politically neutral. You cannot have an office as a check on democracy and politically neutral at the same time. You cannot have your cake and eat it too.

The concept that the Crown must only act upon the advice of elected politicos reduces the Crown to a rubber-stamping machine. If the Crown is to be a rubber-stamping machine, it would be appropriate to ask what the point of monarchy is.

It can be argued that the rights of the monarch are there to prevent the “advisors” from coming with indecent advice. However, if assent is taken for granted, one could wonder if there is any such prevention at all.

Of course, there is the issue of emergencies. If you really have a machine, this machine would consent also in the most severe emergencies, wheras a monarch or its representative may not. It is, however, tempting to ask if we ever will encounter an emergency severe enough for royal intervention to occur. It is more probable that our liberty will continue to be nibbled away, for expedience, and by parts, to paraphrase the great Edmund Burke.

We should have a look at what this month has happened in the Grand Duchy of Luxembourg. The Grand Duke refused to give his assent to a new euthanasia bill. The politicos, headed by the PM, promptly responded that the Grand Duke's role would be changed from assenting or sanctioning to promulgating. The PM was himself opposed to the euthanasia bill, but now a “more important” cause was at stake; the will of Parliament.

From time to time, we hear nice and fancy speeches along the lines that “democracy must be something more than majority rule.” We also hear the talk of constitutional democracy being a form of government where the will of the majority is limited. However, when a real check on the will of Parliament is exercised, that check is debunked, and we hear that nothing may stand in the way of the will of Parliament.

The Parliament in Luxembourg has reportedly acted swiftly. The constitutional amendment was passed reportedly this passed week. It took less than two weeks from the constitutional conflict arose to the politicos had passed the constitutional amendment. We have been told that debate on important issues is something we should allow time for. However, when parliamentary power is threatened there seems to be no limit to how little time there is.

The story in Luxembourg may serve as a scenario for what will happen were the Crown in a Commonwealth Realm ever to intervene in a similar way. Remember though, that scenarios are not certainty. Another scenario is that the Crown continues the policy of total non-intervention for decades – or even for another century and more – and people get even more accustomed to the concept that the Crown is a decoration.

The story in Luxembourg may also serve as an illustration of how far we in this world have come when it comes to unlimited democracy. Nothing must stand in the way of a popularly elected parliament. Nothing must stand in the way of the popular majority. It is sad.

Some people say that the Governor General of Canada did no wrong, but that it was Stephen Harper who gave the wrong advice. Advice is just that, advice. As we have established, it is a sad state of affairs where “advice” becomes verdict – where the Crown is ejected to irrelevance.

Now for the issue of prorogation. Situations do arise when there is a need for a monarch or a viceroy to tell the politicos to pull themselves together. When monarchs or viceroys do this, they are much criticized, but their doing so is still much needed. If parliamentarians decide one thing one week, and then turn around and decide the opposite the next, sending them on leave is perhaps not such a bad idea. We can think of other things also that are not so bad ideas in such a situation either.

Here we take issue though with something a bit beyond merely telling politicos to pull themselves together.

Yours truly often longs for the times when parliaments sat only a few weeks a year, and perhaps they didn't even meet every year. The federal Parliament in Switzerland is still like this, meeting only a few weeks a year.

When people complain about politicos having longer vacations than the regular people, we should respond that it is a good thing with longer vacations for politicos. When they're on vacation, they don't get to pass lots of new legislation.

We should rejoice when a parliament is suspended. There should be more of it. Of course, if Parliament has a secretariat that is not suspended, the suspension isn't as effective as it otherwise might be.

We have grown accustomed to parliaments and other legislatures meeting most of the year.

We should keep in mind what Judge Gideon J. Tucker told us:

No man's life, liberty, or property are safe while the legislature is in session.

The thinkers that warned about the effects of unbridled democracy are many. Amongst them were Sir James Fitzjames Stephen, Alexis de Tocqueville, and W.E.H. Lecky. Edmund Burke wrote of tyrannical democracy. So have many others. When we see that they were right, we should take their warnings seriously.

We have grown accustomed to popularly elected assemblies as always present, and we are told – and most of us believe – that they are guarantors of our freedom. Yet government interferes in our lives, homes, and businesses to an ever increasing level, not to mention to a degree foreign to most – if not all – monarchs of old. As the power of parliaments and legislatures has risen, the power of monarchs has declined. Declined also has our liberty.

We mark this year 320 years since the so-called “Glorious Revolution.” In these 320 years, democracy has far from delivered on its promise of liberty.

The right to vote is what is supposed to protect us. Yet, liberty is nibbled away anyway. We are told that the individual vote gives the individual influence. Yet, no one asserts that an individual right to pour a bucket of water into Lake Superior gives the individual influence.

If parliaments didn't meet so often, if their suspension was not so uncommon, and if the parliamentary will couldn't be taken for granted, it is likely that this world would be a better place.