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  If Canada is to be a truly modern country, republicans argue, we need to finally grow up as a people and sever the vestiges of British colonialism that still maintain an English foreigner as our Queen. We need to develop our own independent head of state who could represent the country and its people in a style that is uniquely Canadian, democratic, and multicultural.

  The republican challenge to monarchy in this country is intellectually powerful. It resonates deeply with contemporary Canadian public opinion. Subsequent chapters will be devoted to the exploration of republican thinking in Canada. Before going there, though, we need to move beyond the ceremonial role of the Crown and look at the real powers the Queen and her Canadian vice-regents possess. Is there a modern justification for the continued existence of monarchy in Canada to be found in the ancient nature of the Crown prerogative?

  Chapter 4

  the hard road to soft power: the crown prerogative and the evolution of constitutional monarchy

  “In England power started with the Crown…. At the centre of everything — the social, the religious, the legal, and the political — was the Crown. This was an age [the Tudor] when the Crown did not merely reign; it ruled.”

  — Adam Tomkins, professor of public law, University of Glasgow, 2013.

  “The monarch is now able to do virtually nothing without the authorization of his or her constitutional advisers, the Cabinet, who are, of course, always accountable to Parliament.”

  — R. MacGregor Dawson, professor of political science, University of Toronto, 1947.

  On Christmas Day 1066, William the Conqueror was crowned king of England in London’s Westminster Abbey. William had gained the Crown by invading England and defeating the forces of Harold II at the Battle of Hastings on October 14 of that year. When William was crowned by the Archbishop of Canterbury, he was recognized as possessing all the rights and privileges of all the kings of England who had preceded him. In 1066, these rights and privileges of the monarch, known as the Crown prerogative, were vast. When William came to the throne, no form of parliament yet existed — and wouldn’t for another two centuries. So, as king, William had the power to make law, set public policy, rule by decree, and impose any form of taxation on his people. He had the right to declare war, lead his army into battle, make peace, and direct foreign policy. It was in his authority to govern his realm as he saw fit, appoint any men whom he desired to government offices, and select ambassadors, judges, and privy councillors. He had the privilege of establishing governing institutions and courts of law, and he maintained the power to make judicial decisions in any case he wished. Having the right to impose capital punishment on, or extend mercy to, any offender, he held the power of life and death over all his subjects.

  William’s power and the authority of his immediate descendants would be unrecognizable to those wearing the modern Crown. If William I could see the immensely reduced rights and privileges possessed by Elizabeth II, he would likely shake his head in disgust. What has become of his once mighty Crown? The answer is this: the greatness and near incalculable nature of the Crown’s power had grown so fearsome to those vulnerable to it that the king’s very subjects have slowly restrained, controlled, and circumscribed it.

  This process of limitation, or the taming of the Crown prerogative, is one of the great narratives in English and British history, and we in Canada are its heirs and beneficiaries. A number of crucial events in this political evolution stand as milestones, marking the slow but steady transformation of a near absolute Crown with frightening powers into a constitutional monarchy upholding core principles of democratic governance. Elements of the former Crown prerogative remain to this day, however, with substantial powers still residing in the Crown-as-monarch. Sometimes her or his power is subject to the advice of first ministers, and sometimes it is not. These remaining prerogative powers, found solely in the hands of the sovereign and her vice-regents, can be characterized as “hard” powers, deriving from a pedigree dating back to William the Conqueror. The entirety of chapter 5 will be devoted to them. Much of this chapter will concern itself with the exercise of the Crown’s more modern “soft” powers. These powers are the kinder and gentler prerogatives of influence and persuasion, and they are the ones that now dominate the interactions between the Crown-as-monarch and the Crown-as-executive. As always, to understand the nature of the Crown today, we need to know its yesterday.

