Wednesday, 7 November 2007

To those who think the Queen should become a revolutionary and overthrow the state...

The postbag contains some hot complaints about our dear Queen, some a bit offensive, to the effect that she is not legitimate because she didn't refuse to sign certain immoral laws, classically the abortion laws.

These are ill thought out complaints.

But why, exactly?

I shall repeat here the points I made in one answer as I can see that they may be of interest to a wider audience.

I speak as a lawyer as well as a theologian and so hope that I can speak without complete ignorance on the subject.

The Queen has some few not well defined residual powers which probably include the final power to resolve a complete constitutional deadlock or impasse, or to restrain a rogue government that breaks the law in a way that the Courts and Judges cannot otherwise rectify, but, in truth, her powers do not really extend much beyond that. Indeed, that is probably about the sum total of her real political powers today.

That her powers arise from an unwritten Constitution and are necessarily therefore not so well defined does not obliterate them but it does make determining their extent rather less clear. It means that the scope of our Constitution is defined by what lawyers call "conventions" rather than by a written instrument like, say, the US, Canadian or Australian Constitutions. It also means that the Queen will be much more hesitant about exercising any residual prerogative or reserved powers, as they are called, than is the case with her representatives in countries with a written constitution.

That is why the Governor-General of Australia, Sir John Kerr, in 1975 felt able, after taking advice from the Chief Justice of the High Court, Sir Garfield Barwick, to dismiss the Prime Minister and compel a "caretaker" government to call a General Election.


Sir David Smith, the Australian Governor-General's official secretary, reading the Governor-General's proclamation dissolving both Houses of Parliament (under s.57 of the Constitution) on the steps of Parliament House, Canberra, 11 November 1975, with the sacked ex-Prime Minister, Mr Edward Gough Whitlam, and 2 be-wigged clerks of the House, standing behind him. In front of Sir David, a large crowd of Whitlam supporters was baying and chanting in an attempt to drown out the words of the proclamation. Mr Whitlam grins at their efforts but, in fact, a month later, he was defeated at the polls by the biggest landslide defeat in Australian political history. He and his Party (the Australian Labour Party) have never forgiven or forgotten what they see as a "betrayal" by Sir John Kerr who was himself a Labour Party appointee as Governor-General. Others consider that Mr Whitlam got what was coming to him because he had, they say, begun to govern unconstitutionally. Either way, these events have had a dramatic and lasting effect upon Australian politics.


His power to do so, as the Queen's representative, was clearly defined in section 57 of the Australian Constitution, as can be seen here:

http://www.aph.gov.au/senate/general/constitution/par5cha1.htm

Even then there was a massive and intense reaction to his using that power and a political upheaval that is still being felt with all sorts of continuing ramifications including a huge campaign, supported by large funding, to replace the Monarchy with a republican President.

Thus those who think that the exercise of similar powers by the Queen would not be de-stablising or create immense upheaval are simply not looking at the facts.

In fact, however, compared with the powers of the Australian Governor-General, her representative in Australia, and even, in theory, her own powers in Australia under section 59 of the Australian Constitution, her powers in the United Kingdom are very narrow powers.

Nonetheless they remain very important ones. We must honestly hope and pray that they will never have to be exercised but it is, nevertheless, necessary that she retains them – for all our sakes and for the safety and security of the nation.

As a matter of law and constitutional convention and practice, the Queen does NOT have the power to refuse legislation beyond this extremely narrow compass of powers and she certainly has no power to pick and choose what legislation she wishes to approve.

In the UK Constitution, conventions form the very constitution. That is what the UK Constitution consists in. They determine the scope of the UK Constitution. That is how an unwritten constitution works.

Under these constitutional conventions, the Queen retains a purely nominal or ceremonial "power" to refuse legislation but it is not a real power save in the very rare and highly extreme situation of a deadlock or rogue government, as stated above. That is the current reality as regards her real political powers.

Thus, if she tried to take any more powers than this narrow compass then she would, in effect, have instigated an illegal coup d’etat against the democratically elected government of the day and would not then be acting as a responsible head of state but rather a criminal revolutionary.

Moreover, if she did so in order to prevent certain immoral laws from becoming law (e.g. the abortion laws) then her actions would not only be illegal and revolutionary but they would also not succeed in over-turning the abortion laws (or any other immoral laws) and so would, in any case, be pointless and disproportionate.

She would succeed in nothing much more than ending the Monarchy and de-stabilising the Constitution and therefore the whole country.

She simply does not have that right – morally, legally or politically.

The last Monarch actually to refuse assent to legislation was Queen Anne back in the 18th century. Queen Victoria possibly still had the power, at least in theory, but she never used it.

