The Invisible Crown

... Continued


The Political Crown

The functioning of the Crown, as opposed to the existence of the person who wears and personifies the Crown, that is, to use Dr Smith's terminology, the political Crown as opposed to the monarchical Crown, is normally the product of ministerial advice (our modern media have become so insensitive to this constitutional fact that they carelessly suggest, for example, that the Prime Minister "appoints" senators or lieutenant-governors or ambassadors, when it is the Governor-General who makes such appointments on advice. Since this ministerial advice was originally British, the evolution of Canadian autonomy made the Crown an instrument not of British, but of Canadian ministers. Insofar as Canadian ministers have perceived themselves, as they largely do, not as servants of the Crown but as masters (they do not take seriously the etymology of the Latin word minister: "lesser, servant"), they have, as Dr Smith suggests Mackenzie King did consciously, pursued a "subservience of the formal, monarchical Crown to the governmental and political Crown (p. 45)". Insofar as they have allowed royal symbols to survive at all, "the policy of Canadianizing the Crown ... elevated the governor general over the sovereign he represented (p. 45)". The new 1947 Letters Patent Constituting the Office of Governor-General, which conferred the exercise of all the Sovereign's powers on the Governor-General, were understood at the time to provide, for example, for the Governor-General to act for practical purposes as regent in Canada should a regency become necessary, a regency which, in the United Kingdom, would be carried out by a person or persons determined solely by United Kingdom law. Mr Trudeau, even though he thought that "abolition of the monarchy would be more trouble than it was worth (p. 47)", was prepared to go as far as possible and used this provision to wrest from the Queen her distinctive right as a sovereign to appoint her ambassadors from Canada and then even to issue the personal letters of credence which they would take to other sovereigns or heads of state. Mackenzie King had been suspicious of the British and their use of the Crown, says Dr Smith, to continue to involve themselves in Canadian affairs; John Diefenbaker, he goes on, was also suspicious, but this time of the Liberals, who were, he believed, plotting "to place the Queen in a non-existent position (pp. 46-47)". How right he was, we all murmur, but not only about the Liberals: all subsequent governments and governors-general themselves, it seems, have had a part in this plot. "The Crown was to be rooted in the future, not in the past; for the historic Crown with its anthem, emblems, and symbolism made accessible a past the government of the day rejected (p. 47)". (This policy is the result of no discussion, never having been raised at the various constitutional conferences which began in the 1960s. The kefuffle created by the Trudeau proposals in the Constitution Amendment Bill of 1978 have made sure that no Canadian government will ever again in the foreseeable future publicly admit its policy for the Monarchy in Canada. "I don't want the monarchists on my back", said Jean Chrétien, Her Majesty's present principal servant in Canada.) So what have governments done to the Crown's anthem? God Save the Queen, in spite of a parliamentary resolution in 1967 supporting it as the royal anthem of Canada, has almost entirely been driven not only out of Canadian life in general but even out of the royal salute. What have they done to its emblems? The Union Flag, in spite of a parliamentary resolution in 1965 affirming it as the symbol of our allegiance to the Crown, has been driven from the ensigns of the armed forces, the flags of all the lieutenant-governors except one, and the Queen's colours of military units, all persons and bodies intimately associated, one would have thought, with the Crown. And what have they done to its symbolism? The crest of Canada, the lion holding the maple leaf, has replaced the royal crest as the finial of poles holding military colours and standards. One could argue that the Canadian crest is the royal crest of the Queen of Canada, but there is quite clearly a policy to use it as a symbol of the Governor-General of Canada. It introduces the Governor-General on television (while the Prime Minister gets the whole Canadian arms), and it has replaced the Queen's cypher (when was the last time you saw E II R on anything emanating from the Canadian government?) even on the sentry boxes at Rideau Hall. Dr Smith, relying on the most authoritative documentation, that emanating from Buckingham Palace and the Governor-General's office, shows that even the Queen herself has been willing to go along with these policies in order to preserve at least the wraith-like position and title of Queen of Canada. Another major theme of The Invisible Crown, indeed the reason for the title of the book, is the manner in which the theory of the Crown has been used to bolster or facilitate the exercise of executive government. When, after the Second World War, government by cabinet order-in-council was attacked and the leader of the Conservative opposition argued that Canada was governed by the House of Commons and that the cabinet was merely its committee (an argument that would find enthusiastic support nowadays in the Reform Party), the Liberals leapt to the defence of the monarchical character of Canada and denied, as any good monarchist would, that power is derived from the people. "The authority of the government", said J.L. Ilsley, one of the Liberal cabinet ministers of the time who were happy, indeed eager, to accept privy counsellorships at the hands of the King, "is not delegated by the House of Commons; [it] is received from the crown (p. 71)", of which the cabinet were the advisers. It is the existence of the Crown which has allowed governments in Canada to sustain the position, favourable to them but one which they no longer announce for public consumption, that they do not derive their authority from the people or from the legislature. If, absit, the Crown were to be replaced by a republic in Canada, could governments any longer resist the demand for absolutely open democratic administration? Such an ideal would certainly appeal to the media opinion movers in their attacks on the Crown in Canada, but, deprived of any excuse or defence for legitimate confidentiality, would government be any more efficient or would it be reduced to slow motion in the endless irreconcilable conflicts of various political and popular forces? The United States, for example, has not been able to put into place the social programmes that Canadians now regard as characteristic of our country (we never reflect that they are also the product of regarding our country as a national family, a view which is possible only if that national family has a natural head, a view of social cohesion which we have inherited from the same country from which we inherited that head); the United States has not been able to parallel our action because as many forces have been opposed to that action as have been in favour of it. Dr Smith would argue that it is the theory of the political Crown, operating within the context of responsible government, and therefore in control of the legislature rather than merely the creature of the legislature, which has enabled such policies, even radical policies, to be put into place. Dr Smith explores many other fascinating constitutional by-ways which open up once one had admitted the real existence and relevance of the political Crown. For example, relying on the description of the functions of the representative of the Crown in the Constitution Act 1867, Parliament and legislatures in Canada and its provinces have conferred regulatory and adjudicatory functions on the governor-in-council rather than on ministers individually, the system followed in the United Kingdom, Australia, and New Zealand. This in fact means that cabinets as a whole supervise such activities of government rather than leaving them to unsupervised officials even of cabinet rank. Such functions, it is true, have been conferred to a limited degree on governors-general in some Commonwealth countries, but could a non-executive president, the desire of trendy newspapers, handle the whole corpus of such responsibilities? He would need a parallel civil service to do so. Dr Smith makes an interesting point when he observes, in more than one place (and repetition of points is a criticism that can be levelled at this book but perhaps it does not hurt a reader to have unfamiliar ideas or concepts mentioned more than once, although it does sometimes give the book the vague flavour of a doctoral thesis whose original file cards have not been entirely consolidated), that the capture by the executive from the Crown of the distribution of patronage has of course been the logical consequence of responsible government, but because of the Canadian executive's other capture from the Crown, honours, and their refusal, unlike the situation until recently in Australia and New Zealand, to employ it (it is obvious that, while a segment of Canadians have always objected to honours from the Crown, even those not involving titles, the new Canadian honours system, divorced from the Crown in the ordinary understanding though easily grasped by those admitted to it, has not captured the public imagination), political patronage or jobbery has become a principal and necessary (in order to sustain support and volunteerism at the local level) tool of Canadian party government.