  The Devolution of the Crown Prerogative

  In the beginning was the Magna Carta. On the fields of Runnymede on June 19, 1215, England’s great barons, tired of the weak and arbitrary leadership of King John, and facing unprecedented tax increases, forced him to sign the Magna Carta, the Great Charter. This hallowed document subjected the king to the rule of law and the beginning of representative government. Within its text are provisions guaranteeing the redress of feudal grievances, the promise that “no freeman shall be taken or imprisoned … or exiled … but by the law of the land,” and the stipulation that the Crown is not to levy certain forms of taxation “except by the common counsel of our realm.”[1] The Magna Carta also had an enforcement mechanism. Clause 61 created a twenty-five-man council of barons whose duty it was to ensure that the king obeyed the new charter. In clause 61 lay the seed of parliament.

  The first parliament in English history was convened late in the thirteenth century by Edward I. The king needed revenues for yet another war with the Scots, but fearing civil unrest if he proceeded to do so arbitrarily, he sought a compromise. In 1295, and true to the spirit of the Magna Carta, he summoned representatives of civil society to London and invited them to participate, along with the barons, in a “Model Parliament.” In return for agreeing to the king’s tax measures, these representatives would have the right to speak with the king regarding how this money would be spent and how the realm would be governed. Edward I, the “Hammer of the Scots,” stands in English history as the “Father of Parliament.”[2]

  The end to real monarchical power arrived in the seventeenth century, when the English Civil War pitted the monarchy against Parliament, the principle of the divine right of kings against that of parliamentary supremacy, and Charles I against Oliver Cromwell. This war was very much a battle of ideas about the exercise of political power. Charles stressed that as king, he ruled by divine right, chosen by God to reign over England. To Cromwell and his parliamentarian allies, such ideas were nonsense. To Cromwell, God, not man, was king, and in England, Parliament must rule. The war became a contest to see who, or what, would govern England, and, by 1648, the answer had been decided. Charles was captured, tried for treason, and executed in January 1649.[3]

  With this regicide, England had entered new territory. The execution demonstrated that Parliament was supreme in the land. Parliament also disestablished the monarchy, turning England into a republic under the leadership of Cromwell. The eleven years of his rule, and that of his son, mark the only time in English, and subsequently British, history when the state existed as a republic. By 1660, however, facing a growing desire in Parliament and within the country for a return of the monarchy and the Stuart royal family, Parliament voted to re-establish the monarchy and offer the throne to Charles II, the eldest son of the late king.

  When Charles II returned to London in May 1660 from his exile in France, he returned to a very different country from the one he had fled during the Civil War. His invitation to return came from Parliament, which in and of itself highlighted the new power relationship existing between the Crown and Parliament. As a condition for reassuming the throne, he had to publicly declare that there would be no reprisals against those who had fought for Parliament during the late war — with the exception of those who had executed his father. He was also obliged to affirm that he would respect the constitutional role of Parliament and would exercise his powers with the support of Parliament. The three years following the death of Charles II in 1685 were chaotic ones as James II, his younger brother,
sought to re-establish the divine right of kings and re-Catholicize England. Once again England was at war with itself, and, in 1688, Parliament exiled the current king, offering the Crown to William of Orange, ruler of the Netherlands. In William, the English Parliament found an attractive leader. He was a warrior-king; he was married to Mary, the daughter of James II, but a woman who was Anglican; he was a supporter of parliamentary government; and he was a Protestant willing to convert to Anglicanism. On December 23, 1688, William entered London to be met by a delegation of parliamentarians offering him the Crown. This event would go down in English history as the Glorious Revolution of 1688.[4] But there was more to this revolution than simply a change of king. In January and February 1689, Parliament drafted a Bill of Rights to which William and Mary were compelled to assent prior to their taking the oaths of coronation. This Bill of Rights, 1689, affirmed that all Catholics and those married to Catholics would be prohibited from ascending the throne. The bill, in homage to the Magna Carta, drastically limited the prerogative powers of the sovereign. From this moment on, sovereigns were forbidden to execute laws or raise any form of taxation without the express consent of Parliament. Moreover, they were forbidden to suspend laws duly passed by Parliament simply because they might disagree with them. The bill also stipulated that sovereigns were not to interfere with parliamentary elections or legal cases proceeding through the English courts. Sovereigns were specifically proscribed from initiating any form of arbitrary prosecution or from dismissing judges without due cause and without the prior approval of Parliament. The bill required that Parliament had to be summoned regularly while guaranteeing the freedom of speech of its members. Finally, the financing of sovereigns and their properties, court, servants, aides, and advisers was made largely subject to parliamentary scrutiny and approval through its control of what came to be known as the Civil List, the annual fiscal grants paid to sovereigns by Parliament for the former’s upkeep.[5]