The present Queen no longer has those powers - rightly or wrongly.

Nevertheless some people, in ignorance perhaps innocent, still think the Queen has the powers of Queen Anne or Queen Victoria. As a matter of legal and constitutional practice and convention, she simply does not have those powers any more.

If, on the other hand, she really DID have the power to refuse any legislation i.e. as Queen Anne truly did or as Queen Victoria still theoretically did, then she might legitimately be held morally culpable for not exercising them to reject immoral laws.

But she does not have that power.

For her to take that power would be as illegal as you or I trying to take such powers. She would, in short, have become a revolutionary bent upon over-throwing the state.

Unless critics of the Queen wish to argue that we all, as Christians, have the obligation to start a revolution and overthrow the state because of an objection to immoral laws, then they cannot expect the Queen to do so any more than the rest of us.

Ignorance of the legal and constitutional postion of the Monarch is excusable in those who know but little of such things or who are simple folk of little learning but for the intelligent and educated to argue so is lamentable.

The idea that the Queen should become a revolutionary and stage a coup d'etat against her own government may perhaps have its origins in the kind of spurious liberation theology that more resembles Marxism than Catholic theology. It is the sort of entirely fallacious theology that encourages Catholics to support revolutionary movements around the world and to support revolutionaries closer to home such as the bloody, murderous and diabolical IRA.

This spirit of revolution is not a clean spirit. It is a spirit that refuses to serve and says, with Satan, "I will not serve".

It should be obvious that no Catholic can ever even begin to endorse such a creed.

It is not now the place to explore the idea of just war but suffice to say that no subject has the right to rebel against his legitimate sovereign or government and still less the right to declare such a sovereign or government illegitimate. Only a legitimate superior may declare a lesser sovereign power illegitimate and the subject, by definition, is not a superior.

The idea that a group of subjects may club together and declare their own sovereign government illegitimate and so claim the right to overthrow it is a concept entirely condemned by the Catholic Church.

It has, however, been welcomed by some Protestant sects and by many secularists.

The anti-Catholic founders of the American revolution claimed the right to judge their government and rebel and were roundly condemned by the Catholic Church for so claiming.

The only time a Catholic may fight against his own government or sovereign is if that sovereign is illegitimate by its own admission or by the proper judgment of a superior. The Pope, for instance, might be such a superior in some cases, or perhaps international law, depending upon the particulars of each case.

A clear usurpation or seizure of power from the legitimate sovereign government, or an illegal invasion, may be rightly resisted by a Catholic by force of arms but even then the invasion must have been declared illegal by some superior power (e.g. by recognised international law) and, moreover, a Catholic may only do so if resistance is proportionate and there is the real prospect of winning. Otherwise, he acts immorally and sins.

On the other hand, if a foreign power seeks to overthrow an illegal or usurped government, a Catholic may be justified in assisting that foreign power to restore the legal government but, again, only proportionately and with a reasonable prospect of success.

The idea that there is a general right for any group of citizens to band together to overthrow a government that they, and they alone, have judged to be oppressive or wicked is utterly spurious and has no basis whatsoever in Catholic doctrine or, in all honesty, in right reason. It is simply a recipe for chaos and anarchy.

Revolution is an anti-Catholic creed - by definition.

Those who doubt this should read De Regimine Principum ("On the Rule of Princes") by St Thomas Aquinas.

...

12 comments:

Ottaviani said...

Bravo!

Orestes said...

Pardon me, but your lawyer's wig is showing.

What a bunch of hooey (apologies for the colloquialism, I'm a Yank).

Where, pray, is the narrowing of these powers defined? What specific "convention" maintains that the monarch cannot refuse to assent to legislation she finds morally repellent? What law was passed, what event took place, when did it happen, other than in the editorial pages of The Guardian, that Victoria's prerogatives did not pass to her successors? Not only as a Catholic, but as a student of history, I'd dearly like to know. Personally, I think it was an idea cooked up by Ramsay MacDonald or some other of your red occupants of Downing Street during the last century.

When faced with such an atrocity as abortion, it is the Queen's moral duty to do everything she can to prevent it - up to and including abdication if that is her only option.

If Her Majesty is circumvented by the nature of her office from doing any good, then what good can her retaining the throne do? The slaughter of innocents is such an execrable evil that any action - even revolution - to prevent it is preferable to action, however involuntary, in this case signing legislation, which specifically allows that evil to occur.

Anonymous said...

When you say you are a lawyer and a theologian, what do you mean? How well qualified are you and where did you study? There are plenty of bad lawyers and theologians out there, so just saying you are a lawyer and a theologian doesn't necessarily mean a lot.

