January 11

Royal Assent 1

Constitutional monarchies, or crowned republics, have proven advantages over other constitutional systems, a conclusion demonstrated by years of statistics gathered by the United Nations. Making up only 15% to 20% of the world, they are over represented among the countries which on any measure are among the best to live in.

Providing excellent checks and balances against the abuse of power, more often than not they offer a rare form of leadership. This  is leadership beyond politics.

We see that now in the Grand Duchy of Luxembourg, where Grand Duke Henri has put principle, as he sees it, first. (Incidentally, a French organisation is organising a petition to support the Grand Duke. I am not aware of any petition to support the Prime Minister; I suspect that he does not need one.)

The current events in Luxembourg demonstrate, as Dr Hal Colebatch has recalled, those occasions when the Crown has put principle first. He refers to specific occasions in Spain and Australia, and during the Nazi occupation of Denmark.

…Royal Assent in Britain, Australia and Canada…

Royal Assent is normally given pro forma, provided the Crown is satisfied the bill has been passed.  It was last refused in Britain in 1707.   This was by Queen Anne, acting on advice in relation to a bill concerning a Scottish militia.

But as late as 1914 King George V believed, on strong advice, that the power to refuse assent had not atrophied and in a situation of great seriousness, could still be exercised.  

This was in relation to his fears concerning the reaction in Ulster to an Irish Home Rule Bill.

The King was not in the slightest opposed to Irish Home Rule, it was that he appreciated more than the Prime Minister the likely Ulster reaction to the bill and the possibility of civil war. He suggested to the Prime Minister, unsuccessfully, the holding of a referendum

AV Dicey, the leading constitutional authority of his time, supported this view. However, he suggested that the better course would be for The King to change his ministerial advisers, by dismissing the government. In this way he could secure dissolution of the Parliament, and allow the people to determine the issue in a referendum.

Writing as a presumably paid columnist in The Australian on 24 October, 2003, Mr Michael Costello, a former head of two government departments, demonstrated an extraordinary misunderstanding of the Australian Constitution. 

Mr. Costello claimed the Governor –General had routinely sought to exercise a personal discretion on bills submitted for Royal Assent in the Executive Council.  As Sir David Smith points out, this is not even a matter for the Executive Council (Head of State, 2005, pp. 83-84). There was no factual basis for Mr. Costello’s assertion.

Vernon Bogdanor is an outstanding authority on the constitutional monarchy. He says it is possible to imagine circumstances where the Sovereign, acting independently, could prove to be the means of saving the constitutional system.

This is what I was referring to in the 1999 referendum campaign when I told a journalist nobody knew what would happen if a prime minister were to advise The Queen to dismiss a governor- general when it was obvious this was being done to save himself from dismissal, a statement which greatly concerned the late Dr Glen Shiel.

 In Australia, we hear calls from time to time that the Governor- General or the Governor should not give Royal Assent to this or that bill. These calls are usually misguided. The validity of laws can under our constitutional system always be tested in the courts. Their political acceptability is ultimately with the electorate.

The position is different in the Canadian provinces where the lieutenant governor is appointed not by The Queen on the advice of the premier, but by the governor general on the advice of the prime minister. It has only happened once since independence, but a Lieutenant governor can refuse Royal Assent.

In 1937, the Lieutenant-Governor of Alberta, John Campbell Bowen refused Royal Assent to three bills proposed by the Social Credit government. Two involved the provincial government taking control of the banks, the Accurate News and Information Act, would have required newspapers to print replies by the government to stories in the press. All were subsequently found by the courts to be unconstitutional.

 In a cold Alberta winter, the premier forced the Lieutenant –Governor to abandon Government House and withdrew his transport. 

It is appropriate at this point to refer to the paper given at the 2008 ACM National Conference in Perth, “Australia — a democracy or just another ballotocracy?”,  by Joseph Poprzeczny.  In this, he traces the interest in Citizen Initiated Referendums in Australia in the drafting of our Constitution, and in early platforms of the Labor Party. Many believe the CIR to be inimical to the Westminster system, where we choose our representatives for their opinion, others believe it to make the system more democratic by allowing the people to reject or even initiate legislation


(This, along with a paper by Dr. Colebatch on the impact of a politicians' republic on the Australian states,  is included in the current issue of one of the ACM journals, The Australian Constitutional Defender. This also contains a range of other relevant comments and expert articles. We are now in the process of sending The Defender to everybody on the ACM mailing list. If you are interested in seeing a copy, just send an email to ACM asking us to send you a copy of The Defender. Please include your name, postal address, email address and your telephone number.)

In the next column, we shall return to the Luxembourg, and then consider recent examples of a refusal of Royal Assent in Liechtenstein and Belgium. These illustrate the  point  that the existence of the power to refuse assent or advice, vague and undefined, and only exercised in the rarest of circumstances, acts in itself as a check and balance on the exercise of political power.



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