  The key constitutional events in the political life of England in the seventeenth century fundamentally changed the status of the Crown. The Civil War affirmed that Parliament, not the monarchy, was pol­itically supreme in the land. There was no greater demonstration of this new reality than the execution of Charles I. The Glorious Revolution of 1688 and the Bill of Rights, 1689, were nearly as dramatic. They hammered home the ideas that the Crown existed to serve the country and its Parliament, not vice versa, and that the sovereign was obligated to obey the rule of law as proclaimed by Parliament. The Act of Settlement, 1701, offered further proof of parliamentary supremacy. In this law the principle of hereditary monarchy was made subject to the control and direction of Parliament, with Parliament deciding who could be in the line of succession (Protestants only, from the line of Hanover) and who could not (Catholics). A good example of this power is found in George I. When he ascended the throne, there were more than fifty descendants of Charles I who possessed better hereditary claims; George became king for the simple reason that Parliament wanted the members of his family, and no others, to be the royal family.[6]

  The reign of the House of Hanover witnessed the gradual but inexor­able transmutation of the Crown prerogative. As the eighteenth century evolved, so too did the principles and practices of responsible government in Britain. Through this formative period, real political authority increasingly flowed from the bottom up. This trend became even more pronounced as the eighteenth century made way for the nineteenth. In the decades leading up to the passage of the Great Reform Act, 1832, the prime minister had truly become the head of government due to his power to make and administer public policies, and his ability to command the confidence of the majority of members in the House of Commons. With effective governmental power progressively vested in the hands of the prime minister and his cabinet, the king increasingly came to act strictly as the symbolic head of state. When responsible government was combined with the broadening of voting rights to all adult males and females regardless of property or income status (the “extension of the franchise”) in the late nineteenth and early twentieth century, Britain, Canada, and most of the self-governing dominions came to fully be the liberal democratic constitutional monarchies that we know today.

  From the near absolute power of the Crown of William the Conqueror, we have evolved to a Crown fully compatible and comfortable with demo­crat­ic rule. In fact, the ability of the British monarchy, and the Crown in Canada, to accommodate itself to the growing forces of democratization and nationalism, of egalitarianism and modernization, has guaranteed the survival of this monarchy. If the Crown had not been able to evolve, it would have become extinct, as did so many European monarchies in the early twentieth century.

  Despite this seismic shift in power, not all the Crown prerogatives once held by William the Conqueror and his medieval successors have disappeared. Power itself never ceases to exist. All the powers mentioned at the very outset of this chapter persist in one form or another in Britain and throughout the Commonwealth, but most of them have been transferred from the hands of the sovereign to other institutions or persons. Parliamentary assemblies have assumed the authority to make laws, oversee taxation, regulate the economy, and even control not only whether there will be a king or queen on the throne but also what the line of succession will look like. Likewise, parliaments have given the courts the responsibility to adjudicate all legal disputes, and interpret and apply the laws passed by parliamentary assemblies. Most of the previous Crown prerogative now resides, however, in the hands of first ministers who are the heads of government and, as such, have assumed most of the vast governing powers once held by the former kings and queens of England.