Dr. Peter H. Wright said...

Many thanks to Tribunus for another fascinating post.

I have only recently read the previous post and comments.

I have always understood that in modern parliamentary times the Royal Assent marks the final passing into law of a Bill.

The Royal Assent in no way signifies the personal approval of the Queen of a particular law.

Rather it is the official recognition by the Crown that a Bill has successfully passed through the required procedures in both houses of Parliament.

It is not therefore for the Queen to withold her assent.

To do so would precipitate a constitutional crisis which (presumably) would involve her abdication with unforeseeable consequences.

In like manner, it is not for the Queen who acts on the advice of her ministers to withold her assent to Orders in Council.

Have I (more or less) understood correctly ?

I would in addition be most interested to hear Tribunus's opinion on the question of citizenship.

I think of myself not as a British "citizen", (nor as a "British national"), but as a British subject.

"Citizen" is not a word I associate with monarchy.

And we live in a monarchy.

Am I being old fashioned or plain wrong ?

(I would be pleased to hear I am the former.)

God save the Quuen.

Philip said...

I agree with Ottaviani. Thank you for posting about this issue with such clarity.

I am proud to be a Catholic and I am proud to be a subject of Her Majesty, Queen Elizabeth II.

Flavius said...

I agree with Ottaviano, and the call for the Queen to become a revolutionary. If anyone can do it, she can.

Tom said...

Sorry, i thought i was signing up to abolish the crumbling immoral house of windsor.

Tribunus said...

Dear Tom,

If you thought that then it wasn't your only mistake!

On this blog you're signing up to abolish immoral, godless, secular humanist republics not Christian Monarchy.

Even the weakest and weediest of Christian monarchies - like ours - is better than godless secularism.

If you haven't worked that one out yet then wake up and smell the coffee!

Welcome to reality, brother!

Tribunus said...

Salve Flavie!

I may have misread him/her but I think Ottaviani agrees with me.

Either way, I know for certain that the Cardinal of that name agreed with me. No revolutionary he, by golly!

Tribunus said...

Dear Doctor Peter,

In my view you are being commendably traditional and old-fashioned and I entirely agree with you!

One only need read Simon Schama's excellent book "Citizens", about the murderous French Revolution, to be put off the infernal, bloody and revolutionary word "citizen" forever!

We are all subjects - ultimately subjects of Christ the King.

Unlike Satan, we are happy and proud to say "I SHALL serve". And in Christian Monarchy EVERYONE serves, even the Monarch, which is why the motto of the Prince of Wales is "Ich Dien" which is German for "I serve".

Prince Charles may have a lot of faults but he does at least make some effort to follow his motto.

In a godless republic everyone is a "citizen" and serves himself, a pretty succinct summary of Hell.

Tribunus said...

Dear Anonymous,

Read my other mails and you will get a sufficient answer to your question. I am well qualified and can stare down the qualifications of most others. But I prefer strength of argument to comparative degree ceremonies.

Beyond that I am not particularly well disposed to relay my life history to a correspondent who calls himself "Anonymous". Sorry about that but it I think that is only fair.

If you don't like my arguments then argue against them. You are likely to make more headway.

Tribunus said...

Dear Bunch of Hooey Yank,

I like your “more monarchist than thou” tone.

Even if it is not right legally, it shews the right spirit.

Keep it up!

Sadly, however, the legal reality is rather different than the position of greater regal power that you and I might like to see.

The Queen has much less power than most republican presidents. She certainly has miles less power than America’s elected monarch, the US President.

We may be a Monarchy but we are also a modern democracy with all that such implies.

However, first up, you are completely wrong in your last statement and, indeed, I regret to say, completely anti-Catholic in so saying it (sorry, no offence meant; but I mean doctrinally).

St Paul teaches us that we may not do evil that good may come of it (Rom 3:8). Actually, good, rarely, if ever, comes from doing evil.

Revolution is evil. Even assuming that good were to come from it - even the good of preventing abortion (which is frankly unlikely anyway) – one may not do that evil in order to obtain that good. That is so, no matter that abortion is, as you say, such an execrable evil.

To say otherwise is, I am sorry to have to tell you, not only a “bunch of hooey” but gravely wrong and contrary to God’s law.

Now to your other points.

Let me deal with the second last point: what good is the Monarchy if the Queen can’t do any good?

Actually, the Queen can do a lot of good even if she cannot refuse legislation, save in a constitutional crisis.

If you think her retaining her throne is pointless if she cannot refuse legislation then your argument applies equally to a republican president since almost none of them can refuse legislation, either. Moreover, no amount of abdication or resignation by either Queen or president will rectify that situation.