Flaws And Ommissions In The Study

Of course in a work like this, which is, in many ways, tackling a little-explored and complex subject for the first time, errors and inadequacies are inevitable. One wonders about Dr Smith's inconsistency in sometimes according but sometimes depriving Canadian knights of their title. There are copious notes and a splendid bibliography, but the index is inadequate because it does not cover persons or material mentioned in the notes, while sometimes an individual note requires a search in the bibliography to enable a reader to trace the source or obtain more information. There are very rare typographical slips (the kind that only a careful proof reader, not a computer spell checker, could find). That "references to the Queen in Canada's external relations, as in the appointment of Canadian ambassadors and in the signing of letters of credence, finally ceased in the 1970s (p. 27)" is not quite true because the Governor-General, who now writes letters of credence, does continue to write them "in the name of Her Majesty Elizabeth II ..." And the statement that "Canada has not signed any international Treaties since 1947 at Head of State level" (also p. 27) is true but not only of Canada. No treaties are now made in "Head of State" form but only between governments. And this situation came about because of the Commonwealth itself. It would have been logically impossible, when independent Commonwealth countries began to make treaties between themselves, for the Queen to make a treaty with herself. The "inter-governmental" form was therefore adopted not only within the Commonwealth but everywhere. Dr Smith's discussion of the concept of "state" will cause confusion when he says that the English, from the time of Henry VIII, regarded themselves not merely as a state but as an empire (pp. 27-28). This is because at the time of Henry VIII, the modern concept of "state" had not yet been articulated and "empire" in fact meant what we now mean by a "state": a society which acknowledges "no external authority as superior (p. 27)". Dr Smith seems strangely to forget (p. 33) that the pre-Confederation colonies of British North America, as many other places in the Empire, were already styled "provinces" from the inception. Again, the emphasis is not quite right to say that all royal power over Australia state governors was removed by the Australia Acts of 1986, since the law is quite clear that, while a governor is no longer required to reserve any legislation for the Queen's assent, he is not prevented from doing so. (I am sure that the law was written in this way to provide for the possibility of the Queen's granting her assent in person when on a visit to a State.) Furthermore, in explaining that the Australian States before 1986 maintained a direct relationship with the Crown through the British government (he quotes the description of the eminent Australian constitutional lawyer, Geoffrey Sawer, in 1988 of the "bizarre" (not the word I would use) situation in which the States of Australia up to 1986, while they constituted an independent Commonwealth country, were themselves technically still colonies of the United Kingdom (p. 43), in response to which I cannot resist the temptation to boast that he might have quoted me in Monarchy Canada to that effect as early as 1983 (vol. 11, no. 4, p.13)!), a relationship that the Canadian provinces, although they developed far more autonomy from their federal government than did the Australian States from theirs, were not allowed to have, he neglects to mention that such a measure, that Canadian lieutenant-governors be appointed by the Queen herself on the advice of provincial governments, was proposed by the Report of the Task Force on National Unity (the Pepin-Robarts commission) in 1979. He does give us the important information, however, that the provincial Crown's status has grown in that, having moved from the view of Buckingham Palace in 1955 that lieutenant-governors were, to use Mackenzie King's views of several decades earlier, Dominion civil servants appointed for specific purposes and therefore not entitled to be received in audience, "the Queen has made it a practice, where possible, to receive lieutenant-governors and spouses once during each term of office (pp. 53 and 55)". Smith gives the erroneous impression (p. 121) that the famous (at least in 1990) section 26 of the Constitution Act 1867 provides for the appointment by the Queen rather than by the Governor-General of four or eight extra senators to break a Senate deadlock. But the language of the section is quite clear that the Queen "directs" but the Governor-General "summons". A small slip dates the Royal Style and Titles Act in 1952 (p. 123) rather than 1953. And Smith makes the strange statement (p. 124) -- shades of Charles I or Cromwell -- that the Governor-General actually enters Parliament to