# When Did Canada Stop Being Part of the English Monarchy? **URL:** \ **Category:** Factual Questions\ **Created:** [January 19, 2004, 6:48pm UTC](https://boards.straightdope.com/t/when-did-canada-stop-being-part-of-the-english-monarchy/225220 "2004-01-19T18:48:36Z")\ **Posts on this page:** 9\ **Page:** 2
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 21, 2004, 4:30pm UTC](https://boards.straightdope.com/t/when-did-canada-stop-being-part-of-the-english-monarchy/225220/21 "2004-01-21T16:30:05Z")
> [@Bookkeeper](#): > > With reference to the OP, I think cow-orker may be confused by the fact that the GG **is** the head of state when Liz isn’t in town. The GG is the Queen’s viceroy, i.e. the person who acts in place of the Queen in a place which is difficult for the monarch to rule personally. Technically, Her Excellency isn’t a viceroy, although that term is commonly used by the media, probably because it sounds more romantic. The difference is that a Governor-General holds office under statute (i.e. - an office created by Parliament), while a viceroy holds office under the prerogative (i.e. - an office created by Her Majesty under her prerogative powers). Since the office of GG was created by the [Constitution Act, 1867](http://laws.justice.gc.ca/en/const/c1867_e.html#executive), s. 10, Her Excellency is not a viceroy. The difference between the two types of office was illustrated by the British government in India, prior to Indian independence. Part of India was governed under a series of statutes passed by the British Parliament. But in other parts of India, the British held authority by treaties with the local princes, backed up by the British military power - both of which were prerogative powers. The British would send out one official to govern all of India, but he held two positions: Gov Gen for the parts of India governed under the Act, and Viceroy for the portions governed under the prerogative. “Viceroy” being a classier title, that’s how he was commonly referred to. ---
**Author:** ![MartinL](https://avatars.discourse-cdn.com/v4/letter/m/ebca7d/32.png) [@MartinL](https://boards.straightdope.com/u/MartinL)\ **Post date:** [January 21, 2004, 5:01pm UTC](https://boards.straightdope.com/t/when-did-canada-stop-being-part-of-the-english-monarchy/225220/22 "2004-01-21T17:01:12Z")
> [@UDS](#): > > The UK numbering is used to avoid confusion. Elizabeth II is Elizabeth II througout her dominions, even though most of them have never had an Elizabeth I. Not quite correct. When I visited the Tower of London, the guards had this “E II R” sign (Elizabeth II Regina), whereas in Edinburgh the guards had a sign reading “E I R” (Elizabeth I Regina). Upon inquiry, they explained that they had never had a queen Elizabeth before, so the current monarch is Elizabeth I to them. I cannot tell how the other dominions handle this, though. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 21, 2004, 5:02pm UTC](https://boards.straightdope.com/t/when-did-canada-stop-being-part-of-the-english-monarchy/225220/23 "2004-01-21T17:02:40Z")
> [@Polycarp](#): > > This was actually addressed at the Abdication Crisis in 1936, and there is some methodology worked out by which all the Commonwealth nations agree to recognize the same monarch – I don’t know the details, but hopefully someone who does will post what they are. It’s first addressed as a hypothetical possibility in the Preamble to the [Statute of Westminster](http://www.solon.org/Constitutions/Canada/English/StatuteofWestminster.html), which states: > [@](#): > > And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom: The Statute then goes on to provide the mechanism: > [@](#): > > **4.** No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof. So taken together, these provisions indicate that unanimous consent is needed for any alterations to the law governing the succession, and that the British Parliament will not enact a law affecting the sucession unless the Dominions has asked for, and consented to the enactment. Interestingly, in the Abdication Crisis the British Parliament didn’t actually follow the strict wording of section 4 of the Statute of Westminster. The Preamble to [His Majesty’s Declaration of Abdication Act](http://www.heraldica.org/faqs/abdicate.html) reads: > [@](#): > > And whereas, following upon the communication to His Dominions of His Majesty’s said declaration and desire, the Dominion of Canada pursuant to the provisions of section four of the Statute of Westminster, 1931, has requested and consented to the enactment of this Act, and the Commonwealth of Australia, the Dominion of New Zealand, and the Union of South Africa have assented thereto: So only Canada “requested and consented to” the change in the succession, under s. 4; the other Dominions simply “assented thereto.” Doesn’t affect the validity of the Act, however, since at this time the British Parliament still had supreme legislative authority and could disregard its own previous enactment. The situation is different now. In most if not all of the Commonwealth