Vetoes, Parliaments and Pardons: The Royal Prerogative

Elizabeth II is the Head of State of the United Kingdom and fifteen other Member States of the Commonwealth of Nations. These countries are constitutional monarchies, meaning they operate mainly in accordance with the democratic constitution, with the main role of the queen being to represent the state. Very often she is seen as a symbolic and apolitical character with no real power. But is it really so? Does the queen really have a purely nominal power or can she actually exercise her will in public? The answer to this question is not easy. I will try to do so by focusing primarily on one of its main theoretical prerogatives: the right to give or reject royal consent to laws passed by Parliament.

One difficulty in assessing the degree of power currently in the hands of the monarchy is that the British Constitution is not codified in a single document and most of it remains unwritten. The vast power that the monarch once undoubtedly possessed, including the right to administer justice, dissolve parliament, or pardon a crime, was largely custom, not status. Codified laws (The Bill of Rights of 1689 and the Settlement Act of 1701 were among the most important) served more to limit the monarch’s power than to consolidate it. The remaining powers still retained by the queen remain a matter of constitutional agreement, not written rules. Officially, no law in the British Parliament becomes a real law until it is approved by the queen. But in practice Elizabeth II agrees with all the bills regardless of their opinion about them. The last time a British monarch rejected the law was in 1708, when the queen Anne vetoed the Scottish Police Act, and even then at the behest of her ministers. Since then, the right to royal consent has been out of use, leading some constitutional theorists to assert that a new convention has emerged requiring the monarch to pass all bills. This view was underlined by Walter Badgehot in his 1867 book The Constitution of England:

«… the queen doesn’t have that veto. She must sign her death sentence if both chambers send it unanimously. This is a fabrication of the past, which is attributed to its legislature. everyone.”

In previous generations, such a bold assertion about the monarch’s perceived lack of power would have been unforgivable. Even I see some flaws in this theory. First, the only evidence he relies on (apart from Badgehot’s statement) is habit. Despite the fact that all monarchs since the days of queen Anne have adopted all the bills submitted to them, there is no formal change in any official policy that would indicate that this practice will be respected for the next bill. If the queen decides not to approve the bill, what legal mechanism can force her to do otherwise? It seems to me that in this case the veto can be effectively circumvented only by a revolutionary act – at least by the government’s refusal to respect the veto, which will undoubtedly lead to a constitutional crisis.

The situation is most evident in Canada, which, unlike the UK, has a largely written constitution. The 1867 Constitution clearly defines the powers of the Crown. Under section 55 of the Act, when the Governor-General (the representative of the queen in Canada) receives a bill passed by Parliament, he may declare that he accepts on behalf of the queen that he refuses consent or leaves the bill “at the discretion of the queen”. (Let the queen decide this matter; under section 57, it can do so within two years of receiving the bill by the Governor-General). In addition, the queen on the council (the queen acting on the advice of her Privy Council) may, as stipulated in article 56, reject any law approved by the Governor-General within two years of receiving a copy of the law. Thus, the queen, along with the Governor-General, has a formal right to veto any law passed by the Canadian Parliament. However, no Governor-General has done so since the Confederacy in 1867, although some provincial vice-governors vetoed or reserved provincial laws at the discretion of the Governor-General (under section 90 of the 1867 Constitution). The last occurred in 1963, when the vice governor of Saskatchewan, Frank Bastedo, reserved the bill.

Moreover, in recent Commonwealth history, there have been examples of other royal privileges being exercised directly by the Crown against the will of the Government. Depending on the country, the Crown may have broad official powers, including ministerial appointments, pardons for the removal of criminal records or early elections, and some of these powers have been exercised in person, especially in unclear political situations. . A classic example is the refusal of Governor-General Bing in 1926 to hold a very early election at the behest of Canadian Liberal Prime Minister William Lyon Mackenzie King, who wanted to remain in power despite the Conservative Party’s stronger position in Parliament. Bing refused to do so; King was outraged by this alleged violation of democracy, but Bing held on. Another notable example was the resignation of Prime Minister Gough Whitlam by Governor-General of Australia John Kerr during Australia’s 1975 constitutional crisis. Instead, Kerr sacked him and appointed Malcolm Fraser, the opposition leader, to replace him.

The fact that royal power is rarely or not exercised at all by the queen and its representatives appears to be the product of the generally accepted goodwill on their part, not the actual legal requirement. I hope Badgehot would forgive me if I suspected that he was exaggerating when he declared that the queen should “sign her death sentence”; what he was talking about was more a matter of day-to-day practice, as he had seen it, than a true statement of the existing law. After all, the monarchy is trying to remain popular, and in the current era of democracy its existence depends on public approval.

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