We live in a democracy and the idea that the Queen or a republican president could either of them simply ignore the will of a democratically-elected Parliament is absurd and manifestly illegal and unconstitutional and, although you may not like that, it is not something that you can blame the Queen for.

That is not merely a peek of the lawyer’s wig. That is political and constitutional reality.

Your complaint is really against the state of modern politics and society as a whole and not merely the Queen. You cannot blame the Queen for modern politics and society.

Occasionally one has an opportunity to witness the ultimate absurdity which is to hear a democrat rail against the Queen for not refusing some legislation he dislikes, thus auto-demolishing his own democratic position.

I have seen it and it is wonderfully ridiculous: a democrat complaining that the Queen will not over-ride democracy in a wholly undemocratic way is one of the most absurd of things.

However, I am reasonably confident, Orestes, that, Yank tho’ you are, you do not fall into that wonderfully absurd camp of self-contradictory illogicality.

Lastly, to your more technical legal questions.

Where there is no written constitution, as with the British Constitution, then convention defines constitutional bounds. These conventions are determined in a number of ways:

(1) By history;
(2) By the Parliament itself;
(3) By the courts;
(4) By the Crown and its ministers;
(5) By practical reality;
(6) And – since 1948 when we joined the Council of Europe and since 1972 when we joined the EU – by the European Court of Human Rights and the European Court of Justice.

In our Constitution it is said (not least by the Courts) that the UK Parliament is sovereign and none can gainsay it.

Law students are still taught (tongue in cheek) that Parliament could, for instance, make it illegal for Frenchmen to smoke in the streets of Paris. That, of course, would never happen (for practical reasons if no other!) but it illustrates the point.

Actually, these days we must face the fact that the more power is alienated or “pooled” in Europe the greater the likelihood that it will be practically impossible to get it back and so, to that extent, it undermines the constitutional convention that Parliament is sovereign.

However, for the time being, at any rate, the most potent forces determining what are the constitutional conventions, and what the limits of the Constitution, are the courts and Parliament itself.

One such convention is the so-called “Salisbury Convention”. It is purely parliamentary. It is a self-denying convention by which the House of Lords declines to allow itself to challenge or vote against any government proposal specifically set out in a General Election manifesto when that government has been voted in by the electorate.

Ministerial responsibility or individual ministerial responsibility is another constitutional convention in governments using the Westminster System.

Other Conventions revolve around the Common Law and have been established by the operation of the Common Law principles of statutory interpretation.

For instance, as I had occasion to advise during the passage of the House of Lords Act 1999, their Lordships could have, if they had wished, refused the Bill since it was never referred to in any election manifesto.

But, alas, modern governments ride roughshod over constitutional conventions which, in turn, makes a mockery of having an unwritten constitution.

The courts do not necessarily police this. Both the Court of Appeal and the Judicial Committee of the House of Lords ruled in favour of passing the Hunting Act 2004 by a simple vote in the Commons and the use of the Parliament Acts to by-pass the Lords. Whether they would have done the same for the House of Lords Act 1999 is not certain but, I suggest, likely.

To read the case go to:

http://www.bailii.org/

And then search for:

Jackson and others (Appellants) v. Her Majesty's Attorney General (Respondent)
[2005] UKHL 56.

There you will get a flavour of how the courts treat and determine the extent of constitutional conventions.

There you will also see how the courts are quite willing to set aside the traditional rights of the House of Lords as legislature.

The Royal Assent is a more serious matter but there is no real question but that the refusal of royal assent would be similarly treated by the Executive and by the courts.

The power to refuse Royal Assent was last exercised in 1708, when Queen Anne refused her assent to a bill for settling the Militia in Scotland.

The Convention now, however, according to Erskine-May, the “Bible” on Parliamentary procedure, and almost certain to be upheld by the courts, is that the Queen will not depart from the advice of her ministers save in the rarest and most extreme circumstances, the examples being given of an irresolvable parliamentary deadlock or the attempt by a government to act outside powers or, perhaps, to extend the life of Parliament indefinitely.

This last may now be doubtful given the Jackson decision above. Could the Executive abolish elections by the simple expedient of 2 Bills – one to amend the prohibition in s.2 of the Parliament Act 1911 and another to extend the life of a Parliament indefinitely? It is not clear.

But if it tried to do so most people would expect someone - if not the courts then the Queen - to act to prevent it.

The bottom line is that the fact that the definite limits are not entirely clear means that the Queen is even less likely to exercise her residual powers, particularly given the interaction of the powers of the EU Commission and its courts, save in extremis.

So – try as you might to blame Ramsey MacDonald – I am afraid the blame has to go very much wider than him!