countries that retain the Queen as head of state, constitutional amendments mean that the British Parliament no longer has any legislative authority it can use for the other countries. For example, the [Canada Act 1982](http://www.solon.org/Constitutions/Canada/English/Canada_Act_1982.html) provides: > [@](#): > > 1. No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law. So that means that to amend the succession would require each Commonwealth realm to pass an identical statute, changing the succession in the same way. The British Parliament could do that by an ordinary Act of Parliament, but it gets more complicated in other countries. For example, under section 41 of the [Constitution Act, 1982](http://www.solon.org/Constitutions/Canada/English/ca_1982.html), the only way Canada can change “the office of the Queen” is by a unanimous constitutional amendment, passed by Parliament and all ten provincial Legislatures. (Which opens the ironic possibility that the succession to the British throne can only be amended with the consent of Quebec…). Don’t know what the requirements are for the other Commonwealth countries, but it doesn’t look very easy. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [January 22, 2004, 2:34am UTC](https://boards.straightdope.com/t/when-did-canada-stop-being-part-of-the-english-monarchy/225220/24 "2004-01-22T02:34:09Z")
> [@Northern Piper](#): > > I understand your position, **UDS** , but I would respectfully disagree. Here’s why. I would say that those statutes of the English/British Parliament governing the succession to the Crown are not just British statutes; by the principle of the reception of English/British statutes in the colonies, they are also part of the domestic law of each of the Commonwealth countries that retains the Crown as head of state. Although the British Parliament can alter or repeal those statutes for the purposes of Britain’s domestic law, those statutes would still continue in force in the other Commonwealth countries, so there would still be a British monarch for the purposes of the domestic law of the other Commonwealth countries. > > To elaborate a bit . . . Hmm. I disagree, I think. Just as the Westminster parliament can no longer legislate for (say) Australia, so the Australian parliament cannot legislate for the UK. (Even more so, in fact, since the Australian parliament cannot do so even with the request and consent of the UK). And this is reflected in article 51 of the Australian Constitution – parliament doesn’t have a universal legislative power, but only a power to make laws “for the peace, order, and good government of” Australia – i.e. no power at all to make laws with respect to the UK. And I think this formulation is fairly common in the constitutions of the dominions. And this reflects a wider principle; Australian law (whether or not enacted by the Australian parliament) cannot affect the UK. So, yes, the Act of Settlement forms part of the law of the Australia, in so far as it affects Australia. But it is simply not within the competence of Australian law to prescribe that there is, or is not, a sovereign monarch in the UK. When section 2 of the Constitution Act refers to “Her Majesty’s heirs and successors in the sovereignty of the United Kingdom” I read that as a reference to the person who is, in fact, sovereign in the UK, and not to the person who would be sovereign in the UK if certain provisions of Australian law (namely, the Act of Settlement) still formed a part of the law of the UK. The whole point about the sovereignty of the UK is that it cannot be affected by Australian law; that’s what sovereignty means. The idea that Australian law can deal with the sovereignty of the UK is a contradiction in terms. The Australian Constitution could be amended to recognise as monarch the person who, but for the [British Republic Act 2005, or whatever] would be sovereign in the UK. Or it could recognise as monarch the heir of Sophie, Electress of Hanover, being protestant. Or it could explicitly refer to the Act of Settlement to identify the monarch. But I think that something like this would be legally necessary and, until it was done, the Australian constitution would have a lacuna. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 25, 2004, 5:11pm UTC](https://boards.straightdope.com/t/when-did-canada-stop-being-part-of-the-english-monarchy/225220/25 "2004-01-25T17:11:26Z")
