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, 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.
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.
It’s first addressed as a hypothetical possibility in the Preamble to the Statute of Westminster, which states:
The Statute then goes on to provide the mechanism:
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 reads:
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 provides:
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, 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.
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.
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, 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?
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:
[citations omitted]
See also the reasons of Lord Justice May in the same case, at pp. 928-929.
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.
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.
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.
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.
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.
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):
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.
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?