dissolve it! I have certainly not been able to do justice to the riches of this book in the limited space of an article. I have not been able to trace for you Dr Smith's exploration of the concept of the prerogative of the Crown, that royal attribute that has allowed executives to use the power of the Crown to do good -- and, because of their party control of the legislature, to pursue evil. I have not been able to recount the transformation of the cabinet's collective responsibility for advice to the Crown into the exclusive access to and use of the Crown and its authority by the Prime Minister or premier. "The problem of the reserve power [the real power of the Governor-General or a lieutenant-governor, in order to maintain authentic responsible government and the people's right to choose their legislature, to grant or withold a dissolution of the legislature or in an emergency situation to choose a prime minister or even to dismiss a government and commission a new one] today is not so much how to check the Crown's use of it as how to prevent the prime minister (or premier) from abusing it (p. 57)". Dr Smith tells us that Eugene Forsey counselled Brian Mulroney that his advice to the Queen should be that of Cabinet as a whole, but how can the Crown or its representatives insist that advice be the considered collective judgement of the whole cabinet, when the conventions of responsible government require the Crown to take the advice of its principal adviser and only, by way of the right to warn, express any demur? I have not been able to trace the manner in which the presence of the Crown has enhanced the status of the provinces (Dr Smith criticises some provinces, and not only modern Quebec, for their "contemptuous" treatment of the institution which had supported the growth of their own autonomy). I have not been able to explore the development of the situation in which, the Queen having been driven from any direct consultation in Canadian government, even the Governor-General is not effectively consulted but only informed before he is compelled to make appointments on advice. The Invisible Crown is on the whole a study of how the efficient or political Crown, derived from the ceremonial or monarchical Crown and thereby sharing in its mystique, has allowed Canadian government to develop in a manner unique to this country and in a manner that has produced efficacious and pro-active administration. It provides evidence of how our Crown has in fact humanised government in a way impossible in a republic. For example, in Attorney General of Quebec v.Labrecque (1980) 2 Supreme Court Review 1082 we read (p. 79) that "the relationship between a civil servant and his employer is not, strictly speaking, a relationship with an abstract being, the State: it is a relationship with a relatively more concrete entity, the Crown, which ‘personifies the state' ... The Crown is also the Sovereign, a physical person who, in addition to the prerogative, enjoys a general capacity to contract in accordance with the rule of ordinary law". If the Sovereign is a person who also, while presiding over the law, is subject to the law, then she is compelled, as she has sworn in her Coronation oath, to do justice, a manner of acting that states as such are not pre-eminently known for but which her employees will be reassured to know their employer is morally bound to exercise. So much for the British Columbia civil servant truck driver, several years ago, who refused to take the oath of allegiance to Her Majesty. This is a book that repays more than one reading, that will refresh the memory with important information each time one delves into it. It is a book that deserves to be discussed with friends, to have questions asked about it if you have expert acquaintances in the area, like political science teachers or constitutional lawyers. You will probably teach them something they never thought of before. Although, as I said at the beginning, it is in the first instance a study of the practical, governmental Crown rather than the glittering, symbolic Crown, that practical Crown is derived inextricably from that personal Crown, our Queen. The book is, to be sure, a tough even though fascinating read, but it ought to inspire Canadian monarchists, loyal Canadians, the Queen's Canadian people, to keep the constitutional construct of the political Crown as closely united to the person of the Queen herself as possible. Our self-respect as a people insists that we owe it to ourselves, we owe it to our history, we owe it to our Queen.

Richard Toporoski is Associate Professor of Classics at the University of St Michael's College, Toronto and a native of Vancouver. He is a regular columnist with Monarchy Canada and has written and lectured extensively on the Queen's honours, the Commonwealth and constitutional issues.

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