hmmm. I’m not saying that Australia can legislate for the British. I’m saying that only Australia can pass laws changing the succession to the monarchy in Australia, and that no matter what Britain does, the Australian Crown would be unaffected. (And I agree that the Commonwealth Parliament has no general legislative power; when I say “Australia” I’m using that as shorthand for the Commonwealth and state governments exercising their constitutional authority to amend the Australian constitution.) I think where we disagree is that I think you view section 2 of the Constitution Act as descriptive; I see it as prescriptive. If I understand you correctly (and please don’t hesitate to tell me I don’t - I’m not trying to put words into your mouth), you view s. 2 as saying that the Crown means the person who is the monarch of Great Britain. Australia has no choice over that, and therefore if Britain changes the definition, it automatically changes the Australian Constitution. I see it as prescriptive, that is, s. 2 states that the Crown, for the purposes of Australian law, is the person who holds the Crown of Great Britain, _as prescribed by Australian law._ That does not mean that there has to be a monarch of Great Britain, under British law. Rather, it means that the Australian Constitution has a concept called the British monarch, to which powers attach under Australian constitutional law. For the purposes of Australian constitutional law, “Her Majesty’s heirs and successors in the sovereignty of the United Kingdom” is a defined term under the Australian Constitution and does not depend on Britain actually having a monarch, under the British constitution. Rather, under Australian constitutional law, whoever is eligible to hold the British Crown under the Act of Settlement (as it applies to Australia and as amended by Australia) and the associated common law, is the Crown of Australia. I’m afraid I’m troubled by your suggestion that there is a lacuna in the Australian Constitution, since it implies that Britain still has the power to legislate for Australia, notwithstanding the _Statute of Westminster_ and notwithstanding section 1 of the [Australia Act, 1986](http://www.statusquo.org/AustAct.html#Termination%20of%20power%20of%20UK), which reads: > [@](#): > > 1. No Act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to the Commonwealth, to a State or to a Territory as part of the law of the Commonwealth, of the State or of the Territory. As far as I can tell, by your argument, the British Parliament still has this power. Today, Australia has a monarch. If Westminister Parliament tomorrow abolishes the monarchy, within the United Kingdom, doesn’t your argument mean that Britain has just amended the Australian Constitution by abolishing the monarchy in Australia? By what constitutional principle does the British Parliament have this power? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 25, 2004, 5:29pm UTC](https://boards.straightdope.com/t/when-did-canada-stop-being-part-of-the-english-monarchy/225220/26 "2004-01-25T17:29:53Z")
I found the case I referred to awhile ago about the divisibility of the Crown. It’s a decision of the English Court of Appeal: _R. v. Foreign Secretary, ex parte Indian Association of Alberta_, [1982] 1 Q.B. 892. The case arose during the efforts by the Canadian government to patriate the Constitution of Canada by having the British Parliament pass the _Canada Act 1982_, which would terminate Britain’s power to amend the Canadian Constitution. The Indian Association of Alberta challenged the patriation, arguing that their treaties with the Crown meant that Britain could not abdicate its responsibilty. The Court of Appeal rejected the argument, holding that even if the treaties were originally made to the Crown in right of Britain, the responsibility for carrying them out passed to the Crown in right of Canada - i.e. - that the Crown is now divisible, given the modern Commonwealth of independent nations. Lord Denning, as usual, gave the clearest statement on point: > [@](#): > > _The division of the Crown_ > Hitherto, I have said that in constitutional law the Crown was single and indivisible. But that law was changed in the first half of this century — not by statute — but by constitutional usage and practice. The Crown became separate and divisible — according to the particular territory for which it was sovereign. This was recognised by the Imperial Conference of 1926 … It framed the historic definition of the status of Great Britain and the Dominions as > > “autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any respect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members fo the British Commonwealth of Nations.” > … > Thenceforward the Crown was no longer single and indivisible. It was separate and divisible for each self-governing dominion or province or territory. Thus in 1968 it was held in this Court that the Queen was the Queen of Mauritius, and the Crown in right of Mauritius could issue passports to its citizens…; and in 1971 it was held, again in this Court, that the Queen was the Queen of the Province of New Brunswick, and that province was entitled to state immunity… [citations omitted] See also the reasons of Lord Justice May in the same case, at pp. 928-929. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [January 27, 2004, 2:46am UTC](https://boards.straightdope.com/t/when-did-canada-stop-being-part-of-the-english-monarchy/225220/27 "2004-01-27T02:46:26Z")
