As Head of State of the United Kingdom, Canada, Australia, and many other Commonwealth countries, Queen Elizabeth II is a constitutional monarch. She is said to “reign but not rule”: the democratic constitutions of her realms prevent her from acting like a dictator, and she does not take an active part in political life. Formally, she does have a number of royal prerogatives, not least of which is the right to refuse assent to laws passed by Parliament; however, constitutional experts are divided on the question of whether those rights exist in practice. Let us delve into this issue and try to determine the scope of the Queen’s authority.
In order to understand this issue clearly, a small historical excursion is necessary. In centuries past, the English monarch certainly was a powerful ruler, though his authority was curbed somewhat by the existence of Parliament. The powers held by the monarch included the right to suspend Parliament, pardon offenders and act as a judge; these prerogatives were more conventions than the product of any written constitutional law. Eventually, Parliament passed the Bill of Rights (1689) and the Act of Settlement (1701), which significantly curbed the King’s prerogatives; those that remained were still largely unwritten, including that of royal assent to legislation. This right is still formally exercised by the Queen today, and all bills must be approved by her in order to become law. But the last time a British monarch vetoed a bill was in 1708, when Queen Anne, acting on the advice of her Government, witheld assent to the Scottish Militia Bill. Since then, no British monarch has ever witheld royal assent, though George IV and George V considered doing so for certain laws that were controversial in their time.
Since the British constitution is largely based on convention, the long-term absence of royal vetoes has led to a widespread belief that a new convention has arisen whereby the Queen has no power of veto over laws. This view seems to have been made popular by the book “The English Constitution” (1867), in which Walter Bagehot bluntly stated that Queen Victoria “...must sign her own death-warrant if the two Houses unanimously send it up to her” and claimed that she had long ceased to have legislative power. Making such a claim would have been considered unpardonably insolent in earlier generations; however, current custom seems to support it. But if Elizabeth II automatically approves all laws, what evidence is there to claim that she “must” do so? I have failed to find any. For as entrenched as the current convention may be, I see no instrument in the current legal framework for legitimately enforcing it. As things stand, there are no official sanctions that could be applied if the Queen did refuse to assent to a law, and as all bills require royal assent to become law, her actions would technically be legitimate. Of course, this would likely imperil the Queen’s popularity and result in a constitutional crisis, perhaps even in the monarchy being abolished. Alternately, a new law might be passed stripping the Queen of her power. This happened in Luxembourg in 2008, when the Grand Duke expressed disapproval of a law legalizing euthanasia and the Parliament altered the constitution to eliminate his power to assent to bills, which the Grand Duke accepted.
In other Commonwealth realms, the existence of written constitutions makes the Queen’s powers (respectively, those of her Governors General or vice-regal representatives) more explicit. In Canada, for example, Section 55 of the Constitution Act, 1867 authorizes the Governor General to assent to a bill passed by Parliament in the Queen’s name, to withhold his assent, or to reserve the matter to the Queen’s decision. Moreover, under Section 56, the Queen in Council (acting on the advice of her Privy Council) may veto a law that the Governor General has approved within two years of receiving a copy of the bill. On paper, the Crown does have the power to veto laws passed by the Canadian Parliament. Also, according to Section 90 of the Constitution Act, 1867, provincial Lieutenant Governors may also withhold assent to bills passed by provincial legislatures or reserve the decision to the Governor General. Although no federal Governor General has ever witheld royal assent, some Lieutenant Governors have witheld or reserved it, most recently in Saskatchewan in 1963.
Depending on the state, other powers exercised by the Crown can include eliminating criminal records by means of pardons, proroguing Parliament and calling elections ahead of time. While these are normally exercised upon the advice of ministers, there are exceptional cases in which the Crown has acted under its own initiative. In 1926, for example, Canadian Prime Minister William Lyon Mackenzie King (Liberal) requested Governor General Byng to call an election, in hopes that this would allow his minority government to stay in power. But there had been an election relatively recently, and Byng thought that the Conservative Party, which had the most seats in Parliament but no majority, should be given a chance to form a government. King tried in vain to convince Byng to call the election, but the Governor General refused and King resigned. Another case in point is the 1975 Australian constitutional crisis: Prime Minister Gough Whitlam’s weak Government was at odds with the Opposition, and Whitlam approached Australian Governor General John Kerr with a request to call a half-senate election. Kerr not only ignored this request, but dismissed Whitlam and appointed Opposition leader Malcolm Fraser as caretaker Prime Minister.
The best assessment of the Royal Prerogative would seem to be that it still exists, although it is rarely exercised. I ask for Bagehot’s
pardon, but the idea that the Queen holds real potential power cannot be easily dismissed. It could be reasonably said, however, that the powers would probably not exist for long if they were to be exercised arbitrarily and not, as was the case with Governors General Byng and Kerr, with just cause. As things stand, however, the Royal Prerogative remains in place to be used in exceptional cases as a reserve power serving to aid democracy, rather than detract from it.
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