  The Parliamentary Constriction of the Crown Prerogative

  As the nineteenth and twentieth centuries unfolded, one further constitutional dynamic came to reduce the scope of Crown prerogative powers in Britain and her Commonwealth realms. This dynamic was the growing use of statutory law passed by parliaments, or legislative assemblies, to define, codify, and regulate the application of public policy and governmental powers with respect to any given field of state action. An appreciation of this dynamic is essential to understanding the current existence of the Crown’s powers.

  From the mid-1800s onward, governments in Britain, Canada, and elsewhere in the Commonwealth began to increasingly base their public policies and program administration upon legislative statutes, acts of Parliament, or legislative assemblies. These acts — for example, a Criminal Code or a Workmen’s Compensation Act — would outline specific rights and duties, policy objectives, and program methods by which policy aims would be achieved. With the passage of these laws, each statute would take a field of policy and government decision-making that had previously existed as part of the Crown prerogative and give it to parliamentary assemblies.

  These bodies — parliaments and legislative assemblies — assumed the power to make law with respect to these policy fields. Once such laws were duly made and passed by parliamentary authority, government departments exercising the executive powers of the Crown were empowered to enforce the law as written. The Crown thereby lost its former discretionary power rooted to its ancient prerogatives, and now had to abide by and enforce the legal structure set by the given parliamentary enactment. And there is more. Under British and Canadian constitutional law, once statutory law occupied the legal ground formerly held by any prerogative power, that transfer of authority was permanent.

  As the scope and breadth of statutory law has increased in Britain and Canada over the past two centuries, so too has the extent of the Crown prerogative declined. The majority of laws found in Commonwealth countries today are based on statutes, meaning that the Crown pre­roga­tive, once so fearsome, is now but a pale shadow of what it used to be. The great policy-making powers once held by the likes of William the Conqueror, Henry VIII, and Elizabeth I have been overtaken and tamed by parliamentary authority and the power of statute law.

  Elements of the forme
r Crown prerogative, however, still exist in British, Canadian, and Commonwealth law because not all the policy fields of the ancient prerogative have been regulated by parliamentary actions. “Prerogative,” in the words of the great British constitutional historian A.V. Dicey, “is the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown.”[7] And this “residue” remains significant. To this day, the Crown-as-monarch retains the prerogative right to appoint persons to a wide array of senior governmental positions. In Canada, as we witnessed in the previous chapter, the Crown-as-monarch, in both its federal and provincial manifestation, has the right to appoint a wide variety of public officials from prime ministers, premiers, and all their cabinet ministers through to thousands of public servants, high and low. The Crown-as-monarch also possesses the prerogative power to grant royal assent to parliamentary legislation, prorogue parliamentary assemblies, dissolve such assemblies and call for new parliamentary elections, and even dismiss prime ministers, premiers, and their governments. The Crown-as-executive in Canada, as in Britain, also retains enormous freedom of action in the field of international relations. The Crown has the power to conduct foreign policy, issue passports, make treaties, declare war, oversee the conduct of military policy, and make peace.

  In exercising these prerogative powers, Crown action is not governed and controlled by statutory authority for the simple reason that these fields of action are not governed by statute law. This does not mean, however, that the sovereign or her vice-regal representatives make these decisions on their own. Given the principles and practices of responsible government, most of these surviving elements of the Crown prerogative are made subject to the advice of first ministers who have the command of their parliamentary assemblies. As such, although all appointments to the senior ranks of Canadian governments are made in the name of the governor general or a lieutenant governor, the effective decision-maker is the prime minister or premier. Likewise, although Canadian foreign policy initiatives and treaty-making derive from the power vested in the governor general, the true powers behind the throne are those of the prime minister and his or her senior ministers. Similarly, while the governor general is the commander-in-chief of the Canadian military, real decision-making authority respecting the use of Canadian military forces rests with the prime minister and his or her cabinet. And even though the Queen retains the legal right to appoint the governor general, the exercise of this prerogative is subject to the controlling power of the Canadian prime minister.