> [@Northern Piper](#): > > . . . I think where we disagree is that I think you view section 2 of the Constitution Act as descriptive; I see it as prescriptive. If I understand you correctly . . . You have. > [@Northern Piper](#): > > . . . you view s. 2 as saying that the Crown means the person who is the monarch of Great Britain. Australia has no choice over that . . . > [@Northern Piper](#): > > . . . and therefore if Britain changes the definition, it automatically changes the Australian Constitution. No, it doesn’t change the Australian Constitution. Suppose the British altered UK law to remove the required that the monarch be a Protestant. Prince Charles coverts to Buddhism and in due course succeeds to the Crown. The Australian Constitution is unaltered; it still refers to the person who is Queen Victoria’s heir and successor in the sovereignty of the United Kingdom. That person is Charles. Had UK law not been altered it would have been someone else, but the Australian Constitution follows UK law in this regard. > [@Northern Piper](#): > > I see it as prescriptive, that is, s. 2 states that the Crown, for the purposes of Australian law, is the person who holds the Crown of Great Britain, _as prescribed by Australian law._ If we must choose between a prescriptive interpretation and a descriptive one, I prefer the descriptive, for two reasons. First, it accords with the plain meaning of the words. Secondly, it accords with the legal concept of sovereignty. The notion that Australia could legislate as to who shall succeed to the sovereignty of the UK is a contradiction in terms; if Australia could legislate to that effect, the UK wouldn’t have any sovereignty. If the intention is to create some wholly fictional, illusory status which is called UK sovereignty but is nothing of the kind, I think very clear language would be needed. > [@Northern Piper](#): > > That does not mean that there has to be a monarch of Great Britain, under British law. Rather, it means that the Australian Constitution has a concept called the British monarch, to which powers attach under Australian constitutional law. For the purposes of Australian constitutional law, “Her Majesty’s heirs and successors in the sovereignty of the United Kingdom” is a defined term under the Australian Constitution . . . No it isn’t. The term is used, but not defined. The Constitution Act treats it as an independently existing legal reality – which, of course, it is. > [@Northern Piper](#): > > I’m afraid I’m troubled by your suggestion that there is a lacuna in the Australian Constitution, since it implies that Britain still has the power to legislate for Australia, notwithstanding the _Statute of Westminster_ and notwithstanding section 1 of the [Australia Act, 1986](http://www.statusquo.org/AustAct.html#Termination%20of%20power%20of%20UK), which reads:As far as I can tell, by your argument, the British Parliament still has this power. Today, Australia has a monarch. If Westminister Parliament tomorrow abolishes the monarchy, within the United Kingdom, doesn’t your argument mean that Britain has just amended the Australian Constitution by abolishing the monarchy in Australia? By what constitutional principle does the British Parliament have this power? The Constitution Act gives it that power, by choosing to define Australia’s head of state by reference to the UK sovereign. Australia can change that at any time, without any restraint from the UK. Strictly speaking, I don’t think the UK does have the power to amend the Australian Constitution. Rather, because the Australian Constitution is not self-contained but refers to and depends upon external matters, the laws of the UK can affect how the Australian constitution operates. But that’s a choice made by Australians, not by the UK. An analogy, though perhaps a distant one, is the provision of US law which creates visa problems for people convicted of drug offences in other countries. Does this mean that other countries have the power to amend US immigration law, or to alter US immigration practice? I think not. It is always a matter for the US to decide how much, if any, attention to pay to foreign drug convictions. Similarly it is always a matter for Australia to decide whether to look to UK law to identify its head of state. That doesn’t mean that the UK is legislating for Australia; rather than Australian legislation chooses to recognise and adopt fact-situations created by UK law. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 3, 2004, 5:23am UTC](https://boards.straightdope.com/t/when-did-canada-stop-being-part-of-the-english-monarchy/225220/28 "2004-02-03T05:23:20Z")
Okay, so s. 2 of the Constitution of Australia Act is descriptive: Britain decides by British law who is the monarch of the U.K., and that person is monarch of Australia by virtue of s. 2. That means that if Britain abolished the monarchy under British law, Australia would cease to have a monarch, by your analysis, and would have to pass a constitutional amendment to fix the problem. But I think there’s a glitch to that argument, which is that by a strict reading of the Australian Constitution, no person is currently eligible to be monarch of Australia, and in fact there hasn’t been any such person since 1927. Here’s why. Section 2 of the [Commonwealth of Australia Constitution Act](http://www.aph.gov.au/senate/general/constitution/preamble.htm) reads: > [@](#): > > 1. The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom. So far, so good. Except, what is the legal meaning of “United Kingdom” in this phrase? It’s not explicitly defined by the substantive provisions of the Act. It’s a well-established principle of statutory interpretation that Preambles have no binding force themselves, but aid in the interpretation of the substantive provisions of the statue. So, does the Preamble provide any guidance? It certainly does. The Preamble reads (in part): > [@](#): > > Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and **Ireland** , and under the Constitution hereby established: Here’s where the problem comes in: we can infer from the Preamble that the reference to the “United Kingdom” in s. 2 is the “United Kingdom of Great Britain and Ireland.” However, that Kingdom ceased to exist in 1927, when the Brits formally surrendered sovereignty over southern Ireland with the creation of the Irish Free State. As part of the settlement, the British Parliament passed the _Royal and Parliamentary Titles Act, 1927_, 17 Geo. V, c. 4, which provided that the King was authorised to change his style and title (s. 1); that the name of the British Parliament was changed to the “Parliament of the United Kingdom of Great Britain and **Northern** Ireland” (s. 2(1)); and that in every Act passed after this Act, “the expression ‘United Kingdom’ shall, unless the context otherwise requires, mean Great Britain and **Northern** Ireland” (s. 2(2)). So the net effect of this Act was that from 1927 onwards, the United Kingdom of Great Britain and Ireland, as referred to in the Preamble of the Australian Constitution, ceased to exist. George V was the last monarch of Great Britain and Ireland. Since that time, there have been four monarchs of the United Kingdom of Great Britain and Northern Ireland, but no monarchs of Great Britain and Ireland. And, since the Australian Constitution pre-dated the _Royal and Parliamentary Titles Act, 1927_, the interpretive provision of s. 2(2) does not apply, and “United Kingdom” in s. 2 of the Australian Constitution Act continues to have the same meaning as before, namely the “United Kingdom of Great Britain and Ireland.” If s. 2 of the Australian Constitution is purely descriptive, and assigns the monarchy of Australia to whomever is the monarch of the United Kingdom of Great Britain and Ireland, then we run into the problem that there is no such person, and has not been any such person since 1927. If so, Australia does not have a monarch. Alternatively, we can take the position that s. 2 is prescriptive: the Preamble and s. 2 between them define the concept of the Crown of the United Kingdom of Great Britain and Ireland, _for the purposes of Australian constitutional law_. By this approach, it is irrelevant for Australian constitutional law that Britain has surrendered sovereignty over the Free State and no longer is called the United Kingdom of Great Britain and Ireland. That term continues to have legal meaning in Australia, and is the way that the person who is monarch of Australia is identified, without reference to any British law. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [February 3, 2004, 5:54am UTC](https://boards.straightdope.com/t/when-did-canada-stop-being-part-of-the-english-monarchy/225220/29 "2004-02-03T05:54:15Z")
No. The United Kingdom did _not_ cease to exist in 1927; it changed its name, with consequential changes to the Royal and parliamentary titles. If it had ceased to exist and a new state been founded, the consequences would have been much more fundamental, and not just for the interpretation of the Constitution of Australia Act. In fact the 1927 legislation which you cite specifically provided that “the present Parliament shall be known as the Thirty-fourth Parliament of the United Kingdom of Great Britain and Northern Ireland, instead of the Thirty-fourth Parliament of the United Kingdom of Great Britain and Ireland”. If a new kingdom had been created, the parliament then sitting would hardly have been its thirty-fourth. Furthermore, if the UK which existed in 1901 ceased to exist in 1927 (except as a fictional creature of Australian law) there would have been no need in 1986 for the Australia Act to prescribe that “no Act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend” to Australia, since that kingdom no longer existed and had no parliament. Now that I think of it, doesn’t the existence of the Australia Act 1986 indicate clearly that the UK referred to in the Constitution Act is the real, actual UK subsisting as an expression of, and the source, of British law, and that references to the parliament of the UK and to “Her Majesty’s heirs in the sovereignty of” the UK are to be construed accordingly? [Previous page](https://boards.straightdope.com/t/when-did-canada-stop-being-part-of-the-english-monarchy/225220.md?page=1)